Gould v. Hudson River Railroad

12 Barb. 616 | N.Y. Sup. Ct. | 1852

By the Courts

Barctjlo, J.

Certain well established legal principles lie at the foundation of this case, and enable us to dispose of it with very little hesitation. In the first place it is conceded that the right of soil of a riparian owner of lands bounded on the sea, or by navigable rivers, where the tide ebbs and flows, extends only to the ordinary high water mark. Secondly. It is clear that the land below high water mark belongs, in England, to the crown, and here, to the state. Thirdly. All such navigable rivers are public highways, upon which all persons have a right to navigate to and fro in the prosecution of their lawful business. Fourthly. Ho person has a right to obstruct the navigation by any permanent erection, so as to prevent the passage of vessels up and down the river. Fifthly. The state has a right to construct or authorize the construction of wharves, piers, breakwaters and other embankments which tend to improve the navigation, or do not interfere therewith. Sixthly. The right of fishing in such waters is a common right, subject, however, to the use of the waters as a highway and to the regulations prescribed by the supreme power.

By an application of these principles we will proceed to resolve the questions presented by the case before us.

The Hudson river is a navigable river, in which the tide ebbs and flows. The land, therefore, below ordinary high water mark opposite to the plaintiff’s premises, belongs to the people of the state in their sovereign capacity. They have by their legislature authorized the Hudson River Railroad Company to take possession of a portion of this their land and use it for the purpose of constructing the road. It is not pretended that the railroad obstructs the free use of the channel of the river, or impairs the navigation thereof for general purposes. The road itself partakes of the character of a highway in some respects, and is, at all events, sanctioned by our courts as a public improvement and a public benefit. (Bloodgood v. Mohawk and Hudson Railroad Co., 18 Wend. 9.) In all this I am unable to perceive that the legislature has transcended its authority in making the grant to the defendants, or that the defendants have made any improper use of the privileges conferred upon them; or that the plaintiff could sustain any injury which is recognized by the law as actionable. If he is incommoded by the road, it is the ordinary case of inconvenience resulting from one proprietor using his land for a purpose which may indirectly work a prejudice to his neighbors. The plaintiff is in the condition of thousands whose lands are deteriorated in value in consequence of improvements lawfully made upon the lands of others. One man builds a fine two story dwelling house on his city lot; and the next year the adjoining owner erects a three story building against it, which towers above, and closes his windows on one side: and the next year the owner of the lot on the other side puts up a stable, or a grogshop, or gambling house; and, between the two, the first builder finds the market value of his house diminished one half. But it is damnum absque injuria. Although at first it seems hard, yet a little reflection will satisfy any one that the rule is founded in good sense. Why should not his neighbors have the same right to use their lots for such lawful purposes as they please, as well as he ? Or why should he, by first building, be permitted to dictate to them what uses they shall make of their property ?

Indeed the cases go much further than this. It has been held that a person may, for the purpose of laying the foundation of a house in his own land, dig below the foundation of the adjoining house, although the walls of the latter are thereby cracked and injured, (17 John. 92,) or even thrown down; and that he may pull down his own house, although the adjoining house falls, for the want of the support which it had; and that he may dig down and carry away the earth from his land, although the adjoining house thereby falls. (12 Mass. Rep. 220.)

So it has been frequently decided that no action lies for consequential injuries resulting to property from the opening and improving streets and highways; although such improvements often seriously affect and sometimes nearly destroy the value of certain property. Cutting down a hill may leave a dwelling house, previously erected, perched upon an eminence so as to be almost inaccessible: or, filling up a valley may leave it half buried by the street.

If the land itself is taken for the public use, then the constitution requires that compensation must be made. But, for consequential injuries merely, no action will lie. The erection of one class of public buildings, such as a city hall or court house, may enhance the value of all the neighboring property: while a jail, lunatic asylum or hospital may, in like manner, diminish the value of the adjacent buildings. But in the one cáse no tribute is exacted for benefits, and in the other, no compensation is made for the injuries. They are incidental consequences of the location, of which the owners receive the benefit or suffer the loss, according to their good or bad fortune. The principle running through this doctrine I apprehend to be one of necessity; for it is obvious that improvements could not be made to keep pace with the spirit of the age, if the precise consequences must in all cases be taken into the account and a moneyed compensation be made to all who are injuriously affected by them. The consequences of a great public improvement, like the Hudson River Railroad, are by no means confined to those who live in its immediate vicinity. They extend far and wide. All the freighting establishments on the river—all the various steamboat interests—must be affected by this road. Even the farmers from the country, for many miles around, who may be accustomed to deposit their produce on its shores, may be more or less incommoded or benefited. The rule therefore that would sanction this action would invite thousands of suits, which must prove fatal to this and all similar enterprises.

I admit that the principle which forbids a compensation for injuries consequent upon improvements, is equally fatal to the doctrine which exacts from the owners of property the value of the incidental benefits which flow from opening and improving streets in their vicinity, although that doctrine has recently been sanctioned by the court of appeals. (People v. Mayor, &c. of Brooklyn, 4 Comst. 419.) But the same book contains clear and able and sound opinions of Judge Bronson, which establish fully, both by reason and authority, the principle which we apply to the present case. (Radcliff’s Ex’rs v. Mayor, &c. of Brooklyn, 4 Comst. 195.) If those two cases are inconsistent, we leave them to be reconciled by those whose business it is.

[Kings General Term, April 5, 1852.

As we understand the law, this action can not be maintained.

Judgment of the special term affirmed.

Morse, Barculo and S. B. Strong, Justices.]