SAUER v. CITY OF NEW YORK
No. 180
Supreme Court of the United States
Argued March 21, 1907.—Decided May 27, 1907.
206 U.S. 536
While under the law of the State of New York the owner of land abutting on a street has easements of access, light and air as against the erection of an elevated railway by or for a private corporation for its own exclusive purposes, he has no such easements as against the public use of the streets, or any such structure which may be erected upon the street to subserve and promote the public use, and he is not therefore deprived of his property without due process of law by the erection of such a structure for the public use.
The decision of the Court of Appeals of the State of New York in the Elevated Railroad Cases related to the structure of an elevated railroad for a private corporation and did not create any contract within the impairment of obligation clause of the Constitution of the United States between the City of New York and owners of property abutting on the streets which would be violated by the change of grade or erection of a viaduct for public use of the city.
These rules applied to the case of an abutting owner on 155th Street in New York City and held, that the erection of the viaduct therein was merely a change of grade and that he was not thereby deprived of his property without due process of law nor was the obligation of any contract impaired by the judgment of the Court of Appeals holding that the rule of the Elevated Railroad Cases did not apply in such a case. Muhlker v. Harlem R. R. Co., 197 U.S. 544, distinguished.
GEORGE W. SAUER, the intestate of the plaintiffs in error (hereafter called the plaintiff) became, on July 1, 1886, the owner in fee simple of a parcel of land on the corner of One Hundred and Fifty-fifth street and Eighth avenue, in the city of New York. There was then upon the land a building used as a place of public resort. The city of New York was and is the owner of the fee of One Hundred and Fifty-fifth street and Eighth avenue, which it holds in trust for the public for highways.
Before the passage of the act hereinafter referred to One Hundred and Fifty-fifth street had been graded from Eighth
In 1887 the legislature of the State of New York enacted a law which authorized the city of New York, for the purpose of improving and regulating the use of One Hundred and Fifty-fifth street, to construct over said street from St. Nicholas place to McComb‘s Dam Bridge an elevated iron viaduct for the public travel, with the proviso that no railways should be permitted upon it. There was no provision for damages to the owners of land abutting on the street. Subsequently the viaduct was constructed, resting upon iron columns placed in the roadway. The surface of the viaduct consisted of asphalt and paving blocks laid on iron beams. Opposite the plaintiff‘s land it is sixty-three feet wide and about fifty feet above the surface of the original street, which, except as interfered with by the viaduct, remains unobstructed for public travel. At the junction of the street with Eighth avenue it is widened into a quadrangular platform, 80 by 160 feet in extent. Near the plaintiff‘s land the viaduct may be reached by a stairway. By the construction and maintenance of the viaduct the plaintiff‘s access to his land and the free and uninterrupted use of light and air have been impaired, and the value of his property has been decreased by reason of the dust, dirt, and noise occasioned by the structure. This action was brought to enjoin the defendant from maintaining the viaduct, or, in the alternative, for the recovery of damages caused by it. There was judgment for the defendant by the Supreme Court, affirmed by the Appellate Division and the Court of Appeals. 180 N.Y. 27. After the last decision the case was remitted to the Supreme Court, where there was final judgment for the defendant, and it is now here on writ of error under the claim that—
Second. That the act under which the viaduct was constructed, as construed by the court, impairs the obligation of a contract, in violation of
Mr. Abram I. Elkus, with whom Mr. Carlisle J. Gleason was on the brief, for plaintiffs in error:
Plaintiff established a contract within the contract clause of the Federal Constitution, and his easements of light, air and access were property which could not be taken without due process of law. The New York courts have repeatedly declared that the proceedings under which streets in New York City have been opened constitute a contract with the abutting owners.
The statute under which these streets are opened provides that while the city shall be seized in fee of the streets, nevertheless, that the same be kept open for or as a part of the public street. Laws of 1813, Chap. 86, § 178; Laws of 1888, Chap. 402, § 990; Greater New York Charter, § 990, Chap. 418; Laws of 1903; Story v. N. Y. El. R. Co., 90 N.Y. 122; Kane v. N. Y. El. R. Co., 125 N.Y. 164, 177.
