Muhlker v. New York & H.R. Co.
Decision Date | 24 February 1903 |
Citation | 173 N.Y. 549,66 N.E. 558 |
Court | New York Court of Appeals Court of Appeals |
Parties | MUHLKER v. NEW YORK & H. R. CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Henry Muhlker against the New York & Harlem Railroad Company and others. From a judgment of the Appellate Division (69 N. Y. Supp. 910) affirming a judgment for plaintiff, both parties appeal. Reversed.
L. M. Berkeley and James C. Bushby, for plaintiff.
Ira A. Place, Thomas Emery, and Alex. S. Lyman, for defendants.
The facts of this case present the same question that was before this court in the Lewis Case, 162 N. Y. 202, 56 N. E. 540, and the Fries Case, 169 N. Y. 270, 62 N. E. 358; and that is whether defendant is liable for any damages that may have been sustained by plaintiff by reason of the interference with his easements of light, air, and access by the erection of the viaduct upon which its trains are now being run.
Defendant was incorporated in 1831, and in 1832 it took from one Poillon a deed to a strip of land 24 feet wide in the center of what is now known as ‘Fourth Avenue,’ in the city of New York, along which the premises belonging to the plaintiff are situated. Subsequently double tracks were laid thereon, and trains operated, and this continued until after 1872. In that year an act was passed (chapter 702, Laws 1872) under which the tracks were increased to four, and were laid in a subway or cut bounded on both sides by masonry walls, which rose to a height of 3 feet above the surface of the avenue. As soon as the work was completed the tracks were used for railroad purposes, and so continued until the state compelled the road to abandon their use, and to operate its cars upon the viaduct which was constructed by the state pursuant to chapter 339, Laws 1892. Without further reference to the history of the road in that avenue, it may be said that, prior to the time when the operation of its trains was transferred from the subway to the viaduct, it had acquired the right, as against the abutting owners, to maintain its railroad and run its trains along and over Fourth avenue. Fries Case, supra. In 1890 Congress passed an act directing the Secretary of War to cause the bridges over the Harlem river to be replaced by other bridges which should be at least 24 feet above the high water of the spring tides. 26 Stat. U. S. 437. As defendant's road crossed one of these bridges, compliance with the provisions of this act made necessary a change in the grade of defendant's railroad, and the act provided that such changes should be made as soon as the necessary legislation could be obtained to authorize a change in the grade of the approaches to the bridge. About two years later the Legislature passed the act already referred to, by which it undertook to accomplish the result aimed at by Congress in such a manner as actually to improve the use of the street itself; a part of the scheme being to compel this defendant to operate its road upon a steel viaduct elevated above the ground, thus giving the public the use of the whole of the surface of the street, which before was impossible. This improvement was made by the state for the benefit of the public; the expense of it, by the mandate of the state, being borne by the city and this defendant in equal proportions. What was done by the state, and the legal effect of its action upon the rights of this defendant, cannot be better stated than it was by Judge Vann in the Lewis Case, supra, and so I quote it:
Although at the time of the decision of the Lewis Case we accepted as sound the proposition that, when defendant commenced to use the steel viaduct, it started a new trespass upon the rights of the abutting owners, for which it could properly be held liable, subsequent reflection persuaded the majority of the court that this was error. The reasoning which seemed to command the latter conclusion, was, briefly, that the state, setting about making improvements in Fourth avenue which were to benefit the general public, found defendant in possession of four tracks in the middle of the avenue, with the right to operate its trains upon them, which it was enjoying. The state could not if it would, and probably would not if it could, deprive defendant of its right to operate its trains in the street. But it had the power, in the public interest, to compel it to run its trains upon a viaduct instead of in the subway. So the state builded the viaduct over the part of the street formerly occupied by the subway, and compelled it to stop running its trains in the subway, and to run them on the viaduct instead. The state had the power to do these things, and all of them; and defendant, having the right to move its trains over the street, which could not be taken away from it, did not lose that right, and become a trespasser, because it obeyed the command of the statute, which it could not refuse to obey-to operate its trains upon the structure which the state had built. The plaintiff was injured by the change, as appears from the findings. But who caused the injury? The defendant, which obeyed the command of the statute, which it had not the right to resist, or the state, which had the power to make the changes which were made in the street, and did make them, and then compelled defendant to make use of them? The questions admit of but one answer, and that is, it was the state. When the question was again presented, therefore, as it was in the Fries Case, supra, we attempted to cure the error which we concluded we had made in the Lewis Case. The opinions in the Fries Case were written by Judge O'Brien and Judge Martin. In the course of Judge O'Brien's opinion, it is said: Judge Martin states the principle as follows: ...
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Henry Muhlker v. New York Harlem Ralilroad Company 12, 13 1904
...R. Co. 162 N. Y. 202, 56 N. E. 540. The judgment was affirmed by the appellate division. It was reversed by the court of appeals (173 N. Y. 549, 66 N. E. 558), and the judgment of that court, upon the remission of the case, was made the judgment of the supreme court and the complaint dismis......
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...doctrine held by this court in the cases of Fries v. New York & Harlem R. R. Co., 169 N. Y. 270, 62 N. E. 358,Muhlker v. New York & Harlem R. R. Co., 173 N. Y. 549, 66 N. E. 558, and Keirns v. New York & Harlem R. R. Co., 173 N. Y. 642, 66 N. E. 1110. But on appeal to the Supreme Court of t......
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...resulting to abutting property owners from the maintenance of the structure or the operation of trains thereon. Muhlker v. N. Y. & Harlem R. R. Co., 173 N. Y. 549, 66 N. E. 558;Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270, 62 N. E. 358. It has also been decided ‘that the station houses ......
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...JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910, at 109-10 (1995). (122.) Muhlker v. New York & Harlem R.R., 66 N.E. 558, 560 (N.Y. (123.) Muhlker, 197 U.S. at 570 (plurality opinion). (124.) ELY, supra note 121, at 110. (125.) Barton H. Thompson, Jr., Judicial......