*1 5U TERM, 1904. of
Statement the Case. MUHLKER v. NEW YORK HARLEM AND RAILROAD
COMPANY. ERROR, TO THE THE STATE SUPREME COURT OE OF NEW YORK. February24, April 99. 1905, 27, 1905. No. December Argued Reargued Decided permission give or of no command the State can to invade rights private property purpose payment for even without of ' abutting deprived compensation. An of his owner cannot easements compensation light of without and air above the surface the street of those, interfering formerly with easements was on because structure gave raising it him and the of to an elevated structure an surface of increase in his easement access. cases, by Appeals, The Elevated Railroad decided of established Court light law the State of New York to be the easement of abutting property air of owners the streets of New York above the in. protection Constitution to bo and within the of the by compensation in an case of its diminution elevated structure. property,'abutting purchasers of on streets the assured to Such decisions city streets, of New York in to the trust whereof had been deeded beds by contract and light could air were secured that their easements of and tho courts compensation; without not bo taken from them away rights to take chango modify decisions so as thoir cannot State ' protection acquired and are within which have been contract the Federal Constitution. existing contract there is determines for itself whether This court may con- in time diversity the first is a of state decisions where there it. under obligation measure contract and the of the stitute it, York New requiring of the pursuance statute raising, in state City, structure, avenue, York Park New Harlem Railroad street, an ele- below, on, formerly partially the surface owner, structure, in this case had deprived abutting who vated Elevated the Court of purchased Appeals after the decisions air and light and cases, property right in his easements Railroad compen- he was entitled United States the Constitution under it, the structure deprived of either because therefor and cannot be sation access to requiring or because the under state statute was erected raising structure. property was increased his rail- a certain elevated the use of enjoin sues to Plaintiff York, city of New avenue, Park in the road structure value unless fee payment of his premises, front v. HARLEM RAILROAD CO. MÜÍILKER Statement of the Case. of certain easements of air and light, access other fights *2 his lie also appurtenant premises. prays damages of injury year 1890 to-time trial. sustained From the evidence in the case Court found Supreme been since 1888 the owner of lot of land corner of Park avenue and northwesterly One Hundred in street, he, and Fifteenth on which 1891, five-story erected brick' and that there were said lot building, appurtenant “ and certain of in and building easements air access light, said Park over in of said The avenue, premises.” front de- The fendant, New York and Harlem is Railroad Company, and was all the mentioned of times herein the owner during a railroad and railroad structures in Park of avenue, in front such premises, and the New York Central and Hudson River Railroad is the lessee of Company said railroad and structures under lease 1, 1873, dated for a term of four hundred April one years; that said railroad, prior 1872, was operated on two tracks the surface of said laid avenue along the center in front of said thereof, premises.
In pursuance of of chapter 702 Laws 1872 certain were made in the in changes premises, railroad front of said years 1874, between the 1872 and of whereby number tracks was increased from two to four and laid were along of avenue, and at the line of center south said were premises surface, at and at line said the north of laid premises in a trench about five and a half feet below the In surface. front of said the railroad was bounded on both sides ma- premises walls about three feet above off sonry high surface, cut across said avenue immediately front said premises. access York New Centr-al and Húdson River Railroad Com- in 1872 its over the pany operated trains railroad front said premises, and continued to do so until February 1897. are expressed facts finding other court as follows: pursuant
“Fourth. That the Laws chapter 1892, there was constructed Park along avenue, front
vol. cxcvii—35 TERM, Case.
Statement March; April, 1893, said between premises, plaintiff’s iron and steel; elevated railroad structure of a new permanent railroad in premises', front of said about plaintiff’s that said on a solid wide and consists of four tracks laid roadbed, feet about 31 above the surface a mean elevation of feet having and in roadbed is the sides avenue, along of said girded each 4 inches solid iron 7 feet and high, the center girders, are six columns, iron which there di- supported by and is said and that the work plaintiff’s in front rectly premises; said elevated structure constructing permanent under the of a created said done board act. supervision .was That The New York Central “Fifth. the defendant River Railroad laid tracks on Company Hudson said March, elevated railroad structure about permanent *3 from said date down to February. 16, 1897, operated in front of said trains of cars drawn by thereon premises for the and material used in engines freight steam carriage structure, construction of said which service said de- was defendant paid; February 16, fendant that said on 1897, to said operate permanently upon perma- began regularly of plaintiff’s nent elevated railroad structure front said drawn trains, its steam by locomotives. premises passenger That and fee the rental values of the plaintiff’s “Sixth. work by the premises .constructing said said damaged elevated railroad structure and by existence permanent same from to also 1893, 1896; by said April, March, and the ’thereon of trains, structure operation aforesaid, March, 1896, February 16, from to but that neither of 1899, Is defendants liable for such damage. said That said “Seventh. structure and permanent opera- - New said York Central and Hudson defendant, tion River Railroad trains since Company, passenger theroon have been 16, are and a continuous February 1897, trespass and air easements to upon plaintiff’s light appurtenant said hereinbefore described as premises, frontage, his having Parle feet on said avenue and a depth of 76 10 inches v. HARLEM RAILROAD CO. MUHLKER Statement Case. street; solely of said on 115th consequence feet from other any causes, and aside rental trespass, February from premises 16, value of said depreciated usable sum hun- 10, 1900, October of fourteen down to below what said rental value would have ($1,400.) dred dollars if there in de- been said been.no during period, change railroad in Park avenue in of said fendant’s said front premises of the Laws of to that the fee chapter pursuant has been, value of said was October premises 10, 1900, sum of thereby in the three dollars thousand depreciated value, below what said fee would have been on said ($3,000) been no date if tliere had in’defendant’s railroad as .change aforesaid. said sums awarded as That are over
“Eighth. damages any and above and all benefits conferred said premises made, to Laws of pursuant chapter 339 changes which benefits result in part said access improved said afforded said and are premises offset changes, against said caused damages premises by said changes. “Ninth. That the said sums awarded as are ex- damages clusive that would have been occasioned damages by the use plaintiff’s premises maintenance and of the defend- ant’s railroad and structures had been no there in the change same pursuant chapter 339 the Laws of last-mentioned damages defendants are not liable either jointly severally. *4 action
“Tenth. That this was by commenced the plaintiff on January 1897, that the 7, 28, on plaintiff April 1892, began an in action this court the against injunction defendant for of and reason the by defendant’s damage railroad structure of the trains operation thereon in of front the premises described herein, said railroad existed and was operated on said, said and that date; last-mentioned action was discon- on February 27, tinued 1900.”