The plaintiff is entitled to enforce this contract. United States v. Ill. Central R. Co., 154 U.S. 225, 238; Fish v. Jefferson Police Jury, 116 U.S. 132.
By the law of New York, the owner of premises abutting upon the public street has easements of light, air and access in the street, and these easements are property within the protection of the Constitution.
The act in question is unconstitutional and void in providing for the erection of the elevated driveway or viaduct without regard to plaintiffs’ property or contract rights.
By New York law the building of an elevated railroad is a use of the streets inconsistent with the covenant that they
It was not the railroad but the permanent structure which formed the basis of the elevated railroad decisions. See opinion of Danforth, J., in the Story case, p. 161; opinion of Tracy, J., p. 169. Kellinger v. Forty-second Street R. R. Co., 50 N.Y. 206; Fobes v. R. W. & O. R. R. Co., 121 N.Y. 505.
The Elevated Railroad decisions declare such an injury to be a taking of property, as well as a breach of the contract to maintain the streets as open streets. Muhlker v. N. Y. & H. R. Co., 197 U.S. 544; Birrell v. N. Y. & H. R. Co., 198 U.S. 390; Kierns v. N. Y. & H. R. Co., 198 U.S. 390.
This case is stronger for the abutter than the Muhlker case. Plaintiff‘s contract right arises by virtue of the act of 1813 and the rule of property laid down in the Story case in 1882, which has been constantly reiterated by the New York courts.
Upon the faith of the statutory contract and the judicial construction given it plaintiff purchased his property in 1886, thus becoming a party to that contract, which extended to all abutters.
The construction of a statute by a state court becomes a part of the statute, and rights acquired under it may not be impaired by a change of construction. Ohio Life Ins. Co. v. Debolt, 16 How. 416; Gelpcke v. Dubuque, 1 Wall. 175; Louisiana v. Pillsbury, 105 U.S. 278.
Mr. Chandler P. Anderson filed a brief as amicus curiæ by leave of the court.
Mr. Theodore Connoly, with whom Mr. Terence Farley was on the brief, for defendant in error:
Chapter 576 of the Laws of 1887 does not deprive the plain
The law in the State of New York is well settled that consequential damages caused by the construction or maintenance of a public improvement, authorized by statute, does not constitute a “taking” within the meaning of the constitutional provision. Uppington v. City of New York, 165 N.Y. 222, 229.
In Uppington v. City of New York, 165 N.Y. 222, already cited, the injury was permanent, and the doctrine of the case of Transportation Company v. Chicago has been often applied by this court to cases of permanent injury, among others in the cases of Gibson v. United States, 166 U.S. 269, 275; Wabash R. R. Co. v. Defiance, 167 U.S. 88; Bauman v. Ross, 167 U.S. 548, 587; Meyer v. Richmond, 172 U.S. 82, 97; Scranton v. Wheeler, 179 U.S. 141, 155; C., B. & Q. Railway Co. v. Drainage Commissioners, 200 U.S. 561, 583; West Chicago R. R. Co. v. Chicago, 201 U.S. 506, 526.
The construction of the viaduct is practically a change of grade.
It has been urged by plaintiffs in error that the construction of the viaduct is not a change of grade and therefore that the change of grade cases cited do not apply to the present case. The work is, in any event, substantially a change of grade, whether it may be technically so or not, and being such, the case at bar is certainly within the reasoning of the authorities which hold that for a change of grade legally made the city is not liable to abutting owners for damages.
In solving the question as to what is a proper and public use of the streets regard must be had to the changing conditions of city life.
With the march of improvement, new street uses arise. Sun Publishing Association v. The Mayor, 152 N.Y. 257.
The legislation in question, designed for the improvement of One Hundred and Fifty-fifth street so as to make it more convenient and safer to the travelling public, is a police regu
The legislation in question contravenes impairment of contract clause of the Constitution.
