Bradley v. Degnon Contracting Co.

• Decision Date: 11 June 1918
• Citation: 224 N.Y. 60,120 N.E. 89
• Parties: BRADLEY et al. v. DEGNON CONTRACTING CO. et al.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 60

120 N.E. 89

BRADLEY et al.

v.DEGNON CONTRACTING CO. et al.

Court of Appeals of New York.

June 11, 1918.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Harry L. Bradley and others against the Degnon Contracting Company and others. From a judgment of the Appellate Division (165 N. Y. Supp. 1078), affirming judgment for plaintiffs, defendants appeal by permission. Affirmed.

Cardozo, J., dissenting in part.H. Aaron, of New York City, for appellants.

Zenophon P. Huddy, of New York, City, for respondents.

COLLIN, J.

The trial court rendered a judgment restraining the defendants from operating ‘the industrial railroad now built and being operated by them in and upon Seventy-Ninth street, borough of Brooklyn, city of New York, upon, across, or in front of, the respective premises of the plaintiffs,’ directing the defendants to forthwith remove from that street the rails, ties, and tracks of the railroad, and awarding the plaintiffs respectively damages. The Appellate Division unanimously affirmed the judgment.

The cardinal facts as found are: In 1913 the defendant Degnon Contracting Company entered into a contract with the city of New York to excavate and build a section, known as route No. 11-B, section 2, of the subway railway in the borough of Brooklyn upon Seventy-Ninth street from Fourth avenue to New York Bay and to deliver a quantity of the excavated material at a place to be and which was designated. The defendant Carpenter, Boxley & Herrick, Incorporated, was employed in the matter by the company. For the purpose of hauling the excavated material to the designated place and material for construction to the subway, the defendants constructed, through the distance of about three-quarters of a mile upon Seventy-Ninth street, a railroad composed of ties of about six feet in length and six inches in depth and six inches in width which were laid at some places in the bed and at other places on the surfact of the street, upon which steel rails were spiked about three feet apart. They intended to operate upon the track trains of dump cars hauled by steam locomotives at intervals of about 20 minutes apart during the day and until 10 or 11 o'clock at night thorugh a period of 18 [224 N.Y. 65]to 24 months, in order to accomplish the work contracted. The defendants acted under and in accordance with the authority of a statute relating to the construction of the subway. The statute provided:

‘For the purpose of facilitating ocnstruction, and to diminish the period of occupancy of any street for the transportation of material any contractor acting under a contract made in pursuance of this act, or of any act supplementary hereto or amendatory hereof, may with the approval of the Public Service Commission, lay upon or over the surface of any street, temporary tramways, to be used only for the removal of excavated materials or the transportation of materials for use in the construction: Provided, however, that any such tramway shall be forthwith removed upon the direction of the public service commission: And provided, further, that this provision shall not be construed to authorize the constructinon or operation of any street railroad or to grant to any corporation, association or individual the right to lay down railroad tracks.’ Rapid Transit Act (Laws 1891, c. 4) § 33, subd. 3, as amended by Laws 1909, c. 498, § 8.

The Public Service Commission for the First district authorized and approved ‘the construction of 36-inch tramway with necessary sidings and switches upon Seventy-Ninth street from Fourth avenue to New York Bay, to be used only for the removal of excavated materials and for the transportation of materials for use in the construction of the subway in connection with route No. 11-B, subject to the conditions and restrictions in said written permit more fully set forth.’ Thereafter the defendant company obtained from the proper municipal authorities their respective approvals and permissions for the construction of the said tramway and complied with all the requirements of the said Public Service Commission. Each of the 20 plaintiffs owned a lot contiguous to the part of Seventy-Ninth street involved here, and has not consented to or received compensation for the construction of the tramway. The operation of the trains caused vibration which was noticeable in the houses of the plaintiffs; the engines emitted coal gas, which penetrated their houses if the windows were kept open, and caused disturbing noises. There is not a finding that the manner of the construction or operation was unreasonable or negligent. The people of the state acquired and held only the easement of a highway or street in the bed of Seventy-Ninth street. The trial court found as a conclusion of law that the construction and operation of the railroad invaded the rights of the plaintiffs as owners of the bed of Seventy-Ninth street in front of their respective premises, or of easements of light, air, and access therein, and rendered the judgment stated by us.

