Conabeer v. New York Cent. & H.R.R. Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: MARTIN
• Citation: Conabeer v. New York Cent. & H.R.R. Co., 156 N.Y. 474 (N.Y. 1898)
• Decision Date: 04 October 1898
• Parties: HANNAH CONABEER, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY and THE NEW YORK AND HARLEM RAILROAD COMPANY, Respondents.

156 N.Y. 474

51 N.E. 402

CONABEER

v.NEW YORK CENT. & H. R. R. CO. et al.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from supreme court, general term, First department.

Action by Hannah Conabeer against the New York Central & Hudson River Railroad Company and the New York & Harlem Railroad Company. From a judgment of the general term (32 N. Y. Supp. 6) affirming a dismissal of her complaint, plaintiff appeals. Affirmed.

This action was commenced on the 20th of November, 1891, to obtain an injunction perpetually restraining the further operation of the defendants' railroad in Park avenue, formerly known as Fourth avenue, in the city of New York, opposite the premises of the plaintiff, and for damages to the rental value thereof. In 1807, by chapter 115 of the Laws of that year, three commissioners were appointed, who were empowered to lay out streets and avenues upon the northern portion of Manhattan Island, which included the locality in question. On April 1, 1811, they filed a map showing the streets and avenues as they now generally exist. Upon this map One Hundred and Fourth street was shown to be of the width of 60 feet, and Fourth avenue of the width of 100 feet. That act also provided that the map, plans, and surveys so made and filed should be final and conclusive as to the mayor, aldermen, and commonalty of the city of New York, the owners and occupants of lands within the boundaries of the streets, and in respect to all other persons whomsoever. For many years after the filing of this map, these streets remained unopened, and had no existence, except that which resulted from their being designated as such on the map. In 1831, by a special act of the legislature (chapter 263), the New York & Harlem Railroad Company was incorporated, with power to construct a railroad from any point on the north bounds of Twenty-Third street to Harlem river, between the east bounds of Third avenue and the west bounds of Eighth avenue, with the right to operate it by steam, or by any mechanical or other power that the company might choose to employ. By that act it was given the right to locate its railroad, and to file a map thereof in the office of the register of New York, but it was not to be filed until it should have been submitted to, and approved by, the common council. It was then authorized to build its road, to take all lands and real estate necessary for its construction, and to receive or take all voluntary grants or donations of land to aid in the accomplishment of that work. The act likewise provided that lands thus taken, which were not donated, should, if the parties could agree, be purchased of the owners at a price agreed upon between them, and then provided for condemnation when an agreement could not be had. It declared that the corporation was authorized to construct such a railroad, to use single or double tracks, and that, in case its railroad was located along any public street or avenue then laid out upon the map or plan of the city of New York, it should leave sufficient space in the street on each side of the railroad for a public highway for carriages and a sidewalk for foot passengers. It also provided that the corporation should not be deemed to be authorized to construct a railway across or along any of the streets thus designated, whether open or not, without the consent of the mayor and aldermen, who were authorized to grant permission to the corporation to construct its railroad across or along the streets or avenues of the city. The provisions of this act were complied with by the New York & Harlem Railroad Company, and it located its route along the center line of Fourth avenue, from Twenty-Third street to the Harlem river, and filed a map in the register's office, October 22, 1831, together with a resolution of the common council, approved by the mayor, authorizing the company to construct its road over Fourth avenue. It obtained the consent of the municipal authorities to the location of such road by an ordinance approved by the mayor December 22, 1831. At that time the locality which included the premises in question consisted of farm lands and salt meadows, known as a pary of the ‘Harlem Flats,’ a portion of which was owned by one Margaret McGown. On the 18th of January, 1832, Mrs. McGown conveyed to the New York & Harlem Railroad Company and its successors a portion of the land owned by her, consisting of 24 feet of land running through the center of Fourth avenue, between Ninety-Seventh and One Hundred and Sixth streets, for and during the period it might remain an incorporated company, on which to construct its railroad, but for no other purpose, with the right to slope its embankments or excavations so much further beyond the line of the premises granted as might be necessary to support its work,-not, however, to extend beyond the width of the avenue, which was 100 feet. Some time anterior to 1835 the railroad company constructed along this portion of Fourth avenue a stone viaduct upon the land in question, upon which wto tracks were laid. The only difference between the old viaduct and the one now complained of is that the widty of the latter was increased 16 feet on each side, and accommodated two additional tracks. In 1835 the matter of widening Fourth avenue from 100 to 140 feet was brought before the common council by a petition requesting that the avenue by thus widened. One, if not the chief, ground upon which this was asked, was the existence of the railroad in the center of that avenue. Subsequently, and in 1837, the street was widened to 140 feet. 404 Fourth avenue was not opened until nearly 20 years after the construction of the defendants' road over this part of it. In the proceedings for opening that street, the city of New York assumed to acquire the title to the strip of land upon which the defendants' road was constructed, and for which a nominal award of one dollar was made for each of the lots across which it passed. No attempt was made by the city to acquire the easements secured by the railroad company under its deed from Mrs. McGown, either as to its right to build and maintain its road along the strip purchased of her, or the slope its embankments and excavations so far as necessary to support the work. The possession by the railroad company of the portion of the street thus occupied was not attempted to be disturbed by the city. When the street was opened, in December, 1853, the railroad was upon a high viaduct along the center of the avenue, which was in the exclusive possession of the New York & Harlem Railroad Company. The portion so occupied has never been used as any part of the public street.

