[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 5 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 7
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 8 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 10 The principal questions involved in this appeal are: (1) Has the plaintiff, by his ownership of a lot abutting on Pearl street, private rights or rights of property therein? (2) Have the defendants taken or materially impaired those rights, if any the plaintiff has, within the meaning of the Constitution? The term "abutting owner" will be used in this judgment to denote a person having land bounded on *Page 12 the side of a public street and having no title or estate in its bed or soil, and no interests or private rights in the street except such as are incident to lots so situated. The evidence upon which the facts were found not appearing in the record, the findings of the trial court must be accepted as true. In addition to the finding that the plaintiff's lot does not extend beyond the line of the street, it should be noted that there is no finding that the plaintiff or any one of his predecessors ever had any title to or estate in the land whereon this street is maintained, or any interest in the street except that of an abutting owner. The view taken of the rights of abutting owners renders it unnecessary to consider the much debated and interesting historical question as to whether the island of Manhattan was, within the law of nations, so discovered, settled, subjugated or possessed by the United Provinces as to impress upon it and its inhabitants the law of that country and the general rule of the civil law, that the title to the soil of highways and the beds of public streets is in the government. If the plaintiff, by virtue of being an abutting owner, has not sufficient private rights or interests in this street to have enabled him to have maintained an action for the injuries found to have been inflicted, or for similar injuries inflicted without legislative authority, then he is without remedy in this case. In the cases about to be referred to, the plaintiffs were not all abutting owners, but none of them owned the part of the street whereon the obstruction or encroachment was placed which was the cause of the injury complained of. In Corning v. Lowerre (6 Johns. Ch. 439) the owner of a lot on Vestry street was held entitled to maintain an action to restrain the defendant from obstructing the street. In Van Brunt v. Ahearn (13 Hun, 388) the parties owned lots on Catharine street in Brooklyn. The defendant obstructed the street at a point some distance from the plaintiff's lot, causing him special damages, and it was held that the plaintiff had such a private right, the right of free ingress and egress, that he could maintain an action to recover his damages and restrain the continuance of the obstruction. *Page 13
In Crooke v. Anderson (23 Hun, 266) the parties owned lots on Washington avenue in the city of Brooklyn, and the defendant encroached (not obstructed) on that part of the street which was in front of his lot, so that the street was less convenient for the plaintiff's use in going to and from his lot, thus specially damaging the plaintiff, and it was held that he could maintain an action to abate the encroachment.
In Fanning v. Osborne (34 Hun, 121; 102 N.Y. 441) the plaintiff was an abutting owner on Garden street in the city of Auburn, and the defendant, without legislative authority, maintained a railroad track in the street, over which cars were drawn by the power of steam. It was held that the plaintiff (he showing that he had sustained special damages) had a sufficient private right in the street to maintain an action to restrain the operation of the railroad. The same doctrine was held inHussner v. B.C.R.R. Co. (114 N.Y. 433).
In Callanan v. Gilman (107 N.Y. 360) two abutting owners on Vesey street in the city of New York were engaged in business in adjoining stores. It was held that the plaintiff could, by action, restrain the defendant from improperly obstructing the sidewalk by using a temporary bridge or plankway by which goods were taken from and into the store, and thus causing a special injury or damage to the plaintiff.
In Stetson v. Faxon (19 Pick. 147) the parties owned adjoining lots in the city of Boston, which were bounded north by Ann street and south by a street running along the north side of Market square. The city laid out a new street south of the last mentioned one, and sold to the defendant the land between his lot and the new street, which had formed a part of the old street. The defendant erected fences and buildings on the land so purchased which impaired the value of the plaintiff's property by rendering it less convenient of access and obscuring the view. In an action to recover damages it was held that the old street not having been legally discontinued, the defendant was liable. The principle running through these cases has been maintained in England for at least 200 years. (Maynell v. Saltmarsh, 1 Keb. *Page 14 847; Fritz v. Hobson, L.R. [14 Ch. Div.] 542.) The same rule has been held applicable to country highways (Pierce v. Dart, 7 Cow. 609; Hood v. Smith, 5 Wkly. Dig. 117), and has received the sanction of the courts of most of the states of the union. (Angell on Highways, § 285.) These cases do not rest on the fact that the wrongs happened to amount to public nuisances, for no person can maintain a private action for the recovery of damages against the creator or maintainer of a public nuisance unless it occasions him special damages by an immediate injury to his person or property, or by a consequential injury to his property. (Lansing v. Smith, 8 Cow. 146; 4 Wend. 10; Wood on Nuis. 655.) All of these cases were for the recovery of consequential damages to real property bounded by the side or center of the street, or for the recovery of such damages sustained by occupants of such property, and in none of the cases were the obstructions or encroachments on or opposite to the property of the plaintiff. There are important differences between the case at bar and those cited. In the cases referred to, the acts which were held to be actionable wholly or partly obstructed the streets and rendered the property of the plaintiffs less accessible, and none of them were done pursuant to legislative authority; while in the case at bar the acts complained of were done pursuant to such authority, and do not, as found by the court, impair in any substantial degree the accessibility of the plaintiff's premises. But these cases do establish the principle that the owner of a lot on a public street, whether it extends across to the center, or only to the side of the street, has incorporeal private rights therein which are incident to his property which may be so impaired as to entitle him to damages. If this be not so, it is difficult to see how he can maintain any action except such as can be maintained by a stranger for an immediate injury to person or property caused by an obstruction while lawfully traveling in the street. The judgments in Story v. N.Y.E.R.R. Co. (90 N.Y. 122);Lahr v. M.E.R. Co. (104 id. 268) seem to compel this conclusion. In Story's case importance *Page 15 was given to the language of a covenant contained in the grants dividing and conveying the lots forming a larger tract owned and granted by the city (of which Story's lot was a part), and to chapter 86 of the Revised Laws of 1813, under which the street was laid out. But the judgment in Lahr's case was not placed on the ground that any rights in or to the bed of the street had been granted or reserved to him, or to any of his predecessors; and it was held, some force being given to the act of 1813, that he had rights of property in the street.
