Williams v. The New-York Central Railroad Company.

land, ergo, he has consented to the building of a railroad upon it; although one of these benefits his land, renders access to it easy, and enhances its price, while the other makes access to it both difficult and dangerous, and renders it comparatively valueless. Were the transaction between two individuals, every one would see at once the injustice of the conclusion attempted to be drawn. It is the public interest supposed to be involved which begets the difficulty, and it is just for this reason that the constitution interferes for the protection of individual rights, and provides that private property shall not be taken for public use without compensation; a provision no less necessary than just, and one which it is the duty of the courts to see honestly and fairly enforced.

The case stated by the learned justice who delivered a dissenting opinion in the Supreme Court is a striking illustration of the injustice that would frequently be done under the rule contended for by the defendants. A street was laid out through a man's land, and he was assessed several hundred dollars for benefits, in addition to the land taken; and before the street was opened it was taken by a railroad company and converted into the track of their road. The owner lost his land, had to pay several hundred dollars, and had the annoyance of the railroad besides; while the railroad company got the road for nothing.

The case of Inhabitants of Springfield v. Connecticut River Railroad Company (4 Cush., 63) shows what the Supreme Court of Massachusetts thought of the argument that the uses are the same. It was insisted there, on the part of the defendants, that the power conferred upon them by the legis lature, to build their road between certain termini, gave them by necessary implication the right to build their track upon any intervening highway. But Chief Justice SHAW, in reply to this argument, says: "The two uses are almost, if not wholly, inconsistent with each other, so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated. The whole course

Williams v. The New-York Central Railroad Company.

of legislation on the subject of railroads is opposed to such construction."

I concur with the learned chief justice, and have no hesitation in coming to the conclusion that the dedication of land to the use of the public as a highway is not a dedication of it to the use of a railroad company; that the two uses are essentially different; and that, consequently, a railway cannot be built upon a highway without compensation to the owners of the fee. The legislative provisions on the subject were probably intended, as was intimated in The Presbyterian Society of Waterloo v. Auburn and Rochester Railroad Company (supra), to confer the right so far only as the public easement is concerned, leaving the companies to deal with the private rights of individuals in the ordinary mode. If, however, more was intended, the provisions are clearly in conflict with the constitution, and cannot be sustained.

It follows that the defendants, in constructing their road upon Washington-street without the consent of the plaintiff, and without any appraisal of his damages or compensation to him in any form, were guilty of an unwarrantable intrusion and trespass upon his property, and that he is entitled to relief. Although he had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power to prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief. There may be doubt as to his right to recover in this suit the damages upon the lots which have been sold; because, as to those lots, there was no occasion to ask any equitable relief, and to permit the damages to be assessed in this suit, in effect deprives the defendants of the right to have them assessed by a jury. But as this question has not been raised, it is unnecessary to consider it.

The judgment must be reversed, and there must be a new trial, with costs to abide the event.

Austin v. Searing.

SHANKLAND, J., read an opinion concurring in the result of the foregoing, and discussing certain questions of evidence which the disposition of the main point, in accordance with his opinion and that of SELDEN, J., rendered it immaterial to decide, and which were therefore not passed upon by the court. COMSTOCK and PAIGE, Js., took no part in the deci sion. All the other judges concurring,

Judgment reversed and new trial ordered

16 112 129 164

16 112 130 237

AUSTIN v. SEARING.

An agreement by which the members of an association undertake to confer judicial powers, in respect to the property in which they have a common interest, upon a body of men or officers, to be from time to time selected out of the association at large, as a tribunal having general authority to adjudicate upon alleged violations of the rules of the association, and to decree a forfeiture of the rights, to such property, of the parties adjudged to have been guilty of such violation, is void. The courts will not aid in enforcing the judgment of a tribunal sought to be created by private com pact, except in cases of a submission to arbitration of specific matters of controversy.

It seems that the civil courts will not take notice of or give effect to the constitution or laws of a voluntary, unincorporated association, nor regard a member thereof as coming under any obligation or disability, growing out of such constitution or laws, not proved to have been assumed by him in such a manner as would establish a valid contract between individuals not members of the association.

