Fries v. New York & H. R. Co.

• Decision Date: 31 December 1901
• Citation: 62 N.E. 358,169 N.Y. 270
• Court: New York Court of Appeals Court of Appeals
• Parties: FRIES v. NEW YORK & H. R. CO. et al.

169 N.Y. 270

62 N.E. 358

FRIES

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

Court of Appeals of New York.

Dec. 31, 1901.

Appeal from supreme court, appellate division, First department.

Action by Gustay R. Fries against the New York & Harlem Railroad Company and others. From a judgment of the appellate division (68 N. Y. Supp. 670) affirming a judgment for plaintiff, defendants appeal. Reversed.

Ira A. Place, samuel E. Williamson, and Alexander S. Lyman, for appellants.

Joseph A. Flannery, for respondent.

O'BRIEN, J.

The plaintiff is the owner of a three-story frame building on Park avenue, at the southwest corner of 129th street, in the city of New York. The building contains eight stores fronting on the avenue. This avenue is 140 feet wide, and the defendants own and maintain a railroad therein, and have, under some form and under some arrangement, for over 60 years. The plaintiff claims that the railroad has invaded his property rights and is a trespasser upon them. For this trespass the trial court held that the defendants should pay to the plaintiff the sum of $5,500, past and future damages, or, in default of such payment, be perpetually enjoined from operating the railroad. This appeal involves an inquiry into the principles upon which the judgment is founded. There is considerable discussion upon the briefs of counsel, who have argued the case concerning the effect of a deed to the railroad by the former owner of the plaintiff's property, and many other details relating to the right of the railroad to construct and maintain the same in the street in front of the premises in question. I cannot perceive how these questions can be of much consequence in the disposition of this appeal, since the trial court made an express finding that under this deed, various resolutions and acts of the city authorities at various times, and under certain statutes referred to, and by lapse of time and the acquiescence of the plaintiff and his predecessors in title, the defendants ‘acquired the right, without liability to the plaintiff, to have, maintain, and use their railroad and railroad structures as the same were maintained and used prior to February 16, 1897, as hereinbefore described.’ Here we have an express finding that on and prior to the date named the defendants were entitled to have and maintain their railroad in the street in question as against the plaintiff and all the world, without let or hindrance from any one; and surely there could be no trespass upon the plaintiff's rights prior to that date. The trial court also found how the railroad had been maintained and operated on and prior to the date mentioned, as follows: ‘The said railroad, prior to February 16, 1897, was operated along the center of said Park avenue in front of the plaintiff's premises in a depressed cut, about 14 feet below the surface of said Park avenue, and 61 feet and 8 inches wide, which said railroad cut was bounded on each side by parapet walls of about 2 feet 6 inches above the surface of said avenue, which said embankment or viaduct cut off access from one side of said avenue to the other, except at the intersection of 128th and 129th streets, at which points there were bridges for vehicles and foot passengers across the said railroad cut.’ According to this finding the defendants had the right to maintain a railroad in front of the plaintiff's premises that practically cut him off from access to the opposite side of the street, except by means of bridges located at intersecting streets. The court also found that subsequent to the date mentioned the manner of operating the railroad was changed, and this is the finding on that subject: ‘That, subsequent to the passage of chapter 339 of the Laws of 1892, there was commenced within the lines of Park avenue, and in the center thereof, the construction of a new viaduct of iron and steel, said structure being about twenty feet high above the surface of Park avenue and about fifty-nine feet wide. Said work was done under the supervision of the board for Park avenue improvement above 106th street, and the said structure was completed and accepted by the defendants on February 16, 1897. That neither of the defendants are liable for any fee or rental damage which may have been sustained prior to that date; that said permanent structure and the operation of trains thereon are, and since February 16, 1897, have been, a continuous trespass upon plaintiff's easement of light and air appurtenant to his said premises, and solely in consequence of said trespass, and aside from any other causes, the rental value of said premises was depreciated from said date down to April 2, 1900, the date of trial, in the sum of $1,500.’ It will be seen that the trial court held that the present viaduct and the operation of trains thereon are, and since the date mentioned have been, a continuous trespass upon plaintiff's easements of light and air appurtenant to his premises. It also found that this structure was built, and the trains operated thereon, under and in pursuance of the provisions of chapter 339 of the Laws of 1892. An examination of that statute discloses very clearly a comprehensive scheme on the part of the state for the improvement of Park avenue as a public street by removing the railroad tracks from the cut, closing up the cut, and then regulating, grading, and paving the street. It was a legislative scheme for the accomplishment of a public improvement. The railroad company had nothing to do with it except to pay such assessment as was imposed upon it by the public authorities to defray the expense of the improvement. Whatever changes were made in the street and in the operation of the railroad were made not by the defendant, but by the state, in virtue of its general power to improve and regulate public streets. The defendant could not resist the improvement if it would, nor could it refuse when the viaduct was constructed to operate its trains upon it, even if it wanted to, without subjecting itself to a sentence of death at the hands of the state, as all corporations do that refuse to discharge the duties or perform the functions for which they have been created. There is no finding and no claim that the removal of the tracks from the depressed cut to the elevated viaduct was the act of the defendant. On reading the statute it will be seen that it was an act of the state, and how the defendant in one day became a trespasser upon the plaintiff's property rights it is very difficult to conceive. Another case growing out of this improvement was recently before this court (Welde v. Railroad Co., 168 N. Y. 597, 61 N. E. 554), in which the effect of this statute was pointed out. If the viaduct was lawfully constructed and existed in the street under the authority of law, it is impossible to conceive how the defendant could be guilty of a trespass in the operation of its trains upon it. It was constructed for that purpose, and the defendant was obliged to use it in the exercise of its franchise and the discharge of the duties due to the public. The state resolved to displace the railroad in the depressed cut in order to fill up the cut, regulate, pave, and grade the whole street, and to this end commanded the railroad to run its cars upon tracks placed upon a viaduct constructed by the state under the statute, and the railroad obeyed. If in doing so it became a trespasser, it must be because the legislation providing for the change violated some property right of the plaintiff which is protected by the constitution. In other words, it must be because the statute under which the change was made is unconstitutional. I am unable to perceive any reason why the legislature had not the power to improve the avenue by removing the railroad from the cut to a viaduct, and, if the change affected the rental or fee value of the property of an abutting owner having no title to the street, it was but a consequence of the improvement, for which the railroad was not responsible.

