Huntington v. City of New York

• Decision Date: 28 August 1902
• Citation: 118 F. 683
• Parties: HUNTINGTON v. CITY OF NEW YORK et al.
• Court: U.S. District Court — Southern District of New York

118 F. 683

HUNTINGTON v. CITY OF NEW YORK et al.

United States Circuit Court, S.D. New York.

August 28, 1902

Arthur H. Masten and Maxwell Evarts, for the motion.

Edward M. Shepard and DeLancey Nicoll, opposed.

LACOMBE Circuit Judge.

This suit is brought to enjoin the defendants from proceeding with the construction of the so-called 'Rapid Transit Railroad' in front of complainant's premises on Park avenue, southeast corner of Thirty-Eighth street, 'until such time as the city shall have obtained the fee in said avenue'; and, in the event of the city's obtaining such fee, then from constructing such railroad otherwise than in accordance with the route and general plan heretofore approved by the local authorities and by the state court undertaking under the statute to give consent in lieu of the consent of abutting owners.

The rapid transit act (chapter 4, Laws N.Y. 1891, as amended Laws N.Y. 1895, c. 519) provides that the general plan, which with a statement of the route or routes, is to be submitted for approval, shall show not only the general mode of operation, but also 'such details as to the manner of construction as may be necessary to show the extent to which any street, avenue, or other public place is to be encroached upon, and the property abutting thereon affected. ' Once approved, no change is to be made in the plans without the further consent and authorization of the local authorities and of the abutting owners, or, in lieu thereof, of the state court.

The complainant's brief thus epitomizes the 'route and general plan,' which was duly approved, and under which alone, under the statute, the commissioners have authority to construct:

'They provided that the proposed railroad should consist of four parallel tracks, and should run under Park avenue; that, with certain exceptions not now material, the tracks should in all cases be placed in tunnels, and that the said tracks, wherever passing over or under the street, should be placed over or under the central part of the street. that under Park avenue the width of the tunnel should be fifty feet, with a permissible width of sixty-five feet; that the roof of the tunnel should be as near to the surface of the street as street conditions and grades would permit. Certain drawings, known as 'Drawings 1-60,' illustrative of said 'details of construction,' were incorporated into the said general plan as a part thereof. According to the drawings so adopted, it appeared that under Park avenue at the point in question there was to be a single tunnel containing four tracks, that the center line of the said tunnel was to be under the center line of Park avenue, and that the extreme width of excavation required was to be 65 feet or thereabouts, thus bringing the exterior surface of the easterly wall of such tunnel to about 37 feet 6 inches from the building line of the houses on the east side of Park avenue.'

Inspection of the record shows that below the existing tunnel of the existing street railroad there were to be three tunnels, the central one holding two tracks, and the eastern and western tunnels one track each. They were to be located centrally, and within the space of 65 feet, above indicated. The general plan further provided as follows:

The route should include suitable tracks and connections from the portion of the route near the corner of Park avenue and Forty-Second street to the yard and tracks of the Grand Central Station. All of the tracks and connections last mentioned shall be under Park avenue and Forty-Second street and private property to be acquired. * * * The tracks wherever passing over or under the street shall be placed over or under the central part of the street, except that no tunnel or viaduct, or any wall or part thereof, under or along a street, shall, except at the stations, station approaches, curves, and at places of access to subsurface structures, as hereinafter provided, be within a distance of five feet of the exterior line or side of the street. * * * Adjacent tracks shall be connected by necessary and suitable switches and connections, and an additional track for siding accommodation may be constructed, not to exceed in length one-quarter of a mile for each mile of roadway; but provided always that the side of the tunnel shall not, by the enlargement of the tunnel for that purpose, be brought within five feet of the exterior line or side of the street.'

The work now being prosecuted at the place in question consists of two tunnels beneath the existing street railroad tunnel. The westerly tunnel is substantially in accord with the general plan as to encroachment upon the avenue and effect upon abutting property. Its westerly line is but 5 feet west of the westerly line shown in the drawing. The easterly tunnel is wholly outside of the 65 foot central strip there shown. Its westerly line lies east of the easterly line of the original strip, and its easterly line is about 7 feet from the building line of the houses on the east side of Park avenue. It encroaches on Park avenue to an extent not shown in the 'details as to manner of construction,' which the statute provided should be shown to local authorities and to property owners, and the court in advance of adoption. That it affects abutting property to an extent greater than was shown in conclusively established by the collapse of the front walls of buildings nearly adjoining complainant's.

All parties are citizens of New York, and the complainant contends that this court has jurisdiction because-- 'The board of rapid transit commissioners has been clothed with authority by the rapid transit act to build a subway, and that, acting under such authority and in the course of constructing the tunnel, it is depriving her of property without due process of law, in contravention of the fourteenth amendment, which provides...