This case comes into this court with the advantage of a previous adjudication which commands our approval and which must he regarded as conclusive, so far as one of its essential features is concerned.
Upon the former trial the complaint Avas dismissed upon the theory (1) that the common council of the city of Buffalo had no authority under its charter to grant permission to the plaintiff or its lessor to erect or maintain the abutment and pier or any other permanent structure in Main street upon Avhich it might construct a bridge; and (2) that such permission as was granted to the plaintiff’s lessor by the resolution of October 10, 1881, was rescinded by the resolutions of December 14, 1881, and January 16, 1882.
This decision was reversed by the General Term in the fifth department, for the reason that it apparently rested upon the assumption that the right of the railroad company to cross the streets of the city was one that Avas conferred by the municipality itself, whereas in fact it *566was one derived from the Legislature,- which exercises supreme power over the streets of cities, as well as over the highways of the State at large, although where it is designed to 'cross the streets of a city the assent of the municipality must first be obtained as a prerequisite to the exercise of that right. And in this, connection it was further held that where, as in the present case, such assent liad been given, the right of the corporation became, as to the city, absolute and irrevocable. (65 Hun, 464.) .
"' We start out, therefore, in the consideration of this case with the following propositions clearly established : (1) That the plaintiff or its lessor obtained its right to carry its tracks across the street -in question from the power conferred by the General Railroad Act ;• (2) that this right, thus obtained, was, nevertheless, subject to the approval of the municipality; (3) that such approval was given and has never been revoked, because it was irrevocable.
' ■ With the law of thé case thus defined, there still remained for determination hy the trial court the question 'of whether or not the railroad company had complied with the provisions of the act from which it derived its authority to construct its road, which requires that in carrying its tracks across a public highway it shall restore the same “ to such state as not unnecessarily to have impaired its usefulness ” (Laws of 1850, chap. 140, § 28, subd. 5); and this issue it now. appears was 'decided in the negative by the court upon the second trial, which, with • abundant evidence to' sustain tlié ' conclusion, found that the pier, the westerly abutment and the earthen embankment which constitute the foundation of the bridge, and which, confessedly, are within the boundary lines of Main street, materially delay and inconvenience the public' and are an obstruction to travel in the street; that they interfere with the view of trains on the tracks of the ¡New York, Lake Erie and Western railway just south of the structure; that the usefulness of Main street as a public thoroughfare is -impaired -thereby j that such impairment and obstruction were not necéssary in the construction of the overhead crossing, and that it is' entirely feasible to carry the plaintiff’s tracks over the highway by means of a single span.
It is hardly necessary to' add that this condition of affairs constitutes an obstruction to a public street in a populous city, which must of necessity prove very serious in its proportions and a constant annoy*567anee to a considerable number of people. It is, therefore, one which seems to demand some action upon the part of the local' authorities, and it only remains to determine whether the remedy resorted to in this case was an efficient and proper means of accomplishing" the object sought.
The primary use of a highway, whether in the country or city, is to permit the passing and repassing of the public thereon, and the public are entitled to an unobstructed and uninterrupted use thereof for its entire width. (Cohen v. Mayor, etc., 113 N. Y. 532.) But such use is subject, of course, to legislative abridgment and restriction, and therefore it is that railroad companies are permitted to lay their tracks over and upon the highways of the State with the condition imposed, nevertheless, that in availing themselves of this privilege, they shall cause no unnecessary impairment of such highways, and shall not unnecessarily interfere with the use for which they are primarily designed. (Laws of 1850, chap. 140, § 28; Laws, of 1890, chap. 565, § 11.)
It follows, therefore, that when the plaintiff’s lessor obtained the assent of the defendant’s common council' to carry its tracks across Main street by means of an overhead bridge, it had acquired all that was necessary to the exercise of its right to make such a crossing in the manner provided by the Legislature. But, as we have seen, the statute conferred upon it no power to cause an unnecessary obstruction to the public use of the street, nor could such power be derived from any resolution of the common council, however comprehensive might have been its terms, and no lapse of time, however great, could destroy the right of the city officials to remove or abate an obstruction thus created, because it obviously constituted a public nuisance. (The St. Vincent Female Orphan Asylum v. The City of Troy, 76 N. Y. 108; The People ex rel. Wooster v. Maher, Mayor, etc., 141 id. 330; Cohen v. Mayor, supra; Town of Windsor v. Delaware & Hudson Canal Co., 92 Hun, 127; Wakeman v. Wilbur, 147 N. Y. 657.)
Having reached this conclusion with respect to the situation, it is-manifest that the municipality might avail itself. of .any remedy which the law affords to accomplish the removal of the illegal obstruction. There were several at its command, which will readily suggest themselves, one of which, and the one actually employed, is *568furnished by section 395 of the city charter (Chap. 105 of the Laws of 1891), which directs that Cf the city shall remove all encroachments- upon, projections over and obstructions on the public grounds, streets, alleys and wharves, and abate all nuisances; and cause the expense to be assessed upon the lands upon or in front of which such encroachment, - projection, obstruction or nuisance was, or upon the parcels of land' benefited by such removal.” The present charter was enacted subsequent to the. adoption of the resolution of the common council which initiated the proceeding complained of; but this section was simply a substitute for a similar one contained in the former charter which was in effect at that time. (Laws of 1870, chap. 519, tit. IX, § 5.)
The employment of this summary method of abating a public nuisance was attended with considerable hazard, it is true, for the mere declaration by some local authority that a nuisance exists is1 not conclusive upon the party concerned, who may, as the plaintiff is now doing, contest that fact in the courts.. (Cooley on Const. Lim. [5th ed.] 742.) -And it is a method which should be resorted to with great- caution and hesitation. (Wood’s Law of Nuisances, § 740.) But, nevertheless, where it is apparent that an obstruction to a highway actually exists, and that it is of such a character as to constitute-a public nuisance, the power to thus abate it may be constitutionally conferred upon a municipal corporation, and when thus conferred may be legally resorted to. (The People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.)
We conclude, therefore, that inasmuch as the facts in -this case show the existence of such an obstruction, it cannot be said that the means adopted by the defendants for its removal were unjustifiable, especially in view of the reasonable time which was afforded 'the plaintiff to avoid any interference upon the part of the defendants, by itself taking the necessary steps to remove the obstruction complained of, and consequently we are of the opinion that the judgment appealed from should be affirmed.
All concurred,. except Follett and Ward, JJ., dissenting.