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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 land abutting on public highways has been a fruitful source of litigation in the courts of all the states, and the decisions have been conflicting, and often in the same state irreconcilable in principle. The courts have modified or overruled their own decisions, and each state has in the end fixed and limited, by legislation or judicial decision, the rights of abutting owners in accordance with its own view of the law and public policy. As has already been pointed out, this court has neither the right nor the duty to reconcile these conflicting decisions nor to reduce the law of the various states to a uniform rule which it shall announce and impose. Upon the ground, then, that under the law of New York, as determined by its highest court, the plaintiff never owned the easements which he claimed, and that therefore there was no property taken, we hold that no violation of the 14th Amendment is shown.

rately stated, then the case comes within the authority of Muhlker v. New York & H. R. Co. 197 U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. 522, which holds that, when the court of appeals has once interpreted the contract existing between the landowner and the city, that interpretation becomes a part of the contract, upon which one acquiring land may rely, and that any subsequent change of it to his injury impairs the obligation of the contract. It will be observed that it is an essential part of the plaintiff's case that he should show that his contract had been' interpreted in the manner he states. It therefore becomes necessary to examine the Story Case, wherein, he asserts, such an interpretation was made. In order to ascertain precisely what that case decided we may consider other decisions of the court of appeals, though they are later in time than the acquisition of the plaintiff's title.

deed of the city the land was bounded on the street and contained a covenant that it should "forever thereafter continue and be for the free and common passage of, and as public streets and ways for, the inhabitants of the said city, and all others pass

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 courts of New York have expressed the rights of owners of land abutting upon public streets to and over those streets in terms of contract rather than in terms of title. In the city of New York the city owns the fee of the public streets (whethering and returning through or by the same, laid out under the civil law of the Dutch régime, or as the result of conveyances between the city and the owners of land, or by condemnation proceedings under the statutory law of the state) upon a trust that they shall forever be kept open as public streets, which is regarded as a covenant running with the abutting land. Accepting, for the purposes of this discussion, the view that the plaintiff's rights have their origin in a contract, then it must be that the terms of the trust and the extent of the resulting covenant are for the courts of New York finally to decide and limit,

in like manner as the other streets of the same city now are, or lawfully ought to be." It was held that by virtue of this covenant, which ran with the land, the plaintiff was entitled to easements in the street of access, and of free and uninterrupted passage of light and air; that the easements were property within the meaning of the Constitution of the state, and could not lawfully be taken from their owner without compensation, and that the erection of the elevated structure was a taking. The decision rested upon the view that the 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-
forth (p. 156), "in the street surface intend-
ed; but the elevation of a structure useless
for general street purposes, and as foreign
thereto as the house in Vesey street (Corn-
ing v. Lowerre, 6 Johns. Ch. 439) or the
freight depot (Barney v. Keokuk, 94 U. S.
324, 24 L. ed. 224)."

"The question here presented," said Judge Tracy (p. 174, Am. Rep. p. 156), "is not whether the legislature has the power to regulate and control the public uses of the public streets of the city, but whether it has the power to grant to a railroad corporation authority to take possession of such streets and appropriate them to uses inconsistent with and destructive of their continued use as open public streets of the city."

In the case of Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 268, 10 N. E. 528, decided in 1887, the plaintiff held title by mesne conveyances from the owner, from whom the land for the street had the street had been acquired by condemnation under a statute which provided that the land thus taken should be held "in trust, nevertheless that the same be appropriated and kept open for and as a part of a public street .. forever, in like manner as the other public streets . . . in the said in the said city are, and of right ought to be." It was contended that the principle of the Story Case should be confined to those who, like Story, held title under a grant from the city with a covenant that the street should be kept open. But the court held that there was no legal difference between the two cases, and that from the condemnation statute a covenant running with the land was implied for the benefit of its owners, and that the plaintiff was entitled to recover damages for the injury to his easements of access, light, and air. But, as in the Story Case, the extent of the decision was carefully limited. "The logical effect of the decision in the Story Case," said Chief Judge Ruger (p. 292, N. E. p. 533), "is to so construe the Constitution as to operate as a restriction upon the legislative power over the public streets opened under the act of 1813, and confine its exercise to such legislation as shall authorize their use for street purposes alone. Whenever any other use is attempted to be authorized, it exceeds its constitutional authority. Statutes relating to public streets which attempt to authorize their use for additional street uses are obviously within the power of the legislature to enact."

