SB Penick & Co. v. New York Cent. R. Co.

• Decision Date: 03 May 1940
• Docket Number: No. 7225.,7225.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: S. B. PENICK & CO. et al. v. NEW YORK CENT. R. CO. et al.

111 F.2d 1006 (1940)

S. B. PENICK & CO. et al. v. NEW YORK CENT. R. CO. et al.

No. 7225.

Circuit Court of Appeals, Third Circuit.

May 3, 1940.

Lichtenstein, Schwartz & Friedenberg, of Hoboken, N. J. (David Friedenberg, of Hoboken, N. J., of counsel; and Howard Engel, of Hoboken, N. J., on the brief), for appellants.

John A. Bernhard, of Newark, N. J., for appellee Public Utility Commission of New Jersey.

Collins & Corbin, of Jersey City, N. J. (Edward A. Markley, of Jersey City, N. J., of counsel; and Raymond J. Lamb, of Jersey City, N. J., on the brief), for appellee Erie R. Co.

John A. Hartpence, of Jersey City, N. J., for appellee New York Cent. R. Co.

Before BIGGS, MARIS, and JONES, Circuit Judges.

BIGGS, Circuit Judge.

The appellants own certain improved real estate abutting on Willow Avenue, a public highway in Hoboken, New Jersey. Willow Avenue, prior to the happening of the events set forth in the complaint, was crossed at grade by the appellee railroad companies' tracks. These companies, pursuant to an order of the Board of Public Utility Commissioners of New Jersey, constructed a viaduct and carried Willow Avenue above and across the tracks. Part of the viaduct is located on Willow Avenue at a point where the appellants' properties abut upon it. The appellants by their complaint allege that by reason of the erection of the viaduct, their easements of light and air, access to and egress from the premises, were impaired. Motions to dismiss, filed by the appellees, were granted by the court below, which entered final judgment in favor of the appellees. The appeal at bar is from this judgment. It must be borne in mind that none of the appellants' lands were taken physically in order to find space upon which to put the viaduct. The suit at bar is to recover incidental or consequential damages.

The appellants make three contentions. First, they contend that the railroads are liable to them for damages sustained by them at common law, irrespective of any statute. Second, they contend that by the provisions of Section 2 of the Fielder Grade Crossing Act, P.L.1913, Chap. 57, p. 91, Sec. 2, as amended, P.L.1933, Chap. 390, p. 1092; R.S.1937, 48:12-62, N.J.S.A. 48:12-62, the railroads are liable to them for damages. Third, they contend that by the provisions of Section 2 of the Fielder Act, the Board of Public Utility Commissioners of New Jersey is liable for fifty per cent of the damages suffered by the appellants. We will deal with these contentions seriatim.

We think that it is entirely clear that by the common law of New Jersey, that is to say, in the absence of a right conferred by statute, the owner of an abutting property possesses no right to recover damages for a change of grade of a street if that change be made pursuant to public authority, although the change impairs easements of light, air, and access to and egress from his premises. Burns Holding Corporation v. State Highway Commission, 150 A. 768, 8 N.J.Misc. 452, affirmed, 108 N.J.L. 401, 154 A. 628; Colburn v. Delaware River Joint Toll Bridge Comm., 123 N.J.L. 197, 8 A.2d 563. We are also of the opinion that the erection by the appellee railroads of the viaduct to carry Willow Avenue over the railroad tracks was the equivalent of a change of grade, and distinguishable from a case in which a viaduct or similar structure is erected by a transportation company for its own exclusive use. See Sauer v. New York, 206 U. S. 536, 27 S.Ct. 686, 51 L.Ed. 1176, in which the Supreme Court of the United States affirmed a decision of the Court of Appeals of New York, at 180 N.Y. 27, 72 N.E. 579, 70 L.R.A. 717. In the cited case, 206 U.S. at page 553, 27 S.Ct. 686, 51 L. Ed. 1176, Mr. Justice Moody makes plain that a right to compensation exists in the abutting owner when an elevated structure has been erected for the practically exclusive occupation of a railroad, but that such a right does not exist in the abutting owner when such a structure has been erected for public use and travel. We can perceive no difference between the law of New York and New Jersey in this regard which would aid the appellants. Indeed, the appellants expressly concede that their title to the fee of the lands in the highway is subordinate to a public easement of passage. See Winter v. Peterson, 24 N.J.L. 524, 61 Am. Dec. 678, and Faulks v. Allenhurst, 115 N. J.L. 456, 180 A. 877. They further concede that a governmental agency executing a public function does not incur liability for damages; that a municipal corporation, for example, altering the grade of a highway, may be considered fairly to be serving the public easement of passage. See Tinsman v. Belvidere, etc., Co., 26 N.J.L. 148, 160, 69 Am.Dec. 565.

We are also of the opinion that the railroads in building the viaduct under discussion in the case at bar acted under compulsion as agents of the State of New Jersey and carried out under the state police power a grade crossing elimination required for public safety. See Postal Telegraph Cable Co. v. Delaware, L. & W. R. Co., 89 N.J.Eq. 99, 104 A. 141, affirmed, 90 N.J.Eq. 273, 106 A. 892.

We conclude therefore that the appellee railroads must be deemed to be without liability to the appellants unless such liability is created under the Fielder Act.

Section 1 of the Fielder Act, R.S. 1937, 48:12-61, N.J.S.A. 48:12-61, provides that whenever a public highway (other than a state highway) and railroad tracks, crossing each other at the same level, are in such close proximity as to be necessarily involved in one elimination project, and it shall appear to the Board of Public Utility Commissioners that such a crossing is dangerous to public safety, the Board may order the company or companies operating the railroad to alter such crossing according to plans approved by the Board. There can be no question that in the case at bar Willow Avenue was taken over the railroad tracks by the viaduct according to plans approved by the Public Utility Commissioners.

Section 2 of the Fielder Act, R.S.1937, 48:12-62, N.J.S.A. 48:12-62,...