At the threshold of this case is presented the inquiry whether the plaintiff's lot extends to the center of Front street. I think it does not, and in reaching this conclusion I assume, without deciding it, that the city, by its deeds of conveyance in 1773, granted the fee of the land where the street now is to Ellison and De Peyster. Those deeds provided that the grantees should make certain streets through the lands conveyed, among which was the present *Page 180 Front street, and that the streets after they were made should "forever thereafter continue and be for the free and common passage of and as public streets and ways for the inhabitants of the said city, and all others passing and returning through or by the same in like manner as the other streets of the same city now are or lawfully ought to be," and they contained a covenant that the grantees, their heirs and assigns, or some of them, should and would from and immediately after the streets were made and finished "forever thereafter, at his and their own proper cost, charge and expense, keep the same, from time to time, in good and sufficient repair, plight and condition." There is no evidence that the owners of the lots ever kept Front street in repair, but the evidence tends to show that the city from an early period kept it in repair either with its corporate funds or with funds realized by it from assessments upon the lot-owners. The intermediate deeds of the plaintiff's lot prior to the deed to him are not found in the case. But in the deed to him dated December 18, 1849, the lot is described as follows: "All that certain lot of land situate, lying and being in the first ward of the city of New York aforesaid, bounded northerly in front by Front street aforesaid, easterly by ground conveyed by John S. Conger and Sarah, his wife, to Elias H. Herrick by deed bearing date the first day of May, 1839, southerly by ground now or late of the said Elias H. Herrick, and westerly by Moore street aforesaid, containing in breadth in front in Front street thirty feet four and a half inches, and in the rear twenty-eight feet ten inches, and in length on either side eighty feet, be the same more or less." These precise measurements in feet and inches extend to the sides of the two streets only, and under such circumstances, how must the description in the deed be construed? It is a presumption of law that a conveyance of land bounded upon a highway carries with it the fee to the center of the highway as part and parcel of the grant, and the intention of the grantor to withhold his interest in a highway to the center of it, after parting with all his right and title to the adjoining land, is never to be presumed. But a grantor of *Page 181 land abutting on a highway may reserve the highway from his grant, and such reservation will be adjudged, when it clearly appears from the language of the conveyance that it was intended. (Jackson v. Hathaway, 15 Johns. 447; Fearing v. Irwin, 4 Daly, 385; English v. Brennan, 60 N.Y. 609; White's Bank ofBuffalo v. Nichols, 64 id. 65; Kings County Fire Ins. Co. v.Stevens, not yet reported [87 id. 287]; Tyler v. Hammond, 11 Pick. 193; Union Burial Ground v. Robinson, 5 Whart. 21.)
In Jackson v. Hathaway the description in the deed was "a certain tract of land beginning at a certain stake by the side of the road called the old Claverack road, etc., from which stake running east, twenty degrees south, two chains to another stake; thence south, thirty-two degrees west, seventeen chains sixty-four links, and thence" by specified courses and distances to the "first-mentioned bounds," and it was held, that the description did not include any part of the road; that "if a person over whose land a highway is laid out convey the land on each side of it, describing it by such boundaries as do not include the road or any part of it, the property in the road does not pass to the grantee, as it is excluded by the description in the grant; and it cannot pass as an incident, being in itself a distinct parcel of land, and the fee of one piece of land not mentioned in a deed cannot pass as appurtenant to another." InFearing v. Irwin it was held that a description "beginning at a point on the north-easterly corner of" two streets "and running thence northerly along the north-easterly side" of one of them comes to the margin only. In English v. Brennan the description in a deed began as follows: "Beginning at the south-westerly corner of Flushing and Clermont avenues, running thence westerly, along Flushing avenue, twenty-five feet; thence southerly, at right angles to Flushing avenue, seventy-nine feet nine inches, to a point distant forty feet seven and a half inches westerly from the westerly side of Clermont avenue," and it was held that the title conveyed was confined to the margin of the streets, and, in the opinion of ANDREWS, J., it was in substance said that the presumption is *Page 182 that the owner of land abutting on a highway owns to the center, but that it is much less strong in respect to lots in large cities; that in construing a grant of land adjacent to a highway, it is presumed that the grantor intended to convey his interest in the street, but that the presumption is rebutted if it appears by the description that he intended to exclude the street from the conveyance. In White's Bank v. Nichols, it was held that where a deed described the granted premises as beginning at the intersection of the exterior lines of two streets, the point thus established controls the other parts of the description, and lines running along the streets are thereby confined to the exterior lines of the streets. In Kings County Fire Ins. Co. v.Stevens it was held that the road-bed was excluded in the following description: "Beginning at a point on the southerly side of the Wallabout bridge road and adjoining the land now or lately belonging to John Skillimore," and after certain other courses, "north, forty-eight degrees and nine minutes west, five hundred and ninety-four feet, to the Wallabout bridge road, and thence along said road one thousand two hundred and twenty-five feet, to the place of beginning." In Tyler v. Hammond it was held that where a deed of land describes it as bounded on a road, but sets forth metes and bounds which plainly exclude the road, no part of the soil of the road passes by the grant. The particular description there was as follows: "Bounded north-westerly on Ann street, there measuring thirty-one feet six inches; north-easterly on Crudert alley, there measuring fifty feet two inches; south-easterly on Dock square, there measuring twenty-eight feet six inches, and north-westerly on the estate of the late Joseph Tyler, there measuring forty-eight feet." WILDE, J., used language quite applicable to this case: "This is a very particular description of the land intended to be conveyed, in respect to which there can be no doubt or uncertainty. The lines are short and were measured, no doubt, with great exactness, and therefore a mistake in the side lines of twenty or thirty feet cannot be supposed." In the case of The Union Burial GroundSociety v. Robinson, the description in the deed there under consideration *Page 183 was very like that contained in the deed to the plaintiff. It was as follows: "Containing in breadth on Prince street" (which ran parallel with Washington street and north of it) "thirty-one feet four inches, and in length southwardly between parallel lines running at right angles with Washington street on the east line thereof ninety-eight feet six inches, and on the west line thereof seventy-three feet six inches and two-thirds of an inch, be the same in depth more or less to Washington street, where it contains in breadth east and west thirty-one feet; bounded on the north by the said Prince street, on the south by the said Washington street," and it was held that the deed did not convey any part of the soil of Washington street. KENNEDY, J., writing the opinion of the court, after laying down the rules which govern in the construction of such deeds, used language very pertinent to this case, as follows: "What is here said is particularly applicable whenever the quantity of land conveyed is small and its extent is described with great nicety, as in all conveyances almost of city or town lots or parts thereof, and in the present case the ground intended to be conveyed is described with a remarkable if not very unusual degree of nicety and minuteness, as if it were intended to preclude all possibility of including any more than came within the metes and bounds as set out, not merely in feet and inches but limited even to the very fraction of an inch."
But in addition to the precise measurements in plaintiff's deed limited not only to feet and inches but to a half inch, we have other circumstances bearing upon the construction to be given to the deed. For a long time anterior to the date of the deed Front street had become like the other streets of the city, and had been maintained and kept in repair by the city. It owned the fee of nearly all the streets within its limits, and it must have been the common practice of conveyancers to exclude the streets from the grants of adjoining lots by confining measurements to the margin of the streets. Reading the precise measurements in plaintiff's deed, in the light of these circumstances I think there is little ground for dispute that his *Page 184 grantors intended to limit their grant to the margin of the street, and that such intent should have effect is shown by the authorities above cited.
Therefore as the plaintiff did not own any of the soil in Front street, it matters not where the title to it rested. As to him, it may be treated as if it were in the city, and I shall so treat it in the further discussion of this case.
