Abendroth v. New York El. R. Co.

Decision Date07 October 1890
Citation122 N.Y. 1,25 N.E. 496
PartiesABENDROTH v. NEW YORK EL. R. CO. et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from superior court of New York city, general term.

Action by William P. Abendroth against the New York Elevated Railroad Company and the Manhattan Railway Company for damages caused by the erection of an elevated railroad in front of his premises. A judgment dismissing the complaint on the merits was reversed by the general term, and a new trial granted. Defendant appeals. When the inhabitants of the island of Manhattan were governed by the United Provinces, a public highway was opened pursuant to the laws then and there existing, which way, so far as it appears, had no name, but was a country road, and so remained until the authority of the British government was established on this island. After New York became a British colony, the highway was called ‘Queen Street,’ and when it became a state, the way was known as Pearl Street,’ by which name it is now designated. In front of the plaintiff's premises the street is 41 feet wide between the house lines; but whether its exterior lines at and near this point coincide with those of Queen street and of the ancient highway does not appear. Since January 2, 1865, the plaintiff has been the owner in fee and in possession of a lot on the south side of this street, which is about 20 feet wide, and about 90 feet deep, on which a four-story brick building about 43 feet high, about 20 feet wide, and 60 feet deep, has stood for more than 50 years, and is known as ‘No. 280.’ There is no other street or public way by which this lot can be reached. In 1871, the New York Elevated Railroad Company was incorporated under the general railroad law of this state, and in 1875, the Manhattan Railway Company was incorporated pursuant to chapter 606 of the Laws of 1875. During the winter of 1877 and 1878, the first-mentioned corporation built an elevated railroad in this street, and in front of the plaintiff's lot, which road, in August, 1878, opened for business and was operated by that corporation until May 20, 1879, since which it has been operated by the Manhattan Elevated Railroad Company under a lease from its owner. The railroad, and its relation to the plaintiff's property, are described in the findings of fact (which description is not questioned) as follows: ‘Pearl street, in front of plaintiff's said premises, is forty-one feet wide between the house lines, and the sidewalk is from nine feet eight inches to nine feet eleven inches wide. The elevated railroad structure, erected as aforesaid in front of these premises, consisted of a double row of hollow latticed iron columns set about opposite each other in the edges of the sidewalk, on each side of the street, at intervals along the street of about forty feet, each column being fifteen inches square, standing on an iron plate about eighteen inches square, supported by a foundation of stone, brick, etc., beneath the surface of the ground, about eight feet deep, and six feet square, and said pairs of columns being connected at a height of about sixteen feet above the street with open-work iron cross-girders, about twenty-two feet six inches long, three feet deep, and one foot wide on top, upon which along the street were placed four open-work iron longitudinal girders, about three and one-half feet deep and one foot wide on top, on which were laid, at a height of about twenty-two feet above the street, two railway tracks, consisting of iron rails placed upon wooden ties, or sleepers, said rails being laid in parallel lines about four feet eight and a half inches apart, and said sleepers being about eight feet long, and eight inches wide, and six inches thick, and placed with open intervals from sleeper to sleeper of sixteen inches. The said tracks were laid seven feet three and one-half inches from each other, and just outside each iron rail was placed a wooden guard-rail, parallel with the rails, said guard-rails being about eight inches high and six inches wide. Between the tracks is a narrow plankwalk way. The said upper structure was made of open iron-work with cross-braces. The building on plaintiff's said premises was erected upwards of fifty years ago. It is a brick building, four stories high, twenty feet wide, about sixty feet deep, and measuring forty-three feet two inches in height from the sidewalk to the cornice line. The nearest rail of the elevated railroad is ten feet and six inches from the face of said building; the nearest portion of the upper structure of said railroad is about seven feet six inches from the face of said building. The level of the tracks is a little above the second-story windows. One of said iron columns stands in the edge of the sidewalk, opposite the westerly wall of plaintiff's said building, so that the westerly line of plaintiff's said premises, prolonged into the street, would intersect the same, and leave about ten inches of the width of said column east of said line; and the space between the south face of said column and the face of plaintiff's said building at the nearest point is eight feet.’ Neither defendant has acquired, or taken any steps to acquire, by agreement or by condemnation, the right from the plaintiff to build, maintain, or operate the railroad. This action was begun in November, 1883, to restrain the defendants from maintaining or operating the railraod, and to compel them to remove it; and also to recover the damages sustained by the plaintiff by its construction and operation. The defendants by their answers deny that they have taken or impaired any of the rights of the plaintiff, and allege that he has acquiesced for five years in the construction and operation of the railroad. The trial court found as a fact: ‘The said railroad structure does not interfere with the air of plaintiff's building, or with access thereto, in any substantial degree.’ The court also found the following facts: ‘That said structure is permanent, has and does fill a large portion of the space of said street in front of plaintiff's said premises, and seriously impairs his light; that said engines (those drawing the trains) emit smoke, gas, steam, and cinders, which at times have and do enter the plaintiff's premises through his doors and windows, and causes him injury; that by reason of the facts aforesaid the rental value of the plaintiff's premises has been seriously diminished, * * * and his proporty has been and is permanently damaged and its value lessened.’ It is also found as a fact that plaintiff's north line is the south side line of Pearl street.

