Village of Haverstraw v. Eckerson

• Decision Date: 14 April 1908
• Citation: 84 N.E. 578,192 N.Y. 54
• Parties: VILLAGE OF HAVERSTRAW v. ECKERSON et al.
• Court: New York Court of Appeals Court of Appeals

192 N.Y. 54

84 N.E. 578

VILLAGE OF HAVERSTRAW

v.ECKERSON et al.

Court of Appeals of New York.

April 14, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action for injunction by the village of Haverstraw against J. Esler Eckerson and others. From an order of the Appellate Division (108 N. Y. Supp. 506) affirming an interlocutory judgment overruling a demurrer to the complaint, defendants appeal by permission. Affirmed.

Appeal from an order of the Appellate Division in the Second Judicial Department affirming an interlocutory judgment, which overruled a demurrer to the complaint. Permission was given to appeal to this court, and the following questions were certified:

‘First. Has a village incorporated under the general village law capacity to maintain an action in equity to restrain threatened injury to a public street?

‘Second. Has such a village the right to maintain an action in equity to restrain the taking down, removing, or otherwise interfering with the lateral support of a public street by the lands of a defendant abutting on such public streets?

‘Third. Has the public any right to the lateral support of the adjacent land abutting upon but wholly outside of the lines of such public street for the purpose of sustaining the bed of the public highway?

‘Fourth. Is the land belonging to a private individual adjacent to a public highway, but wholly outside the lines of such public highway, subject to the burden in favor of the public of affording lateral support to such public highway?

‘Fifth. Does the complaint in this action state sufficient facts to constitute a cause of action?

‘Sixth. May the plaintiff, a municipal corporation, maintain this action against the defendants under all the facts and circumstances alleged in the complaint?’

The complaint alleges that the plaintiff was incorporated under the former village law of the state, and that it is subject to the present general village law, as enacted in 1897. Laws 1897, p. 366, c. 414. It sets forth the jurisdiction of the plaintiff's board of trustees over its public streets and highways, the existence of a certain street known as ‘Jefferson street,’ which, with other streets and highways, had been established and dedicated for the public use, and had been duly accepted by the plaintiff, the public use of the streets for more than 50 years, under the jurisdiction and control exercised by the plaintiff's officers, and the ownership by the defendant Eckerson of certain lands adjacent to Jefferson street. It alleges that the defendants have wrongfully and unlawfully excavated and removed clay, sand, and other materials from Eckerson's land, adjacent to Jefferson street for use in brickyards, and have interfered with, endangered and destroyed the lateral support of said street, encroaching upon it, and rendering it unsafe for passage, and creating by reason thereof, a public nuisance. It alleges that they are still engaged in such acts, that they threaten and intend to continue the same, and that, by reason thereof, the street ‘is greatly endangered and rendered liable to slide and cave into such excavations,’ and that the properties of various persons on that side of the street are likewise in danger. Judgment is demanded enjoining and restraining the defendants ‘from excavating and removing clay, sand, and other materials from the land * * * adjacent to Jefferson street, so as to cause said street * * * to subside or slide down into the excavations upon said adjoining property,’ from ‘interfering with the lateral support of said street,’ and requiring them to ‘restore said street to its former and original condition, * * * and to restore the lateral support thereof where the same has been removed or otherwise interfered with.’ The defendants demurred to the complaint for want of legal capacity in the plaintiff to maintain the action, and for the insufficiency of the facts atated to constitute a cause of action.Henry Bacon, for appellants.

Alonzo Wheeler, for respondent.

GRAY, J. (after stating the facts as above).

The questions presented by this appeal are simply whether the village of Haverstraw has the legal capacity to maintain an action for equitable relief, and, if it has, whether a cause of action is made out upon the allegations of its complaint. I think that the Case the judgment, which we upheld, restrained in the case of Village of Oxford v. Willoughby, 181 N. Y. 155, 73 N. E. 677. Upon its authority, as in reason, we must hold that a municipal corporation may resort to a court of equity for the preservation of its streets and highways, and for the protection of the rights of the public therein, when their permanency and the public use thereof are menaced. In the Village of Oxford's Case the Judgment, which...