The learned judges who delivered the dissenting opinions inStory's case did not deny, but rather assumed that the abutting owner had rights of property in the street, and held that those of the public were paramount, that the rights of both arose and existed by virtue of the same authority, and that those of the abutting owner could, by legislative and municipal action, be further subordinated to the rights of the public for the purpose of affording additional and necessary facilities for the transportation of persons and property through the street. SinceStory's case was decided, questions akin to the one under consideration have been discussed by the Court of Appeals. InMahady's case (91 N.Y. 153), ANDREWS, J., in delivering the opinion of the court, said: "The plaintiff, though an abutting owner simply, the fee of the street being in the city, was entitled to the use of the street, and neither the legislature nor the city could devote it to purposes inconsistent with street uses, without compensation, according to the principle of Story v. N.Y.E R.R. Co. (90 N.Y. 122)." Again, the same learned judge, in delivering the opinion in Pond's case (112 N.Y. 188), said: "The Story case (90 N.Y. 122), established the principle that an abutting owner on streets in the city of New York possesses, as incident to such ownership, easements of light, air and access in and from the adjacent streets, for the benefit of his abutting lands, and that the appurtenant easements and outlying rights constitute private property of which he cannot be deprived without compensation." *Page 16
In Powers v. M.R. Co. (120 N.Y. 178), BROWN, J., in his opinion, said: "The facts of the Story case were not broad enough to necessarily cover the case of an abutting owner whose only property in the street was an easement for light, air and access, and hence the right of such owners to maintain actions for damages was not finally set at rest until the decision inLahr v. M.E.R. Co." The cases last cited did not, perhaps, involve the question discussed in the remarks quoted; but it cannot be assumed that they were made without deliberation, for since Story's case this precise question has been much debated and hardly out of the minds of the judges of the court of last resort.
The judgments for damages which have been recovered and sustained against the elevated roads do not and cannot rest on the ground that the roads are public nuisances, for they were constructed pursuant to statutes; and besides, as before stated, a public nuisance does not create a private cause of action, unless a private right exists and is specially injured by it. The only remaining ground upon which they can, and do stand, is that by the common law the plaintiffs had private rights in the streets before the roads were built or authorized to be built. It is clear, we think, that these rights were not created by the statutes under which the corporations were organized, nor by the construction of the roads; nor do they exist by force of the judgment in Story's case; but they existed anterior to the construction of the roads, and have simply been defined and protected by the decisions made in the litigations against these corporations.
It being established that an abutting owner has property rights in the streets and that an action could have been maintained against the defendants for the recovery of the damages caused by their acts, had they been done without legislative authority, it becomes material to inquire whether such right of action is cut off because the road was constructed pursuant to such authority.
The Constitution of this state provides: "Nor shall private property be taken for public use without just compensation." (Art. 1, § 6.) *Page 17
It is settled by Story's case and Lahr's case that such rights as the plaintiff has in Pearl street "are private property" within the meaning of the constitutional provision quoted; and these cases also hold that by the construction and operation of an elevated road in the street in front of an owner's premises, his rights are "taken for public use," within the meaning of the Constitution. It follows that the authority conferred by the legislature to construct the road is not a defense to the action.
Fobes v. R., W. O.R.R. Co. (121 N.Y. 505) does not decide that an abutting owner has not vested rights to light, air and access in a public street, which are incident to his lot and which are private property, within the meaning of the Constitution; but that the operation, pursuant to legislative authority, by the defendant of its steam railroad on the grade of the street which was at about the natural surface of the ground, was not on actionable invasion of the abutter's right. The learned judge who wrote the opinion in that case, thus defined the limits of the question to be discussed: "It (defendant) admits that plaintiff had an easement in that street, but it denies that it has occupied or appropriated it. Whether it has taken any portion of the plaintiff's easement in the street in question, is what the defendant asks shall be decided by us, and it denies in toto any taking whatever of the plaintiff's property or any portion thereof."
The conclusion which we arrive at is, that the erection and operation of the elevated road in Pearl street immediately in front of the plaintiff's premises in the manner and with the effect described in the findings of fact, was a material impairment of the plaintiff's right of property, for which he is entitled to recover compensation for the damages inflicted.
It is urged that if the plaintiff ever had a right of action, it has been lost by his acquiescence in the construction and use of the road by defendant. It is found that when the road was being built through this street the plaintiff forbade the New York Elevated Railroad Company to construct it, and threatened that corporation with litigation, but began no action until *Page 18 this suit was commenced, and in the meantime he has occasionally been a fare-paying passenger on the road. Had this action been brought in equity solely for the purpose of compelling the defendants to remove their structure, and if all persons having such interests in the elevated road as would entitle them to be heard before such relief could be granted, were parties to the action, personally, or representatively, this question might require some consideration; but in an action for the recovery of damages, the conduct of the plaintiff, as found by the court, and his delay in bringing the action, is not a defense.
The order should be affirmed and judgment absolute rendered against the appellants, with costs.
All concur.
Order affirmed and judgment accordingly.