The plain intent of the statute of 1860, creating the plaintiffs, was to protect them not only in the construction of their road, but also in its operationand accordingly it not only prohibits the city from doing any act to hinder, delay or obstruct the construction, but also the operation of the railroad; and it makes it incumbent upon the city authorities to do such acts as may be needful to promote the construction and to protect the operation of the road.
The convenience of the road for travel was a great public benefit, and the legislature meant to secure its uninterrupted use by the citizens. It is no answer to say that the building of sewers is also beneficial to the public, and necessary to the health of the city, which of course is of paramount importance; because it does not appear but that the sewer may be built without interfering with the plaintiffs at all. That the defendants have seen fit to get from the legislature an act which requires them to make a general plan for sewers in sewerage districts, does not affect the case", for they need not adopt, unless they choose, such a plan as will interfere with the plaintiffs; or if they have done so, they can apply to the legislature for relief so as to enable them to change that plan.
The plaintiffs having exhausted their right to lay their track, cannot lawfully remove it to any other part of the street, and it should not be suggested that they ought to be trespassers and wrongdoers even for a brief period; or that the public should be inconvenienced by having travel on the road suspended, when all that the defendants need do to have both of these desirable public benefits coexist, is to conform the plan of the sewerage district to the necessity of the case.
I think the order should be affirmed.
Order reversed.
Clerke, Sutherland and Cardozo, Justices.]