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ting on the street has easements of access,, providing that in doing so they deny no light, and air as against the erection of an Federal right of the owner. The plaintiff elevated roadway by or for a private cor- asserts that the case of Story v. New York poration for its own exclusive purposes, but Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146, that he has no such easements as against decided in 1882, four years before he acthe public use of the streets, or any struc- quired title to the property, interpreted the tures which may be erected upon the street contract between the city of New York and to subserve and promote that public use. the owners of land abutting upon its streets The same law which declares the easements as assuring the owner easements of access, defines, qualifies, and limits them. Surely light, and air, which could not lawfully be such questions must be for the final deter- impaired by the erection on the street of an mination of the state court. It has author- elevated structure designed for public travity to declare that the abutting landowner el; that he is entitled to the benefit of his has no easement of any kind over the contract as thus interpreted, and that the abutting street; it may determine that he judgment of the court denying him its benhas a limited easement; or it may deter-efits impaired its obligation. If the facts mine that he has an absolute and unquali- upon which this claim is based are accufied easement. The right of an owner of rately stated, then the case comes within the land abutting on public highways has been authority of Muhlker v. New York & H. a fruitful source of litigation in the courts R. Co. 197 U. S. 544, 49 L. ed. 872, 25 Sup. of all the states, and the decisions have Ct. Rep. 522, which holds that, when the been conflicting, and often in the same court of appeals has once interpreted the state irreconcilable in principle. The courts contract existing between the landowner have modified or overruled their own deci- and the city, that interpretation becomes a sions, and each state has in the end fixed part of the contract, upon which one acand limited, by legislation or judicial deci- quiring land may rely, and that any subsion, the rights of abutting owners in ac- sequent change of it to his injury impairs cordance with its own view of the law and the obligation of the contract. It will be public policy. As has already been pointed observed that it is an essential part of the out, this court has neither the right nor the plaintiff's case that he should show that duty to reconcile these conflicting decisions his contract had been interpreted in the nor to reduce the law of the various states manner he states. It therefore becomes to a uniform rule which it shall announce necessary to examine the Story Case, and impose. Upon the ground, then, that wherein, he asserts, such an interpretation under the law of New York, as determined was made. In order to ascertain precisely by its highest court, the plaintiff never what that case decided we may consider owned the easements which he claimed, other decisions of the court of appeals, and that therefore there was no property though they are later in time than the actaken, we hold that no violation of the 14th quisition of the plaintiff's title. Amendment is shown.

The plaintiff in the Story Case held the The remaining question in the case is title to land injuriously affected by the conwhether the judgment under review im-struction of an elevated railroad, as a sucpaired the obligation of a contract. It ap-cessor to a grantee from the city. In the pears from the cases to be cited that the deed of the city the land was bounded on courts of New York have expressed the the street and contained a covenant that it rights of owners of land abutting upon pub- should “forever thereafter continue and be lic streets to and over those streets in for the free and common passage of, and terms of contract rather than in terms of as public streets and ways for, the inhabittitle. In the city of New York the city ants of the said city, and all others passowns the fee of the public streets (whether ing and returning through or by the same, laid out under the civil law of the Dutch in like manner as the other streets of the régime, or as the result of conveyances be- same city now are, or lawfully ought to tween the city and the owners of land, or be.” It was held that by virtue of this by condemnation proceedings under the covenant, which ran with the land, the statutory law of the state) upon a trust plaintiff was entitled to easements in the that they shall forever be kept open as pub- street of access, and of free and uninterlic streets, which is regarded as a covenant rupted passage of light and air; that the running with the abutting land. Accept- easements were property within the meaning, for the purposes of this discussion, the ing of the Constitution of the state, and view that the plaintiff's rights have their could not lawfully be taken from their ownorigin in a contract, then it must be that er without compensation, and that the erecthe terms of the trust and the extent of tion of the elevated structure was a taking. the resulting covenant are for the courts The decision rested upon the view that the of New York finally to decide and limit, erection of an elevated structure for rail

