*1 Story 122 E. E. York v. New
Statement case. The of other contracts. extent are used the construction must determined from read used, obligation language of the circumstances transaction. surrounding light But when the intention has thus been ascertained, parties then the courts surety carefully guard rights him a not within the protect liability precise against strictly 2 Caines’ Cases, 1; terms Simond, of his contract. (Ludlow 62 Cromwell, Crist v. 351; Burlingame, Barb. McCluskey v. 11 N. Y. 13 id. McKee, Rochester City Gates v. 232; 593; Gibb, Bank v. 21 id. L. & Pybus 88; Elwood, Eng. 57.) Eq.
The order should be affirmed and absolute entered judgment with costs. against plaintiff,
All concur. affirmed
Order accordingly. judgment The Appellant, New York Elevated Railroad Rufus Story, Respondent. mpany, Co rule, a village lands in laid by where out the owner streets, map thereof, where, into made and a lots and in the de- lots, scription of one or more of conveyance in a such desig- which are street, abutting upon map to, a . map as referred noted way a acquires, against grantor, strip over the grantee as street, grantor a and that cannot as thereafter land referred use with its use appropriate land inconsistent as such municipal corporation applies when it with deals lands as owner. streets, lay power open out and to having ac- city of New York power has to dedicate its own quire purpose, lands lands for lands, grantees covenant with its use, and to bind itself kept as a be forever street. dedicated shall that lands so under lands water city prior caused certain Bast to' 1773 The said it, Jots, surveyed and laid out into streets and river, to be owned- year conveyed separate In that map thereof. designated other, which, each adjoining surveyed two of lots so grants said mapped, designated map were one said streets crossed on the (now street). grant W. F. Bach the lot by described the metes v. Sew York Elevated E. E. Co. *2 Statement of case. upon map, bounds shown and it specified stated to be of width a on the north specified and of side another width on of south side said street. Each deed part contained covenant grantee on the of the “ ” streets, build and erect and portions said street other of which were included in the grant, of the boundaries which the deed declared “shall forever thereafter continue and be for the free and passage, common and * * * public ways as and streets for the inhabitants and all others in like manner as the other city of the lawfully same now are or streets ought grantees to be." The made and constructed the streets mentioned Held, that, in the grants. conceding city retained the fee of W. street, it specified, dedicated toit and use covenanted that it should kept open forever be aas for the benefit of the prop- street erty ; thus secured constituted an easement which became “ appurtenant conveyed at once to the land and formed integral part an it, of the and estate” the meaning constituted within of 1, (Art. provision of the 6), prohibits Constitution State § taking private property just compensation. without portions through
Plaintiff claimed conveyances said lots various mesne “ ” conveyed which described land northerly as bounded in front on W.) Upon (formerly conveyed the land F. street. awas warehouse occu pying the whole front on In an action to said street. restrain defendant that, constructing an upon appeared elevated railroad it said street with municipal corporation, the consent of the proposed to construct road about fifteen feet supported above the of the surface upon placed along partly edge columns and of the outer of the inside extending and track of the sidewalks across whole traveled street. would, passing (cid:127)The trial court that this and the found construction trains “ ” * * i:‘ * * extent, impair and light to some obscure also, plaintiff’s general premises usefulness the line of abridges the with the as a columns sidewalk interferes street thoroughfare,” incidentally damage plaintiff’s prem and the road would rHeld, Finch, JJ., depreciate (Miller, Earl and its value. dis ises 6 proposed incompatible senting), that the with structure was and"destruc such, plaintiff’s property rights, tive of use street as unless with, properly acquired compensa- far interfered were as so ' therefor,would only provision, made violate not but tian said constitutional 606, 1875; (Chap. which defendant bound Laws also statutes ; 607, 140, 489, chap. ; chap. chap. Laws 1850 Laws of 1866 Laws action 1867),and that the was maintainable. 206), (50 (27 Y.188), Kellinger N. v. F. S. 8. B. Co. id. T. People Kerr 635), 21), Chicago Lansing (4 (99 Wend. Gould v. H. U. S. Smith Co. v. 522), distinguished. B. B. N. Y. « B. Co.{6 conveyed, city, the fee of street was grants It seems from the said easement, simply e., the use as city reserving i. JJ., dissenting), plaintiff’s (Miller, street; Finch, also Earl premises. opposite conveyed to him fee of one-half the deed (cid:127) E.E. v. New York Elevated
Statement case. also, that where the fee of land It seems has been taken kept open public street, to be and used trust as authorized 49, (3 177), R. L. no act can be authorized structure § open it which with the continued thereof inconsistent use street. subjects appurtenants to and of authorities easements lands, running legislative municipal with control covenants also as collated over discussed. ; 17, 1882.) (Argued June decided October 1882 *3 Appeal of the General Term of the Court judgment of Common in and Pleas for the and of New city county entered an order made York, November which 10, 1879, upon affirmed a in favor entered defendant, judgment upon of the court trial at decision on Term. Special This action to restrain defendant from con- brought of Front in the street, road in its portion city structing York, New opposite plaintiffs premises. known as and 9
Plaintiff is the owner of Nos-.7 premises deed in His described Front said city. premises as follows: conveyed
“ All that certain land lot of and situate, lying being New York first ward on the south aforesaid, city and Front corner of Moore bounded streets, easterly northerly aforesaid, in front Front street by easterly by conveyed ground Sarah, wife, to Elias H. Herrick, John S. Conger by date the first 1839, deed day May, southerly by bearing the said Elias H. now or late of Herrick, westerly ground in Moore street breadth aforesaid; on Front containing feet ten the rear inches, street thirty t thirty-eig1"' ‘ and in ten on each side th- inches, . feet, length eighty more or less.”
Prior to the the said formed of. year part premises water c lots, lots which belonged usually described were ol York, which New part poration city h river, tract under water in the East which of land city and stree. and laid out into lots caused to be surveyed Stoby New Yobk Elevated E. E. Co. Statement of case. aon said water-lots were designated map. granted two One made Isaac De city
conveyed grants. dated 1773, December the other Thomas 2, Peyster, Ellison, dated December 1773. The in said Jr., descriptions grants terms; are in similar that in De deed is : follows Peyster that certain and water All ground lot, situate, lying andbeing south ward of the of Hew city York, to a opposite certain called the fronting dwelling-house commonly Dock street the said wharf, him, Isaac De belonging Peyster; the said street called Dock street commonly wharf, be- lying tween the said and water lot to be dwelling-house hereby water lot said is to extend granted, hereby granted far whole breadth so into the East southerly thereof, river of the said as the new on harbor the east pier side to William does thereof, Milliner, extend, and is in belonging inches; breadth said Dock street feet two upon thirty-two also breadth north side of Water street upon twenty-eight likewise in feet two breadth inches, south side said Water street feet eleven twenty-six inches, likewise breadth East river or harbor of the said city, *4 feet two bounded inches, being twenty-one northerly by said street Dock and to made of (which enlarged of breadth the water feet) lot easterly by forty to granted Thomas Hunt and Elizabeth Hunt, the said East southerly by river or and the water lot harbor, westerly granted Ellison, a this Thomas made of and by survey other sundry lots Gerard one dated Bancker, of city surveyors, tenth in of and filed of office town day November, clerk, reference had will more thereto and being fully appear; also all the and which title interest the said estate, they, right, of aldermen and of the New mayor, commonalty city York, in in and the soil under water front of of, above-described premises.” referred to as Water street now Front street. street clause,
Each contains this of the description grant following the name of the And the said premises, grantee: omitting * -x- * administrators himself, heirs, executors, (grantee) York Elevated New Eí E. Co.
Statement case. further and doth and covenant, to and promise assigns, grant aldermen and the said of the mayor, with commonalty city in their manner and form York, successors, New and following, * * * that the said Iris that is to heirs or , say, assigns, at his their and them, and cost shall or some one charges, and or make, built, and will cause to be erected erect build, firm and a and wharf or street of fifteen made sufficient good, on the feet, breadth, inward measure, part English and to the said water contiguous adjoining lot hereby granted, make the said street more street, called Dock commonly feet the said fifteen there- by adding commodious spacious feet the said as to make unto, present twenty-fiver so shall and- same be built feet, of the breadth forty manner or far in such line and erected so straight forthetime said shall as one being surveyors shall and will build, and also erect direct; instruct one other erected built, made, cause be good make, feet, or street of firm wharf meas- forty-five English sufficient hundred and at the distance of one breadth, thirty-nine ure, called street, the aforesaid street Dock feet inches eight the eastward street to ad- thereof, with present range made called Water there lately the basin joining erected and made in such built, shall also be manner said street line as one of surveyors upon straight And also shall and will instruct and direct. at shall said city erect and costs, their charges expense, his and own proper built, made, erected sufficient to be make, good, or cause feet, or street measure, and firm wharf forty English lot outward water on the granted, breadth, part hereby harbor of the said and that river or city, the East next to manner and made erected built, shall be same *5 line as of the of the said one surveyors city or right straight and direct, fifteen, three streets of said forty-five which shall or made and finished on. before shall be feet, completely forty of our which will be the day May, year the twenty-sixth forever said several streets shall thereafter 1778; Lord of, the common as free and and be for passage continue Story New E. E. York Statement case. of the said ways for the inhabitants city
all or the same, others through by passing returning the same are or law- the other streets of now city manner as to be.” fully ought found the facts others:
The trial court following among “ as That defendants, Sixth. railway proposed or Front will cause substantial on no street, be constructed animals and persons,' material passage impediment and but street, in and obstruction slight vehicles along the street.” air from light “ title That the and of his plaintiff Thirteenth.' derived was from the his said premises grantees grantors from some cases devise, under the said by grants and in and that in all inheritance, some conveyance; some by are described in front bounded premises descriptions on Front street. “ That street of land Front occupies strip Fourteenth. mentioned as Water said street, which in the grants execution of street and that grants, prior across lots granted conveyed. thereby projected after execution of the said That,shortly “Fifteenth. filled in lots therein described were the water grants, them; those under or through grantees claiming and that made, was erected them' presumably, Front one of the and made directed surveyors was erected the city. said is erected a That Sixteenth. premises plaintiff’s front four the entire stories warehouse, high; occupying he has used the same for his and that since' occupation the merchandise in which he the sale of and for office, deals. That street, Front
“Seventeenth. length is a said block in front plaintiff’s premises, between the feet; width street-way about forty-five wide; feet that on the south- about twenty-four curbstones is about eleven the curbstone from erly building side "the side curbstone to the northerly that on feet; *6 Story Hew York Elevated E. B. Statement case. ten and that feet; about of the between space buildings four and the curbstone about one-half buildings and entrances to areas, used for the and the resi- stoops feet is sidewalk. due for “ That defendants an construct Eighteenth. propose street, railroad Front front of the elevated through plaint- extend to the river; iff’s Harlem Battery premises, mode of construction in Front street consists general fifteen about inches of a series columns fourteen square, five inches inside feet about and one-half placed high, edge which four sidewalk, carrying cross-girders, support are which cross-ties placed sets longitudinal girders, for that railroad; sets rails steam three transverse are inches deep, thirty-nine longitudinal girders girders that the cars which inches defendants deep; thirty-three such railroad will have to run over bodies eleven feet propose that the cars in will tracks; running above project high either side of feet the sidewalk on street; over two about reach to within about nine feet will that they plaintiff’s to run the defendants trains as propose premises; at three minutes and rates of as once in often every speed miles hour. twenty eighteen high “ That Nineteenth. the south- premises plaintiff’s occupy of Front and Moore corner and that the de- streets, easterly their columns one of at corner on put fendants propose and inside curb line. street, of Moore line “ That said elevated railroad structure will Twentieth. obscure the the abutting extent premises op- light to some trains will to some also extent it; passing posite charac- give obstruct light, light flickering would be to some extent business ter, objectionable when an and to light uninterrupted necessary, purposes, . usefulness of extent impair plaintiff’s some general premises. columns the side- the line of That abridges Twenty-first. as a interferes with walk, correspondingly thereon. located such columns where thoroughfare, *7 Story 129 New York Elevated R. R. Co. Statement of case.
“ That the fronts of Twenty-second. the abutting buildings would to observation exposed passengers pass- and the of those in the trains, second or ing privacy stories upper invaded. premises That the in Front structure as Twenty-third. proposed fill much of the street also will so of the carriage-way as is about fifteen feet above the road-way.”
Also, board aldermen of the resolu- had, tion its consent for the construction duly adopted, given road its Front street. operation through E. John Parsons No construction should appellant. to the clause the deed to Ellison De Peyster
given
The
which would defeat
v.
streets,
(Duryea
grant.
11 id.
592;
315;
62 Y.
v.
etc.,
Wells,
Long
N.
Mayor,
Craig
32
Starr v.
381;
Child,
Island Railroad Co.v.
Barb.
Conklin,
5
so as to
construed,
The
Denio,
be liberally
599.)
grant
was that
the obvious intention of the
out
carry
parties,
sub
the title to the bed of the street should
pass
grantee,
32 N. Y.
v.
street use.
Sampson,
only
(Springsteen
ject
v.
1
Cas.
Jackson
703;
92;
Jackson v.
Johns.
Dunsbaugh,
Holmes
96;
38 H. Hurd v. Metc. 212; Curtiss, 110; N. 7 352; 18 Krotz, Iowa, Kannuller v. 274; 7 Pick. Burnham, 1 33 v. Seld. ; Swick v. 1 Borst Sears, Hill, 17; Empie, 132; Plow. 10, 107; Touchstone, 80, Co. Shepherd’s citing Worrall, v. Litt. id. Minn Peck, ; Co. 47; 79; 526 Supr. § 103; Leavitt v. Towle, 53 N. Y. 1 Conn. 44; Smith, Peck v. conveyances 8 H. The mesne furnish every presump N. 96.) their to convey tion that it the intention of grantors estate and the is to be construed according description Y. 68 N. v. Mott, intention of the (Mott apparent parties. line of the center on street carries 246, 253.) Bounding 23 Co., R. R. Y. Central the street. v. N. (Bissel — Vol. XLY. 17 Sickels n E. E.
130 York Elevated v. Hew of case.
Statement
36 id. 120
Co.,
v.
N. Y. Central R. R.
;
Perrin
61;
N. Y.
Miner v. The
New
etc.,
50
694;
id.
Fee,
Mayor,
Wallace
160;
16
&
200 Sizer v.
;
Deverson,
5 J.
Barb.
S.
York,
1
v. The
Sandf. 323 Lozier
N. Y.
McLachlan,
;
Hammond
42 Barb.
Dovaston v.
Smith’s
465;
Paine,
R. R. Co.,
Central
Banks v.
Wall.
228;
Am.
Ogden,
Lead. Cas.
[U. S.]
[6th
ed.]
N. Y.
The dimensions in a
v. Williams, 37
57;
251.)
Dunham
*8
the fixed
controlled
boundaries.
always
description
(Sizer
Jackson v.
9
Devereux,
160;
Ives,
16 Barb.
Cow.
v.
183;
8 Wend.
v. Swee
Jackson,
Northrop
Wendell v.
661;
1
v.
Cow. 605, 612;
Jackson
196;
Camp,
Barb.
27
ney,
14
id.
v.
723;
McAllister,
v.
Smith
Barb.
7
Widger,
Jackson
44 id.
The words
Davis,
Schoonmaker v.
439-40;
463.)
“
indicate that
entire
in a
less,”
more or
description
plot
without reference to its exact
dimensions.
conveyed
The
Pierson,
v.
2 Johns.
Morris
37;
Canal Co. v.
(Mann
v.
9
Jackson
6
169;
Cow.
