“FINALLY NEARING A CURIOUS SOLUTION”
At the end of 1875 it looked as if rapid transit was assured. The Rapid Transit Commissioners had laid out routes for the New York Elevated Railroad and the Gilbert Elevated Railway in accordance with the new Rapid Transit Act and officials of both companies said that they had the capital to go ahead and build.
Instead progress was delayed by almost two years of litigation driven mainly by the street railway companies. Only a few observers foresaw that the elevated railways would attract businesses and riders to the streets they ran in and steal away mostly the long-distance riders that were the least profitable to the street railways with their single fare for any distance. The street railway owners saw a threat to their business.
The Ninth Avenue Railroad Company and the Sixth Avenue Railroad Company both obtained injunctions on different grounds that stopped further construction on the New York Elevated and Gilbert Elevated lines. The Third Avenue Railroad Company, considered the wealthiest in the city, was conspicuously absent, but may have been funding the actions against the Third Ave route taken by property owners in Third Ave, Pearl St and State St. At least all of those had the same lawyer, John E Parsons, who by 1886 was listed as a director of the company. No suits were brought against the Second Ave elevated route, but nothing was being done to build it either.
This is a good time for people to remember that practically the only opponents of rapid transit are the horse railroad companies, wrote the editor of the Tribune in the winter of 1877, midway through this long period of litigation. Every man who hangs for a weary hour this morning by a strap, in a damp and chilly horse-car, working his way down town, should remember that he owes it to the persistent hostility of the horse-car companies that he is not making the trip by steam, in one-fourth the time, in a comfortable seat in a well warmed car … Every man who gets home late to dinner to-night because the horse-cars are blocked up may comfort himself with the fact that the Elevated Road is running beautifully for five miles, and would be making the circuit of the city but for the persistent fight instigated by the horse-car companies against it in the courts ; and that the Gilbert Road would to-day be completed on the West Side, if not also on the East Side, but for the same interference. These are good points to think about, and, when they have been well thought out, they are good points to present to your members in the Legislature.1
Validating the Third Ave route
The first argument at law began with the appointment of commissioners in January to determine whether elevated railways should be built on the two new routes designated by the Rapid Transit Commissioners. Both were designated as connections from an operating rapid transit railway: the Third Ave route from the Battery via Pearl St, Bowery and Third Ave, and the upper west side route from Ninth Ave via 92nd St and Eighth Ave. The Street Railroad Act of 1854 required companies to obtain permission from the owners of half the value of property along the route, or if that failed, to get permission from a commission appointed by the Supreme Court. Both the elevated companies maintained that the act did not apply to them because it applied to railways running in a street and their routes were steam railways running over a street. And they claimed that the similar provision in the Rapid Transit Act did not apply to them either because they pre-dated it. However the New York Elevated Railroad had been advised that it might save time arguing the point in court by just seeking the permission needed for a new route.2
Since the company could not obtain permission of the owners of half the value of property along either route, in accordance with the Rapid Transit Act they filed petitions with the General Term of the Supreme Court to appoint three commissioners to decide the question. The court appointed comissioners on December 1, and ordered them to set a date for hearings and publicize it for a week beforehand with notices in six newspapers and posters at fifty locations. On January 15 they announced as directed that hearings would start on January 26.3 On that date they met and asked that all arguments be submitted in writing, disappointing some objectors who had come to speak before them.4 The next day the commissioners asked to have the written affidavits printed up and separated according to which portions of the route they referred to, and said that they would examine them and take oral arguments starting on February 14.5
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The series of meetings were well attended. The companies supplied statements signed by more than 1,600 property owners in favor and a statement by a man who said he had visited every house on Third Ave and found that they objected only to an elevated railway on the curb line and not to one in the center of the street. Some veterans of underground projects turned up. Origen Vandenburgh of the Metropolitan, Arcade and Central Underground projects told the commissioners that elevated skeleton railroads were intolerable nuisances in thoroughfares, damaged property values, and could not answer the purpose of rapid transit.6 Egbert L Viele of the Arcade project coauthored an engineering report with William J McAlpine stating that the elevated railway would not, if built, produce the results anticipated because the style of construction was defective, high speed could not be attained, and the structure could not stand the stresses of train operation. No road except one built of solid arches of masonry could do it.8
The commissioners stopped accepting ‘proofs’ on Friday February 18 but listened to legal arguments on Saturday and Monday. Speaking for the Third Ave property owners group, John E Parsons emphasized the potential damage to property values and requested more time to submit affidavits from owners and to rebut the statements by the company, but this was denied.3 He questioned also whether the Rapid Transit Commission in 1875 had given fair hearing to property owners, but that issue was beyond the scope of what this commission would consider.7