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road purposes was not a legitimate street street there in question was laid out during use. “There is no change,” said Judge Dan. the Dutch régime, when the town had abforth (p. 156), “in the street surface intend solute title to the fee of the streets, with ed; but the elevation of a structure useless no easement over them in favor of the for general street purposes, and as foreign abutting land. But it was held by the thereto as the house in Vesey street (Corn-court that by virtue of certain legislation, ing v. Lowerre, 6 Johns. Ch. 439) or the not necessary here to be stated, New York freight depot (Barney v. Keokuk, 94 U. S. city owns the fee in all of its streets upon 324, 24 L. ed. 224)."

a trust, both for the public and the abut"The question here presented,” said Judge ting land, that they shall forever be kept Tracy (p. 174, Am. Rep. p. 156), “is not open as public streets, and that as to an whether the legislature has the power to abutting owner this trust cannot be vioregulate and control the public uses of the lated without compensation. But in the public streets of the city, but whether it opinion the limits of the principle were has the power to grant to a railroad cor again carefully guarded. It was said by poration authority to take possession of Judge Andrews (p. 175, L.R.A. p. 642, N. such streets and appropriate them to uses E. p. 278): "Under the decisions made there inconsistent with and destructive of their seems to be no longer any doubt in this continued use as open public streets of the state that streets in a city laid out and city.”

opened under charter provisions may, under In the case of Lahr v. Metropolitan Elev. legislative and municipal authority, be R. Co. 104 N. Y. 268, 10 N. E. 528, decided | used for any public use consistent with in 1887, the plaintiff held title by mesne their preservation as public streets, and conveyances from the owner, from whom this, although the use may be new, and the land for the street had been

the street had been ac- may seem to impose an additional burden, quired by condemnation under stat- and may subject lot owners to injury. The ute which provided that the land thus

thus mere disturbance of their rights of light, taken should be held "in trust, never. air, and access by the imposition of a new theless that the same be appropriated street use must be borne, and gives no right and kept open for and as a part of a public of action.” And again (p. 185, L.R.A. p. street

forever, in like manner as 645, N. E. p. 282): “We conclude this part the other public streets

in the said of the case with the remark that neither city are, and of right ought to be.” It was the Story nor the Lahr Case imposes any contended that the principle of the Story limitation upon the legislative power over Case should be confined to those who, like streets for street uses. They simply hold Story, held title under a grant from the that the trust upon which streets are held city with a covenant that the street should cannot be subverted by devoting them to be kept open. But the court held that other and inconsistent uses.” there was no legal difference between the It would be difficult for words to show two cases, and that from the condemnation more clearly than those quoted from the statute a covenant running with the land opinions that such a case as that now bewas implied for the benefit of its owners, fore us was not within the scope of the deand that the plaintiff was entitled to re- cisions or of the reasons upon which they cover damages for the injury to his ease- were founded. The difference between a ments of access, light, and air. But, as in structure erected for the exclusive use of a the Story Case, the extent of the decision railroad and one erected for the general use was carefully limited. “The logical effect of the public was sharply defined. It was of the decision in the Story Case," said only the former which the court had in Chief Judge Ruger (p. 292, N. E. p. 533), view. That the structure was elevated, "is to so construe the Constitution as to and for that reason affected access, light, operate as a restriction upon the legislative and air, was an important element in the power over the public streets opened under decisions, but it was not the only essential the act of 1813, and confine its exercise to element. The structures in these cases such legislation as shall authorize their use were held to violate the landowners' rights, for street purposes alone. Whenever any not only because they were elevated and other use is attempted to be authorized, it thereby obstructed access, light, and air, exceeds its constitutional authority. Stat. but also because they were designed for the utes relating to public streets which at- exclusive and permanent use of private cortempt to authorize their use for additional porations. The limitation of the scope of street uses are obviously within the power the decision to such structures, erected for of the legislature to enact."

such purposes, appears not only in the deIn the case of Kane v. New York Elev. cisions themselves, but quite clearly from R. Co. 125 N. Y. 164, 11 L.R.A. 640, 26 N. E. subsequent decisions of the court of ap278, decided in 1891, it appeared that the peals. In the case of Fobes v. Rome, W. &