Emmett,
Moore,
706;
Paige,
4 Wend.
v.
8
Druse,
318;
Hennion,
Lash v.
Bosw.
Brady
of
The effect
covenant
1773,
grants
528.)
thereafter to
continue,
forever
Front street was
and as
streets and
of,
the free
common passage
said
and all others
of
city,
passing
the inhabitants
ways
same,
in such manner as the other
or by
through
returning
be,”
was not
are,
said
now
lawfully
of
city
ought
the title of Front street
to vest
city absolutely upon
at
as decided
by Judge
city
ground
Robinson,
to all the
streets.
time had an absolute title
v.
(Dunham
2
Y.
Doraston v.
H. L.
Paine,
N.
C.
Williams,
251;
37
Laws,
v.
Colonial
527;
8; Washington Cemetery
Prospect
68
Co.,
Island R. R.
N. Y.
In the
591;
&
Park
Coney
Statement of case. 378; v. Co., Green 13 Wall. Pumpelly 3 Bay 166; Kent’s Com. Termes de 2 452; Easement; Washb. Real Ley, Prop. 307; Beach v. 13 302, Wend. Childs, 343; 22 id. 528.) Whether the is owner in fee of the plaintiff bed of Front isor limited to the of an ordinary right abutting the construction and owner, maintenance of the defendant’s railroad in a new burden or servitude the street imposing violates the Williams v. New York plaintiff’s ( Central rights. R. 97; R. 16 Y. v. Rochester & N. R. Co., Craig Brighton R. The 39 id. v. 404; 68 Co., Strong City Brooklyn, id. v. P. P. & C. I. 1; Cemetery R. Washington R. id. The interest of the owner must Co., 591.) condemned before his proceedings paid by judicial v. 4 can taken. Porter, Hill, (Taylor 140; R. 16 N. Y. Co., The New York Central R. 97; Williams v. 25 id. Co., 526, 530; v. R. R. The Union Troy Wager Co. v. The Ellicottville Plankroad & & Gt. Valley Buffalo v. 20 Barb. Fletcher Auburn 644; R. R. The Co., Pittsburgh Co., The 462; & R. 25 Wend. v. R. Syracuse Trustees, etc., R. 3 Hill, Auburn & R. Laws of Co., 567; 1850, Rochester 140, chap. 18.) Injunction proper remedy protect § The N. the owner’s v. Y. Cent.R. R. (Williams rights. Co., N. 14 id. 506, 16 N. Y. Davis v. 97; etc., Y., Mayor, id. 624; Rochester, Milhau 27 525, 526; Craig v. Sharp, Calkins, 39id. Co.v. Gas-light R. etc., Co., 404; R. Bloomfield Pleas had 62 id. of Common The Court 386.) jurisdiction 1867, and could relief (Laws ; chap. by injunction. grant extra Ho 1875, 606.) Laws of Laws ; chap. chap. Dock this'case. (Atlantic allowance could be granted 45 Y. N. Libby, property rights 499.) *10 of Greneral in owners the streets are within provisions estate hostile real Railroad Act as to acquiring proceedings. Y. Elevated R. R. (In Matter the N. Co., the Petition of of R. R. Gilbert Elevated N. Y. 327; Co., 70 In the Matter of the The v. id. In the Same Matter 361; Anderson, id.) presump as to roads tion country equally applicable the center line. is seized to is owner adjoining 133 E. E. v. New York Elevated Co. Statement of case. N. Y. R. Cent. R. 23 Co., v. N. Y. 61;
(Bissell
v.
Embury
500
id.
; Rensselaer &
3
S. R. R. Co. v.
43
Conner,
Davis,
id.
Wm. M. Ewarts The Elevated Railroad appellant. Act re all it for paid quires compensation taken private property for its R. R. Co., Y. El. 79 N. Y. (Matter 327; purposes. of N. Matter El. R. id. The Gilbert R. Co., 361.) property street proprietor precisely he owns the whether also fee same, pub lic or the cover it awith easement or with public municipality trust, or whether the fee same public goes support pub lic easement and the same trust. Co. v. public (Railroad Wall. 272, Schurmeier, 273; 7 Transportation Company 1813 99 U. what 635, S. the law of Chicago, 641.) By takes and what owner of is public private one deprived And and the as the had same owner the whole thing. private absolute, beneficial before the took legal public fee-simple that fee he retains the entire beneficial interest not thing R. S. (2 414; thus with. Wend. Matter 474; Seven parted 1 id. Street, teenth interests of 262.) abutting proprietors the maintenance of their front of lots as open secured and for under the of 1813 act paid if sense of our not law, so, taken in whole or away, use without of Civil part (Code compensation. 162, 164,165, Arnold v. Proc., 163, 166, 245,247; Hudson §§ R. R. S. Y. Co., N. the streets 661.) occupation the structure and defendant traffic is not within act and is easement under the subver acquired sive of the easement and estate, beneficial abutting proprietor’s
134 York v. New E. E. Co.
Statement of case. under for that act. Y. A N. (16 109, secured paid 110.) above the structure an surface, encroach permanent its use ment easement of thereby appurtenant held not frontage open proprietors abutting condemnation easement covered for original which was limited to maintenance such open 188 v. Y. Kerr, ; v. N. Craig 27 perpetual (People frontage. 39 id. Rochester R. R. Co., 404.) The H. for owners. owners Choate
Joseph property all on the streets an interest in the nature of time in the surface and them streets above their kept having cannot be of which unobstructed, forever, open they v. without deprived being (Hayward compensated. 314; 8 etc., Livingston 3 v. The etc., Mayor, Seld. Mayor, A. 188; N. Y. re B. & 99; Kerr, v. 27 85, Wend. People Co., 50 id.) T. Oaso and others.
Julien Da/oies Foster for Roger acts of authorization the defend legislature ant to the without any compensation providing plaintiff a law contracts, and, would obligation impairing Constitution of the United therefore, infringement 6 Peck, 1, U. art. Fletcher v. 10; S., States. (Canst, § 9 id. 43 College v. Dartmouth Cranch, 136; ; Terrett Taylor, Beers, v. 4 Wabash R. R. v. Woodman, 518; Wheat. in Caso 2 Porter and Black. 448. See Messrs. brief Stone 138; Ct. York, v. New Supr. El. Co Metropolitan Ry. 16 How. Swormstedt, v. Becker, 346; Scott 4 Smith Price, v. U. S. 103 Schults, v. 288; R. R. Co. Florida Central S.] [U. Y. Co., 13 N. New Cent. R. R. 118, 140; v. York People v. Carry Carry, Beav. 193; v. 3 78, 80; Knight Knight, 274; 2 98 Mass. Bisp & Lef. Warner 189; Bates, Sch. Wend. 8 ham’s v. The 74; Mayor, Eq., 71, Livingston §§ 535; Co., 508, Drake R. Barb. 99; v. Hudson River R. if Even Union Branch R. R. Conn. Co., Imlay 255.) predecessor conveyance plaintiff’s language *12 Story v. Hew York B. B. Co. 135 Statement case. an trust for the benefit of abutting
did not create
express
the sale of this land to the
bounded
owners; upon
city,
and
them
an easement
took
street, they
by implication
given
then'successors
uninterrupted passage
way
(In
land.
re
and air over it to their
building
light
id.
Street,
472;
2
Wend.
In re Lewis
262;
Seventeenth
1
Street,
22 Y.N.
8 id. 85
v.
;
Hastings,
v.
Livingston
Smyles
Mayor,
48;
45 N. Y.
James,
v.
2
Cox
217;
Borst, Keyes,
Fonda v.
v.
;
Mayor
Statement of case.
noise and
to his
obstruction
entrance
even
thereto;
though
these
result from acts committed
damages
the defendant
the land
beyond
v.
plaintiff.
Cro.
(Mosley
Pragnell,
Car. 510 Fish v.
4
;
311;
Dodge, Denio,
Morris v. Brower,
Anthon’s N. P. 368; Carhart v. Auburn Gas-light Company,
297;
22 Barb.
v.
Attorney-General
Metropolitan Gas-light
Company, Daily Register,
10,1882;
v.
February
Lam
Crump
L.
3
409
bert, R.,
;
Eq.
v.
Attorney-General
Metropolitan, Ry.
Co.,
1882;
Daily Register, February 10,
Attorney-General v.
L.
Co., R.,
Daily Register, February 10,1882;
Metropolitan Ry.
Hutchins v.
63
Barb.
Conklin v.
251;
Smith,
62
Phoenix
Mills,
id. 299
v.
; Fish
4
311; Drake v.
Denio,
Hudson
Dodge,
River
409;
R. R. Co.,
Co. Caledonian Bradley, Co. Ry. Og ; 2 Sc. 246 v. B. & 2 C. Crowther, Boulton Macq. App. ilvy, v. L. J. Exch. 25 ; ; 706 Whitehouse 27 Canal Birmingham Co., Constitution, Dr. Lome Institutes 36 1 Bl. 134; Coke, ; p. 12
Com. Brown v. 160; R. R. Co., & Cayuga Susquehanna — 18 Vol. XLV. Siokels E. E.
138 v. Hew York Elevated
Statement of case. 486; N. Y. Const. Lim. 3, Cooley’s 4; De ed.] Toeque [1st America, ville’s Beeve’s Translation Democracy Am. [2d ed.], 1 Com. 4 Coke’s 36 ; 161; 80 Bl. Inst. ; Const. Cooley’s Lim. 46 v. 45, ; The Village Dela [1st ed.] Crawford 747; 466, 7 Ohio St. at ware, 459, v. pp. Bloodgood Mohawk
& Hudson R. R.
18 Wend.
Co.,
9, 29, 31; Barron
v.
2
Jurist.
Amer.
Mayor
Baltimore,
210; Goodall v.
at
5 Wis.
38,
Milwaukee,
32,
45;
City
pp.
Cooley’s
on
Lim.
Water-Courses
85;
Const.
Ang.
[1st ed.]
[6th
357,
v. Kerr, 37 Barb.
461;
412,
ed.],
People
415;
§
1843,
Ho. 1,
58-60;
Law
April,
American
Mag.
Bunn v.
at
397,
45
on Dam.
419;
Ill.
The People,
p.
Sedg.
[5th ed.]
Law,
523,
on Stat.
Const.
122;
524, note;
121,
Sedg.
26
Ferris,
B.
R.
Co. v.
Texas,
B.
& C.
R.
at
588, p.
Buffalo
v.
Eaton
B. O. & M. R.
64;
1st Am. Law
5
602;
R.,
Mag.
518;
at
515 to
Stone v. F. P. & N.
504,
H.
pp.
N.
W. R.
”
at
If the word
Ill.
394,
68
taken
p. 396.)
“property
R. Co.,
Austin calls its
what
“loose and
restricted,
most
in its
vulgar,”
which must be
physical object
sense
physically
signifying
to constitute
acts
it,
taking
order
invaded
v.
constitute
(Wynehamer
taking.
defendant
at
v.
379;
13
Y. 378,
Kerr,
N.
p.
People
People,
Eaton
Litt.
v. B.
M.
b;
399 Co.
C. & R.
;
at
357,
p.
Barb.
