Forbes v. Rome, W.&O.R. Co.

• Citation: 24 N.E. 919,121 N.Y. 505
• Parties: FORBES v. ROME, W. & O. R. CO.
• Decision Date: 10 June 1890
• Court: New York Court of Appeals

121 N.Y. 505

24 N.E. 919

FORBES

v.ROME, W. & O. R. CO.

Court of Appeals of New York.

June 10, 1890.

Appeal from supreme court, general term, fourth department.

William P. Hornblower, for appellant.

C. P. Ruger, for respondent.

PECKHAM, J.

We think that the defendant has by its exceptions duly raised the question argued before us. We are also of the opinion that the plaintiff's lot is bounded by the exterior line of the street in question, and that he has no title to the land to the center of the street, subject to the public easement. The courts below held that the occupation and appropriation by defendant of a part of the plaintiff's easement in Franklin street is and always has been unlawful. To that conclusion the defendant excepted. It admits that plaintiff had an easement in that street, but it denies that it has occupied or appropriated it. Whether it has taken any portion of the plaintiff's easement in the street in question is what the defendant asks shall be decided by us, and it denies in toto any taking whatever of the plaintiff's property, or any portion thereof.

For many years prior to the decision of the case of Story v. Railroad Co., 90 N. Y. 122, I think the law was that a duly-incorporated railroad company, having authority from the state to build its road, and laying its tracks and operating its road through and upon the surface of the streets of a city under the protection of a license from such city, took thereby no portion of the property of a individual who owned land adjoining the street, but bounded by its exterior line. The company was therefore not liable to such an owner for any consequential damages to his adjoining property arising from a reasonable use of the street for railroad purposes, not exclusive in its nature, and substantially upon the same grade as the street itself, and leaving the passage across and through the street free and unobstructed for the public use. The first case in this state upon that subject, and decided more than 40 years ago, is that of Drake v. Railroad Co., 7 Barb. 508. This was a case decided by the general term of the supreme court sitting in the city of New York, and composed of three most able and learned judges; and I do not find that the principle involved in that decision has been reversed or overruled by any judgment of this court. That case holds the doctrine which I have above stated. It was elaborately argued on both sides by counsel as eminent at the bar as the state afforded, and the opinions of the learned judges are conclusive proof of the ability with which the case was considered by them.

In Williams v. Railroad Co., 16 N. Y. 97, it was held that the dedication of land to the use of the public for a highway is not a dedication of it to the use of a railroad, and such a road cannot be built upon it without compensation to the owner of the fee. It was in that case held to be another and an additional burden upon the land, if used for railroad purposes, not covered by the dedication for ordinary street purposes, and hence the owner of the fee was entitled to a compensation for an additional burden to which he had never dedicated his property. It was not a mere additional use of an easement, but it was an actual taking of the land for railroad purposes, though not absolutely exclusive; and hence the owner was protected by the constitution from such a taking without a compensation. The Drake Case was alluded to, but only for the purpose of pointing out the clear distinction between the two cases; and the court said the Drake Case involved simply the right of an adjoining owner on the street, who did not own the fee, to recover for incidental damages unavoidably resulting from the construction of the railroad in the street under authority of the law, and with the permission of the city authorities, where no land or easement of the adjoining owner was taken. It was also stated that the Drake Case might be considered as settling the question that a railroad in a populous town is not a nuisance per se, (of course, when legally authorized,) and that, when the company has acquired the title to the land upon which its road is located, such company is not liable, unless guilty of some misconduct, for consequential damages resulting from the operation and use of its road. It has been regarded as having such title so far as the adjoining owner is concerned, who has no fee in the street, when, by authority of law, and the consent of the city owning the street, its rails are therein laid upon the surface, and the use of the street for ordinary street purposes is not thereby prevented.

In Wager v. Railroad Co., 25 N. Y. 526, it is assumed that there is no difference in kind or species between a railroad in a city street operated by horse power and one operated by steam. SMITH, J., in writing the opinion in that case, says that such difference would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle. He also said that if the title to the Troy street were in that city, as the fee in the streets in New York is in the city itself, the mayor and common council of Troy might, perhaps, have authorized such appropriation of the street without compensation to the adjoining owners. The Case of Wager was followed in this court by that of People v. Kerr, 27 N. Y. 188. It was there held that the legislative permission to lay down street railroad tracks without change of grade in those streets of the city of New York where the city owned the fee was a sufficient justification for such action by the company, and that no compensation was necessary to be paid to the owner of the adjoining property. It was an appropriation to public use to provide for the construction of a street railroad through a street without change of grade. As this was a horse railroad, the decision of the court must be regarded in the light of that fact. But still it is apparent that, although a horse railroad was regarded as a different public use for a street from that which had heretofore obtained, it was yet such a public use as was not inconsistent with its continuous use as an open and a public street. There was no change of grade, and no continuous and exclusive possession of the street, except in a limited sense, by the mere laying of the rails therein. I think there is no authority in this court which holds that there is any real difference between a railroad operated by horse-power, and one operated by the power of steam, in the streets of the city. If the legislature can authorize the one, it can, under the same circumstances, authorize the other. I refer to railroads on the same grade as the street itself, and where the chief difference lies in the different motive powers which are used.

In Craig v. Railroad, 39 N. Y. 404, it was held that the owner of a lot on a street, who owned the fee thereof subject only to the public easement for a street, was entitled to compensation for the new and additional burden upon the land so used as a street by the erection of even a horse railroad thereon. In this case, Judge MILLER said he saw no distinction in the application of the rule between cases of steam and cases of horse power. In Kellinger v. Railroad Co., 50 N. Y. 206, it is held that one who did not own the fee of the street could not recover damages for inconvenience of access to his adjoining lands caused by the lawful erection of a street railroad through the street. By these last two decisions, it is seen that to construct even a horse railroad in a city street is to place a new and additional burden upon the land, the right to do which does not exist by reason of the general right of passage through the street; but, if the adjoining owner of land is not the owner of the fee in the street, and the railroad company has obtained the proper authority, he has no right to compensation for such added burden, nor to complain of such use so long as it is not exclusive or excessive. The same reasoning applies, as we have seen, in the case of a steam surface railroad. Such a use of the streets would be an additional burden upon the land; and, of course, if the adjoining owner had title in fee to the center of the street, subject only to the public easement, he would have a right of action, as held by the Williams and other cases, while, if he did not, no such right would exist in his favor merely because it was a steam instead of a horse railroad which was to be constructed. The authority of the law, and the consent of the city, would be enough to authorize the building of either; and the difference between the steam and the horse railroad would not be one of such a...