Lohr v. Metro. Elevated R. Co.

• Citation: 10 N.E. 528,104 N.Y. 268
• Parties: LOHR v. METROPOLITAN ELEVATED R. Co.
• Decision Date: 01 February 1887
• Court: New York Court of Appeals

104 N.Y. 268

10 N.E. 528

LOHR

v.METROPOLITAN ELEVATED R. Co.

Court of Appeals of New York.

February 1, 1887.

Appeal from general term, court of common pleas for the city and county of New York.

Action to recover $10,000 damages for injury to plaintiff's premises, No. 73 West Third (otherwise known as Amity) street, in the city of New York, caused by the construction and operation of defendant's elevated railroad. West Third (or Mity) street was laid out in 1823, under the act of April 9, 1813, which vests the fee of streets alid out thereunder in the city, ‘in trust, nevertheless, that the same may be appropriated and kept open for or as a part of a public street, avenue, square, or place, forever, in like manner as the other public streets, avenue, squares, and places in the said city are and of right ought to be.’ The original owner of the land through which the street was laid out was assessed, for benefits arising from the street to his remaining land, several hundred dollars over and above the sum awarded to him as the value of the land taken. Plaintiff became the owner of the premises, through several mesne conveyances, by deed dated April 6, 1874. The elevated railroad complained of had been built, and trains began to run on it, in 1878. Defendant paid no compensation to plaintiff. Defendant was incorporated, under a special charter, (chapter 885 of Laws of 1872,) by the name of the Gilbert Elevated Railroad Company, afterwards changed to its present name. Damages were sought to be recovered as for a permanent injury and taking of property. A verdict was rendered in the court below for plaintiff for $1,957.50.

Julien T. Davies, Edward S. Rapallo, and David Dudley Field, for appellant.

Inglis Stuart and G. Willett Van Nest, for

Plaintiff can establish no cause of action without proving that some property has been taken from him by defendant. In Story v. New York Elevated R. Co., 90 N. Y. 122, plaintiff's rights arose from a contract, contained in the original grants of the abutting lots by the city, that the streets should be kept open.

Consequential or incidental damages to property occasioned by the construction or operation of a railroad cannot be recovered in the absence of an actual taking of property. Sedg. St. & Const. Law, 519; Dill. Mun. Corp. § 784; Transportation Co. v. Chicago, 99 U. S. 635;O'Conner v. Pittsburgh, 18 Pa. St. 187; Hatch v. Vermont Cent. R. Co., 25 Vt. 49;Richardson v. Same, 25 Vt. 473,Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195;Bellinger v. New York Cent. R. Co., 23 N. Y. 42.

The plaintiff does not own any easement of light, air, and access in Amity street appurtenant to his lot abutting thereon, nor any private right of property in the street. The plaintiff, merely as an abutting owner on a street devoted to public uses, and opened under the act of 1813, can have no right or property therein. People v. Kerr, 27 N. Y. 188;Heyward v. Mayor, etc., 7 N. Y. 314;Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234. The description in the deed of the plaintiff's property commences on the side of Amity street, and by its dimensions confines him to the lot, independent of the bed of the street. No title in the street, or ‘possibility of reverter,’ passed to him by this deed. Tyler v. Hammond, 11 Pick. 193;Union Burial Ground v. Robinson, 5 Whart. 21;Jackson v. Hathaway, 15 Johns. 447;Fearing v. Irwin, 4 Daly, 385; English v. Brennan, 60 N. Y. 609;White's Bank of Buffalo v. Nichols, 64 N. Y. 65;Kings Co. Fire Ins. Co. v. Stevens, 87 N. Y. 287.

The plaintiff failed to prove that the acts of defendant constituted any taking of his property, or that the injuries complained of were due to a taking of property, because he failed to show that the use of the street for the railroad of defendant was other than a legitimate street use. The needs of the public in streets are not to be ascertained by a consideration of the means of transportation in use at the time of their acquisition. All methods of transportation of passengers and facilities of traffic authorized by the legislature, invented and perfected in the progress of time by increased knowledge responding to the urgent needs of the public, must be regarded as properly and legitimately using the streets, and lawfully using the estate originally acquired, although unknown at the time the title was taken. The private rights of an abutter are subordinate to the legitimate street use, and only superior to a use excessive of legitimate street uses. As to what is a legitimate street use, see People v. Kerr, 27 N. Y. 188;Kellinger v. Forty-second Street Ry. Co., 50 N. Y. 206;Fifth Nat. Bank v. New York Elevated R. Co., 24 Fed. Rep. 114;Board of Works v. United Kingdom Telephone Co., 51 Law T. 148.