513; Wood’s Law on Huisance,
504, 512,
-;
H.N. 5 R.,
Pixley Q. L. B. is taken B., The 223.) property by plaintiff’s its cuts off structure from his land the because defendant, to shine accustomed it. (Ca/rdi which sunlight 2 Johns. ner Oh. 162; v. Cates Newburgh, Trustee of v. The Bank v. 497; 10 Wall. 44 Y. Boberts, N. Milwaukee, 55 id. 661; v. Bailroad 192; Eagle Arnold Compamy, v. L. 2 O. P. B., Cross Company, 638.) Charing Bailway him The from the diminution is taken plaintiff’s property caused smells noise, of his and land house enjoyment of the defendant’s darkness resulting operation road. Mills 4; on Personal (Schouler Introductory, p. Property, on Domain, Eminent A statute authorizing injury 31.) § the smoke, smell, done to the and land house plaintiff’s darkness noise, way, obstruction resulting railroad elevated from the construction and operation him of his would without deprive providing compensation, an in and therefore be law, without due process United States Constitution fringement both XIY the Constitu State of New York. (Amendment of the Constitution 6, tion Art. States; 1, of the United q| § Const. ed.], New on York; 1956.) State of [4th § if statute were It the construction must be presumed, intended obey doubtful, passed legislature 17 law. v. Orange, the fundamental Supervisors (People West 19 111. v. 384; Newland v. Marsh, Bigelow N. Y. 241; Wis. Attorney-Gen 478; 27 Wisconsin Bailroad Company, 4 17; v. N. Y. Dow 400; Norris, eral v. Eon 37 id: Claire, Au 184-186.) Lim. 223-225, Const. pages Cooley’s marginal construed similar statutes always strictly thority given 3 Tuttle, v. (Powell favor and rights. protection private & Albany Matter Boston at 401; N. Y. 396, page 579; Washington at 53 id. Company, page Railroad 591; id. 68 Island Company, Bailroad Coney Cemetery id. v. Armstrong, Park Commissioners Brooklyn id. Bapid 491.) Brown Bailroad 239; Company, make compensation Acts Transit ample provision *16 140 E. E. Co. New York Elevated
Statement of case. all who under them would deprived any rights. New York Elevated R. R. (Matter Y. Co., 354, 70 N. 327, v. ;355 Caro El. 46 Metropolitan Co., N. Y. Ry. Supr. [14 & 138; v. 13 Chi. Rigney City News, Chicago, Leg. S.] is an 226.) proper remedy plaintiff injunction. (Gardiner v. Trustees 29 Ch. 162; Henderson Newburgh, v. New 5 etc., Miller’s La. 416; Mayor, Orleans, Thomp son v. Grand Railroad 3 Banking Company, Gulf v. 240; How. Davis New 14 N. Y. York, Mayor [Miss.] 525 and 506, at Williams v. New 526; York Central pp. Railroad 16 id. Milhau v. id. Co., 97; 624; 27 v. Sharp, Craig Railroad 39 etc., id. 404 2 Kent’s Rochester, ; Com. Company, 339 and Co., note Bostock v. North ; 3 Ry. [b] Staffordshire Smale & 283 ; v. Giffard, 103 U. S. Kentucky Indianapolis, C., 599; Co. v. Kans. 25 Sy. Andrews, 27 S. Alb. Pacific 357; v. Goddins, L. J. Osburne Carton & Eliza 26; Anno. 1870; beth Cases in St. Choyce’s reprint Chancery, 642; Works v. 11 H. L. Helen's C. Parker Smelting Tipping, 2 Black New 545; v. York S.], Mayor Winnipiseogee, [U. 219 ; v. 7 Robertson Hudson River R. Baumberger, Y.], [N. R. id. v. v. 12 Loeb, 418; Elias, Abbott Mulligan S.], [N. Henderson v. New York 259; Central R. Co., R. 78 N. Y. Musselman s. 423; 1 Bush v. Hicks Marquis, 463; [Ky.], 18 Cal. Gause v. 3 Compton, 206; Jones’ Perkins, 177; Eq. ;436 v. 2 K. & J. Bispham’s Eq., Tiyping Eckersley, 270; § Lord Manners v. L. 1 D. Johnson, R., Ch. v. 673; Lloyd 568; & Co., Chatham & Dover 2 D. J. S. Trus London, Ry. v. Y. tees 70 N. Lynch, 440.) Columbia College Field for The title to the street Da/aid Dudley respondent. does not rest for the reason the mesne plaintiff, transfer v. The do not it to him. Eastern conveyances (Webber 60 Brennan, R. 2 Metc. N. Y. Co., 150; R. English 609.) all the Dutch law the fee of streets and roads According s. Williams, vested State. municipality (Dunham N. Y. Whit 251; Bartow Duer, 130, 140; Draper, v. The 1 Hoffman on the ney Mayor Rights Corpora *17 Story R. R. Go. York v. New Elevated 14.1 Court, Dahfobth,
Opinion per of the J. 508; Furman 199; v. The 5 6 Sandf. Seld. tian, Mayor, 16; St 50 Y. v. R. N. R. Forty-second The Kellinger 206.) clauses deed amount to of relating reservation the streets of clause operating granting part. 11 (Marshall N. Y. v. Guion, 1 D. 461; E. Smith, 294.) Defendant cannot be made now for such responsible damages of the depreciation of plaintiff’s property, disturbance of enjoyment it, is foretold the complaint. (Lansing v. 4 Smith, Wend. 8 21; Cow. 167; Exrs. 148, Radcliff's v. The Mayor, etc., 4 N. Y. v. Brooklyn, 195; Gould Hudson R. R. R. Co., 6 id. N. 522; Williams v. Y. C. R. Co., R. 16 id. 97; 18 240; Barb. 16 101; N. Y. Haff man’s v. Treatise, 289; N. Y. R. Bellinger C. R. Co., 23 N. Y. 48. 42, v. The etc., Mayor, Brook Radcliff's Exrs. 4 Comst. 99 lyn, 195; U. S. The has 635.) legislature duly authorized, and has consented to the city construction operation the defendant’s ; (Laws 606 railway. chap. Matter N. Y. El. 70 N. Y. Co., Matter Ry. 327; Gilbert El. id. Ry. Co., 361.) referred into taking sections 6 and of article 1 7 of the Constitution is the taking of it into (Eaton R. R. 51 possession. Co., N. H. 504; Co. v. U. S. Transp. Chicago, 642; on Const. Lim. Cooley 542 and notes; Green Co., 13 Wall. Pumpelly Bay 166.) Defendant cannot be made answerable for dam consequential suffered after the establishment of the ages, railway. (Brooklyn Case, 235; Park 45 N. Y. Ninth Avenue id. Case, 732.) J. The is the owner of land plaintiff situated Danforth, on corner of and Front Moore streets in the New on York, which he or his erected To grantors buildings. their air and are access light", enjoyment, indispensable, had Front street. states that the through complaint defend- ant is' about to construct a railroad above the surface of that in such manner as will accessto the obstruct buildings, of the air. The deprive benefit plaintiff light trial court has in these substance found matters favor result, other plaintiff, leading among things E. E. v. Eew York Court, Dahfobth,
Opinion intends to construct such road series of the defendant fifteen fourteen and six about inches feet columns, square, *18 and the of the inches inches inside sidewalk five edge high, placed inches to from thirty-nine deep, thirty-three carrying girders rail- three sets of rails for steam the of cross ties for support will, thereon, intended for this road when road. cars placed will tracks, the eleven feet above running bodies high street, on side of the either two feet the sidewalk over project the feet of buildings. and will reach nine plaintiff’s within in three as as once to run its trains often intends The defendant miles eighteen at a rate of and minutes, speed vhigh hour. “ would, that to this construction The learned court found the that some the obscure extent, abutting premises; light to will and the trains also do this,- give light passing character business purposes” flickering objectionable usefulness of the “and to some extent impair general ” “ line that the of columns abridges plaintiff’s premises; street as a thoroughfare, interferes with sidewalk, ” “ located; that will .where structure such columns is more than fill so of the street as carriage-way much road-way; ” “ the fronts of the that abut- fifteen feet above will be to passengers observation exposed ting buildings in the of those second and the trains, privacy passing is also that found, It of the invaded.” stories upper premises “ character,” will continuing these be of constant things to incidental and will damages tend the occasioning ” its value; but plaintiff’s premises depreciation results these also finds the of the defendants acts producing no of action. has cause would be that the lawful, plaintiff This conclusion rests further finding mayor, are the' of New York aldermen and commonalty lots, in fee of Front owners plaintiff’s opposite never, the same in fee, is seized of he has been not, there- was, nor had therein. The estate or interest complaint any the defend- and an made fore, dismissed, order giving this order ant an From extra allowance of costs. E. E. Go. v. Hew York Court, Danforth, Opinion of the dismissal plaintiff from the appealed judgment and order were affirmed. where General both Term, judgment it is somewhat evident extended, is this statement Although the case are within narrow facts of compass, essential that the material found, think, I and will be question, legal its and leads at answer, terms, however difficult simple whether scheme of the defendant in once the inquiry If it does, volves the taking property plaintiff. in its erroneous favor is substantial the judgment act, that the intended when would violate performed, ground Constitution, which declares not only provision taken shall not be without just compensation but the statutes defendant (Art. 6), § *19 606; 1850, of 1875, 140; of act bound act (Laws chap. chap. 697; 1867, act of or which 1866, 489), to chap. chap. they 489; their existence Laws of (Laws 1875, owe chap. whose and would not have been validity upheld, chap. 606), in the of this unless, court, means they provided to opinion re Petition Gilbert (In secure such compensation. in the land York, R. to New Co., city acquire respondent, N. Y. re 361; In Petition New Kobbe, York appellant, id. R., Elevated R. 327.) first, that as the owner of the contends, abut- plaintiff the the has the fee of one-half bed of he
ting premises is and which the road to be thereto proposed through opposite the street the if the fee of as he, second, built; city, to access air and and af- has such light owner, him as entitles to road-bed the street above pro- forded by uses, until it those it kept by legal pro- tect and open is taken from and him. cess compensation upon just I to discuss second ground first propose place than the suf other, equally importance of greater general to sustainhis case. It favor, if in the found ficient, plaintiff’s streets is of Hew York. the fee of the city assumes its intended' acts The defendant through permission justifies in what manner the to not material It is inquire city. interest what title, for the or title, its plaintiff’s city acquired E. Co. E. [Cot., v. New York Elevated Court, Opinion per Dasforth, of the was derived from His ever it lots and is, the street in it. tract, parts larger which, to question prior Ha)7, 1773, one of its to engineers caused out into survey lay lots, streets and upon designate map. dated deeds and in respectively
By May December of that the lots year, conveyed question they named grantees metes and The street therein, bounds.. referred already as Front street marked out upon under the name of map Water and if description premises conveyed — include does not its bed as I am now that it assuming does not—it at least it street and causes brings adjoin it. front lots and street are map, “ in the deed are described as side of being upon Water” “ feet and street, so (now Front) inches, the sur- many other made this lots Gerard vey sundry Bancker, dated tenth one of city surveyors, November, day filed in the town will 1712, and oifice more clerk, fully thereto with appear, appurtenances belonging apper- taining.” ^ “ on The deeds contain covenant part grantee, erect,” at his own certain streets, build and expense, among ” one now in which said several others, question, “ streets thereafter shall forever continue and be for (it declares) and as free and of, common passage ways *20 the of the said and all inhabitants others city, and re- passing the like manner same, or as the through other turning the same or are, of now to be.” ought lawfully that street trial court finds Front The the of land occupies strip in those mentioned as Water that street; which grants prior that street was the their execution across lots projected and and after their exe- granted conveyed, shortly thereby street to was and made referred established cution, The describes the lot in plaintiff conveyance grantees. in front Front street as bounded afore- northerly “ question the trial finds that and court the same is erected said,” “ entire and four stories front, warehouse occupying high.” effect of the circumstances It consider is not necessary Stoby New Yobk Elevated 1882. ] 145 E. E. Co. Court,
Opinion of the Danfokth, I have now adverted in the to, upon rights public street in It is question. to be a conceded street. But besides the of which the right as one of the passage, grantee, public, he certain other as acquired, of gained purchaser rights lot, became entitled to all the at advantages it. tached to The official in a office survey—its filing — the deed to that conveyance and con referring survey covenant for construction of the street and its taining lot maintenance, malte as to him and the a dedica purchased tion of it to use it constructed. for which was The value it is lot was enhanced to be thereby, presumed and the received an grantor grantee paid, enlarged price by was of this added value. There thus secured reason the street forever of plaintiff having privilege no For that special such. express open purpose, kept the sale in reference to dedication, it, was necessary; grant lot with its appurtenances, the conveyance themselves sufficient. (Wyman were the consideration paid 11 Wend. Trustees Watertown 487; Y., v. N Mayor thus was an secured incor 510). v. Cowen, Paige, at the lot, it once became hereditament; appurtenant poreal ” It the estate in it. follows the part and formed integral incumbrance the land perpetual estate and constitutes it the lot be attached, the moment From it. with burdened the servient and the way open dominant, came the Y. v. Miller, 9 N. Hills 246; Chappell, tenement. (Child 4 id. v. Cowen, 514.) Watertown Trustees 256; Paige, such dedication acts constituting does matter Nor under similar even, State aof are those municipality. held City it was and so circumstances, would be bound, “ In laying 257). N. Y. Carnal Co. Oswego (6 Oswego the buildings in selling court, out village plot,” say land; the State the owner lots, acted as proprietor the streets in reference and the and sale effect survey the survey if the the same laid down on the map, *21 Lesser corpora individual.” sale had been made by single the upon all are bound and other immunity, tions can claim no Siokels—Yol. XLV. Stout Hew Yoke E. E. Co. Court, Danfoeth,
Opinion that retract the principle conduct, promise implied by the would acted, which his purchaser disappoint just (Child expectations. Chappell, supra.) But is the extent this easement? what what rights are secured ? it be privileges Generally, said, thereby may is to have the street that from it so access kept open, may had to the and air furnished lot, across the light open way. and to its uses surface occupies rights lots are above the surface there can subordinate, but adjacent j nobe lawful obstruction to air, the access light they detriment of the To hold would' owner. otherwise abutting enable the its and violate from own derogate grant, faith of on the which the lot was This arrangement purchased. an in effect was that if the would agreement, grantee buy and; on the street, lot he use of might light air over the street. In this case it1 space open designated trial is found court, the structare substance, pro and intended the street defendant, posed opposite would cause actual diminution of premises, plaintiff’s the value warehouse and thus depreciate plaintiff’s light, his this defendant will take work doing thing injury. as if it the tenement itself. Without his as much took property Its man be of little value. it would air profitable light, it in reference to the ob secured is by adjusting agement The ele his over the tained by property. grantor adjoining air are derived both to be ments space light the surface which street is constructed, on land, over made servient He therefore has and which is purpose. it is close it, an interest in that and when land, sought above surface of so it, part light any is to be that interest is measure to injury prevented, de lot, this taken, was, directly and one whose acquired interested it for party becomes supply, pendent upon ease to compensation. but entitled, heard, not only Constitution within the meaning ment of the defendant’s the construction the statutes authorizing it -was lot, as the warehouse as well Toad, *22 147 Stoby R. R. Co. Yobk Hew Elevated Court, Damtobth, Opinion of used owner is, enjoyed, language of 1850 140, act (Ohap. 14, 15, an 18), person having §§ “ in real estate or interest so that if estate, were proceedings instituted condemn for railroad uses he would, one of those whose estate or interests are to persons, be af fected be entitled to notice of the same proceedings,” 14), (§ (§ compensation 16). under the act of 1866
So it is ; (Chap. 697) supplementary that of its embodies as to provisions compensa- while of tion, the act for the (Chap. con- 489), providing struction of line of of experimental the-counties railway Hew York and Westchester, and under which the of road which the defendant is was successor to act, declared that empowered inif the course of its construction vaults or “private improve- ments are interfered with or said occupied construction shall therefor compensation said com- company, paid by owner thereof,” said act afterward pany provided and section 7 (§ 6), provides any “private property or shall used said acquired compensated company, under of laws, the formation of provisions existing authorizing railroad of of corporations, acquisition way rights therefor.” also be within will the terms of the plaintiff provisions entitled An act
of act further to con provide struction steam or operation railway railways State.” counties of the 1875.) As, 606, Laws (Chapter therefore, it is conceded consent the proposed appro street has no't been made priation given, compensation or the it for, above referred to provided taken, proceedings would seem stated in cause action the com plain made out. And here will be well to examine the plaint made decisions this in cases under the. court already arising cited, last viz.: Matter the N. Y. act the Petition Ele Railroad vated N. Y. Matter Gilbert Company (70 327), v. Han Railway Elevated and Same (id. Company, 361), owners, derson In these cases the (id.). rights .abutting the effect of the the statutes for provisions compensa- E. E. v. Hew York *23 Daotorth, Opinion Court, per J. referred, I have were discussed counsel to which
tian, considered conclusions court, although largely do was not decide the which here upon given point judgment several the declarations of the it involved, concerning judges — were made be with deliberation cannot disregarded. They taken in behalf of in owners, position property discussing of the act to that certain conferred power portions appropriate uses, to railroad without com- the streets of the city requiring as such owners would be af- for pensation rights abutting had influence in —and about fected evidently thereby bringing — were thus than dicta rendered. more They the decisions and defined the boundaries were part argument, they the act of the in those which, opinions judges, leg- the limits the Constitu- was within islature kept prescribed by ” “ owners J., whether they (abutting upon tion. says, Earl, therein for which are have rights they the streets) “ it entitled, will not Constitution, under the compensation,” this for the to determine reason appeal, necessary And is made for after refer- again, compensation,” provision the defendant to the same under which statute, claims, ring “ it me room there no for doubt that seems adds, ample made for owners provision any property rights abutting in have in the streets.” not concurred this J., only may Allek, added, “unless the statutes under which but statement, pe- claimed to (the defendant exercise its here) titioning corporation did make for individuals provisions compensation privileges, interest, whether or in- for corporeal every property light or would be invaded con- which appropriated, corporeal, could not be sus- struction and railway, they operation “ of the the several however, He was, opinion tained.” for such whole, as did make ample compensa- acts, provision and that every individuals, tion, property right including interest, easement, whatever way appurtenant or otherwise on these lands owners of lots such streets, abutting in as which is in the with those fee of streets, city, must Constitution under the Laws of under the under which these had, compensated statutes, proceedings E. E. Hew York Danforth, Court, per Opinion of the did owners he ex- exist, Whether such for.” rights it as “not hav- but question, no regarded open opinion, pressed courts, considered been upon by he passed (as said) ing were involved.” The other questions case which who concurred J., J.,C. Miller, judges, Churoh, steps by no result, express opinion Rapallo and Andrews, JJ., agree while reached, others, if such J., with necessity compensation Earl, the conclusion but dissent from exist, ground rights that sufficient was not made. provision compensation
It would that the effect of those seem, therefore, decisions, *24 facts and the the as well as the Constitution and provisions I to which have the before referred, statutes controversy bring viz.: whether the stated, us down before inquiry plaint has individual owner, as iff, property right in the street the interest over which structure is question that I an he has. erected. have to be already expressed opinion that conclusion. The cases lead to Arnold already adjudged R. the R. Y. is of first im 661) v. Hudson R. N. (55 in its the con question already bearing upon portance and able sidered. It was elaborately argued by distinguished there delivered and the counsel in the Court, Supreme opinion learned counsel for the the and much relied quoted upon by result the current of the defendant here, expressing stated the and in to sustain proposition authority, point sense taken physical unless him, actually property made. The cannot be importance word, compensation it than would a fuller notice thus to the case permits given n that A. was owner It otherwise be necessary. appeared a certain take water from to and also right factory, and in no distance from way situate some factory pond the water over and also thereto, carry adjacent and the between pond Innes certain land of one lying or under and either over or trunk, “in raceway factory, of a trunk or race this means He accomplished ground.” this title to defendant it. The over acquired carried way in fee the owner became land by purchase, intervening Story Kew York Elevated E. Co. E. Court, Opinion per Daheokth, of the for railroad thereof, trank removed the purposes, placed “ underneath the it soil rails laid and used down by them,” plaintiff’s K"o was made or damage. compensation taken to his action proceedings acquire right. Upon brought, he at was nonsuited Circuit, upon ground, among that the defendant did act others, con complained its under road, statute authority structing and the which was decision was organized; through up It General Term. was there held held plaint an iff’s easement mill was appurtenant prop defendant was be deemed and the erty, acquired thereto. its subjection road-way was identical therefore, with the one before question, defendant the acts of the constituted a whether
us, taking within the Constitution meaning the property (supra), that it not to be said, J., regarded open Gilbert, but as one settled State, in this by repeated one adjudications— which are relied cases, upon by citing respondent “ established,” said learned here. They judge, prin authorize the legislature may lawfully ciple construc railroads and other works of a tion of nature without to be made to compensation whose persons requiring *25 taken been or the has not use appropriated actually thereof, suffer indirect nevertheless or who consequential but dam construction of worksthat the the case by was ages no and that of the within principle, property plaintiff had “ or the taken defendant. by been appropriated They may the an court, the suffer,” by says injury easement having or which the with of the road-way servitude defendant is bur “ he this,” but adds, “is an dened, impaired, injury the in suffers of plaintiff consequence construc property work under not legal tion of authority, taking Upon appeal, however, their property.” was judgment court A.’s this easement was an reversed, holding, interest within it was land, property article meaning 1, the Constitution section therefore (supra), could not, (cid:127) be taken for nor could portion it, use any without Story New York Elevated E. E. Court, Danforth, Opinion both for above the compensation, taking right carry and the loss sustained surface, the diminution of by power, “ increased J., value of the expense, says, Grover, was necessarily impaired. the owner damages premises I have been assessed as think, the con might; provided demnation of real and thus the estate, right convey ” * * * water above the surface *. ¥e extinguished have seen that the defendant did take the plaintiff, its effected, value. change impair “ Hence,” he the cases cited adds, counsel for the defendant, that when none of the land of showing party taken he cannot recover for-the consequential thereto, injury caused excavations, structures embankments, lawfully made lands in on other have no vicinity, application this case.”
