I agree with Judge VANN's memorandum of dissent.
Under the judgment about to be made the city could bridge Fifth avenue, from 110th street to Washington Square, at a level above the heights of the adjoining structures, thereby impairing the light, air and access of every residence and ousiness building, and under the plea of a street use escape all liability for damages. If this can be done it simply amounts to confiscation.
The prevailing opinion cites Radcliff's Executors v. Mayor,etc., of Brooklyn (4 N.Y. 195), and the line of cases following it, which hold that the legitimate change of the grade of a street to the damage of abutting lot owners is damnum absqueinjuria.
In the case at bar there is no change of grade; it is stipulated in the case as follows: "The grade and surfaces of 155th Street and 8th Avenue, in front of the plaintiff's premises, as they existed on June 15th, 1887, have not been changed by the erection of the viaduct, and the said surfaces of said streets remain as before, open to the public, except for the obstruction by the columns of the viaduct as before stated."
It is thus apparent that the change-of-grade cases have no application. *Page 35
It is to be said of these cases that they involve a principle that has been condemned in many jurisdictions and the hardship of which has been cured in some of the states by constitutional amendment providing for the payment of such damages. It is a doctrine which ought not to be extended.
In Reining v. N.Y., L. W. Ry. Co. (128 N.Y. 157, 164) Judge ANDREWS, in applying the law of the elevated railroad cases, as laid down in the Story case, said: "It is no longer open to debate in this state that owners of lots, abutting on a street, the fee of which is in the municipality for street use, although they have no title to the soil, are nevertheless entitled to the benefit of the street in front of their premises for access and other purposes, of which they cannot be deprived except upon compensation."
I am of opinion that the structure in the case before us is a bridge built along and above a street and cannot be regarded as a "street use."
If such an erection can be permitted to exist, it falls within the doctrine of the elevated railroad cases, and notwithstanding the title of the streets is in the city, the abutting owner is entitled to compensation for such damages as he has suffered.
CULLEN, Ch. J., GRAY and O'BRIEN, JJ., concur with HAIGHT, J.; VANN and BARTLETT, JJ., read dissenting opinions; WERNER, J., absent.
Judgment affirmed.