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0. R. Co. 121 N. Y. 505, 8 L.R.A. 453, 24 | case it was held that the abutting landN. E. 919, Judge Peckham, now Mr. Justice owner had the right to compensation for Peckham, made the following statement of the construction of a viaduct in the street the effect of the Story Case. Certain por- for the practically exclusive occupation of tions of it are italicized here for the pur- a railroad. In the second case it was held pose of emphasizing the point now under that the abutting owner had no right of consideration:

compensation for the erection of a public "It was not intended in the Story Case to bridge with inclined approaches and a guard overrule or change the law in regard to wall, to carry travel over a railroad, alsteam surface railroads. The case embod- though the structure impaired the access ied the application of what was regarded to his land. We are not concerned with the as well-established principles of law to a question whether the distinction between new combination of facts, such facts an elevated structure for the exclusive use amounting, as was determined, to an abso- of a corporation and the same structure lute and permanent obstruction in a portion for the purposes of public travel is, so far of the public street, and in a total and est- as an abutting landowner is concerned, a clusive use of such portion by the defendant, just or harsh one, provided it is a clear and such permanent obstruction and total distinction based upon real differences. We and exclusive use, it was further held, think that before the plaintiff had acquired amounted to a taking of some portion of his title the law of New York had plainly the plaintiff's easement in the street for the drawn this distinction. The highest court purpose of furnishing light, air, and access of the state had held that the contract of to his adjoining lot. This absolute and per- the owner of land abutting on streets enmanent obstruction of the street, and this titled him to the right of unimpaired access total and exclusive use of a portion thereof and uninterrupted circulation of light and by the defendant were accomplished by the air as against an elevated structure erected erection of a structure for the elevated rail- for the exclusive use of a private corporaruad of defendant; which structure is fully tion; had, with scrupulous care, refrained described in the case as reported.

from holding that he had the same right as “The structure, by the mere fact of its against an elevated structure of the same existence in the street, permanently and at kind erected for the purpose of public every moment of the day took away from travel; and had pointed out plainly the esthe plaintiff some portion of the light and sential distinction between the two cases. air which otherwise would have reached This distinction, as we have already seen, him, and, in a degree very appreciable, in- has been made or approved by the courts of terfered with and took away from him his other states wherever the occasion to confacility of access to his lot; such interfer-sider it arose, and it is a real and substanence not being intermittent and caused by tial distinction which arises out of the trust the temporary use of the street by the upon which the public owns the public highpassage of the vehicles of the defendant ways. while it was operating its road through the

The trust upon which streets are held is street, but caused by the iron posts and by that they shall be devoted to the uses of the superstructure imposed thereon, and public travel. When they, or a substanexisting for every moment of the day and tial part of them, are turned over to the night. Such a permanent, total, exclusive, tion, we see no reason why a state court

exclusive use of a single person or corporaand absolute appropriation of a portion of the street as this structure amounted to may not hold that it is a perversion of their the street as this structure amounted to legitimate uses, a violation of the trust, was held to be illegal and wholly beyond and the imposition of a new servitude. But any legitimate or lawful use of a public the same court may consistently hold that street. The taking of the property of the with the acquisition of the fee, and in acplaintiff in that case was held to follow upon cordance with the trust, the city obtained the permanent and exclusive nature of the the right to use the surface, the soil below, appropriation by the defendant of the pub- and the space above the surface, in any lic street, or of some portion thereof."

manner which is plainly designed to proThe distinction between the erection of mote the ease, facility, and safety of all an elevated structure for the exclusive use those who may desire to travel upon the

a private corporation and the same streets; and that the rights attached to the structure for the use of public travel is adjoining land, or held by contract by its clearly illustrated in the contrast in the owner, are subordinate to such uses, whethdecisions of Reining v. New York, L. & W. er they were foreseen or not when the R. Co. 128 N. Y. 157, 14 L.R.A. 133, 28 N. E. street was laid out. In earlier and simpler 640, and Talbot v. New York & H. R. Co. times the surface of the streets was enough 151 N. Y. 155, 45 N. E. 382. In the first' to accommodate all travel. But under the

