New York Steam Co. v. Foundation Co.

McLaughlin, J. (dissenting):

I am unable to concur in the opinion of Mr. Justice Laughlin. I think the judgment should be affirmed for the reason stated in.the opinion of the learned referee. Mo other rule is practicable in a great city where the streets are full of pipes laid .by various public service corporations, and it is unwise to lay down the rule that in order to recover for injury thereto negligence, in interfering with them must be shown.

I, therefore., vote to affirm the judgment.

Houghton, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.

The following is the opinion of the referee :

Lewis L. Delaeield, Referee :

The defendant, being engaged in the erection of a building Upon-lands east of Mew street in the city of Mew York, excavated such lands, and also certain adjacent lands forming a part of such street. Such excavation, in so far as it affected the street, was made under licenses from the city of Mew York, whereby permission was granted, for a recited consideration, to construct vaults under the surface of the street not extending beyond the curb line. The city owned the fee of Mew street, and the vault licenses granted, by it were of the usual revocable, character. In the course .of the work of excavating the vaults under such licenses,' sheet piling was sunk by the defendant immediately outside of the curb line, for the purpose of supporting the soil of the street. The plaintiff asserts that, in so doing, the defendant transcended the terms of its licenses and became a trespasser in the street. If so, it is liable, of course, for all of the consequences of its trespass. I find, however, that the vaults could not have been constructed to the curb line without the sinking of sheet piling in the street bed, immediately, outside of that line, and that the right to sink such sheet piling outside of' the curb, during the brief period of construction, was within the contemplation of the grant, and was impliedly sanctioned thereby.

The evidence establishes and I also find that the work of excavating the street was performed by the defendant with all due care, and that the subsidence of the soil of the street, by which the plain*266tiff was damaged, was not attributable to negligence on the. part of the. defendant, but was the inevitable result of the construction of its vaults. ...

The'novel and interesting question' is thus presented whether a private individual who,- under a permit from the city, excavates the street for his own private purposes, is liable for" damages caused thereby, without negligence, to a-public service corporation having franchises and property rights in the street under an earlier grant from the city.

This question is by no means free from difficulty, but, in my judgment, the'facts present a case in whicli.-there is cast upon the indi-, vidual making the excavation an obligation so to-use his property (for the right to excavate, conferred by the license is property) as.not.to 'injure his neighbor.

It is true, indeed, that in the case of adjacent properties under private ownership, the obligation of lateral support does not (in the . absence of statute) extend to the support of lands burdened by structures; But this rule has. latterly been applied by the-courts under protest, and its operation should not be extended. Moreover, it applies only to adjoining lands under private ownership, for it seems to be settled that the owners of lands abutting "upon a highway are under obligation to • support it. (Milburn v. Fowler, 27 Hun, 568.), This obligation undoubtedly includes the duty -of supporting all. pipes, mains-and other structures lawf ully placed thereon. As this duty rests upon the individual Who owns abutting property, I can see no reason why he .should be- relieved from a similar obligation, when for his own purely private -ends,' but under a permit from the city authorities, he enters upon and excavates the highway itself. To hold that, under such circumstances, he is not bound' tó make good such damage, as lie-may inflict upon a public service corporation owning.property rights in the street tinder a grant from the city, would involve the further conclusion that he is -not liable (in the absence of con tract), to,-the city itself, even though lie destroy the highway.

I base my conclusion exclusively upon the. ground that the' defendant has violated the mandate sic utefe tuo ut aUenum non, leedas, and.not upon the ground that it has violated any duty cast upon it by section 22 of the Building Code. For I am satisfied *267that that ordinance, like the statutes which it has supplanted, applies only to adjacent properties under private ownership. (Laws of 1855, chap. 6; Consol. Act, § 474;* Dorrity v. Rapp, 72 N. Y. 307; Jencks v. Kenny, 28 Abb. N. C. 154; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98.)

