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

• Decision Date: 02 February 1891
• Citation: Reining v. New York, L. & W. Ry. Co, 13 N.Y.S. 238 (N.Y. Super Ct. 1891)
• Parties: Reining et al. v. New York, L. & W. Ry. Co
• Court: Superior Court of New York

13 N.Y.S. 238

Reining et al. v. New York, L. & W. Ry. Co

Superior Court of New York, General Term, Buffalo

February 2, 1891

Appeal from trial term.

Action by John Reining and others against the New York, Lackawanna & Western Railway Company for damages. Verdict and judgment for plaintiffs. Defendant appeals. For former report see 7 N.Y.S. 516.

Judgment affirmed.

John G Milburn, for appellant.

David F. Day and Leroy Parker, for respondents.

Argued before Beckwith, C. J., and Hatch, J. Titus, J., did not sit. Hatch, J., dissenting.

OPINION

Beckwith, C. J.

The respondents own a building and a lot of land situated on the northerly side of Water street in the city of Buffalo; and they complain that the appellant, in constructing its railroad through Water street, under a permit of the common council, erected a stone wall between five and six feet high and an embankment of the same height in the street and across the front of the respondents' premises, and thereby took the possession and occupancy of the respondents' easement in the street, or some portion thereof, to the absolute and permanent exclusion of the respondents. The appellant contends that it has not taken any property or interest in property belonging to the respondents, but that it built its railroad in the street with the consent of the city, given by a resolution of the common council; and that the wall and embankment were occasioned by a change in grade in the street, made necessary in order to carry the railroad at a proper height over Commercial slip, a water-way, and part of the Erie canal; and that consequently the wall and embankment were not an unlawful exclusion of the respondents from the enjoyment of their easement. The territory of the state of New York, except in limited, unsettled districts, is crossed by innumerable roads and highways, which are established or preserved by an exercise of the legislative power for the public use and public benefit. They are among the most important of the institutions belonging to modern civilization. Without them society could not exist. In England they were for the common use of all the king's subjects; and in this country, where the people are sovereign, all the inhabitants have an equal or the like right to the advantages of travel afforded by them. Every man has the right, rather than a privilege, of traveling over them. It is what I will call a "personal civil right," belonging to his personal liberties as a citizen or inhabitant of the state. It is a right annexed to his person, and does not give him the least property interest in the highway, nor in the ground under the highway, nor in the air above it. These highways are established and altered, and possibly may be discontinued, by the legislature in the exercise of the power and discretion derived from the people. The power of the legislature to alter and discontinue roads and streets ought to be exercised for the public good,--the greatest good to the greatest number. The personal right of the citizen spoken of is the right simply to use the highways that at any time are found within the state. This personal civil right, which belongs to him as one of the inhabitants of the state, exists the same whether he owns or does not own lands adjoining a highway. So far as that right goes, the legislature, directly or by delegation, may change the highways, and alter their grades, as the public good requires, without legal injury to any man, even though he be the owner of land abutting on a highway the grade of which is changed; and, so far as such personal liberty or right is concerned, it may so change the grade that an adjoining individual lot-owner may be cut off from all opportunity for direct entry upon the highway. And such an alteration of the grade of a street or highway may so far be held lawful, without a resort to the legal fiction that at the original taking of the land for highway purposes compensation was made which covered by contemplation all possible changes of grade, which in a thousand instances is not the fact, but upon the principle which lies at the bottom of most of the political ordinances of this country,--that the convenience of the few must give way to the wants of the many. But the whole theory of the legality of measures which impose burdens and losses upon individuals is that they are in fact so imposed, in the judgment of the legislature, for the public good, and not the specific good of other individuals, or specified persons, natural or corporate.

But, in addition to the personal right spoken of as belonging to an individual as a citizen or an inhabitant of the state,--that is, the right of free locomotion on the public roads,--the owner of a lot of land abutting on a highway or public street has another peculiar right connected with his ownership of the lot of land and connected with the highway, which is a proprietary right. It has been recognized by the courts of this state and several other states of the Union, by the legislatures of many of them, and by the courts of England. It was determined in the Story Case, 90 N.Y. 122, to be a proprietary right, an easement in the street or highway attached to the estate or ownership of the abutting lot of land or to the land. It is held to be property which cannot be appropriated to the use of the public without compensation. The right attaches to every parcel of land in the state which abuts on a highway; and every man in the state is concerned, as owner, tenant, or occupant, in the preservation of the right. The principle of the right is as general and extensive, and as much entitled to state regard, as the aggregate of the personal rights of the inhabitants to travel on the public roads, called the "rights of the public." Generally speaking, all the movements of people upon the public roads end in adjacent pieces of land as termini. Roads have a connection with the safety of the state, but are created mainly for the better business and social communication of the occupants of the contiguous soil. The rights of the public in the highways are said to be superior to the rights of individuals as abutting owners, but in the quality of their importance they are not superior. But the peculiar right of the lot-owner is something different from the mere right to go out from his premises upon the street and return from the street to his premises, for those are things which he may do by virtue of and in the exercise of that civil right which he holds in common with all the inhabitants of the state. What, then, is the quality, and what are the dimensions, of that peculiar proprietary right which belongs to him by virtue of his ownership of the abutting lot of land? It would seem to be something given from necessity or justice for the sake of the continual beneficial enjoyment of his estate. The beneficial use of his property--which is the thing of value for which a man pays a consideration when he buys a parcel of land--extends within the lines of the highway, and embraces, as was well settled by the Story Case, the light and air of heaven, and that other something which has been called "access." As remarked, that easement of access cannot be the mere right of going out from his home or place of business upon the street and returning therefrom upon his own land, which he may do by virtue of his personal liberty. But does not "the right of access" mean a certain convenience in the use of his property with respect to the rest of the world? If the land-owner is a trader, an hotel-keeper, a manufacturer, is not his easement somewhat commensurate with the uses to which his property is devoted? "An abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property which belong to him by reason of its location and are not enjoyed by the general public, such as the right of free access to his premises, and the free admission and circulation of light and air to and through his property." Lahr v. Railroad Co., 104 N.Y. 268, 291, 10 N.E. 528. Public roads are created for the business and social reciprocity of all those whose dwellings and establishments everywhere border upon them. The easement or right of access would seem to include the opportunity for a man's customers to come to his place of business without unreasonable hindrance or interruption. A property devoted to business is of little value when business is turned away by obstructions and barriers. In cities, especially, buildings as places of business are erected on the marginal line of the street. I suppose that is lawful. The customs of the age sanction such construction, and consequently sanction the reasonable use of some portion of the street in front of the premises, and sometimes perhaps beyond, (Collieries Co. v. Gibb, 5 Ch. Div. 713,) for business transactions. Express wagons may drive up, and stand a reasonable time to unload or receive merchandise. Coaches and carriages may stop there to set down or take up passengers. Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264. Friends and customers may go into and out from his house without hindrance, except so far as they may be delayed by the legitimate public use of the street. The owner may stand his teams and wagons in the street in proximity with his land a reasonable length of time, in a reasonable manner, and, as I take it, may occupy a portion of the street, reasonably, convenient for his purposes. And I take it to be a general rule that this access is broad enough for the beneficial enjoyment of his property; that, if his place of business is situated so as to invite trade and custom from the opposite side of the street, or from places on the street beyond in either direction, such patronage ought not to be turned away from him by...