Birrell v. New York & Harlem Railroad
198 U.S. 390
SCOTUS
1905
Check Treatment
Mr. Justice McKenna

delivered the opinion of- the court.

Plaintiffs in error are owners of property on Park аvenue in the city of New York, and brought these actions in the' Supreme Court of the county of New York agаinst the defendants in error for damages for the erection, and for an injunction against the continuance of, the viaduct described in Muhlker v. New York & Harlem Railroad Company, 197 U. S. 544. The Supreme Court fоund that the viaduct and the operation of trains thеreon were and had been from certain datеs which were mentioned, a continuous trespass upon the easements of light, air and access appurtenant to the property of plaintiffs ‍​‌​‌​​‌‌‌​​‌​​​​​​‌‌​​​​​​‌​​​​​​‌​​​‌​‌​​​‌​​‌​‍in еrror, and that they sustained damages, respectively, as follows: Birrell in thé sum of $3,360, depreciation in the rental value of her property, , and the sum of $7,050 damages to the fee.; Patrick Kierns, as executor and trustee of *391 John Kierns, deceased, in the sum of $1,296, depreciation of rental value of his property, and $2,525 injury to the fee. Money judgments were- entered for thе depreciation of the rental value of thе respective properties, and it was decreed that unless the right was acquired by the defendants to maintain, the structure and operate the railroad by the payment of the sums awarded for the damages to the fee, injunctions should become operative against the structure and railroad. The judgments were affirmed by the Appellate Division, but were rеversed- by the Court' of Appeals. Upon the return of the cases to the Supreme Court judgments were entered dismissing the complaints and these writs of error were then sued out.

In the Birrell case the Court of Appeals contented itself with ‍​‌​‌​​‌‌‌​​‌​​​​​​‌‌​​​​​​‌​​​​​​‌​​​‌​‌​​​‌​​‌​‍a simple reversal of the judgment; in the Kierns case a per curiam opinion was filed as follows:

“Judgment reversed and the complaint dismissed, without costs, upon the authority of Fries v. New York & Harlem R. R. Co., 169 N. Y. 270, and Muhlker v. New York & Harlem R. R. Co., 173 N. Y. 549.”

Judge Vann filed a concurring opiniоn, ‍​‌​‌​​‌‌‌​​‌​​​​​​‌‌​​​​​​‌​​​​​​‌​​​‌​‌​​​‌​​‌​‍which he concluded as follows:

“I concurred in the dissenting opinion of Judge Cullen in the Fries case and should have concurred in that of Judge Bartlett in the Muhlker case had I sat when it was argued, but I regard the ‍​‌​‌​​‌‌‌​​‌​​​​​​‌‌​​​​​​‌​​​​​​‌​​​‌​‌​​​‌​​‌​‍question as now settled, and by the rule of stare decisis I am compelled to vote for reversal.”

The Muhlker case camp to this court and was reversed, 197 U. S. 544. There are some differences in the facts iii the сases at bar from that case, but none in our judgment which withdraw them from the principles there expressеd. And, as we have seen, a substantial identity in the cases was promounced by the courts of New York.

Counsel, it is true, have submitted some additional considerations based on the act of ‍​‌​‌​​‌‌‌​​‌​​​​​​‌‌​​​​​​‌​​​​​​‌​​​‌​‌​​​‌​​‌​‍1892 under which the viaduct was еrected, and on other laws of New York, to which con *392 siderations we have given due attention, but we do not think .they demand or would justify a change of our ruling.

It follоws, therefore, that the judgments should be and they are hereby reversed, and the causes remanded for further proceedings not inconsistent with this. opinion.

The Chief Justice, Mr. Justice White, Mr. Justice Peck-ham and Mr. Justice Holmes dissent.