Whatever private rights then the plaintiff has in this street are such and such only as belong to him as an abutter upon the street. Such rights as he has in common with the public generally cannot be enforced in this action or in any other action in his name. It is not disputed that to maintain this action the plaintiff must show that in violation of the acts under which the defendant was organized, and of the Constitution, "private property" of the plaintiff has been taken without compensation. It is not sufficient for him to show that he is injured or suffers damage from the construction or operation of defendant's railway, or that his adjoining property is deteriorated in value. He must show that his private property is in some proper sensetaken, and to this effect are nearly all the authorities in this country, except in States where provision is made in the Constitution or laws that compensation shall be made for property damaged or injuriously affected, as well as for property taken. In Sedgwick on Statutory and Constitutional Law, 519, the learned author, speaking of the constitutional provision which prohibits the taking of private property for public use without compensation, says: "It seems to be settled to entitle the owner to protection under this clause the property must be actually taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damages, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain." In Dillon on Municipal Corporation, § 784, it is said that "although the adjoining property may be injured, still it is not, in a constitutional sense, taken for public use." InTransportation Co. v. Chicago (99 U.S. 635), Judge STRONG said that "acts done in the proper *Page 185 exercise of governmental powers and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority." In O'Connor v. Pittsburgh (18 Penn. St. 187), it was held, after two arguments of the case and much consideration, that the constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed. See, also, the cases of Hatch v. The Vermont Central R.R. Co. (25 Vt. 49), and Richardson v. The Vermont Central R.R. Co. (id. 473), where will be found a very learned discussion of the subject and many observations quite applicable to this case. The same rule is laid down inRadcliff's Executors v. The Mayor, etc., of Brooklyn (4 N.Y. 195). It was there supported by such cogent reasons and full citation of authorities as to place it beyond question in this State, and it has received the uniform sanction of our courts.
Our attention is called to two cases (Pumpelly v. Green BayCo., 13 Wall. 166; and Eaton v. The B.C. M.R.R.51 N.H. 504; 12 Am. Rep. 147), which are supposed to take a new departure in the construction of the constitutional provision we are now considering. They are spoken of in the subsequent case ofTransportation Co. v. Chicago as "the extremest qualification of the doctrine" to be found; they hold that permanent flooding of private property may be regarded as a "taking," and thus they may be justified on the ground that there was a physical invasion of the real estate of the private owner and a practical ouster of his possession.
We should not be embarrassed by any subtle meaning to be given to the word "property" in the constitutional provision. The broad meaning sometimes given to it by law writers whose definitions are more apt to confuse than enlighten, or a meaning which can be evolved only by philologists and etymologists, was probably not in the minds of the framers of our Constitution; *Page 186 they must be supposed to have used the word in its ordinary and popular signification, as representing something that can be owned and possessed and taken from one and transferred to another. In popular parlance there is a distinction betweentaking property and injuring property. If the word is to have the broad meaning given to it by Austin and certain German and French Civilians, to whose definitions our attention has been called, then it would include every interference with and injury or damage to land by which its use and enjoyment become less convenient or valuable. Such a sense has never been given to it or countenanced in any decision involving the constitutional provision as to taking private property. If the word is to have such a broad signification, then it was useless to provide in the English Land Clauses Act of 1845, that compensation should be made for land taken not only but also for land "injuriously affected," and in the Constitution and laws of some of the States that compensation shall be made for both land taken and land damaged.