On March 4, the commissioners reported in favor of constructing the Third Ave route but restricting the structure in Third Ave itself to the type built in the middle of the roadway. On the other hand the commissioners reported adversely on the 92nd St and Eighth Ave route because of objections by the Croton Aqueduct board and the Parks Department. Nothing was offered to the property owners. Parsons said he would fight it to the bitter end.9 At a hearing before the Supreme Court on March 22, Parsons argued against the report.10
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The Supreme Court accepted the report on April 16. At the hearing Parsons must have begun to argue the constitutionality of the Rapid Transit Act, because in the opinion Justice Daniels felt the need to confirm that it was a general law applying to all of the state and that local exceptions might be written into general laws. He characterized the situation as taking a public street for public use, and denied any compensation to propery owners.11
The New York Elevated extension to South Ferry
While the commission was meeting, the New York Elevated Railroad pursued separately the extension to South Ferry. This was a distance of some 1500 feet along the inland edge of Battery Park, not over a street, and therefore needed only the permission of the Parks Department for a right of way, or so it seemed. The Parks Commissioners heard objections at a meeting on January 22.12
Origen Vandenburgh objected on behalf of the New York City Central Underground Railroad, which had not been heard from since the three-way fight with Beach Pneumatic and Vanderbilt in 1872. His point was not clear at all. It was the Arcade plan, not the Central Underground, that was to run from a terminal in Battery Park near Bowling Green. Although the Central Underground had seemingly passed the deadlines set in 1869 for its completion, Vandenburgh would not let go of it, and about two weeks after this on February 6 he settled longstanding disputes with its owners when he and a partner purchased whatever was left of the company at foreclosure.13
Also objecting once again was John E Parsons, not to oppose rapid transit, far from it, but to protect property-owners on the east side so that their property might not be encroached upon without adequate remuneration which he reckoned in the millions. The act of 1790 granting the grounds of Battery Park to the city forbade any private use of the park, and a covenant to State St property owners guaranteed them that the park would remain open and provide an unobstructed view. If that failed to convince, Parsons also painted a picture of the Battery as the poor man’s park and suggested that such use of a park would never be allowed in better neighborhoods.12
Nonetheless the Parks Commissioners granted the right of way on February 10,14 relying on the advice of the city’s corporation counsel and the department’s architect.15 The company did not seize the chance to build it in a few weeks as they had proposed to do in late 1875. Instead in early March an unnamed company official said that they were waiting for confirmation of the Third Ave route that would continue it past South Ferry.9 The delay lost them the extension for about a year.
Either the company or the Parks Department hired Calvert Vaux to design an appropriate structure for the Battery. The iron scroll-work … is intended to form a trellis, over which vines will be trained, and it is claimed that when the structure is completed it will prove an ornament rather than a disfigurement of the park.16 Vaux was the architect who had worked with Frederick Law Olmsted on Central Park.
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Start of construction on the Sixth Ave El
The Gilbert Elevated Railway began construction in the early months of 1876. In January company officials confirmed that the Sixth Ave route would be built first and predicted opening by August 1. The company is preparing drawings for the iron companies, and calculating in detail the different kinds of iron that will be required in the construction of the railroad.17
Contracts were awarded at the end of January18 and work on column foundations began on February 16 starting at 42nd St and working south.19 In late March the company announced the signing of a contract with the Edge Moor Iron Company, Wilmington, Delaware. The first section was to run from Chambers St to 59th St (Sixth Ave), double track over the center of all the streets, the best double-refined iron, with steel rails, and will be capable of supporting a moving load of 2,000 pounds per lineal foot for each track. This was a more substantial structure than the New York Elevated, and trains were to be operated every two minutes, far more intensive service. Parapets are to be erected on each side as a protection in case of accident. The iron-work will be of artistic design an ample solidity. The note of parapets shows that the company had adopted the side-truss structure that was ultimately built.20
The contract was made by George M Pullman, representing the New York Loan and Improvement Company, which had arranged to build and equip the railway. Controlling interest was held by Pullman, Gilbert Elevated president William Foster, José Navarro, and Cornelius Garrison.21 Navarro was the financier who in the middle of 1875 had brought in enough investors to build. Rufus Gilbert later realized that the deal was part of a plan to take over the company and push him out.
The New York Elevated Railroad
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The New York Elevated Railroad was now in operation from 7 Broadway to 59th St and demonstrating conclusively the popularity of rapid transit. Passenger counts for December, January and February were 144,105 and 165,286 and 183,446, compared to a year before, 67,706 and 68,037 and 65,096.22 The service day was still short. Trains left 7 Broadway from 06:00 to 19:07 and 59th St from 06:18 to 19:40, forty trains each way.17 The company reported that most passengers from 59th St went as far as Warren St or Liberty St, and that midday ridership was up because of ladies, children, and elderly gentlemen making pleasure trips. In the first summer of service to 59th St the company expected to carry many people from the ferries to Central Park.22 Two more engines came from Brooks, twins of the previous three, Morrisania on March 13 and Yonkers on April 28,23 for a total of twelve. The Warren St station was also new, mentioned here for the first time in surviving records.
