Beardsley v. Lehigh Val. Ry. Co.

• Decision Date: 10 April 1894
• Citation: 142 N.Y. 173,36 N.E. 877
• Parties: BEARDSLEY et al. v. LEHIGH VAL. RY. CO.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 173

36 N.E. 877

BEARDSLEY et al.

v.LEHIGH VAL. RY. CO.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, fifth department.

Action by Edwin Beardsley and others against the Lehigh Valley Railway Company. From a judgment of the general term (20 N. Y. Supp. 458) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Mason & Rose, for appellant.

James C. Smith, for respondent.

FINCH, J.

Two questions of law are raised in this case. The action is in quity to compel the defendant company to construct an under-grade crossing on the plaintiff's farm. One of the reasons now given for such a crossing is that there may be in that manner provided a safe and convenient passage for cattle to reach water when would be much more inconvenient and unsafe if the only crossings were at grade. The defendant answered that such inconvenience had already been allowed and paid for by the award in condemnation proceedings, and some of the evidence at that time given was recited as proof of the fact. There was testimony that the line of the railroad would leave the adequate and reliable supply of water wholly on the side of the track, and the resulting inconvenience was taken into account. But the award was necessarily made upon the assumption that proper and suitable crossings would be made by the company, and the damages given are not shown to have rested to any extent upon the form or manner of constructing the crossings. Witnesses may have given their opinions on the supposition that the crossings would be at grade, but they did not say so, and it does not appear that they excluded from their minds the possibility of an under crossing, or that their estimates of the general damage to the farm would have been less if they had taken that possibility into account. The defendant promised nothing of the kind, and did not reduce or seek to reduce the damages by agreeing to give such a crossing. Both parties must be assumed to have stood upon their legal rights as to suitable crossings, and those rights survived the award, and were in no manner extinguished or affected by it. That doctrine was substantially held in Jones v. Seligman, 81 N. Y. 190.

The second objection arises upon defendant's exceptions to the admission of opinions showing the difference in value of the farm with or without the under crossing, and recent decisions of ours are cited as authority. Roberts v. Railroad Co., 128 N. Y. 455, 28 N....