Sauer v. City of New York
Decision Date | 06 December 1904 |
Citation | 180 N.Y. 27,72 N.E. 579 |
Parties | SAUER v. CITY OF NEW YORK. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by George W. Sauer against the city of New York. From a judgment of the Appellate Division (85 N. Y. Supp. 636) affirming a judgment in favor of defendant, plaintiff appeals. Affirmed.
Abram I. Elkus and Carlisle J. Gleason, for appellant.
John J. Delany, Corp. Counsel (Theodore Connoly, of counsel), for respondent.
This action was brought to enjoin the defendant from using a viaduct constructed in 1893 along 155th street, with approaches from 8th avenue, in the city of New York, to compel the removal of the same, and to recover damages. The plaintiff is the owner of premises situated on the southwesterly corner of 8th avenue and 155th street, on which he maintained a frame building known as the ‘Atlatic Casino,’ as a public resort for recreation and amusement, until the same was destroyed by fire in 1897. The city of New York is the owner in fee of 155th street and 8th avenue, and holds the same in trust for the public as highways. 155th street had been regulated and graded from 8th avenue westerly to Bradhurst avenue, which runs along the foot of a bluff about 70 feet high. The street, as laid out on the records, ascends the bluff, and continues on westerly to the North river, but it had never been opened and graded from Bradhurst avenue up the bluff to St. Nicholas Place. A bridge known as ‘McComb's Dam Bridge’ had been constructed over the Hariem river at the easterly end of 155th street, and from that bridge to Bradhurst avenue was substantially a level plain.
The Legislature, by chapter 576, p. 787, of the laws of 1887, authorized the commissioner of public works of the city of New York, with the approval of the board of estimate and apportionment,to improve 155th street by erecting an elevated iron roadway, viaduct or bridge from the top of the bluff at St. Nicholas Place over 155th street to McComb's Dam bridge, with the necessary abutments and arches over intersecting avenues, and approaches thereto for the passage of animals, persons, vehicles, and traffic. Subsequently the viaduct or bridge complained of was constructed according to the provisions of this act. In front of the plaintiff's premises it is 50 feet above the surface of 155th street as originally graded. The surface of the street as it existed prior to the construction of the viaduct has not been changed, but remains unobstructed for public travel, except as interfered with by the necessary abutments upon which the viaduct rests and the stairway leading thereto.
The plaintiff has undoubtedly suffered consequential damages by reason of the construction and maintenance of the viaduct, for which the Legislature might properly provide. His ingress and egress, together with the free and uninterrupted circulation of air and light, have been impaired, and the value of his property has been decreased by reason of dust, dirt, and noise occasioned by the structure. It may be that he has a remedy under existing statutes, but that question we are not now called upon to determine. The question now before us is whether he is entitled, as a matter of right, to the injunction prayed for and for the damages suffered. It has been found as a fact upon the stipulation of the parties that long ‘prior to the year 1886 (the time when the plaintiff became the owner of the lands in question) the title in fee simple to the lands included within the lines of 8th avenue and 155th street had been duly acquired according to the statutes in such case made and provided, and its ancient grants and charters, by the mayor, aldermen, and commonalty of the city of New York, and these streets were duly designated as public streets and highways according to law, and were used and maintained as such streets and highways in the city and county of New York.’ The fee of the street having been acquired according to the provisions of the statute, we must assume that full compensation was made to the owners of the lands through which the streets and avenues were laid out, and that thereafter the owners of lands abutting thereon hold their titles subject to all of the legitimate and proper uses to which the streets and public highways may be devoted. As such owners they are subject to the right of the public to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of public travel, especially in cities where the growth of population increases the use of the highways. The rule may be different as to peculiar and extraordinary changes made for some ulterior purposes other than the improvement of the street; as, for instance, where the natural surface has been changed by artificial means, such as the construction of a railroad embankment or a bridge over a railroad making elevated approaches necessary. But as to changes from the natural contour of the surface, rendered necessary in order to adapt the street to the free and easy passage of the public, they may be lawfully made without additional compensation to abutting owners, and for that purpose bridges may be constructed over streams and viaducts over ravines, with approaches thereto from intersecting streets.
The leading case upon this question is that of Radcliff's Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357. In that case the city of Brooklyn, in grading a street, caused an embankment to be dug away, whereby the premises of the plaintiffs were undermined and caved in, causing them heavy damage. It was held that, in the absence of proof showing a failure to exercise proper care and skill in the execution of the work, no action for damages could be maintained by the adjacent owner. Bronson, C. J., in delivering the opinion of the court, said: This case has been repeatedly followed in this state in numerous cases which have been collated and cited by Martin, J., in the case of Fries v. N. Y. & H. R. R. Co., 169 N. Y. 270, 283,62 N. E. 358. In the case of Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336, the city was engaged in constructing a tunnel under the Chicago river for street purposes. In doing the work the plaintiff's access to its wharf, in the navigation of the river, as well as its access to its warehouse from the street, was...
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