In the first quarter of 1876 the company began work on adding more passing sidings, toward the goal of completing a second track. Many people in the upper part of the city at some distance from the stations would always use this line if they were sure of finding a train a few minutes after reaching the station; but as some of the trains are now 18 minutes apart, what is gained over the omnibus or street car in the time of the trip may easily be lost in waiting for a train.24 The sidings were expected to cut headways to nine minutes.
The company had established permission to build through the Battery and up the Third Ave route, and the Gilbert Elevated was starting to materialize on Sixth Ave. On the upper west side, agreement had been reached to build the Gilbert route for joint operation at least as far as 110th St where the franchises diverged. There is the best of feeling between the two companies … it will be for the interests of both companies to make mutual arrangements resulting in a consolidation based on the using in common of a line of railway taking in the best portions of the western and eastern routes. Nothing, however, has been done at present beyond the agreement to use in common the portions of streets to which both companies have a right of way. Rumors of corporate consolidation had already begun.25
Rapid transit seemed assured, but by the end of April both companies would be blocked by injunctions.
The Patten lawsuit : ownership of Greenwich St
On March 23, property owners on Greenwich St met at the Pacific Hotel between Dey and Cortlandt Sts to oppose the second track as an encroachment on private property because they owned the land out to the center of the street.26 The opposition was led by the owner of the hotel, John Patten. At their next meeting on March 27, one man suggested that the only way to deal with the railroad was to tear up a section of it and compel the company to prosecute them. Another countered that there was not much use in fighting the railroad company, as they could get all they wanted from the Legislature for $10,000 or $15,000. The group decided to coordinate efforts with property owners on Pearl St on the Third Ave route and with those opposing the Battery Park extension.27
The popular excitement over the attempt of the New-York Elevated Railroad Company to extend its tracks in Greenwich street culminated yesterday in a collision between the laborers on one side and the employees of property-holders on the other, which was only quelled by the forcible interference of the police. On March 30, railway workers began digging foundations for a second track in front of the Pacific Hotel, which had a vault extending at least to the curb line, and as soon as the workmen broke through into this the porters, firemen, and other employees of the house commenced a forcible resistance that extended to driving the railway men and some policemen from the scene. By mid afternoon Patten had obtained an injunction from the Special Term of the Court of Common Pleas stopping the work.28
Patten was tenacious. In arguments before Chief Justice Daly to make the injunction permanent, Patten’s counsel Roger Pryor brought an array of arguments aimed at the elevated company’s very existence. He argued that the acts of 1867 and 1868 were unconstitutional because their titles did not express their purpose, and even if they were valid originally, they were invalid now because the company had missed the required completion date in 1873. The act of 1875 (the New York Elevated bill) did not extend the time, he continued, because it failed to include in it the text of the original act as required under the constitutional amendment of 1875. Additionally his clients claimed that Greenwich St properties extended to the center line of the street and that the city had only an easement for a street not ownership. Lastly, by breaking into the vaults, the company was causing a special hardship to Patten in particular, giving him grounds for action.29
Justice Daly made the injunction permanent on April 17. He found that the abutting property owners had a proprietary right in Greenwich St and must be paid for infringements of that right even if the legislature authorized an infringement, which they actually did not do because the acts of 1868 and 1875 were invalid.30 As a result the New York Elevated Railroad had no franchise to build in front of the hotel.31 Company president Milton Courtright said that the company would still build second track elsewhere on Greenwich St on their belief that the old charter was valid. But the decision was considered to void the Third Ave route.32 On April 21 the victorious Patten held a meeting urging resistance to the railroad monopolists along all of Greenwich St and Ninth Ave.33
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The Spader lawsuit : private use of Battery Park
The Battery Park extension meanwhile was being threatened by legislative action on behalf of the trees that had stood there for fifty years34 and by second thoughts in the city’s Common Council.35 While neither of those went anywhere, a few weeks after the Patten injunction the company was served with another one stopping construction in Battery Park. Parsons, representing Jeremiah Spader of 7 Bridge St, stood on the grant of 1790. Judge Speir ruled that they could leave the masonry foundations already built but must fill in the holes and not erect any iron pillars.36
The Spader case was argued on May 12 before Chief Justice Monell of Superior Court. The company’s counsel pointed out that Spader was a resident of Brooklyn using 7 Bridge St only for storage and that 7 Bridge St was 300 feet from the right of way that had been granted, and maintained that the railway was a public use not a private one.37 The court reserved decision and there the matter rested for months.