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more complex conditions of modern urban | question of local law with the soundness life, with its high and populous buildings, of which we have no concern. and its rapid interurban transportation, the The judgment is affirmed. requirements of public travel are largely increased. Sometimes the increased de- Mr. Justice McKenna, dissenting: mands may be met by subways and some- I am unable to agree with the opinion times by viaducts. The construction of and judgment of the court. I think this either solely for public travel may well be case cannot be distinguished in principle held by a state court to be a reasonable from Muhlker v. New York & H. R. Co. adaptation of the streets to the uses for 197 U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. which they were primarily designed. What | 522; Birrell v. New York & H. R. Co. 198 we might hold on these questions where U. S. 390, 49 L. ed. 1096, 25 Sup. Ct. Rep. we had full jurisdiction of the subject, it is 667. On the authority of those cases the not necessary here even to consider.

judgment in this case should be reversed. In basing its judgment on the broad, Those cases were determined by Story v. plain, and approved distinction between the New York Elev. R. Co. 90 N. Y. 122, 43 abandonment of the street to private uses Am. Rep. 146, and Lahr v. Metropolitan and its further devotion to public uses, the Elev. R. Co. 104 N. Y. 268, 10 N. E. 528, court below overruled none of its decisions, known as the elevated railroad cases. The but, on the contrary, acted upon the prin structures there described are what are ciples which they clearly declared. The known as elevated railroads, and may be plaintiff, therefore, has not shown that in presumed to be familiar, and a structure of his case the state court has changed, to his substantially similar character was the subinjury, the interpretation of his contract ject of the controversy in Muhlker v. New with the city, which it had previously York & H. R. Co. and Birrell v. New York made, and upon which he had the right to tion above the surface of the street, and

& H. R. Co. Its characteristic was elevarely. The case at bar is not within the this was the point of the decisions. Let authority of the Muhlker Case. When Muhlker acquired his title the elevated said the court, “is the extent of this ease

me quote from the Story Case: “But what,” railroad cases had declared the law of New ment? What rights or privileges are seYork, and it was here held that he had the cured thereby? Generally, it may be said, right to rely upon his contract as in them it is to have the street kept open, so that it had been interpreted. The structure from it access may be had to the lot, and complained of was in the Muhlker Case, as light and air furnished across the open in the elevated railroad case, one devoted way. The street occupies the surface, and to the exclusive use of a private corpora- to its uses the rights of the adjacent lots tion. This court, in order to obtain juris- are subordinate, but above the surface there diction and to declare that a Federal right can be no lawful obstruction to the access was violated, was obliged to hold, and did of light and air, to the detriment of the hold, that the two cases were identical, and abutting owner.” And again, it was said that in deciding the Muhlker Case the court that the agreement-grant from the cityof appeals had in effect overruled the ele- was, “that if the grantee would buy the vated railroad cases, and this view was sup- lot abutting on the street he might have ported by the court of appeals itself in the use of light and air over the open space Lewis v. New York & H. R. Co. 162 N. Y. [italics mine] designated as a street.” And 202, 56 N. E. 540, where a plaintiff in like yet again (and the passage was quoted in situation with Muhlker had obtained dam- the Muhlker Case, page 566, L. ed. p. 876, ages for exactly the same structure. The Sup. Ct. Rep. p. 526) : "Before any interest theory upon which the Muhlker Case stands passed to the city the owner of the land and upon which it was put in the opinion The public purpose of a street requires of

had from it the benefit of air and light. of the court, is that, in deciding against the soil the surface only.” The Lahr Case Muhlker, the state court had overruled its own decisions, and changed the interpreta- the Muhlker Case, in effect, that the dis

