Cunningham v. Fitzgerald

• Decision Date: 18 April 1893
• Citation: 138 N.Y. 165,33 N.E. 840
• Parties: CUNNINGHAM v. FITZGERALD.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 165

33 N.E. 840

CUNNINGHAM

v.FITZGERALD.

Court of Appeals of New York.

April 18, 1893.

Appeal from supreme court, general term, fifth department.

Action by John T. Cunningham against John M. Fitzgerald to restrain defendant from changing the grade of a street in front of plaintiff's premises, and for damages for excavations and alterations already made. From a judgment of the general term affirming a judgment for plaintiff entered on the report of a referee, (17 N. Y. Supp. 341,) defendant appeals. Modified and affirmed.

Earl, J., dissenting.

J. & Q. Van Voorhis, for appellant.

Shuart & Sutherland,(Arthur E. Sutherland, of counsel,) for respondent.

O'BRIEN, J.

The judgment in this case awards an injunction to the plaintiff restraining the defendant from cutting down the grade of a street in front of his lot, or interfering with the same. A small money judgment was also awarded as damages. The referee who tried the case found that about the year 1884 the defendant became the owner of a considerable tract or parcel of land in the village of Charlotte, which had been mapped and plotted into village lots, with streets and avenues running through and intersecting each other upon which the lots were bounded. The map upon which the streets and lots were exhibited was duly filed in the county clerk's office, but no lots had been sold prior to the time that the whole parcel was purchased by the plaintiff. Subsequently the defendant conveyed one of the lots to the plaintiff, describing it as lot No. 18 on the map, ‘being fifty feet in front on the north side of Hughes park, and extending back therefrom, of equal width throughout, one hundred and twenty-five feet.’ This park was an avenue 100 feet wide, intended for sidewalks 12 feet wide on each side and a roadway over 70 feet wide. When the plaintiff purchased, the roadway up to the east line of his lot had been improved and graded by raising the bed of the road in the center and forming gutters on each side. The name of the park was subsequently changed to St. John's park. It runs east and west through the tract, and at the west end intersects a boulevard running north and south. The defendant has sold all the lots fronting on the park or avenue west of the plaintiff's lot, but he still owns numerous lots on the east, and the avenue in front of them remained in substantially its natural state. Since the plaintiff's purchase the defendant opened a new street running southerly from St. John's park at nearly right angles therewith, and terminating at the south in a cul de sac. The plaintiff has built a dwelling upon and graded his lot to correspond with the grade of the highway in front of it, established a driveway, and planted ornamental trees on the side of the street in front of the lot. The defendant, before the commencement of this action, and without the plaintiff's consent, entered upon this highway in front of and east and west of the plaintiff's lot, and dug up and carried away quantities of the soil from the roadway, and put the same upon the new street referred to, cutting down the grade of the street in front of the plaintiff between one and two feet, and was so engaged cutting it down still more when he was restrained by the injunction. It has been found that this interfered with the plaintiff's access to his property from the street, and damaged the same, and that the defendant's purpose was to remove the earth from St. John's park, in front of plaintiff's lot, and east and west of it, for the purpose of taking it to the new street, and grading it up to correspond with the grade of the park where the two intersect. The defendant owned the lots on the new street and on the park east of plaintiff, and they will be benefited by this improvement, but the finding is that the change, if carried out, will work irreparable injury to the plaintiff.

These facts and others have been found by the referee in great detail, and, as we cannot say that any of them are wholly unsustained by the evidence, we are concluded by them in the disposition of the case. The avenue, on the north side of which the plaintiff's property is, has become a public highway by dedication. The parties who have purchased lots bounded thereon have an easement in the street for the purpose of access to their lots, and this easement is property which cannot be invaded without subjecting the party to liability in damages, and in a proper case it will be protected by injunction. The defendant did not act under any public authority, but for his private benefit. Indeed, it appears that the public authorities had never accepted the street in question, or exercised any jurisdiction over it, but that circumstance does not affect the...