The Ninth Avenue Railroad lawsuit : the second track
A third injunction came along on May 16 on complaint of the Ninth Avenue Railroad. The plaintiffs relied on the Patten decision of April 17 but asked also that the acts of 1866 and 1867 be declared void leaving the elevated company with no basis to operate at all. They objected especially to the siding in the roadway from 33rd St to 36th St (see chapter 12) because the posts for this are only about twenty-one inches distant from the plaintiff’s tracks, and they are a dangerous nuisance in consequence. Similar construction was underway north from 13th St on the east side of the streetcar tracks, their avowed intention being to join the switches, additional tracks, &c, so as to make a continuous double track in violation of the law, and to run their cars thereon. The plaintiffs asked that the entire railway be declared a public nuisance.38
At the time of the application for the injunction work was in progress all along the line of the road from the Battery to Central Park, and it had it not been interfered with the company in twenty days expected to double the number of its trains. This work was mainly the construction of switches or turn-outs, the shortest of which is about four hundred and twenty-five feet in length, while the longest is nearly a mile and a half. At the junction of Ninth avenue and Greenwich street one of these switches (the principal one) was in course of erection, and the intention of the company was to run a double track from this point to Twenty-fourth street on the easterly side of Ninth avenue, in order to allow the passage of several down trains while the up train was upon the switch.38 Another long siding was to run from 41st St to 59th St, and a shorter one at Liberty St.39
The New York Elevated Railroad requested a modification of the injunction, to permit them, first, to lay stone foundations in the excavations already made; second, to complete their connections of the switch already put up at Twenty-third street; third, to paint the iron; and fourth, to set up five pillars and to put up the girders already lying in the street at the Twenty-third street switch, so as to clear the street. Judge Daly of the Court of Common Pleas— not the same as Chief Justice Daly of the Patten case— thought this would amount to permission to continue construction and would allow only the painting. He required filling in the excavations.40
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The Sixth Avenue Railroad lawsuit : the type of structure
Work on the Gilbert Elevated Railway was stopped on April 23 by an injunction on behalf of the Sixth Avenue Railroad. The complaint was that the Gilbert Elevated road was not being built in accordance with the company charter as an arched structure from curb to curb for a pneumatic ‘tubular way’ but as a structure for a steam railway with columns in the roadway, and that commissioners appointed under the Rapid Transit Act could not add anything to the old charter. The pillars in the roadway would be a great danger to women and children and thoughtless persons since they were being placed just fifteen inches outside the streetcar tracks. Additional causes included the old argument of trains frightening horses and of course the rights of property owners, the Sixth Avenue Railroad being an owner of some lots in Sixth Ave. Judge Speir of Superior Court issued a temporary injunction.41 Rufus Gilbert told a reporter that the charter did not require pneumatic operation and that the description of it as a ‘tubular way’ could be met by making the road as nearly tubular as possible.42 The judge allowed the company to install stone and iron foundations where the materials were already in the street, and required them to fill in the rest.43
Work seems to have been going slowly. The company had still built only column foundations from 42nd St to 40th St, the same small area started in February. The holes dug are close to the rails, and the car horses have to be guided carefully to prevent them from falling into the excavations.42
The editor of the Tribune observed, The opposition to the Gilbert road comes wholly from the Sixth Avenue horse car company … The horse car companies have fought this particular project from its very inception … it was opposed by every means by those who were making fortunes out of the surface road monopolies. False rumors were constantly circulated, the scheme disparaged, capitalists warned against it, ingenious counsel employed to pick technical flaws in its charter …44
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But there had been some meetings of property owners in April,42 and in a mass meeting on May 2 members of the Sixth Avenue Association voiced their objections to its being built in Sixth Ave and to the pillars in the roadway. The president, Edward A Morrison, made two legal objections: the charter had expired on April 28 because the company had not opened the road to 42nd St as required in the charter of 1872, and the Rapid Transit Act did not allow the commissioners to name a route crossing Broadway at 34th St.45
The case went to Chief Justice Monell of Superior Court on May 13, the day after he heard the Spader case about Battery Park. On this occasion counsel for the Sixth Avenue Railroad mentioned that they might want to run double-deck cars some day and needed the height.46 The injunction was continued, and more hearings were set for June.
The same day a meeting was announced for property owners in West Broadway opposed to the Gilbert Elevated.47 As usual they said they were not opposed to rapid transit but only insisted on compensation.48 At another meeting days later property owners in Amity St (Third St) and South Fifth Ave (now West Broadway north of Canal St) made similar statements. Those on South Fifth Ave also claimed that part of the street was never deeded to the city.49 None of this was brought into court yet.
