The following opinion was handed down in Ogden v. City of New York:
Ingraham, P. J.:The facts in this case substantially as found by the court below are stated in the opinion of Mr. Justice Doavling. My principal dissent from his opinion is in the view there taken that'the plaintiff has “ proved nothing more than consequential damages, the direct and necessary result of the work properly done in furtherance and execution of a public improvement.” Although, even if that view is correct, I think the plaintiff is still entitled to damages.
The plaintiff was the owner of a piece of property abutting on Twenty-second street, and as an incident of such ownership had an easement in the street as a means of access to his property. The city of New York ivas engaged in constructing docks.upon the North river for the use of the city of New York. These dock were the private property of .the municipality, erected by it for as public purpose, but for the use of which the city was to receive compensation. It erected docks, as it erected or acquired other municipal property, receiving from the lessees the rent agreed upon, or the dockage charge which it was authorized to collect and receive, but the construction of these docks was not a street use to which Twenty-second street could be applied so as to interfere with the plaintiff’s easement in the street without paying compensation therefor. In the construction of these docks the city or its contractors caused such an excavation to be made as not only to temporarily destroy Twenty-second street itself, but to cause a considerable portion of the plaintiff’s adjacent property to fall into the excavation, and this, together with the entire excavation of the *580street in front of the plaintiff’s property, destroyed for a period of two years any use by plaintiff of bis property.
Since this case was decided the Court of Appeals, in an elaborate opinion, discussed the right of a municipality to interfere with the rise of a street so as to destroy the easement of an abutting owner and, I think, have settled the questions here presented. (Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81.) In that case the city was engaged in building a subway under one of the Brooklyn streets. It was held that the subway was a business enterprise of the city, through which money may be made or lost, the same as if it were .owned by an ordinary railroad corporation; that it was built by and belonged to the city as a proprietor, not as a sovereign; that the use made of a street by the city in constructing the subway and operating, or causing to be operated, a railroad therein, is not a street use- as that term is known in the law; that a subway of the kind in question was built for a city purpose, as distinguished from a highway purpose; and, -as.a result it was held that if the use were for a street purpose, the city would not be liable for damages caused by proper construction in any case where it took, no land; that when, however, the construction is not for a street use, even if it is for a public use, liability to the owner of the .fee attaches to a city the same as to a railroad corporation-; that as a logical sequence the right to damages must be governed by the same principle. It was also, held that a mere abutter is entitled to a lateral support and to freedom from physical interference with his abutting property; that if the building of an abutting owner, is torn down wholly or in part by a railroad company in constructing its road, and the city is to be treated as a railroad company, it is a virtual appropriation jprp tanto of that building- and logically calls for compensation; what was said in Muhlker v. Harlem R. R. Co. (197 U. S. 563), that “ There is something of mockery to give one.access to property which may be unfit to live on when1 one gets there,” was cited as applicable.
It-is also said that “ the real -ground on which an abutter is enti-. tied to damages for the physical impairment of his property in a case like this is not that he owns the fee of the street, but owns land abutting on the street. The fee is of slight value and of no value Whatever, except to support a theory leading to injustice, for the proximity of his land to the street is what gives value to the abutter’s *581property.” In discussing the question as to whether the claimants in that case were entitled to the damage caused by the necessary construction and proper operation of shafts in the streets in front of their property, it was said: “ The city is liable for the physical injury to the abutter’s property caused by the shaft, the same as it is for that caused by the shield. Both were • necessary in order to build the road, and no negligence is claimed or shown in the use of either. Any agency, even when properly used in the street, not for the improvement thereof, but to promote a business enterprise of the city, which inflicts physical injuries upon the property of abutting owners, imposes a liability that should be met by the city voluntarily, if it chooses, or by an award in condemnation proceedings, if the owner presents and proves his claim within the time and in the manner provided by law.” And in discussing the question of the measure of damages, it ivas held that the measure of damages should be adapted to the actual injury; that the damages were owing to the disturbance of lateral support, which results in a settling of the soil and thus causes physical injuries to the adjoining buildings. “ Therefore, when those physical injuries are properly valued in money, a simple, direct and just measure of damages is applied; ” and that the proper measure of damages was the full value of the fee taken “ subject to the public easement of passage, and, both as to naked abutters and those who own the fee, the amount, measured in money, of the physical injuries inflicted and those ■ which with reasonable certainty will be inflicted upon the abutting property by interference with lateral support through the proper construction and operation of the road, including the rental value of the premises during the period, if any, while they are actually untenantable.”
I cannot see why that decision does not answer every question presented in this case. Here was an appropriation by the city of a public street, upon which the plaintiff’s property abutted, for a purpose not a street use. In the necessary construction of those docks, the whole street was excavated so that the plaintiff, lost for a period of two years all access to his property, and thus was deprived of its use for that period. In addition to that, a large portion of the plaintiff’s property fell into the excavation caused by the city to secure a proper foundation for its docks, which destroyed the use of the property during the-period if he could have obtained access to it *582over the adjacent property. This was a direct trespass upon, the plaintiff’s property, which resulted, in damage to the plaintiff, destroying the use of the property, and was, as I view it, an appropriation of the plaintiff’s property for the period during which the plaintiff was deprived of its use. This seems to me to be entirely different from the consequential injury caused to abutting property by regulating and grading of streets, or by the construction of a sewer and such other purpose as is recognized as a street. The damage inflicted was direct and not consequential, caused by the substantial appropriation of the plaintiff’s property for use by the city during the time that the docks were in the course of construction ; but,, as I understand the decision of the Court of Appeals, whether or not this damage was consequential or direct as the improvement or use to which the plaintiff’s property was put was not for a street purpose, it was an appropriation of property for which the city, as well as a railroad corporation, must pay the resulting damage.
I agree with Mr. Justice Dowling that in this case a court of equity having assumed jurisdiction where it appeared on the trial that the necessity of equitable relief had passed in consequence of the restoration of the street to its former condition, the court was then bound to proceed and award the damage sustained where there was no request by either party that the question of the amount of damage should be submitted to the jury.
I think, therefore, that as the plaintiff was clearly entitled to the damages caused by the appropriation by the city of its property, including the. easement in Twenty-second street, the plaintiff was entitled tó substantial damages, and I think it was error for the court to'dismiss the complaint.
The judgment should, therefore, be reversed, and a new trial ordered, with costs to appellant to abide event.
Laughlin and Miller, JJ., concurred; McLaughlin and Dowling, JJ., dissented.
The following memorandum was handed down in MacNutt v. City of New York:
Ingraham, P. J.:For the reasons stated in Ogden v. City of New York (141 App. Div, 578), decided herewith, the judgment appealed from should be *583reversed and a new trial ordered, with costs to appellant to abide « event.
Laughlin and Miller, JJ., concurred; , McLaughlin and Dowling, JJ., dissented.
The following dissenting opinion was handed down in both cases: