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The New York Central & Hudson River Railroad Company, in 1872 operated its trains over the railroad in front of said premises, and continued to do so until February 16, 1897.
causes, the rental and usable value of said premises was depreciated from February 16, 1897, down to October 10, 1900, in the sum of fourteen hundred dollars ($1,400) below what said rental value would have been dur
The other facts are expressed in the find- ing said period, if there had been no change ing of the court as follows:
"Fourth. That, pursuant to chapter 339 of the Laws of 1892, there was constructed along Park avenue, in front of plaintiff's said premises, between April, 1893, and March, 1896, a new, permanent, elevated railroad structure of iron and steel; that said railroad in front of plaintiff's said premises is about 59 feet wide, and consists of four tracks laid on a solid roadbed, having a mean elevation of about 31 feet above the surface of said avenue, which roadbed is girded along the sides and in the center by solid iron girders, each 7 feet and 4 inches high, and is supported by iron columns, of which there are six directly in front of plaintiff's said premises; and that the work of constructing said permanent elevated railroad structure was done under the supervision of a board created by said
"Fifth. That the defendant the New York Central & Hudson River Railroad Company laid the tracks on said permanent elevated railroad structure about March, 1896, and from said date down to February 16th, 1897, operated thereon in front of said premises trains of cars drawn by steam engines for the carriage of freight and material used in the construction of said structure, for which service said defendant was paid; that said defendant, on February 16, 1897, began to operate regularly and permanently upon said permanent elevated railroad structure in front of plaintiff's said premises its passenger trains, drawn by steam locomotives. "Sixth. That the rental and fee values of the plaintiff's said premises were damaged by the work of constructing said permanent elevated railroad structure and by the existence of the same from April, 1893, to March, 1896; also by said structure and the operation thereon of trains, as aforesaid, from March, 1896, to February 16, 1899; but that neither of said defendants is liable for such damage.
"Seventh. That said permanent structure and the operation by said defendant the New York Central & Hudson River Railroad Company of passenger trains thereon since February 16th, 1897, are and have been a continuous trespass upon the plaintiff's easements of light and air appurtenant to his said premises, hereinbefore described as having a frontage of 76 feet and 10 inches on said Park avenue and a depth of 26 feet on 115th street; that solely in consequence of said trespass, and aside from any other
in defendants' said railroad in Park avenue in front of said premises pursuant to chapter 339 of the Laws of 1892; and that the fee value of said premises has been, and was on October 10, 1900, depreciated thereby in the sum of three thousand dollars ($3,000) below what said fee value would have been on said date if there had been no change in defendant's railroad as aforesaid.
"Eighth. That the said sums awarded as damages are over and above any and all benefits conferred upon said premises by the changes made, pursuant to chapter 339 of the Laws of 1892, which said benefits result in part from improved access to said premises afforded by said changes, and are offset against the damages to said premises caused by said changes.
"Ninth. That the said sums awarded as damages are exclusive of the damages that would have been occasioned to plaintiff's premises by the maintenance and use of the defendant's railroad and structures had there been no change in the same pursuant to chapter 339 of the Laws of 1892, for which last-mentioned damages the defendants are not liable either jointly or severally.
"Tenth. That this action was commenced by the plaintiff on January 7, 1897, that the plaintiff on April 28, 1892, began an action in this court against the defendant for an injunction and damage by reason of the defendant's railroad structure and the operation of trains thereon in front of the premises described herein, as said railroad existed and was operated on said date; and that said last-mentioned action was discontinued on February 27, 1900."
A decree was entered enjoining the use of the railroad structure and its removal from in front of plaintiff's premises; but it was provided that the injunction should not become operative if the defendants tender for the purpose of execution by the plaintiff "a form of conveyance and release" to them of the easements of light, air, and access appurtenant to said premises, and tender further the sum of $3,000, with interest thereon from October 10, 1900. were also adjudged to plaintiff in the sum of $1,400, with interest from February 16, 1897, and cost. Either party was given the right to move at the foot of the decree for further directions as to the enforcement of the same.