Rapid Transit service in the Fourth Ave Improvement
One ‘rapid transit’ project did reach completion in 1876: the Fourth Avenue Improvement. The New York Central system had a new president, William H Vanderbilt, following the death of his father the ‘Commodore’. Vanderbilt announced in April a ‘rapid transit’ service to run about hourly from Grand Central to William’s Bridge and stopping at all stations including the newly built ones at 86th St, 110th St and Harlem (125th St) in Manhattan. The ten miles would be covered in thirty minutes, relying on new steam locomotives being built at Schenectady and fitted with Westinghouse automatic air brakes to make rapid stops and starts.50 They were described as double engines that will run both ways without turning.51
The service began on Monday, May 15. The stations at 86th St and 110th St opened for the first time, but some local trains had already been stopping at Harlem on the middle tracks. There were sixteen ‘rapid transit’ trains in each direction in addition to six or seven other local trains each way that would continue to stop at Harlem and some of the other stations north.51
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Fares from Grand Central were 10 cents as far as Mott Haven (the first stop after Harlem) ranging up to 30 cents to William’s Bridge. The fare to Harlem was 5 cents higher if paid on the train, and a three-month commutation ticket to Harlem good for 100 rides was 5 dollars. It was noted that those continuing below Grand Central had to pay extra for the horsecar.51
On the day the service began, the Times printed a letter from a ’Harlem Commuter’ who was unsatisfied with the speed and frequency of the new service— what they call ‘rapid transit’ trains.52
Construction stopped by the lawsuits
The Patten case was decided on June 5 by the General Term of the Court of Common Pleas. Judge Robinson found that Patten had standing to sue because the proposed siding would particularly affect his property, but he disagreed with the decision that the property owners had any right in Greenwich St. An examination of land records showed that the city owned the street. But he still sustained the injunction because the elevated company had no right to build. The act of 1867 allowed construction of the first half mile and required completion of the whole road within five years. The act of 1868 extended the first act, but was unconstitutional because its title did not express its purpose. The act of 1875 could not extend rights because they had expired, and could not grant new rights because by that date it was unconstitutional to pass an act granting ‘a private or local corporation the right to lay railroad tracks’. Judge Van Brunt concurred but expressed his dismay that the court had to delay something so badly needed as rapid transit. He wrote in his decision, If the framers of the act of 1875 had examined the constitution and made themselves familiar with its provisions, they are so plain and unambiguous that they could easily have framed a bill under which the defendants could have easily acquired all the powers necessary to the successful completion of their work.30
On the same date the Ninth Avenue Railroad case came before Judge Van Hoesen in the Special Term of the Court of Common Pleas. It got less press coverage, but the Times noted that on June 12, witnesses testified about the frightening of horses and Charles T Harvey told the court that cable operation was still feasible.53 The defense began on June 16, counsel Aaron J Vanderpoel arguing that a careful examination into the subject had proved horses were not frightened, and that the act of 1875 was constitutional because it extended and modified a grant whose vitality had begun before. As to the limitation of time, he argued that the street railway had no standing to argue it; only the Attorney General could sue for that and the state had chosen not to do so.54 Arguments concluded on June 30. The plaintiff asked the court to stop the defendants from building and operating the railway.55
Simultaneously the Sixth Avenue Railroad case was opened in Superior Court before Judge Sedgwick. The street railway argued that their rights to sue were that it owned property along the street and that it had a contract with the city for the railway, and its special injuries were that the pillars in the street would endanger passengers and that the trains would frighten the horses. During Mr Evarts’s argument an elaborate model of the Sixth-ave, with the tracks of the present road, with cars and horses going each way, and with the projected Gilbert Elevated Railway, with trains going each way, and with a hook-and-ladder truck of somewhat exaggerated dimensions racing by its side, was brought in.56
Counsel William M Evarts reviewed the Sixth Avenue Railroad’s rights in the street, secured under contract with the city in 1851 and confirmed by legislative act in 1854.57 More or less the same could be said as to the other pre-1854 street railways in Second, Third, Eighth and Ninth Aves so this point was of great consequence. The Sixth Ave road carried 16,000,000 riders a year and some of the others carried more. He insisted that the franchise to the Gilbert Elevated was solely for a pneumatic railway on an arched structure spanning curb to curb and showed the Scientific American illustration of it from April 13, 1872,58 four days before the bill was passed (see chapter 9). The structure now being proposed would divide the street into three lanes and interfere with its use by ordinary traffic.
Warming to his topic a few hours in, he said that the effect of the elevated railroads on the streets of the city would be to desolate the city for the convenience of its inhabitants, and make it uninhabitable to make it accessible. The consent of abutting property owners had not been obtained, as he claimed was necessary. The Rapid Transit Act under which the change in structure was approved was an illegal delegation of legislative power, an attempt at avoiding the constitutional provision against private acts because of special exceptions in it for certain streets in New York and Buffalo, one of which in any event forbade routes crossing Broadway below 59th St.56 Some legislators were brought in to testify that they thought they were voting for a pneumatic railway and had been against steam locomotives.53
In response counsel Grosvenor P Lowery said he would not argue the merits of rapid transit, because the duly appointed commissioners had determined the necessity, the route, and the type of structure to be built. He claimed that the Gilbert charter allowed pneumatic or ‘other’ power to begin with and that the Rapid Transit Act was constitutional. Nothing proposed would prevent the street railway from operating. The Legislature was not prohibited from passing an act which might result in reducing the profits of the horse railroad.54
Arguments concluded on June 28. Gilbert counsel John K Porter noted pointedly that permission of the property owners was not needed by a rapid transit road chartered before 1875 just as it was not needed for street railways chartered before 1854.59 The Tribune editor commented on the situation on July 3. Nothing developed by the evidence or in the argument in the pending rapid transit suits leads us to change the opinion we have already expressed that the actions ought not to lie … There was no evidence whatever in the trial of general opposition to the Gilbert line on the part of the residents or property-owners of Sixth-avenbsp; and where the residents appeared in the other case against the Greenwich-st road, special individual grievances only were cited. The point raised against the legality of the franchise of the latter road is of a serious character, which, we fear, may delay the work ; but if in the end the result of the apparent blunders in legislation is the combination of the two companies to construct a superior road like that of the Gilbert the public will thereby be the gainer.60
The ongoing litigation then rested through July and the first part of August while the courts pondered their decisions.