In the case of Kane v. New York Elev. R. Co. 125 N. Y. 164, 11 L.R.A. 640, 26 N. E. 278, decided in 1891, it appeared that the

the Dutch régime, when the town had absolute title to the fee of the streets, with no easement over them in favor of the abutting land. But it was held by the court that by virtue of certain legislation, not necessary here to be stated, New York city owns the fee in all of its streets upon a trust, both for the public and the abutting land, that they shall forever be kept open as public streets, and that as to an abutting owner this trust cannot be violated without compensation. But in the opinion the limits of the principle were again carefully guarded. It was said by Judge Andrews (p. 175, L.R.A. p. 642, N. E. p. 278): "Under the decisions made there seems to be no longer any doubt in this state that streets in a city laid out and opened under charter provisions may, under legislative and municipal authority, be used for any public use consistent with their preservation as public streets, and this, although the use may be new, and may seem to impose an additional burden, and may subject lot owners to injury. The mere disturbance of their rights of light, air, and access by the imposition of a new street use must be borne, and gives no right of action." And again (p. 185, L.R.A. p. 645, N. E. p. 282): "We conclude this part of the case with the remark that neither the Story nor the Lahr Case imposes any limitation upon the legislative power over streets for street uses. They simply hold that the trust upon which streets are held cannot be subverted by devoting them to other and inconsistent uses."

It would be difficult for words to show more clearly than those quoted from the opinions that such a case as that now before us was not within the scope of the decisions or of the reasons upon which they were founded. The difference between a structure erected for the exclusive use of a railroad and one erected for the general use of the public was sharply defined. It was only the former which the court had in view. That the structure was elevated, and for that reason affected access, light, and air, was an important element in the decisions, but it was not the only essential element. The structures in these cases were held to violate the landowners' rights, not only because they were elevated and thereby obstructed access, light, and air, but also because they were designed for the exclusive and permanent use of private corporations. The limitation of the scope of the decision to such structures, erected for such purposes, appears not only in the decisions themselves, but quite clearly from subsequent decisions of the court of appeals. In the case of Fobes v. Rome, W. &

"It was not intended in the Story Case to overrule or change the law in regard to steam surface railroads. The case embodied the application of what was regarded as well-established principles of law to a new combination of facts, such facts amounting, as was determined, to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant, and such permanent obstruction and total and exclusive use, it was further held, amounted to a taking of some portion of the plaintiff's easement in the street for the purpose of furnishing light, air, and access to his adjoining lot. This absolute and permanent obstruction of the street, and this total and exclusive use of a portion thereof by the defendant were accomplished by the erection of a structure for the elevated railroad of defendant; which structure is fully described in the case as reported.

O. 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 bridge with inclined approaches and a guard wall, to carry travel over a railroad, although the structure impaired the access to his land. We are not concerned with the question whether the distinction between an elevated structure for the exclusive use of a corporation and the same structure for the purposes of public travel is, so far as an abutting landowner is concerned, a just or harsh one, provided it is a clear distinction based upon real differences. We think that before the plaintiff had acquired his title the law of New York had plainly drawn this distinction. The highest court of the state had held that the contract of the owner of land abutting on streets entitled him to the right of unimpaired access and uninterrupted circulation of light and air as against an elevated structure erected for the exclusive use of a private corporation; had, with scrupulous care, refrained from holding that he had the same right as against an elevated structure of the same kind erected for the purpose of public travel; and had pointed out plainly the essential distinction between the two cases. This distinction, as we have already seen, has been made or approved by the courts of other states wherever the occasion to consider it arose, and it is a real and substantial distinction which arises out of the trust upon which the public owns the public highways.

"The structure, by the mere fact of its existence in the street, permanently and at every moment of the day took away from the plaintiff some portion of the light and air which otherwise would have reached him, and, in a degree very appreciable, interfered with and took away from him his facility of access to his lot; such interference not being intermittent and caused by the temporary use of the street by the passage of the vehicles of the defendant while it was operating its road through the street, but caused by the iron posts and by the superstructure imposed thereon, and existing for every moment of the day and night. Such a permanent, total, exclusive,

and absolute appropriation of a portion of the street as this structure amounted to was held to be illegal and wholly beyond any legitimate or lawful use of a public street. The taking of the property of the plaintiff in that case was held to follow upon the permanent and exclusive nature of the appropriation by the defendant of the public street, or of some portion thereof."