I do not deem it necessary to define precisely what property rights abutting owners have in the streets of the city of New York adjoining their lots. I will assume, without deciding it, that the streets cannot be absolutely closed against their consent without some compensation to them; for the limitations upon the power of the legislature in reference to closing streets have not been precisely determined in this State. (Brooklyn ParkComm'rs v. Armstrong, 45 N.Y. 234; 6 Am. Rep. 70; Coster v.Mayor, etc., 43 N.Y. 399; Fearing v. Irwin, 55 id. 486.) If the plaintiff has an unqualified private easement in Front street for light and air and for access to his lot, then such easement cannot be taken or destroyed without compensation to him. (Arnold v. The Hudson R.R.R. Co., 55 N.Y. 661.) But whatever right an abutter, as such, has in the street is subject to the paramount authority of the State to regulate and control the street for all the purposes of a street, and to make it more suitable for the wants and convenience of the public. The grade of a street may, under authority of law, be changed and thus great damage may be *Page 187 done to an abutter. The street may be cut down in front of his lot so that he is deprived of all feasible access to it, and so that the walls of his house may fall into the street, and yet he will be entitled to no compensation (Radcliff's Executors v.The Mayor, etc., supra; O'Connor v. Pittsburgh, supra;Callender v. Marsh, 1 Pick. 418); and so the street may be raised in front of his house so that travelers can look into his windows and he can have access to his house only through the roof or upper stories, and all light and air will be shut away, and yet he would be without any remedy. The legislature may prescribe how streets shall be used, as such, by limiting the use of some streets, or the parts of streets, to pedestrians or omnibuses, or carriages, or drays, or by allowing them to be occupied under proper regulations for the sale of hay, wood or other produce. It may authorize shade trees to be planted in them, which will to some extent shut out the light and air from the adjoining houses. Streets cannot be confined to the same use to which they were devoted when first opened. They were opened for streets in a city and may be used in any way the increasing needs of a growing city may require. They may be paved; sidewalks may be built; sewer, water and gas pipes may be laid; lamp-posts may be erected, and omnibuses with their noisy rattle over stone pavements, and other new and strange vehicles may be authorized to use them. All these things may be done and they are still streets, and used as such. Streets are for the passage and transportation of passengers and property. Suppose the legislature should conclude that to relieve Broadway in the city of New York from its burden of travel and traffic it was necessary to have an underground street below the same; can its authority to authorize its construction be doubted? And for the same purpose could it not authorize a way to be made fifteen feet above Broadway for the use of pedestrians? When the streets become so crowded with vehicles that it is inconvenient and dangerous for pedestrians to cross from one side to another, can it be doubted that the legislature could authorize them to be bridged, so that pedestrians could pass over them, and that it could do this without *Page 188 compensation to the abutting owners, whose light and air and access might to some extent be interfered with? These improvements would not be a destruction of or a departure from the use to which the land was dedicated when the street was opened; but they would render the street more useful for the very purpose for which it was made, to-wit: travel and transportation. If by these improvements the abutting owners were injured, they would have no constitutional right to compensation, for the reason that no property would be taken and the injury would be merely consequential. And if the public authorities could make these improvements, then the legislature could undoubtedly authorize them to be made by quasi public corporations, organized for the purpose, as it can authorize plankroad and turnpike companies to take possession of highways and take toll from those who use them.
So in process of time railways came to be used for transportation of persons and property; and a controversy soon arose whether they could be constructed in the streets of cities without compensation to the abutting owners. It was determined that they could not, when such owners owned the fee of the street. (Wager v. The Troy Union R.R. Co., 25 N.Y. 526;Craig v. The Rochester City Brighton R.R. Co., 39 id. 404.) But where they do not own the fee they are entitled to no compensation, as no private property is taken from them within the meaning of the Constitution. That this is the rule was distinctly recognized in the two cases last cited and was adjudicated in the cases of The People v. Kerr (27 N.Y. 188), and Kellinger v. The Forty-Second Street, etc., R.R. Co. (50 id. 206). In the case of The People v. Kerr there was uncontradicted proof that the construction and operation of the railway in the street would cause serious damage to the owners of adjoining property, and that such property would be depreciated in value from twenty to twenty-five per cent, and the court found that the construction and operation of the railway "would be a material interference with and injury to the use and enjoyment of the lots fronting on said street in such manner and to such extent that the same *Page 189 would constitute a continuous private nuisance to the plaintiffs" as owners of adjoining lots; and yet it held that the abutting owners were not entitled to compensation. It was adjudged that the construction of a city railroad upon the surface of the street was an appropriation to public use; that the street was under the unqualified control of the legislature, and that any appropriation of it to a public use by legislative authority was not a taking of private property so as to require compensation to the city or abutting owners. The decision seems to have been based upon the broad ground that the legislature could authorize the land in the street which had been taken for or dedicated to a public use to be devoted to any public use whatever. But even if it did not go so far as this, it cannot be disputed that it went so far as to hold that the legislature could authorize the streets to be devoted to any public use not inconsistent with their use as streets.
