Knoth v. Manhattan Ry. Co.

• Decision Date: 15 January 1907
• Citation: 187 N.Y. 243,79 N.E. 1015
• Parties: KNOTH v. MANHATTAN RY. CO.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 243

79 N.E. 1015

KNOTH

v.MANHATTAN RY. CO.

Court of Appeals of New York.

Jan. 15, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Elizabeth Knoth against the Manhattan Railway Company. From a judgment of the Appellate Division (96 N. Y. Supp. 844,109 App. Div. 802) affirming the judgment of the trial court at special term, plaintiff appeals. Affirmed.

The trial court made 35 findings of fact. Those material on this appeal are as follows: (2) The defendant erected in the year 1894, without legislative authority and without municipal consent, and has since maintained and operated without such authority or consent, a center or third elevated railway track over and above Ninth avenue in the city of New York in front of plaintiff's premises and between two other elevated railway tracks previously erected, operated and maintained by the defendant and its predecessor, the New York Elevated Railroad Company. (8) The plaintiff in 1889 purchased the property described in the complaint and known as ‘461 Ninth avenue,’ between Thirty-Fifth and Thirty-Sixth streets, and is, and has been since that date, the owner thereof in fee and in possession of said premises. (9) The said center or third track has been operated by the said defendant since the year 1894 by the running of express trains carrying passengers thereon, and the said track and the structure supporting it are permanent, and the defendant intends indefinitely to continue the operation of trains thereon. (11) The express trains regularly operated on said track stop at no station within a mile of the plaintiff's premises. (12) The said center or third track, the additional structure supporting it and the trains operated thereon confer no benefit upon the plaintiff or upon her premises. (15) The erection and operation of the center or third track have involved a further taking of the plaintiff's easements. (20) The construction, operation, and maintenance of said center or third track in front of the plaintiff's premises causes a substantial depreciation in the fee value thereof, to the extent of $1,200. (22) Among the rights, privileges, and franchises granted to the New York Elevated Railroad Company was the right to make and adopt such alterations and improvements in the structure, rolling stock, motor power, and its application, and in the position, grade, elevation, and depression of the tracks, and the mode of securing and strengthening its railroads, sideways, crossings, stations, and turnouts as might be authorized and approved by commissioners appointed pursuant to chapter 489, p. 1271, of the Laws of 1867, and the acts amendatory thereof and supplemental thereto. (23) On November 10, 1877, the commissioners of the New York Elevated Railroad Company duly approved a plan of proposed additional track of the New York Elevated Railroad Company, which plan provided for four tracks in front of plaintiff's premises, one of which tracks was a switch, crossover, or connecting track, and three of said tracks were actually constructed and used prior to the year 1880. (25) In or about the month of July, 1894, a switch, siding, or third track was constructed over the portion of Ninth avenue in front of the premises in suit in addition to the structure as it existed prior thereto, the construction of which switch, siding, or track had been, in the month of December, 1893, duly authorized by said commissioners in so far as they had power so to do, and was constructed under color of such authority. (27) Since the decision by the Hon. George L. Ingraham of the Supreme Court in the case of Mayor, etc., of City of New York v. Manhattan Railway Company (Sup.) 25 N. Y. Supp. 860, here-inbefore referred to, the defendant has spent over $800,000 in acquiring the easements of abutting owners along the line of said third track, turnout, or siding, and has procured the consent of the owners of property representing 26,927 lineal feet along Ninth and Columbus avenues out of a total of 39,514 feet. (28) Said switch, siding, or turnout is of great public utility, and constitutes a great public benefit. (29) The injury, if any, suffered by the plaintiff from the maintenance and operation of said switch, turnout, siding, or third track, is small compared with the injury and inconvenience which would result to the defendant and to the public if the defendant should be compelled to discontinue the use and remove the same. (31) If the switch, siding, turnout, or so-called ‘third track’ in front of plaintiff's premises should be removed, the defendant's premises should would thereby be seriously impaired. (33) If the switch, siding, turnout, or so-called ‘third track’ in front of plaintiff's premises should be removed, the danger incident to the operation of trains on defendant's railway would thereby be increased. (34) For any and all damages suffered by the plaintiff by reason of the construction, maintenance, and operation of the so-called switch, be removed, the defendant's train service described in the complaint, the plaintiff can be adequately compensated by the payment of such sum of money as shall be found by the court to be the amount of the damages so suffered. (35) The payment to the plaintiff of just compensation would be a remedy for her injuries as adequate as would be the removal of the switch, siding, turnout, or so-called ‘third track’ in front of her premises.

The conclusions of law based upon these findings of fact are the usual ones in the ordinary elevated railroad case.J. Aspinwall Hodge, for appellant.

Julien T. Davies, for respondent.

EDWARD T. BARTLETT, J. (after stating the facts).

The Special Term awarded to the plaintiff, an owner of property abutting upon the Ninth avenue line of defendant's elevated railway, in the city of New York, a money judgment and an injunction against the maintenance or in any way using the center or third track upon the elevated railroad structure in front of the plaintiff's premises, described in the complaint, and known as ‘No. 461 Ninth avenue,’ between Thirty-Fifth and Thirty-Sixth streets, except to remove the same, and from operating trains of cars thereon, on and after 60 days from entry of judgment and due service of a copy of the judgment and notice of entry thereof, with the usual alternative provision that if, within the time limited, the defendant should pay to plaintiff the sum of $1,200 for the conveyance of the easements appropriated for the use of the center or third track, the the said injunction should not operate. This appeal is taken by the plaintiff from that part of the judgment which provides for the avoidance of the injunction by the payment of the damages awarded. The record consists of the judgment roll, no evidence being printed in the case.

The Appellate Division having determined by unanimous decision that there is evidence supporting, or tending to sustain, the findings of fact, they are conclusive here.

The manner in which this case is now presented is unusual. The legality of the defendant's construction and operation of the center or third track is not before us. It is conceded and found that the defendant's erection of that track in 1894 was without legislative authority or municipal consent. As was well observed by the learned judge writing the opinion of the Appellate Division that if certain findings were considered alone, it would follow that a mandatory injunction should issue compelling the defendant to remove the center or third track from...