A decree was entered the use of enjoining the structure and its removal from of front plaintiff’s premises, TERM, 1904.
548 Argument U. for Plaintiff Error. 197 S. should not become injunction but provided it was for the of execution purpose if the. defendants tender operative form of release” them conveyance “a plaintiff air and access to said appurtenant easements of light, sum of with in- $3,000, and tender further premises, were 10, 1900. also Damages terest thereon October $1,400, in the sum of with from. interest plaintiff adjudged Either was 1897, party and costs. February 16, given the foot of the-decree further directions to move at of the same. as to the enforcement entered, In form of the decision judgment involved, the court professed as to the legal principles Harlem Railroad, York & 162 N. follow Lewis New Y. was affirmed the Appellate The Division. It judgment the Court of 173 N. Y. Appeals, was reversed and the the remission court, case, judgment Court and the Supreme made'the judgment complaint costs. The case was then brought without here. dismissed whom Mr. J. C. Root, Bushby Mr. Elihu with Mr. error: Berkeley brief, M. L. established three contracts within Plaintiff the contract Federal Constitution. from Benson grant clause from Poillon in and the contract 1827, be grant conveyances grants Poillon’s being tween grantees, contracts within the protection were executed land Federal Constitution that no provides clause of the law obligation contracts. pass any impairing shall State 87, 136; College Dartmouth Peck, Cranch, Case, Fletcher v. 6 155; Farring Wall. 518, 656; Mathis, McGee v. Wheat. . 683 Tennessee, ton v. the erection preclude these contracts obligations in Fourth This has been an elevated railroad avenue. Brook law of New York. Williams v.
declared N. Y. v. Met. El. 96, 100; El. R. Lahr R. lyn *5 v. HARLEM RAILROAD CO. MUIILKER in Error. Argument for Plaintiff 197 U. S. N. Y. 122. Co., Y. El. R. v. N. 268, 288; Story Y.
Co., 104 N. case at bar. This rule to the applies that the structure trial court determined
The decision This nature of street. public inconsistent with and thus Division, affirmed Appellate fact was finding no to review has Appeals the Court of final; became 191, Pro. N. Y. Civ. 9; facts. N. Art. Code Const., Y. § § in court, a fact the state subd. Whatever was question 3. Loan Assn. v. Building in this court. & of fact question And will not reexamine 121. this court 185 U. S. Ebaugh, as found in the court will take facts evidence, but W. U. Tel. Co. v. Call Hart, 165 U. S. Egan below. Harrow Co., 92, 103; Co., Pub. Bement Nat. 83. It therefore follows that the viaduct front of plain- tiff’s is a character use inconsistent with the premises much railroads street, just as as the other elevated New York is a City, and of the property abutting taking are owners, they violation the contracts just as in the other elevated roads. protected, case A City declared New York statute, 1813, that the streets are held city in trust for certain public purposes. court of
highest
has
held for
steadily,
State
score
years,
this
precludes
trust
the erection of an
railroad.
elevated
Thousands of cases' have been decided
by the lower courts
accordance with the law
laid
thus
down and tens of thousands
of conveyances made
upon the faith
this rule of property.
of Appeals
in the first
held,
Court
of the Fourth avenue
viaduct cases, that
the elevated railroad
fully
decisions were
applicable to the situation there
Lewis v. N. Y.
presented.
& Harlem R.
N.
of that court subsequently minds, their changed although they that the agreed elevated railroad cases distinguish- able, yet have they seem to found much difficulty pointing out the distinctions.
Those cases be distinguished cannot either as to the grade TERM,
Argument
Plaintiff
for
in Error.
197 TJ. S.
of the
in the
street, fact that the elevated roads
“per
were
”,
mitted
in this
case the viaduct was
on
commanded, or
thé railroad’s title to
bed
the street
because the
for
Nor is
a
was made
the viaduct
change
public good.
A railroad
street use.
on the street is a
legitimate
legiti
mate
121 N.
If
street use. Fobes v. Railroad
Y. 505.
law in
case is
an
device has
this
obvious
been discov
good
ered which to
which
by
impair
obligation
trust to
York
City
the streets of New
dedicated. First
place
and then
the surface of the
elevate it.
street;
can
case,
Under the Fobes
no
owner
of the
complain
under the decision of
Court
in
first
step, and,
Appeals
can
one
And
case,
this
no
second.
so indirect
complain
would
could
ly the
what it
and should
legislature
accomplish
not
Y.
directly.
Scott,
not do
Forster v.
136 N.
584; People
128N.
Coler,
Tucker,
v.
166N. Y.
Gilmanv.
204.
1, 19;
Y.
Constitution,
The
cannot violate the
redeem
legislature
Ayas
the claim that it
done “for
by
violation
the public
benefit.” The
contract
is
repudiation
obligations
quite
be
of “the
usually
justified by
bene
the.plea
public
sought
be
may
but the Constitution
United States
fit;”
a
easy
Barber,
nullified so
fashion. Minnesota v.
simple
Brimmer v.
U. S.
313, 319;
Rebman,
138
136
is not
work is for the
benefit.
public
The
Avhetherthe
question
is
for
it
on this
benefit,
only
All railroads are
the. public
is
them.
domain
granted
that the
of eminent
ground
as
they
they take,
private property
must
for what
pay
Yet
compensation
cannot
taken
benefit Avithout
by one which
any
more than
statute
“directs”
any
enabling
The
act
“authorizes.”
statute
but
has
this
to au-
construed
act
Appeals
form. The Court
The act is what
compensation.
thorize the
Avithout
taking
Therefore,
it is.
the Constitution.
says
that court
violates
rule of
decisions in elevated
established
changed by
railroad cases cannot be
the state courts'.
of a
a state
as
statute
so far
court,
construction
551
MUIILKER
HARLEM RAILROAD CO.
V:
Argument
for Plaintiff in
Error.
under
contract
it are
becomes
acquired
concerned,
as if
;
much
the statute
embodied in it and a
part
is
utterly
construction
ineffectual
those
change
impair
To .hold
would be as
as to hold
unjust
otherwise
rights.
under
may
statute
be lost
its
rights acquired
joy
repeal.
