This is an appeal from an order denying plaintiffs’ motion for an in j unction pendente lite to prevent the president of the borough of Manhattan from removing or interfering .with certain overhead and subsurface structures maintained by the Interborough Rapid Transit Company or its ¡.essor, the Manhattan Railway Company.
The plaintiffs’ power house is situated on the west side of Exterior street, between Seventy-fourth and Seventy-fifth streets. It also holds a lease of the bulkhead on the East river between Seventy-fourth and Seventy-fifth streets. The structures which the city authorities threaten to remove are the intake and discharge tunnels used to supply and discharge the water required for condensing purposes in the power house and a bridge erected forty feet above Exterior street, in which is a coal-carrying device connecting the power house with a coal hoist erected upon the bulkhead. The city of New York claimed that the bridge and tunnels are illegal structures, and unless the plaintiffs applied for a permit to maintain them the borough president was directed to remove them on December 1, 1915. The plaintiffs claim that the structures are lawfully *237in the street under a contract with the dock department, and that since 1902 the structures have been maintained under such contract, except a new intake tunnel was constructed in the year 1914 by virtue of a permit of the dock department under the direction and supervision of the Public Service Commission. The plaintiffs further contend that the occupation of Exterior street by the tunnels and the coal conveyer is a right necessary and incidental to the operation of a power house, and as such a necessary incident of its general franchise to operate a railroad by electricity. This plea of necessity in my opinion is entitled to little consideration. Even if we should concede that the manufacture of its own electric power is a necessary adjunct to the operation of its franchise, the transportation of coal by conveyers within streets of the city or the transportation of water by means of tunnels in the street is not necessary to the operation of a power house. No doubt with a power house situated as is this one, such transportation is more economical and of greater convenience than would be possible by other means, but this is not synonymous with necessity. The plaintiffs operate their road through a large portion of the boroughs of Manhattan and The Bronx. Direct access to the water front is possible in many. localities as near to its lines of road as the one in question, and I think we can take judicial notice of the fact that several large power houses for the manufacture of electric current, both for commercial and transportation use, are situated directly upon the water front. That electric current may be and is transmitted great distances from the place of manufacture to the place of use is also a well-known scientific fact. There is, therefore, not the same necessity for a close proximity between the power house and the road that would justify the appropriation of certain streets to its use. The case of Brooklyn Heights R. R. Co. v. City of Brooklyn (152 N. Y. 244), relied upon by appellants, is clearly distinguishable from the instant case. In that case the company was prohibited by its grant of franchise from locating its car barns on any of the streets imm ediately contiguous to its line of road, but was given authority to construct and maintain in “ said street [that upon which its road was to be constructed] and in such parts of those adjacent thereto as may be necessary, *238all necessary connections, switches * * * for the convenient operation of said road and the housing and care of its cars and other equipments * * The court said: “ When we consider the question of the existence of authority in the plaintiff to use these other streets, for the purpose of having a storehouse and of connecting its railroad therewith, I think we may readily dispose of it upon the theory that it was a reasonable necessity, impliedly, if not expressly, sanctioned by the law of its creation.” That case cannot be cited as an authority for the appropriation by a railroad corporation of rights in streets not expressly or impliedly within its grant merely because of convenience or economy of operation; nor, even on the plea of necessity, to appropriate to its use public or private property without compensation. The right to acquire property by eminent domain was given to such corporation that it might be able to acquire such property as was necessary for the proper operation of its franchise upon an adequate payment for property taken and for the reason that the use by it of such property as was necessary for its operation was to the public advantage and convenience. Whatever rights the plaintiffs have to use this street rest upon the permission given by the dock department. Undoubtedly the right to construct and maintain the' tunnels and the coal conveyer from the water front to the power house was expressly given by that department, and if it was within the powers of that department the city cannot disturb or interfere with the plaintiffs’ use of such structures. It is, therefore, necessary to consider the authority of the dock department over the .street. Exterior street from East Sixty-fourth street to East Eighty-first street was laid out and established under and by virtue of an act of the Legislature of the State of New York (Laws of 1887, chap. 697, as amd. by Laws of 1888, chap. 272, and Laws of 1889, chap. 257) which provided for an exterior street of 115 feet in width extending along the westerly shore of the East river from the center line of East Sixty-fourth street to the northerly line of East Eighty-first street. The plan for the street was to be prepared by the dock department, subject to the approval of the commissioners of the sinking fund, and the act provided (§ 2) that said plan on its approval shall be “ the plan according to which said street shall *239be laid out and completed,” and also “ the sole plan according to which any wharf, pier, bulk-head, basin, dock or slip or any wharf structure, or superstructure shall thereafter be laid out or constructed in that part of the water front included in and specified upon said plan.” It also provided (§4, as amd. by Laws of 1889, chap. 257): “ That portion of said street lying and being between its westerly line and a line drawn parallel with such westerly line, and sixty-five feet easterly therefrom, shall be and remain under the exclusive charge and control of the department of public works, as is now provided by law for the other public streets in the city of New York, and the remaining portion of said street lying easterly of said sixty-five feet line shall be and remain under the exclusive charge and control of the said department of docks.” Pursuant to the provisions of this act condemnation proceedings were instituted and title was vested in the city on confirmation of the report of the commission. The fee in the sixty-five-foot strip was condemned for street purposes and the expense was assessed and paid by the adjoining property owners, while as to the fifty-foot strip the fee simple was taken and the expense of acquiring it was paid by the city from the proceeds of the sale of dock bonds. (Laws of 1887, chap. 697, § 6; Laws of 1882, chap. 410, § 148.) The commissioner of public works was, by section 5 of the act of 1887, amended in 1889 as aforesaid, required to regulate, grade and otherwise improve “ that portion of said street hereinbefore placed under the charge and control of the department of public works” and “the department of docks is hereby authorized and directed * * * to regulate, grade and otherwise improve that portion of said exterior street which, by this act, is placed under the charge and control of said department of docks.” The department of docks is given power to lease the wharfage, and they may give an exclusive right to the use and occupancy by the lessee of that part of the street or wharf lying east of a line drawn parallel to and sixty-five feet easterly from the westerly line of said street. It is evident from these considerations that the sixty-five feet of the westerly portion of said street was not under the jurisdiction or control of the department of docks and that the jurisdiction and control of the department of docks was limited *240to the fifty-foot strip adjacent to the bulkhead. This is the clearly-expressed provision of law. While in the changes made necessary by the reclassification of many administrative departments by the Greater New York charter, I do not find anywhere an express repeal of the powers given to the commissioner of public works over this portion of Exterior street, the power has devolved upon the borough president, and together with other public streets certain powers have been given to the board of estimate and apportionment to grant permits or franchise rights' within it. Nor do I find in the various laws to which the appellant has referred anything that shows an intention of giving the department of docks jurisdiction and control over the westerly sixty-five feet of this street, or to change the purpose of its use from street to wharf purposes.
