Ottenot v. New York, L.&W. Ry. Co.

• Decision Date: 14 January 1890
• Citation: 23 N.E. 169,119 N.Y. 603
• Parties: OTTENOT v. NEW YORK, L. & W. RY. CO.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 603

23 N.E. 169

OTTENOT

v.NEW YORK, L. & W. RY. CO.¹

Court of Appeals of New York.

Jan. 14, 1890.

Appeal from superior court of Buffalo, general term.

Action by Augusta Ottenot, executrix, etc., against the New York, Lack a wanna & Western Railway Company, for damages caused by the construction of an embankment which obstructed the way to plaintiff's property. Judgment for plaintiff, and defendant appealed.

John G. Milburn, for appellant.

Le Roy Parker, for respondent.

EARL, J.

The defendant's railroad tracks were laid in the city of Buffalo, through Water street, running in an easterly and westerly direction. That street crosses Commercial street, which runs northerly and southerly. At the intersection of the two streets, the railroad was built upon an embankment in the center of Water street, about 5 feet and 9 inches above the former grade of the street. That the travel upon Commercial street might pass over the railroad at its intersection, it became necessary to raise the grade of that street, for a distance of 115 feet northerly from the side of Water street, by an embankment in the center of the street, with retaining walls made of stone on each side thereof. This embankment commences on the northerly side of the railway in Water street, and runs northerly until it reaches the regular grade of Commercial street. On the westerly side of Commercial street the plaintiff owned two lots of land, fronting upon that street, side by side, each 18 1/2 feet wide, the southerly side of the two lots being about 37 feet from the northerly side of Water street, and there were two lots intervening between Water street and plaintiff's lots. Commercial street was 60 feet wide. The embankment in front of the lots in question was 24 feet wide, and between it and the lots there was a space of 32 feet, 14 of which was occupied by the sidewalk, and a space of 18 feet was left for the carriage-way between the sidewalk and the embankment. The embankment opposite the northerly side of plaintiff's lots was 2 feet high, and at the southerly side about 4 feet high. The occupants of the lots could not drive upon the embankment directly in front of them, but to get upon it they were obliged to drive northerly about 20 feet, and from that point they could drive southerly in Commercial street over the railroad. Teams could also pass on the westerly side of the embankment in front of plaintiff's lots in a southerly direction, and thus go upon Water street, and pass in either direction thereon, but not, at the intersection of the two streets, over the railroad. The fee of the street had been taken by the city, and the title of plaintiff to his lots was limited by the westerly side of the street. The plaintiff brought this action to recover damages to his lots caused by the construction of the embankment in Commercial street, and he recovered damages for the total depreciation of the value of the lots caused thereby.

We are of opinion that, upon the facts proved, the plaintiff was not entitled to recover. The railroad was built by lawful authority through Water street; and of its existence there, and of any damages caused thereby, the plaintiff had no right to complain, as he was not an abutting owner upon that street, and had no property rights therein. By the city ordinances granting the defendant the right to construct its railroad in Water street, it was authorized and required to build its embankment, at the intersection of Commercial street, at its present height, so that its cars could pass over the Erie canal; and it was required so to construct its road as to interfere as little as possible with the streets, and to restore any street interfered with to as good condition as it was before such interference, as soon as possible; and all its work in Water street and the intersected streets was to be done under the direction and subject to the approval of the city engineer. The railroad in Water street and the embankment in Commercial street were constructed in pursuance of the city ordinances, and under the direction and subject to the approval of the city engineer.

There was no claim upon the trial that the embankment was not carefully, skillfully, and properly constructed, or that it could have been so constructed as to interfere less with the plaintiff in the use of his lots than it now does. If the city had not required any embankment to be constructed in Commercial street so as to carry the travel over the railroad in Water street, the plaintiff would have had no cause of action for damages against the railroad company. If no means for crossing the railroad track at that point had been furnished by the railroad company, the owners of lots on Commercial street would have had no cause of action for the inconvenience caused to them thereby. It is possible that they would have had some remedy by mandamus or indictment to compel the railroad company or the city authorities to so grade the streets at their intersection as to admit of travel over the railroad. But there is no principle of law which would give every citizen of Buffalo who had occasion to use Commercial street a cause of action for the obstruction thereof. So, too, it is clear that if the city itself had undertaken to build this embankment in Commercial street, and had constructed the same as it now is, it would not have been liable to the plaintiff for any damages caused thereby to him. The railroad was not operated upon that embankment. The street was not subjected to any new easement or use. It was still a street for public travel, devoted exclusively to street purposes. As the city had the right and power to construct the embankment, it could authorize the defendant to construct it, and it would have the same immunity from damages which the city would have. What the defendant did by the direction and under the authority of the city it did in the discharge of a duty which would otherwise have devolved upon the city, and it has the same immunity, and was under the same responsibility, and under no greater or other. And such is the settled law of this court. In Bellinger v. Railroad Co., 23 N. Y. 42, Judge DENIO, speaking of the obstruction of water-courses crossed by railroads, said: ‘If one chooses of his own authority to interfere with a water-course, even upon his own land, he, as a general rule, does it at his peril, as respects other riparian owners above or below. But the rule is different where one acts under the authority of law. There he has the sanction of the state for what he does, and, unless he commits a fault in the manner of doing it, he is completely justified. This is, of course, to be understood as limited to cases in which the legislature has the constitutional power to act. If, therefore, a corporation or an officer should be authorized by statute to take the property of individuals for any purpose, however public or generally beneficial, without compensation, or for a private use, making compensation, the pretended authority would be wholly void, and, of course, could afford no protection to anyone; but this limitation...