Rumsey v. New York & N.E.R. Co.
| Decision Date | 17 January 1893 |
| Citation | 32 N.E. 979,136 N.Y. 543 |
| Parties | RUMSEY et al. v. NEW YORK & N. E. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, second department.
Action by Harriet S. Rumsey and others against the New York & New England Railroad Company for damages by obstructing plaintiffs' means of access to the Hudson river. Plaintiffs had judgment for nominal damages, which was affirmed at general term, (without opinion,) and they appeal. Reversed.
For report on former appeal, see 30 N. E. Rep. 654.
Henry H. Hustis, ( Milton A. Fowler, of counsel,) for appellants.
W. C. Anthony, for respondent.
This case has been here once before, and is reported in 133 N. Y. 79, 30 N. E. Rep. 654. The court upon that appeal reversed the judgment in favor of the plaintiff, and granted a new trial; and this appeal is from a verdict in favor of the plaintiff taken upon that new trial, under the direction of the court, for six cents damages. It was assumed upon this last trial that the rule of damages as laid down by this court on the former appeal led necessarily to the result directed by the court. In this view we think there was error. The rule as laid down by us did not preclude the plaintiffs from showing what was the fair rental value of the property without the presence of the obstruction of access to plaintiffs' property from the river, caused by the defendant's railroad. On the former appeal we held that the plaintiffs could not recover what were speculative damages, caused, as they alleged, by the defendant in obstructing the plaintiffs' use of the premisesfor brickmaking purposes, when it appeared that plaintiffs had abandoned that use of the land years before the defendant created the obstruction in question, and the premises had not since been in a condition to be so used, even if the obstruction were not there. It was said that the basis for an estimate of the damage must be found by reference to the land as it was used during the time embraced in the action. The facts showed that it was assumed the land could not have been used for a brickyard during this time, because of plaintiff's long abandonment of such use, and the decay of the dock at the westerly end of the culvert, and also the decay of a part of the causeway, and the absence of buildings and machinery fit for brickmaking purposes. In such case the possible use of the land for a brickyard was regarded as dependent upon outlays not made, or, so far as shown, not contemplated, by plaintiffs; and hence, within the principles of the Tallman Case, 121 N. Y. 119, 23 N. E. Rep. 1134, that use was not to be taken into consideration. It was not meant to restrict the recovery to the rental value of the land as actually used, and for that purpose only, but any evidence going to show the actual rental value of the land as it was-that is, in the same general condition-would be proper, although not restricted to such rental for the use to which it in truth was put during that time. Otherwise, if the land had not been in actual use, then no damage would be recoverable, although the value of the use of the land in...
To continue reading
Request your trial
-
Shively v. Bowlby
...436, 11 N. E. 829; Kane v. Railroad Co., 125 N. Y. 164, 184, 26 N. E. 278; Rumsey v. Railroad Co., 133 N. Y. 79, 30 N. E. 654, and 136 N. Y. 543, 32 N. E. 979. The law of New Jersey upon this subject was recognized and clearly stated in a recent judgment of this court, in which a grant by c......
-
DeSalme v. Union Electric Light & Power Co.
...85 S.C. 1 (66 S.E. 117, l. c. 118); Knight v. Chicago Ry., 122 Mo.App. 38; Goelet v. National Surety Co., 249 N.Y. 287; Rumsey v. N. Y. & N.E. R. R., 136 N.Y. 543. (c) the premises would rent or are adapted for. Reeves v. Romines, 132 Ark. 599; Brewington v. Hart, 150 N.C. 269, l. c. 275; M......
-
Saunders v. New York Cent. & H.R.R. Co.
... ... Except for the prior grant, the power to patent to the railroad was assumed. In the Rumsey Case, when it first came before the Second division, it was held that a railroad company that had constructed its roadbed along [144 N.Y. 87]the ... ...
-
Reisert v. City of New York
...after it was cut. The difference is the damage. Argotsinger v. Vines, 82 N. Y. 308. It is also illustrated in Rumsey v. N. Y. & N. E. R. Co., 136 N. Y. 543, 32 N. E. 979, where a railroad company, without having acquired the rights of an owner of land bounded on a navigable river, had const......