The of the contracts this obligation case, construed by the New York courts, that Fourth avenue shall not be de voted to uses inconsistent with its an character as open public street; railroad, that elevated to the according construction courts, the New York anis inconsistent street use; this construction of the said cannot, contracts so far as the plaintiff is concerned, be altered or modified by any change of judicial decision. these obligation contracts has been impaired by of the New York Laws of chapter 1892, 339 vvhich provides the erection and of an elevated operation . Fourth avenue Lahr v. Met. El. R. 104 Co., N. Y. 268, 291.
When the public authorities take the land of an individual for the of a purpose pay proprietor highway, therefor, transaction' becomes fixed contract between them, which is within clause of the Federal Constitution forbidding' any States to law pass impairing obligation of contracts. v. People Comrs., (N. Y.) 70, 53 Barb. 74.
There is a total lack in the power legislature abrogate the trust under which city New York holds its streets. Elevated Railroad Cases, Kane v. supra; N. Y. El. R. Co., 125 N, Y. 164, Williams 183; v. N. Y. Cent. R. 16 Co., 97, N. Y. 108; v. Auburn &c. Co., Trustees R. 3 Hill (N. Y.), 567.
Where land is dedicated to the public trust for public
552 TERM, .1904.
Argument
for Plaintiff in Error.
197
S.U.
has no
the trust
abrogate
the legislature
purposes,
inconsistent purposes,
the land to
except upon
devoting
Railroad Co. v.
7
Schurmeir, Wall.
compensation.
making
181;
v.
Cent. R.
2
289;
Co.,
174,
States
Ill.
Biss.
United
272,
Arkansas,
Canastota
Sorrels,
466, 473;
Packet Co. v.
50
Knife
v.
Connecticut,
Jacksonville
Tramway Co.,
172;
Co. v.
69
146,
Illinois,
v.
Illinois, 540;
Ward,
67
169
Co.,
Chicago
Railroad
opinion 170, access thus con (Record,'p. end),,and air, of light, a Court of in still later Appeals their existence. cedes Fourth avenue the easements abut has recognized case for main recovery viaduct and, while ters, denying for Dolan Y. has allowed stations. v. N. structure, damages Y. Thus the 175 N. 367. Court Co., Appeals R. & Harlem that the Park avenue owners distinctly property possess admits urban casements the avenue. th- so-called have a case of In act we a statute which plain provides yet provision makes no plaintiff’s property, for the taking him no for a him, hearing, notice to affords opportunity for syllable compensation reference to and contains Notice, and taken. some hearing kind, property of. heard, necessary arc elements due opportunity 409; Roller v. U. v. Holly, 398, law. 176 S. Carson process 182 Commission, 398, Broclon U. S. 401. Sewerage due law requisite process An is compensation. absolute 204, 222; v. Holden v. Wesley, Tindal Hardy, Baker, Norwood 172 U. 277. S. Amendment to all the Fourteenth prohibition applies State, to its executive legislative, instrumentalities Chicago Chicago, &c. Co. v. S. judicial authorities. R. U. McNeal, 226, 233, 241; 45. Scott Emery Ira A. with whom Mr. Thomas Place, Mr. brief, defendants error: jurisdiction invoked,
The.
the determina
had,
hearing
had,-
tion
all
thereon,
adjudication,
resultant
relation
solely
and involved
rules and the
application
prin
of local
law
ciples.
in force
enact
prior
in force
ment,
unaffected
to the
remaining
thereby,
status
which hail
resulted
express
grants
implied antedating
enactment. White M.
R.
Plaintiff’s easements of air and access over the one- 554 TERM,
Argument
for Defendants
Error.
197
S.
were created and
planned
brought
avenue which
hundred-foot
and of his
and acts of Poillon
into existence
grants
other
any
property,
like
were,
immediate
remote grantee
of law
operation
unto the
rules
subject
pertaining
express
domain,
grant,
of eminent
private
governing
all
user, and
surrender and adverse
abandonment,
or implied,
or evidence.
any
as
of these might originate
such rights
compensation
recovery
If
was entitled
act of
broken,
pre-
contract
1892
taken
not necessary
and was
recovery,
no barrier to his
sented
therefore and
recovery that
the act contain provision
such
render it
lack of such
could not
provision
therefore
unconsti-
due
without
constituting
taking
tutional
Egerer
128
Co.,
157;
v. Railroad
N. Y.
Reining
.of-law.
process
N.
Co.,
People Havemeyer, Railroad 42 Co., 618; Sander v. Div. Sander Railroad App. v. Co., 622; 58 Div. Scholz v. Railroad 67 Div. App. Co., App. Siegel N. Y. v. 620; C., 485; S. 175 Railroad Div. Co., 62 App. 290; N. Y. Tocci v. C., 644; S. 173 Talbot Mayor, Hun, 46; 73 Co., Hun, v. Railroad 78 151 473; C., S. N. Y. v. 155; Taylor Co., 190; Railroad 27 Div. App. v. Railroad 84 Tynberg Co., v. 637; Div. Welde Railroad App. 379; 28 Co., Div. App. Co., Welde v. Railroad Misc. 13; C., 29 S. 637; 53 Div. App. 168 N. Y. C., Failure plaintiff’s case has not resulted want of due of law. He process has invoked and orderly and full preliminary to, adjudication hearing thereupon state jurisdiction courts of competent over the subject matter of his complaint. conclusion and adjudication against him are based upon the and his finding prede- cessors in title had either never or possessed had granted away the property rights, alleged deprivation ofvwhich constitutes the of his gravamen complaint. It follows that if judgment, all, at howsoever, erroneous, is not subject (cid:127)unto the criticism of lack due of law. process Davidson v. New Orleans, S. 97; 96 U. Mo. Pac. Co. Ry. Flumes, 115 512; Marchant Penna. R. R. 380; 153 U. S. Rem- ington Co. Watson, U. S. 443.
