Heyert v. Orange & Rockland Utilities, Inc.

CourtNew York Court of Appeals
Citation271 N.Y.S.2d 201,17 N.Y.2d 352,218 N.E.2d 263
Parties, 218 N.E.2d 263 Leona HEYERT, Respondent, v. ORANGE AND ROCKLAND UTILITIES, INC., Appellant.
Decision Date02 June 1966

Cameron F. MacRae, New York City, David H. Moses and Carl D. Hobelman, New York City, for appellant.

Jesse I. Etelson, New City, for respondent.

Nixon, Hargrave, Devans & Doyle, Rochester, for Rochester Gas and Electric Corporation, amicus curiae.

G. Wallace Bates, Saul Scheier and Robert Luce Donohue, New York City, for New York Telephone Co., amicus curiae.

Morrell S. Lockhart, Theodore J. Carlson and M. Wade Kimsey, New York City, for Central Hudson Gas & Electric Corporation, amicus curiae.

Edward F. Huber and Norman C. Frost, New York City, for New York State Electric & Gas Corporation, amicus curiae.

Edward M. Barrett, Mineola, Edward J. Walsh, Jr., Rockwell Center, and Ira L. Freilicher, Mineola, for Long Island Lighting Company, amicus curiae.


Plaintiff, who owns property on East Willow Tree Road in the Town of Ramapo, Rockland County, sued to compel the defendant to remove a gas main installed beneath the highway and maintained under a franchise granted by the Town Board. Defendant moved for summary judgment dismissing the complaint, or, in the alternative, for an order fixing plaintiff's damages, if any, and requiring plaintiff to convey an easement to defendant.

The Appellate Division and Special Term held that plaintiff is entitled to damages for the reason that there has been an unauthorized taking or use of her property for a purpose which is not a highway or street use under the public easement existing by virtue of the use of the roadway as a public street, and that plaintiff is entitled to compensation on the same basis as in any case of partial taking through the exercise of the power of eminent domain. Defendant argues that the installation of a local gas main is within the scope of the easement of the town to use the land for public highway purposes.

The facts are not in dispute. Plaintiff has the underlying title to real property extending to the center of East Willow Tree Road. This highway was acquired by the town by user under what is now section 189 of the Highway Law, Consol.Laws, c. 25, which dates back at least to section 3 of chapter 43 of the Laws of 1817, which was founded upon the common-law doctrine of dedication to the public by a grant, presumed to have been made, which has become conclusive by acquiescence on the part of the owner in public use as a highway coupled with improvement and maintenance by the public authorities during a period of time analogous to that of the limitation applicable to private persons claiming title through adverse possession (James v. Sammis, 132 N.Y. 239, 30 N.E. 502; Palmer v. Palmer, 150 N.Y. 139, 147--148, 44 N.E. 966, 967, 968; Goldrich v. Franklin Gardens Corp., Sup., 138 N.Y.S.2d 731, affd. 2 A.D.2d 752, 153 N.Y.S.2d 408, affd. 2 N.Y.2d 906, 161 N.Y.S.2d 433, 141 N.E.2d 823; Speir v. Town of New Utrecht, 121 N.Y. 420, 24 N.E. 692). This statute provides that 'All lands which shall have been used by the public as a highway' for the requisite number of years 'shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the town superintendent shall open all such highways to the width of at least three rods.' Public highways arising from presumption of dedication through user under section 189 of the Highway Law, or by written instrument 'for highway purposes' delivered and accepted under section 171, do not involve the conveyance of a fee but the transference of an easement to the public for the purpose of a highway (Osborne v. Auburn Tel. Co., 189 N.Y. 393, 82 N.E. 428). It is conceded here that plaintiff owns the fee to half of the street, and that the Town of Ramapo has an easement for highway purposes. The point at issue concerns whether such an easement includes the right to lay gas mains beneath the street, or, if the town does not do so itself, to grant the right to lay such mains to a private utility corporation. In this instance, the Town of Ramapo attempted to do the latter.

The grant by the town to the utility corporation was made in 1928, and, in terms, purports to authorize the corporate predecessor of appellant 'to lay and maintain pipes and mains with necessary connections for the purpose of conducting and distributing gas in and through all public streets, alleys, rights of way and avenues of the Town of Ramapo'. The record does not disclose when East Willow Tree Road was first used, but, if the town had perfected its easement for highway purposes by 1928, when the franchise was granted, the road must have been maintained as a highway by the town at least since 1908. Prior to the grant of the franchise this section of the town was exclusively rural, and, to a considerable extent, it still is rural. Not until 1962 did defendant or its predecessor commence to lay its mains in this highway. Special Term and the Appellate Division have held that the easement acquired by the town for highway purposes did not include the right to lay gas mains and that, consequently, the town could not grant to the utility a right which it did not possess.

