This action is brought to restrain the defendant from erecting a three-story bay-window in front of his property and also from removing the end of an iron fence and the foundation thereof.
The plaintiff contends that he has acquired title to the strip of land in question and the right to maintain this areaway and encroachment upon the public street by adverse possession.
It is conceded that the east line of Main street is the west boundary of the property of the plaintiff and defendant, and that that line is the face of the front wall of the buildings and that neither party has any paper title to any part of Main street.
The mere fact that the top railing to the iron fence in front of the areaway extends over the line in front of defendant’s premises, and has for a number of years, is not sufficient to constitute an adverse possession. It seems to me very clear that such occupation was merely permissive on the part of the municipality and likewise the
It is a well-settled rule of law that the long continuance of such encroachments in the highway, although for more than twenty years, cannot destroy the public right or take away the authority of the public officers to remove and abate them. The municipal authorities have control of the streets of the city of Geneva and their duties to a certain extent are governmental for the benefit of the public and the public cannot be barred by their neglect of duty. St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 114. In People ex rel. Wooster v. Maher, 141 N. Y. 335, Chief Judge Andrews said: “Upon the facts found and proved there can be no reasonable doubt that the porch is an unlawful obstruction in the street and a public nuisance. Although originally built with the consent of the city, the municipality could not legalize the structure so as to bar the public right, and the user, though long continued, is no obstacle to proceedings for its removal. All the remedies, public and private, for the abatement of encroachments in highways or public streets, are open and unaffected by the colorable authority under which the porch was erected, or by acquiescence in the unlawful user.”
It was held in Driggs v. Phillips, 103 N. Y. 77, that the occupation of a portion of a highway by an individual is
Neither the plaintiff, therefore, nor any of his grantors have acquired title to the locus in quo or any part of it. That portion of the iron rail which extends over the line in front of defendant’s premises is an obstruction which the defendant is entitled to have removed.
Upon the other , point I do not agree with the learned counsel for the defendant, that the plaintiff has no right to restrain the defendant from building the bay-window as contemplated.
It is a rule well settled that the owners and occupants of premises along the street have a right to have it kept open, so that from the street access may be had to the abutting premises and they are also entitled to have the light and air that may come across the highway and open space. The public occupy the surface of the street and to its use as a street the rights of the abutting lots are subservient, but above the surface there can be no lawful obstruction to the access of light and air to the injury of the abutting owners; and when any person attempts to close it or any part of it above the surface of the street, so that the light and air are in any way obstructed, without his consent, he has a right of action against the individual. The easement of light and air is a property right within the meaning of the Constitution, which cannot be taken away from him without due process of law. The plaintiff has the right to the unobstructed passage of light and air into his windows from the street, which are essential to the beneficial use and enjoyment of his property. That while the defendant may build on his own land and obscure the plaintiff’s view and obstruct the light and air, yet he cannot build in the highway and thus injure him.
In Wakeman v. Wilbur, 147 N. Y. 663, Judge O’Brien said: “ The obstruction of a public highway is an act which
It was said by Judge Andrews in Pond v. Metropolitan El. R. Co., 112 N. Y. 188, that: “ The Story Case, 90 N. Y. 122, established the principle that an abutting owner on streets in the city of ETew York possesses, as incident to such ownership, easements'of light, air and access in arid 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.”
In Woodruff v. Paddock, 130 N. Y. 625, Judge Earl said: “An ■ abutting owner has two distinct kinds of rights in a highway or street. A public one, which he enjoys in common with all other citizens; and certain private rights, which arise from his ownership of property contiguous to the highway or street. These special rights increase the value of his abutting premises, are private property, and, if they are destroyed or greatly injured without due process of law, damages may be recovered for the injury.”
It appears, from the testimony taken upon the trial, that the erection of the bay-window contemplated by the defendant would interfere to a substantial degree with the light and air coming to the plaintiff’s house and would interfere with certain views from plaintiff’s windows, which are essential to the beneficial use and enjoyment of his premises and would also tend to depreciate the value of his property.
The temporary injunction, therefore, granted herein should be modified so as to permit the defendant to saw off- and remove the iron railing in front of his premises and the foundation thereof, unless the plaintiff within sixty days from the date of filing this decision remove the same. With that modification the temporary injunction is made permanent. ETo costs are allowed to either party.
Ordered accordingly.