Rumsey v. New York & N.E.R. Co.

• Decision Date: 12 April 1892
• Parties: RUMSEY et al. v. NEW YORK & N. E. R. Co.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 79

30 N.E. 654

RUMSEY et al.

v.NEW YORK & N. E. R. Co.

Court of Appeals of New York.

April 12, 1892.

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 for obstructing plaintiffs' means of access to the Hudson river. From a judgment of the general term affirming a judgment of the special term for plaintiffs, defendant appeals. Reversed.

W. C. Anthony, for appellant.

H. H. Hustis, for respondents.

O'BRIEN, J.

This appeal involves two important questions: (1) The rule of damages applicable generally to such cases; and (2) the right of the plaintiffs to recover anything for the period prior to March 3, 1885. The plaintiffs are, and for more than 20 years have been, the owners of about 40 acres of land on the east bank of the Hudson river at Fishkill, bounded on the west by the river, and covering about 1,000 feet of the river front. It also appears that on the 3d of March, 1885, the state, pursuant to a resolution of the commissioners of the land-office, granted to the plaintiffs the lands under water, adjacent to and in front of the uplands, from high-water mark westerly to the channel bank of the river, excepting therefrom the rights of the New York Central & Hudson River Railroad Company. This railroad, it seems, was constructed across the water front prior to or about the year 1854, and since that time the plaintiffs and their grantors have used a strip of land, leading from the uplands through a culvert under the Hudson River Railroad to the channel of the river, for loading vessels with brick made on the premises, and for all purposes connected with the manufacture of brick on the premises, with the consent of the Hudson River Railroad, until such use was obstructed by the building of the defendant's road-bed. This was built in the years 1880 and 1881, outside of and nearly parallel with the orad-bed of the Hudson River road, in front of the culvert above described, and along the whole river front of plaintiffs' land, without any right or authority from the plaintiffs or their grantors. The effect of this was to cut off the plaintiffs from access to the river from their lands. The plaintiffs' title to the uplands and the land under water, where the defendant's road is built, has been determined in their favor by the decisions of this court. Rumsey v. Railroad Co., 114 N. Y. 423, 21N. E. Rep. 1066, 125 N. Y. 681, 25 N. E. Rep. 1080. The principles applicable to actions of an equitable character to restrain the operation or maintenance of such structures, when the facts amount to a continuing trespass against the rights of adjacent property owners, are not involved, as the plaintiffs have not adopted that form of obtaining relief. Galway v. Railroad Co., 128 N. Y. 132, 28 N. E. Rep. 479; Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536.

In this action the plaintiffs seek to recover damages to their uplands sustained by the act of the defendant in constructing its road-bed across the plaintiffs' water front, and thereby cutting off their access to the river, and such damages are claimed from the time of the construction of the railroad to the commencement of the action. The court assessed the damages at $10,500. This result was reached upon the theory that the use of the plaintiffs' premises for the purpose of a brick-yard had been depreciated to that extent in consequence of the construction of the defendant's road. At the same time the court found that the culvert, as a passageway, was discontinued about the year 1875, and the dock, at the westerly end of the culvert, was allowed to go to decay, as was also the causeway which connected the dock with the brick-yard; that the plaintiffs' lands had no buildings or machinery on them to fit them for use for brick-making purposes, and that they had been in this situation since the year 1875; and that the defendant had in no wise injured the plaintiffs' lands, except only to prevent or delay the sale of the clay thereon for brick-making purposes. It appears, therefore, from these findings, that the use of the premises for brick-making or as a brick-yard had been discontinued six years before the defendant's road was built. The plaintiffs asked to recover in this action only such damages as they have sustained, up to the commencement of the action, by reason of the acts complained of. As a basis for the estimate, the land must be taken as it was used during the time embraced in the action. It does not appear that the use of the premises as a brick-yard was discontinued in consequence of the acts of the defendant, and that fact could not well be established, for it ceased to be used for such purpose long before the defendant's road was built. The proper measure of damages in such a case is the diminished rental or usable value of the property as it was, in consequence of the loss, by defendant's acts, of access to the river, in the manner enjoyed by the owner prior to the construction of the embankment across the water front by the defendant. The plaintiffs cannot be permitted to prove, or allowed to recover, damages that they might have sustained if they had put the property to some other use or placed other structures upon it. Tallman v. Railroad Co., 121 N. Y. 119, 23 N. E. Rep. 1134. The damages could not be based upon the rental or usable value of the property for a brickyard, any more than they could be based upon their use for some other specific or particular purpose to which they were not in fact put by the owners. The question is, what damages did the plaintiff in part suffer by having the access to the river cut off? not what they might have suffered had the land been devoted to some particular use to which it was not put.

The proof of damages, on the part of the plaintiffs, consisted entirely of the opinions of witnesses as to the rental value of the land in the absence of the structure built by defendant. This proof was competent as far as it went, but it did not establish the legal measure of damages. It should also have been shown what was the rental or usable value of the premises as they were, with the obstruction which interfered with the access to the river, as the difference in these two sums represented the actual loss caused by the defendant's acts.

The defendant offered to prove the additional cost of shipping brick to market upon the river, rendered necessary by the construction of the embankment. This testimony was objected to by the plaintiffs, and excluded by the court, to which the defendant excepted. This ruling was erroneous. The additional expense, caused by the defendant's structure in the river, of transporting brick, or any other product of the land, to market, was an important element of the damage sustained, and the defendant should have been permitted to prove the facts in that regard, at least by way of answers to plaintiffs' theory of damages. The method adopted of establishing the plaintiffs' damages, therefore, demands a reversal of the judgment.

The plaintiffs were permitted to recover for more than four years prior to their grant of the land under water, on the 3d of March, 1885. During this period the plaintiffs' rights were those of ordinary riparian owners on the banks of navigable rivers. They owned the uplands bounded by the river, and as such owners had the right, under the statute, to apply to the commissioners of the land-office for a grant of the land under water in front of their premises. In this respect and on this branch of the case the facts are identical with those in the case of Gould v. Railroad Co., 6 N. Y. 522. If that case is to be followed, the plaintiffs cannot recover any damages prior to March 3, 1885. It was there held that the owner of lands on the Hudson river has no private right or property in the waters or the shore between high and low water mark, and therefore is not entitled to compensation from a railroad company which, in pursuance of a grant from the legislature, constructs a railroad along the shore, between high and...