112 N.Y.S. 619 | N.Y. App. Div. | 1908
The proceeding here under review was instituted in January, 1903, by the rapid transit commissioners appointed under the provisions of chapter 4 of the Laws of 1891, as amended by chapter 752 of the Laws of 1894, for the “purpose of performing the duties relative to the premises which are required to be performed by such commissioners in and by the provisions of such acts of the Legis
The principal questions to be determined upon this appeal, aside from the question of costs, are, first, whether the city of New York is liable to abutting owners, where the fee is not in the city, for the damages resulting to property through the proper construction of subways under the streets; and, second, if it is liable whether the proper measure of. damages has been applied. ■ It must be admitted that the provisions of section 39 of the Rapid Transit Act, under which this proceeding was instituted, are not entirely clear upon the question, and yet’ we are persuaded that a fair reading of the entire enactment, having in mind the purposes to be accomplished and the natural right of individuals to. be secure in their
The Rapid Transit Act of 1891 did not contemplate the construction or operation of underground railroads by the municipality; it was designed to provide for the construction of subways through railroad corporations then existing or to be incorporated; the routes and plans were to be devised by the rapid transit commissioners, and then the franchise was to be sold to a railroad corporation, but the project involved the expenditure of so large a sum of money tliat no private corporation could be found to undertake the task. Accordingly in 1894 the statute was amended (Laws of 1894, chap. 752) so as to provide for the construction of the subway by the municipality. (Sun Publishing Assn. v. Mayor, 152
Considering the city of New York in its capacity of a railroad corporation, not the owner of the fee of Joralemon street, in the borough of Brooklyn,, it is to be observed that it has been determined by a long line of adjudications that railroads, both surface and general, constitute an added burden upon the streets of a municipality, which the owners of the fee have a right to prevent by injunction until they are compensated for the taking of their property. (Peck v. Schenectady R. Co., 170 N. Y. 298, 303, and authorities cited.) The Legislature is to be presumed to have known the law; to have known of the right of the owners of the fee in a street to compensation for extra burdens placed upon the same, and it cannot be that it was ever contemplated on the part of an abutting owner, in surrendering the easement of a street to the public, that he was giving the right to undermine his premises and. to destroy his buildings in the manner which is concédedly done in the construction of the subway now under consideration. It is true, in the case of Radclijf’s Executors (supra) and those which have followed it, it has been held that a municipal corporation, in grading and working the streets, was not liable for consequential damages, due to the fact that the abutting.lands were deprived of lateral support; but in the leading case it was pointed out that the “ defendants are a public corporation; and the act in question was done for the benefit of the public, and under ample authority, if the Legislature had power to grant the authority, without providing for the payment of such consequential damages as have fallen upon the testator.” The streets of a city are a part of the highway system of the State; they are kept open for the benetit, not of the city, but of the State, the municipality being an agent of the State for this purpose, and, as pointed out in the leading case, “ when
In the case now before us it is not necessary to hold that the abutting owners have any easement in the sub-adjacent support of the land in the street because of their mere position as abutting owners, for they are either the owners of the fee, or the fee is in a third party, which could give the defendant, as a private corporation, no power to take the support away from the foundations of the claimants’ premises. But it is important, as bearing upon the probable intention of the Legislature, to note what the courts have said in reference to the rights of abutting owners; and in Kane v. N. Y. E. R. R. Co. (125 N. Y. 164, 180) it was said that “it is undoubtedly the prevailing doctrine of -American jurisprudence that the owner of a lot abutting on a city street, the fee of which is in the municipality, has, by virtue of proximity, special and peculiar rights, facilities and franchises in the street, not common to citizens at large, in the nature of easements therein, constituting property, of which he cannot be deprived by the Legislature or municipality, or by both combined, without compensation.” Surely, if he has these rights in the streets merely as an abutting owner, he must have higher rights as the owner of the fee; and we aré of the opin
The rule is well settled that statutes are presumed to be constitutional, that the Legislature has intended to act within its limita- ’ tions, and that where one of two constructions, each equally reasonable, will render the enactment valid, the construction in harmony with the Constitution is to be given the preference. (People ex rel. Sinkler v. Terry, 108 N. Y. 1, 7.) Section 39 of the Rapid Transit Act (added by Laws of .1894, chap. 752), as amended in 1901 (Laws of 1901, chap. 587), was in effect when this proceeding was instituted, and this section provided as follows:.