The Muhlker case, 197 U.S. 544 and the Birrell case, 198 U.S. 390 can be distinguished. And see Mead v. Portland, 200 U.S. 148, 163, holding that while the interpretation of a local ordinance or a statute by the highest court of the State is not indisputable and, even though it may conflict with other decisions of the courts of the State, if it does not conflict with any decision made prior to the inception of the rights involved, this court will lean to an agreement with the state court. Citing Burgess v. Seligman, 107 U.S. 20.
MR. JUSTICE MOODY, after making the foregoing statement, delivered the opinion of the court.
The acts of the defendant for which the plaintiff sought a remedy in the courts of New York may be simply stated. The plaintiff owned land with buildings thereon situated at the junction of One Hundred and Fifty-fifth street and Eighth avenue, two public highways, in which the fee was vested in the city upon the trust that they should be forever kept open as public streets. As One Hundred and Fifty-fifth street was graded at the time the plaintiff acquired his title, it was isolated to a considerable extent from the street system of the city. Its west end ran into a high and practically impassable bluff, which rendered further progress in that direction impossible. The east end ran to the bank of the Harlem River at a grade which rendered access to McComb‘s Dam Bridge, which crossed the river at that point, impossible. Under legislative authority the city constructed, solely for public travel, a viaduct over One Hundred and Fifty-fifth street, beginning at
“The fee of the street having been acquired according to the provisions of the statute, we must assume that full compensation was made to the owners of the lands through which the streets and avenues were laid out, and that thereafter the owners of land abutting thereon hold their title subject to all the legitimate and proper uses to which the streets and public highways may be devoted. As such owners they are subject to the right of the public to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of public travel, especially in cities where the growth of population increases the use of highways. The rule may be different as to peculiar and extraordinary changes made for some ulterior purpose other than the improvement of the street, as, for instance,
where the natural surface has been changed by artificial means, such as the construction of a railroad embankment, or a bridge over a railroad, making elevated approaches necessary. But as to changes from the natural contour of the surface rendered necessary in order to adapt the street to the free and easy passage of the public, they may be lawfully made without additional compensation to the abutting owners, and for that purpose bridges may be constructed over streams and viaducts over ravines, with approaches thereto from intersecting streets. . . . (p. 33). In the case under consideration as we have seen, One Hundred and Fifty-fifth street continued west to Bradhurst avenue. There it met a steep bluff seventy feet high, on the top of which was St. Nicholas place. The title of the street up the bluff had been acquired and recorded, but it had never been opened and worked as a street. The bluff was the natural contour of the surface, and for the purpose of facilitating easy and safe travel of the public from St. Nicholas place to other portions of the city the legislature authorized the construction of the viaduct in question. It is devoted to ordinary traffic by teams, vehicles and pedestrians. It is prohibited for railroad purposes. It is one of the uses to which public highways are primarily opened and devoted. It was constructed under legislative authority in the exercise of governmental powers for a public purpose. It is not, therefore, a nuisance, and the plaintiff is not entitled to have its maintenance enjoined or to recover in this action the consequential damages sustained.”
The plaintiff now contends that the judgment afterwards rendered by the Supreme Court of New York, in conformity with the opinion of the Court of Appeals, denied rights secured to him by the Federal Constitution. This contention presents the only question for our determination, and the correctness of the principles of local land law applied by the state courts is not open to inquiry here, unless it has some bearing upon that question. But it may not be inappropriate to say that the decision of the Court of Appeals seems to be in full accord
The case of Willis v. Winona, supra, is singularly like the case at bar in its essential facts. There, as here, a viaduct was constructed, connecting by a gradual ascent the level of a public street with the level of a public bridge across the Mississippi. An owner of land abutting on the street over which the viaduct was elevated was denied compensation for his injuries, Mr. Justice Mitchell saying (p. 33):
“The bridge is just as much a public highway as is Main street, with which it connects; and, whether we consider the approach as a part of the former or of the latter, it is merely a part of the highway. The city having, as it was authorized to do, established a new highway across the Mississippi, it was necessary to connect it, for purposes of travel, with Main and the other streets of the city. This it has done, in the only way it could have been done, by what, in effect, amounts merely to raising the grade of the centre of Main street in front of the plaintiff‘s lot. It can make no difference in prin-
ciple whether this was done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important if the city raise the grade of only a part of the street, leaving the remainder at a lower grade. “The doctrine of the courts everywhere, both in England and in this country (unless Ohio and Kentucky are excepted), is that so long as there is no application of the street to purposes other than those of a highway, any establishment or change of grade made lawfully, and not negligently performed, does not impose an additional servitude upon the street, and hence is not within the constitutional inhibition against taking private property without compensation, and is not the basis of an action for damages, unless there be an express statute to that effect. That this is the rule, and that the facts of this case will fall within it, is too well established by the decisions of this court to require the citation of authorities of other jurisdictions.
