The other facts are expressed in the find- ing said period, if there had been no change ing of the court as follows:

7

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:

And

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.]

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.