The distinction between the erection of an elevated structure for the exclusive use of a private corporation and the same structure for the use of public travel is clearly illustrated in the contrast in the decisions of Reining v. New York, L. & W. R. Co. 128 N. Y. 157, 14 L.R.A. 133, 28 N. E. 640, and Talbot v. New York & H. R. Co. 151 N. Y. 155, 45 N. E. 382. In the first

The trust upon which streets are held is that they shall be devoted to the uses of public travel. When they, or a substantial part of them, are turned over to the exclusive use of a single person or corpora

tion, we see no reason why a state court may not hold that it is a perversion of their legitimate uses, a violation of the trust, and the imposition of a new servitude. But the same court may consistently hold that with the acquisition of the fee, and in accordance with the trust, the city obtained the right to use the surface, the soil below, and the space above the surface, in any manner which is plainly designed to promote the ease, facility, and safety of all those who may desire to travel upon the streets; and that the rights attached to the adjoining land, or held by contract by its owner, are subordinate to such uses, whether they were foreseen or not when the street was laid out. In earlier and simpler times the surface of the streets was enough to accommodate all travel. But under the

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 requirements of public travel are largely increased. Sometimes the increased demands may be met by subways and sometimes by viaducts. The construction of either solely for public travel may well be held by a state court to be a reasonable adaptation of the streets to the uses for which they were primarily designed. What we might hold on these questions where we had full jurisdiction of the subject, it is not necessary here even to consider.

The judgment is affirmed.

Mr. Justice McKenna, dissenting:

I am unable to agree with the opinion and judgment of the court. I think this case cannot be distinguished in principle from Muhlker v. New York & H. R. Co. 197 U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. 522; Birrell v. New York & H. R. Co. 198 U. S. 390, 49 L. ed. 1096, 25 Sup. Ct. Rep. 667. On the authority of those cases the judgment in this case should be reversed. Those cases were determined by 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 structures there described are what are known as elevated railroads, and may be presumed to be familiar, and a structure of substantially similar character was the subject of the controversy in Muhlker v. New & H. R. Co. Its characteristic was elevation above the surface of the street, and tion above the surface of the street, and this was the point of the decisions. Let said the court, "is the extent of this easeme quote from the Story Case: "But what," ment? What rights or privileges are cured thereby? Generally, it may be said, it is to have the street kept open, so that from it access may be had to the lot, and light and air furnished across the open way. 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 again, it was said that the agreement-grant from the citywas, "that if the grantee would buy the lot abutting on the street he might have the use of light and air over the open space [italics mine] designated as a street." And yet again (and the passage was quoted in the Muhlker Case, page 566, L. ed. p. 876, Sup. Ct. Rep. p. 526): "Before any interest passed to the city the owner of the land The public purpose of a street requires of had from it the benefit of air and light. the soil the surface only." The Lahr Case repeated the principle. And it was said in the Muhlker Case, in effect, that the disregard of the distinction between the surface of a street and the space above the surface would leave "remaining no vital element of the elevated railroad cases."

York & H. R. Co. and Birrell v. New York

In basing its judgment on the broad, plain, and approved distinction between the abandonment of the street to private uses and its further devotion to public uses, the court below overruled none of its decisions, but, on the contrary, acted upon the principles which they clearly declared. The plaintiff, therefore, has not shown that in his case the state court has changed, to his injury, the interpretation of his contract with the city, which it had previously made, and upon which he had the right to rely. The case at bar is not within the rely. The case at bar is not within the authority of the Muhlker Case. When Muhlker acquired his title the elevated railroad cases had declared the law of New York, and it was here held that he had the right to rely upon his contract as in them it had been interpreted. The structure complained of was in the Muhlker Case, as in the elevated railroad case, one devoted to the exclusive use of a private corporation. This court, in order to obtain jurisdiction and to declare that a Federal right was violated, was obliged to hold, and did hold, that the two cases were identical, and that in deciding the Muhlker Case the court of appeals had in effect overruled the elevated railroad cases, and this view was supported by the court of appeals itself in Lewis v. New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540, where a plaintiff in like situation with Muhlker had obtained damages for exactly the same structure. The theory upon which the Muhlker Case stands and upon which it was put in the opinion of the court, is that, in deciding against Muhlker, the state court had overruled its own decisions, and changed the interpretation of the contract upon which he had the right to rely. But the fundamental fact upon which the decision in the Muhlker Case rested, present there, is absent in the 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 gen