“The New York Elevated Railway cases cited by plaintiff are not authority in his favor, for they recognize and affirm the very doctrine that we have laid down. Story v. New York Elevated R. R. Co., 90 N. Y. 122, but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for purposes of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude, which entitled abutting owners to damages.”
The cases cited usually recognized the authority of the New York Elevated cases, hereinafter to be discussed, and approved the distinction from them made by Mr. Justice Mitchell.
But, as has been said, we are not concerned primarily with the correctness of the rule adopted by the Court of Appeals of New York and its conformity with authority. This court does not hold the relation to the controversy between these parties which the Court of Appeals of New York had. It was
It was from this provision of the Constitution that Marshall in Cohens v. Virginia, 6 Wheat. 264, derived the power of this court to review the judgments of the courts of the States, and, in defining the appellate jurisdiction, the Chief Justice expressly limited it to questions concerning the Constitution, laws and treaties of the United States, commonly called Federal questions, and excluded altogether the thought that under the Congressional regulation the jurisdiction included any power to correct any supposed errors of the state courts in the determination of the state law. Such was the expressed limitation of the original judiciary act, in its present form found in section 709 of the Revised Statutes, which has been observed by this court in so many cases that the citation of them would be an idle parade. It is enough to refer to Murdock v. Memphis, 20 Wall. 590, where, after great consideration, it was held that under the judiciary act, as amended to its present form, this court was limited to the consideration of
In the case at bar, therefore, we have to consider solely whether the judgment under review has denied to the plaintiff any right secured to him by the Federal Constitution. He complains:
First. That he was denied the due process of law secured to him by the
Second. That the law which authorized the construction of the viaduct, as interpreted by the Court of Appeals of New York, impaired the obligation of the contract with the city of New York, which is implied from the laying out of the street, in violation of
Has the plaintiff been deprived of his property without due process of law? The viaduct did not invade the plaintiff‘s land. It was entirely outside that land. But it is said that appurtenant to the land there were easements of access, light and air, and that the construction and operation of the viaduct impaired these easements to such an extent as to constitute a taking of them. The only question which need here be decided is whether the plaintiff had, as appurtenant to his land, easements of the kind described; in other words, whether the property which the plaintiff alleged was taken existed at all. The court below has decided that the plaintiff had no such easements; in other words, that there was no property taken. It is clear that under the law of New York an owner of land abutting on the street has easements of access, light
The remaining question in the case is whether the judgment under review impaired the obligation of a contract. It appears from the cases to be cited that the courts of New York have expressed the rights of owners of land abutting upon public streets to and over those streets in terms of contract rather than in terms of title. In the city of New York the city owns the fee of the public streets (whether laid out under the civil law of the Dutch regime, or as the result of conveyances between the city and the owners of land, or by
The plaintiff in the Story case held the title to land, injuriously affected by the construction of an elevated railroad,
“The question here presented,” said Judge Tracy (p. 174), “is not whether the legislature has the power to regulate and control the public uses of the public streets of the city, but whether it has the power to grant to a railroad corporation authority to take possession of such streets and appropriate them to uses inconsistent with and destructive of their continued use as open public streets of the city.”