The law is well settled in this state that where the property of an abutting owner is damaged, or even his easements interfered with in consequence of the work of an improvement in a public street conducted under a lawful authority, he is without remedy or redress, even though no provision for compensation is made in the statute. Whatever detriment the improvement may be to the abutter in such cases, is held to be damnum absque injuria. Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195, 53 Am. Dec. 357;Talbot v. Railroad Co., 151 N. Y. 155, 45 N. E. 382;Folmsbee v. City of Amsterdam, 142 N. Y. 118, 36 N. E. 821;Rauenstein v. Railway Co., 136 N. Y. 528, 32 N. E. 1047,18 L. R. A. 768;Atwater v. Trustees, 124 N. Y. 602, 27 N. E. 385;Benner v. Dredging Co., 134 N. Y. 156, 31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649. The change from the manner of operating the railroad in the depressed cut to an elevated viaduct was made in precise conformity to the mandate of an express statute, and hence, even if the railroad made the change itself instead of the state, it would not be liable to the plaintiff. Hill v. City of New York, 139 N. Y. 495, 34 N. E. 1090;Bohan v. Gaslight Co., 122 N. Y. 18, 25 N. E. 246,9 L. R. A. 711;Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537,57 Am. Rep. 701;Morton v. City of New York, 140 N. Y. 212, 35 N. E. 490, 22 L. R. A. 241;Delaware, L. & W. R. Co. v. City of Buffalo, 158 N. Y. 266, 53 N. E. 44;Id., 158 N. Y. 478, 53 N. E. 533; Hill v. Asylum Dist., 4 Q. B. Div. 433; s. c. on appeal, 6 App. Cas. 193; Truman v. Railway Co., 25 Ch. Div. 423. The railroad originally covered nearly 62 feet of the street surface. Now the elevated structure covers only 59 feet above the surface. It would seem to be impossible to sustain the judgment in this case without assailing the constitutional validity of the statute under which this change was made; but I think it would be difficult, in view of the authorities cited, to...