Where a or property property is vested right subject unto and power of or right police regulation servitude, contract of such or obligation respect right cannot be relied to oust or terminate the exercise of such right or servitude. regulation Presbyterian Church v. New York, 5 Cowen, Gushee v. 538; York, New App. Div. Butchers’ Union v. Crescent City Co., U. S. 746. subject
Contract obligation deemed unto State’s right' police power. city the railroad .company were and are the
creatures each, State. As to the- State at all times has right and-power amendment- altera'ion their TERM,
Argument for in Error. Defendants enter could, by of them charter Neither powers. respective predecessors with or to plaintiff’s into contract1 ing obligation of, the its exercise of, in’ the State title, deprive cripple so as to and railroad the street right regulate (cid:127) primary in and for its pur usefulness Of enlarge itself, power' State of the poses; deprive maintain build, for the byor created purpose, corporation *11 railroad for by either, and' a line selected operate, upon of service, compensation common carrier upon payment of land used there requisite thereby acquirement as matter must, with either Any corporation for. contract been into with entered knowledge of to have law, deemed such, State, of the and to and power right of regard intend, or command of the the direction that obedience to shall of of the obligation in letter State contravention a breach of be accounted the obligation. in
An
in such ease prescribing police regulation
enactment
not nullified
contract,
by
of the
contravention
terms
of
of
inhibition
the .ob
impairment
the Federal Constitution’s
107;
64 N.
Brown
Thomas,
contract. Lord v.
Y.
'the
ligation
13 Wall.
95;
CollegeCases,
Colorado,
Pennsylvania
106 U. S.
v.
Nebraska,
U. S. v. mond, the state statute limitations
State decisions construing
real
what constitutes
respect
property,
declaring
thereof, when continued for
adverse
and the'effect
possession,
a rule of
limitation,
constitute
period
property binding
and in
the Federal courts
law
upon
eqúity
adjudicating
land,
titles to
within that
Elder v.
upon
McClaskey,
State.
251;
685;
17 C.
certiorari denied
Lobenstinev.
C. A.
163
Fed.
9; Shelby Guy,
Union El. R.
v.
Wheat.
Rep.
McLean,
For
361;
words,
Green v.
whereby recovery of damage, occasioned consequential p authority under State, to real in its domain, shall accorded or refused, is matter of state not prerogative surrendered to Federal nor governance, subject, supervision. its Penna. R. Miller, 75; R. Co. v. 132 U. S. Marchant v.
Penna. R.
Co.,
R.
153
S. 380. The doctrine of
U.
damnum
injuria, adjudged
herein,
absque
is
govern
recognized
in
fundamental
New York and Federal courts.
v.
Radcliffe
Brooklyn, 4
195;
Marsh,
N. Y.
Callender v.
MUHLKER in Argument for Defendants Error. and had herein usual ordinary invoked- and plaintiff and full 'and orderly determi thereupon process, hearing, in adjudication respect nation and and alleged taking in his Park in and by easements avenue trespass upon and of the elevated railroad maintenance use structure ‘de in scribed his complaint.
„ The structure was directed by State, and built and used in to the command of State, obedience above extending and and over, by columns in and supported standing upon, land and which was theretofore thereunto, as rightfully, against plaintiff, by and used occupied exclusively and for the rail- road. State directed and carried into effect this elevation of railroad structure and for the operations purpose effect- and ditl thereby effect the ing, of the street sur- enlargement by face therein and the same over embracing extending ground theretofore and aforesaid'occupied used exclusively and for the railroad and its operations. In and taken and had in the proceedings said action only long-time-established process were availed procedure of and followed, only long-time-established vindicated rules laws were administered.
The 1892 enactment, to be violative alleges of the Federal Constitution, as and by way of-(l) his taking without due process law, (2), impairing contracts, contained no obligations provision the purport any whereof would or in wise might deprive complainants of, or in or restrain them' about themselves of availing the plain process remedy adequate provided laws existing respect property taken for, upon in and trespassed about, the into carrying of, effect authorized lawfully use. That enactment any was not wise asserted relied upon by the defendants as or of a defense or by way shield td:" protect them from liability respect any property appro (cid:127)priated or contract obligation violated, nor was it wise any adjudged constitute such shield in of either respect prop (cid:127) taken or contract broken.. erty *14 TERM, 1904.
Opinion S. of the Court. 197 U. carry of and into effect prescribe the State .The of of the by way as and for and enlargement this regulation was taken for granted surface for travel therein public street possession all of the by respect both and parties, questions thereof, of or of the exercise excluded such power proper action and issue. The the nature and form the dispute by solely to the fact and measure had relation questions litigated which had property, or trespass upon private taking provisions into effect resulted from carrying enactment. disentitled which plaintiff adjudged
The upon ground had far as it was, appeared so to "recover casements, the subject in or to the .or title any right were in his and title thereto and trespass, taking alleged joint unto _wiso subject respective subordinate and and such and conduct and railroad servitude that acts of or any taking did not constitute complained which lie casements, invaded no legal right the said trespass upon damage the loss and and hence that duty, violated no legal damnum the rule of within -and governed alleged injuria. . absque . and applica- interpretation upon
The is founded judgment law, following consequent rules of tion of local and usual ordinary process, and administration exercise Constitu- to' which Federal any no wise involving question have relation. inhibitions tion case, announced after stating
Mr. Justice McKenna, delivered the opinion: following of the court the judgment Lewis Court followed observed, Supreme As we have in the Y. botín 162 N. Railroad, & Harlem York New “the principles legal decision judgment” “form of necessary. was not considered Discussion involved.” authority affirmed the judgment Division Appellate it. ruled been cases case and other the same v. HARLEM RAILROAD CO. MUJILlililí Opinion of the Court. identity brief out court, by expression, pointed defense com- cases and made disposed as follows: of adverse possession panies *15 of defendants by “The title ad- having acquired question was considered this court in both the Fries by verse possession it ‘For and Sander cases. In the former was said: these rea- sons to was valid as the railroad city the deed the against and it had no to that of the street front company, part title of only therefore, the its plaintiff’s premises, rights, were those which it by possession. had adverse Within acquired the rule laid down in the case of v. New York Lewis & Harlem R. (cited above), R. Co. that adverse did not possession give to the carry tracks, railroad the to its which company right run in a twenty years cut, viaduct such as this upon is, above in front of plaintiff’s ground, premises. the. fully
case of Lewis to one In applies the at bar.’ the Sander case this court followed the decision the just quoted, presiding on sole justice by that ‘Title adverse dissenting the ground as to the foot possession twenty-four strip at least was estab- ” by the evidence.’ lished In the at -a by case bar there is of complete change ruling Court the of The Lewis case is in so far Appeals. declared, as it expressed abutting owners, to have been rights decided, and the improvidcntly cases, elevated railroad were made The court support, distinguished. rested its ruling point, its one the effect of the act under which the structure complained erected, of was the court declaring act a to command the company railroad the interest indeed, of the public; made builder of the new the £3tate. structure and use tne railroads mere obedience to law. But it does not follow that can be private taken .property either the erection of the structure or its use. This was seen plainly expressed Lewis case'as to the use It was structure. there said: (the “When they railroads)^ commenced use the steel viaduct they started new trespass upon of the no There was rights abutting owners.” hesita
ron, exovn —36 TERM, 1904.
