1911, in which the court held that the fifty-year limitation in the act of 1846 applied “to the corporate existence of the Hudson River Railroad Company only (which might be extended), and not at all to the location of its tracks in the streets of New York," and moreover, the legislature gave the city no authority to withdraw or cancel the franchise after it had once been made effective by the city's consent. Assuming the existence of that power in any one, it belonged, and still belongs to the Legislature and not to the corporation of the City of New York."

This opinion was concurred in by Judge Cullen, who said: "I concur in the opinion of Judge Willard Bartlett and also in the expression of his personal view as to the power of the Legislature to modify or regulate the franchise given by the state for the location of the plaintiff's railroad in the City of New York."

The New York Central and Hudson River Railroad Company considers its franchise to the streets of the city to be, therefore, perpetual, and in the numerous attempts to solve the perplexing West Side problem the company has always acted upon the assumption that the city was powerless to alter the company's grant.

1

1 1For further details in regard to the West Side problem, see Report of the Commission to Investigate the Surface Railroad Situation in the City of New York on the West Side, 1918.

CHAPTER II

HISTORY OF RAILWAYS INCORPORATED BETWEEN 1850

AND 1860

I. THE SIXTH AND EIGHTH AVENUE RAILROAD COMPANIES

THE tide of immigration which had set in so strongly at the beginning of the second decade of the nineteenth century, reference to which has heretofore been made, continued to swell. Owing to the social, economic and political ills of Europe thousands of foreigners swarmed to America's shores, many of them to New York City, and these, together with the natural increase by birth, caused the population of the city rapidly to multiply.1 By 1850 five hundred and fifteen thousand five hundred and forty-seven people were living on Manhattan Island, an increase of nearly three hundred and fifty thousand in twenty-five years. Consequently the geographical city expanded with enormous rapidity: Thirty-fourth street was now lined with city blocks, Madison Square, which a few years before had been an unsightly waste, was in a neighborhood of stately residences, and Fifth avenue below Forty-second street had been transformed from a country road into a paved thoroughfare flanked for miles by the homes of the

1

1 Roth, Louis, History of Rapid Transit Development in the City of New York, p. 1; Wilson, Rufus R., New York: Old and New, Its Story, Streets and Landmarks, vol. i, pp. 325, 357; Roosevelt, Theodore, New York, p. 175; Holley, O. L., A Description of New York in 1847, p. 12; Richmond, J. F., New York and Its Institutions, 1609-1871, p. 103; World Almanac, 1918, p. 868.

refined and well-to-do.' With this northward expansion it was quite evident that the slow-going stages were no longer adequate to meet the growing demands of transportation." It became apparent, therefore, that another railway, paralleling the New York and Harlem line, would be a profitable undertaking, and now the mad scramble for franchise privileges began. The common council, although without legal authority," was disposed to act favorably upon the many applications presented, and among the first grants

1 Roosevelt, Theodore, op. cit., p. 183; Wilson, Rufus R., op. cit., p. 357; Butler, W. A., New York City, Its Growth, Misgovernment and Needs,

p. 22.

'In 1850 there were twenty-three stage lines operating a total of 550 licensed omnibuses; in 1851, there were 589 such conveyances. The rate of fare was usually two cents per mile. Belden, E. P., New York, Past, Present and Future (N. Y., 1849), p. 14; King, Charles, Progress of the City of New York During the Last Fifty Years, p. 75. Despite this rapid growth, the central and northern parts of the island were for the most part undeveloped. A graphic picture of Central Park as it was in the early fifties is given by Gen. Egbert L. Viele, the topographical engineer who had charge of laying out this pleasure ground: “It was for the most part a succession of stone quarries, interspersed with pestiferous swamps. The entire ground was the refuge of about five thousand squatters, dwelling in rude huts of their own construction, and living off the refuse of the city, which they daily conveyed in small carts, chiefly drawn by dogs, from the lower part of the city, through Fifth avenue (then a dirt road, running over hills and hollows). This refuse they divided among themselves and a hundred thousand domestic animals and fowls, reserving the bones for the bone-boiling establishments situated within the area. Horses, cows, swine, goats, cats, geese, and chickens swarmed everywhere, destroying what little verdure they found. Even the roots in the ground were exterminated until the rocks were laid bare, giving an air of utter desolation to the scene, made more repulsive from the odors of the decaying organic matter which accumulated in the beds of the old water courses that ramified the surface in all directions, broadening out into reeking swamps wherever their channels were intercepted." Wilson, J. G., Memorial History of the City of New York, vol. iv, p. 556.

'The first Railroad Act, passed in 1848, made no mention of street railways.

authorized we find those covering the Sixth and Eighth avenue roads.

These two avenues were the main arteries to the settled and more thickly populated districts of the West Side. By resolution of June 4, 1851, approved July 30, 1851, and embodied in agreements with the grantees on September 6, 1851, permission was given to lay a double track up West Broadway from Chambers street to Canal street to Hudson street, thence up Hudson street to Eighth avenue to Fifty

PLATE III

EIGHTH AVENUE RAILROAD COMPANY

first street, said railroad to be continued through Eighth avenue to the Harlem river whenever required by the Common Council and as soon and as fast as the avenue is graded." The road, however, was to be completed to Forty-second street within one year and to the Harlem river within three years.1 By the terms of the franchise the company was required to keep in good repair the space between the rails and outside the rails on either side for a distance of at least eight feet; the tracks were to be laid on

1 Valentine, David T., Ferry Leases and Railroad Grants, pp. 262-281; Ordinances of the Aldermen, Mayor and Commonalty of the City of New York, p. 628; Agreements between the Mayor, Aldermen and Commonalty of the City of New York and the Harlem, Hudson River, Sixth, Eighth, Second and Third Avenue Railroad Companies, pp. 22-23.

a good foundation, with a grooved rail or such other rail as might be approved by the street commissioner; the pavement on either side of the rails was to be of square, grooved blocks of stone as far as Fifty-first street on the Eighth avenue road, and as far as Thirty-second street on the Sixth avenue line. New cars" with all modern improvements for the convenience and comfort of the passengers" were to be used, and they were to be operated in both directions as often as public necessity might require, subject to such schedule as the street commissioner and the common council should from time to time prescribe; long waits were to be minimized by allowing a headway of fifteen minutes in each direction between five and six o'clock in the morning, and between eight and twelve o'clock at night, and a headway of four minutes between six o'clock in the morning and eight o'clock in the evening. Motive power other than horses could not be used on the Eighth avenue line below Fifty-first street, nor on the Sixth avenue line below Fortysecond street. The company agreed to make such connections with other roads in operation as the common council might from time to time direct; and its interest in the roads could not be assigned without consent of the common council. It was provided that a fare of not more than five cents should be charged for the entire length of the line; and a verified statement as to the monthly receipts of each road was to be filed with the comptroller. The common council reserved the right, should it seem beneficial to the interests of the city, to require the company to remove any portion of its tracks already laid; on failure to comply with this demand within ten days, the part of the tracks in question was to be removed by the street commissioner and the expense thereof charged to the railroad company. This is one of the few instances of a revocable street-railway grant in New York city prior to the creation of Greater New York.