
    Ella H. Leffmann, Respondent, v. The Long Island Railroad Company, Appellant.
    Second Department,
    June 28, 1907.
    Railroad — improvements to Atlantic avenue, city of New York, pursuant to chapter 499 of the Laws of 1897— abutting owners — chapter 475 of the Laws Of 1855 was constitutional.
    A railroad which has only a prescriptive right to maintain its tracks on a public street • cannot change from a surface to an elevated structure without compensating an abutting landowner for the added interference with easements in light, air and access. ' 5 ■ ’
    Chapter 475-of the-Laws of 1855, ratifying and confirming an agreement whereby a railroad was given forever the exclusive right to use and occupy a strip thirty feet in width in the center of Atlantic avenue and providing-for the carrying out of the proposed public improvement, etc., did not violate section 16 of article 8 of the State Constitution of 1846 in applying to more than one subject, and the purpose of the act was.sufficiently expressed in the title within the meaning of the Constitution..
    Whether or no on proceedings instituted under said act of 1855 the railroad . acquired a fee or -merely an easement, it acquired-nevertheless an exclusive right to the use of a thirty-foot strip for railroad purposes forever, and the damages then awarded to abutting owners included, not only the value of the premises actually taken, hut the damage resulting to the residue, including those to bq' sustained in the future by reason of the use to which the portion taken was to be put. The award then made to abutting owners is binding' upon their subsequent grantees, and when, pursuant to chapter 499 of the Laws of 1897, the railroad was changed so as to be partly in a subway and partly on a viaduct, abutting owners are not entitled to additional compensation.
    Appeal by the, defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of November, 1905, upon, the decision of the court, rendered after a trial at the Kings County Special Term.
    
      Edward M. Shepard [George W. Wingate, James W. Treadwell and Joseph E. Keany with him on the brief], for the appellant.
    
      Alfred E. Sander [Charles S. Taber with him on the brief], for the respondent.
   Miller, J.:

The plaintiff is the owner of premises situate on the southeast corner of Ralph and Atlantic avenues, borough of Brooklyn, and seeks to restrain the' maintenance by the defendant of its viaduct structure on Atlantic avenue in front of her premises, and the running of its trains thereon. The case turns on the' defendant’s right to use the so-called thirty-foot strip in the center of Atlantic avenue. If it had, as against the plaintiff, a prescriptive right only, it could not change from the surface to an elevated structure without compensating the plaintiff for the added interference with her easements of light, air and access. (Lewis v. N. Y. & Harlem R. R. Co., 162 N. Y. 202; Muhlker v. Harlem, R. R. Co., 197 U. S. 544.)

The- defendant has had exclusive possession of said thirty-foot strip ever since the widening and extension of Atlantic avenue in 1860. By chapter 394 of the Laws of 1896 the mayor of the city of Brooklyn ' was authorized to appoint a commission to , examine into and report a plan for the relief and improvement of said avenue. By chapter 499 of the Laws of 1897 provision was made for said improvement and for the removal of the defendant’s railroad, from the surface. The result of the improvement is that, instead of having the exclusive use of the surface of the thirty-foot strip, the defendant’s road is partly in a concealed subway and partly on a viaduct, and the surface of the street is opened to the public,, so that, the plaintiff’s- easement of access is materially improved, and as the .act requires that some other motive power than steam be used" in the movement of passenger trains, the plaintiff’s easement of air, if not of light, must have been to some extent improved .also. The legislation pursuant to which said improvement was made at the joint expense-of the defendant and the-'city is not essentially, different from that directing the improvement Of. Park avenue in the borough of Manhattan, out of which a class of litigation arose of which the Lewis and Muhlker cases (supra) are now controlling authorities. • In determining the defendant’s rights it is not necessary to go back of the so-called tripartite agreement ” made in 1855 between the defendant, the Brooklyn apd Jamaica Bailroad Company, its lessor, and the .city, as it is not disputed that at that time said lessor, was the owner in fee of its roadbed. Atlantic avenue, from Flatbush avenue or Go wan us road to Bedford avenue, was seventy feet wide, and contiguous to it on the south was the railroad strip fifty-feet wide. There was a preposed extension of Atlantic’avenue'east of Bedford, called Schuyler street. The railroad strip crossed Atlantic .avenue diagonally west of Franklin avenue and continued- to the city line between the proposed Schuyler street and Fulton avenue. Said tripartite agreement contemplated the extension of Atlantic avenue, to the city line and the widening of the avenue to a width of one hundred-and twenty feet, the middle thirty feet to be used for railroad purposes, and the outer forty-five feet on each side for highway purposes.' It provided for the cession of the railroad lands to the city, arid for the sale of so much thereof as were not within the lines of the new street so widened and extended, to pay the expenses of the 'opening. We are now concerned only with the 2d clause of said agreement,,'which dealt with the' cession of the railroad lands east of Franklin avenue, and the rights the defendant was to have in the thirty-foot strip in the center of Atlantic avenue, concerning which said contract contained the following provision, viz.: “ Provided, however, and upon this express condition, that . the parties of the first and second parts shall forever have the exclusive" right to use and occupy a strip or space of the width of thirty feet in the centre of said Atlantic avenue as so extended and in the centre of Schuyler street as thus widened, from the intersection of Atlantic avenue to the easterly line of the city as thus widened, for the purpose of railroad tracks and turnouts, and the running of locomotives and ears thereon, without interruption or molestation.”

