Buchholz v. New York, L.E.&W.R. Co.

Citation148 N.Y. 640,43 N.E. 76
CourtNew York Court of Appeals
Decision Date03 March 1896
PartiesBUCHHOLZ v. NEW YORK, L. E. & W. R. CO.

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, Second department.

Action by Charles W. Buchholz against the New York, Lake Erie & Western Railroad Company for a mandatory injunction to compel defendant to restore a grade street crossing, and to recover damages to plaintiff's property alleged to have been caused by the discontinuance of such crossing. From a judgment of the general term affirming a judgment for defendant (21 N. Y. Supp. 503), plaintiff appeals. Reversed.

John W. Lyon, for appellant.

Lewis E. Carr, for respondent.

ANDREWS, C. J.

Main street, in the village of Port Jervis, as it existed prior to March, 1890, ran in a northerly and southerly direction, passing the plaintiff's premises, upon which for many years had been erected an hotel and barns, used by him for hotel purposes. The plaintiff's lot adjoined lands of the defendant on the north, and, up to the date mentioned, the tracks of the defendant crossed Main street at grade on its own premises, 50 feet or more north of the north line of the plaintiff's lot. In March, 1890, the defendant constructed a bridge over its tracks, 100 feet east of the grade crossing, and connected it with Main street, north of the plaintiff's lot, and an approach thereto on the south from Main street, 100 feet or more south of the plaintiff's premises, and at the same time took up the planking at the grade crossing, and built a fence across Main street north of plaintiff's lot, where the bridge connected with the street. By these acts of defendant the travel on Main street in front of plaintiff's premises was diverted to the new way across the bridge. It left the plaintiff's hotel and premises on a spur of Main street, closed at the north, or on what was, after the change, practically a lane, starting from the point 100 feet south where the new way diverged from Main street. It was found that the plaintiff, by reason of the interference with Main street, sustained special damage, and the facts proved in connection with the use to which the plaintiff's premises were devoted amply justify the finding. But the trial court refused relief, on the ground that, under the circumstances, the plaintiff had suffered no injury to his property for which he was entitled either to damages or an injunction.

There can be no doubt of the general proposition that an unlawful obstruction of a public highway, by an individual or corporation, constitutes a public nuisance, and subjects the party who created or maintains it to an indictment, and to a proceeding for its abatement in behalf of the public. But the public remedy is not, in all cases, exclusive. An individual who has suffered special injury from the nuisance, not common to the whole public, may maintain a private action against the author of the injury for damages, and in a proper case may invoke the jurisdiction in equity to restrain its continuance. The equitable jurisdiction attaches when the legal remedy is inadequate, either because the damages are such that they cannot be measured by a money standard, with any certainty, or where they are continuous, and multiplicity of suits would be likely to result if the remedy was confined to proceedings at law. The injury suffered by the plaintiff in this case from the change in and obstruction of the street, whereby travel was diverted from his premises, and his business as an hotel keeper seriously interrupted, made a case for equitable interposition, and for the recovery of damages, within the cases in this state, assuming that the defendant's acts were unlawful. Adams v. Popham, 76 N. Y. 410;Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264;Flynn v. Taylor, 127 N. Y. 596, 28 N. E. 418. See, also, Story, Eq. Jur. § 926 et seq.

It is contended in behalf of the defendant that, under the provisions of the general railroad act of 1850, it was authorized to make the change in Main street, for the purpose of obviating a grade crossing. By section 28, subd. 5, of the act, a railroad is authorized to construct its road ‘across, along, or upon’ any street or highway which the route of its road shall intersect, coupled with the obligation to restore the street or highway thus intersected to ‘its former state, or to such state as not unnecessarily to have impaired its usefulness.’ By section 24 it is provided that, at a crossing, the highway ‘may be carried under or over the track, as may be found most expedient,’ and, by the same section, power is given to a railroad company to change the line of a highway, ‘where an embankment or cutting shall make a change in the line of such highway * * * desirable, with a view to a more easy ascent or descent,’ and it authorizes additional lands to be taken by the company for the construction of such new line. The provision last cited is the only one in the act which, in terms, authorizes a railroad company to change the line of a highway, and, without considering whether the authority conferred by this provision may be exercised independently of the action of the local authorities having the charge of highways, it is sufficient to say that the provision has no application in this case. The change in Main street was not, and could not have been, made under the authority of this provision, since no embankment or cutting existed at the grade crossing. The defendant must, therefore, rest for its justification, under the act of 1850, upon the power given by the twenty-eighth section to cross highways, coupled with the duty of restoration, and that given by the twenty-fourth section to carry a highway under or over the track of its road. We are of opinion that neither of these sections conferred on the defendant power to change the line of Main street as it existed prior to March, 1890. The bridge and the new line was constructedwholly on the lands of defendant, and this, so far as we can perceive, was a perfectly lawful act. It was a private way, and,...

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5 cases
  • Sandstrom v. Oregon-Washington R. & Nav. Co.
    • United States
    • Supreme Court of Oregon
    • March 2, 1915
    ......Anheuser Busch Br. Co., 100 Mo. 508, 13 S.W. 707; [75 Or. 166] Buchholz v. N. Y., L. E. &. W. R. R. Co., 148 N.Y. 640, 43 N.E. 76; Tise v. Whitaker-Harvey Co., ......
  • Hanover Nat. Bank of New York v. American Dock & Trust Co.
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  • People ex rel. Sibley v. Gresser
    • United States
    • New York Court of Appeals
    • March 19, 1912
    ...entitled to maintain this proceeding. People ex rel. Pumpyansky v. Keating, 168 N. Y . 390, 61 N. E. 637;Buchholz v. N. Y., L. E. & W. R. R. Co., 148 N. Y. 640, 643,43 N. E. 76. They had the right to compel the president of their borough to perform the duty imposed upon him by the charter o......
  • People ex rel. Bacon v. Northern Cent. Ry. Co.
    • United States
    • New York Court of Appeals
    • October 2, 1900
    ...of an embankment or cutting makes a change of grade in the highway desirable. This court so held in a recent case. Buchholz v. Railroad Co., 148 N. Y. 640, 43 N. E. 76. Chief Judge Andrews, in referring to this provision (page 644, 148 N. Y., page 77, 43 N. E.), said: ‘The provision last ci......
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