Julien T. Davies and Edward C. James, for appellants.

Chas. P. & Justus A. B. Cowles, for respondent.

FOLLETT, C. J., ( after stating the facts.)

The principal questions involved in this appeal are: (1) Has the plaintiff, by his ownership of a lot abutting on Pearl street, private rights, or rights of property therein? (2) Have the defendants taken or materially impaired those rights, if any the plaintiff has, within the meaning of the constitution? The term ‘abutting owner’ will be used in this judgment to denote a person having land bounded on the side of a public street, and having no title or estate in its bed or soil, and no interests or private rights in the street except such as are incident to lots so situated. The evidence upon which the facts were found not appearing in the record, the findings of the trial court must be accepted as true. In addition to the finding that the plaintiff's lot does not extend beyond the line of the street, it should be noted that there is no finding that the plaintiff, or any one of his predecessors, ever had any title to or estate in the land whereon this street is maintained, or any interest in the street except that of an abutting owner. The view taken of the rights of abutting owners renders it unnecessary to consider the much-debated and interesting historical question as to whether the island of Manhattan was, within the law of nations, so discovered, settled, subjugated, or possessed by the United Provinces as to impress upon it and its inhabitants the law of that country, and the general rule of the civil law, that the title to the soil of highways and the beds of public streets is in the government. If the plaintiff, by virtue of being an abutting owner, has not sufficient private rights or interests in this street to have enabled him to have maintained an action for the injuries found to have been inflicted, or for similar injuries inflicted without legislative authority, then he is without remedy in this case. In the cases about to be referred to, the plaintiff were not all abutting owners, but none of them owned the part of the street whereon the obstruction or encroachment was placed which was the cause of the injury complained of. In Corning v. Lowerre, 6 Johns. Ch. 439, the owner of a lot on Vestry street was held entitled to maintain an action to restrain the defendant from obstructing the street. In Van Brunt v. Ahearn, 13 Hun, 388, the parties owned...

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24 cases
  • Hubbell v. City of Des Moines
    • United States
    • Iowa Supreme Court
    • 2 d6 Outubro d6 1915
    ... ... 558, 42 N. W. 77, 4 L. R. A. 193; Homan's Case, 74 Mich. 699, 42 N. W. 167; Lackland's Case, 31 Mo. 180; Heller's Case, 28 Kan. 625; Abendroth's Case, 122 N. Y. 1, 25 N. E. 496, 11 L. R. A. 634, 19 Am. St. Rep. 461; Dorman's Case, 13 Fla. 538, 7 Am. Rep. 253, approved in Long v. Wilson--all ... ...
  • White v. Southern Ry. Co
    • United States
    • South Carolina Supreme Court
    • 22 d2 Novembro d2 1927
    ... ... Wilkins v. Gaffney, 54 S. C. 199, 32 S. E. 299; Abendroth v. [Manhattan] R. Co. [122 N. Y. 1, 25 N. E. 496] 11 L. R. A. 634 [19 Am. St. Rep. 461]; Story v. R Co., 90 N. Y. 123 [43 Am. Rep. 146]; White v ... ...
  • Powell v. McKelvey
    • United States
    • Idaho Supreme Court
    • 20 d3 Novembro d3 1935
    ... ... ( ... Transylvania University v. City of Lexington , 42 Ky ... 25, 3 B. Mon. 25, 38 Am. Dec. 173; Story v. New York ... Elevated R. Co. , 90 N.Y. 122, 43 Am. Rep. 146; Adams ... v. Chicago etc. R. Co. , 39 Minn. 286, 39 N.W. 629, 12 ... Am. St. 644, 1 L. R. A ... was entitled to compensation. No such injury or damage is ... shown in the instant case ... In ... Abendroth v. Manhattan Ry. Co. , 122 N.Y. 1, 25 N.E ... 496, 19 Am. St. 461, 11 L. R. A. 634, elevated double tracks ... were erected in a street which was ... ...
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    • Minnesota Supreme Court
    • 15 d5 Junho d5 1906
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