In the form of the decision and judgment entered, and as to the legal principles in
volved, the court professed to follow Lewis | ers, to have been improvidently decided, and
v. New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540.
The judgment was affirmed by the appellate division. It was reversed by the court of appeals (173 N. Y. 549, 66 N. E. 558), and the judgment of that court, upon the remission of the case, was made the judgment of the supreme court and the complaint dismissed without costs. The case was then brought here.
Messrs. Elihu Root, James C. Bushby, and L. M. Berkeley for plaintiff in error. Messrs. Ira A. Place and Thomas Emery for defendants in error.
Mr. Justice McKenna, after stating the case, announced the judgment of the court and delivered the following opinion:
As we have observed, the supreme court followed Lewis v. New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540, both in the "form of decision and judgment" and "the legal principles involved." Discussion was not considered necessary. The appellate division affirmed the judgment on the authority of the same case and other cases which had been ruled by it. The court, by brief expression, pointed out the identity of the cases, and disposed of the defense made by the railroad companies of adverse possession as follows:
the Elevated Railroad Cases, which were made its support, were distinguished. The court rested its ruling on one point, the effect of the act of 1892, under which the structure complained of was erected, the court declaring that act a command to the railroad company in the interest of the public; indeed, made the state the builder of the new structure and the use of it by the railroads mere obedience to law. But it does not follow that private property can be taken, either by the erection of the structure, or its use. This was plainly seen and expressed in the Lewis Case as to the use of the structure. It was there said: "When they [the railroads] commenced to use the steel viaduct, they started a new trespass upon the rights of abutting owners." There was no hesitation then in marking the line between the power of the state and the duty of the railroad, and assigning responsibility to the latter. This was in accordance with principle. The command of the state, the duty of the railroad to obey, may encounter the inviolability of private property. in performing the duties devolved upon it a railroad may be required to exercise the right of eminent domain. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115. See also Worcester v. Norwich & W. R. Co. 109 Mass. 103. We do not, therefore, solve the questions in this case by reference to the power of the state and the duty of the railroads; the rights of abutting property owners must be considered, and against their infringement plaintiff urges the contract clause of the Constitution of the United States and the 14th Amendment. The latter is invoked because the act of 1892 does not provide for compensation to property owners, and the former on account of the conditions upon which the strip of land constituting the avenue was conveyed to the city. There were two deeds to the city, one made in 1825 and the other in 1827. That of 1825 was stated to be "in trust, nevertheless, that the same be appropriated and be kept open as parts of public streets and avenues forever, in like manner as the other public streets and avenues in said city are and of The deed of 1827 was right ought to be." also "in trust that the same be left open as public streets for the use and benefit of the inhabitants of said city forever." Plaintiff derives title from Poillon, grantor of the city in the deed of 1827, and hence contends that he is entitled to enforce the trust created by Poillon's deed to the city. The railIn the case at bar there is a complete roads oppose this contention. They assert change of ruling by the court of appeals. title to the land upon which the structure The Lewis Case is declared, in so far as it complained of stands by deed and by preexpressed rights of abutting property own-scription. The details of these contentions
"The question of defendants having acquired title by adverse possession was considered by this court in both the Fries and Sander Cases. [57 App. Div. 577, 68 N. Y. Supp. 670, and 58 App. Div. 622, 69 N. Y. Supp. 155.] In the former it was said: 'For these reasons the deed to the city was valid as against the railroad company, and it had no title to that part of the street in front of the plaintiff's premises, and its only rights, therefore, were those which it had acquired by adverse possession. Within the rule laid down in the case of Lewis v. New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540, that adverse possession did not give to the railroad company the right to carry its tracks, which for twenty years had run in a cut, upon a viaduct such as this is above ground, in front of the plaintiff's premises. The Case of Lewis applies fully to the one at bar.' In the Sander Case this court followed the decision just quoted, the presiding justice dissenting on the sole ground that 'title by adverse possession as to the 24-foot strip, at least, was established by the evidence."" [60 App. Div. 621, 69 N. Y. Supp. 910.]