We have here indeed a different element and a different medium which the of use is made right available, but the is the same. Whether crosses the principle light open space water unrestrained, mechanical contri conveyed, by vance, over can make no it, difference. The unobstructed is alone in in each case. passage question et al. Lord, N. Y. Doyle 21 Am. 432; (64 claim Rep. 629), an easement for the purposes over a air, light yard attached to a upheld favor of lessee of building, part theof and his to an in building, the de junction restraining fendant from established building upon yard, that the easement'went as ground appurtenant premises demised. The into the windows from light passing yard was essential to the beneficial use of the store, says Earl, “ To this J., extent, view of the case, were plaintiffs entitled to easement in the were far enjoy They so yard. interested it, defendants could not its con change dition to their established, detriment.” This rule it would *26 follow that without to the tenant and due compensation pro at notice to the ceedings law, upon him, could not have yard been to railroad the owner of appropriated purposes, although the consented. yard Story New York Elevated R. Co. R. Court, Dahforth,
Opinion of the v. Williams, ex rel. Haines N. Y. it (49 587), In People, then although question did held, proceedings was of fee, the owner an but gave not deprive it was such interference in- with easement, property him owner, of entitled to the made terests compensation the Constitution as a tak- condition to necessary precedent “ It of use. was private ing imposition,” “ of burden to J., lands, them says subjecting Alleh, in behalf of the of an easement public, derogatory rights him of the full and free depriving enjoy- proprietor, them.” ment of 2 C. R., Cross P. Railway Cases,
In Eagle Charing (L. that an was an interest in it was held easement land, 638), invasion which be claimed, under compensation may Consolidation Act (8 Land Clauses Vict., chap. 18), to a claim made for and the applied principle compen sustained in sation damages respect consequence to the the erec plaintiff’s diminution premises by light the defendant’s near them of works. The statute tion is in dissimilar some referred respects provisions which those acts under the defendant but if I justifies, am conclusion easement was my plaintiff’s right agreement, by grant grounds upon acquired available decision was here. Bovill, put equally “ The is said: common to all the J., Ch. improvement to the but plaintiff’s premises injury neighborhood, to the For the light the diminution peculiar plaintiff. defendant, was only urged compensation — to an interest in land in respect damage damage different members of the court atten itselfbut call land referred to Oh. J., the fact before tion to saying Bovill, sustained reason of diminution damage premises J., said: The or have affected thereby. been light, Smith, or of or of water, light, of way, gives invasion favor of the case cause of action,” disposing — a critical examina opinion plaintiff—three judges delivering that of Ricket tion is made other decisions, including *27 Story ISFew York R. R. Co. Court, Opinion Danforth, the of in decided the of House Co., Railway finally Metropolitan 2 H. L. “It is R., J., now Lords (L. saying: 175),Keating, that “that can settled,” decision, by compensation only clearly land itself or an interest land in where is claimed and that a to the trade affected; plaintiff’s damage juriously of accessto his by public the obstruction premises high by that case, In award finds is remote. present too way of diminution are light.” directly injured premises made him and Oh. J., amplifies suggestion Boville, “the which has J., to, says, referred above Smith, land, an interest invaded here is been claims compensation of which the respect plaintiff damage the loss of remote, is not too but consequent directly in the light.” plaintiff’s The In Canal City Oswego Oswego (supra), of that were certain streets appro plaintiff’s appeared under act of the defendant, (Laws legislature priated construction of canal. deny chap. 241), Oh. J., their plaintiff, liability ing Buggles, canal, the construction and maintenance “If says: lands them to the proprietors (referring deprived the surveyor- as laid out within plan village derived from its dedica their easement land general) J., it was tion, proper subject appraisal,” Edmonds, that these There is show concurring, says: nothing were incor at the time the defendants were public highways is that the owner of All there subject porated. This streets. it in them on those lots, the land sold bounding- It make those streets gave, did not public highways. of those lots respect certain
sure, rights purchasers What all.” that was streets, land thus called but strips show. I endeavored to are, of those some rights loss ease cited holds property rights, they them a of compensation. proper subject it is contended by respondent,
On the other hand, Court of enunciated by Supreme heretofore principles this State grounds and the courts United States XLY. Siokels—Von. *28 R. R. Co. v. New York Elevated
Opinion of Conit, per Daheouth, the J. their of decisions in other and cases, this court in especially by v. Kerr People N. Y. (27 188), v. Kellinger Forty-second Street id. Railway (50 206), known as the railway surface are at cases, with variance this conclusion. therefore, It is due, the importance of this case, and the elaborate ingenious submitted the that the so respondent, cases referred argument viz.: to be considered, v. Transportation Co. U. Chicago (99 S. claim the Rep. 635). against for for city damages to the obstruction docks of plaintiff’s deposit materials, aof coffer and other the construction work in dam, necessary aof tunnel for the extension of a street. building city The work was a and the inter- city improvement, necessary — and obstruction was with the com- temporary ruption ceasing It was the work. held could not plaintiff pletion and this recover, in principle applied upon practiced upon whether all our owners cities, fee municipality, or vested with easement and im- only, may repair and safe it,“ to it It easy passage.” permits prove adapt a or if inter- by filling up, digging leveling away, a a the erection of or If in sected tunnel. stream, bridge doing materials are of these or an either ex- necessarily collected, things made, to detriment a cavation lot- present temporary His owner, he cannot complain. ownership subject and must he submit to the of this incon- right, exercise the street So in may preserved. order venience a sewer, one, the stone for or a excavating pavement, placing a time incommode the the dirt lot- other, from the may must as to a submit, he To in like burden this, manner, owner. the terms for in or as one his implied provided grant, location a avenue. upon the coffer if dam
But case different, would quite or tunnel, piles used construction of erect a from building, should material, rubbish find railroad, and I extend the of a nothing them girders lot-owner from maintaining which prevent case cited would Johns. In et al. Lowerre Ch. (6 439), his action. v. Corning the defendant restrained chancellor, by injunction Kent, Stoby York R. R. Co. New Court, Daneobth, Opinion street New York house Yesey city, by building obstructing nuisance, was not but a thereon, only public special holding of their plaintiffs, affecting grievance enjoyment and the value it, property, working special injury them. I with the accordance distinction suggested acts,
between the character of the is the decision obstructing Keokuk U. S. Ct. case also cited Barney (94 324), Sup. *29 It is that there is no there held substantial by respondent. title is in
difference in between streets which private legal and those in it is in the as to the individuals, which public, rights of the that in either the street is to therein, case be public deemed and for free and, in open public passage, agreeing with this v. Kerr respect People other (supra), public a uses as are in necessary do not a city, its use as prevent Within this thoroughfare. surface its principle, be might broken for the insertion of or up or gas or water-pipes, sewers, rails imbedded therein for surface occupied railroad. But its limit in would be found these and like uses. It appearing, therefore, in premises a question af wharf, adjoined a accessto it fording stream, was that a navigable held, packet “ on the depot reasonably located, it ais ground neces to the steamboat and the sary use of the adjunct wharf landing, and levee for the purposes does not navigation, occupy street.” any portion original
But the other hand, on the construction aof permanent in that street was deemed an unauthorized freight depot because it, “subversive improper occupation of and totally to the dedication repugnant as well as to the rights public.” railroad structure the defendant designed by for the
street; is liable to opposite plaintiff’s premises the same the house in v. Yesey objection Lowerre, (Corning the case last cited. freight-house It true supra), that travel on the surface of the street would, notwithstanding still fifteen its but feet above the street erection, possible, detained from the abutter’s lots. occupied, light wholly York E. E. Oo. New Dauforth, Court, per
Opinion of the the indi private special cases cited recognize right — aas in a a as well substan vidual, public right municipality to and one be protected. tial right cases cited’ respondent Other Smith, (Lansing Hudson River 21, and Gould v. Co., Wend. Railroad 6 N.Y. to deal State involve with the right 522) navigable therein. stand the assertion of exclusive They waters to citizen, common every private deny right right, But Smith, an individual. even to Lansing peculiar this rests, which the other is stated regulate not do interfere exist, chancellor legislature provided vested been to individuals.” with rights granted us there is effect covenant case before securing individual, peculiar plaintiff’s grantor the lot necessary conveyed. true that the no doubt street or
It is grade highway may without it, on liability altered raising lowering the abutter, but this is on the municipality ground part a full had already paid compensation *30 them the done to owners be by adjacent by all damage mode of or convenient the grading way. reasonable any a case does not aid the de applicable the But principle is no street surface intended; change There fendant. structure useless of a street the general pur elevation but as and as thereto the house Yesey (Corni poses, foreign v. 6 Johns. the Ch. or Lowerre, depot (Barney ng 439), freight also v. The case rest Keokuk, upon supra). plaintiff’s may tenure of the another The as I city, although, ground. in trust for the absolute, is not but assumed, fee, purposes to, mentioned in the above referred confers no other grant than is or title Street city given by Open 1801 1787, Acts vol. 1691, (Colonial Laws, 1, 8; ing p. 88; Laws of Laws or 1801, 129, act of chap. chap. 2 “An 1813, B. L. entitled: act to reduce several 408), p. j city New York Jaws ‘into one particularly relating of the ¡‘act,’ in substantial where, repetition it is de- acts, former ' aldermen and dared of the mayor, commonalty city 157 E. New York Elevated E. Co. Stout v. Court, Daheorth, Opinion of the be York shall seized of lands of New taken for streets.” (cid:127) that the same be nevertheless trust and left appropriated aof street, or avenue, for or part open square place as the other manner in like forever, public streets in the said to be.” or of city are, ought has found
The trial court indeed without that qualification, aldermen of the commonalty New mayor, city York owners fee of Front street are the opposite plaint if iff’s this intended premises, estate except limited or purposes prescribed by grant statute the uses of a viz.: (supra), would be and for thereto, sustain the this exception necessary plaintiff’s made alone decisions (Mat reverse already judgment. ter N. St., Kerr, Seventeenth v. 27 Y. 262; 1 Wend. People v. 50 188; etc., Co., Railroad id. St., Kellinger Forty-second the title limited. that is so argument show 206) the title of however, view of proceeds upon respondent, effect. as of that It finding may regarded the city, the trust imposed is, however, respondent, urged far as the control. is So subject legislative city a dif this but concerned, conceded, may or when ferent presented rights adjoining question involved. owner well where a is made settled
It is certainly grant defined purpose, created specific trust be used for another and or trust cannot grant subject the consent whom without party foreign purpose it was (Trustees created. for whose benefit derived, it was Cowen, 510; Hunter v. Trustees Paige, Watertown of Sandy Warren Hill, 407; Mayor Lyons City, 6Hill, *31 the of the We are not right considering ], Iowa Stiles 351.) [ interest it under with whatever possessed part corporation un corporation trust, but power dedication land on a lot fronting owner deprive der the legislature in J., somewhat discussed It was Selden, so dedicated. Railroad Co. N. Y. (16 107), N. Y. Central Williams in the before that the reservation or case mind grant in bearing Stoky Yobk E. E. New Court, Opinion Danforth, us was not unrestricted, but that the were to premises be kept for the of a open purposes street, of that language learned “ is of here: His conclusion is judge it weight cannot be i either that the successfullycontended, dedication of land ¡ to the an unlimited highway or that gives use, j legis- of; lature have the to encroach power reserved rights the owner, by materially nature enlarging changing ’ easement.’ Of course we do not .public overlook the fact, Case, whole fee in 'Williams the plaintiff, subject to the easement in the while in the case before city, us limited fee is in "the in easement city, subject but plaintiff; owner and that of the right adjoining are as city in distinct the one case as in the other, and it can make no idifference or interest how is designated. each case the entitled owner is to have the adjoining premises kept aas whether street; open acquired by grant condem it carried with it that nation, burden or limitation to its use; ;and the owner of the an lot has estate or interest by way easement over the to the same extent and of the same , in as he has the land to which is annexed or degree appurte As that is in fee is in nant. so the easement fee also. Thus Blaekstone, hereditaments incorporeal speaking (book t “ vol. 7, ed., 1], Cooley’s dom chap. p. says: [ man, in one inieum of while the frequently Thus or service is in another. Gaius be seized may appendage the land fee of a over of which as of Titius way leading ” in in Dsrao, his demesne of fee, J., seized Child v. Y. of a (9 255), N. to use canal Chappell speaking laid wharf as out on certain basin defines plans partition, idea the law attaches to such real arrangements respecting deeds in create estate, says: partition my opinion or more modern servitude, easement language perpetual the undivided basin in fee lands'upon for the use and of those situated, benefit wharf parts which were set off released severalty original premises ” in Milhau v. And individual Sharp (27 proprietors. of streets Y. Hew N. court, speaking 624), *32 1882. E. E. Co. Hew York v. ] Court, Damborth, Opinion “the rule that the fee is in vested the cor York, say general not be would with remain absolutely incompatible poration ” in fee under circumstances. proprietors, special ing adjoining and the covenants in the dedication and the facts deed, make those circumstances here. surrounding original grant As retain and control his own owner, therefore, might lot, until of eminent domain was taken from he by right him, virtue his restrain easement, for its may by protection, which a use of the street obstructs air the access of light the same to that until is taken from lot, the easement him.