Opinion of U. the Court. S. between the of the State power the line then in marking tion railroad, responsibility assigning duty and the com with principle. in accordance This was the latter. duty may State, obey, mand of And inviolability property. per private encounter the dpties may it a railroad be required devolved forming Wisconsin, Minn. of eminent domain. exercise the see also Jacobson, Mayor Pac. R. R. v. & and Worcester R. R., v. Norwich Aldermen Worcester not, therefore, We do solve Massachusetts, questions the duty the State and reference to in this case owners must abutting property railroads; their considered, and against infringement urges Constitution of the United clause of the States the contract The latter is invoked Fourteenth Amendment. be and the *16 does not provide compensation cause the act of 1892 and the former account of the conditions owners, avenue of land the was con strip which the upon constituting the There were two deeds to one made city. city, to the veyed of was in' 1827. That stated to be in and the other “ the same be and nevertheless, that -trust, appropriated in streets and in forever, of avenues parts public as kept'open avenues as other streets and in said public manner like The deed of of be.” 1827 was also city ought are and streets, as for the open trust the same be left “in city inhabitants of said forever/* Plain and benefit of the use Poillon, city from of the in the deed title grantor tiff derives he is entitled to enforce and hence contends that of city. deed to the by Poillon’s railroads trust created They contention. assert title to the land upon this oppose of stands deed by the structure complained of The details these contentions we need not prescription-; They nor discuss. are stated at the Lewis length repeat expressed conclusions there are not disturbed case, and the Appeals of the Courts the case at bar. The decision as us presented to the. therefore effect deed case v. HARLEM RAILROAD CO. MÜHLKER Opinion of the TJ. Court. city and to the as con-' plaintiff Poillon toNthe constituting 3,892 effect of the and the act of as an of that tract, impairment or as plaintiff’s without due taking process .contract of law. questions directly passed These on and negatived , by the Court Appeals. from
It will be observed the statement facts that before .viaduct, of the construction of the railroad ran complained on the in a partly and'partly trench, surface cut the latter flanked walls by masonry three feet being high. The viaduct is solid roadbed thirty-one feet above the sur- iron face, on the sides in. girders middle, having iron which .there six supported columns, are front of land. The old plaintiff’s prevented construction crossing or access to the tracks. new or de- impairs construction stroys the plaintiff’s easements light air. And such trial easements the court found plaintiff common belonged with -other abutters of New public streets York and his for their damages impairment to be as expressed by Bart- inJ., his lett, fee dissenting opinion, $1,400 “$3,000 damages, rental damages, February 16, to October 10, 1900,” the date of trial; is, $4,400'present It is damage. sug- however, that the Court of did gested, deny not Appeals but abutters, considered that rights the most important of those was phase that of access, did' plaintiff have this over the railroad by reason of the stone wall. The basis of we suggestion, understand, is the ideft that compensated injury his easements of air by increase his light casement of access without *17 to the regard To do resulting damage. this, is'to hp'wever, one make easement depend upon another, of which are both attributes of inseparable and property equally necessary to its It is enjoyment. impossible us to conceive of a city with- streets, any out benefit in if streetsj property tne abutting on them has not attached to it as an and inviolable essential air part, já easements and as well light of access. There as to mockery one something access to give which TERM, 1904.
Opinion of the Court. one To situa- on when there. what gets live may be unfit to rail- Because he can cross the tion is the brought? plaintiff contended, street, it is State, more road at places and smoke from 200 trains day cinders dirt, can authorize his windows of house. into the upper to be poured N. J. there is a clear Johnson, Eq. 481, In Barnett v. air, owners to abutting light right expression sense of the world which it upon practice common said, the court “founded in such “It is a right;” is founded. all laws take legal proceedings necessity an urgent it so itself, A so strong protects granted. annul or it would infringe it, that, upon any attempt urgent and all de judicial all enactment legislative set at defiance observed'fur And, describing right, graphically cision.” in in every every window and door house every “is not ther, maintenance city, town, village every assertion.and Barnett anticipated has been said v. Johnson It of this right?” was which at last'secured upon compensation “the principle New York.” Lewis Eminent the elevated-railroad cases Domain, 183. and air cannot be made that easements light manifest
It is access, they and whether can easement upon dependent the condi interest away under taken be to the obtained title streets now city tions The answer the cases depends upon considered. and Lahr Co., R. 90 N. Y. York Elevated R. v. New Story N. known Elevated R. R. 104 Y. v. Metropolitan case decided in The Lahr railroad cases. elevated bar title his case at acquired The plaintiff in 1888. case, the Story railroad cases was the elevated first of of a in the case was the owner in 1882. decided city in the Front streets Moore' and corner of on the lot enjoy- To their were buildings. there on which York, New and were were indispensable, air access ment light, street, The defendant was about construct through.Front *18 . v. HARLEM CO. RAILROAD MUHLKER 565’ Opinion of the Court. 197 TJ.S. pf of that the surface street a series
a railroad above fifteen inches fourteen and six square,. about feet columns, five inches inside of the placed sidewalk, inches with high, thirty-nine inches deep, thirty-three girders of rails for a cross ties three sets steam railroad. support a construction reach The to be of such as to within cars were (cid:127) and trains were to be run buildings, nine plaintiff’s feet of and at a rate of as as minutes, speed every eighteen' three high miles hour. lot to the was found the trial injury abutting
The fact of of New York owner in city also that-the was the fee court, and he was street, lots, that opposite plaintiff’s Front been seized of the same in nor had any and never had fee estate therein. Court case involved the question
The said the Supreme scheme of the defendant amounted to the whether the taking" if .said, it it any did,, was plaintiff; judg- act, ment invalid on the that the intended when was ground of the Con- only would violate not performed, provision declared such which that should not be stitution, but which just compensation, taken without certain statutes its bound or would existence, defendant was owed in the upheld unless, opinion court, not have been they had means to secure such provided compensation. that, contended as owner of the