In Kellinger v. The Street Railway Co. the case of ThePeople v. Kerr was approved, and it was held that the owners of property adjoining a street in the city of New York, laid out under the act of 1813, have an easement in the street in common with the whole people to pass and repass and also to have free access to their premises, but that the mere inconvenience of such access occasioned by the lawful use of the street by a railroad is not the subject of an action; and that a complaint alleging that defendant laid its track so near the sidewalk in front of the plaintiff's premises as not to leave sufficient space for a vehicle to stand, and that he and his family were thereby incommoded in leaving and returning to their residence, and the rental value of his premises was greatly depreciated, did not contain a cause of action. CHURCH, Ch. J., speaking of the case of The People v. Kerr, said: "It clearly holds that the abutting owners had no property in the street, which was taken for the railroad, for which they were entitled to compensation."
The decisions in these two cases were in no degree based upon the fact that the railways were constructed upon the surface of the streets. It can make no difference in principle whether *Page 190 the railway be on the surface or above or below the surface so long as it serves the same public purpose, to-wit: the transportation of persons and property. The principle lying at the foundation of these cases, stated most favorably to the plaintiff, is that a railway was simply a new mode of using the streets for the purpose for which they were originally made, and that if the new use produced any greater inconvenience or injury to the abutting owners than the old use, it was damnum absqueinjuria. Nor did these cases proceed upon any distinction between horse railways and those upon which steam is the motive power. If the legislature could authorize a railway to be operated in any street by horse power, it certainly must have the same right to allow it to be operated by steam, electricity or any other motive power. As stated by the learned author of Thompson on Highways, 400, "The distinction between horse railroads and those on which steam is the motive power is not made by any of the cases in the Court of Appeals, but is expressly denied by some of them, and is in conflict with the reasoning and principle of all of them." In Wager v. TroyUnion R.R. Co., SMITH, J., writing the prevailing opinion, said: "It is true that the actual use of the street by the railroad may not be so absolute and constant as to exclude the public from its use. With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property or of the increase of the burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle." In the same case, SUTHERLAND, J., in his dissenting opinion, said: "In this case the railroad, I assume, was intended to be and was operated by steam. I cannot see how that affects the question of power." In Craig v.Rochester City, etc., R.R. Co. (supra), MILLER, J., writing the opinion, said: "I am at a loss to see any apparent distinction in the application of the rule between cases where *Page 191 steam power is employed and those cases where the road is operated by horse power." Judge Dillon, in his excellent work on Municipal Corporations, vol. 2, § 577, says: "Where the fee of the street is in the municipality in trust for the public, or in the public, the control of the legislature is supreme, and it may authorize or delegate to municipal bodies the power to authorize either class of railways to occupy streets without providing for compensation either to the municipality or to the adjoining lot-owners." In Cooley's Constitutional Limitations, 555, the learned author, speaking of the appropriation of the street to the use of all kinds of railroads, says: "A strong inclination is apparent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterward to devote it in furtherance of the general purpose of the original appropriation, and if this is so, the owner must be held to be compensated at the time of the original taking for any such possible use; and he takes his chances of that use or any change in it proving beneficial or deleterious to any remaining property he may own or business he may be engaged in," and "when land is taken or dedicated for a town street it is unquestionably appropriated for all the ordinary purposes of a town street, not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants."
