Cogswell v. New York, N.H.&H.R. Co.

• Decision Date: 05 October 1886
• Citation: 8 N.E. 537,103 N.Y. 10
• Parties: COGSWELL v. NEW YORK, N. H. & H. R. Co.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 10

8 N.E. 537

COGSWELL

v.NEW YORK, N. H. & H. R. Co.

Court of Appeals of New York.

October 5, 1886.

Injunction.

Lewis Johnston, for appellant, Elizabeth R. Cogswell.

H. H. Anderson, for respondent, New York, N. H. & H. R. Co.

ANDREWS, J.

We are relieved, by the findings of the trial judge, from any question as to the sufficiency of the evidence to establish that the engine-house, as used by the defendant, constitutes, under the general rule of law, a private nuisance to the property of the plaintiff. The compromise exacted by the necessities of the social state, and the fact that some inconvenience to others must of necessity often attend the ordinary use of property, without permitting which there could, in many cases, be no valuable use at all, have compelled the recognition, in all systems of jurisprudence, of the principle that each member of society must submit to annoyances consequent upon the ordinary and common use of property, provided such use is reasonable, both as respects the owner of the property and those immediately affected by the use, in view of time, place, and other circumstances. It is in many cases difficult to draw the line, and to determine whether a particular use is consistent with the duties and burdens arising from vicinage, or whether it inflicts an injury for which the law affords a remedy. There is, however, upon the evidence and findings in this case, no room for doubt. The plaintiff, from 1870, has been the owner of a house on east Forty-sixth street, the city of New York, used as a private residence, of the value at that time of at least the sum of $20,000. In 1872 the defendant, the New York & New Haven Railroad Company, purchased a lot adjacent to the lot of the plaintiff, extending from Forty-sixth to Forty-seventh streets, and bounded on the west by Fourth avenue, and erected thereon an engine-house and coalbins, for the use of its road; and, since the year 1872, has used the engine-house for the reception, sheltering, storing, cleaning, oiling, dumping, repairing, and firing of its locomotives, and the coal-bins for coaling the same.

The engine-house was designed to accommodate 11 locomotives, and has 11 smoke-stacks, extending above the roof to about the height of the third-story windows of the plaintiff's house. The court found that the engine-house and coal-bins were so constructed and used by the defendant as necessarily to cause damage from the use thereof to the plaintiff's dwelling-house, and that the coal-bins were unprovided with sufficient covering to prevent the dust of the coal, from time to time stored therein, and removed therefrom by defendant, from passing into and upon the plaintiff's land and dwelling-house. The court further found that there is now, and at all times since 1872 has been, emitted from the engine-house and smoke-stacks, and from the defendant's engines in the engine-house, hurtful and offensive gases, smoke, soot, and cinders, and coal-dust from the coal-bins; and that the same pour down upon, and are borne by the winds into and upon, the plaintiff's dwelling-house and premises, filling the house with smoke, soot, and cinders, injuring the furniture and clothing therein, rendering the air offensive and unwholesome, and the house uncomfortable and unhealthy as a habitation, and greatly reducing the rental value of the premises.

The evidence fully justifies the findings of the court. It was shown that the house was rendered untenantable, and could not be rented, although before the erection of the engine-house it had been rented for $2,500 a year; that the plaintiff's son became ill in consequence of the unwholesome atmosphere, and that she was compelled to remove him from the house on that account; and that the value of the house had diminished one-half, a depreciation caused, in great part at least, by the maintenance and use of the engine-house. In short, the engine-house, as used, practically deprived the plaintiff of the use of the house as a residence. The defendant did not physically eject her therefrom, but, by filling it with smoke and dust, and by corrupting and tainting the atmosphere with offensive gases, made life therein uncomfortable and unsafe.

It is scarcely necessary to cite authorities to show that the engine-house, as used, was, within every definition, a nuisance for which, as between individuals, an action would lie for damages, and for which a court of equity would afford a remedy by injunction. See St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Fish v. Dodge, 4 Denio, 311;Campbell v. Seaman, 63 N. Y. 568.