By chapter 475 of the Laws of -1855 said agreement was ratified and confirmed, and provision was made for carrying out said proposed public improvement and for the appointment of commissioners to estimate and assess the. expenses thereof and the amount of damages and benefits to be sustained. and derived therefrom by-property owners, and all provisions of law relating to street opening proceedings were made applicable after the appointment of commissioners. Pursuant to said agreement and the confirmatory act the railroad land .was deeded to the city and commissioners were' appointed by an order ..of the court on the petition of the city, which set forth the act of 1855, and the receipt and acceptance by the city of a deed of the lands mentioned in it. The commissioners proceeded to estimate and assess the amount of damages and benefits, and their report was, except in certain respects not. now material, confirmed by an order which recited that the proceedings were had under and by virtue of said act of 1855. The regularity of the proceedings is conceded. The plaintiff derives title from one James De Bevoise, who owned the plaintiff’s present lot, and the south half of the 120-foot strip opened in front thereof as aforesaid. Her chain of title originates in a deed to Mary E. Holbrook by the heirs of said De Bevoise, dated May 1, 1860. In the opening proceeding substantial awards were made the heirs of said De Bevoise for the parcels taken and a small sum was assessed for benefits upon .the parcel now owned by the plaintiff, so that said heirs received as damages a sum largely in excess of the amount assessed for benefits upon the parcel retained. The deed from Holbrook. in plaintiff’s chain of title contains the following recital: “ Subject, however, to such rights as the City of Brooklyn and the Brooklyn and Jamaica Bailroad Company may have acquired in portions of said land for opening or widening streets, or for railroad purposes.”

The plaintiff’s original deed described her property as bounded on the north' by the southerly side of Atlantic avenue. By a correetion deed .mad’é. after this suit, was begun the .plaintiff’s ¡grantor also conveyed all his. right, title and' interest iñ and to Atlantic avenue.

.The plaintiff attacks the validity of. the confirmatory act of 1855, alleging that it.violates' section ■ 16 of article 3 of the Constitution of 1846 in that it is a local act and applies to more than one subject, to wit, (a) the opening of a highway, and (b).the'ratification of an illegal contract; but we,think the act dealt with but a single subject, to wit, authorization Of a public .improvement.s The conveyance of the railroad strip to- the city in exchange for the right to occupy a portion of the new street was but .an incident, of the scheme of improvement. In obedience to the constitutional requirement' the title of- the act recited in detail its purpose to he the widening and extension of Atlantic avenue and .the ratification and confirmation of said agreement, -hut.the purpose of the act was the. improvement of Atlantic avenue, and tho fact that the'.'title was more specific than was necessary does not show .that the act embraced more than one subject within ’the meaning of the Constitution. Parfitt v. Furguson (159 N. Y. 111), and Cahill v. Hogan (180 id. 304), relied upon by the respondent, áre not in point. The first case cited passed upon a statute dealing with two separate and independent subjects, and the other case dealt with .a. statute which did not .sufficiently express its purpose in its title.. While the precise point does not appear ever to-have been discussed in any of thetiitigation. growing out of the defendant’s occupancy of said tliirtyfoot strip and.of the different changes, of motive power, the courts have never questioned, and many times have assumed, the validity of said- act of 1855. (See People v. Long Island R. R. Co., 9 Abb. N. C. 181; affd, 30 Hun, 510; People v. Brooklyn, F. & C. I. R. Co., 89 N. Y. 75, 84.)