The cases are in point which deal with the scope of written grants of rights of way, or of easements for highway purposes, since, as has been mentioned, highways by user are acquired through the presumption of a lost grant for highway purposes under the language of the statute.

As recently as 1959 we held in Holden v. City of New York, 7 N.Y.2d 840, 841, 196 N.Y.S.2d 712, 713, 164 N.E.2d 728, 729, that 'The reservation of a mere 'right of way' under the decisions included only the right of passage over the surface of the land (Thompson v. Orange & Rockland El. Co., 254 N.Y. 366, 173 N.E. 224; Osborne v. Auburn Tel. Co., 189 N.Y. 393, 82 N.E. 428; Eels v. American Tel. & Tel. Co., 143 N.Y. 133, 38 N.E. 202, 25 L.R.A. 640; Ferguson v. Producers Gas Co., 286 App.Div. 521, 145 N.Y.S.2d 649; Matter of Bensel, 140 App.Div. 257, 125 N.Y.S. 128).'

The contention of appellant is unsound that in the case of East Willow Tree Road in the Town of Ramapo an easement for highway purposes, perfected before 1928, included the right to lay gas mains underground on any theory that in rural areas an easement for highway purposes comprises only the right to pass over the surface of the land whereas in villages or other populous sections it includes overhead and underground construction for utility mains and services to private consumers. This tenuous distinction between rural and more populous highways was discarded in Osborne v. Auburn Tel. Co., 189 N.Y. 393, 82 N.E. 428, supra, which held that the owner of the fee of land to the center of a city street was entitled to be compensated for the acquisition of a telephone easement. It was decided after Whitcher v. Holland Water Works Co., 66 Hun 619, 20 N.Y.S. 560, affd. 142 N.Y. 626, 37 N.E. 565, and Van Brunt v. Town of Flatbush, 128 N.Y. 50, 27 N.E. 973, on which appellant relies. Moreover even if the Whitcher and Van Brunt cases had remained the law, it would not assist appellant inasmuch as it is undisputed that this was a rural highway at the time when the easement was acquired and the franchise granted to appellant. The opinion of the court in the Osborne case said (p. 396, 82 N.E. p. 428) that the question whether the maintenance of telephone and telegraph poles for the purpose of stringing wires is a street use and deemed to be within the grant of lands for highway purposes 'was distinctly answered in the negative in the case of Eels v. American T. & T. Co., 143 N.Y. 133, 38 N.E. 202, 25 L.R.A. 640, and again in Palmer v. Larchmont Electric Co., 158 N.Y. 231, 52 N.E. 1092, 43 L.R.A. 672.' It was later pointed out in Thompson v. Orange & Rockland Elec. Co., 254 N.Y. 366, 173 N.E. 224, that utility mains for the service of domestic consumers, which is not a highway purpose, is to be distinguished from wires or storm sewers for lighting or draining the street itself. The latter are included within a public highway easement inasmuch as they are uses such 'as appertain directly or indirectly to the right of passage, and tend in some way to preserve or make more easy the exercise of such right' (254 N.Y., supra, p. 369, 173 N.E. p. 225). Nothing further was held in Palmer v. Larchmont Elec. Co., 158 N.Y. 231, 52 N.E. 1092, 43 L.R.A. 672. In the Thompson case it was stated that 'No distinction can now be drawn between city streets and country highways in this regard' (p. 369, 173 N.E. p. 226).

The only basis on which this order could be reversed would be that the law on this subject, unequivocally reiterated as recently as 1959 in Holden v. City of New York, 7 N.Y.2d 840, 196 N.Y.S.2d 712, 164 N.E.2d 428, supra, and in 1955 in Ferguson v. Producers Gas Co., 286 App.Div. 521, 145 N.Y.S.2d 649, should be overruled on the ground that times have changed.

The principle of Stare decisis rests more lightly on the shoulders of judges and lawyers today than formerly. Justice Holmes' aphorism that it is revolting to have no better reason for a rule than that so it was decided in the reign of George II needs to be regarded in context. Although he did not hesitate to alter precedent where the course of the industrial revolution had made departure necessary on account of matters of grave social consequence, he was too sound a jurist to undervalue the importance of promoting certainty, stability and predictability in the law (Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001). Thus he concurred in the unanimous court which decided Rock Spring Distilling Co. v. W. A. Gaines & Co., 246 U.S. 312, 320, 38 S.Ct. 327, 330, 62 L.Ed. 738, quoting and approving the language of Sanborn, J., that "Uniformity and certainty in rules of property are often more important and desirable than technical...

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