The facts are sufficiently stated in the opinion of Judge O'BRIEN, except that it may aid in interpreting the purpose and character of the consent given to the defendants by adding that the defendants have a driveway from Thirty-fourth street into their department store. The entrance is about fifty-three feet easterly from the line between the plaintiffs' and defendants' property, and at such driveway the sidewalk and curb are depressed to permit wagons to pass in and out of said store. The defendants in transporting goods from their department store to said distributing station in the Bronx use five heavy trucks, each drawn by a team of horses, and they pass over said sidewalk *Page 226 in and out of said department store at irregular intervals. Express cars are run over the street surface railroads in the city of New York. The defendants have arranged to have all of the goods heretofore conveyed to said distributing station in said five trucks transported in one express car to be run over said street surface railroads and the spur track is necessary to enable the defendants to load said car within their said store. The work of transporting such goods with the present business of the defendants can be performed with one trip of said car each way daily and the consent provides that the car can only be moved over the spur track in Thirty-fourth street between the hours of eight o'clock in the evening and five o'clock in the morning. The proposed spur track will be wholly opposite the real property of the defendants.
It is conceded that the right to construct and operate a street railway is a franchise which must have its source in the sovereign power and that the legislative power over the subject is also subject to the limitation that the franchise must be granted for public and not for private purposes or at least public considerations must enter into every valid grant of a right to appropriate a public street for railroad uses. This court has frequently so held. (Fanning v. Osborne, 102 N.Y. 441;Paige v. Schenectady Railway Co., 178 N.Y. 102.) I agree with Judge O'BRIEN that the consent given to the defendants on behalf of the city is not a franchise but a license to the defendants as private parties to use the spur track to transfer the car from the street surface railroad tracks to and from their abutting property, but as the spur track is confined to that part of the street immediately adjoining and in front of the defendants' real property I do not agree with him in so far as he holds as a matter of law that such consent authorizes an unreasonable use of a street by abutting owners. The general rule that streets and highways are solely for passage by the public is subject to some exceptions born of necessity and public convenience. The primary purpose of streets and highways is for use. If a physical or other barrier should be erected on all lot lines *Page 227 adjoining streets and highways, such streets and highways would become wholly useless. There is no prohibition against an owner of lands abutting a highway from passing to and from the same. Such right of passage is not confined to the owner of the abutting lands, but extends to all persons lawfully desiring to pass to and from such abutting lands and also to the transportation of all goods, wares and merchandise in any way lawfully used in connection therewith. An owner of a building abutting on a street may not only freely pass to and from the same but incident to his ownership he may use the street and sidewalk in front of his property as a place to load and unload his goods and for all usual and necessary purposes of his business although it may occasion a temporary obstruction, provided he does not interfere unreasonably with the public right. (Jorgensen v. Squires, 144 N.Y. 280; Welsh v.Wilson, 101 N.Y. 254; Callanan v. Gilman, 107 N.Y. 360.)
It is competent for the legislature to authorize abutting owners to temporarily deposit building material in the streets (Callanan v. Gilman, supra); also to authorize abutting owners to build within the street lines underground vaults (Deshong v. City of New York, 176 N.Y. 475), area ways (Devine v. National Wall Paper Company, 95 App. Div. 194; affd., 182 N.Y. 565), stepping stones (Wolff v. District ofColumbia, 196 U.S. 152; Robert v. Powell, 168 N.Y. 411) and many other things which tend to the convenient and beneficial enjoyment of abutting property. (Jorgensen v. Squires,supra.)