In the case of Lahr v. Metropolitan Elevated Railroad Co., 104 N. Y. 268, decided in 1887, the plaintiff held title by mesne conveyances from the owner, from whom the land for the street had been acquired by condemnation under a statute, which provided that the land thus taken should be held (p. 289) “in trust, nevertheless, that the same be appropriated and kept open for or as part of a public street . . . forever, in like manner as other public streets . . . in the said city
In the case of Kane v. Elevated R. R. Co., 125 N. Y. 164, decided in 1891, it appeared that the street there in question was laid out during the Dutch regime, when the town had absolute title to the fee of the streets, with no easement over them in favor of the abutting land. But it was held by the court that by virtue of certain legislation, not necessary here to be stated, New York City owns the fee in all of its streets upon a trust, both for the public and the abutting land, that they shall forever be kept open as public streets, and that as to an abutting owner this trust cannot be violated without compensation. But in the opinion the limits of the principle were again carefully guarded. It was said by Judge Andrews (p. 175): “Under the decisions made there seems to be no longer any doubt in this State that streets in a city laid out and opened under charter provisions may, under legislative and municipal authority, be used for any public use consistent
It would be difficult for words to show more clearly, than those quoted from the opinions, that such a case, as that now before us, was not within the scope of the decisions or of the reasons upon which they were founded. The difference between a structure erected for the exclusive use of a railroad and one erected for the general use of the public was sharply defined. It was only the former which the court had in view. That the structure was elevated, and for that reason affected access, light and air, was an important element in the decisions, but it was not the only essential element. The structures in these cases were held to violate the land owners’ rights, not only because they were elevated and thereby obstructed access, light and air, but also because they were designed for the exclusive and permanent use of private corporations. The limitation of the scope of the decision to such structures, erected for such purposes, appears not only in the decisions themselves, but quite clearly from subsequent decisions of the Court of Appeals. In the case of Fobes v. R. W. & O. R. R. Co., 121 N. Y. 505, Judge Peckham, now Mr. Justice Peckham, made the following statement of the effect of the Story case. Certain portions of it are italicized here for the purpose of emphasizing the point now under consideration (p. 517; the italics are ours):
“It was not intended in the Story case to overrule or change the law in regard to steam surface railroads. The case em-
“The structure, by the mere fact of its existence in the street, permanently and at every moment of the day took away from the plaintiff some portion of the light and air which otherwise would have reached him, and, in a degree very appreciable, interfered with and took away from him his facility of access to his lot; such interference not being intermittent and caused by the temporary use of the street by the passage of the vehicles of the defendant while it was operating its road through the street, but caused by the iron posts and by the superstructure imposed thereon, and existing for every moment of the day and night. Such a permanent, total, exclusive and absolute appropriation of a portion of the street as this structure amounted to was held to be illegal and wholly beyond any legitimate or lawful use of a public street. The taking of the property of the plaintiff in that case was held to follow upon the permanent and exclusive nature of the appropriation by the defendant of the public street, or some portion thereof.”
The distinction between the erection of an elevated structure for the exclusive use of a private corporation and the same structure for the use of public travel is clearly illustrated in the contrast in the decisions of Reining v. Railroad, 128 N. Y. 157, and Talbot v. Railroad, 151 N. Y. 155. In the first case
The trust upon which streets are held is that they shall be devoted to the uses of public travel. When they, or a substantial part of them, are turned over to the exclusive use of a single person or corporation, we see no reason why a state court may not hold that it is a perversion of their legitimate uses, a violation of the trust, and the imposition of a new servitude. But the same court may consistently hold that with the acquisition of the fee, and in accordance with the trust,
In basing its judgment on the broad, plain and approved distinction between the abandonment of the street to private uses and its further devotion to public uses, the court below overruled none of its decisions, but, on the contrary, acted upon the principles which they clearly declared. The plaintiff, therefore, has not shown that in his case the state court has changed, to his injury, the interpretation of his contract with the city, which it had previously made, and upon which he had the right to rely. The case at bar is not within the authority of the Muhlker case. When Muhlker acquired his title the elevated railroad cases had declared the law of New York and it was here held that he had the right to rely upon his contract as in them it had been interpreted. The structure complained of was in the Muhlker case, as in the Elevated Railroad case, one devoted to the exclusive use of a private corporation. This court, in order to obtain jurisdiction and to declare that a Federal right was violated, was obliged to hold, and did hold, that the two cases were identical, and that
The judgment is
Affirmed.
