Williams v. Brooklyn El. R. Co.

• Decision Date: 20 March 1891
• Citation: 126 N.Y. 96,26 N.E. 1048
• Parties: WILLIAMS v. BROOKLYN EL. R. CO.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 96

26 N.E. 1048

WILLIAMS

v.BROOKLYN EL. R. CO.

Court of Appeals of New York.

March 20, 1891.

Appeal from supreme court, general term, second department.

William N. Cohen, for appellant.

A. B. Boardman, for respondent.

ANDREWS, J.

The Story Case, 90 N. Y. 122, and those which have followed it, have settled the doctrine that the placing of an elevated railroad structure in a city street is inconsistent with its character as an open public street, and, in the absence of the consent of the abutting owners to the erection, violates their rights as such, notwithstanding the title to the soil of the way is in the municipality, and although the railroad company in erecting the structure acted under both legislative and municipal authority. In view of these decisions, the contention of the counsel for the defendant, that he was entitled to go to the jury upon the fact whether the structure of the defendant was an interference with the right of the plaintiff as an abutting owner, depending upon the question whether it did or did not obstruct the street, cannot be sustained. There may be little and possibly no damage occasioned by the erection, or the existence of the road may be a positive advantage to his property, depending on the particular circumstances. Where the property owner sues for damages the jury is to ascertain and award them, and they are to be governed by the evidence in determining the amount, and whether substantial or nominal damages only shall be awarded. But it cannot be left for the jury to say whether the structure is or is not one which the legislature or the municipality may authorize as against an abutting owner, upon the theory that it is a question of fact, and not of law, depending upon the extent of the interference in a particular case with the public right of passage or with the enjoyment by the abutting owners of their premises. This disposes of one class of exceptions taken on the trial.

The original charter of the defendant was granted in 1874, but the work of constructing the road was not commenced until 1879, and was not completed until 1885; and an exception was taken to the refusal of the court to charge that no damages were recoverable for any depreciation of rental value of the plaintiff's houses, resulting from the contemplated building, or rumors of the contemplated building, of the defendant's road. There was no claim to recover for any damages except for the six years prior to the commencement of the action, viz., from November 20, 1880, to November 25, 1886. The jury were expressly limited by the court to this time, and under this ruling it was quite immaterial whether the rumors that the road was to be built, existing prior to the actual commencement of the construction, did or did not affect the rental value of the houses completed before 1879, between the time of their completion and the time when the construction was commenced, and the court was justified in declining to charge upon this abstract question. The foundations for the columns of the road were laid in front of plaintiff's premises in 1879, and the court properly submitted it to the jury to find whether the obstruction of the street during the progress of the work, by the piers and the deposit of material used in the construction, diminished the rental value of the houses of the plaintiff during the period of construction, proof having been given which tended to support the plaintiff's contention upon this point. There was no error in permitting the jury to award damages for loss sustained through the inability of the plaintiff to rent the houses from time to time, while the work was going on and after the completion of the road, where such loss could be traced to the operations of the defendant. The proof to sustain this claim was not, and from the nature of the case could not be, very definite or satisfactory, but there was evidence on the subject, and the matter could not be taken from the jury. The exceptions taken by the defendant on the trial were very numerous. There were 40 requests to charge made in its behalf. The charge covered the material questions in the case, and furnished no ground for any valid exception. The requests to charge were mainly denied. They either related to matters upon which the court had already charged, or embodied abstract or immaterial propositions, or related to questions of evidence and the credibility of witnesses, the denial of which was not legal error. We perceive no valid ground for reversing the judgment on the merits, and we should affirm it except for the ruling of the court made during the summing up to the...