we need not repeat nor discuss. They are stated at length in the Lewis Case, and the conclusions there expressed are not disturbed by the decision of the court of appeals in the case at bar. The case is therefore presented to us as to the effect of the deed of Poillon to the plaintiff and to the city as constituting a contract, and the effect of the act of 1892 as an impairment of that contract, or as taking plaintiff's property without due process of law. These questions were directly passed on and negatived by the court of appeals.
It will be observed from the statement of facts that, before the construction of the viaduct complained of, the railroad ran partly on the surface of the street and partly in a cut or trench, the latter being flanked by masonry walls 3 feet high. The viaduct is a solid roadbed 31 feet above the surface, having iron girders on the sides and in the middle, and supported by iron columns, of which there are six in front of the plaintiff's land. The old construction prevented crossing or access to the tracks. The new construction impairs or destroys the plaintiff's easements of light and air. And such easements the trial court found belonged to plaintiff in common with other abutters upon the public streets of New York, and his damages for their impairment to be, as expressed by Bartlett J., in his dissenting opinion, "$3,000 fee damages, $1,400 rental damages, from February 16, 1897, to October 10, 1900," the date of trial; that is, $4,400 present damage. It is suggested, however, that the court of appeals did not deny the rights of the abutters, but considered that the most important phase of those rights was that of access, and the plaintiff did not have this over the railroad by reason of the stone wall. The basis of the suggestion, as we understand, is the idea that plaintiff was compensated for the injury of his easements of light and air by an increase of his easement of access without regard to the resulting damage. To do this, however, is to make one easement depend upon another, both of which are inseparable attributes of property and equally necessary to its enjoyment. It is impossible for us to conceive of a city without streets, or any benefit in streets, if the property abutting on them has not attached to it, as an essential and inviolable part, easements of light and air as well as of access. There is something of mockery to give one access to property which may be unfit to live on when one gets there. To what situation is the plaintiff brought? Because he can cross the railroad at more places on the street, the state, it is contended, can authorize dirt, cinders, and smoke from 200 trains a day
to be poured into the upper windows of his house.
In Barnett v. Johnson, 15 N. J. Eq. 481, there is a clear expression of the right of abutting owners to light and air, and of the common practice and sense of the world upon which it is founded. "It is a right,” the court said, "founded in such an urgent necessity that all laws and legal proceedings take it for granted; a right so strong that it protects itself, so urgent that, upon any attempt to annul or infringe it, it would set at defiance all legislative enactments and all judicial decisions." And, graphically describing the right, observed further, "is not every window and every door in every house in every city, town, and village the assertion and maintenance of this right?" It has been said Barnett v. Johnson anticipated "the principle upon which compensation was at last secured in the Elevated Railroad Cases in New York." 1 Lewis Em. Dom. 183.
It is manifest that easements of light and air cannot be made dependent upon the easement of access, and whether they can be taken away in the interest of the public under the conditions upon which the city obtained title to the streets is now to be considered. The answer depends upon the cases of Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146, and Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 268, 10 N. E. 528, known as the Elevated Railroad Cases. The Lahr Case was decided in 1887. The plaintiff in the case at bar acquired title to his property in 1888.
The first of the Elevated Railroad Cases The
was the Story Case, decided in 1882. plaintiff in the case was the owner of a lot on the corner of Moore and Front streets in the city of New York, on which there To their enjoyment light, were buildings. air, and access were indispensable, and were had through Front street. The defendant was about to construct a railroad above the umns, about 15 inches square, 14 feet and 6 surface of that street upon a series of colinches high, placed 5 inches inside of the sidewalk, with girders from 33 to 39 inches sets of rails for a steam railroad. deep, for the support of cross ties for three The cars
were to be of such a construction as to reach
within 9 feet of plaintiff's buildings, and trains were to be run every three minutes, and at a rate of speed as high as 18 miles an hour.
