I concur with Mr. Justice Scott, as I think that so far as the ordinance attempted to establish cab stands in the public streets it was not authorized by the Legislature, and that such a use of the streets in front of and abutting on the private property involved an impairment of the abutting owner’s easement in and right to the unobstructed use of the street in front of its property. If anything is now settled in this State it is that an abutting owner has an easement in the street in front of his premises of light, ah- and access, which neither a private individual nor the public can appropriate without his consent and without compensation. This right has been enforced in a variety of cases, where it has been sought to establish in the street, without the consent of the abutting owners, any structure or use which appropriates this easement or interferes with the free and unrestricted right of the owners to use the street, and notably so in the cases involving the right of *891the elevated railroad companies with legislative authority to construct the elevated railroad structures in the streets of the city of New York, which appropriated this easement and interfered with the abutting owners’ use of the street. The right of an abutting owner to the use of the street in front of his property was established in the case of Story v. New York El. R. R. Co. (90 N. Y. 122), and subsequently extended to a case where the city owned the fee of the street absolutely, and not in trust for the People of the State, in Abendroth v. Manhattan R. Co. (122 N. Y. 1). In that case the court, after a review of the authorities both in this State and in other States and in England, said: “ 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 court, after citing the provisions of the Constitution (Art. 1, § 6), continued: “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.” We have thus established that the plaintiff has an interest in the street in front of its property, and neither the State nor the municipality can take away or impair that property right, except upon the payment of compensation, and this right has been recognized and enforced in a great variety of conditions that have existed and been created in the city of New York in many of the cases cited and commented upon in the Abendroth case. But I do not think the city was authorized to allow the street to be used for such a cab stand as it authorized by this ordinance. In Cohen v. Mayor, etc. (113 N. Y. 532) the city granted a permit to one Marks to keep his wagon in the street in front of his grocery store, and in pursuance of that permit, Marks was in the habit of leaving his grocery wagon in the street when not in use, and a person passing through the street was killed thereby, and the administrators of the deceased brought an action against the city of New York and a judgment for the plaintiffs *892was sustained by the Court of Appeals. Peckham, J., in delivering the opinion of the court, said: “The storing of the wagon in the highway was a nuisance. The primary use of a highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and uninterrupted use of the entire width of the highway for that purpose, under temporary exceptions as to deposits for building purposes, and to load and unload wagons, and receive and take away property for or in the interest of the owner of the adjoining premises, which it is not now necessary to more specifically enumerate. * * * It is no answer to the charge of nuisance that, even with the obstruction in the highway, there is still room for two or more wagons to pass, nor that the obstruction itself is not a fixture. If it be permanently, or even habitually in the highway, it is a nuisance. The highway may be a convenient place for the owner of carriages to keep them in, but the law, looking to the convenience of the greater number, prohibits any such use of the public streets.” It was also expressly held in that case: “The Legislature has expressly enacted that the city shall have no power to authorize the placing or continuing of any encroachments or obstructions upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the highway. ” These provisions have been continued by the present charter of the city of New York.* (See Farley v. Mayor, etc., 152 N. Y. 222.) It thus appears that the city had no power to create such an obstruction, or to authorize the abutting owner to use the street for vehicles used in his business, even in front of his own property, and that any permit or authorization so to use the street was void, and such use was a public nuisance. The city was liable for any injury occasioned by the standing of a wagon in the street under such a permit. Under the ordinance in question the city has attempted to establish in front of the plaintiff’s property a continuous line of motor vehicles without the abutting owner’s consent and notwithstanding his objection and protest. This is not a temporary use of the streets, but the ordinance contemplates that this use shall be continuous, and that there shall be continuously stationed these automobiles in the places specified. The ordinance permits that as soon as an automobile is taken by a customer, its place shall be taken by another automobile; and so the ordinance contemplates the continued presence of vehicles, not the continuous movement of vehicles through the streets, but as stations for them to remain until they are hired, as obstructions in the street and to plaintiff’s entry to his own premises, and that the number of automobiles specified shall always be continued there, although the mass of vehicles shall not at all times be the same. It seems to me that this was a direct violation of the legislative prohibition that “the city shall have no power to authorize the placing or continuing of any encroachments or obstructions upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the *893highway.” The establishing of such a condition without the consent of the abutting owner was in itself an impairment of the abutting owner’s easement in the street, and that easement could not be thus appropriated or impaired without the consent of the abutting owner. The ordinance, therefore, so far as it established these cab stands in front of and adjacent to private property abutting on the streets of the city of New York, was in excess of the legislative powers of the city authorities, and was an appropriation of private property without compensation, and was illegal and void. I concur with Mr. Justice Scott that the order appealed from should be reversed and the injunction continued.
See Laws of 1901, chap. 466, § 50, as amd. by Laws of 1905, chap. 629.— [Rep.