“ § 39. For the purpose of constructing or operating any road for the construction and operation of which a contract shall have been made by the board of rapid transit railroad commissioners, including necessary, stations and station approaches, or for the purpose of operating or securing ■ the operation of the same free of interference and right of interference and of action and right of action for damages and otherwise, whether by abutting owners or others, or to provide, lay or maintain conduits, pipes, ways or other means for the transmission of electricity, steam, water, air or other source or means of power or of signals or of messages necessary or convenient for or in the construction or operation of such road, or for the transportation of materials necessary for such construction or operation, or to provide a temporary or permanent way or course for any such conduit, pipe or other means or source of transportation, said board for and in behalf of said., city may acquire, by conveyance or grant to said city to be delivered to the said board and to contain such terms, conditions, provisos and limitations as the said board shall deem-proper, or by condemnation or other legal or other proceedings, as in this act provided, any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whether of owners or abutters, or others, to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference.*113 The word 1 property ’ hereinafter used shall be deemed to include any such real estate, and any rights, terms and interest therein, and any such rights, privileges, franchises and easements, whether of owners, abutting owners, or others.”
This act, intended as it was to deal with underground railroads, is not to be understood as referring to the easements of light, air and access; it is dealing with “ any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whethei'.of owners or abutters, or others.” Certainly land in a highway is real estate, and there is a recognition, not only of the rights of owners, but of abutters, and a provision to enable the city, in its capacity of a private corporation for the construction and operation of a railroad, to purchase, condemn, or otherwise possess itself of all these rights, interests, franchises, etc., subsequent sections of the act providing in detail for the taking of the property. If the terms of this act are not broad enough to provide for the compensation for all property to be taken for the purposes of this railroad what would be necessary to accomplish this purpose ? We are of the opinion that the statute does contemplate the taking of the property rights remaining in the owners of the fee of the street, as well as those abutting upon the same, where the fee is in third parties (this evidently being the construction put upon the act by the commissioners of appraisal in their award to Mr. Notman), in so far as such taking is necessary to the construction and operation of the railroad, and that the contention of the city that title vested in the city of New York upon the filing of the oaths of the commissioners of appraisal as provided in sections 46 and 47 of the act (added' by Laws of 1894, chap. 752, and § 47, amd. by Laws of 1895, chap. 519), and that no damages accruing to the property of the claimants after that date could be taken into consideration in making the awards is without substantial foundation. It is true tha|; it is provided in section 47 (as amd. supra) that the title shall vest upon the filing of the oaths, hut there is no suggestion in the act that the rights of the parties are to be determined entirely by the condition of the property as it exists at that particular moment without regard to the purposes for which the property is taken. The act provides that “ on such filing of the said oath the said city shall be
What then is the rule of damages which the commissioners' of appraisal were to apply \ It is well-settled, whether in equitable actions or in proceedings for the condemnation of property under the power of eminent domain, that the rule .-of damages is the same. (Bohm v. M. E. R. Co., 129 N. Y. 576, 585; Henderson v. N. Y. C. R. R. Co., 78 id. 423, 433.) In the latter case, the plaintiff being the owner of the fee in "a highway which the defendant had appropriated to its own use, the court say : “ If these questions had arisen upon proceedings by the défendant to acquire the right which it has unlawfully taken,'they would properly have been answered in favor of the landowner. Hé would receive an award, first, for the full value of the land talceji, and, second, a fair and adequate compensation for all the injury he had sustained, or would sustain by the making of the railroad over or across his lots. (Kyle v. A. and Roch. R. R. Co., 2 Barb. Ch. 489.) And it would have been proper to ascertain, and for that purpose determine what effect the change made by the defendant in converting the street into a railroad track,, would have upon the plaintiff’s land. In Troy and Boston R. R. Co. v. Lee (13 Barb. 169) the court on reviewing a
In Newman v. M. E. R. Co. (118 N. Y. 618, 623) the court, in discussing the principle upon which compensation is to be made under the General Railroad Law,
Again, in Bohm v. M. E. R. Co. (129 N. Y. 576, 585) the question was before the court as to the proper measure of damages in taking' the rights of an abutting owner, and the court say: “ Generally in taking land the rule may be said to be to pay the full value of the land taken at its market price, and no deductions can be made from that value- for any purpose whatever. Then ris to the
* * * A mere trading or business corporation has no power of taxation, and the State could not delegate such power to it. If such company desire another’s property, it must paya just compensation for it, and that just compensation would not consist in its doing the owner some benefit upon his remaining property.
