68 N.Y. 283, Beck v. Carter

Citation:68 N.Y. 283
Party Name:DANIEL BECK, Respondent, v. ELMIRA CARTER et al., Executors, etc., Appellants.
Case Date:January 30, 1877
Court:New York Court of Appeals

Page 283

68 N.Y. 283

DANIEL BECK, Respondent,

v.

ELMIRA CARTER et al., Executors, etc., Appellants.

New York Court of Appeal

January 30, 1877

Argued Jan. 16, 1877.

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COUNSEL

Geo. B. Bradley for the appellants. The excavation on the testator's premises was not a public nuisance and defendants were not liable for any injury arising therefrom. ( Hardcastle v. S. Y. R. Co., 4 H. & N., 67; Hounsel v. Smith, 97 E. C. L., 731; Nicholson v. E. R. Co., 41 N.Y. 531; Howland v. Vincent, 10 Metc., 371; Hadley v. Taylor, 1 L. R., C. P., 54; S. & R. on Neg., § 359; Jordan v. Humiston, 8 M. & W., 782-788; Harlow v. Humiston, 6 Cow., 189.) Defendants' testator was not bound to run a fence along the alley. ( Stafford v. Ingerson, 3 Hill, 38; Wells v. Howell, 19 J. R., 385; Chapman v. Cook, 14 Am. [ 10 R. I.], 686; Sykes v. Paulet, 43 Vt., 443; 3 Black. Com., 209.) The court erred in charging that defendants' testator was charged with liability as for negligence without regard to the location of the area in reference to the alley. ( Butterfield v. Forrester, 11 East, 60; Button v. H. R. R. R. Co., 18 N.Y. 251.) Any one passing over the testator's premises did so at his own peril. ( Hounsel v. Smith, 97 E. C. L., 731; Nicholson v. Erie R. Co., 41 N.Y. 531.) The alley in question was not a public highway. ( City of Oswego v. Oswego Canal Co., 2 Seld., 257; Willoughby v. Jenks, 20 Wend., 86.)

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A. P. Ferris for the respondent. The charge that the location of the area made no difference if it was so situated that one lawfully and reasonably using the alley was liable to fall into it was erroneous. ( Binks v. S. Y. R. Co., 113 E. C. L., 242; Hadley v. Taylor, L. R., 1 C. P., 54; Barnes v. Ward, 67, E. C. L., 392; S. & R. on Neg., § 505; Stratton v. Staples, 59 Me., 94; City of Norwich v. Breed, 30 Conn., 535.) Plaintiff having been licensed by defendants' testator to pass over his premises, the latter was liable for uncovering the area. (Wood on Mis., § § 289, 289; Corley v. Hill, 93 E. C. L., 554; Driscoll v. N. and R. L. and C. Co., 37 N.Y. 637; Swords v. Edgar, 59 Id., 28; Clancy v. Byrne, 56 Id., 129; Cleveland v. Cleveland, 12 Wend., 172.)

ANDREWS, J.

The jury have found that there was no negligence on the part of the plaintiff, and this finding is justified by the evidence. The night was dark, and there was no visible boundary to the alley on the east side, opposite the defendant's lot. As the plaintiff came near Buel street he stepped to the east to avoid an approaching omnibus, and fell into the excavation. But the fact that the plaintiff was free from negligence does not alone furnish any ground for a recovery against the defendant. It must also appear that the circumstances created a duty on the defendant to fence or otherwise guard the excavation for the protection of persons in the situation of the plaintiff. It must be assumed in view of the charge and the exceptions that the excavation was on the defendant's lot, at a distance of ten or more feet east of the original east line of Exchange alley. The excavation was made in the course of the construction, by the defendant, of a building on his premises, to admit light and air to the cellar, and was eventually to be covered by an iron grating, and prior to the time of the accident it had been covered with boards, which, however, had been removed before the accident happened. It is manifest that if the plaintiff had kept within the original bounds of the alley he could not have fallen into the excavation. It was because he strayed and deviated

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therefrom, and went upon the defendant's lot, that he was injured. But it cannot be held upon the evidence that the plaintiff was a trespasser in going there. There was, it is true, no public easement or right of way over the defendant's lot. It was his private property, and he had the right to its exclusive possession. He could have inclosed it and excluded the plaintiff and all other persons from going upon and passing over it. But from the time the "United States" hotel building was erected in 1856, until it was burned in 1868, the public had been permitted to pass over the vacant part of the lot fronting on Buell street and the alley, without objection. In going from Buell street to the alley, and from the alley to Buell street, this part of the defendant's lot, fifty feet back from Buell street, was traversed by foot passengers, and was used as a part of the streets. There was no intent to permanently dedicate the lot or any part of it as a public place or highway, but the front of the lot was known as Exchange Place, and the public used it, and the defendant and his grantors, by their silence, assented to its use. This use was not occasional or infrequent. The lot was in the business portion of a populous village, and near to public places where the inhabitants had frequent occasion to go. The same use was permitted and continued after 1868 until it was prevented in part by the erection of the defendant's building on a portion of the theretofore vacant space. The public still continued to pass over the lot on the west side of the building after the walls were up, to a point within two or three feet therefrom. There was never any revocation of the license, or permission to the public to use the lot as they had been accustomed, except as the building operated to exclude the public from the space it occupied.

The owner of land is not bound by the common law to fence his land, or in any way to mark the boundaries of his possession. ( Wells v. Howell, 19 J. R., 385; Stafford v. Ingersol, 3 Hill, 38.)He may leave it open, and a person entering thereon without permission is a trespasser,...

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