The fact of injury to the abutting lot was found by the trial court, and also that the city of New York was the owner in fee of Front street, opposite plaintiff's lots, and that he was not and never had been seised of the same in fee, nor had any estate therein.
The supreme court said the case involved | for compensation for its diminution by the the question whether the scheme of the de- contemplated structure. fendant amounted to the taking of any property of the plaintiff; if it did, it was said, the judgment was invalid on the ground that the intended act, when performed, would violate, not only the provision of the Constitution, which declared that such property should not be taken without just compensation, but certain statutes by which defendant was bound or owed its existence, and which would not have been upheld unless, in the opinion of the court, they had provided means to secure such compensation.
It is, of course, impossible to reproduce the argument of the court by which its conclusions were sustained. It is enough to say that a distinction was clearly made between the rights of abutting owners in the surface of the street and their rights in the space above the street, and the distinction was also clearly made between damages and a taking. A review was made of the cases upon which those distinctions rested. The power of a city to alter a grade of a street was adverted to, and held not to justify the intended structure. There was no change in the street surface intended, it was said, "but the elevation of a structure useless for street purposes and as foreign thereto" as the house which was held to be an obstruction in Corning v. Lowerre, 6 Johns. Ch. 439, or the freight depot in Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224.
The conclusion of the court and the distinctions made by it were repeated in Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 271, 10 N. E. 528. The structure complained of in the latter case was also an elevated railroad.
The plaintiff contended that, as owner of the abutting premises, he had the fee to one half of the bed of the street opposite thereto, and he also contended, if the fee was in the city, he, as abutting owner, had such right to have light and access afforded by the street above the roadbed as entitled him to have it kept open for those uses until by legal process and upon just compensation that right was taken away. The defendant justified its intended acts through the permission of the city. The issue thus made the court passed on, and in doing so assumed that the city owned the fee of the street and that the plaintiff derived his title from the city. It was held that the plaintiff had acquired "the right and privilege of having the street forever kept open as such;" and that the right thus secured was an incorporated hereditament, which "became at once appurtenant to the lot and formed an 'integral part of the estate' in it," and which followed the estate and constituted a perpetual encumbrance upon the land burdened with it. "From the moment it attached," the court observed, "the lot became the dominant, and the open way or street the servient, tenement." Cases were cited for these propositions. And the extent of the easement was defined to be, not only access to the lot, but light and air from it. The court said: "The street occupies the surface, and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner." And further: "The elements of light and air are both to be derived from the space over the land on the surface of which the street is constructed, and which is made servient for that purpose." This was emphasized, the court observing: "Before any interest passed to the city the owner of the land had from it the benefit of air and light. (2) That abutters upon a public street, The public purpose of a street requires of claiming title by grant from the municipal the soil the surface only." The easement authorities, which contained a covenant that was declared to be property and within the streets which could be laid out should conprotection of the constitutional provision' tinue as other streets, acquired an
Chief Judge Ruger, speaking for the court, opened his opinion by observing that the action was "the sequel of the Story Case," and that its defense seemed to have been conducted upon the theory of endeavoring to secure a re-examination of that case. The endeavor, it was said, must fail, because the doctrine of the Story Case had been pronounced after most careful consideration, and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resources of learning. and reasoning in the discussion of the question presented. And it was declared that "it would be the occasion of great public injury if a determination thus made could be inconsiderately unsettled and suffered again to become the subject of doubt and theme of renewed discussion." The doctrine of the Story Case was declared to be stare decisis, not only upon all the questions involved, but upon all that came logically within the principles decided. There was an enumeration of those principles, as follows:
(1) That an elevated railroad, of the kind described was a perversion of the use of a street, which neither the city nor the legislature could legalize without providing compensation for the injury inflicted upon the property of abutting owners.
ment in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of the property situated thereon.
