Robert v. Sadler

• Decision Date: 18 January 1887
• Citation: 10 N.E. 428,104 N.Y. 229
• Parties: ROBERT v. SADLER and others.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 229

10 N.E. 428

ROBERT

v.SADLER and others.¹

Court of Appeals of New York.

January 18, 1887.

Appeal from general term, supreme court, Second department.

Action brought by Jane Robert to restrain defendants, commissioners for grading Eighteenth avenue in the town of New Utrecht, King's county, and a contractor, from digging pits in the line of the avenue on plaintiff's land, and carrying away gravel therefrom to use on the avenue.

John D. Pray, for appellant.

William Sullivan, for respondent.

FINCH, J.

The constitutional question in this case has been decided against the appellant in Hubbard v. Sadler, ante, 426, which respected the laying out and opening of the same street or avenue involved in this appeal. But a further question, not in that case, is raised in this. The findings of fact establish that the grade of the avenue was fixed, and a contract for its construction made, with one Curran. By the terms of that contract he was required to cover the roadway, to the depth of 15 inches, with gravel, hard-pan, or other materials approved by the commissioners. The land within the road lines crossing plaintiff's premises was higher than the grade fixed, and required a removal of the earth to the depth of such grade, and possibly 15 inches below it. The contractor not only removed this material above grade, and used it upon the avenue for the purpose of filling and construction, but he dug pits in the roadway to a depth of six feet below the grade, in order to get gravel with which to perform his contract without paying for it; and it is found that these pits thus made are ‘intended and required’ to be filled up again with earth before the avenue is completed. The complaint alleges that the pits were dug on ‘the sidewalk of said avenue,’ and the answer admits that ‘the gravel pits of which the plaintiff complains have been dug for the purpose of obtaining gravel to be used on the roadway.’

It is conceded that the public took only an easement for a street or avenue over plaintiff's premises, and that he retained the fee in that part of the land on which the pits were dug. The justification which has succeeded goes upon the ground that the acts complained of were embraced in the easement, and authorized by it. The question involved was properly raised by exceptions. The courts have held that where, to reach and prepare the surface of the road in accordance with its grade line, superincumbent material is necessarily removed, it may be used upon other parts of the road, and on the premises of other land-owners; and that, where there has been no negligence in construction, consequential injuries necessarily resulting cannot be recovered. It was said in Pumpelly v. Green Bay Co., 13 Wall. 181, that this class of decisions ‘have gone to the uttermost limit of sound judicial construction,’ and ‘in some cases beyond it.’ The observation was just. To take merely an easement in land, leaving the fee in the owner, and then, by advancing stages of judicial endurance, sap the value and utility of the fee by adding its benefits to the easement, is scarcely consistent with a policy which is at the same time sedulously protecting the rights of the abutters having no fee in the street whatever, to their easements of light and air and access.

It is perfectly well settled that, in a case like the present, the public acquire only a right of way, with the powers and privileges incident to that right, (Jackson v. Hathaway, 15 Johns. 452;) and that the owner of the fee retains his exclusive right in all mines, quarries, springs of water, timber, and earth for all purposes not incompatible with the right of way. The question in every case turns upon what is ‘incident’ to the construction or maintenance of the right of way.

In Higgins v. Reynolds, 31 N. Y. 156, stone was taken from the limits of a highway,...