Kernochan v. New York El. R. Co.

• Decision Date: 01 December 1891
• Citation: 29 N.E. 65,128 N.Y. 559
• Parties: KERNOCHAN et al. v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 559

29 N.E. 65

KERNOCHAN et al.

v.NEW YORK EL. R. CO. et al.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from superior court of New York city, general term. Affirmed.

Action by James P. Kernochan and others against the New York Elevated Railroad Company and others to restrain defendants from maintaining their road in front of plaintiffs' premises, and for damages. Plaintiffs obtained judgment, which was affirmed by the general term. Defendants appeal.

Samuel Blythe Rogers, for appellants.

G. Willett Van Nest, for respondents.

ANDREWS, J.

This case, and several others now awaiting decision, present the question whether the owner of premises in the city of New York, who, after the construction of the elevated railroad in the street upon which the premises abutted, leased them for a term of years, can maintain an action for damages for the impairment of easements in the street appurtenant to his premises, by the existence and maintenance of the road, suffered during the period in which the premises were in the actual occupation of tenants under the lease, or whether the right of action is in the lessee. The case presents the further question whether, upon the death of the lessor intestate, the right to damages accruing from his death to the termination of the lease is vested in his administrators or belongs to his heirs, who, upon his death, succeeded to his title to the land. There is a further question of evidence to which reference will be made.

The question as to the respective rights of lessor and lessee under the circumstances stated, has occasioned considerable controversy, and has been argued in several of the cases before us with much ability, and this question will be first considered. The proposition that the structure of the elevated railroad invades property rights of owners of abutting property is no longer an open question. It is generally, if not universally, true that the structure is located in streets, the fee of which is in the city of New York. The building and operating of the road involves no actual entry upon the lands of the abutting owners, nor any injury to any corporeal hereditaments. The act of the defendant was not, therefore, a trespass upon land of another as that injury is defined in the common law. It has been usual in these cases to denominate the injury to abutting owners a trespass. Every in vasion of another's rights is such in a general sense, and in this general sense the word has been used as a convenient term to characterize the wrong committed. But the attempt to fasten upon this use an implication that the injury was one to the immediate occupier of the property, viz., to the tenant, rather than to the landlord, has no justification. In the Story Case, 90 N. Y. 179, the court, in speaking of the right of an abutting owner in the public street, said: ‘The right thus secured was an incorporeal hereditament. It became at once an appurtenant to the lot, and formed an integral part of the estate in it. It follows the estate, and constitutes a perpetual incumbrance upon the estate burdened with it. From the moment it attached the lot became the dominant, and the open way or street the servient, tenement.’ The invasion of this incorporeal right by the structure of the elevated road is the gravamen of this and similar actions; and such an injury, although not a trespass upon land, has throughout the course of common law been remediable by an action for damages, technically known as an action of ‘trespass on the case.’ It is a fundamental proposition that only the party injured by a wrongful act can maintain an action for damages. There may be difficulty in some cases in ascertaining the proper party. The same wrong may occasion injury to several persons, or to separate and distinct interests in the same property. But, we repeat, he only is entitled to maintain an action who can show that his right has been invaded, and to such person or persons only is the wrong-doer bound to make compensation. The owner of real property, so long as he is in possession, and has not leased or created any subordinate interest in the land, plainly is the only person who has been injured by the construction and maintenance of the elevated railway. His easements, appurtenant to the land, have been invaded by the structure, constituting an injury to the inheritance, as distinguished from a mere temporary and casual wrong or trespass, not affecting the permanent value or use of the premises. It is true that the wrong is not permanent in the sense that it is irremediable. The structure may be voluntarily removed, or its removal may be compelied on the application of abutting owners, and past damages may be recovered. Until the company shall have acquired by condemnation proceedings or voluntary cession the rights of abutting owners, the ordinary legal and equitable remedies are open to them. It is found as a fact that the defendants proclaim their intention to continue to maintain and operate the railroad, and this is a necessary inference from the situation. The character and purpose of the structure, the corporate powers and obligations of the defendants, the large amount expended in the enterprise, the right of condemnation given by the statutes, are conclusive not only that the defendants intend permanently to operate the road, but also of the fact that, when forced so to do, they will acquire the legal right as against all parties in interest. That under these circumstances the construction and operation of the road before any consummated right has been acquired by the defendants, whereby the owner of abutting property is deprived of the full enjoyment of his property, constitutes an injury to the inheritance, admits, we think, of no doubt.

In the present case the owner of the lot did not retain the full and absolute dominion, but carved out of the fee a term of years. But by so doing he did not divest himself of his inberitance. He still has an inheritance in the land, technically a reversion. His prior absolute and unqualified estate was divided into two estates,-one in the termor, the nature and quality of which is determined by the lease; and the other in himself. In determining whether the lessee acquired by his lease the right to recover damages inflicted upon the property by the road during the term, the situation at the time the lease was executed, the terms of the instrument, and the intention of the parties thereto, are to be considered. The first and most obvious consideration is that the lease was of the lot, and that, when made, the incorporeal and appurtenant easements in the street, to the extent that they had been taken or invaded by the elevated railroad, has been practically severed, though by wrong, from the abutting property. The part so taken away was not enjoyed in connection with the premises leased when the lease was executed. But still more material is the fact that the rent reserved in the lease was for the use of the lot in its actual situation. This is not stated in terms, but there can be no other reasonable inference. The road was then in the street, and was intended to be a permanent structure. It would be an unnatural and violent presumption that the lessor intended to exact, or that the lessee intended to pay, rent, measured by the value of the use of the premises without the railroad, on the supposition that it would be removed during the term. On the contrary, it is undoubtedly true that the rent reserved in leases like this represents in the minds of the parties the value of the use of the premises incumbered by the disadvantages of the railroad. The rent is diminished to the extent of the estimated injury to the rental value of the premises from this cause. In no other view, practically, could property built upon, and especially business property, be rented at all. Lessees usually desire leases of such property for a considerable period. The owner could not ordinarily rent from day to day, or week to week. The loss falls upon the lessor, and the continuance of the wrong during the term imposes no pecuniary loss...