The Ninth Avenue Railroad suit dismissed
The Ninth Avenue Railroad suit was dismissed on August 15. The General Term of the Court of Common Pleas had already declared the acts of 1868 and 1875 void. In his decision Judge Van Hoesen declared that therefore the elevated railway north of 30th St was without authority of law, and as the columns, beyond all question, continuously obstruct the street, I am bound to declare that so much of the Elevated Railroad as is situated on the Ninth avenue, between Thirtieth and Sixty-first streets is a common nuisance. As that portion of the road is a public nuisance, no private person can maintain an action for its suppression without showing that it has occasioned him a particular injury beyond that which is suffered by the rest of the public, and that such injury is direct, not consequential, of a substantial character and not fleeting or evanescent. The injury must not be merely greater in degree but different in kind from that sustained by the community at large. He rejected the Ninth Avenue Railroad’s arguments: he said that they did not have an exclusive franchise, there was no evidence that the columns interfered with the cars, and that the complaints about steam engines frightening horses were from the section below 30th St which was indisputably a lawful structure and in any case frightening horses was not something different in kind for the company’s horses. Lastly as to the street railway franchise becoming valueless, it will not be because the columns of the defendant obstruct passengers who are attempting to enter or leave the Ninth avenue cars, or because dummy engines frighten horses and cause cars to be broken. It will be simply because the people prefer the Elevated Railway to the horse car. That preference is not to be controlled by injunctions. The judge also questioned why the company waited for years to make the complaint, why it lay quietly by, and, without making the slightest effort to stop the wrongful obstruction of the street, permitted the defendant, year after year, to proceed with its work and spend its money. For this reason it was too late to ask for the structure to be torn down.61
Rufus Gilbert said that he considered Judge Van Hoesen’s decision, as far as it related to the exclusive right of the surface railroads, as decidedly favorable to the Gilbert Elevated Railway and to all rapid transit. He recalled his long efforts to give the poorer classes an opportunity of enjoying fresh air in the suburbs by enabling them to reach their workshops in the city in proper time.62
The New York Elevated Railroad resumed building second track after the Ninth Avenue Railroad case was decided. But the extension through Battery Park was still on hold. It was ruled on August 1 that Spader had to give a bond of $5,000 to continue the case63 which finally came to trial in Superior Court in October.64
The Sixth Avenue Railroad injunction upheld
In the Gilbert case, on August 26 Judge Sedgwick of Superior Court found in favor of the Sixth Avenue Railroad, a somewhat unexpected decision as one paper put it. He decided as a matter of fact that the Gilbert charter allowed steam engines but did not allow pillars in the roadway. The remainder of the opinion involves a reading of the Rapid Transit Act in relation to the new constitutional provision against passing ‘private bills’ for certain purposes among them the ’laying of tracks’. The Rapid Transit Act stated in section 36 that if the Rapid Transit Commissioners chose a route that is the same as one previously granted to an existing company, that company shall have the like power to construct and operate such railway or railways upon fulfillment of the requirements and conditions imposed by said Commissioners as a corporation specially formed under this act. Judge Sedgwick decided that this takes away a right and opportunity to gain a franchise, and gives it to a corporation already formed. The result is that as to the particular franchise, it is not general in its proffers to all on equal terms, in that it benefits a particular class of corporation at the expense of the rights of all others. It was a very fine point he was making, because he wrote that as a separate law it might have been directly enacted that if an existing corporation would build their road in a certain way with vertical supports in the middle of the street and run so often and charge so much, they should have a right to use the streets for the purpose, but in its context after the Rapid Transit Commissioners had chosen a route, the provision treated some differently from others. Lastly, in conflict with the Ninth Avenue case he found that the Sixth Avenue Railroad was specially harmed by the proposed elevated railway.65
Construction of the Gilbert Elevated in Third St
The Gilbert Elevated Railway was actively building the portion of the line that was not in Sixth Ave. A report in the Tribune provides a rare glimpse into how the Gilbert type of structure was built.
