Donahue v. Keystone Gas Co.

• Decision Date: 25 April 1905
• Citation: 181 N.Y. 313,73 N.E. 1108
• Parties: DONAHUE v. KEYSTONE GAS CO.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 313

73 N.E. 1108

DONAHUE

v.KEYSTONE GAS CO.

Court of Appeals of New York.

April 25, 1905.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Thomas Donahue against the Keystone Gas Company. From a judgment of the Appellate Division (85 N. Y. Supp. 478,90 App. Div. 386) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Cullen, C. J., and Gray and O'Brien, JJ., dissenting.

J. H. Waring, for appellant.

W. D. Parker, for respondent.

VANN, J.

The plaintiff has the rights of an abutting owner upon the west side of a public highway known as ‘Union Street,’ in the city of Olean, but he owns no part of the bed of the street. The defendant is a foreign corporation which supplies natural gas to the inhabitants of the city for light and fuel by means of pipes laid beneath the surface of the streets in the usual way. There are two dwelling houses on the premises of the plaintiff, one of which he occupies as a residence, while the other is leased to a tenant. In 1898, near the west margin of Union street, and directly in front of the plaintiff's premises, but not upon his land, there were five maple trees, about 35 years old, ‘all in thrifty condition and furnishing good shade.’ These trees stood 25 feet from the front line of the plaintiff's houses, and made them attractive to purchasers and tenants. About 1900, as the jury found upon sufficient evidence, four of these trees were destroyed by the negligence of the defendant in permitting gas to escape from its pipes into the soil about the roots of the trees. This action was brought to recover the damages alleged to have been sustained by the plaintiff by reason of these facts, and the jury found a verdict in his favor for the sum of $150. Upon appeal to the Appellate Division the judgment entered upon the verdict was unanimously affirmed, one of the judges concurring in the result only.

Upon the trial the court charged, among other things, as follows: ‘For the purposes of the disposition of this case, I charge you, as a matter of law, that the plaintiff had a property right in those trees, although they were not planted upon lands that he had the title to, sufficient to permit him, as a matter of law, to maintain an action against any person who might wrongfully injure or destroy the same.’ The exception taken to this ruling presents the main question that we are called upon to decide.

The defendant claims that the plaintiff had no legal or equitable interest in the trees, because he did not own the land upon which they stood, and that hence he sustained no injury by reason of their destruction. The plaintiff claims that, as an abutting owner, he had a right in the trees in the nature of an easement attached to and forming a part of his premises, and that he was entitled to recover the damages caused to his land by the loss of the trees through the wrongful act of the defendant. An interesting and important question is thus presented, upon which there is but little direct authority, although the courts have labored long to settle the principles of law governing the rights of those owning land upon a public street where the fee is in the municipal government.

The maintenance of trees in a street for the purpose of ornament and shade is a proper street use, sanctioned both by statute and the custom of the country. Edsall v. Howell, 86 Hun, 424, 33 N. Y. Supp. 892;Cross v. Mayor, 18 N. J. Eq. 305, 313; 2 Rev. Laws [181 N.Y. 316]1813, p. 279, c. 33, § 29; 2 Rev. St. 1888, p. 1398, § 127 (8th Ed.); Laws 1863, p. 151, c. 93; Laws 1875, p. 191, c. 215; Laws 1881, p. 469, c. 344; Laws 1890, p. 1186, c. 568, §§ 43, 44. The trees thus maintained are a part of the street, to be enjoyed and used by the public traveling thereon the same as a good roadbed, sidewalk, pavement, or anything else in the street which contributes to the comfort or pleasure of the traveler. As a general rule, whatever renders a street more valuable to the people at large renders it more valuable to the abutting owner, for he has all their rights of user, besides other rights which are peculiar to himself. While the control of the street, regardless of where the title may be, of necessity is in the public authorities, and they may grade and improve it, even to his detriment, still he has special rights therein, which are a species of property that cannot be taken from him without compensation awarded according to the law of the land. Story v. N. Y. Elev. R. Co., 90 N. Y. 122, 179,43 Am. Rep. 146.

Among his rights are those of light, air, and access, each long resisted, but now well established as safe from the onslaught of wrongdoers, even including those who erect an elevated railroad in a street with the sanction of law. Lahr v. Metr. Elev. Ry. Co., 104 N. Y. 268, 10 N. E. 528;Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, 25 N. E. 496, 11 L. R. A. 634, 19 Am. St. Rep. 461; Kane v. N. Y. Elev. R. Co., 125 N. Y. 164, 26 N. E. 278,11 L. R. A. 640. But during the long struggle which saved these rights of the abutting owner, he did not always win, for the necessary anonyance caused by a use of the street authorized by law, such as the noise of a train passing on an elevated railway, gives him no right to permanent damages, unless some part of his land is taken. American Bank Note Co. v. N. Y. Elev. R. Co., 129 N. Y. 252, 29 N. E. 302. This was so held upon the ground that, where the use is authorized and is for the benefit of the public, he must endure the discomfort incidental to a lawful use and essential to the public welfare. But whatever pollutes the air he breathes, such as smoke and gas, shuts the light from his windows, or hinders access to his door, such as an elevated railroad structure and the trains thereon, must be reckoned for, even by the technical wrongdoeracting with some sanction, but not the full sanction, of law. In settling the law to this extent, general expressions have sometimes been used by the court, indicating as its opinion that these easements of light, air, and access are the only rights which an abutting owner has in a public street of which he owns no part. Courts settle the law by passing upon actual questions, not by advancing abstract theories, and the words of exclusion should be limited to the facts of the case in hand when they were used, as was doubtless the intention.

It is to be observed that we are not dealing with a question arising between an abutting owner and the city authorities, for in such a case the rights of the latter are paramount, so long as the road is kept open and unobstructed. Nor are we dealing with a question between him and a corporation authorized to use the streets for some public purpose, where it becomes necessary to cut shade trees in order to effect that purpose. It is not the question which might have arisen when the defendant many years ago laid its pipes in the street, if it had then been necessary to cut the trees which are the subject of this action in order to do the work properly, and they had been cut for that purpose with the approval of the city authorities. The defendant did not let its gas escape with the consent of the officers in control of the street. It did not act in accordance with law, but in violation of law. It was not a semiwrongdoer, as were the elevated railroad companies, but an absolute wrongdoer. It was a naked trespasser, and its act was a nuisance which inflicted special injury upon private property, for it reduced the value of the plaintiff's premises by the sum of $150, as the jury found. Every one has a right to use a public street, but no one has a right to stand in front of another's residence and play a hurdy-gurdy or fog horn hour after hour, and day after day, to the annoyance of the owner and his family. That would be a trespass, even if the offender did not touch the property of the abutting owner, whose right to damages could not be questioned. If a mere trespasser should maliciously cut shade trees standing in a street, the fee of which was in the city, could the abutting owner recover damages? That is, in substance, the question before us, for, while the defendant did not act willfully in destroying the trees, it acted negligently, after due warning, and was a simple wrongdoer.

The defendant insists with great persistence that it did not injure the plaintiff, because it did not touch his premises or throw anything upon them. Interference with access or with light does not necessarily involve contact with tangible property, yet either is a trespass upon a property right. Why should the law protect the air of an abutting owner from the smoke of a semitrespasser, and not protect the coolness of the air from injury by an absolute trespasser? If the air is better in the one case, it is in the other, for the difference is in degree only. Upon what principle can pure air be called a property right, and cool air no right at all? What is the principle upon which interference with light, air, and...