Section 819 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, and Laws of 1913, chap. 327) is a re-enactment of section 712 of the Consolidation Act of 1882 (Laws of 1882, chap. 410), as amended by chapter 517 of the Laws of 1884; chapter 567 of the. Laws of 1887; chapter 482 of the Laws of 1890; chapter 158 of the Laws of 1892, and chapter 397 of the Laws of 1893. As originally enacted, section 712 undoubtedly was limited in its application to such portions of the water front as were authorized by the 3d subdivision of section 99 of chapter 137 of the Laws of 1870, as amended by section 6 of chapter 574 of the Laws of 1871. By reference to these statutes it appears that the plans were to be prepared by the department of docks and were to be “ the sole plan according to which any wharf, pier, bulkhead, basin, dock, or slip, or any wharf, structure or superstructure shall thereafter be laid out or constructed within the territory or district embraced in and specified upon such plan, and be the sole plan and authority for solid filling in the waters surrounding said city and for extending piers into said waters and erecting bulkheads around said city.” There is no mention in this act of the establishment, opening or use of public streets. The expenses of acquiring lands under water or uplands were to be paid from the proceeds of dock bonds authorized to be issued for that purpose. Such marginal streets, therefore, as were laid out upon the plan were a portion of the dock property and established *241for access to and the convenient use of bulkheads, wharves and piers shown upon the plans. Most of this property was formed by filling in of the land between high and low-water mark which already belonged to the city. For a detailed historical statement, see Langdon v. Mayor, etc. (93 N. Y. 129).
By chapter 517 of the Laws of 1884 the words “including the water front on the westerly side of the Harlem river from the easterly line of the Third avenue, where said line strikes said river, along the water front from said line to the northerly side of Eighty-sixth street on the East river ” were interpolated. In chapter 397 of the Laws of 1893 certain acts relating to the powers of the department of public works and other departments of the city government were expressly repealed, but the act under which the street under consideration was established and constructed was not mentioned.
Section 819 of the charter, by its terms, in so far as it relates to the repeal of laws inconsistent with that section, relates only to the territory embraced within that section, which, as we have seen, is such as appeared upon the plan authorized by the act of 1871. The premises under consideration were not in that part of the city covered by the plan of 1871, nor embraced in the territory from Harlem river to East Eighty-sixth street, but included in the plan authorized by a special act (Laws of 1887, chap. 697, as amd. by Laws of 1888, chap. 272, and Laws of 1889, chap. 257, supra), which, so far as the marginal street was concerned, created an entirely different condition, i. e., by creating a marginal street of fifty feet in width, similar in all respects to the marginal streets in the plan authorized by the act of 1871, and, in addition thereto, a public street sixty-five feet in width. In this public street there existed the usual easements of the public and abutting property owners, which did not obtain in the marginal streets under the plan of 1871 nor in the fifty-foot part of the street in question. Chapter 697 of the Laws of 1887, and the acts amendatory thereof, are not repealed by section 819 of the Greater New York charter, and are still in full force and effect. We call attention to the fact that the case of Vilias v. Featherson (94 App. Div. 259) related to the marginal streets as laid down on .the *242plan adopted pursuant to the act of 1871, and is not, for the reasons already stated, to he construed as dealing with the power of the dock department in relation to buildings abutting the public street in the instant case.
The right to construct a bridge over or tunnels under the street would argue the right of the dock department to build a railroad upon or elevated above the street, if the commissioner of docks should deem that to he a use “ to the best advantage in connection with the wharves and bulkheads. ” This right could not be conferred without the condemnation of, and compensation for, the taking’ of the easements of the abutting property owners in the public street.
It follows that in so far as the contract and permit of the dock department assumed to grant permission to the plaintiffs to build and maintain the bridge for coal conveyers over, or the tunnels under, the westerly sixty-five feet of the exterior street, they were void, and the plaintiffs are unlawfully maintaining such structures. We are of opinion that the use of these structures is so related to the railroad facilities and purposes that the hoard of estimate and apportionment has power to grant the right to their use and maintenance.
The order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.