[1][2][3][4][5][6] The Special Term findings denominated the structure a ‘tramway’ and a ‘railroad.’ The term ‘tramway’ has not a fixed and strict meaning. Woodward Iron Co. v. Lewis, 171 Ala. 233,54 South. 566;State ex rel. Western Tie & Timber Co. v. Pulliam, 233 Mo. 229, 135 S. W. 443. The structure was, under the findings and within the intendment of the statute, a tramway. South Knoxville Brick Co. v. Empire State Surety Co., 126 Tenn. 402, 150 S. W. 92, Ann. Cas. 1913E, 107;Beasley v. Aberdeen & Rockfish R. Co., 145 N. C. 272, 59 S. E. 60. Within the General Statutes or the Constitution of the state, it was neither a railroad nor a street railroad. We do not undertake to define either of those terms-in truth, neither has one settled and invariable meaning. Either may have different meanings in different statutes or contexts. Each, however, denotes an enterprise created and operated for the purpose of carrying upon a fixed track passengers and freight or passengers or freight for rates or tolls, without discrimination as to those who demand the transportation. The provision of the Constitutionof the state forbidding the legislative authorization of the construction or operation of a street railroad except upon the condition that the designated local consents be first obtained (article 3, § 18) has no application to the statute invoked by the defendants here or the structure placed by them upon the street.

[7][8] The plaintiffs were divided by the findings of the Special Term into three classes, namely:

‘(1) Those whose deeds expressly convey to them all the right, title and interest of their grantors in and to Seventy-Ninth street adjoining to the middle thereof and said railroad or a part thereof is in the half of the street adjoining; (2) those whose deeds are silent in this respect and said railroad or part thereof is on the adjoining half of the street; (3) those whose properties are located on the half of the street opposite to the half on which said railroad is laid.’

We must presume that those of the first class owned to the center of the street. Matter of City of New York, 209 N. Y. 344, 103 N. E. 508. The appellants assert, without contradiction by the respondents, that the deeds of the second class in evidence show that they exclude the fee of the street. We must presume that the properties of the third class extended to the center line of the street. We are to determine whether or not the judgments below are right as to each class of owners.

[9][10][11] The public highways and streets are acquired and held by the state in trust for the use of all the people. For ordinary and general transportation and traffic they are free and common to all citizens. Thus much is conclusively implied in their acquisition and maintenance, regardless of the estate or title by which they are held. The Legislature, as the representative of the state, has control and authority over them, absolute and unrestricted, except as qualified by the Constitution, and the rule that the free use of them for the purposes and in the modes inherent in their creation will not be unreasonalbly interfered with through or for any private appropriation or use. It can authorize structures in them for private use and benefit which are reasonably incident to the ordinary uses of a street and which without such authority would be encroachments and public nuisances. Wormser v. Brown, 149 N. Y. 163, 43 N. E. 524;Hoey v. Gilroy, 129 N. Y. 132, 29 N. E. 85. It can, in so far as the state or the people at large are concerned or have rights in them, subject them in part or wholly to public use, other than the ordinary street use, as for a steam or commercial railroad (Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505, 24 N. E. 919,8 L. R. A. 453;Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157, 28 N. E. 640,14 L. R. A. 133), or a street railroad (People v. Kerr, 27 N. Y. 188;Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357).

It is the established rule of this state that the use of a street for the purposes of a railroad, either steam or street, imposes an added burden upon and is the taking of the property of the owners of the fee of the street. Williams v. N. Y. C. R. R. Co., 16 N. Y. 97, 69 Am. Dec. 651;Mahon v. N. Y. C. R. R. Co., 24 N. Y. 658;Carpenter v. Oswego & Syracuse R. R. Co., 24 N. Y. 655;Wager v. Troy Union R. R. Co., 25 N. Y. 526;Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404;Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357;Matter of Bloomfield & R. Natural Gas L. Co. v. Calkins, 62 N. Y. 386. In Paige v. Schenectady Ry. Co., 178 N. Y. 102, 109,70 N. E. 213, we said the rule was ‘not to be overruled or avoided, even by indirection.’

[12] The rule firmly rests upon the reasons: The construction and operation of a railroad upon a street is not within the contemplated street purposes; it is an occupation of a part of the...