In 1872, by chapter 702 of the laws of that year, the legislature passed an act to improve and regulate the use of Fourth avenue, in the city of New York. That act authorized and required the railroad company to regulate the grade of its railroad in Fourth avenue in a manner specified, and to construct such viaducts, bridges, excavatios, tunnels, and openings as were therein described. It provided that from Fifty-Sixth to Ninety-Sixth street the railroad should run through a covered way with openings therein, and thence continue upon the grade as it then existed to the center of One Hundred and Fifth street. It also authorized the railroad company, for the purpose of facilitating rapid transit and accommodating local traffic, to lay two additional tracks on such avenue, and to make such landings and excavations therein as might be required for the tracks and the entrance and delivery of its passengers outside of the excavations and viaduct. It created a board of engineers ot execute, direct, and superintend the construction of such improvement, the expense thereof to be borne by the city and the railroad company in equal proportions. It forbade the municipal authorities of the city from obstructing the use of Fourth avenue for that purpose above Forty-Second street, authorized the municipal corporation to pass such ordinances as might be requisite or necessary to facilitate the improvement, provided that the railway be exclusively for the uses and purposes of the railroad company, and that the legislature might at any time alter, amend, or repeal that act. This improvement was carried on and completed under the direction of a board of engineers appointed by the legislature for that purpose. The height of the old viaduct at One Hundred and Fourth street, opposite the premises now owned by the plaintiff, was unchanged. The improvement at that point consisted in taking down the old viaduct, and erecting a new one of the same height, but 56 feet wide. It was completed in 1873, in which year the New York & Harlem Railroad Company leased to the New York Central & Hudson River Railroad Company its railway way for 401 years. Since that time the railroad as then constructed has been in the possession of and operated by the latter company as such lessee.

In 1887, 14 years after the improvement directed by the statute of 1872 was completed, the plaintiff purchased her lot, at the corner of Fourth avenue and One Hundred and Fourth street. It was a part of the premises owned by Mrs. McGown in 1832, when she deeded the land in Fourth avenur to the Harlem Railroad Company. Upon the plaintiff's lot there was at the time of her purchase, and still is, a three-story and basement brick and stone building, used as a dwelling house. Since June, 1887, she has been the owner in fee and in possession and occupancy of the premises thus purchased. Since the lease to the New York Central & Hudson River Railroad Company, it has maintained and operated the railroad upon such viaduct, and runs thereon a large number of trains during the day and night drawn by locomotives; and, in its operation steam, smoke, noxious, and unpliasant gases, vapors, coal, soot, cinders, ashes, and sparks have been and are frequently emitted from such locomotives, which fall...