Lewis v. New York & H. R. Co.

• Decision Date: 27 February 1900
• Court: New York Court of Appeals Court of Appeals
• Parties: LEWIS v. NEW YORK & H. R. CO. et al.

162 N.Y. 202

56 N.E. 540

LEWIS

v.NEW YORK & H. R. CO. et al.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, First department.

Action by Mary J. Lewis against the New York & Harlem Railroad Company and the New York Central & Hudson River Railroad Company for damages for the maintenance and use of an elevated railroad. From a judgment affirming a judgment awarding partial damages to plaintiff (57 N. Y. Supp. 1053), both parties appeal. Affirmed.

On the 1st of February, 1895, the plaintiff became the owner of a lot of land on the easterly side of Park (formerly Fourth) avenue, between 114th and 115th streets, in the city of New York, 25 feet wide and 80 feet deep. Upon this lot there is a five-story building, known as ‘No. 1613 Park Avenue,’ the ground floor of which is used for stores, and the other floors for apartments. She derived her title to said premises through various mesne conveyances from one Benjamin L. Benson, who is the common source of title of all the parties to the controversy. On the 19th of April, 1897, she commenced this action against the defendants for an injunction and damages on account of railroad structures erected and maintained in said avenue, which, as she alleged, interfered with access to her premises, and prevented light and air from reaching the same. In 1811 Park Avenue was laid out as a street, 100 feet wide, under the name of ‘Fourth Avenue,’ upon a map filed by commissioners appointed pursuant to chapter 115 of the Laws of 1807, but for many years it had no existence except on paper. Said act made the map, ‘in respect to the laying out of streets and roads within the boundaries' specified, final and conclusive, both upon the city and the landowners. It provided for the opening of any street so laid out upon the map whenever the city authorities decided to do so. On the 19th of November, 1825, by a deed recorded December 6th of the same year, said Benson, who owned a large tract of farming land bounded by 107th and 115th streets and Third and Fourth avenues, conveyed to the city of New York the fee of Fourth avenue as laid out on said map, so far as it extended through his premises, including the portion in front of the lot now owned by the plaintiff, in trust for street purposes, reserving the timber, trees, buildings, and improvements standing thereon, and covenanting with all convenient speed to open said avenue over the lands conveyed, and make it passable for ‘horses, carriages, cattle, and foot passengers, in the same manner and with the same degree of convenience as good country roads are passable.’ It does not appear that this covenant was ever performed by him, or that the street was actually opened until after 1850. On the 12th of November, 1828, Benson caused a map of his tract to be filed in the register's office, upon which various lots were laid out, numbered, and represented as lying on the easterly side of Fourth avenue. On the same day, by a deed recorded forthwith, he conveyed to one Watt, a predecessor in title of the plaintiff, the premises now belonging to her, with other lands, described by the lot numbers of said map, and as bounded by the easterly exterior line of Fourth avenue.

