The order granting the injunction should be reversed for two reasons. The legislature have for many years assumed the power to permit the streets to be used in cities and villages for purposes not inconsistent with their use as highways. Gas, sewers and water pipes have been legalized, under streets, without compensation, and the pipes are now placed under the streets in all the principal cities and villages in the State. The Court of Appeals have not dieapproved of the power. They have said that a railroad company may not place its road upon the surface of a street without compensation to the owner. (Williams v. N. Y. Central and Hudson River R. R. Co., 16 N. Y., 97; Henderson v. Same Co., 78 id., 423.)
In Bloomfield, etc., Gas-Light Co. v. Calkin (62 N.Y., 386), the Court of Appeals seems to decide that gas pipes cannot be laid under county highways, but does not decide what would be the rule in cities. It seems to approve reasoning addressed to a different rule therein, but it does not expressly so decide. The legislature have permitted elevated railroads in the city of New York,'and it is not yet determined that the land owners are entitled to damages. It is true that the city of New York owns its streets, but it is as a trustee for the property owners, and as to the property owners should be kept open as public highways.
In Tompkins v. Hodgson (9 Sup. Ct. [2 Hun], 146) it was decided by the court that a monument in memory of dead soldiers might be erected in a public place, by the permission of the trustees of a village, who had charge over the highway.
The second reason for reversal is that the case is one where the party injured should be left to his action for damages. In this respect the case seems to be embraced in the principle decided by the Court of Appeals in Thacher v. The Trustees of Columbia College (87 N. Y., —).
The defendant had given a covenant not to use certain lots in the *74city of New York in a certain specified manner. The plaintiff had the right to enforce the covenant. The legislature permitted an elevated road, which destroyed in great part the basis for the covenant, which was addressed to the use of the property as residences. The railroad changed the circumstances, and the defendant used the property for stores. It was held that an injunction should not be granted but that the party be left to his action. In this case the damages are so insignificant that the plaintiff should not have the aid of an injunction. After the pipes are laid down and covered up there will be no real injury beyond a technical interference with property which plaintiff has no power to use or possesss himself of, unless the road should be abandoned as a highway.
Order reversed, with costs and disbursements.
Gilbert, J., concurred; Dykman, J., dissented.. Order granting injunction reversed, with costs and disbursements.