* * * The value of the easements taken, we have seen, was merely nominal, and the sole question which remains is, therefore, has the owner suffered any damage or injury whatever which has been caused by this taking, for if there have been no damage there can be no recovery. To ascertain the fact, whether there has been damage, an excursion into the realms of possibilities as to what might have happened but did not, is not permitted. The inquiry
The rule thus laid down by the court seems to us to answer all of the objections raised by the appellants in this case. Bo far as the city of New York is concerned, it is, for the' purposes of -this proceeding, a mere private corporation, engaged in a business enterprise ; it is seeking, under the power of eminent domain, to take the property of Messrs. Abbott and Mynderse in Joralemon street, subject to its street easement, and the rule of damages in such a case is the full value of the property actually taken, without deduction, and the fair and.just compensation for the injury done to the' remainder of the property by-reason of such taking, having in mind the market value of' the property before and after the taking. While it is true,■in the case of Mr. Notman, there was no ownership of the fee, it is equally true that the city of New York did not own the fee. The fee was in a third person, and as against the defendant, as a private corporation engaged in the construction of a railroad, Mr. Notman must be deemed to have had an easement
The commissioners in their report award “ the said George B. Abbott the sum of * * * $6,000 as compensation for the portion of his land which has been taken in Joralemon street in this proceeding, including the injury to his property upon the premises above described adjoining which would necessarily arise from the proper construction, maintenance and operation of a tunnel under the surface of Joralemon street in the manner and as set forth in the plans and specifications and contract above referred to.” And in a subsequent portion of the report it is said: “ The commission will modify their report according to the discussion had at the last meeting, so as to make it appear perfectly clear that they have not considered any damage to property which has been caused after the taking by the city in this proceeding; ” and, further, the commissioners say that “ the rule upon which they have rendered their decision is, that the 'amount which is awarded to Judge Abbott and to Mr. Mynderse is the difference in value of their property before the filing of the oaths of the commissioners, and the value immediately after the filing of the oaths of the commissioners, when the title to the property was vested in the city of New York; that if any damage happened by reason of any negligent construction of the contractor, or any damage suffered by reason of the manner in which the work was actually done, beyond such damage as could be contemplated at the time of the vesting of title, such damages can be recovered only in a proper forum, to which the claimants must be limited; that under the Rapid Transit Act the only award that the commissioners in this action can make, is the difference in
It appears to be the contention of the city of New York that at the moment of filing the oaths of the commissioners the title vested in the city, and that the damages to be .assessed are merely those which existed at the time of the transfer of title, without any regard to the purposes for which the property was taken, which would, of course, mean merely that nominal damages could be awarded. This is obviously not the law; it is manifestly not the law under the rules which have been sanctioned by the courts, which, as we have seen, require that the purposes for which the property is to be used are to be taken into consideration in determining whether there has in fact been a damage resulting from the taking as to the property which is not taken. On the part of Messrs. Abbott and Mynderse it is urged that they are entitled to damages for the injury to their premises resulting from the manner of the construction of the subway, as well as for the incidental damages growing out of the obstruction to the street in front.of their premises during the progress of the work.' It seems to us entirely clear that the commissioners have, in the main, adopted the rule which the court-shave long sanctioned; that they have taken their stand at the time that the title vested in the city of New York, and viewing what has been done in the proper construction of this underground railroad, they have fixed the market value of the premises at the time they were taken, as that market value would probably be if the intending purchaser.knew what would be the result of the construction and operation of the railroad, when constructed and operated without negligence, and they have awarded to the claimants the difference between this market value at the time of taking title, and the market value of the premises as they would have been had there been no taking of the property for the purposes of the railroad. The difficulty appears to be, however, that they have excluded from their view some of the elements of damage which should have been taken into consideration in the determining of this question; they were bound, in the language of the court in