The street cases railway no conflict (supra) respect this with doctrine. The railroads in those caseswere surface no of the land was rendered roads; part impossible passage vehicle or with when constructed there by any wayfarer; had was as there before been a between two rows way houses”—a street. was drawn its railway carriage along on rails surface differed in it, this prepared respect other means alone from There was transportation. nothing exclusive character of the “in- railroad, nor its use was with travel or consistent over any ordinary its tracks.” passage This characteristic is out pointed v. J., People Emott, and the decision, Kerr indicated (supra) opinion, J., that of seems to have been put upon ground, Wright, the maintenance of such a road did not a new impose burden either of or of the upon any property, individuals, city York. The act of the of Hew its con- legislature permitting struction did not the use enlarge highway the limitation or trust, execution beyond purpose the fee was vested the city. In the case of Street subsequent Kellinger Forty-second Railway title of the Hew referring (supra) York to the land on which the streets are court : laid, say “ It held, not as but in trust for use,” private property, with the further declaration that it of main was for the purpose That the streets. case of Kerr taining People (supra) that this trust was for ground, put upon people *33 Story New York 160 E. E. Court,
Opinion
Danforth,
per
J.
State,
the whole
its absolute
consequently
control and
in the
direction was
legislature-—“that
legislative
to
authority
the surface
a railroad on
construct
the
a
streets, without
a
was
exercise
legitimate
change
grade,
power
uses, and
rights
that the
public
was
regulating
to
entitled
because
not
it
a
compensation
had, as
corporation,
which was
no
appropriated.”
me
the
It
to
seems
which the
positions upon
judgment
cases
in these two
rests have no
in the one
place
before us.
was not
The use
inconsistent with the
permitted
purposes
It
was not denied
owner had 'a
the trust.
abutting
to have
above the surface. The
premises kept open
right
not in
either case. Here
facts show the erec-
question
as
fill
and such
structure will
so
a framework
much
tion of
as
is above fifteen feet
above
carriage-way
I
no
with the
find
views
difficulty
agreeing
road-way.
Kerr,
those of
People
learned Judge
Emott
for the
counsel
and able
to
respondent
the ingenious
the law of
to meet
de-
city ways
of extending
propriety
this
civilization,
to
but
uphold
mands of
judg-
progressive
us
hold
may
to
way
extinguished.
ment requires
even
without
by
legislature,
be done
compen-
This cannot
It would be
owner.
of law
perversion
sation to
a trust to
land for street
open
to construe
keep
pur-
and reason
would
the street,
destroy
to such
as subject
regulation
poses,
to
or the municipality
grant away
enable the
legislature
As
this
we
was not
seen,
of it.
exclusive
part
any
it is
if
what,
Gases,
Railway
precisely
done
Surface
done here. So far as
has been
us is
before
upheld,
the judgment
so as to the individ-
it
Hot
stand.
concerned,
may
he
as I have endeavored
has,
the street,
ual.
on
As an abutter
As
him,
air afforded
it.
show,
light
which the land has been
would seem that
proceedings
a contract,
terms of
contain
taken or the
made
dedication
of its own
neither
city,
and if
could be
so,
changed
th.e
from the
derived
legis-
of authority
in the exercise
motion,
E. E. Co.
v. New York Elevated
Court,
Danforth,
Opinion oí the
Fund,
lature.
Morris, Wend.
(People
328; Sinking
clared the statute or by trust for that grant purpose. It and those also serves other are not inter purposes, purposes fered Before interest with. owners passed city, *34 it the of air of the land had from benefit The light. pub of a street the the lic soil requires surface purpose only. ancient the under it of introduction sewers Very permits usage it Of these posts lamps. water-pipes, things an owner could not he but is not complain, required to the an erection is hold presence peace threatened the and as it when defendant; will, completed, to the him, permanent, continually causing injury remedy for which he was and should by injunction prayed appropriate Y. 611; been 27 N. (Milhau granted. Sharp, Wil R., liams v. N. Y. C. R. Co., 16 id. 97.) think the I also stand his first plaintiff may proposition, that the fee the he owns and that the learned street, trial ex-; court erred in of Front bed street was holding from the which to I have above referred. cepted grants Front then street was not constructed. The in terms em- description braces the land now I not this do occupied it; under- stand learned counsel for the to but his respondent deny, is, that was not intended to divest the of the argument city “ same title to Front street that it had in other that streets, clauses to the streets to a amount reservation of the relating streets from the clause of the I should operating granting part.” rather effect those covenants was say, to create in — an easement incorporeal fee—to have the right land marked as uses as such. If kept open is covenant no other construed, construc- grantee’s literally “ tion can be to for the is to it; construct given undertaking ” the streets the lot on granted. street,
The to be erected over of the land therefore, part or withheld from granted. Nothing excepted grant—all There is, however, the creation of ail easement passes. XLV.
Siokels—Vol.
R
R. v. Hew York Elevated
Court, per
Opinion of the
DAHFORTH, land
existence. When
was
before had no
this
conveyed,
to the
land,
from
reserved. Ho
right
separated
land was
The
in
excepted
grant.
whole,
part
thé
the bed
cluding
passed by
conveyance, subject
Palmer
Richardson
to street uses.
N. H.
only
(38
212)
“
farm was
to the
road
use of
reserving
granted
rail
said
also
to the White Mountains
farm;
through
reserving
road the
for said
laid out
the railroad com
road,
road-way
missioners.”
court
say:
design
operation
of White Mountain
exception
road-way
regard
railroad can
holden
to be
only
subject
grant
laid
easement or
of user
in the lands
corporation,
out for their
while the lands themselves—the fee
road-way,
—
the soil
over which
railroad had been established
subject
‘
’
under the
easement,
passed
grantee
cases are referred to
deed.”
other
Many
appellant,
*35
and it
well settled that such
the same
seems to be
effect,
aright
in
the
land,
is not
to the
nor to
interest
any corporeal
right
is
no
of the owner of
the soil
sense
land,
property
no
such as are
The owner
with
save
rights
right.
parts
uses.
the land for street
other con-
to secure
necessary
Any
and should
defeat
not be
struction would
grant,
indulged
v. Wells,
592;
N. Y.
Mayor, etc.,
in.
v.
62
Craig
(Duryea
Child,
Denio,
315
v.
is
Starr
;
11 id.
5
If this
so as
599.)
time
we need
no
original grants,
spend
showing
so
There is no
succeeds
conveyed.
rights
plaintiff
intend
did not
their
grantors
evidence
convey
far as the street
entire
so
estate,
opposite
plaintiff’s
is
nor to
his title
concerned,
lot
operation
except
that a
on street extends to
lot bounded
its
rule,
the general
(Mott v. Mott,
Here the
lot is so bounded.
plaintiff’s
center.
23 Co.,
Bissell The N. Y. C. R. R.
61;
id.
;
This argu- opinion been with of this It has since ment case. reargued greater before, and a of the fullness than careful consideration points made has confirmed views then counsel entertained is to the me. As the below it should be contrary, judgment with and a new trial costs abide event. reversed, granted, The to be determined in this principal question Tracy, case has the is, been taken for use plaintiff’s property within the of this Constitution State? meaning claims that the true plaintiff construction of the his deeds from city the bed of Front original grantors, street was included in (then he Water) and that grant, now the owner the fee of one-half of the Front bed of street in his front of lots. But if this claim be not sustained, then he that, insists original grants premises of Hew York question, covenanted with grantors that Front street should be and remain an street forever. open That this covenant, for the benefit of the being lands, abutting is one the land, with and the running secured privilege constitutes within thereby 1, of article property meaning section 6, Constitution, which provides private shall not be taken for use without com- just pensation.” lots, numbers plaintiff’s seven and nine, on
Front were water or lands under water. formerly lots, and the These were lots, streets, tract owned pari larger which, city, prior caused to surveyed *36 laid out into streets and and lots designated map. upon and the and Hay December, 1773, city granted conveyed one the one De lots, lands, with other to plaintiff’s Peyster and the other lot to one the Ellison. The grant boundary on one side at Dock across the began street, easterly extending street then shown on the to street, as Water map (now Front) what the would be the limits the when westerly East river lands should be filled in and the streets in said mentioned grant made and constructed. E. Co. York Elevated E. New Court, per
Opinion of the Tracy, as The are described the lots side of plaintiff’s being Water as the made of street, these and (now by Front) survey Bancker, other lots Gerard dated the tenth sundry by day filed office November, clerk, and of the town the with will more thereto appurtenances fully appear, belong- and ing appertaining. and to widen Dock street covenanted grantees agreed and substantial
fifteen and to and construct a feet, build good Water as so make and (now street to construct widened; Front) substantial dock and also to or street, build erect good the of their street on outward respective grants, boundary “ shall the deed then said several streets for- declares which and common ever thereafter for the free continue pas- and as inhabitants of, for, streets sage ways through same, said all others city, passing are, like manner as of the same now law- other streets city that the trial court finds be.” The grantees fully ought mentioned made and several streets constructed of said and that is now the owner lots grant, plaintiff the entire which is front, erected warehouse occupying insists, and and four stories The defendant trial high.” deed, true construction of the found, that, court and never therefrom, passed of Front street'was bed excepted plaintiff’s original grantors. this effect of construction of is to necessary grant make the covenant the said several therein, found to be shall forever thereafter continue a cove- streets, nant and not for we must assume grantees; made that the covenant who held title party therefore had to control bed its street, power and not one had no title no who use, consequently If the street was included bed power. then it is and the title thereto grantees, grant, passed deemed the must be cove- even more clear covenant on the nant of the The land map city. designated thereon, thereof and with other lands on both sides a could not become being conveyed persons, private *37 E. E. 165 v. York Hew Court, Opinion Tbacy, taken for a .that dedica by proceedings «except purpose, by it the to the tion owners and its public use, by acceptance Mere dedication is not the so by lands dedi public. enough; do a street until cated not become public accepted public The construction authorities. streets grantees of the covenant on their would amount to performance part a dedication of the street to use. The covenant public that the streets when constructed city be, should remain, an public forever, acceptance by city constitutes the lands thus dedicated. 6 v. N. Co., Canal (Oswego Oswego v. 257; Y. Lee 40 id. Hill, Rochester, Sandy 442; v. Requa, 129; 45 id. 6 Am. 52.) construction Rep. Assuming we placed upon grant correct, court below to be have to consider the effect of a covenant in a such grant a land made by municipal corporation having authority lay out and streets, lands for open acquire purpose.
Where individual lots, designated conveys village a as a map street, abutting upon map public being- referred to in the it is well deed, settled ac grantee as a over quires, against grantor, way strip a land referred as in fact same not although may be a street, not public been accepted having such; as between the land yet, parties grant, deemed to have been dedicated to the public by grantor, and he cannot thereafter lands to use in said appropriate with their use as consistent a street. v. (Oswego Oswego 6 N. Y. v. 45 Co., 257; James, 557; Canal Cox id. Smyles id. 22 In re The 2 Wend. Hastings, 217; 472; In etc., Mayor, re 1 id. etc., 262.) The Mayor,
The samerule the State, ora applies, municipal corporation with its when deals lands owner or (City proprietor. Co., Canal Oswego Oswego supra.) In the case Wend. in such a court case the says, a obtains over called perpetual grantee way space Wend, street.” In court (supra) case, says, will be covenant an ease shall have implied purchaser *38 Story 166 E. E. York Elevated Co. v. New Court, per
Opinion of the J. Tbacy, full extent of di in the street to the its ment right way mensions.” out and of New York having power lay open lands for such had
streets, and to acquire purposes power its lands to such uses to bind itself a dedicate own by lands that a with its covenant grantees particular a What interest forever be street. street should kept public in the if did the bed then, acquire any, grantees % covenant such grant land in a a street, M. public purchased village adjoining him and the at same time between it was agreed grantor a of land on the latter, piece belonging triangular and in front of the land sold, side of the should opposite should.be deemed never be built but upon, property; a executed to the deed of the land sold and the grantee grantor a as to the bond performance agreement instruments both and re- piece land, being proved triangular corded. the land
H. afterward purchased grantee opposite him of the after informed being privi- triangular piece, secured bond. lege that H. was entitled to the benefit
Held, chancellor, and that could without not, grantee agreement, make a new consent, permitted arrangement (H.’s) holder of the estate triangular piece, by with legal That this should be erected thereon. which buildings easement It constituted piece. triangular privilege that easements are annexed to the dominant held further was estate. It of such was also tenement pass grantee are also a estate of the servient held, charge they hands such an into the of those to and follow estate tenement, thereof is servient tenement or conveyed. any part whom (Hills v. Miller, 256.) Paige, was before chancellor same question again and White Cowen and Watertown, Trustees of The ease held that a where it was 510), again grantee Paige, (4
Bagg a has a who covenant a lot square, special adjoining R. R. York Hew Court, Tract, Opinion of shall owner ground kept from original restrain the his land may grantor the benefit open (cid:127) also held that It covenant covenant. violating on common to erect building not square, deed of land *39 front the in a premises conveyed, the owned grantee by land, was the of a and the grant privilege with covenant running the to a subsequent estate grantee which or easement passed covenant. without special assignment any affirmed was recently cases this these by The principle v.Co. Continental Ins. Ins. case of Phœnix court in the N. Y. 400). (87 H. last land to S. and cited, deed,
In the case conveyed by and as himself, covenanted representatives grantee to or cause erec erect, erected, not to any building signs which on a conveyed, tion certain part premises specified and it was land held, remaining grantor, adjoined a covenant, that such both all the respect concurring, judges adheres and the to follows re benefit, to burden all the of land devolutions of the title; through spective parcels to enforce covenant passed the right plaintiff of H. the dominant tenement, subsequent grantee a court a be enforced sub would by equity covenant against tenement, of the servient who sequent purchased purchaser These of the covenant. cases with notice point, directly the law of this and it State that, follows interpreted for the last courts without criti held its fifty years highest of the force of their doubt, cism or city, by grant, grantees a forever as Front street kept acquired street thus what known the common became street. lots thereon the law as the servient tenement, abutting servitude constitutes ease dominant tenement. Such private attached to the lots ment in bed of the as the owner of such lots. thereon, plaintiff passed the Con That within meaning an easement is property, This was doubted. expressly adjudicated cannot stitution, v. The Hudson of Arnold River Railroad the case this court Arnold owned nail Y. N. 661). (55 factory, Co mpany E. E. Co. v. Hew York Court, Tract, Opinion of the to take a certain with of water together quantity it over creek, or under the convey surface of interven to such lands ing For factory propel this machinery. pur he á trunk built about six feet above pose the surface, through the water conveyed. 1850, defendant, having title ato acquired portion lands, constructed intervening tracks removed the thereon, of the trunk over portion said surface without Arnold’s and constructed another knowledge, trunk lands, under the which the water was through conveyed and then raised into1the old trunk near the fac pen-stock Held, tory. concurrence of all the judges voting, Arnold’s easement was within the of article meaning 6, section Constitution, and therefore could not—nor —of could be taken for portion use without 'com *40 pensation. v. Lord
In Y. 432; Doyle N. 21 Am. (64 Rep. 629), this court held that a a lessee of store had an easement for the ain attached air, to the purpose yard light building. R. Sixth Ave. R. Kerr et al. N. Y. this (72 court 330), in a also held that an easement street bemay condemned public taken for use. public The next to be considered has the is, plaintiff’s question taken within defendant, been meaning To a the Constitution this ? constitute such is State taking sufficient that has some person claiming compensation right or secured privilege, grant, property appropriated or is which or use, destroyed, privilege injured Has the easement plaintiff’s abridged by appropriation. Front street destroyed, appropriation been injured, ? As we of the defendant’s road of the to the street uses a than to have more seen, nothing acquired plaintiff and this must be deemed to the street as public kept held regulate legislature subject power control uses of street. the public of the whether occupation This us to the brings question destructive with, is street road compatible defendant’s its use as street. Stoby ¡New E. Go. Yobk Elevated B. Tracy, Court, Opinion Front feet width, about road-way forty-five wide. feet the curbstones about twenty-four between being found as a fact that defendant’s road trial court has. a series fifteen to be constructed of columns about inches and a fourteen half feet about five square, high, placed inches inside the of the sidewalk and edge cross gird- carrying ers, four sets of support longitudinal girders, upon which are ties cross for three rails placed sets of steam railroad; inches girders thirty-nine deep; the line inches longitudinal girders thirty-three deep; columns the sidewalk and abridges interferes correspondingly with street and where such columns are thoroughfare located thereon.
