Reining v. York

• Decision Date: 06 October 1891
• Citation: 128 N.Y. 157,28 N.E. 640
• Court: New York Court of Appeals Court of Appeals
• Parties: REINING et al. v. NEW YORK, L. & W.R. Co. Strasser et al. v. Same. Jeaume et al. v. Same.

128 N.Y. 157

28 N.E. 640

REINING et al.

v.NEW YORK, L. & W.R. Co.

Strasser et al.

v.Same.

Jeaume et al.

v.Same.

Court of Appeals of New York.

Oct. 6. 1891.

OPINION TEXT STARTS HEREAppeal form superior court of Buffalo, general term.

Action by John Reining and another against the New York, Lackawanna & Western Railway Company. A judgment for plaintiffs, entered on the verdict of a jury, was affirmed on appeal by defendant to the general term of the superior court. Defendant against appeals.

13 N.Y.Supp. 238, affirmed.

Earl and Finch, JJ., dissenting.

John G. Milburn, for appellant.

David F. Day, for respondents.

ANDREWS, J.

The principal question in this case respects the rights of the plaintiffs, as abutting owners, to recover damages occasioned by the construction of the defendant's road in Water street, in the city of Buffalo. The plaintiffs' premises are situated on the northerly side of Water street, and are bounded easterly by Commercial street, westerly by Maiden lane, and southerly by Water street, and occupying the whole lot is a four-story brick building used as a store and residence, constructed before the railroad was placed in Water street. Water street runs easterly and westerly, and has existed for more than 40 years. Up to 1875, the plaintiffs owned the fee to the center of the street opposite their premises, subject to the public easement. In that year proceedings were taken by the city of Buffalo to acquire the title to a large number of streets in Buffalo, including Water street, by condemnation, and resulted in the city acquiring the title, upon payment of a uniform and nominal award of five cents damages to each of several hundred owners of lots on the streets taken, including the plaintiffs. In 1882 the common council of the city of Buffalo by ordinance granted to the defendant the right to construct and maintain two railroad tracks. “along Prince street, to a point midway between Hanover street and Lloyd street; thence across Lloyd street, at such grade as will permit said company, with a practical construction, to cross Commercial slip at the height fixed by the state engineer; thence, to and along the center of Water street, to the docks of the Delaware, Lackawanna & Western Railroad Company at the foot of Erie street.” Commercial slip is a part of the Rie canal, and separates Prince street and Water street, and together they form a continuous street, except as it is interrupted by Commercial slip. The defendant, in pursuance of the permission of the common council, and in accordance with the map and profile approved by the council, and under the direction of the city engineer, proceeded to raise the grade on Prince street so as to enable the company to cross Commercial slip by a bridge 14 feet above the waterline, the height fixed by the state engineer, and to meet this grade of the bridge constructed an embankment in the center of Water street from the bridge westerly for the distance of 300 feet, passing the plaintiffs' premises. Water-Street side of the plaintiff's lot occupies 14 feet. The embankment of the defendant is 24 feet wide, and at the junction of Water and Commercial streets (at the corner of which is the plaintiff's lot) it is 5 feet 9 inches high, and from that point descends westerly, by a gradual descent, passes the plaintiffs' lot, and across Maiden lane, and reaches the original level of the street nearly 300 feet west of the corner of Commercial and Water streets. The embankment is supported laterally by solid, perpendicular stone walls, which extend along Water street in front of the plaintiff's lot, and across the entrance of Maiden lane. Between the perpendicular stone wall on the northerly side of the embankment and the sidewalk in front of the plaintiff's building is a space only 8 to 9 feet wide, which is the only carriage-way left on the Water-Street side of the plaintiff's premises. Commercial street extends northerly and southerly from Main street to Buffalo harbor. The raising of the embankment in Water street rendered it necessary to make an embankment in Commercial street to meet the grade of the railroad, and this was done by the defendant. The defendant paved the surface of the 24-feet strip in Water street occupied by its embankment, and laid there on part of the way one track, and part of the way two tracks, for the accommodation of its business. Carriages or teams cannot cross Water street in front of plaintiff's premises. This is prevented by the embankment. Access to their premises on the Water-Street side, from Commercial street south of Water street, is also prevented, except by first crossing Water street, and then passing along the embankment on Commercial street 130 feet, and then turning into the road-way on Commercial street between the embankment in that street and the sidewalk, and thence into Water street, or else, when reaching the junction of Commercial and Water streets, by turning west, and driving down the embankment along the railroad tracks, about 300 feet, to the end of the grade, and then turning, and going westerly along the narrow road-way, 8 or 9 feet wide, on the northerly side of the embankment. This space is not sufficient to allow wagons to pass each other, nor can a single wagon with horses be turned around in this space, except with difficulty. It was conceded that the plaintiffs, up to the time of the trial, had sustained damages, in the diminished rental value of their premises by reason of the embankment, in the sum of $525, for which sum a verdict was rendered, and no question now arises as to the rule of damages or the amount, provided, upon the facts, damages are legally recoverable.