In reaching the conclusion already expressed I am not unmindful of the cases which hold that the city itself when constructing works of public utility in the streets, or public service corporations when opening the streets under permits from the city for street purposes, are not- liable, in the absence of negligence, for damage inflicted upon the pipes or other structures already placed in the streets by public service corporations under earlier grants. (Western Union Tel. Co. v. Syracuse Electric Light & Power Co., 178 N. Y. 331; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98; Interborough Rapid Transit Co. v. Gallagher, 44 Misc. Rep. 536.) The reason for that rule is that the earlier grant is subject to the paramount right of the public to use the street for all lawful street purposes, and is qualified by the implied condition that the streets may be used in future times for such purposes (not involving an absolute destruction of the earlier grant), even though such use may involve loss and damage to the occupier under such earlier grant. That reason is not sufficiently broad to embrace such a case as is here presented, for, although these vault permits had been granted by the municipal authorities for many years prior to the grant of the franchise to the plaintiff, it was no part of the implied condition under which the plaintiff entered upon the streets that its rights should be subordinated to the private right of an individual to enter upon the street under a permit from the city and to occupy it for purely private purposes.

I can see no distinction between a gas main or steam main maintained in the streets by a public service corporation under a grant from the city and a water main or sewer maintained in the streets by the city itselfand if, as between the holder of the vault license and the public service corporation, the former is absolved from *268liability (in the absence of negligence) by the mere issuance of the license, I cannot see how (in the absence of contractual obligation) he can be held liable to the city, under like circumstances, if he injures the water main or the.sewer. ' If, as I believe^ the present case is one . of first impression, the results which would flow from affording to the defendant the immunity for which it contends may properly be considered by the court.

I do not shrink from the assertion that my reasoning involves a finding that the property rights in the streets conferred upon a , public service corporation by its franchise are of greater' dignity than the property right conferred upon an individual by a license to' construct a vault under the street for his own private ends. Even though the motive which induces the formation, of a public service corporation is a purely selfish one, such a corporation becomes subject, in the moment of its birth, to the duty to serve the public, and its property interests in the streets are affected by a public • duty, the performance of which may be compelled and the nonperformance of which may be punished by the extinction of its ' corporate life. That the existence, of these duties involves, certain correlative rights cannot, I think, be doubted. Thus,, such a corporation may be invested, because of its public duties, with the power to take private property, and the rights in real estate conferred by its franchise differ from the rights of a private owner, in that (although - they are subject to the power of the public to regulate the use) they cannot be taken even for public use without an express legislative sanction for the taking. And even when, in the exercise of its franchise in the streets, such a corporation .is found to' be a trespasser upon private rights, the consideration that it is a servant of jihe public interests will lead the courts to withhold the injunctive relief which, they would' grant against a private individual until such time as the private rights; which are invaded by the, trespass, can be vested in the corporation by condemnation.

I do not assert, of course, that the public service corporation has any such interest in the streets as to be entitled to insist that no vault right shall be granted to the individual when the construction of the vault will canse indirect damage to its structure, or that in such a case as is here presented it'would he entitled to an injunction against the construction" of the vault. For the grant of the *269franchise to the corporation does not involve a surrender by the city of its authority to grant such permits. All that I do insist is that when, in the voluntary exercise of the privilege to construct a vault for his private purposes, the licensee does damage to the property of the public service corporation, he must, even though guiltless of negligence, make the damage good. The question whether, having granted property rights in, the streets to a public service ■ corporation, the city may authorize a private individual to directly invade such rights (as, for example, by compelling a steam or gas company to move its mains) for purely private ends, even upon making compensation for the damage, is not here involved.

There must be judgment for the plaintiff for the amount of damages, as stipulated, with costs.

See Laws of 1882, chap. 410, §§ 478, 474, as amd. by Laws of 1885, chap. 456; Laws of 1887, chap. 566, and Laws of 1893, chap. 275. See, also, Laws of 1897, chap. 378, § 647; Laws of 1901, chap. 466, § 407, as amd. by Laws of 1904, chaps. 603, 638; Cosby's Code Ord. (Anno. 1907), 174, 175.— [Rep.