The plaintiff asserts that the proceeding -instituted under the act of 1855 was a-street Opening proceeding, pure and simple,.in which only a public easement was acquired by the city, and that, the defendant was trespasser from the moment it began to occupy the' thirty-foot space; whereas the defendant asserts that said proceeding .was a condemnation proceeding in which the thirty-foot-strip, was acquired: exclusively for railroad purposes, and the two outer forty-five-foot strips were acquired for highway purposes. The proceeding was instituted pursuant to the authority and to accomplisli the purpose of said act of 1855, and the trial court found that it was begun, maintained and consummated under and pursuant to said act of 1855, and that all the strips of land acquired thereunder were acquired for the purposes and in the manner contemplated by said act and the tripartite agreement thereby confirmed ; so whatever it be styled we must start with the proposition that it was taken for the purpose' of acquiring certain rights for public use, and to ascertain what those rights were we must look to the statute authorizing it. There can be no' doubt that the primary' object of the statute was the improvement, widening and extension of Atlantic avenue. The cession of the railroad lands to the city , in exchange for the right to the exclusive use for railroad purposes of the thirty-foot strip in the center of the improved street was an essential part of said scheme of improvement, and the Legislature plainly indicated its intentipn that in the proceedings authorized by it all property rights necessary to the consummation of said scheme should be acquired. It is true that statutes authorizing the taking of land are not extended by implication, and that no greater right is acquired than is necessary to satisfy the purpose of the statute, and for this reason, in the absence of a statute providing for the taking of a fee, it was always held: in street opening proceedings that a public easement only was acquired, but such statutes are not to be so construed as to defeat the evident purposes of the Legislature (Matter of New York & H. R. R. Co. v. Kip, 46 N. Y. 546), and the nature of the right acquired depends upon the intention of the Legislature to be deduced from the act authorizing the condemnation. (Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234.) The fact that the provisions of the charter respecting street opening proceedings were made applicable to this proceeding after the appointment of commissioners does not militate at all against the proposition that the proceeding was taken pursuant to the authority of said act of 1855. It is true, as the respondent contends, that the plaintiff’s remote grantors were not bound by the tripartite agreement,-not being parties to it, but they were bound by the proceeding taken pursuant to the'act of 1855, and said act expressly provided that the improvements were to be made and the proceedings of the commissioners under the act were to be had subject to the terms of said agreement and in conformity thereto. It is immaterial for the purposes of this decision whether the defendant acquired the fee or . an easement .merely, I am personally inclined to the view that an easement only was obtained, because that was all that was necessary .'to accomplish the purpose and object of the act,.but in any view, it. is plain that a right was acquired to the exclusive use of the thirty-foot strip for railroad purposes forever, and it must be assumed that the damages awarded the De Bevoise- heirs included- the value of the premises actually taken, and the damages resulting to- the ■ -residue, including those- to be sustained by, reason of the use to -which/the portion taken was to be put (South Buffalo R. Co. v. Kirhover, 176 N. Y. 301), and such damages could not be lessened' - by the fact that there might be a possibility of reverter. ; (Miner v. N. Y. C. & H. R. R. R. Co., 123 N. Y. 242.) Therefore, when. in- obedience to the legislative mandate the defendant removed its tracks from the surface of the .thirty-foot strip for the purpose of a ■public.improvement it took no property of the plaintiff, .because the . award to her remote grantors in the opening' proceedings must be presumed to have included the very danaagesyslie .has now recovered. (Cassidy v. Old Colony Railroad, 141 Mass. 174; Conklin v. New York, Ont. & West. R. Co., 102 N. Y. 107; Bennett v. L. I. R. R. Co., 181 id. 431.) ' In the Bennett case the elevated structure was built to enable the defendant to connect with an elevated .road. ' -111 the case at bar the viaduct was constructed to make possible a public improvement. In the Beuvnett .case the defendant owned . the fee, but the grant was made to its predecessor for railroad purposes only,- and it was held that the right of the defendant to keep pace with' the increasing demands of the time must be deemed: within the terms of the conveyance to it. It surely cannot matter that-the right to maintain its -road upon the premises in question was obtained •by proceedings in invitum and not by grant. The defendant’s road is st-ñl a steam -surface road, and- the case of People's Rapid Transit Co. v. Dash (125 N. Y. 93) has no application. Surface roads have tó-make use-of structures elevated' above the surface of - the ground and of tunnels beneath the surface, and it must have been assumed, whether its right was obtained -by grant or by proceedings. ■in invitum, that changes might be necessary either because of new' demands upon its Capácity or of the needs of public ■ improvements,. and in either cáse the property owner- must be. deemed to .have been compensated once and for all time for all such .changes. It is'impossible to distinguish this case in principle from the case of. Conabeer v. N Y. C. & H. R. R. R. Co. (156 N. Y. 474). Unlike the other Park Avenue cases,'in that case the grant to the railroad company for railroad purposes was made before the rights of the city or the, plaintiff’s remote grantor intervened. The court there deemed it immaterial where the fee was, because the defendant had obtained the right from the original owner to maintain its road, and, therefore, it was held that the defendant in obeying the legislative mandate took no property from the plaintiff. In the case at bar we deem it immaterial who owns the fee of the thirty-foot strip. If the defendant obtained a prescriptive right only, the plaintiff, could recover for the interference with her easements of light, air, and access irrespective of whether she owned the fee or was an abutter merely. If, 'however, the defendant ■■ obtained the right" to- the exclusive use forever for railroad purposes of the thirty-foot strip, then the. plaintiff, though owning the fee, cannot complain of the changes made necessary by-needed public improvements, required by the Legislature to be made. We have decided to place our decision upon the latter ground.

' The judgment should be reversed.

Hirschberg, P. J.,- Woodward,- Jenks and Hooker, JJ., concurred.. , .

Judgment reversed and new trial granted, costs to abide the final award óf costs. ' -  