(3) That such easement was an interest in real estate and constituted property, within the meaning of the Constitution of the state, and could not be taken for a public use without payment of compensation.
(4) That an elevated railroad, upon which cars propelled by steam engines which generated gas, steam, and smoke, and distributed in the air cinders, dust, ashes, and other noxious and deleterious substances, and interrupted the free passage of light and air to and from adjoining premises, constituted a taking of the easement, and rendered the railroad company liable for the damages occasioned by such taking.
the Story and Lahr Cases were said not to be in point. We think that the Lewis Case was an irresistible consequence of the others, and the Story and Lahr Cases are in point and decisive.
Another distinction is claimed, as we have already observed, between the case at bar and those cases. The act of the railroad in: occupying the viaduct, it is said, was the act of the state. But this defense was made in the other cases. It did not give the court much trouble. It is urged, however, now, with an increased assurance. Indeed, it is made the ground of decision, as we have seen by the court of appeals. The court said: "The decisions in the Elevated Railroad Cases are not in point. There no attempt was made by the state to improve the street for the benefit of the public. Instead, it granted to a corporation the right to make an additional use of the street, in The application of these principles was the doing of which it took certain easeresisted on the ground that the city was the ments belonging to abutting owners, which grantor of the plaintiff in the Story Case, it was compelled to compensate them for." and could not derogate from the title a And, further, making distinction between property it conveyed, and it was contended, those cases and that at bar, said: "The that the case went off on that ground. This state could not if it would—and probably was rejected and the principles enumerated would not if it could-deprive defendant of held to apply, notwithstanding the land in its right to operate its trains in the street. the street had been taken from plaintiff's But it had the power in the public interest grantor by proceedings in invitum. And to compel it to run its trains upon a viaduct rights of abutting owners were held to rest instead of in the subway." And the court in contract constituted by the conditions concluded that it was the state, not the railupon which the city received the property. roads, who did the injury to plaintiff's propEqually untenable are the grounds of dis-erty. The answer need not be hesitating. tinction urged in the case at bar against the The permission, or command of the state, application of those principles. What are can give no power to invade private rights, they? In the Story and Lahr Cases the even for a public purpose, without payment railroads were imposed for the first time of compensation; and payment of such comon the street. In the case at bar the Har-pensation, when necessary to the performlem railroad had occupied the surface of the street, and was changed to the viaduct. But in the Story and Lahr Cases it was not the fact that the railroads were imposed on the street for the first time that determined the judgment rendered. It was the fact that trains were run upon an elevated structure, interrupting the easements of light and air of the abutting owners. It was this that constituted a use inconsistent with the purpose of the street. It was the "elevation of a structure," to quote again from the Story Case, "useless for general street purposes." This situation of the railroad was especially dwelt upon in the Story Case, and that case was distinguished thereby from the surface railway cases. And in the Lewis Case a difference was recognized between the two situations, and a balance struck between damage done by the railroad in one situation and the railroad in the other situation. The Lewis Case, we have seen, was overruled by the court of appeals in the case at bar, while
ance of the duties of a railroad company, may be, as we have already observed, part of its submission to the command of the state. The railroads paid one half of the expense of the change, "by the command of the statute, and hence under compulsion of law," to quote from the court of appeals. The public interest, therefore, is made too much of. It is given an excessive, if not a false, quantity. Its use as a justification is open to the objection made at the argument,-it enables the state to do by two acts that which would be illegal if done by one. In other words, as, under the law of New York, the state can authorize a railroad to occupy the surface of a street, it can subsequently permit or order the railroad to raise its tracks above the street and justify the impairment of property rights by the public interest. It was said in the Story Case that "the public purpose of a street requires of the soil the surface only." And this was followed in Fobes v. Rome, W. & O. R. Co. 121 N. Y. 505, 8 L. R. A.