Thompson v. The N. Y. and Harlem Rail Road Company.

Such being the established law on the subject, I must, on both grounds, decide against granting to the complainants any relief founded upon the assumption that the Harlem Rail Road Company have no right to maintain the bridge in question across the Harlem River, for the use of their rail road.

There remains another, though very inferior ground of relief set up in the bill, which is reposed on the alleged misuser of the bridge by the defendants, by permitting, or by their negligence suffering, persons who had no right, to pass over the bridge, and thereby evade the payment of the tolls to which the complainants were entitled.

I do not think that there can be any account, in connection with this injury alone. There is no pretence that the defendants have received any money from persons who have evaded the toll bridge. They have no right to receive compensation for crossing the rail road bridge, and they have not claimed any such right.

The injury to the complainants, is one in the nature of damages. The remedy provided by the second section of the act of 1790, gives a penalty which a court of equity will not enforce; and they can have no redress here, except as incidental to some other relief which this court has jurisdiction to grant. Still if it shall appear that they are entitled to an injunction on this branch of their case, it will then be proper to direct an account of what they might have received in tolls, but for the acts or omissions of the defendants.

As to the remedy by injunction, I am satisfied that the unauthorized use of the rail road bridge alleged in the bill, constitutes such a nuisance to the complainants in the enjoyment of their franchise, that they are entitled to an injunction to restrain it in future.

The rightful use of the bridge, is restricted by law to the purposes of the rail road, and the private use of the inhabitants of Morrisania. The act of 1837 permitting its erection, provided that it should be used in conformity with the right reserved to those inhabitants in the act of 1790, granting the complainants bridge, and not otherwise. Thus there was attached to the private bridge, the reasonable condition, that those erecting and

Thompson v. The N. Y. and Harlem Rail Road Company.

maintaining it should so keep and use it, that it should not interfere with the rights and privileges vested in the owners of the toll bridge.

If it be made to appear that the owners of the Morrisania bridge, have failed so to keep and preserve the same from being used by persons not authorized to use it; the difficulties in the way of ascertaining and proving every case, or even a considerable portion of the instances, of such improper use of the bridge and the great facility for evading the complainants bridge, and the excessive injury to their franchise which such carelessness of the owners of the other bridge may occasion; furnish abundant grounds for this court to restrain the owners by injunction. The complainants right being undisputed, the case falls within the ordinary jurisdiction of the court against nuisances.

I have looked into the testimony relating to the use of the rail road bridge by persons not authorized, and am satisfied that the rail road company have not exercised that diligence to prevent such persons crossing their bridge, which they were bound to do in reference to the complainants franchise. By their purchase of a bridge already built, adapted to the ordinary travel of the country, they became liable to this duty, which before was incumbent on those who erected it. If they had built a bridge for the use of their rail road only, it would have had no floor or proper conveniences for ordinary travel, and they would not have been subjected to this burthen.

There is nothing in the case however, to implicate the Morris's in this disregard of the complainants rights. Their erection of the bridge, and their sale of it was lawful; and in the conveyance to the rail road company, they stipulated for no other or further use of the bridge for ordinary travel, than they were entitled to while they owned it.

And the testimony does not prove that during the time they owned and controlled the bridge, there was any use made of it to the complainants detriment, or that they were negligent in preventing unauthorized persons from travelling over it.

The complainants having failed to establish any ground of relief against the Messrs. Morris's, the bill as to them must be dismissed with costs.

Thompson v. The N. Y. and Harlem Rail Road Company.

As to the Harlem Rail Road Company, the complainants ap. pear to be entitled to an injunction, restraining the company during the residue of the term of the complainants franchise, from permitting or suffering the bridge in question to be used for the passage of any vehicles, foot passengers or animals, for the passage of which over their bridge the complainants are authorized to demand toll; or for any purpose, save the use of the company's rail road, and the private use of the inhabitants of Morrisania.

The details of the injunction will be adjusted on settling the decree; and the complainants may have liberty to apply on the foot of the decree, for future relief in case the injunction be violated.

I will also dispose of the question of costs between these parties, to this time, by directing that neither party shall recover costs against the other. The complainants have shown a case for relief, though they have failed in the principal object of their suit.

They are entitled also to a reference, to ascertain what tolls they have lost since the rail road bridge was conveyed to the company, in consequence of the neglect or omission of the company to prevent its use by persons who were not authorized to make use of it without paying toll to the complainants. But I doubt whether this right to a reference, will pay the expense of its prosecution; and I will direct that if the complainants take a reference and fail to make out a demand exceeding $100, they shall pay the rail road company's costs of the reference and proceedings thereon. If they make out more than $100, the company will be decreed to pay the amount to them, with the costs, subsequent to the entry of the decree.