eral street purposes." I may accept the limitation. The structure in the case at bar comes within the characterization. It is useless for general street purposes. It obstructs the frontage of abutting lots and affords no access to or from them in any proper sense. There is a descent by stairs from it to the street below, but for pedestrians only-necessarily not for vehicles. | But there is a like descent by stairs from elevated railroads to streets below, but this did not save the roads from liability for abutting property.

being compensated." The contentions express the invocation of the property owner of the court, and the court responded to and sustained it. Is not that response rejected in the case at bar? The structure in the case towers as high as a house of five stories and is planted on columns, the size and strength and number of which can easily be imagined. Does it need any comment to describe its effect? The plaintiffs have really no access to it from their land or from any building that may be put upon their land, because they may not bridge the intervening gap. They have no other access. to it but that which I have described. The public has no access from it to plaintiffs' property but that which I have described.

The buildings that stood upon the land when the structure was built were practically under its shadow. Any buildings that may be erected will be equally so. "To get above it," plaintiffs' counsel asserts, "the abutter must build up five stories," and it is only from such elevation that he may contemplate the traffic that passes his premises. And even then, counsel also asserts, light can only reach the abutter "through a slit 10 feet wide between his eaves and the edge of the structure." And to this

It must be borne in mind that this case is not disposed of by making a contrast between the passage of a railroad and the traffic on a street. The contrast is catching and only seems important. In New York a railroad is a street use and can be imposed on the surface of a street without liability for consequential damages, and this even if it be a steam railroad. Fobes v. Rome, W. & O. R. Co. 121 N. Y. 505, 8 L.R.A. 453, 24 N. E. 919. The distinction, therefore, was necessary to be made between the surface and the open space over the surface. And we have seen that this distinction was noted in the cases and determined their judgment. In other words, the use of a street by a railroad was de-measure his right to an unobstructed frontcided to be a proper street use, and, therefore, whether put upon the surface or above the surface, retained that character. In either place it was a proper street use and damages could only have been consequent to the elevation of the road above the surface, to which, to quote again the Story Case, the "public purpose of a street" attached only.

The elevated railroad cases get significance from the arguments of counsel. Such arguments, of course, are not necessarily a test of the decision. But they may be. The opinion may respond accurately to them. We find from the report of the Story Case that the argument of Mr. Evarts for the plaintiff was that "a permanent structure above the street surface, and an encroachment thereby and by its use upon the appurtenant easement of the open frontage held by the abutting proprietors, was not covered by the original condemnation for the public easement, which was limited to a maintenance of such open streets and perpetual frontage. People v. Kerr, 27 N. Y. 188; Craig v. Rochester City & B. R. Co. 39 N. Y. 404."

Mr. Choate, also for the property owners, submitted the following: "The abutting owners on the streets have an interest in the nature of property for all time in the streets above their surface, and in having them kept open and unobstructed forever, of which they cannot be deprived without

age, his right to unobstructed light and air, has been reduced. Is it possible that the law can see no legal detriment in this, no impairment of the abutter's grant from the city, no right to compensation?

I am not insensible of the strength of the reasoning by which this court sustains that conclusion, but certainly all lawyers would not assent to it. Indeed, one must be a lawyer to assent to it. At times there seems to be a legal result which takes no account of the obviously practical result. At times there seems to come an antithesis between legal sense and common sense.

I say this in no reproach of the law and its judgments. I say it in no reproach to the opinion of the court. I recognize it proceeds upon distinctions which are intelligible, although I do not assent to them. My purpose is only to express the view that the legal opinion which I hold has justification in the serious practical consequences

Sauer, became the owner of the property, When the original plaintiff, George there were standing upon it certain frame buildings which had been used as a pleasure resort. In 1890 he enlarged and improved the buildings at great expense and occupied them at the time of the erection of the structure in controversy. These buildings is now vacant. And it may be noted that were destroyed in 1897 by fire, and the land Sauer having died pending this writ of error, his administratrix and heirs have been substituted as parties plaintiff.

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