The plaintiff abutting he had the fee to one-half of the bed of .the street premises, thereto, he also if was in opposite contended, the fee had have city, he, abutting owner, such'right light afforded above access the roadbed as entitled him to have kept for those uses until open by legal process and upon just compensation away. taken right defendant justified permission its intended acts through city. on, thus made the and in passed issue court so that the the fee of street' doing city assumed owned It that the derived his from the was held city. title plaintiff “the acquired privilege TERM, Opinion of Court. 197'TJ.S. *19 forever kept open such;” the street the having was an incorporeal thus secured which hereditament, once to the lot and ‘in- appurtenant “became at formed an and which it,” of the estate’ followed the part estate tegral a encumbrance the land and constituted bur- perpetual upon “From it attached,” with it. the moment the court dened the and the dominant, open way “the became observed, lot Cases were cited the servient tenement.” for these street the extent of the easement was defined to And propositions. and air from it. only lot, access to the but The light be not “The the surface to its uses occupies court said: street adjacent the lots are but above the subordinate, the of rights be no lawful to the there can obstruction access of surface the of air, to detriment the owner.” And abutting light “The of and air to be derived further: elements are both light land, the which the from the over on the of street space surface for constructed, and which is made servient that purpose.” is any the “Before in- was court emphasized, observing: This had from city, the the owner the land it terest to passed air and The street benefit of light. purpose the of va de- only.” the the The easement was soil requires surface con- and within protection to clared for its diminution for provision compensation stitutional structure. contemplated to is, course, impossible reproduce argument It which its conclusions were sustained. It court clearly was made between say that a distinction enough their owners in the the street of abutting rights surface n distinction was also street, above the in the space A review was taking. clearly damages made between rested. which those of the cases upon made distinctions .to, and of a street was adverted to alter a city grade no There was intended structure. held not justify said, was “but intended, surface the street change and as purposes useless a structure elevation of be an ob- held as the house thereto,” foreign v. HARLEM RAILROAD CO. MUHLKER Opinion the Court. U. Corning Lowerre, 6 Johns. Ch. struction in S. 324. freight Barney Keokuk, depot court and distinctions made itby The conclusion thei in Lahr Elevated R. Metropolitan R. repeated of in The structure the latter case was complained Y. 268. N. railroad. also an elevated
Chief Ruger, speaking court, opened'his opin- Judge action ion that the was "the by observing sequel Sto:y and that its defense seemed to have been case," conducted theory secure reexamination of endeavoring it was endeavor, said, fail, that case. must because the *20 the case had been Story doctrine of after pronounced most and careful consideration after two thorough arguments at the made most bar, counsel, eminent had apparently of the resources exhausted learning reasoning the dis-. presented. cussion of the And question it was declared that of "it would the occasion public if a deter- great injury, made could be mination thus inconsiderately unsettled and. become subject suffered the of doubt, and theme of again of renewed discussion.” doctrine case was de- Story decisis, clared to be stare not only upon all the in- questions all that came volved, upon but within logically the principles There was an decided. enumeration those principles, as follows: an That elevated
(1) railroad, kind described, was a of a of the use perversion street, which neither the city nor the could without legislature legalize providing compensation for inflicted injury upon property abutting owners. (2) That abutters upon public street, title by claiming from the grant municipal which authorities, contained a cove nant that streets which could be laid out should continue as other, streets, acquired easement in the bed of the1street for ingress ogress from their premises, and also 'for the free and uninterrupted passage circulation of air light and over through such street for the benefit of situated thereon. TERM,
Opinion the Court. 197 U. was an interest in real (3) That such easement estate and within the of the constitution constituted property, meaning not for a use and could be taken without State, payment compensation. railroad, That an which cars
(4) upon propelled elevated and smoke and by steam steam generated gás, engines cinders, dust, ashes, air and other noxious distributed in the substances, and free interrupted passage and deleterious and from constituted adjoining premisés; and air to light and rendered the railroad casement, company taking such by. liable for the occasioned damages taking. was on the of these principles ground
The application resisted the Story was the case city grantor from the conveyed, title and could derogate it case went off on that and, contended, ground. enumerated held to and the rejected principles apply, This was taken the land the street been notwithstanding And in invitum. proceedings plaintiff’s grantor contract held rest in constituted owners were abutting the property. received city which the conditions of distinction arc the urged untenable Equally grounds those application principles. case at bar against In the and Lakr cases the railroads were Story What arc they? *21 .In at first time on the street. the case the bar imposed the surface of the occupied street, Iiarlcm Railroad had the and Story viaduct. But in the was to the Lahr changed the railroads were imposed the fact' that cases it was not the time that determined judgment for the first the street were run an ele- upon fact that trains It was the rendered. and air of light the casements interrupting structure, vated constituted It was this' that of the. owners. abutting a..use ele- It was the of the street. with the purpose inconsistent case, the Story from again to quote of a structure,” vation This the situation purposes.” street general “useless case, in the Story upon railroad was dwelt especially cases. railway surface thereby the was distinguished case 5«9 v. HARLEM RAILROAD CO. MUIILKER Opinion of the Court. a difference was between And in Lewis case the recognized the and a between done by balance struck situations, damage two one and the in the other the railroad in situation railroad Lems have overruled case, seen, by The we situation. ca,se at while bar, Story the the the Appeals Court said the point. Lahr cases were not to be We think an others, Lewis case was the consequence irresistible cases are in point and Lahr decisive. Story is as we have already Another claimed, observed, distinction of the rail- between the at bar and those cases. The act case act of said, road in it was the viaduct, occupying defense was'made the other cases. It did State. But this much It is however, now, the court trouble. give urged, it is made the Indeed, with increased assurance. ground have as we seen Court of decision, Appeals. court “The decisions in the elevated railroad cases are said: not in There no was made State to point. attempt for the Instead, benefit it improve public. to make an additional corporation use granted of' of which it easements took certain street, doing which it was to com- owners, belonging abutting compelled further, them distinction between And, making for.” pensate “The could not if it those cases and that at said: State bar, if defend- would not deprive would—and probably could— in the But it had ant of its trains street. operate its right run its it to trains public compel in the interest power court subway.” And the con- instead in the viaduct which did the railroads, cluded was the not the State, that it The answer need not injury to hesitat- property. plaintiff’s can State, no permission, give command ing. for. a purpose to invade even private rights, of such com- without payment payment compensation; the duties of necessary performance when to the pensation, observed, already part we have may be, company, of the State. The railroads of its the command submission'to " ‘ the