I think I have now sufficiently demonstrated that the legislature may authorize a surface railway operated by any motive power to be constructed in public streets, and that when the abutting owners do not own the fee of the streets they cannot claim any compensation for any inconvenience or injury caused them in the construction and operation of the railway, provided the street still remains open and practicable for the ordinary use of the public; and I am entirely unable to see why the reasoning and authorities which lead to this conclusion do not lead to the further conclusion that railways operated above the surface of the street may be authorized upon the same terms. *Page 192 An elevated railway is only a new mode of using the streets for the transportation of persons and property. It is not a change or subversion of the use for which the streets were originally opened and laid. The time came when the increasing business and population of the city of New York made the surface railroads a necessity. The time has now come when the convenience and the wants of a vast city make this new mode of travel and transportation, if not a necessity, at least a great convenience; and the devotion of the streets to the use of the elevated railways was only in furtherance of the trust and purpose for which the soil of the streets was originally dedicated or taken. If the surface railways were raised up fifteen feet in the streets and used for the same purpose for which they are now used, could not an act of the legislature make them lawful structures without compensation to the abutting owners? As relates to the question of legislative power, what difference could it make whether a railway remained upon the surface or was raised up? Are the elevated railways unlawful elevated fifteen feet above the surface of the streets, while they would be lawful lowered to the surface of the streets? The legislature in regulating any street could build an embankment fifteen feet high and then authorize a surface railroad to be built upon that, to be operated by any motive power, and the noise and dust and interruption of air and light, and disturbance of privacy might be much greater than is caused by an elevated railway. Instead of building an embankment and thus raising the street, the legislature could authorize the whole travel of the street to be carried above the surface upon an elevated road by all the vehicles used for the transportation of persons and property, and the abutting owners could have no legal or constitutional ground of complaint. This is so because the fee which the city owns in its streets extends indefinitely upward and downward, and the space above as well as the space below a street may be utilized for street purposes.
I have not claimed that the legislature could, without compensation to abutting owners, authorize a street in the city of New York to be absolutely closed or wholly and exclusively *Page 193 appropriated to the use of a railroad. There are authorities which would tend to uphold such a claim. I do not affirm or deny the validity of such a claim. I leave the question of the right to exercise that more extensive legislative authority under the Constitution to be determined in some future case wherein it shall be involved. It is sufficient to determine now that the legislature may constitutionally, without compensation to abutting owners, devote the streets of a great city to any use which is not inconsistent with the use for which they were opened or dedicated.
Front street, adjoining the plaintiff's lot, is not closed by this elevated railway, but it remains an open public street. The finding of the court is that it "will cause no substantial or material impediment to the passage of persons, animals or vehicles in and along the street, and but slight obstruction to the light or air from the street." We must take this case as the trial court has found it and not assume a case such as the imagination can paint. The stream of traffic and travel with no material diminution can flow through Front street as freely as before the construction of the railway. If it be a question of fact whether the street is in some sense closed by the defendant's structure, then the trial court must be deemed to have found the fact in favor of the defendant.
A steam railway operated upon the surface of one of the streets in the city of New York would probably be much more damaging than an elevated railway, and yet, as I have shown, it could undoubtedly be authorized without compensation to abutting owners; and it is impossible for me to perceive upon what reasoning or theory it can be claimed, that abutting owners who have no rights upon the surface of a street for which they can claim compensation, yet have such rights when the railway is elevated above the surface. They have no easement upon or over the surface which cannot be interfered with and greatly impaired under legislative authority without compensation, and yet it is claimed that they have an easement somewhere up in the air which is under the constitutional protection as private property. Where do these aerial rights come *Page 194 from? They do not rest upon any grant, and as the doctrine of ancient lights has no footing in this country, they cannot rest upon prescription. Buildings may be erected upon a street so high and in such a way as to shut out light and air from an adjoining building. They may be erected so as to cast their shadows across the street upon houses there standing and yet no right or easement invaded. It cannot be doubted that the legislature could authorize surface railways to be operated with double-decked cars fifteen feet high and thus cause nearly all the inconvenience to the abutting owners of an elevated railway, and yet it must be conceded that under the authorities the abutting owners would have no legal cause of complaint.