The counsel for the defendant rests his claim that two general propositions-versed upon two general propositions-First, that the laying of tracks for the running of cars by steam on the grade of a city street, and the operation of trains thereon under legislative and municipal authority, where the fee of the soil is in the municipality, violates no property rights of an abutting owner, and consequently, in the absence of a special statute authorizing compensation, he is without remedy, although his property may be injured; and second, that the erection of the embankment to accommodate the street to the use of the defendant was merely a change of grade which it was competent for the city to authorize in its discretion, and that such change of grade, although it damaged the plaintiffs' property, was, within the Case of Radcliff's Ex'rs, 4 N.Y. 195, damnum absque injuia. The tracks, it is said, were placed on the new road and therefore on the surface of the street; and the case, it is claimed, is not distinguishable in principle from what it would have been if, without any change of grade, the tracks had been laid on the original surface of the street. There is a third subordinate defense insisted upon, viz., that the charter of Buffalo gives a special remedy for injuries to lot-owners from a change of grade of streets, and that this remedy is exclusive, and was the only one open to the plaintiffs.

The first proposition is sustained by our recent decision in Fobes v. Railroad Co., 121 N.Y. 505, 24 N.E.Rep. 919. Prior to that decision it had been decided in People v. Kerr, 27 N.Y. 188, and in Kellinger v. Railroad Co., 50 N.Y. 206, which followed it, that the laying of horse railroad tracks in the street of the city of New York, the fee of which was in the city, was consistent with their use as public, open streets, and with the trust upon which the streets were held, and that abutting owners had no remedy for any consequential injuries they might sustain from the construction and operation, under legislative authority, of a horse railroad in the street, in the absence of any negligence. The case of Williams v. Railroad Co., 16 N.Y. 97, was that of a steam railroad over lands previously dedicated by the owner for a street, where he retained the fee; and it was held that such a use was not within the scope of the dedication, and that the legislature could not authorize such use except on condition of making compensation to the owner of the fee. The same doctrine was applied, under similar circumstances, to the case of a horse railroad in Craig v. Railroad Co., 39 N.Y. 404. The later cases, as will be observed, decide the principle that neither a horse nor steam railroad can be authorized, in streets the fee of which is in the adjacent owner, without his consent; while the former cases hold that, where the fee is in the municipality, horse railroads may be authorized against the will of the abutting owner, and without making compensation. The distinction is made to rest on the location of the fee. The case of Fobes v. Railroad Co., supra, presented the distinct question whether the construction of a steam surface railroad, part of a long line of railroad, on the ordinary grade of a street, under legislative authority, subjected the company to liability for consequential injuries to the lot of an abutting owner whose lot was bounded by the side of the street, and who had no title to the soil therein. It was argued on behalf of the plaintiff that the cases relating to horse railroads were not applicable by reason for their different purpose, such railroads being primarily designed for street traffic, and steam railroads, such as that then in question, for ordinary railroad traffic, and also that the one, by reason of the different motor, imposed a different and increased burden on the street from that imposed by the other, and interfered to a much greater extent with the enjoyment of the street by abutting owners. The opinion of Judge PECKHAM in that case contains a careful review of the street-railway cases in state, both in this court and the supreme court, and it was shown that it had become the settled doctrine of our courts that, as against abutting owners having no title to the bed of the street it was competent for the legislature to...