repeated the principle. And it was said in tion of the contract upon which he had the regard of the distinction between the surright to rely. But the fundamental fact face of a street and the space above the upon which the decision in the Muhlker surface would leave "remaining no vital eleCase rested, present there, is absent in the ment of the elevated railroad cases." case at bar. Here there was no overruling It may be said there was a qualification of decisions and no change in the interpre-made in those cases and recognized in the tation of the contract. There was, there- Muhlker Case, that it was not alone the fore, no impairment of the obligation of a elevation of a structure above the surface, contract, and the decision was merely on a' but the elevation of one "useless for general street purposes.” I may accept the being compensated.” The contentions exlimitation. The structure in the case at press the invocation of the property owner bar comes within the characterization. It of the court, and the court responded to and is useless for general street purposes. It sustained it. Is not that response rejected obstructs the frontage of abutting lots and in the case at bar? The structure in the affords no access to or from them in any case towers as high as a house of five proper sense. There is a descent by stairs stories and is planted on columns, the size from it to the street below, but for pedes- and strength and number of which can easitrians only-necessarily not for vehicles. | ly be imagined. Does it need any comment But there is a like descent by stairs from to describe its effect? The plaintiffs have elevated railroads to streets below, but this really no access to it from their land or did not save the roads from liability for from any building that may be put upon abutting property.

their land, because they may not bridge the It must be borne in mind that this case intervening gap. They have no other access is not disposed of by making a contrast be- to it but that which I have described. The tween the passage of a railroad and the public has no access from it to plaintiffs' traffic on a street. The contrast is catch- property but that which I have described. ing and only seems important. In New The buildings that stood upon the land York a railroad is a street use and can be when the structure was built were practiimposed on the surface of a street without cally under its shadow.† Any buildings liability for consequential damages, and that may be erected will be equally so. “To this even if it be a steam railroad. Fobes get above it,” plaintiffs' counsel asserts, "the v. Rome, W. & O. R. Co. 121 N. Y. 505, 8 abutter must build up five stories,” and it L.R.A. 453, 24 N. E. 919. The distinction, is only from such elevation that he may therefore, was necessary to be made be contemplate the traffic that passes his premtween the surface and the open space over ises. And even then, counsel also asserts, the surface. And we have seen that this light can only reach the abutter "through a distinction was noted in the cases and de- slit 10 feet wide between his eaves and termined their judgment. In other words, the edge of the structure." And to this the use of a street by a railroad was de- measure his right to an unobstructed frontcided to be a proper street use, and, there- age, his right to unobstructed light and fore, whether put upon the surface or above air, has been reduced. Is it possible that the surface, retained that character. In the law can see no legal detriment in this, either place it was a proper street use and no impairment of the abutter's grant from damages could only have been consequent the city, no right to compensation ? to the elevation of the road above the sur- I am not insensible of the strength of face, to which, to quote again the Story the reasoning by which this court sustains Case, the "public purpose of a street” at that conclusion, but certainly all lawyers tached only.

would not assent to it. Indeed, one must The elevated railroad cases get signifi. be a lawyer to assent to it. At times there cance from the arguments of counsel. Such seems to be a legal result which takes no arguments, of course, are not necessarily a account of the obviously practical result. test of the decision. But they may be. At times there seems to come an antithesis The opinion may respond accurately to between legal sense and common sense. them. We find from the report of the I say this in no reproach of the law and Story Case that the argument of Mr. Evarts its judgments. I say it in no reproach to for the plaintiff was that “a permanent the opinion of the court. I recognize it structure above the street surface, and an proceeds upon distinctions which are intelencroachment thereby and by its use upon ligible, although I do not assent to them. the appurtenant easement of the open front. My purpose is only to express the view that age held by the abutting proprietors, was the legal opinion which I hold has justifinot covered by the original condemnation cation in the serious practical consequences for the public easement, which was limited

* When the original plaintiff, George to a maintenance of such open streets and Sauer, became the owner of the property, perpetual frontage. People v. Kerr, 27 N. there were standing upon it certain frame Y. 188; Craig v. Rochester City & B. R. Co. buildings which had been used as a pleasure 39 N. Y. 404."

resort. In 1890 he enlarged and improved Mr. Choate, also for the property owners, the buildings at great expense and occupied submitted the following: “The abutting them at the time of the erection of the owners on the streets have an interest in structure in controversy. These buildings the nature of property for all time in the were destroyed in 1897 by fire, and the land

is now vacant. And it may be noted that streets above their surface, and in having Sauer having died pending this writ of erthem kept open and unobstructed forever, ror, his administratrix and heirs have been of which they cannot be deprived without substituted as parties plaintiff.

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