75 N.Y.S. 824 | N.Y. App. Div. | 1902
This action has been before the courts since May, 1890, and was brought for the purpose of recovering damages alleged to have been sustained by the original plaintiff by reason of the closing of a certain highway in front of his premises, occupied as a hotel. The action was originally brought by Charles W. Buchholz against the present defendant in May, 1890; was tried December 10, 1890,
We are of opinion that the court in Buchholz v. N. Y., L. E. & W. R. R. Co. (148 N. Y. 640), clearly indicated, the law of this case,, and that it was error to allow damages to the plaintiff'for losses sustained after December 17,1891, on which date the defendant complied with the conditions named by the village of Port Jervis for accepting the alteration in the course of the street. Charles W. Buchholz, the original plaintiff, was the owner of certain premises located' upon and along Main street, in the village of Port Jervis, a public street or highway, of said village, which street crossed the tracks of the defendant nearly at right angles immediately adjacent to the lands of the plaintiff. This was a grade crossing, and Main street was one of the much-traveled thoroughfares of the village. Some time prior to March 4, 1890, the defendant, for the purpose of avoiding this grade crossing, constructed a roadway over its own lands from a point on Main street west of the plaintiff’s property, crossing its tracks by means of a bridge, returning to Main street at' a point some distance east of the plaintiff’s property, and. on the day mentioned threw this new way open to the public, at the same time erecting a barricade across the old roadway 'and tearing up the
The learned court at Special Term, notwithstanding this fact, found as a conclusion of law that the “ decrease of rental value hereby fixed and allowed at the sum of six hundred dollars, relates in this action, to the period from the time when said street was blockaded by the defendant on the 4th day of March, 1890, up to and including the date when defendant’s management and control of said railroad passed to the hands and control of receivers, to wit: the 25th day of July, 1893.” The defendant excepted to the findings of fact and to the conclusion of law above stated, and we are to determine whether, as matter of law, the plaintiff was entitled to damages as against this defendant, for the time which elapsed between the acceptance of the new roadway by the village of Port Jervis and the passing of the property of the defendant into the hands of receivers; for, as we understand it, the other questions were determined upon the previous appeal to the court of last resort. The determination in that case was that the plaintiff had a right to recover his damages up to the time of that trial, and we think that
It is conceded that, by the provisions of section 58 of the charter of the village of Port Jervis (Laws of 1873, chap. 370), the trustees had “ power tó lay out, open, make, improve, straighten, widen, extend, alter, repair and discontinue streets, highways alleys, lanes, crosswalks, drains and sewers in said village, and may lay the same through any lands or in closure, and take and appropriate the lands necessary for such improvements; and it shall be the duty of said trustees to direct and regulate the laying out, making and grading of the same, and to cause the same to be repaired and cleansed from time to time upon requirements of the following section.” The next section provides that before “ a street or part of a street can be ordered by the trustees, to be laid out, opened, extended, widened, graded, paved, macadamized, improved or discontinued by means of an assessment as hereinafter prescribed, a notice of the application,” etc., must be made,, with certain formalities, but it does, not relate in any manner to the .power to alter streets expressly granted to the trustees, by section 58, and this we believe to be conclusive upon the question now before us. An alteration of a highway, as the expression is used, generally refers to a change in the course- thereof, and, therefore, necessarily involves to some extent the establishment of a new highway and the vacation of the part of the old highway for which the substitution is made. (15 Am. & Eng. Ency. of Law [2d ed.], 392, 393, and authorities cited in notes 1, 2, 3 and 4.) In People ex rel. Bowen v. Jones (63 N. Y. 306) the court had under consideration the provisions of chapter 455 of the Laws of 1847, and it was held that a certificate of freeholders as to the necessity of laying out or altering a highway through improved lands was not necessary, where the owner consents thereto and files with the town clerk a release of damages, and that a highway running obliquely across the farm of
There appears to be no very good reason why the case should be retried, and if the plaintiff is willing to accept the rate of damages found by the learned court at Special Term, for the time that the defendant unlawfully obstructed the highway, which was up to the time that the defendant complied with the conditions of the acceptance by the village, then the judgment may be modified in that respect, and, as so modified, affirmed, Otherwise, the judgment appealed from should be reversed and a new trial granted, costs to abide the. event.
All concurred; Bartlett and Jenks, JJ., in result; Hirschberg, J., not sitting.