In Radcliff v. Mayor, etc., 4 N. Y. 198, a case which is often cited to sustain the doctrine that consequential injuries to private property, from the prosecution of public improvements, do not give a right of action, Judge BRONSON, referring to the general rule that a man may do what he will with his own property, said ‘he may not, however, under color of enjoying his own, set up a nuisance which deprives another of the enjoyment of his property.’

The correctness of the findings of fact made by the court is not questioned by the defendant. The court placed its judgment denying relief upon the ground that defendant was a railroad corporation, authorized by law to acquire real-estate for an engine-house; that an engine-house at the point where this engine-house was erected was necessary for the operation of its road; and that, in the construction and use of the engine-house and coal-bins, it had exercised all practicable care. The findings of law from these premises was that ‘whatever damage has resulted to the plaintiff, or her property, by reason of defendant's use and occupation of its engine-house and coal-bins, is damnum absque injuria.’

It is manifest that, if this judgment can stand, a most serious injury is inflicted by the defendant upon the plaintiff for which she has no redress. Her premises are subjected to a burden, in the nature of a servitude in favor of the defendant, which seriously impairs the value and enjoyment of her property. The principle upon which the court below proceeded was that what the legislature has authorized the defendant to do can neither be a public nor private wrong. In other words, the legislature has authorized the maintenance of this nuisance by the defendant, and the plaintiff must bear the consequence. The court below, in denying any relief to the plaintiff, of course assumed that the legislative authority, and the act of the defendant thereunder, resulting in flooding the plaintiff's premises with soot, smoke, and noxious gases, was not a taking of the plaintiff's property, within the constitution.

We place our judgment in this case on the ground that the legislature has not authorized the wrong of which the plaintiff complains, and it is therefore unnecessary to determine whether the legislature could have authorized it consistently with the principle of the constitution for the security of private rights, without providing for compensation. The legislative authority under which the defendant seeks to justify the maintenance of the nuisance in question is found in section 6, c. 143, Laws 1848, entitled ‘An act to amend an act entitled ‘An act relating to the New York & Harlem Railroad Company,’' passed May 7, 1840. That section authorizes the defendant, the New York & New Haven Railroad Company, to enter upon and run its cars, by the power or force of steam, animals, or any mechanical power, over the road of the New York & Harlem Railroad Company, from the point of junction of the two roads, in Westchester county, to and into the city of New York, ‘upon such terms and to such point as has been, or may hereafter be, agreed upon by and between said companies.’ The defendant is a Connecticut corporation.Its road extends from New Haven, in that state, to a point on the Harlem Railroad, in Westchester county, in this state. It constructed the part of its road in this state, from the state line to its junction with the Harlem Railroad at Williams Bridge, under the authority of the act of the legislature. Chapter 195, Laws 1846. When the act of 1848 was passed, the two companies had entered into an agreement for the use, by the defendant, for its cars, of the tracks of the Harlem Railroad from Williams Bridge to the city of New York, in which, among other things, the New York & Harlem Railroad agree to furnish the defendant corporation room for their enginehouse at Thirty-third and Forty-second streets, not to exceed one-half of the real estate of the former company at that place, for which the defendant was to pay as provided in the agreement. It is claimed that the legislature has authorized the erection and use of the defendant's structure on Forty-sixth street. The only express authority conferred by the legislature is found in the sixth section of the act of 1848, above referred to. The authority conferred by that section, on the face of it, is simply an authority to the defendant to run their cars, on the Harlem Railroad, to the city of New York, upon such terms as may be agreed upon between the companies. The most obvious purpose of this section was to confer corporate capacity upon the defendant to do that which, without legislative authority, it could not do, viz., operate its road beyond the terminus fixed in the act of 1846, from Williams Bridge to the city of New York. But even this authority was not absolute. It could be exercised only in case and upon the terms of an agreement between the two companies for the use by the defendant of the tracks of the Harlem Railroad. Upon this slender authority is based the claim of the defendant that the legislature has authorized the injury in question. The argument, in brief, is: The legislature has authorized the defendant to run its trains into the city of New York over the Harlem road. It cannot do this without an engine-house conveniently located. The power to acquire lands for and to...