In the Robert v. Powell case this court say: "There are some objects which may be placed in or exist in a public street such as water hydrants, hitching posts, telegraph poles, awning posts or stepping stones such as the one described in this case, which cannot be held to constitute a nuisance. They are in some respects incidental to the proper use of the street as a public highway. The hitching post for instance, in front of a private residence is intended not only for the convenience of the private individual but for the safety of the public as *Page 228 well, since it is intended to guard against accidents resulting from runaway teams or horses. It is quite conceivable that a shade tree located within the boundaries of the street or highway may cause an accident or injury to a private individual using the street. But it does not follow that it constitutes a public nuisance in the highway. * * * While it is said that these cases involved only the question of liability on the part of a municipality for negligence, they also decided that the existence of objects of this character in the streets is lawful."
This court in Jorgensen v. Squires (supra) say: "While such uses may restrict somewhat the free and unembarrassed use of the streets for pedestrians, the general interests are subserved by making available to the greatest extent valuable property, increasing business facilities, giving encouragement to improvements and adding to taxable values."
In the use of streets, sidewalks are built for pedestrians and spur walks are commonly constructed therefrom to residences and other property. Spur roads are run across sidewalks to stables and business property. If the express car to be used in transporting the defendants' goods, wares and merchandise should be constructed with sufficient power as a motor car, I assume there would be no question as to the legal right of the defendants to run the car over the sidewalk on their driveway into their department store as trucks with teams are now driven therein.
I have assumed that the street surface railroads have authority to run express cars on their tracks. It is important to inquire into such power because in interpreting the city charter for the purpose of answering the first question submitted to us it is necessary to consider the circumstances and conditions affecting the legislature at the time the charter was enacted. At that time street surface railroad cars were run in many of the streets of the city of New York. At that time also this court had held that the legislature had power to grant to street surface railroads the right to transport freight or passengers or both over its tracks. (De Grauw v. *Page 229 Long Island Elec. Railway Co., 43 App. Div. 502; affd. on opinion below, 163 N.Y. 597.) Subsequently in Matter ofStillwater M. Street Ry. Co. v. B. M.R.R. Co. (171 N.Y. 589) this court say: "It is said that the rights of the public in the streets and highways of our cities, towns and villages should be protected and that cars loaded with merchandise and freight should not be permitted to be run over street surface railroads. It may be that additional regulations should be provided either by statute or by ordinance, limiting the time in which cars of this character should be permitted to run over street surface railroads, especially in cities and large villages; but that the power exists to run such cars is no longer an open question in this court. This question was elaborately considered in the case of De Grauw v. Long Island Electric Railway Co. (43 App. Div. 502), which case was affirmed in this court on the opinion below (163 N.Y. 597)."
The corporations over whose roads it is proposed to run an express car are not parties to this action, but it is assumed by the parties, or at least not disputed, that they have been given the right to run express cars over their tracks. I admit that running freight and express cars on street surface railroad tracks through the cities and villages of our state may in itself, wholly apart from the question of spur tracks, become a serious menace to the public at large, but the right to grant to corporations authority to run such cars is given by statute, and any prohibition or regulation thereof must come from the legislative branch of the government. For the purpose, therefore, of answering the first question I think we should assume, as I have assumed, that the street surface railroads over which the express car between the department store and the distributing station of the defendants is to be run, have the right to run such express car thereon.
The right to lay pipes or other conduits for the transmission of gas, electricity, steam, light, heat or power, like the right to lay tracks for cars in which to transport passengers and property, must be granted for public use, but for the purpose *Page 230 of using the gas, electricity, steam, light, heat and power individual members of society constituting the public are granted permission to excavate in the public streets and highways and permanently lay pipes and other conduits to connect their abutting property with the pipes and other conduits in the streets and highways through which to take the gas, etc., for private use. Unless spur tracks of some kind are allowed to the owners of abutting property, the loading and unloading of express cars must necessarily be confined to the public streets, and thus public travel will be delayed and the general public as well as individuals be greatly inconvenienced.
