Kane v. Metro. El. Ry. Co.

• Decision Date: 13 January 1891
• Citation: 26 N.E. 278,125 N.Y. 164
• Parties: KANE v. METROPOLITAN EL. RY. CO. et al. DUYCKINK v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 164

26 N.E. 278

KANE

v.METROPOLITAN EL. RY. CO. et al.

DUYCKINK

v.NEW YORK EL. R. CO. et al.

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from common pleas of New York city and county, general term.

John F. Dillon, for appellants.

G. Willett Van Nest, for respondent.

ANDREWS, J.

The plaintiff is the owner of a lot on the easterly said of Pearl street, in the city of New York, which on the 1st day of December, 1768, was granted by the mayor, aldermen, and commonalty of the city to the plaintiff's predecessor in title, by a description which bounded the westerly side of the lot on Queen (now Pearl) street. When the grant was made, the tidal waters of the East river washed the easterly side of the street, which was coincident with the water-line, and the lot granted was then under water. It was subsequently filled in and reclaimed, and has been built upon, and Pearl street has become one of the important business streets of the city of New York. The road of the defendant has been constructed in front of plaintiff's lot, and this action is brought for damages thereto caused by its construction and operation. Few questions have come before the courts in this generation of greater practical importance, or involving larger pecuniary interests, than those growing out of the construction of railways in city streets. Whether such streets may, under legislative and municipal authority, be occupied by railroad tracks, to the inconvenience of abutting owners, without making compensation, and what limitation, if any, there is to the legislative power over streets, which cannot be transgressed without violating the legal and constitutional rights of lot-owners, are questions which have excited the gravest debate, and have been the subject of the most careful judicial consideration. Under the decisions made, there seems to be no longer any doubt in this state that streets in a city, laid out and opened under charter provisions, may, under legislative and municipal authority,be used for any public use consistent with their preservation as public streets, and this although the use may be new, and may seem to impose an additional burden, and may subject lot-owners to injury. The mere disturbance of their rights of light and access, by the imposition of a new street use, must be borne, and gives no right of action. It is also the law of this state that the use of a city street for an ordinary horse or steam railway, unless it practically closes the street, is a street use, which may be permitted, and that abutting owners, whose lots are bounded by the side of the street, have no legal redress, in the absence of negligence in the construction or operation of the railroad, although it interferes with the enjoyment of their premises, or seriously impairs their value. Fobes v. Railroad Co., 121 N. Y. 505, 24 N. E. Rep. 919.

In the Story Case, 90 N. Y. 122, three principal questions were considered: (1) Whether the appropriation of Front street for the use of the elevated railroad was consistent with the use of the street as an open public street; (2) whether Story, an abutting owner on the street, the fee of which was (as was assumed) in the city, had any property rights, in the nature of easements of light, air, and access, in and from the street, for the benefit of his adjacent property, which were invaded by the construction of the road; (3) whether such rights, if they existed, were property, within the constitutional provision prohibiting the taking of private property for public use without due compensation. The decision of the court on the first point, while recognizing the rule that the legislature may authorize the construction and operation of an ordinary surface railroad in a city street, placed its decision against the defendant on the character of the structure, and held that it was destructive of the street uses for which streets are established. Upon the second point, it was held that the plaintiff had easements in the street of light, air, and access, appurtenant to his lot, which were affected by the structure of the defendant, impairing the value of his lot. The court, in tracing the origin of his property rights in the nature of easements in the street, placed much stress upon two facts, viz.: The original grant from the city, then the owner both of the land granted and of that which subsequently became Front street, describing the lot granted by reference to a survey and map on which Front street was delineated; and, second, the express covenant of the city, contained in the grant, that the streets referred to therein should forever thereafter continue to be public streets. It was decided, in respect to the third point, that incorporeal rights annexed to property were property, within the protection of the constitution, and could not be taken or impaired without compensation.

In the Lahr Case, 104 N. Y. 268, 10 N. E. Rep. 528, the street upon which the plaintiff's lot was situated had been opened under the statute of 1813. The decision in the Story Case left open but one point for discussion, viz., whether lot-owners upon streets opened under that statute had similar easements of light, air, and access as those which Story had, althought the plaintiff, and those under whom he claimed, did not derive their title from the city, and had no express covenants such as existed in the Case of Story. The court decided that the plaintiff, not withstanding this difference in the circumstances in the two cases, had easements of the same character as Story. The court regarded the statute of 1813, which permitted the taking by the city of lands for streets and the assessing of the cost of improvement upon the property benefited, taken in connection with the trust declared therein, as equivalent to a contract or covenant by the city with the adjacent lot-owners that the streets opened under the statute should forever remain open and public streets, and the consequence was held to follow that they could not be appropriated to other than street uses, to the injury of abutting owners, except upon the condition of making compensation.

The present case presents still another phase of the general question. Pearl street, on which the plaintiff's lot is situated, was a street prior to 1664, and was opened under the Dutch régime during the Dutch occupation of Manhattan island. It passed, with all the other territory occupied by the Dutch, under the control of the crown of Great Britian, upon the capitulation in 1664. There is no evidence in the case of the circumstances attending the opening of Pearl street, or whether the soil forming the bed of the street was, when it was laid out, private or public property. The contention of the defendant upon this state of facts, in brief, is that under the civil law, which was the law of Holland, the sovereign was vested with the absolute title to the soil of all streets and highways within his dominions, and that no private rights or easements existed therein, and that an owner of land adjacent to a street acquired no rights by reason of adjacency, or from the fact that he had built upon the street in reliance upon its continued existence, to have it kept open as a street or way, but that it was competent for the sovereign to close the street, or to convert it to any different public use at any time, without making any compensation to owners of adjacent lands, although by so doing the value of their property might be diminished, or even substanitally destroyed. The argument following from this premise is that the English crown succeeded to the rights and power of the states general as to all streets laid out under the Dutch occupation, and that, whatever rule may prevail as to streets in the city of New York laid out since 1664, the owners of lands abutting on Pearl street have no private rights whatever in the street, and that the legislature has absolute and uncontrollable power to close such street, or to convert it to any use, however inconsistent with its use as a street, and that abutting owners would have no remedy whatever.

In the very learned and able brief of the counsel for the defendants many authorities are cited, and quotations made from the writings of the civilians, in support of their statement of the rule of the civil law. But assuming the powers of the sovereign under the civil law to be as broad as claimed, and that the English crown succeeded to the same powers as to streets in the city of New York opened prior to 1664 as existed in the sovereign under the civil law, it still remains to be considered whether these powers have since been modified as to these ancient streets, by grant or covenant, or legislation, or otherwise, so as to vest in abutting owners rights in such streets, in the nature of easements, which before they could not have claimed. In this case the only open question is whether the plaintiff, as abutting owner, has the right to have Pearl street kept open as a public street, and to the advantages of light, air, and access in and from the same, for the benefit of his abutting property, and whether it is distinguishable in principle from the cases heretofore decided. By the Dongan charter, the colonial government granted to the mayor, aldermen, and commonalty of the city of New York all the streets in the city for public use. This was in 1686, nearly a century before the grant by the city to the plaintiff's predecessor in title of the lot now owned by him. In its grant the city bounded the lot on Pearl street. The city was then the owner both of the soil of the street and of the land granted. If it was necessary to decide the question, it would be worthy of serious consideration whether, under these circumstances, there was not a grant by implication, by the city to its grantee, of a right to have Pearl street kept open as a public street for the benefit of the lot granted, within the principle of many of the cases referred...