The New York & Harlem Railroad Company was incorporated by chapter 263 of the Laws of 1831, and authorized ‘to construct a single or double railroad or way, from any point of the north bounds of Twenty-Third street, to any point on the Harlaem river, between the east bounds of the Third avenue and the west bounds of the Eighth avenue’; but, in case the route should be located ‘in or along any public street or avenue now laid out on the map or plan of the city of New York,’ the company was required to ‘leave sufficient space in the said street or avenue on each side of the said railroad for a public highway for carriages, and for a sidewalk for foot passengers.’ The right was reserved to alter, amend, or repeal the act at any time. The location of the route was not to be effective until a map thereof was approved by the common council. That approval was given on the 19th of December, 1831, by a resolution authorizing the company to construct a double or single track railroad, not exceeding 24 feet in width, along Fourth avenue, from Twenty-Third street to the Harlem river, with the right, however, reserved to the city, in case ‘the railways or any part thereof shall constitute an obstruction or impediment to the future regulation of the city, or the ordinary use of any street or avenue,’ of which the city was to be the sole judge, to require the company to forthwith provide a remedy for the same, and, in case of its failure to do so within one month after such requisition, to require it to remove the railway and replace the street in as good condition as it was before the railway was laid down. In case the company neglected to obey, the city was given the right to remove the obstruction from the street, and restore it to its former condition, at the expense of the company. It was further provided that ‘the railroad path’ should be protected by railings, and that, if the railroad should be discontinued, ‘the strip of land to be taken for the said railroad should be thrown open and become a part of the street.’ This resolution was embodied in a formal agreement, duly executed by the company. On the 1st of February, 1832, the common council, by resolution, authorized the company ‘to take possession of the ground owned by the common council over which the line of said railroad is ordered to be constructed, and that they be permitted to use the same’ for railroad purposes only. On the 18th of January, 1832, Benson conveyed to the company a central strip of land 24 feet wide, extending from 105th to 116th street, ‘being part of one of the avenues laid out on the map of the city of New York as the Fourth avenue, * * * for and during the full period of time’ that it should remain a corporation, ‘and on which they are to construct their railroad, and for no other purpose, with the power of sloping their embankments or excavations so much further beyond the line of said premises * * * as may be necessary to support their work, not, however, extending beyond the width of the avenue,’ which was then 100 feet. This deed was recorded August 18, 1835, but prior thereto the company had constructed a double track railroad in the center of the avenue, on a stone viaduct, about 28 feet wide at the base, with sloping walls, which, in front of the premises in question, were 10 or 12 feet high. In 1835 an effort was made to widen Fourth avenue to 140 feet, mainly because of the railroad in the center thereof. After action by the common council, upon the petitions of citizens and landowners interested, it was provided by chapter 274 of the Laws of 1837, entitled ‘An act to alter the map or plan of the city of New York,’ that ‘Fourth avenue’ should ‘be continued and extended on the said map or plan from Sixty-Sixth street to Sixty-Eighth street,’ and that ‘all that part of the Fourth avenue * * * lying between Thirty-Fourth street and the Harlaem river shall be widened on the map or plan of the said city by adding thereto, on each side thereof 20 feet of land, so as to make the whole width of that part of the said avenue 140 feet.’ The portion so to be widened was declared to be one of the avenues of the city, with the like effect as if it had been laid out under the act of 1807. Said act of 1837 discontinued parts of eight streets, and assumed that Fourth avenue was not yet opened; for it provided that ‘whenever the said avenues or streets, or any or either of them, shall be opened, the damage and benefit shall be estimated, assessed, and paid in like manner as the same would have been done if the said avenues or streets had been originally so extended or continued.’ Between 1850 and 1853 Fourth avenue was opened from 38th street to 135th, the additional 20 feet on each side having been condemned, and a nominal award of $1 made to the railroad company; but its possession of the central portion of the street was never disturbed, and the part then occupied by the company was never used as a public street until after 1892. There is no evidence that any part of the avenue in the vicinity of plaintiff's premises was ever built upon or used by teams until after 1850.

By chapter 702 of the Laws of 1872 said company was ‘authorized and required to regulate the grade of their railroad in the Fourth avenue,’ and to make numerous changes by way of viaducts, bridges, and tunnels in order to do away with grade crossings. Four tracks were authorized, and the grade was depressed a part of the way, so that the tracks ran through a cut; but in front of the premises now belonging to the plaintiff a viaduct was required, which resulted in the construction of a solid stone embankment 56 feet 4 inches wide and 3 feet high, with a wall on each side extending up 3 feet and 10 inches further. These changes were made by a board of engineers, named in the act, who were required ‘to execute, direct, and superintend the construction of the said improvement,’ and ‘take the entire charge and control’ thereof. The cost of the improvement was to be paid by the railroad company and the city in equal proportions. The city officers were forbidden to obstruct the work, the municipal legislature was required to pass such ordinances as were necessary to facilitate the same, and the company was ‘authorized and directed to run’ its trains over the structure ‘when completed.’ This improvement was finished about 1873, as the trial court is presumed to have found, and during that year said company leased its railroad in Fourth (now Park) avenue to the New York Central & Hudson River Railroad Company for a term of 401 years, and the latter company has operated the same ever since.

In 1890 an act of congress required the secretary of war ‘to cause the low bridges now crossing...