com- one-half expense change, paid *22 TKRM, 1904. OOTOhlíIi Opinion the Court. of ” of law,’ lienee, under statute, and, compulsion mand of tho of there- interest, Court Appeals. public from the quote is hn if not a excessive, made much of. It fore, given is too objec- a the justification open Its use as false quantity. two by enables the State to- do at tion made the argument, In other be if done one. which would illegal that acts York law of New the State can authorize as under the words, of a street it can the surface occupy subsequently a railroad to the railroad'to raise its tracks above or the order permit rights of the public the impairment justify “ Story public cn.se the purpose It was said the interest. only.” the surface And this of the soil of a street requires R., W. & R. in Fobes O. N. Y. was followed street without upon permitted where steam liability consequential damages adjoining property. the interest all upon destroys new based principle of of a the surface the soil street and between distinction leaves no surface, and, seemingly, above remaining space of of elevated railroad the doctrine cases. vital remnant than the de- wé need not farther case present However, go ,w¡ere his title those mands. When the cases plaintiff acquired him York, New that his the law of and assured easements expressed and air were secured contract as those of light from him without and could not taken cases, payment compensation. are is the of our decision. We not called this ground
.And or the power upon to discuss limitations power, York to rules of New declare change courts decisions, only their but to decide such modify away to take which have been rights cannot be exercised' under and have come by contract protection acquired we the United States. determine Constitution And and extent of such contract. This is ourselves .existence when there is a diversity state decisions the truism; constitute the may time contract and obligation first in under it. Hence/'the importance rneasure *23 MUHLKER HARLEM RAILROAD CO. J., dissenting. Holmes,
elevated railroad cases and the had they doctrine pronounced when his the plaintiff acquired He under property. bought assurance, their and that these decisions have might been or plaintiff different that the have balanced might the chances of the commercial between the to have the advantage right street remain and the open expectation that would remain is to certainly so too estimate. We can intangible estimate the difference between with full access of building and light air with and one those elements impaired polluted. But have need already only we this. We add expressed that the all is not there is to a and to passage street, call it the right is more less It primary is more con- delusive.. has the and assertion of spicuous importance right, community and ownership, interest has certain properly dominance, but to of a necessary it is not more than city making rights air, held, the latter though are, individual light and asserted as ownership only private property. The true relation and subordination of these rights, not expressed, only by is elevated railroad private, cases, by other cases. are in 3 They but collected Lewis Eminent Domain, 91c, and, beyond section it is there said, “established the existence of these or easements, of question rights, light, access, air and that appurtenant lots, they abutting as much as the lots are themselves.” cause Judgment reversed and remanded pro- for further with inconsistent this ceedings opinion.
Mr. Justice Brown concurs the result. Justice Holmes dissenting.
Mr. I am unable to with the I agree regret judgment to involve court, and as it seems to me important principles I think it advisable express my disagreement give my reasons it. within
The' owns soil the limits no avenue. TERM, 1904.
Holmes, J., dissenting. time Company and Harlem Railroad The New York at the other been the owner, long change tracks railroad with four along of a defendant was the lessee land, at plaintiff’s in front avenue, of Park the middle avenue, and at the the surface end at being soúth half deep, and a four feet in a trench about north wall three feet by masonry both sides bounded being or access to the tracks. This crossing prevented high, *24 I instance and take it to be of first court is the finding . to do with the have evidence. nothing We us. upon binding in Fries finding as the v. the same New thing it to mean I take 270, Y. that defendants had R., 169 N. York & Harlem R. to the to liability plaintiff have, without the right “acquired and railroad structures as railroad and use their maintain February prior 16, maintained and used 1897.” were same of the Court of of the Appeals The material portion decision held in the ease of facts, is on this state of as was similar that had no prop York & Harlem R. R., plaintiff New Fries v. any in such a as to be way which was erty infringed right injuria. The that the finding more damnum absque than thing maintain the former had the structures was right railroad cases, the case the elevated to distinguish' held in the street without planted right against where pillars Y. R., 122, York R. 90 N. Story New Elevated the plaintiff. Y. Ry., Lahr v. Elevated 104 170, 160, Metropolitan N. in new that structure The other so-called finding, 268. not of law that merely ruling the plaintiff’s right, fringes has a the facts found specifically withstanding an upon public of his abutter by reason being cause of action street. in terms of property expressed whether rights, plaintiff’s courts, of the deduced
or of are all a construction contract, pur- for the trusts to and from dedication way of consequence him or were granted never They street. public of a poses con- any or, words, probably, express his predecessors the New York courts had If at outset scious implication. v. HARLEM RAILROAD CO. 573 MUHLKER Holmes, J., dissenting. from statute or the abutters express grant decided that apart only the and no private had on a street in no kind, it would have been way of any amazing: easement very between the possible distinguish have been It would expectation that a commercial advantages practical in rem and a open would remain should that Malden, 17. Massachusetts, remain See Stanwood so. if York courts narrowly, the New more Again, held and air could be created only by express an easement light out or dedication of a or the words, laying street, no such upon one, of a house easement to bounding gave grant have been alone the world abutters, they would Massachusetts, Hugo, common law. Keats 216. abutters have easement highway The doctrine that as a novelty point air is stated authority light-and N. Barnett v. J. that case was Johnson, Eq. a like where it was held that decided in a State right might 1 Green Pittenger, Robesonv. Ch. acquired prescription. which I say conceivably If have decisions, might been as to law, they had been made the common would have made, *25 under the no Constitution the United States. infringed I would be much, every So admitted one. But presume, I ask has admitted, myself if that be what to happened cut down the same courts as that against the same Con So far as I know day. stitution at the the present only thing is have decided they which has that the elevated happened which I have It is on cases, to referred. that ground to alone that we arc asked review the decision of the Court of what otherwise would be a Appeals upon purely matter of local Tn words, law. other we are to asked extend to the Of present case-the principle Gelpcke Dubuque, Wall. Louisiana v. as Pilsbury, 105 U. S. to public bonds a the faith of decision that bought they constitutionally issued. to me a That seems unwarranted great, and unde . sirable a extension doctrine which it took this court a good The doctrine now explain. however, while do is explained, TERM, ‘1904.
