27 N.Y.S. 1034 | N.Y. Sup. Ct. | 1894
This action was brought in equity to restrain the further maintenance and operation of the defendants’ road in front of the premises of the plaintiff, situated on Third avenue, in the city of New York, and incidentally to recover damages already sustained by the plaintiff to the fee, and for loss of rents of these premises caused- by the maintenance and operation of the defendants’ railroad. Upon the trial it appeared that prior to June, 1885, the premises in question were owned by the mayor, aldermen, and commonalty of the city of New York, and on such date were conveyed to one Kern, who on the 15th of July, 1885, conveyed the same to the plaintiff. Prior to this time the defendant the New York Elevated Railway Company had erected its road along Third avenue, in front of the premises which were subsequently conveyed to the plaintiff, pursuant to authority of law,—the consent in writing of the corporation of the city of New York being first duly given to the construction of said road,—and were operating the said road at the time of the conveyance to said Kern, and by Kern to the plaintiff. Upon this state of facts, the court below dismissed the complaint, and from the judgment thereupon entered this appeal is taken.
We might very well base our decision upon this appeal upon the opinion delivered by the judge in the court below; he showing that the mayor, aldermen, and commonalty owning the fee of the street of Third avenue for public use, when they granted the easement of such street, pursuant to legislative authority, necessarily conveyed all rights which, as the owners of property abutting upon said street, they might possess therein. In other words, that the corporation of the city of New York, being the owner of the premises now claimed by the plaintiff, and also of the fee of the street, (impressed, it is true, with a public use,) when it consented to the construction of this railway upon said street, it parted with all claim to compensation for the use of easements in said street by the railroad company, which affected its property abutting thereon.
But there is another view of this case which seems to be fatal to the right of the plaintiff to maintain this action. The road, the operation of which this action is brought to enjoin, was built by and with the consent of the owners of the premises in question; and it would be inequitable now to permit a subsequent owner, buying said premises with knowledge of such consent, to enjoin the operation of the road, in violation of its terms. Even if an action- for