We have now
the example of the elevated railroad, constructed and operated in the
city of New York under legislative and municipal authority for nearly
twenty years, which has been compelled to pay many millions of dollars
to abutting property owners for the easement in the public streets
appropriated by the construction and maintenance of the road, and
still the amount that the road will have to pay is not ascertained.
What liabilities will be imposed upon the city under this contract;
what injury the construction and operation of this road will cause to
abutting property, and what easements and rights will have to be
acquired before the road can be legally constructed and operated, it
is impossible now to ascertain."
It is true, that the city undertook "to secure to the contractor the
right to construct and operate, free from all rights, claims, or other
interference, whether by injunction, suit for damages, or otherwise on
the part of any abutting owner or other person." But another eminent
judge of the same court had characterized this as "a condition
absolutely impossible of fulfillment," and had said: "How is the city
to prevent interference with the work by injunction? That question
lies with the courts; and not with the courts of this State alone, for
there are cases without doubt in which the courts of the United States
would have jurisdiction to act, and when such jurisdiction exists they
have not hitherto shown much reluctance in acting.
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