The plaintiff, for himself and others, claimed title to certain personal property under an adjudication of a body, existing in an association of persons calling themselves Odd Fellows, known as the grand lodge, by whose adjudications. in all matters relating to the affairs, discipline and property of the association, it is assumed that the plaintiff and the defendants had, by an executory contract, agreed to be bound, both parties being members of such association, which is voluntary and unincorporated, and having contributed to the funds in controversy under that agreement; Held, that the courts will not enforce such a contract, nor lend their aid to give effect to the decrees of a tribunal thus constituted.

Austin v. Searing.

Whether the act in relation to suits by and against joint stock companies and associations (ch. 258 of 1849), and the act to extend its provisions to companies having a joint and common interest in property (ch. 455 of 1851), include private partnerships or companies having more than seven members, not organized in pursuance of any statute, quere.

APPEAL from the Supreme Court. The question arose upon demurrer to the complaint, which states that the plaintiff sues according to the form of the statute, etc., as treasurer of Cayuga Lodge, No. 80, of the Independent Order of Odd Fellows of Northern New-York, an association of persons thirty-seven in number, who are named, and all of whom, it is averred, have an interest in the right of action, money, property and effects thereinafter mentioned as belonging to the association. It avers that there exists in the United States a benevolent and charitable association, comprising many thousand persons, denominated the Independent Order of Odd Fellows; that the organization of the said association admits the existence of several subdivisions or branches, each a perfect and complete association of itself, denominated grand lodges of the state or district in which the members reside; that these grand lodges are composed of certain members of subordinate lodges, who, by the constitution of the said grand lodges, are entitled to seats therein, and are represented by delegates in a national association or congress of representatives, which is denominated the Grand Lodge of the Independent Order of Odd Fellows in the United States of America, and is the superior council and supreme tribunal to which the grand lodges of the order in the several states are subordinate in jurisdiction and authority; that the grand lodge of each state is a complete association of itself, but subject at all times to the resolves, orders and decrees of the Grand Lodge of the United States, and has a constitution to which its members are obligated to subscribe; that there are two grand lodges in the State of New-York, organized under separate charters from the Grand Lodge of the United States; that one of these is styled the Grand SMITH.-VOL. II.

15

Austin v. Searing.

Lodge of Northern New-York, within the jurisdiction of which there are upwards of four hundred minor lodges like that which the plaintiff represents, each of which is subordinate to the said grand lodge of the district, which is invested with ample authority at all times to revoke its charter, suspend or terminate its existence, and demand and receive its charter, books, papers, regalia, money, property and effects; that all the property of the subordinate lodge is held subject to the authority of the grand lodge to decree its confiscation, whenever in the opinion of said grand lodge, upon a case regularly brought before it, it shall satisfactorily appear that such subordinate lodge is guilty of insubordination to the constituted authorities of the order in the jurisdiction in which it is located; that one of these subordinate lodges exists in the city of Auburn, by virtue of a charter from the grand lodge of the district, called Cayuga Lodge, No. 80, of which the plaintiff is treasurer; that the members of this lodge are the owners of certain property and effects described in the complaint, in which each and every one of the members of the said lodge have an equal interest; that each member of a subordinate lodge subscribes to the articles of association or constitution of said lodge; that there had formerly existed a subordinate lodge in Auburn, called by the same name as the present lodge, of which the defendant and the persons whom the plaintiff represents were mutually members; that charges have been preferred against this lodge to the grand lodge for insubordination, and that such proceedings have been had thereon that the charter of said lodge has been revoked, and the lodge regularly expelled, according to the constitution of the said grand lodge; that, according to the constitution of the grand lodge, the title of the Cayuga Lodge, No. 80, to its charter, books, papers, property and funds was, by the said act of expulsion, divested, and that the same became thereby, by the force and effect of such expulsion, the property of the grand lodge, as trustee, to be restored, in case the said subordinate lodge should be