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From Grand-st through South Fifth-ave to Amity-st, the ‘shoes’ in which the ends of the columns are to be placed lie along the curbstones at intervals of about 50 feet, on each side of the street … The foundations— one for every column— are built in this way. A pit is dug eight feet square and varying in depth according to the distance of solid bottom— gravel or rock. In a great many instances, along the west side of South Fifth-ave, the old cellars and sub-cellars which were under the houses before the street was widened make a great deal of trouble and extra expense, as the company is bound to leave everything just as it is found. Water and gas pipes have to be cut and joined again, and telegraph poles taken down. When the pit is of suitable depth the bottom is covered with a layer of cement six inches deep, and the large granite foundation stones, 14 inches thick, are lowered to their places. In them have been drilled four holes in the form of a square, and through these holes long rods, fastened beneath, pass upward. Brickwork is then built upon the stone, forming a small square pier, in which the rods are inclosed, their ends projecting above its upper surface. When this has been done, care having been taken to have the brick-work of exactly the right height, the shoe is set upon it. In the corners of the base of the shoe are holes which correspond with the rods, and the latter are passed through them. The pipes are then spliced so as to pass around the pier, the earth is thrown back in the pit, around the masonry and bottom of the shoe, and the cobblestones, curb, &c, are properly replaced. The foundations are put up in pairs, one on each side of the street.66
Upon Amity-st the iron frame work is all up— except at either end where the curve leads into Sixth and South Fifth-aves— and the men are engaged in laying the ties.66
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Construction of the Gilbert Elevated in South Fifth Ave
The Tribune continued with an account of how more elevated structure was being built.
In the middle of the street is a large platform upon wheels, and on the platform are a boiler, two small but powerful engines, and two large derricks. Two columns, one on each side of the street, are so placed that their bases will slide into the sockets when they are raised, and by means of machinery on the platform their tops are lifted until they are perpendicular. Fastened in this position, a girder, or heavy bar, formed of iron plates bolted together, which will reach from one column to another, is elevated to its place. The carriage is then moved along the street, by means of the engines upon it, to the place for the next set, and the same process is gone through with. Then two trusses— or what are commonly known as the sides of a bridge— already prepared and bolted together, are lifted, both at once, to their positions, stretching from one set of columns to the other, in the direction of the street. Upon the part of the road-bed already put together, is stationed a platform with machinery similar to the one below. This machinery lifts one end of the trusses, and that on the ground the other end. A frame-work, called a span— which is 44 feet long— has now been put up, which is but the skeleton of what is to come. From truss to truss— or crossways of the structure— smaller girders, called floor beams, are placed at regular distances and bolted fast at each end. Upon these, also regularly spaced, four stringers— also heavy iron bars— running lengthwise with the street, are laid and bolted fast. Laid crosswise on the stringers are the ties, sawed from Georgia pine, about eight inches square and placed a few inches apart. Upon these ties the rails will be laid, the whole forming a strong combination of bolts, bars, and iron plates which the officers of the road are confident will hardly tremble under the weight of passing trains, and upon which the latter will glide along without making any disagreeable noises.66
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The Gilbert structure in Sixth Ave and south was different from all the other elevated railways in New York in having side trusses as the primary element lengthwise. From the trusses were hung floor beams across the structure and from them were hung the stringers that run directly under each rail. The old Greenwich St structure pointed in the direction followed by all the other elevated railways: the stringers under the rails were also the primary structural part lengthwise.
Validating the South Fifth Ave route
South Fifth Ave was a widening of the former Laurens St and as noted above the property owners claimed that the widened area was an easement over their land. Since the property owners would not voluntarily sell the land needed for pillars, in October the Gilbert company petitioned the General Term of the Supreme Court to appoint commissioners to acquire the property by condemnation in accordance with the Railroad Law.67 Arguments were heard on October 30. It was widely noted that the case effectively brought the issues of the Sixth Avenue Railroad case into the Supreme Court. Opponents argued against appointing commissioners on the grounds that the Gilbert company was not authorized to construct or operate any railway.68
A RAPID TRANSIT VICTORY.69 The Supreme Court decided in favor of the Gilbert Elevated Railway Company on December 28. The Rapid Transit Act was held to be constitutional. Judge Brady in his opinion stated that the Gilbert franchise of 1872 was not changed as to the type of construction by the amendments of 1873 and 1874 and that as of the passage of the Rapid Transit Act the franchise was secure, and could be employed in the manner designated ; the company, in other words, was created with all necessary powers none of which were warped or destroyed. It was an existing company, requiring no further legislation to give it either vitality or the necessary authority to carry out the purposes of its incorporation. Therefore the Rapid Transit Act and the commissioners did not give it the right to lay track— the company already had that right. The act of 1875 is not a local act. We have so declared.70
Brady’s opinion continued, The effect was not to change the entire character of the franchise. It was to be an elevated road, though different, perhaps, in its construction, mode of transit, and propelling power. The Legislature had reserved to itself by section 10 of the act of incorporation the power to alter or repeal the charter, and had the undoubted right, therefore, to make such modifications in the structure as were deemed necessary either to the public safety, the better preservation of the rights of the property-owner, or the more successful accomplishment of the end in view of the act of incorporation … The change from a tubular to an open air or covered railway would be within this power … The right to the benefit and advantage of the result would be preserved and the franchise therefore held intact … The provision under discussion in the act of 1875 is not an amendment of the Gilbert Elevated Railroad act … It neither changes its character, nor enlarges its power or franchise.70
Chief Justice Davis concurred, but Judge Daniels wrote a long dissenting opinion holding that the company’s power to acquire the lands in question depends on its power to build the structure for which it was incorporated.70
Having so ruled, the court proceeded to appoint commissioners to condemn the four-foot-square properties involved and to appraise the amount payable to the landowners.
