The plaintiff brought this action for the purpose of restraining the Syracuse Electric Light Power Company, the city and its commissioner of public works from interfering with the underground subway constructed by the plaintiff for the wires and appliances of its business operations. The controversy is really between the plaintiff, a telegraph company, and the defendant, an electric light company. There is practically no dispute about the facts, and they appear in the record at great length and with much detail. The trial court did not grant the relief demanded by the plaintiff, which was the removal of the subway of the electric light company at a certain point in the street from the present location, which is directly over the plaintiff's subway; and it is found as a fact that the construction and existence of the defendant's subway injures the rights and property of the plaintiff, and is really an unlawful interference therewith. The controlling facts in the case may be stated very briefly as follows:
On the 19th day of June, 1893, the city of Syracuse granted to the plaintiff a franchise or authority to construct and operate a subway, with necessary conduits and appliances, and to maintain therein its wires and cables necessary for the conduct of its business under the surface of certain streets named, within the corporate limits of the city, subject to certain terms and conditions therein contained. One of these conditions was that the plaintiff should furnish, for the use of the city, one of the ducts in said subway and subsidiary ducts and branches to be reserved to the exclusive use of the city, to be used for *Page 335 its own wires, without compensation to the plaintiff. This was the consideration which the city received for the privilege of permitting the plaintiff to use the streets for the purposes of its subway. Subsequently the plaintiff was permitted to construct a subway in other streets than those named in the original franchise. The plaintiff accepted the franchise, and in the year 1896 at a large cost constructed the subway under various streets in the city, and it included the duct for the city, which was also constructed as required by the terms of the franchise, and the city has since exercised control over the same. The plaintiff's subway was laid in a trench several feet beneath the surface of the streets, and consisted of six wooden ducts, laid two side by side and three in height, each duct being four and one-half inches square, with planking above and below, making a structure sixteen inches high and nine inches wide.
On the 6th day of June, 1898, the defendant, a private corporation, secured from the city a franchise to construct a subway under the streets through which to conduct electricity for heat, light and power. It appears that at a certain point in one of the streets, for a distance of four hundred and twenty feet, the subway of the electric light company is laid parallel with and directly above and overlapping the plaintiff's subway, the distance between the bottom of the defendant's and the top of the plaintiff's subway varying from one foot to a little over two feet.
The court found that the subway of the defendant was not self-supporting; that in case the earth is removed from around or under it it is incapable of sustaining its own weight for a greater distance than four feet; that no repairs or changes can be made in the plaintiff's subway without first sustaining the defendant's subway by artificial means; that in order to remove any duct from plaintiff's subway an excavation of at least twelve feet must be made; that in order to gain access to or make repairs upon plaintiff's subway it will be necessary to tunnel under the subway of the defendant; that accidents often occur in and about structures of the character of these *Page 336 subways, making it frequently necessary to gain access to them and the ducts therein contained for the purpose of enlarging, inspection, repairs and removing obstructions and for remedying disturbances resulting from the settling of the ground, breaking of other substructures and other causes and in such event it becomes necessary to excavate from the surface of the street down to and around the subways and remove the ducts therefrom and that the maintenance of appellant's subway as built will result in loss, damage and expense to the plaintiff.
It appears that while the subway of the defendant was in process of construction the plaintiff notified it and the city of the danger to the plaintiff's rights that would exist in consequence of locating the defendant's subway directly over that of the plaintiff and the plaintiff made an objection to the projected work, both to the city and to the electric light company, but after some negotiation and delay the defendant proceeded with the construction of its subway according to the original plans. The franchise granted by the city to the plaintiff and which the latter accepted constituted a contract between the plaintiff and the city which could not be affected or changed by one of the parties to it without the consent of the other. When the plaintiff, with the permission of the city, accepted the conditions of the grant and completed its subway, the structure underneath the surface of the street was property which could not be invaded or interfered with any more than any other corporate property which the plaintiff possessed. Neither the defendant, the electric light company, nor the city acting through its commissioner of public works had the right, for the purpose of constructing the defendant's subway, to interfere with or impair the free and unobstructed use by the plaintiff of the subway constructed by it under the franchise granted. The city had the undoubted right subsequently to grant a similar franchise to the defendant but it had no right to locate the place where the same was to be constructed in such a way as to interfere with or injure the structure of the plaintiff. The city, in granting the franchise to the plaintiff, attached to it a condition reserving *Page 337 to itself the right to use one of the plaintiff's ducts for its own purposes and this consideration furnishes an additional reason, if such is required, why the plaintiff's rights, as granted, cannot be disturbed.