That the structure as on Front street fill will so proposed much of the of the street as is about fifteen feet carriage-way above the The effect of such structure the road-way. court finds will be to some extent to obscure the light and will to it, some extent premises opposite impair usefulness of the general plaintiff’s premises depreciate value. their
Can street be lawfully to such a appropriated structure without making easement compensation plaintiff therein % This is a If the question has power. legislature to authorize such structure, power without its compensation, exercise cannot the' courts. If one road regulated by may *41 be authorized to be constructed two series of iron columns upon in the street, another be authorized to be placed may supported or columns, brick brick upon arches the street. spanning aIf be superstructure authorized which may entire spans at fifteen feet above the carriage-way bed of the one street, be authorized which may the entire from spans street, building to thus building, and air from the and street excluding light (cid:127) from the thereon. Thus an street open would be converted into a covered with so filled way, columns or other im- as permanent structures to be practically for vehicles. The passable undertook with the city and agreed plaintiff’s grantors Front street, constructed by when — Von. XLV. Sickels E. E. York Elevated New Court, Teacy,
Opinion of the and he as a kept thereafter continue public should forever them, streets of same now are in like as other city street manner with to This fixes definiteness lawfully be. pre ought to the con the character of the street which the cision parties were, As the other intended to secure. streets of tract to be to this to it was lawfully ; so street was be, ought and air to an one which would furnish street; open light and a free and unobstructed passage abutting property, a land A of the covenant to strip inhabitants keep city. thereon, to street is a not build as forever covenant open public the cases this case within brings directly principle White,v. Watertown, Hills v. The Trustees Miller, v. The Continen and the Phœnix Ins. Co. Cowen Bagg, tal While the may Ins. Co. regulate (supra). legislature no think, uses of the street as a it we has, street, power of, authorize structure thereon which is subversive repug nant street. Whether uses street as public open is consistent structure authorized the legislature particular a street must be or inconsistent with uses of the,sstreet nature and of fact question depending upon largely the structure authorized. character of iron columns found that the series of The court below thereon ob- and the erected abridges superstructure scures depreciates light adjoining premises, fhe value of the plaintiffs property. is not
The extent to which plaintiff’s property appropriated nor can material; cannot, of6it, appropriated any part use without compensation. ta/nto and We think a structme closes the street pro | easement thus invades the directly plaintiff’s - secured grant city. branch of the facts of this
Whatever view be taken of If title to the bed the same result must be reached. case, then the of thé city, the street passed grantees its dedi- a mere in the street, resulting easement acquired express the easement use, resting cation to public *42 shall the fee kept covenant owner of E. E. Co. York Elevated v. New Tract, Court, per Opinion the remained in the owner The fee
as a street forever. public abutting sold lots dedication, the he having making seen, obtained a as we have the the street, already purchaser, a street to the full over the called of way space perpetual the the bed of street was Whether extent of its dimensions. thereof the and the title never city, grant
excepted was in- in whether the bed the street vested or grantees, little in is of cluded to such passed grant grantees, ease- in either event the has as private plaintiff importance, ment of a with street, express way coupled Front that the entire marked on the as covenant map space, street. shall forever be street, kept public di- authorized The defendant’s railroad, legislature, easement and encroaches upon appropriates rectly plaintiff’s This to the uses and corporation. property purposes use. It follows that constitutes public taking property condition cannot be authorized except upon taking makes the defendant plaintiff compensation thus taken. in conflict with here reached not The conclusion Kerr this cases of The People court determination R. R. Co. etc., St., v. Forty-second Y.N. Kellinger (27 188), cases. similar and other id. (50 206), cited, last the case J.,Oh. We with agree Church, be decided by intended to clear as to what is not quite abutting rights relative v. Kerr, in The People court owners.” owners were abutting all of parties
In that case private the act under had been opened streets “ in street, trust, the fee of acquired whereby for, kept open that the same appropriated nevertheless, forever, or avenue, place, square of a as a part are, in said city the other manner as like could which question to be.” only of right ought the far as so determined, there been presented use to was whether concerned, owners were the construction act authorizing street was appropriated *43 172 E. E. York v. New Court, Tracy, per
Opinion of the J. or street as horse the railroads, what known appropriated of a with their use as use inconsistent open to streets public in the the owners Whether rights streets. invaded, the nature and extent of in were the depended in the the lands embraced terest therein. acquired by public the State the exercise of the It is well settled right aor the domain, eminent corporation having delegated an interest estate as in the such or may acquire power, judg the services ment of demand. public may legislature New 3 v. The Seld. York, It Mayor 314.) (Heyward or absolute, fee-simple acquire property may quali or fied or easement fee, merely, or right temporary use Avenue R. R. (Sixth Co. v. property permanent N. and the to be made Y. is compensation 72 Kerr, 333), regu the interest The lated extent of acquired. proceedings land is the exercise of the which acquired right amount eminent domain statutory conveyance or there is same no public corporation, and a between such distinction con conveyance voluntary made for a use. Where is property veyance public acquired use the statute invitum, proceedings public constitutes the contract authorizes between acquisition ; and the when interest citizen has once public cannot be it without been acquired changed enlarged It where the title is further compensation. only acquired absolute be converted to property may fee-simple it use other uses, may sold public particular ceasing, uses. and converted conveyed, (Heyward private New 3 York, 314; Seld. Mayor Brooklyn Park Am. Y. 239 6; Commissioners v. N. Armstrong, Rep. 70.) itself, But not the but the where acquire, title mere use it for a of the for particular purpose, mer but is owner not so can extinguished, qualified the easement. In such casethe title only enjoyed subject is limited to with the particular use, powers as the thereto, incident to use the privileges and soil timber constructing purpose maintaining Story New York Elevated R. R. Co. Opinion Court, Tracy, still street. former retains his proprietor exclusive *44 mines, in all of timber and right quarries, water, earth springs the beneficial of the fee for may enjoy ownership every not with for which use purpose public incompatible land was taken, and maintain or may trespass, ejectment, waste (Jackson 447; 15 Johns. The Hathaway, Presby terian Society Waterloo v. Auburn The & Rochester R. R. of 3Co., Hill, the use 567),.and title reverts to the ceasing, former owner, freed from the easement. public the act of
By 1813 the street, the fee in the city acquired trust, .however, for a use. that particular public Conceding this trust is for the benefit of owner, as well as abutting for the he has in the public, which street is the only right that insist the trust be right executed. So faithfully long as the a street street, owner kept open public abutting cannot in the of complain. question case presented v. Kerr was whether the People structure there particular authorized was with the use continued of the inconsistent streets streets of the Whether public city. was open not awas fact of nature' and upon question dependent there, character involved. The of structure court found and determined that it not was inconsistent with the public uses a of was aid such uses. street, but public
And in etc., v. The R. R. Street, Kellinger Forty-second in the (50 N. Y. this court limits the decision case of the 206) “ a Kerr to declaration People simple legislative construct a railroad on the surface authority was exercise of the without change grade legitimate power the use of uses.” streets public regulating whether the owners streets question the act 1813 had the their under to prevent opened destructive of their existence as converted to use being in that not deemed court be involved was case. J., did not
This from the of the case. report appears Davies, in the was of J., case. sit opinion power Bosekraks, the mode of extended only pass- legislature" governing v. Hew B. B. Co. York Court, Tracy, Opinion streets, the surface Balcom Judges ing Marvin, stated there result, be a concurring might private the street to owners adjoining free access under the held original their proprietor, premises, tract street, which such owner could not be de- embracing or surrender the assent or of the public, prived of the fee of the or both, owner without com- general his incidental interest easement in the street. pensation if such conclusion, said to This were they preclude thing had such interest been disregarded. They possible, But the the case.” no such question saw question in that involved case is the seen to be not only ques- *45 in the case now under involved consideration. The tion whether the not is, legislature here has the presented question the uses of and control public to the regulate public power whether has but the to to a the power streets of city, grant to take of such streets authority possession raih’oad corporation to uses inconsistent with them destructive and appropriate of the use public city. their continued open authorized the in that case to take corporations the act Had of the exclusive possession portions permanent them with rows permanently occupy to build sidings, the stores and in front of residences of abut of cars standing to erect within owners, permanent depot buildings ting for the accommodation their of the streets limits passen the a different result would that have doubt been we cannot gers, that The fact structure is in that case. particular reached uses of a with the no evidence to be consistent found inconsistent with such not uses. a different structure is that is based in case reached upon The conclusion present here involved. of the structure character language that v. Kerr, in The J., People -abutting Weight, or land estate, interest no forming owners property, their front of respective the bed the street premises domain, eminent be con of. must protected by thus considered. point being strued with reference New York case of Williams The held court had This B. B. Oo. v. New York Elevated Tract, Court, Opinion that R. N. Y. where had (16 R.
Central 107) the land of another, a mere over way acquired of railroad tracks and a steam rail down constructing laying was an in the street of the use road enlargement at parties understood time the contemplated an additional burden land was imposed acquired, upon not that such act could be authorized without com fee,' and to the owner. pensation cited and relied
This case was of the claim support but the answer owners; abutting abutting fee owners did not own the street; such fee being it to public, legislature might lawfully appropriate use consistent with the trust for which it was any public held, such use of a street not have been known notwithstanding may at the time the land was contemplated acquired. Having fee with the owner could parted not maintain waste, an act which trespass against did more nothing than additional burden impose he fee, could not invoke inhibition of the Oonstitution that private shall not be taken for use without compen- Thus sation. we think understood, language Wright, J., criticism, not and furnishes no subject support claim now made the owner, whose lands were taken *46 held in now to be trust, and used appropriated as open forever, streets has no in public court standing to insist shall that the trust be and that the streets kept not be shall destroyed.
This was before the precise question Court Supreme of the United States in the case of Railroad Company Schurmeir Wall. the case that (7 court 272). deciding says: Attempt is also made to the acts of the justify respondents (the railroad as of the State, the company) grantees upon ground the in the complainant, dedicating the premises as a public levee and street, with all parted his title landing, to the same, and that the entire title vested in in fee the State, respondents for that the rely purpose statute upon Territory Minnesota. the construction Suppose of that provision, E. E. New York Elevated the Tract, Court, per
Opinion it is no defense to the correót, the respondents, assumed by true that cor- the nevertheless, is, municipal because suit, in if not trust, the title impliedly, expressly, took poration in the dedication. the act of party making by designated the State, nor could not, respondents could convey They trust, appropriate premises disregard any right render valueless the which would adjoining to any purpose real estate complainant.” the act of 1813 was intended to trust created
That this by owner, as well as for abutting for benefit has no value doubt. little or Oity property cannot we public, which it the streets abuts. upon open- disconnected makes thereon avail* property abutting of a ing of trade and commerce, greatly able purposes The act of the as- proceeds its value. enhances and the sustained fact, this well-known damages sumption assessed view of the trust as- were reason of taking lands were to that such kept open sumed by public, did not assume to take the forever. but took for a lesser es- absolute, paid lands fee-simple of the statute that the theory and, pursuance tate ; interest cost of has a special owner abutting assessed back- abutting was immediately the lands received for the taken has ever lands the owner All property. to his property is the benefit accruing act finder this the lands are held. Having trust for reason of of the trust assumed land consideration surrendered the streets now be trust can if the abrogated the public, of a railroad corporation, the uses purposes surrendered be taken indirection, may private that, by it follows and without owner, consent use for public against 1. compensate learned counsel casescited amined other
We them find authority and in none of do we lent, the res- *47 (cid:127) The made. The case of Transportation the cl sre for The is U. S. not (99 point. of Chicago 635) Company exten was done the th< necessarily fiained injury E. E. v. Hew York Elevated Court, Thaos', Opinion of the street. The temporary, a ceas interruption sion the This case is work. with decided completion ing that the have a to public upon elementary principle right a for deemed make the land taken street as such use may maintenance. construction, its necessary repair proper Within fix the is to this included grade power time as the time to and to such street, change grade whether the but, grade necessities of the require; public may to which the street, be elevated or it is still depressed, public access, police have the of free public subject having public authority regulations may adopted control of same. charge attention with has been our upon pressed argument fa- intended to that as like streets, railroads,
great ability for either are and lands taken cilitate trade and commerce, in its discretion, taken use, may, public legislature of railroad to the use streets of our cities the public appropriate their the form of and this without reference to. corporations, structure the extent of property wrought upon injury and one This is thereon. startling proposition, well abutting alarm. It with fill the of such owners property calculated of our vast on the streets that the abutting cannot be has This re- feeble tenure. court cities is held so great has no where that such rule held application peatedly and we street; fee of the bed owner owns has taken the fee, that in cases where public are of opinion as a no structure street, used in trust to be but with the continued j that is inconsistent authorized can be an street. obligation the same open public use of in the statute in contract written street rests it as open preserve not be violated and which lands taken were may under which force Whatever discretion. exercise any legislative the sur- built railroads have as may applied argument road and where face without street, change grade, from any part not excluded so constructed like a structure has no force when applied XLY. Siokels—Yol. *48 R. Stoby R. Go. York New Elevated Tracy, Court,