Second track on the New York Elevated
The New York Elevated Railroad’s double-tracking progressed by November to where half the five-mile route was double track. The longest stretch was one continuous mile from Perry St to 24th St. Headway (time between trains) was set to drop on November 27 from 15 minutes to 7½ using the double track.71 There were by that date 14 engines and 25 passenger cars, including Liberty and Westchester, the heaviest yet at seven and a half tons, which came from Brooks on June 14, and two more engines from Brooks, Tarrytown and Williamsburg were put in service on December 20 and 23, seven tons.23 According to a Tribune reporter, Landholders along the line of the road who had opposed the enterprise at the beginning were becoming satisfied that their property rented better than before, and those doing business near the stations testified that the road was to them a decided assistance rather than a detriment. Ridership for October was 39,222 in 1873, 64,141 in 1874, 112,289 in 1875, and 225,119 in 1876, and daily in November went from 1,067 to 8,000 over the same four years. Company officials expressed their desire to reach South Ferry, which they said could be built in 20 days, and up the east side, and they also said they were considering extending to 77th St on the west side to accommodate visitors to the new Museum of Natural History.71
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There was a collision on December 20 at Vandam St, the start of one of the double-track sections, three blocks south of Houston St. Because of an error by a switchman, a two-car uptown train led by Battery was given the diverging route across Greenwich St to the west side, where it hit the lead car of a downtown train waiting to proceed into the single track section. The trains were still running push-pull with engines permanently at the uptown end of the trains because of the limited facilities at the terminals. The uptown train was an express and running fast. The switchman gave the signal indicating everything was right, but through forgetfulness on his part he had left the switch open. The engineer of the up train when within a few yards of the switch saw that it was misplaced, and immediately applied the air-brake and gave the signal to the brake-men to apply the hand-brakes.72
The cab of the engine was almost completely demolished, and the platform of the car on the down town train was destroyed. The passengers on both trains were thrown from their seats by the shock of the collision, and some three or four were slightly injured on the hands and legs. Fortunately the accident did not displace the cars from the track … the fireman of the Battery, James F Jehu, was found prostrate on the engine, suffering from severe wounds on the face, breast, and left leg … the employes of the railroad company were, as usual, remarkably reticent regarding the circumstances of the collision, which is the second within the past month.73 Some of the passengers had been cut by broken windows. A large crowd gathered near the scene of the accident, and it was feared at first that the wrecked car would fall from the track. The passengers were taken from the car by ladders raised from the street.72 Fireman Jehu, interviewed some hours later after a doctor said he would recover, attributed the accident to the carelessness of the switchman. He said that by the force of the collision he was thrown from the engine and lodged in one of the supports of the track, probably by the sliding forward of the water-tank.74
There are several devices for signaling to the locomotive engineer the position of a switch that he is approaching, and some of these are automatic, showing what has actually been done instead of what the switchman thinks he has done, wrote the Tribune editor. (Such signal systems had been available for a few years from Joseph Dixon, representative of Saxby and Farmer.) If the Elevated Railroad is to continue business on a single track it will need such safeguards. There is, however, reason for congratulation that the strength of the roadway proved sufficient for the extraordinary strain of this accident that the cars did not leave the track, and that there was neither loss of life nor serious injury.74
The slow progress of rapid transit
So the accomplishments of 1876 were limited to partial second-tracking of the New York Elevated and the opening of the Fourth Avenue Improvement local service. The Sixth Ave and Third Ave elevated lines expected to be built were barely begun.
The question of rapid transit in New York has for a long period perplexed our citizens, has had a curious history, and is finally nearing a curious solution … Twenty-five years ago the elevated railway plan was chiefly favored. That was a time when money was scarce ; people felt poor, and wanted a cheap form of railway, quickly built.
As times improved and money became more plentiful, the underground railway, with its solid tracks, superior speed, and unlimited scope for public accommodation, became the favorite, and the bare suggestion of filling our streets with elevated railways was hooted at and set aside.
Underground roads were, by the press and engineers, declared to the only proper and adequate means for rapid transit, and charters therefor were now granted. Among these grants was that for an underground railway, directly beneath Broadway, the finest street in the world and (by reason of its large local population, central position, and celebrity) regarded by many as the best of all railway routes.75
The preceding was of course the editor of Scientific American, expressing his puzzlement over the apparent success of the elevated companies. This would be just about the only mention of the Broadway Underground Railway in 1876. The company had made no move to start construction, and had it done so one can only imagine what additional litigation would have burdened the court system. But one veteran opponent was gone. Alexander T Stewart, the merchant prince, died on April 10,76 knowing that still no railway ran on, above or below Broadway south of Union Square.