175 N.Y. 353, Ackerman v. True

Citation:175 N.Y. 353
Party Name:CHARLOTTE Y. ACKERMAN, Appellant and Respondent, v. CLARENCE F. TRUE, Respondent and Appellant.
Case Date:June 09, 1903
Court:New York Court of Appeals

Page 353

175 N.Y. 353

CHARLOTTE Y. ACKERMAN, Appellant and Respondent,

v.

CLARENCE F. TRUE, Respondent and Appellant.

New York Court of Appeal

June 9, 1903

Argued May 11, 1903.

Page 354

[Copyrighted Material Omitted]

Page 355

COUNSEL

William J. Kelly for plaintiff, appellant and respondent. This was not a case where the trial court was justified in compelling the plaintiff to elect whether she would proceed on the theory of a nuisance or of a continuing trespass. (Lynch v. M. E. R. Co., 129 N.Y. 274; Garvey v. L. I. R. R. Co., 9 A.D. 254; 159 N.Y. 323; Strobel v. K. S. Co., 164 N.Y. 305; Stowers v. Gilbert, 156 N.Y. 600; Carlisle v. Cooper, 21 N. J. Eq., 576; Abendroth v. El. R. R. Co., 122 N.Y. 1; Wood on Nuisance [2d ed.], § 778; Clowes v. Staffordshire Co., L. R. [ 8 Ch. App.] 125; Atty.-Gen. v. Sheffield, 19 Eng. L. & E. 648; Roberts v. Sadler, 104 N.Y. 234.) No power was vested in Mr. Clausen as a commissioner of parks, or in the park board, or the park department, to permit the structure complained of in the Riverside drive. (Gusthal v. Strong, 23 A.D. 318; Ghee v. N. G. L. Co., 158 N.Y. 514; People ex rel. v. Newton, 112 N.Y. 396; Roberts v. Sadler, 104 N.Y. 234; Blaschko v. Wurster, 156 N.Y. 437.) The structure erected by defendant in the public streets is unlawful and unauthorized. It is a continuation of his house out beyond the building line into the street. It is an appropriation of the public street for private purposes without warrant or color of authority. (People v. Mayer, 59 How. Pr. 277; Story v. N.Y. E. R. R. Co., 90 N.Y. 155.) The plaintiff's easement of light, air and access is not bounded by the lines of the sides of her property. The easement operates laterally as well as in front of her lot, and secures the open and free use of the street. (Story v. N.Y. E. R. R. Co., 90 N.Y. 145; K. C. F. Ins. Co. v. Stevens, 101 N.Y. 411; Mahady v. B. R. R. Co., 91 N.Y. 153; People v. B. F. & C. I. R. R. Co., 89 N.Y. 92; Hartshorn v. Inhabitants of So. Reading, 3 Allen, 501; Gerard on City Water Rights & Streets, 145; White's Bank v. Nichols, 64 N.Y. 65; Lahr v. M. E. R. Co., 104 N.Y. 268.) There is no estoppel or question of laches in this case. (Abendroth v. M. E. R.

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R. Co., 122 N.Y. 1; Galway v. M. E. R. R. Co., 128 N.Y. 132.)