We think that such an interference with the plaintiff's property rights, threatened or consummated, constitutes, under the circumstances of this case, a sufficient ground for the interference of a court of equity by injunction. It is quite true that the plaintiff has not yet, so far as appears, sustained any damage by reason of the facts complained of, but a court of equity will grant relief preventative in character when satisfied that such interference, although in the nature of a trespass, will injure the plaintiff's property and interfere with its lawful operations which are affected by a public interest.
The difficulty in this case, if any, consists in the form of the judgment, or rather the character of the relief which was given to the plaintiff at the trial. The court did not direct the defendant to remove its structure or change its location, but determined that for the plaintiff's protection it should execute and deliver to it a bond in the sum of five thousand dollars as indemnity to the plaintiff against any loss, damage or expense which it might sustain by reason of the construction and maintenance of the defendant's subway and restraining the use of the subway until the filing of the bond. The city has not appealed from the judgment, and, so far as the record discloses, it has acquiesced in the judgment, which requires it to become a party to the bond. It may be, as suggested, that the city has no power to enter into any such arrangement, but this court has nothing to do with that question so long as the city itself does not complain. It is quite clear that the defendant, the electric light company, has no right to complain of the judgment in that respect. We think that, upon the facts found in this case, the court had jurisdiction to direct the removal of the defendant's subway for the reason that it was an invasion of and menace to the plaintiff's right of enjoyment of the privileges secured to it by the franchise. The findings of fact fully disclose the difficulties *Page 338 and obstructions which the defendant's subway would constitute to the free enjoyment by the plaintiff of its property rights in the underground structure. It is quite likely that by the lapse of time the defendant would acquire a right by prescription to maintain its structure where it is, however inconvenient, dangerous or damaging it might prove to be to the plaintiff, and in such cases a court of equity will interfere in order to prevent an unlawful invasion ripening into a legal right. (Amsterdam Knitting Co. v. Dean, 162 N.Y. 278.)
The judgment, in effect, requires the defendant to indemnify the plaintiff against damages that may arise from a future trespass, and in this respect the relief granted is doubtless exceptional and peculiar. It appears that before the case came to trial the street at the point in question had been regulated and paved at the expense of the property owners, and the court doubtless hesitated before granting the drastic relief which the plaintiff demanded, that is, to have the subway entirely removed to some other part of the street. Instead of decreeing that to be done it granted a neasure of relief more liberal to the defendant, compliance with which would be cheaper and more convenient. We are not prepared to say that the court was without power to grant the relief specified in the judgment. At all events, it does not seem to us that the defendant has any right to complain because it is simply required to give a bond of indemnity rather than change the location of its subway. When a court of equity obtains jurisdiction of a case it may grant such relief as the nature of the case may require, and in some cases it may award damages, as in an action at law, when such a course is necessary in order to do complete justice. Whatever may be said as to the outcome of this controversy expressed in the judgment, it does not appear to us to be unjust to the defendant or to constitute any real ground of complaint.
The judgment should be affirmed, with costs.
PARKER, Ch. J., MARTIN and WERNER, JJ., concur with VANN, J.; BARTLETT and HAIGHT, JJ., concur with O'BRIEN, J.
Judgment reversed, etc. *Page 339