Light and air are mere incidents and accidents of a street. Streets are not constructed and maintained to furnish them. They come from a street because the street exists, and when the street disappears it is difficult to perceive how any right to them in an abutting owner survives. But as I have before said, it is sufficient now to determine that if there can be any such thing in a street as an easement for light and air, it is subordinate to all the uses and burdens to which a street may be subjected by the paramount authority of the legislature.
I am led to this conclusion by principles fairly to be deduced from decided cases which are binding upon this court as authority. I cannot perceive how this case can be determined in favor of the plaintiff without substantially overruling the cases of The People v. Kerr, and Kellinger v. The Street RailwayCo. In The Matter of the Gilbert Elevated Railway Co. (70 N.Y. 361), CHURCH, Ch. J., said that "the principles adjudicated in these cases will be regarded as obligatory upon this court in deciding future cases." In the case of Kellinger v. The StreetRailway Co., the same learned judge, speaking of the case ofThe People v. Kerr said: "We should feel bound to adhere to this decision and its necessary legal results, even if we doubted its soundness, because large sums of money have been expended upon the faith of it, and in many obvious ways it has become a rule of property which *Page 195 should never be abrogated, except for the most cogent reasons." And more than four hundred years before these utterances a learned English judge said: "If we judge against former judgments it is a bad example to the barristers and students of law; they will not have any faith in or give any credit to their books." (Year Book, 33 Hen. VI, 41.)
It is sufficient to say of the Elevated Railway cases reported in 70 N.Y., that the questions we are to determine in this case were not there involved. It was there determined that provision was made in the Rapid Transit Acts for compensation for any rights of private property which the abutting owners had in the streets of the city. But whether they had such rights or not was intentionally and expressly left an open question.
The plaintiff and many other abutters upon the streets through which this elevated railway is constructed undoubtedly suffer great damage from its operation and have the right to complain of the injustice done them; but they must seek their remedy by appealing, not to the courts, but to the legislature, and if they fail there, by appealing to the people who make legislatures. That is the final appeal open to every citizen who suffers injustice under the forms of the Constitution and the laws. The legislature undoubtedly has ample power to compel the defendant yet to make compensation to abutting owners for all the damage done them, and arrest the exercise of its franchises if it shall refuse to make such compensation. (Monongahela Nav. Co. v.Coon, 6 Penn. St. 379.) The power which it possesses under the Constitution and the laws to alter or repeal the charters of corporations includes the absolute right to regulate the exercise of corporate franchises, and to prescribe the terms and conditions upon which they may continue to be exercised. (AlbanyNorthern Railroad Co. v. Brownell, 24 N.Y. 345.)
I will close this discussion by quoting the language of a very learned jurist in Hatch v. The Vermont Central Railroad Co.: "In the absence of all statutory provision to that effect no case *Page 196 and certainly no principle seems to justify the subjecting a person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damage to others in their property or business. This always happens more or less in all rival pursuits, and often where there is nothing of that kind. One mill or one store or school often injures another. One's dwelling is undermined or its lights darkened or its prospect obscured and thus materially lessened in value by the erection of other buildings upon lands of other proprietors. One is beset with noise or dust or other inconvenience by the alteration of a street, or more especially by the introduction of a railway, but there is no redress in any of these cases. The thing is lawful in the railroad as much as in the other cases supposed. These public works come too near some and too remote from others. They benefit many and injure some. It is not possible to equalize the advantages and disadvantages. It is so with every thing and always will be. Those most skilled in these matters, even empirics of the most sanguine pretensions, soon find their philosophy at fault in all attempts at equalizing the ills of life. The advantages and disadvantages of a single railway could not be satisfactorily balanced by all the courts of the State in forty years; hence they must be left, as all other consequential damage and gain are left, to balance and counterbalance themselves as they best can."
The judgment should be affirmed.