When the Dry Dock, East Broadway and Battery Eailroad Company commenced constructing and extending their tracks, in and through 34th street, or *408the strip of land one hundred feet wide, to a point about two hundred and seventy-seven feet easterly from the easterly side of First avenue, I understand from the papers in this case that 34th street, or the strip of land between the then easterly terminus of the Hew York and Harlem Bailroad tracks in 34th street, and the place to which the ferry-house had been removed, and where it then was, had been so far filled out and graded as to be constantly used by the public in going to and from the ferry, and for common highway purposes, generally. This being so, and considering other undisputed facts and circumstances of the case, I cannot see why either of the railroad companies had not then a right, as to Waterbury and the ferry company, to construct and extend their tracks through and over 34th street, or the strip of land between the points last mentioned, as far easterly as the grading or the condition of the street or strip of land would permit.
The legal title to the strip of land was not in Waterbury and the ferry company, or in either, and neither had any beneficial interest in the soil thereof.
Considering the then devotion of it to public use, I do not think it sufficiently appeared that the devotion of it to an additional public Use, by the construction and .operation of a railroad or railroads upon or through it would appreciably injure either Waterbury or the ferry company, by interfering with the filling up or the grading, or the construction of the sewer, to authorize the injunction at their suit, on the ground of such interference. It appears to me that the ferry company must be actually benefited by the extension of either railroad, or both..
Moreover, as the ability of either railroad company to pay any damages that might be recovered- in an action at law, for any possible injury to Waterbury and the ferry company, or either, by, or from, such claimed or supposed interference, is not questioned; considering that all rail*409roads must be deemed to be constructed and operated for public use, I .do not think the injunction at their suit ought to be sustained, even if we could see that by or from such interference they might suffer some slight damage or inconvenience.
I think the injunction at the suit of Waterbury and the ferry company, restraining the railroad companies, should be vacated, with costs.
As to the question between the two railroad companies, I assume and think that before the Dry Dock, East Broadway and Battery Railroad Company actually commenced locating, constructing and extending their tracks, in and through 34th street, or the strip of land 100 feet wide, both or either of the railroad companies had the right, as between each other, to extend their tracks easterly in or through 34th street or the strip of land, to the ferry, or as far as the grading and condition of the street, or strip of land, would permit. •
Before the'Dry Dock, East Broadway and'Battery company actually commenced taking a qualified possession of the center or middle of that part of 34th street, or the strip of land, by locating and constructing their extension, I do not see why either railroad' company liad not a right to make their extension through or along the center or middle of the street or strip, to the exclusion of the other from that particular location. I do not see upon what principle the court could have favored the right of either company thus to locate their extension, to the exclusion of the other, before any actual attempt at such location. But I think that the Dry Dock, East Broadway -and Battery Company, by first actually taking a qualified possession of the center or middle of the street, or strip of land, by locating and constructing their extension as far as they did, until interfered with by the agents or servants of the other railroad company, acquired the right to complete the *410construction of, and to operate, their extension, to the ferry, or as near to it as the condition of the street or strip, and the convenient operation of the ferry, would permit, to the exclusion of the right of the other company to interfere, in any way, with the construction or operation ot the Dry Dock, Bast Broadway and Battery extension, as thus located.
I have carefully examined the question between the two railro'ad companies, and can see no other principle or ground upon which we can put our decision.
I do not think that the circumstance that the Hew York and Harlem Railroad Company, or its officers or agents, intended to further extend their tracks through the center or middle of the street, or strip of land, and had the ties and other materials for such extension, or the circumstance that such intended extension; through the center or middle, would be more convenient for thém, in the- constructian or use, because their tracks east of First avenue, which had been constructed some time before the other railroad company commenced locating and constructing their extension in the center or middle of the street or strip, ran through and terminated in the center or middle of the street or strip, did or could affect or impair the right of the Dry Dock, Bast Broadway and Battery Company first to actually locate and commence constructing their extension, as" they did.
The order, in the action between the railroad companies and in which Oliver Charlick and the ferry company are parties defendants, should be reversed, and the injunction which was vacated by it restored "and continued, with costs to the plaintiff to be paid by the Hew York and Harlem Railroad Company.
Geo G. Barnard, P. J., concurred.
Clerke, J., dissented.
*411[New York General Term, June 15, 1866.Injunction in first action dissolved, with costs. The order appealed from in the second action reversed, and .the injunction which was vacated by it restored and continued, with costs to the plaintiffs, to be paid by the Hew York ajid Harlem Eailroad Company.
Geo. G. Barnard, Clerke and Sutherland, Justices.]