Opinion the case. The answer to the authorized present argument be taken use cannot that lands a public appro- particular use different without further ; to a priated compensation the to be conferred the attempted legislature authority defendant to take exclusive the upon possession portions on the erect a iron street, and to series of columns public thereof, erected either be side which is to upon superstructure the street and at fifteen feet road-way filling spanning and air above the thus surface, excluding light adjoin- is an to to use ing premises, attempt appropriate in that of a re- inconsistent with- public essentially in land violates covenant of city spect question to lands ac- made with respect plaintiff’s grantors, the trust the act 1813 violates for which such under quired use. lands held for public drawn from the benefit these great argument of New
roads have conferred York can have upon city but little determining question weight legal presented added much this doubt these roads have case. to Np aggregate of New and have York,- wealth of greatly promoted citizens; its burden of convenience but so great cast cannot a few of rightfully public improvement their its citizens, use, by appropriating property public The inhibition found in the Con- without compensation. sovereign, stitution appropriate pri- against use without making vate compensation property to secure all citizens alike intended therefor was against being contribute burdens. unequally compelled that the law under which the are of defendant We opinion it to authorizes acquire is incorporated may for its uses purposes, necessary making compen This was therefor. determined sation substantially Elevated N. Y. New York Railroad (70 Matter 327); Elevated Co. (id. 361). Gilbert Railway this We reached in case the conclusions: following That the force of grant city, First. plaintiff, in Front street, has made to his privilege grantors, New Yobk R. Stout R. *49 Eabl, opinion, per Dissenting J. him to have the same entitles and continued open kept for the of his benefit
as street public property. this or That constitutes an easement, Second. right privilege which attaches to the street, in the bed abutting prop- and constitutes within private erty plaintiff, property, Constitution, which he cannot de- meaning without prived compensation. such a structure as That the court found
Third. the defend- in Front ant to erect and which it has was about since inconsistent with use of Front street as erected, public street. That the has
Fourth. been taken plaintiff’s property ap- the defendant for use without propriated compensa- made therefor. tion being the defendant’s acts That are as the unlawful, Fifth. in its if
structure is suffered to character—and, permanent inflict will continue, permanent continuing injury has the restrain erection-and con- plaintiff—he the road tinuance of by injunction. the statutes under That
Sixth. which-the defendant is organ- it ized authorize acquire property may necessary for its construction exercise operation by domain. of eminent
Seventh. continuance injunction prohibiting until road in Front should not be issued the defendant a reasonable time after this decision has had to acquire or to con- agreement, by. plaintiff’s proceedings demn the same. At the J. threshold of this- case (dissenting.) pre
Earl, lot whether extends to the cen sented inquiry plaintiff’s I and in street. think does this not, ter Front reaching that the its assume, without it, conclusion I deciding city, - in. the fee of land deeds of conveyance granted De Those now is to Ellison and where the street Peyster. make should certain deeds grantees provided which, lands was the present conveyed, through among E. E. York v. New Dissenting opinion, Earl, and that the streets Front street, after made were should they “ forever thereafter continue and be for the free and common of and as streets and for the inhabitants of passage ways the said all others city, passing returning through in like manner the other streets of the same the same contained be,” ought they now or lawfully their heirs and some covenant that assigns, grantees, after from and the streets and would them, immediately should thereafter, at his and their finished forever were made and *50 and, same, from cost, own expense, keep charge proper and sufficient and con- in time, repair, plight time good of no owners the lots There is evidence dition.” tends in the evidence to show street but Front repair, ever kept in it either with from early period kept repair city or with funds realized it from funds assess- its by corporate The intermediate deeds the lot-owners. of ments upon to him are in to the deed not found lot prior plaintiffs deed to him dated 18, 1849, in the December But case. “All follows: that certain lot of land situate, described as lot is the first ward of the York New and being lying in front Front street afore- aforesaid, bounded northerly by and John S. conveyed by said, easterly by ground Conger to Elias H. Herrick deed date the his Sarah, wife, by bearing or late of the now first southerly by day May, ground and Moore Herrick, aforesaid, Elias H. westerly said in front Front street four feet breadth thirty containing rear inches, and in the feet ten inches, a half twenty-eight on either side the same more or feet, in length eighty in feet inches extend These measurements less.” precise the two streets under such circum- sides of to the only, ? deed be construed how must description stances, a land bounded law conveyance a It is presumption with it carries fee to center a highway intention and parcel grant, part highway to the interest a to withhold highway of the grantor all his to the with title after it, center of parting, aBut never to be presumed. grantor land, adjoining New York Elevated R. R 181 Earl, Dissenting opinion, per reserve on from his land abutting highway may highway it when such reservation will be adjudged, clearly grant, that it in was conveyance from language appears 15 Johns. v. 447; v. Hathaway, tended. Fearing (Jackson 60 N. Y. Brennan, 609; v. Irwin, 385; English Daly, 64 id. 65 Nichols, ; Bank Kings County White's Buffalo not id. ; Fire Ins. Co. v. Stevens, Tyler reported yet 287] [87 193 Pick. Burial Ground v. Rob Union Hammond, ; 5 Whart. inson, 21.) “ in the deed was Jackson v. the description Hathaway a certain stake the side certain tract of land at beginning road road, etc., the old Claverack called south, two chains another stake east, running twenty degrees chains thence seventeen stake; west, south, thirty-two degrees ” and distances and thence courses links, specified sixty-four “ held, and it first-mentioned bounds,” road; that if did not include description any part the land over whose land is laid out convey person highway as do not side of it, on each boundaries describing in the road include road or of it, any part *51 as it is excluded descrip- does not to the pass grantee, incident, in it as an tion cannot being grant; pass a one itself distinct fee of land, piece parcel land not mentioned in cannot as deed pass appurtenant another.” In v. Irwin it was that held Fearing description ” “ two at a on corner point north-easterly beginning “ streets and thence the north-easterly running northerly along ” In side of one them comes English margin only. “ Be- v. in a deed as follows: Brennan the description began at the corner of Clermont south-westerly Flushing ginning avenue, avenues, thence Flushing westerly, running along to Flushing at feet; thence twenty-five southerly, angles distant forty to a avenue, inches, feet nine point seventy-nine side from the a half westerly feet seven and inches westerly was title and it was held conveyed avenue,” Clermont streets, and, opinion confined to the margin that the in substance said J., it was presumption Andrews, B. B. York New Eabl, Dissenting opinion, that the owner of land on a owns to the highway but that it is much less center, lots strong respect large that in land to a cities; grant construing adjacent high it is intended to way, presumed grantor convey interest but if it rebutted presumption that he intended to exclude appears by description Nichols, In White's Bank v. it conveyance. was held that a deed where described granted premises at the intersection of the exterior lines of two streets, beginning thus established controls the other of the de point parts and lines con running thereby scription, along fined to the exterior lines of the In streets. Kings County it Fire Ins. Co. v. Stevens was held the road-bed was ex “ cluded in the at a following description: on Beginning point side of the Wallabout road and southerly bridge adjoining now or land to John lately belonging Skillimore,” “ after certain other courses, north, and nine forty-eight degrees five minutes hundred and west, to the Walla- ninety-four feet, bout said road, thence road one thousand two bridge along hundred and feet, twenty-five place beginning.” was held that Hammond where deed of land Tyler describes it as on a road, bounded but sets forth metes and bounds which exclude the no road, the soil of plainly part the road there particular passes grant. description “ on follows: Bounded Ann street, there north-westerly feet six inches; on Crudert measuring thirty-one north-easterly inches; there feet two on measuring fifty south-easterly alley, there feet six Dock inches, square, measuring twenty-eight on the estate of the late there north-westerly Joseph Tyler, feet.” J., used measuring forty-eight language quite Wilde, to this case: This is a applicable very particular description *52 the land intended to be in to which of there conveyed, respect can be no doubt or lines are short and were uncertainty. no with and therefore mis measured, doubt, exactness, great lines of feet cannot be take in the side twenty thirty sup of Burial In the case The Union Ground Society posed.” in the deed there under considera- Robinson, description Story E. New York E. Dissenting opinion, per Earl, in like that contained the deed to the
tian very plaintiff. “ in It aswas follows: breadth on Prince street” Containing ran with north of (which parallel Washington it) “ inches, feet four and in thirty-one length southwardly at between lines with parallel running right angles Washing- ton street on the east line thereof feet six inches, ninety-eight and on the west line thereof six inches feet seventy-three two-thirds of the same in inch, be more or less to depth it in where contains breadth east west Washington on feet; bounded the north the said thirty-one Prince street, on the south the said. and it was street,” Washington held deed did not Wash- of soil of convey any part street. J., Kennedy, court, ington opinion writing after down the rules which in the construction laying govern of such used case, to this deeds, very language pertinent follows: What is here said when- particularly applicable ever of land is small and its extent is quantity conveyed described with as in all almost nicety, great conveyances or town lots or and in thereof, case the parts present intended to be described with remarkable ground conveyed if not unusual as if it very minuteness, degree nicety were intended to all preclude possibility including any than came within the metes and as. out, more bounds set not in but feet and inches limited even fraction merely very an inch.” in addition But measurements precise plaintiff’s limited not feet and half inches we inch, deed but to only other circumstances construction bearing upon to the deed. For time anterior to date of long given deed Front street had become like the other streets of the and had maintained and been kept city. city, repair by all its fee of within limits, It owned nearly must have been the common to ex- practice conveyancers the streets from lots clude grants confining adjoining streets. measurements margin Beading measurements these deed, plaintiff’s light .precise I think there is little circumstances ground dispute *53 york E. E. Co. v. Hew Earl, opinion, per
Dissenting intended to limit their grant grantors margin and that such intent should have effect is shown street, » authorities above cited.
Therefore as the did not own of the soil in plaintiff any it Front matters not it where title to rested. As to> it if in be treated as it I him, and shall so may .were city, it in treat the further discussion of this case.
Whatever then the has in this street private rights plaintiff are such and such to him as an abutter only belong in street. Such as he has common with the rights public cannot in this action or in be enforced other ac- generally It tion his name. is not that to maintain this action disputed must show that in violation of acts under plaintiff which “ the defendant was and of the Constitution, organized, private ” has taken .of been without property plaintiff compensa- It is not tion. sufficient for him to that he show is or injured suffers from the construction or of defend- damage operation ant’s or that his is deteriorated railway, adjoining property He value. must that his is in show some private property sense this all effect are taken, authori- proper nearly ties this in States where is made country, except provision or laws that shall Constitution be made compensation for affected, as well as for property injuriously damaged In taken. on Constitutional Statutory Sedgwick author, Law, the constitutional 519, learned speaking provision taking private property prohibits “ use It seems to be settled without compensation, says: to entitle the under this clause the owner to prop- protection must be taken in sense the word, erty actually physical and that is not entitled to claim remuneration proprietor indirect or matter how no serious consequential damages, how exercise of clearly unquestionably resulting on eminent domain.” Dillon power Municipal Corpo- “ it ration, said although adjoining prop- § sense, in a constitutional still erty may not, injured, taken for (99 use.” In Co. Chicago Transportation H. Strong S. said that acts done proper 635), Judge *54 185 R. R. Co. 1882! v. New York ] Earl, Dissenting opinion, per J.
exercise not and governmental directly encroaching powers their impair upon private consequences may property, though the mean its are held not to use, be within taking universally not entitle the do the constitutional provision. They ing or from the State its owner to compensation property pf This him action. supported any agents, give Pittsburgh In O' Connor v. immense of authority.” weight two held, Penn. it after St. was (18 arguments 187), case and much that constitutional consideration, provision extends use tabeen for for the case private property See, also, not to the case of destroyed. property injured (25 Co. Vt. R. R. cases of Hatch Central Vermont Central R. (id. R. Richardson The Vermont 49), sub learned discussion where will be found very 473), this case. The to observations applicable ject many quite The Mayor, Executors v. same rule is laid down Radcliff’s there (4 Y. It was N. Brooklyn 195). supported etc., of as to of authorities reasons and full citation place such cogent the uni received and it has State, it in this beyond question our courts. form sanction of v. Green Pay attention called two cases (Pumpelly
Our & R. M. R. The B. C. 166; 13 Wall. Eaton v. Co., to take which are 12 Am. 504; 51 H. supposed N. Pep. 147), the constitutional the construction of pro a new departure are now They spoken vision considering. we “as the ex v.Co. Chicago case of Transportation subsequent hold ; found the doctrine” to be they tremes! qualification bemay regarded property permanent flooding private “ on and thus be ground as a they may taking,” justified estate of the the real private invasion of was a physical there ouster of his and a practical possession. owner to be subtle not be meaning embarrassed by We' should ” in the constitutional word provision. property given whose law writers to it sometimes The broad given meaning or a than meaning definitions are more confuse enlighten, apt and etymologists, which can evolved only by philologists Constitution; of our minds the framers not probably — Vol. XLV. Sxokels Story Few York Elevated R.R. Co. Earl, opinion, per Dissenting must to have used word in its they supposed ordinary signification, can be popular representing something owned and and taken from one transferred possessed another. is a distinction there between parlance popular If is to taking word injuring property. Austin and broad certain German given meaning French whose definitions our Civilians, attention has *55 then it would been include interference called, with and every land which or to its use and be- damage enjoyment injury valuable. come less convenient or Such sense has never been it or countenanced in decision any con- given involving as to stitutional If the private word provision taking property. then it to have such broad was useless to signification, pro- Land ClausesAct of 1845, vide in that English compensation land taken not should made for for be but also only land in- ” sqme and in and Constitution affected, laws of juriously shall of States be made for compensation both land taken and land damaged.