Holmes, J., dissenting. 197 U.S. decision impairs that change not mean obliga to contracts, Burgess Seligman, 34; Stanly tion of 445, and Coler, 437, 444, never certainly County mean that all in a to owners State supposed has been no of law shall proposition have a that general vested right modified the courts if the conse reversed, changed pecuniary will be more less loss. I know to them quence prevent to reversal principle complete of no constitutional to-morrow, if it railroad cases should the elevated seem of. See Central Appeals. to Court Land Co. v. proper 159 U. Laidley, in- error must much plaintiff go
But I conceive that my than to last is I say proposition wrong. further that think say must that he has constitutional not that right only he shall reverse their state courts decisions upon earlier they but shall a matter of not distin- rights, so them unless the distinction is fortunate as strike to guish as For of this sound. the Court of majority Appeals court has not to overrule the elevated railroad It purported cases. decided that the and the intent of those cases simply import has In those does not to the case at bar. cases the defend- extend access to the street. It is impaired plaintiff’s ants and consistent with all that entirely possible they decided matter; of the whole now that access say foundation and air is a incident parasitic right that the right light of travel, have the street kept open purposes right does here, latter not exist the basis and that when, and air is gone. of the claim to light (cid:127) had an easement over the whole if the But again, of-an as a tacit incident appropriation he street got and the Court legislature to the uses public. of New York have said statute assailed of Appeals *26 street; the was for the benefit the public using passed of. aspect of the I view. The most obvious* change their accept travel, an now is to that open is that the whole street removed, its has been width barrier along other impassable CO; ,575 IIARLEM RAILROAD MUHLKKR Holmes, J., dissenting. 197U. S. convenience of travellers on the has
words,
highway
and enhanced. Now still
dis-
considered
considering
been
might
which
be taken between this and the earlier
tinctions
they
was
New York Courts to
as
cases,
hold,
it
possible
which
held,
they
seem to have
that the casement
laid declared
to the fullest exercise of the
subject
to exist is
primary right
of which it
and that
any change
out
street for
sprang,
benefit of
travel is a matter
public right,
against
as
what I have called the
which the
claims.
parasitic right
plaintiff
Wheeler,
States,
Gibson v. United
Scranton
sense. adopt them, way in some avoid earlier both decisions. .to But I whether they am not are sound. discussing question confined that I my If to should be silent. disagreement there is in I am what Constitution considering States the Court of United hold them forbidding Appeals'to I sound. think there is and there nothing; being nothing, obviously the New York been decision not having given for the I its form this think purpose evading court, wo and affirm if we do not respect it, should dismiss the case. claims really What the is property, reni. merely is called contract it within the bring It contract It the Constitution. seems a considerable clause me to determine for power extension ourselves what the we have is,-, contract assumed when it is alleged that the aof contract has been we say that will obligation impaired, make same independent determination when it is alleged is taken without due compensation. But it seems to me that it does not help The rule argument. adopted to contract a rule to evasion simply prevent constitutional limit to States, and, seems to me, not be extended a case this. Bear- like should in mind I ing that, said, as have the plaintiff’s however rights, Hip murta. are I expressed, wholly construction cannot *27 TERM, 1004. 576 J., dissenting. U. S. 197 Holmes, Arti- Fourteenth Amendment or whenever the believe that we are free to behind local is set I, up go cle section we law, a on the that and, ground on matter decisions land we declare to exist which is, what the contract rights decide to be from dedication or location implied think ought should I that we at the local cannot believe are if we were courts. for Massachusetts, create over streets of liberty rights have been there. If we prop- that never instance, recognized am if then I that that, my assumption do erly may wrong declared that the laying York Courts originally New way private conferred no we should rights of a out if am if we are bound say. But I right, have had nothing we to local in real then estate, decisions as by local the distinctions and the are bound limitations .equally the local If an declared courts. exception those rights in- obviously in the case of a decision which established I I assume limits, suppose may to evade constitutional tended would not be imputed such an evasion judgment that court Justices of this think right. which four with have dealt the merits of the case for necessarily ÍAs I will add one other my con- presenting point, purpose has an easement and plaintiff that Suppose sideration. that his mind is impaired, bearing it has been damage that air, access, is inflicted respect light in in- say I travel, should hesitate of public benefit constitutional exer- legislature beyond went it the flicting to an appreciable To a certain and police power. cise of the the; the lav of may nuisance, alter although legislature excent and to appreciable affected. To certain extent is be limited without com- may of particular the use limitation, restriction every such Not diminu- pensation. in a constitutional I to a sense. taking value amounts tion of whether it has been made to appear of doubt have a deal good has been taken or destroyed any under the Constitution of the necessary which compensation Wheeler, v. v. U. S. Meyer 179 States. Scranton 141; United MISSOUR Stipulation U. S. to Decree.
Richmond,
Mugler Kansas,
MISSOURI v. NEBRASKA.
NEBRASKA MISSOURI. EQUITY.
IN ON BILK AND CROSS BILL. Original. 19, No. November 5, Submitted December 28, 1904.Decree 1904.Decided 5, 1905. entered March 19, opinion with delivered December Final Decree entered accordance 1904, stipulation parties. reported of the decree, pursuance on final coming This cause on 19, 1904, filed herein December of this court opinion their counsel filed parties by the respective stipulation is in words which said January stipulation on herein follows, to wit: (cid:127)and figures cause, of the court in above-entitled opinion
"In and-finding of the been made as follows: having court order the. “ the record that about year ‘It appears of Nemaha county surveyors County, Nebraska, Atchison made bed of the County, Missouri, surveys abandoned original banks River, ascertained the location of Missouri to some extent marked the middle side, either surveys two will these If the States agree old channel. vol. exovu —37