In this view of the case we are persuaded that the claimants are entitled to have taken into' consideration the damages resulting to them by reason of the necessary construction of shafts in the street near to their premises, in so far as these would have a tendency to diminish the market value of the property by reason of the consequential damages. It is probably true that damages which are inflicted on abutting owners in the .performance of a public work, reasonably and. properly conducted, are regarded as damnum absque injuria (Bates v. Holbrook (171 N. Y. 460, 469, 470) in the sense that they give rise to no cause of action for the necessary injuries and annoyances, but where a railroad corporation enters a .street and sinks great shafts for the purpose of carrying on a work which .is undermining the claimant’s premises, we think that, the fact may
It appears from the commissioners’ statement of the rule which they applied that they have not taken these matters into consideration. It is true, of course; that they have no jurisdiction of in juries resulting from negligence in the work, but if we are right in concluding that this is a case which requires the application of the rules governing in condemnation proceedings, then they have jurisdiction of every fact growing out of' the construction and operation of the railroad without negligence in so far as such facts have a bearing upon the market value of the property after the taking. They are not to compensate for the physical injuries to the house in the sense that this would be done in an action for negligently causing injuries, but they are to take into consideration all that has been properly done in making use of the property which they have taken in its relation to that which remains of the original plot, and to leave the' claimants in the same position that they occupied on the day that the city of New York took possession of the property; in other words, they are to provide “ just, compensation ” for the property which has been taken, as that term is understood in the jurisprudence of the State, and this involves placing the property owner in the same position, financially, that he would have been in if his property had not been taken on a given date. The transaction is completed on the day that title passes, but the amount of the compensation has to be determined by the result of the taking to the property which remains after such taking, and this can be determined only by taking into consideration every fact connected with the construction and operation which tends to fix the market value of the property, such facts relating back to the day of passing title.
A different result was reached in Sears v. Croocker (184 Mass. 586), but this grows naturally out of the conflict long existing between that jurisdiction and this as to the- question of whether a
The learned court at Special Term denied motions for costs, counsel fees, extra allowances, etc., on the ground that it was without- power to grant the same. In an opinion the court say: “ The commissioners make the application under the provisions of the charter (Laws of 1901, chap. 466, § 998, as amd. by Laws of 1904, chap. 736). That act permits additional allowances to be granted in proceedings instituted pursuant to the provisions of the charter, or ‘ pursuant to the provisions of any other act or law providing for the acquisition of property for any public purpose in the City of New York.’ The law under which these proceedings are taken is not.an act or law providing for the acquisition of property in the City of New York, but is general in its character, and applies to all cities of the State included within its provisions. (Laws of 1891, chap. 4, §1.
The report of the commissioners, together with the order affirming the same, should be reversed, and the case should be sent back
Jenks, Hooker, Gaynor and Miller, JJ., concurred.
Report of commissioners, together with the order confirming same, reversed and the case sent back to the commissioners t redetermine the matters under the rules laid down in the opinion herein, and the orders denying costs and allowances on the ground of lack of power reversed. Formal order to be settled before Mr. Justice Woodward.
See Const. (1874,1884) art. 8, § 11. Revised in Const. (1894) art. 8, § 10.— [Rep.
See Laws of 1810, chap. 140, § 16 etseq., as amd.—- [Rep.
See Laws of 1875, chap. 606, § 20 et seq.— [Rep.
Amd. by Laws of 1894, chap. 752.— [Rep.