For the purpose of confining abutting owners to a reasonable use of the public streets it is no more necessary to require that express cars be loaded and unloaded in the streets and highways than it is that individual consumers of gas or water be required to take the same in some way from the distributing pipes in the public streets. A reasonable use of all public service corporations would seem to require that abutting owners of property be allowed to make such reasonable connection with the public service pipes, conduits or tracks as will tend to public utility. The defendants' goods, wares and merchandise must be transported from place to place, and I cannot say that running one car over a spur track from the street surface railroad would be more inconvenient to the public than running heavy motor cars or trucks drawn by horses at irregular intervals over the defendants' driveway. If such a use of the street tends to public benefit it cannot be said to be an unreasonable use thereof. No actual permanent taking of a portion of the street for private purposes is proposed. The board of estimate and apportionment in their discretion may have found that the use of such spur track within the hours mentioned would relieve a congested street and generally tend to the public good. Where the power to grant street privileges or franchises is conferred upon a municipality the exercise of the power is discretionary with the municipality and its action is not as a rule subject to control by the courts. (Am. Eng. Ency. of Law *Page 231 [2nd ed.], vol. 15, page 153.) The legislative control over public streets and highways may be delegated to the governing body of a municipal corporation. (Hoey v. Gilroy, 129 N.Y. 132. ) Such power seems by the plain language of section 242 of the city charter, as amended by chapter 629 of the Laws of 1905, to have been granted to the board of estimate and apportionment. The material parts of that section are as follows: "The board of estimate and apportionment shall have * * * control of all the streets, avenues, highways * * * within or belonging to the city; except as in this act otherwise provided. The powers by this act granted to the board of aldermen with respect to the streets, avenues, highways, * * * which are within or belong to the city shall be subject to such control of the board of estimate and apportionment. If and when the board of estimate and apportionment shall deem it proper in the case of any application or matter affecting any street, avenue, highway * * * within or belonging to the city, whether the board of aldermen or any other department or officer shall have acted or omitted to act, the board of estimate and apportionment may itself originally act, * * * and if and when the board of estimate and apportionment shall so act or exercise such control, such action or control shall be fully and finally operative, notwithstanding any resolution, ordinance, grant or other action adopted or had by the board of aldermen or any other department or officer of the city or any omission to act on the part of the board of aldermen or other department or officer. The board of estimate and apportionment shall hereafter * * * have the exclusive power in behalf of the city to grant to persons or corporations, franchises or rights or make contracts providing for or involving the occupation or use of any of the streets, avenues, highways * * * within or belonging to the city, whether on, under or over the surface thereof, for railroads, pipe or other conduits or ways or otherwise for the transportation of persons or property or the transmission of gas, electricity, steam, light, heat or power. * * *" *Page 232
The board of estimate and apportionment are given "the controlof all the streets." When "in the case of any application ormatter affecting any street" such board may "itself originallyact," and its action is "fully and finally operative, notwithstanding any resolution, ordinance, grant or other action adopted or had by the board of aldermen or any other department or officer of the city." In connection with such general control of the streets said board is given express and exclusive power "to grant to persons and corporations franchises or rights ormake contracts providing for or involving the occupation oruse of any of the streets * * * for the transportation ofpersons or property." This statute, by its plain language, authorizes the making of contracts separate and distinct from that of granting a franchise or right.
The consent involved in this action is a contract involving the use of Thirty-fourth street by the defendants within the meaning of the section quoted. Doubtless, the reason why no general authority is given in the Railroad Law for individuals, associations or corporations to lay down and maintain spur tracks necessary for the transaction of business with railroad corporations is that it was deemed best to leave all questions relating to such spur tracks, and as to whether they should be allowed, and, if so, upon what terms and conditions, to the city officers or board having control of the streets.
I think the first question should be answered in the affirmative and the second in the negative, and that the order appealed from should be reversed.
VANN, J., concurs with O'BRIEN and EDWARD T. BARTLETT, JJ.; HISCOCK, J., concurs with O'BRIEN, J.; CULLEN, Ch. J., and HAIGHT, J., concur with CHASE, J.
Order affirmed. *Page 233