The legislature may authorize a steam surface railroad to be constructed and operated in a street, without compensation to property owners. Drake v. Hudson River R. Co., 7 Barb. 508;Greene v. Same, 65 How. Pr. 154. See, also, Dill. Mun. Corp. § 723; Williams v. New York Cent. R. Co., 16 N. Y. 97;Craig v. Rochester City & B. R. Co., 39 N. Y. 404;Washington Cemetery v. Prospect Park, etc., R. Co., 68 N. Y. 591;People v. Kerr, supra; Kellinger v. Forty-second St. R. Co., supra; Corey v. Buffalo, C. & N. Y. R. Co., 23 Barb. 482;Lexington & O. R. Co. v. Applegate, 8 Dana, 289;Atchison & N. R. C. v. Garside, 10 Kan. 552;Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 Ill. 516;Dwenger v. Chicago & G. T. Ry. Co., 98 Ind. 153;Milburn v. City of Cedar Rapids & C. I. & N. R. Co., 12 Iowa, 246, and cases cited on page 260; Coast Line R. Co. v. Cohen, 50 Ga. 451;Crowley v. Davis, 63 Cal. 460. See, also, opinion of general term in Story v. New York Elevated R. Co., 36 Hun, 432, 433.

The legislature is the sole judge of what constitutes a public use. Bloodgood v. Mohawk R. Co., 18 Wend. 31;People v. Flagg, 46 N. Y. 401;People v. Smith, 21 N. Y. 595;Goszle v. Georgetown, 6 Wheat. 593;People v. Mayor of Brooklyn, 4 N. Y. 419;Smith v. Washington, 20 How. 135. The use of the street for steam railroad purposes for the transportation of passengers engaged in local travel from point to point in the city of New York is a public use of the street wholly reasonable and consistent with its use as a public street. People v. Kerr, 27 N. Y. 188;Kellinger v. Forty-second St. R. Co., 50 N. Y. 206;City of Clinton v. Railroad Co., 24 Iowa, 455;Barney v. Keokuk, 94 U. S. 324;Elliott v. Fairhaven & W. R. Co., 32 Conn. 579; Moses v. Railroad Co., 21 Ill. 522;Indianapolis R. Co. v. Hartley, 67 Ill. 439;Stetson v. Railroad Co., 75 Ill. 74;Hinchman v. Paterson H. R. Co., 17 N. J. Eq. 75;Transportation Co. v. Chicago, 99 U. S. 635;Railroad Co. v. Garside, 10 Kan. 532;Brown v. Duplessis, 14 La. Ann. 842;Severy v. Railroad Co., 51 Cal. 194;Case of Philadelphia & T. R. Co., 6 Whart. 25; Dill. Mun. Corp. §§ 723, 725, 726.

Claims against a corporation, arising out of its exercise of the powers conferred upon it by the legislature, are confined to claims for taking property without making compensation, or for damages by reason of negligence or misconduct in the exercise of those powers. Pierce, R. R. (1st Ed.) 197, 198; Bellinger v. New York Cent. R. Co., 23 N. Y. 42;Radcliff v. Mayor, etc., 4 N. Y. 195;Gould v. Hundson R. R. Co., 6 N. Y. 522;People v. Kerr, 27 N. Y. 193;Briesen v. Long Island R. Co., 31 Hun, 112.

Damages for gas, odor, smoke, steam, cinders, and noise are not in any event recoverable, because the legislature could authorize the running of surface steam trains which would produce these effects, and because plaintiff can have no right appurtenant to his land to have pure or unpolluted air furnished to his house from the street.

RUGER, C. J.

This action is the sequel of the Story Case, (Story v. New York Elevated R. Co.,) 90 N. Y. 122, and its defense seems to have been conducted upon the theory of securing a re-examination of the questions then decided, and, in case that effort should prove fruitless, of limiting and restricting as much as possible their logical effect. The endeavor to secure a re-examination of the doctrines of that case must fail, since the decision then made embodied the deliberate judgment of the court, pronounced after the most careful and thorough consideration, and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resource of learning and argument in the discussion of the questions presented. It would be the occasion of great public injury if a determination thus made should be inconsiderately unsettled, and suffered to again become the subject of doubt and theme of renewed discussion. The reasons advanced by the able counsel for the appellant to induce us to reconsider that case seem to us to be insufficient to render it wise or expedient to do so. The doctrine of the Story Case, therefore, although pronounced by a divided court, must be considered as stare decisis upon all questions involved therein, and as establishing the law, as well for this court as for the people of the state, whenever similar questions may be litigated. Wherever, therefore, the principles of that case logically lead us, we feel constrained to go, and give full effect to the rule therein stated, that abutters upon public streets in cities are entitled to such damages as they may have sustained by reason of a diversion of the street from the use for which it was originally taken, and its illegal appropriation to other and inconsistent uses. The case is not only authority upon the questions which it expressly decides, but also upon all such as logically come within the principles therein determined. It is therefore unnecessary to enter into a general discussion of those questions; but, after restating such propositions therein as seem to be controlling in this case, we shall simply refer to some alleged distinctions between the present case and the Story Case.

We hold that the Story Case has definitely determined (1) that an...