Perlmutter v. Greene

• Citation: 259 N.Y. 327,182 N.E. 5
• Parties: PERLMUTTER et al. v. GREENE, State Superintendent of Public Works, et al.
• Decision Date: 19 July 1932
• Court: New York Court of Appeals

259 N.Y. 327

182 N.E. 5

PERLMUTTER et al.

v.GREENE, State Superintendent of Public Works, et al.

Court of Appeals of New York.

July 19, 1932.

Action by Joseph Perlmutter and others, copartners doing business under the firm name and style of the Perlmutter Furniture Company, against Frederick Stuart Greene, as State Superintendent of Public Works, and others. From a judgment of the Appellate Division (234 App. Div. 896, 254 N. Y. S. 542), affirming a judgment of the Trial Term in favor of plaintiff on agreed and stipulated facts (140 Misc. 42, 249 N. Y. S. 495), the defendants appeal.

Judgments reversed, and the complaint dismissed.

Appeal from Supreme Court, Appellate Division, Second department.

John J. Bennett, Jr., Atty. Gen. (Henry Epstein and Timothy F. Cohen, both of New York City, of counsel), for appellants.

John E. Mack and Edward A. Conger, both of Poughkeepsie, for respondents.

POUND, C. J.

Plaintiffs are lessees of a parcel of land immediately south of the east approach to the Mid-Hudson bridge at Poughkeepsie. They purposed to erect a large display sign or billboard thereon for advertising purposes in full view of travelers along the adjacent approach which is a part of the state highway. The state of New York is the owner of the fee of the highway. The defendant Greene, as state superintendent of public works, for the purpose of blocking a view of the sign from the highway, purposed to construct a screen or shield on the highway in front of the billboard. The billboard would be about fifty-three feet long, ten feet high, and thirty-five feet from the traveled part of the bridge approach, on a pronounced curve in a narrow road. It may be illuminated at night.

Plaintiffs have obtained a judgment restraining defendants from placing the screen in the highway where it would prevent motorists from seeing their sign. The courts below have held that the state may not lawfully erect the screen so as to obscure plaintiffs' sign, that it may not thus prevent plaintiffs from using their property for advertising purposes, and that the erection of the screen for the purpose of obscuring the billboard does not safeguard the traveler or serve any highway purpose.

When the fee of the highway has been transferred to the state, the state may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes. Thompson v. Orange & Rockland Electric Co., 254 N. Y. 366, 369, 173 N. E. 224. The mere disturbance of the rights of light, air, and access of abutting owners on such a highway by the imposition of a new use, consistentwith its use as an open public street, must be tolerated by them, and no right of action arises therefrom, although such use interferes with the enjoyment of their premises. Kane v. New York Elev. R. R. Co., 125 N. Y. 164, 176,26 N. E. 278,11 L. R. A. 640. The highway must, however, be kept open as a public highway, and not diverted to wholly inconsistent uses. This right to have the highway kept open for light, air, and access as well as for travel has been termed an ‘easement,’ but it is the right deduced by way of consequence from the purposes of a public street. Muhlker v. New York & H. R. R. Co., 197 U. S. 544, 25 S. Ct. 522, 49 L. Ed. 872.

Shall we, on this basis, imply as against the state an easement of visibility from the highway which arises from the necessity that the highway be ‘kept open;’ hold that the screen would be an unlawful structure, and that plaintiffs are entitled, by virtue of proximity to the highway, to protection from the injuries ‘to the easements of light, air, view and access belonging to them’ which would result therefrom? Bradley v. Degnon Contracting Co., 224 N. Y. 60, 72,120 N. E. 89;Donahue v. Keystone Gas Co., 181 N. Y. 313, 319,73 N. E. 1108,70 L. R. A. 761, 106 Am. St. Rep. 549; Muhlker v. New York & H. R. R. Co., supra. Or shall we invoke the principle that considerations of an esthetic purpose may enter into the reasons for improving a state highway and thus sustain the superintendent of public works in his action if it has any direct relation to a highway purpose? Welch v. Swasey, 214 U. S. 91, 108, 29 S. Ct. 567, 53 L. Ed. 923;Matter of Wulfsohn v. Burden, 241 N. Y. 288, 300, 150 N. E. 120, 43 A. L. R. 651.

We are dealing, not with a statute passed in the exercise of the police power of the state, prohibiting billboards on private property where the primary motive is esthetic (Public Esthetics and the Bill Board, 16 Cornell Law Quarterly, 151, 154), but with the act of the administrativeofficer in constructing and controlling a state highway placed in his charge. The question is as to the limits of his authority. The state superintendent of public works has control of the Mid-Hudson Bridge (Laws 1923, c. 900, § 3; Laws 1927, c. 88, § 4), and has general supervision over all state highways (Highway Law [Consol. Laws, c. 25], art. 2, § 15). In the exercise of such supervision and control, doubtless he may plant shade trees along the road to give comfort to motorists and incidentally to improve the appearance of the highway. By so doing he aims to make a better highway than a mere scar across the land would be. If trees interfere with the view of the adjacent property from the road, no right is interfered with. So, if the superintendent desires to shield the travelers on the highway from obnoxious sights of public nuisances or quasi nuisances by the erection of screens more pleasing to the eye, he still acts within his jurisdiction. He aims to make the highway free from sights which would offend the public. No adjacent owner has the vested right to be seen from the street in his backyard privacy. Again, if the purpose is to shut out from view scenes which might distract the attention of the driver of a car, the superintendent may aim to make the highway safer for those who use it by erecting screens to keep the eye of the driver on the road as he may erect barriers to keep the car on the road on dangerous curves. All these things are as incidental to the construction and operation of the highway as are the matters of grade, materials, or drainage.

Authorities are agreed that any considerations, other than purely esthetic ones, which are relevant to the operation of the highway, may influence the superintendent's action, and, if such considerations exist, the fact that...