MR. JUSTICE MCKENNA, dissenting:
I am unable to agree with the opinion and judgment of the court. I think this case cannot be distinguished in principle from Muhlker v. Harlem R. R. Co., 197 U. S. 544; Birrell v. New York & Harlem Railroad Co. and Kierns v. New York & Harlem Railroad Co., 198 U. S. 390. On the authority of those cases the judgment in this case should be reversed. Those cases were determined by Story v. Elevated Railroad, 90 N. Y. 122, and Lahr v. Metropolitan Elevated Railroad Co., 104 N. Y. 268; known as the Elevated Railroad cases. The structures there described are what are known as elevated railroads, and may be presumed to be familiar, and a structure of substantially similar character was the subject of the controversy in Muhlker v. Harlem Railroad Co., Birrell v. Same and Kierns v. Same. Its characteristic was elevation above the surface of the street, and this was the point of the decision. Let me quote from the Story case: “But what,” said the court,
It may be said there was a qualification made in those cases and recognized in the Muhlker case, that it was not alone the elevation of a structure above the surface, but the elevation of one “useless for general street purposes.” I may accept the limitation. The structure in the case at bar comes within the characterization. It is useless for general street purposes. It obstructs the frontage of abutting lots and affords no access to or from them in any proper sense. There is a descent by stairs from it to the street below, but for pedestrians only—not necessarily for vehicles. But there is a like descent by stairs from elevated railroads to streets below, but this did not save the roads from liability for abutting property.
It must be borne in mind that this case is not disposed of by making a contrast between the passage of a railroad and the traffic on a street. The contrast is catching and only seems important. In New York a railroad is a street use and can be
The Elevated Railroad cases get significance from the arguments of counsel. Such arguments, of course, are not necessarily a test of the decision. But they may be. The opinion may respond accurately to them. We find from the report of the Story case that the argument of Mr. Evarts for the plaintiff was that “a permanent structure above the surface, and an encroachment thereby, and by its use upon the appurtenant easement of the open frontage held by the abutting proprietors, was not covered by the original condemnation for the public easement, which was limited to a maintenance of such open streets and perpetual frontage. People v. Kerr, 27 N. Y. 188; Craig v. Rochester R. R. Co., 39 N. Y. 404.”
Mr. Choate, also for the property owners, submitted the following: “The abutting owners on the streets have an interest in the nature of property for all time in the streets above their surface, and in having them kept open and unobstructed forever, of which they cannot be deprived without being compensated.” The contentions express the invocation of the property owner of the court, and the court responded to and sustained it. Is not that response rejected in the case at bar? The structure in the case towers as high as a house of five stories and is planted on columns, the size and strength and number of which can easily be imagined. Does it need any
The buildings that stood upon the land when the structure was built were practically under its shadow.1 Any buildings that may be erected will be equally so. “To get above it,” plaintiffs’ counsel asserts, “the abuttor must build up five stories,” and it is only from such elevation that he may contemplate the traffic that passes his premises, and must pass his premises. And even then, counsel also asserts, light can only reach the abuttor “through a slit ten feet wide between his eaves and the edge of the structure.” And to this measure his right to an unobstructed frontage, his right to unobstructed light and air, has been reduced. Is it possible that the law can see no legal detriment in this, no impairment of the abuttor‘s grant from the city, no right to compensation?
I am not insensible of the strength of the reasoning by which this court sustains that conclusion, but certainly all lawyers would not assent to it. Indeed one must be a lawyer to assent to it. At times there seems to be a legal result which takes no account of the obviously practical result. At times there seems to come an antithesis between legal sense and common sense.
I say this in no reproach of the law and its judgments. I say it in no reproach to the opinion of the court. I recognize it proceeds upon distinctions which are intelligible, although
From my standpoint, what the courts of States other than New York have decided is of no consequence to the pending controversy, and I take no time therefore to dispute the pertinence of their citation to justify the structure of which plaintiffs complain.
I am authorized to say that MR. JUSTICE DAY concurs in this dissent.