Henry G. Atwater, Alfred B. Cruikshank and J. C. Thomson for defendant, respondent and appellant. The failure of the plaintiff to establish any special injury to her property is a complete answer to her prayer for judgment. (Newman v. M. E. R. Co., 118 N.Y. 618; Bohm v. M. E. R. Co., 128 N.Y. 576; Crocker v. M. Ins. Co., 61 A.D. 226; Rudolph v. Ackerman, 58 A.D. 596.) The action was brought upon the theory that the erections complained of constituted a public nuisance, and not for trespass or appropriation of plaintiff's easements. (Libmann v. M. Ry. Co., 59 Hun, 428; Harlow v. Humiston, 6 Cow. 189; Lansing v. Smith, 8 Cow. 146; Dyget v. Schenck, 23 Wend. 446; Pollock on Torts [Webb Am. ed. 1894], 487; Bucholz v. N.Y. L. E. & W. R. R. Co., 148 N.Y. 640; Uline v. N.Y. C. R. R. Co., 101 N.Y. 98; Tallman v. M. E. R. Co., 121 N.Y. 119.) This erection was not a public nuisance, and even if it were such plaintiff could not, on the facts, have maintained an action to abate it. (Griffith v. McCullum, 46 Barb. 561; Pierce v. Dart, 7 Cow. 609; Bigelow v. H. B. Co., 14 Conn. 565; Wood on Nuisances, § § 618, 619; Fort Plain Bridge v. Smith, 30 N.Y. 44; Adler v. M. El. R. Co., 138 N.Y. 173; Lansing v. Smith, 8 Cow. 146; Doolittle v. Supervisors, 18 N.Y. 155.) The erection is not a private nuisance, or if technically such plaintiff could not succeed in having it removed without showing special and irreparable injury. (Meyers v. Gemmel, 10 Barb. 537; Parker v. Foote, 19 Wend. 30; Butt v. I. G. Co., 2 L. J. Ch. 158; High on Inj. § 24.) Plaintiff has not suffered any damage, special or otherwise, by reason of the erections in question. If anything she has been benefited thereby. (High on Inj. § 774; Washb. on Ease. § 497.) Plaintiff acquiesced in the encroachment complained of. (Beach on Injunctions, § 1061; High on Injunctions, § 756.) Encroachments similar to defendant's, and not interfering

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with actual traffic, are not nuisances, but are to be considered as harmless, ornamental projections. (Wormser v. Brown, 149 N.Y. 163; Goldstraw v. Duckworth, L. R. [5 Q. B. D.] 275; City of Philadelphia v. P. Board, 29 Leg. Intel. 53; Garrett v. Jones, 65 Md. 260; City of Philadelphia Appeal, 78 Penn. St. 33; Gray v. Baynard, 5 Del. Ch. 499.) Plaintiff's argument that the authorization of these ornamental fronts would tend to impair the use of the streets is without force. (Cronin v. People, 82 N.Y. 318; Commonwealth v. Plaisted, 148 Mass. 375.) Independent of any statute the park department had undoubtedly the power to authorize these ornamental fronts. (Wormser v. Brown, 149 N.Y. 163; Jorgensen v. Squires, 144 N.Y. 280.) The permit issued to defendant by the park department and under which he acted in erecting the fronts in question was legal, regular, duly authorized and sufficient. (Wormser v. Brown, 149 N.Y. 163; Hoey v. Gilroy, 129 N.Y. 132; Dillon on Mun. Corp. § 463; Peterson v. Mayor, etc., 17 N.Y. 449; Moore v. City of Albany, 98 N.Y. 396; Jorgensen v. Squires, 144 N.Y. 280; Babbage v. Powers, 130 N.Y. 281; Broadbelt v. Loew, 15 A.D. 343.)

MARTIN, J.

On March 15, 1898, the defendant conveyed to the plaintiff a plot of ground on the northeast corner of Riverside drive and Eighty-second street in the city of New York, which extends along the easterly side of Riverside drive about sixty feet and along the southerly side of Eighty-second street twelve feet. At the time of this conveyance the defendant also owned the property fronting on Riverside drive adjoining the lot conveyed to the plaintiff on the northerly side and extending to Eighty-third street. The plaintiff owned a lot adjoining that conveyed to her by the defendant on which there was a house in which she resided. Subsequent to the conveyance to the plaintiff the defendant constructed a row of houses on the plot owned by him northerly of the plaintiff's lot. The house which the defendant built upon the lot adjoining the plaintiff's was extended three feet and six

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inches beyond the easterly line of the street, and had in addition what is known as a swell front or bay window also extending into Riverside drive. The plaintiff claims that so much of the house built by the defendant adjoining her property as extends beyond the line of Riverside drive and into that street is an unlawful invasion or trespass upon her rights, and is a public nuisance from...

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