I do not deem it to define what precisely necessary in the owners have streets rights abutting Few I will York their lots. assume, without adjoining it, deciding cannot be closed the streets their absolutely against con to them ; sent some compensation without the limitations legislature reference to power closing have not been determined in precisely this State. v. Park Cornm'rs 45 N. (Brooklyn Armstrong, 234; Y. 6 v. 43 etc., Coster N. Y. 70; Mayor, Am. 399 ; Rep. Fearing If id. has an Irwin, 486.) plaintiff unqualified in Front streét for air easement and light for access private then such easement cannot be taken or lot, destroyed him. v. The Hudson R. R. (Arnold without compensation But an abutter, 55 N. Y. whatever as such, Co., 661.) R. street is paramount authority subject has all the and control street purposes regulate State suitable for the wants to make it more street, aof under a street may, The grade public. convenience be thus damage may great law, be changed authority Story Hew York Elevated E. E. Earl, opinion, per Dissenting done to an abutter. down in front The street be cut may so his lot all he feasible accessto so it, deprived fall he that the walls of his house into yet may will entitled to Executors v. be no compensation (Radcliff’s etc., O’Connor v. Mayor, Pittsburgh, supra supra; ; Callender 1 Pick. and so Marsh, 418); may in front of his house so that travelers can look into his raised windows and he can accessto his house only through and all and air will be shut roof or stories, light away, upper he without would be remedy. yet legislature how streets shall be used, such, by limiting prescribe may or the streets, streets, the use of some pedestrians parts them to be or or omnibuses, drays, by allowing carriages, sale under for the wood or hay, occupied proper regulations It authorize shade trees to other may planted produce. extent shut out the and air which will to some
them, light confined to the houses. Streets cannot be from the adjoining when first use to were devoted same opened. They they *56 (cid:127) in a and used in for streets be may were city opened needs of city may require. way increasing growing and built; be water sewer, sidewalks may paved; They maybe and omni- be laid; erected, be may gas pipes may lamp-posts rattle over stone and other with their pavements, buses noisy All vehicles authorized to use and them. may new strange as and are still and used streets, be done they these may things and are for the passen- Streets transportation such. passage should conclude and Suppose legislature property. gers of Hew York its relieve that to Broadway to have an under- and traffic it was travel necessary burden of to authorizé its its street below can same; authority ground same could it doubted ? And for the purpose construction be authorize a made fifteen feet above not to be Broadway way become so for the use When of pedestrians? for crowded and with vehicles that it is inconvenient dangerous another, side can it be doubted to cross from one pedestrians so could authorize to be them bridged, legislature this and that it could with- could over do them, pedestrians pass E. E. Co. 188 York New Earl, opinion, Dissenting air and whose owners, to the abutting light out compensation These interfered with ? to some extent be and access might of or a not be destruction would departure improvements the street land was dedicated when use to which the from the render the street more useful but would was they opened; to-wit: travel made, for which was the very purpose owners If these improvements abutting transportation. have no to com- would constitutional were they injured, taken and that no would be reason pensation, And if would consequential. merely injury then the make these improvements, authorities could legisla- them to ture could authorize be made by quasi undoubtedly it can for the purpose, public corporations, organized to take authorize turnpike companies possession plankroad from, take toll those who use them. of highways trans of time came be used for So railways process soon property; controversy portation persons in the streets arose whether could be constructed of cities they deter without owners. It was compensation when the fee not, mined that could such owners owned they v. The Union R. R. Co., (Wager Troy street. 526; Y. v. The Rochester & R. R. N. Craig City Brighton But where do not own the fee id. Co., they they 404.) is taken to no no compensation, entitled private property of the Constitution.' That this from them within meaning in the two cases last cited is the rule was distinctly recognized in the cases The Kerr Y. (21 N. People adjudicated R. v. The Forty-Second Street, etc., R. Kellinger 188), v. Kerr there was id. case of (50 206). People *57 and that the construction of uncontradicted operation proof, to the in the street would cause serious damage railway such would that owners of property adjoining property, cent, to in value from twenty-five per be depreciated twenty the construction and the found that operation court with and a material interference would be railway on said of the lots the use and fronting to enjoyment injury same to extent that street in such manner E. E. New York Elevated Co. Earl, opinion, per Dissenting a nuisance constitute continuous plaint- would private it held that lots; as owners iffs” yet adjoining entitled to were not It owners compensation. abutting that of a the construction railroad city was upon adjudged an of the street was to use; the surface public appropriation under the control that street was unqualified legis- it and that of- to a lature, use any appropriation public not a so was authority private legislative taking property to as to compensation owners. require city abutting seems to have been decision based broad upon ground the land in could authorize the street which the legislature use had been taken or dedicated to to be devoted public if it use whatever. But did not so far to even any go far it went so as to hold that this, cannot disputed to to could authorize be devoted legislature not with their use streets. use inconsistent v. The of The Street the case Railway Kellinger that the Kerr was and it was'held owners Peoples. approved, York, in of New laid adjoining property in the street under the act an easement in out and also with the whole common repass people pass mere to their that the incon have free access but premises, the lawful use of access occasioned venience of such action; a railroad is not street by subject near that defendant' laid its track so complaint alleging as not leave in front sidewalk premises plaintiff’s he and and that for a vehicle stand, sufficient space returning were incommoded thereby leaving family and the rental value of his residence, premises greatly their CnuRon, Gh. J., not action. did contain cause of depreciated, “ It said: Kerr, the case of The clearly People speaking in the street, had owners no holds that were entitled taken for the railroad, which was they to compensation.” based these two cases were no degree decisions the surface were constructed the fact railways whether It can make no difference principle streets. *58 E. E. Co. v. Hew York Elevated opinion,
Dissenting per Earl, the surface be on above or below railway the surface so the same as it serves public to-wit: purpose, long transpor- property. tation at persons principle the foun- lying most stated cases, dation of these favorably plaintiff, a new was mode of simply the streets railway using which were they made, and that if the originally purpose new use inconvenience or to the greater produced any injury than owners the old it was use, damnwn absqueinjuña. ¡Nordid these cases distinction between horse proceed upon any is the those steam motive If railways upon power. authorize could railway legislature operated any horse must have the same certainly by power, steam, to allow it to be by other operated electricity any motive As stated learned author of by power. Thomp- “ The distinction between son on horse railroads Highways, and those on is the which steam motive is not made power in the cases Court but is Appeals, expressly with denied some conflict them, reason- of all of them.” In Union principle Wager Troy ing R. R. said: It Co., J., writing prevailing opinion, Smith, 'is that the actual use of true the street railroad may not be so absolute constant as to exclude the public With a track, its use. if single particularly it were cars used horse inter- propelled power, the easement in the street ruption might very and of no at practical trifling consequence But this consideration cannot affect question large. or of the increase of the burden It question soil. would present simply degree respect and would not easement, affect to the enlargement In the same in his case, J., the principle.” Sutherland, “ In this railroad, assume, said: case the I opinion, dissenting intended to be was steam. I cannot operated by that affects the see how power.” question Craig etc., R. Rochester R. City, J., writing (supra), Miller, at am a loss to see saidI distinc- opinion, any apparent tion rule between cases where application *59 Story E. Oo. v. Hew York Elevated E. Earl, opinion, per
Dissenting J. is and those where the steam cases road is employed power horse in his excellent Dillon, Judge power.”. operated on vol. 2, work Municipal Corporations, says: § “ is in the Where the fee of trust municipality in the of the for the or is control public, legislature public, it authorize or bodies delegate may municipal supreme, either class to authorize occupy railways power for either to the muni- streets without compensation providing lot-owners.” Consti- Cooley’s cipality adjoining learned of the Limitations, 555, author, speaking tutional the use all kinds of railroads, of the street appropriation “ to hold when the .that, inclination is A apparent strong says: taken from the former it owner, is is fee public way to which the authori- use whatever for taken any public fit afterward see to devote assent, may with legislative ties, of the in furtherance general purpose original appro- held to the owner must be be com- so, if this priation, for at the time of taking any possi- original pensated takes, that use his chances of and he any use; change ble or deleterious to any remaining property beneficial it proving in,” and when business he be engaged own or may he may it is a town street dedicated for unquestionably taken or land is aof town all the for ordinary purposes appropriated were such streets to which formerly not purposes merely and new new demanded by improvements those but applied, wants.” demonstrated legis-, I have now sufficiently think
I motive a surface railway operated by any authorize íature may : when and that streets, constructed to be power cannot the fee of the streets not own they do owners caused inconvenience or injury compensation claim any railway, provided the construction operation them in for the ordinary remains open practicable street still (cid:127)the unable to see why am entirely and I use public; do not lead to this conclusion authorities which reasoning above further conclusion railways operated lead the same terms. authorized the street may surface v. New York Elevated E. R. Co. opinion, per Earl, Dissenting elevated An new mode of railway only using transportation It persons property. is not a or subversion of the use for which the change streets were and laid. The time came when the opened increas originally business of New York made the population ing *60 a The time has surface railroads now come when necessity. of a wants vast make this convenience new city if a mode not at a of travel least transportation, necessity, convenience; and the devotion of the streets to the use of great in furtherance of the the elevated was trust and only railways streets was for which the soil of the dedi purpose originally If the surface were raised fifteen cated or taken. railways up and used in the for the same for which feet purpose could not an act of the used, are now make they legislature them lawful structures without to compensation abutting relates of ? As to what owners question legislative power, it make whether a remained difference could railway upon raised ? the elevated Are unlawful surface or up railways feet the surface the streets, fifteen above of while elevated they the surface of the streets ? The lawful lowered to would be an street could build embankment regulating any legislature a authorize surface railroad to feet then be fifteen high motive and the be that, built to operated by any power, air and and dust and disturb noise interruption light, than is caused an much be ance might greater privacy an embankment and Instead of elevated building railway. could authorize the whole street, thus legislature raising the surface an carried above of the street to be travel all used the vehicles elevated road transportation and the owners could no abutting and.property, persons This is so because or constitutional complaint. ground legal in its streets extends owns the fee which indefinitely city as the and the above wrell downward, space upward utilized for street a street purposes. below may space without com- could, have not claimed I legislature authorize city owners, pensation closed or exclusively York wholly New to be absolutely R. Hew York Elevated R. Earl, Dissenting opinion, a railroad. There are authorities to the use of appropriated I affirtn tend such claim. do not or would uphold which I leave the a claim. question validity deny extensive under more legislative authority to exercise in some future case wherein determined the Constitution is sufficient to determine now that the It involved. it shall be without to abut- constitutionally, compensation may legislature use the streets of devote great owners, ting the use for which were they opened with inconsistent not dedicated. is not lot, closed this plaintiffs
Front adjoining it remains street. but open public elevated railway, “it cause no is that will substantial or the court (cid:127)finding animals or persons, material passage impediment street, and but obstruction in and slight along vehicles We must take air from the street.” this case as the light it and not case such has found assume as the court the trial *61 of traffic and travel The stream with can paint. imagination flow Front street as can diminution through freely no material If it of the be railway. the construction question as before is in some sense closed the de- the street fact whether trial must be deemed to then the court have structure, fendant’s the defendant. in favor of fact found the surface of one of the upon A steam railway operated much Hew York would be more probably and as have I railway, shown, than an elevated yet, damaging without be authorized compensation undoubtedly it could it is for me to and owners; impossible perceive upon abutting it can be own- claimed, abutting theory what reasoning which, of a the surface street have no upon ers rights who have such when yet rights can claim compensation, they easement the surface. have no They above is elevated railway cannot be interfered with surface which over upon com- under without authority legislative and impaired greatly an have easement some- it is claimed and they yet pensation, under the constitutional air which protec- where up these aerial come Where do as rights tion property. private — SLY. Yol. Sickels R. R. New York Elevated Co. Earl, opinion, per
Dissenting do not rest from ? and as the They doctrine upon grant, has no of ancient this cannot lights footing country, they rest be erected Buildings upon prescription. may upon and in such a out street so to shut way and air high light from an erected so as to They may building. adjoining street cast their shadows across the houses there standing and or easement is invaded. no It cannot be doubted yet could authorize surface to be legislature railways ope- rated double-decked fifteen feet with cars thus cause high all the inconvenience owners of an ele- nearly abutting it must be conceded vated that under au- railway, yet owners would have no thorities cause abutting legal complaint. ah' are mere incidents accidents of a street.
Light not constructed and Streets are maintained to furnish them. from a come because exists, street! when They it is difficult the street how disappears perceive any right owner survives. as I them in But before now to determine that if there it is said, sufficient can be any a street as an easement for light air, it is thing to all the uses and burdens to which street subordinate may paramount authority subjected legislature. am to this conclusion I led be de principles fairly decided cases which this duced from court binding I cannot how this can case be deter perceive authority. mined in without favor plaintiff substantially overruling v. The Kerr, Kellinger cases Street People Railway In The Matter Gilbert Elevated Railway *62 (70 Y. Ch. N. said “the J., o. 361), prin Church, C iu will these cases ciples regarded obligatory adjudicated In the this court future cases.” case of deciding upon learned The Street the same Railway Co., v. Kellinger judge, v. Kerr, the case of The said: “We People speaking to this and its bound to adhere decision necessary should feel its soundness, even if doubted because we results, large legal the faith it, expended upon sums of been money it rule which has become of property ways obvious many 195 E. Co. E. York Elevated v. Hew Eabl, opinion, per Dissenting the most reasons.” never except cogent abrogated, should these than four hundred before utterances years more Anri “ If said: we former judge judge against learned English to it is bad the barristers example students judgments faith not have in or will credit to their any any give law; they 33 Hen. VI, Book, (Year 41.) books.” of the Elevated to cases Railway
It is sufficient say reported are to we determine in Y., in N. this questions involved. It there was determined not there were case in the Transit Acts for made Rapid compensa provision which the private rights tion abutting But had streets whether had city. owners they not was left intentionally expressly such open rights question. other abutters
The many plaintiff through elevated constructed this suffer railway which undoubtedly its and have the operation com damage great must done but them; seek they their injustice plain to the but to the courts, not by appealing, remedy legislature, fail there, if who make by appealing people they the final That citizen appeal open every legislatures. under forms Constitution and who suffers injustice has to com ample the laws. legislature undoubtedly power to make defendant owners yet compensation pel done arrest exercise of fran them, its for all damage make refuse to if it shall chises compensation. (Monongahela 6 Penn. St. Co.v. which Coon, power 379.) Na under the and the laws to alter or Constitution repeal possesses includes absolute charters corporations regu and to the exercise of franchises, prescribe late corporate continue ex terms and conditions to be may they Northern Brownell, ercised. Railroad (Albany N. Y. 345.)
I close this discussion very will by quoting language Central Railroad Co.: urist Hatch v. The Vermont learned j all effect no case In the absence of provision statutory *63 Stoby ÜTew York Elevated E. E. Co. Miller,
Dissenting opinion, per J. and no seems to certainly principle justify subjecting artificial, natural or in the own person, prudent pursuit lawful business, to- payment consequential damage in their others or business. This property always happens more or less in all rival and often there where is noth- pursuits, of that kind. One mill or store or often one school ing injures- darkened, another. One’s is undermined or its dwelling lights and its obscured thus lessened in value prospect materially the erection of other lands of other buildings upon pro- One is beset or dust with noise or other prietors. inconvenience the alteration of or more the intro- especially by of a duction but there is no redress in railway, these cases. The is lawful in the .as railroad much as thing in the other cases These works come too near supposed. some and too remote from others. benefit and They many injure- It some. is not and possible disad- equalize advantages It sois with will be. Those every thing always vantages. most in these matters, skilled even of the most san- empirics soon find their at fault in all at- guine pretensions, philosophy at the ills of life. The tempts dis- equalizing advantages of a could not be advantages bal- single railway satisfactorily anced all the courts of the State in hence forty years; they, must all other left, consequential damage gain balance counterbalance themselves as left, best they can.” should be affirmed. judgment I concur generally opinion (dissenting.) Miller, in this J., case, ground especially Earl, decisions are settled former of this questions presented court which are cited in the opinion.
It de- I reliance these assumed, think, may cisions the as a constructed, defendant was railway rule of has established been fully thereby, upon acted have been acquired, parties rights they should not be overruled or disturbed. should be affirmed. judgment *64 Stoby E. E. Oo. Yobk Hew Finch,
Dissenting opinion, per J. in the I concur of opinion J. my (dissenting.) Finch, and His full careful renders un- argument brother Eabl. discussion, and of importance a further yet necessary seem involved, of the questions and the case, require, gravity which of the I upon a brief statement dissent. least, grounds at in the streets, owners If the rights public abutting come and where these also; collision, one have such rights if Even we yield. of the other that must, necessity, grant or out the streets have some their growing owners right such and that are such nature them, rights upon frontage remains it still that such ends private property property, private owner has begins; where people’s right abutting outside and what- except public right, no private that have is which is left after he does the latter ever only owner, as it abutting exhausted. right is, trust on which the holds the rests and city streets, in the covenant that is street in expressed applicable that it shall and continue be for is, the free question, streets and of, .and common public for, passage ways and all others of said city, the inhabitants passing returning the same such manner as the other through I to be.” or, ought said' understand city are, right, be, Front street of this covenant shall forever meaning the free travel unobstructed kept open passage kept manner as the in the same other streets are public, n open owner travel; to such abutting gets air and ventilation incidents of a light benefit covenant. If, therefore, due cove- city’s performance of the no owner is observed, nant is abutting invaded, shall use the for travel although passage and air and lessens a manner which ventilation light If the benefit such owner. street is which incidentally kept and is used for travel, and unobstructed to free gene- open the covenant is inhabitants, ral kept, passage all received his even has owner rights, abutting though lessened. The benefits then comes question incidental the construction and this: whether down to operation R. R. Co. [Ccfc., v. New York Elevated
Dissenting opinion, Finch, elevated railroad within the and the trust right, which the holds the fee of the streets. If it is, nothing has been taken from the owners, their can- not enter the boundaries of the lawful public use; and the- *65 ultimate and inquiry whether simply the streets only as used elevated roads are, used nevertheless, and as- occupied streets for unobstructed public and travel, passage kept as such. There no of fact open finding contrary the case before us, no evidence from which such an infer- ence can be drawn. The justly question kept, to the free and unobstructed of .the open inhabitants. passage are not even They closed to such travel. On the partially con- what has been done has been done trary direct line, and in aid of the Travel use. proper public passage been and their instead aided, increased, ob- facility being structed and hindered. We are not to our own put eyes in the observation room of the evidence and the findings the trial court. These are not that the street has been findings or even ; are not that closed, wholly partially they public, use and travel have been hindered or obstructed. No- is in us such fact manner found or furnished to as a factor- in the to which come. On conclusion we ought contrary^ and the fact found in such direction, the solitary only only one even to- violation of the is the- pointing city’s covenant, inside columns, the curb presence supporting standing If then unlawful, these are sidewalk. lamp-posts,, and the for electric are- supports lights, telegraph poles, without iamto pro utterly closing right. We as I read no have, therefore, it, case evidence of a. use which transcends the public right; being- so, no is or can and no be invaded, private private prop- been has taken. erty
For reversal, Andrews, J., Rapallo,- Oh. and. Daneorth JJ. For JJ. affirmance, Miller, Earl Traoy, Finch, reversed. Judgment