
    Balthaser Rummel, Resp’t, v. The New York, Lackawanna & Western R. R. Co., App’lt.
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed March 24, 1890.)
    
    Easement—Obstructions in street.
    The mere fact that a railroad, in pursuance of its charter and consent of the municipal authorities, has erected an embankment in the street, gives no right of action for damages to a remote property owner abutiing on said street, unless his right of access to his land is thereby cut off.
    Appeal by defendant from a judgment entered upon the verdict of a jury.
    
      John G\ Milburn, for app’lt; Seward A. Simons, for resp’t.
   Titus, , J.

This action is brought against the defendant for closing Goethe street with an embankment. It appears that some time prior to 1877 Joseph Churchyard, who was the owner of a tract of land, caused it to be surveyed and laid out into lots, with public streets, and filed a map of such tract, showing the blocks, lots and streets, in the county clerk’s office. Among the streets so laid out and represented upon such map was Goethe street, running from Broadway southerly to William street. Goethe street was opened and graded; and had, to some extent, been used by the public in travelling over it. In 1880 the plaintiff bought of Churchyard, by contract, sixty feet of land fronting on Goethe street, and received his deed July 19, 1882. Afterward the defendant built its railroad across Goethe street; and since that time, and before the commencement of this action, built an embankment some twenty feet high on which its railroad track now rests. The plaintiff’s property is situated on the west side of Goethe street about three hundred feet north of Lovejoy street and about two hundred feet south of where the defendant’s railroad crosses. The plaintiff claims that by reason of his purchase with reference to the map on file in the county clerk’s office, that he has a right to insist that Goethe street at the point where the railroad crosses shall not be closed; and seeks to recover upon the theory that he has an easement in the street by virtue of his deed of purchase for which he can recover damages. There is no question about the general proposition of law that when an owner of property lays it out into lots for building purposes, and makes a map showing the streets and lots abutting on them, and then conveys these lots, referring to such map, his grantees take an easement in the street as appurtenant to their lots. In re. Mayor, 2 Wend., 472 ; Smyles v. Hastings, 22 N. Y., 217; Cox v. James, 45 id., 557; Taylor v. Hopper, 62 id., 649.

It is claimed that there had been no dedication of Goethe street to public uses at the time the defendant built its embankment so

as to vest in the public any right in the street To dedicate a street to the public, there must be a present intention on the part of the owner to abandon his property to the public’s use. To grant a permanent right of way over his land for public purposes, accompanied by an actual opening to the public on the one side, and an acceptance by the public on the other, manifested either by some formal municipal act or by a common user by the public. Holdane v. Trustees of Cold Spring, 21 N. Y., 474. But as between persons who purchase lots bounded on a street dedicated to the public and a grantor, the purchaser acquires a right or easement in the street by virtue of his deed which will be enforced against his grantors or subsequent grantees should they attempt to close it, and this without reference to the question whether there has been a dedication of the street and acceptance by the public. In the one case, the private owner may insist that the street shall be kept open by virtue of the implied covenant in his deed or contract of purchase; and in the other, the public may maintain an open street by virtue of a public dedication and acceptance.

In the one case, a purchaser as against the grantor .may insist that he shall have necessary and reasonable access to his land, and that the street shall not be closed in such a way as to deprive him of that right; in the other, the public may insist that the street shall be kept open its entire length independent of the question of the rights or convenience of abutting or adjacent land owners.

The plaintiff’s deed does not purport to give any right in the street, and the easement which the plaintiff has springs from the necessary right of access to his land, and is appurtenant to it. Wheeler v. Clark, 58 N. Y., 267.

The fact that the construction of the railroad by the defendant under its charter, and the grant from the common council, has made it less convenient to the plaintiff, and possibly made his property less desirable, or of less value, does not give him a right of action or right to damages. Coster v. The Mayor, 43 N. Y., 399; People v. Kerr, 27 id., 188; Ottenot v. N. Y., L. & W. R. Co., 28 N. Y. State Rep., 483.

The plaintiff has no such interest in the public street, unless by virtue of his deed, as that he can maintain an action for damages for its obstruction at a remote point which does not interfere with the reasonable enjoyment of his property. The damage must be an immediate consequence of the act complained of; and if access to his property is made more inconvenient it does not entitle him to damages. Coster v. The Mayor, supra.

If the plaintiff can maintain an action for damages for closing Groethe street at a point remote from his land, it would seem to follow that any person owning property on the line of a street, no matter how remote from an obstruction, can also maintain such an action. I do not understand that one having the right to use a street only in common with the public can maintain an action for damages unless his property is encroached upon. Hier v. N. Y., W. S. & B. R. Co., 40 Hun, 310.

It is not questioned that the plaintiff has such a right in the street by reason of the implied covenant in his deed that he can maintain an action against any one for closing the street and shutting off access to his property, but that is not this case. The defendant’s railroad crosses Goethe street about 200 feet north of the plaintiff’s lot. Goethe street runs to Lovejoy street on the south, and on the north of the plaintiff’s lot the defendant has deeded a strip of land fifty feet wide to the city for purposes of a street alongside its embankment, connecting and continuing Goethe street to Schiller atreet, thence along Schiller street to Ogden street, where a crossing has been prepared under the defendant’s railroad, thus giving residents on Goethe street a continuous way north and across the railroad of the defendant. It is probably less convenient for the residents on Goethe street going north to Broadway by the route now opened than it was by a direct route north through Goethe street before it was closed by the defendant; but I do not think that fact alone is controlling of his right to maintain .this actioil The question is, has he reasonable and convenient access to his property ? It seems to me it cannot be said, as a matter of law, as Goethe street is now laid out and opened, he has not such reasonable and convenient access. It is said in Hier v. N. Y., W. S. & B. R. Co., supra, “We are of the opinion that the plaintiff .acquired no interest in Olive street beyond the general public, except the way by necessity, by reason of the description contained in his deed and reference to Green’s map. The conveyance does not purport to give any right in or to the street along its course. Ror would an easement pass as an appurtenant, unless it were directly necessary to the enjoyment of the estate granted. A mere convenience is not enough to create a right or easement.”

It should be borne in mind that the plaintiff’s land is in no way interfered with or encroached upon by the defendant’s railroad ; and the street in front of his premises for 300 feet south and 200 feet north is not obstructed by the railroad crossing; and from the last mentioned point the street is continued fifty feet wide along the side of the defendant’s land to Schiller street. In Ogden v. Jennings, 62 N. Y., 531, the court says: “ Easements exist as appurtenant to a grant of lands and as arising by implication, only by reason of a necessity to the full enjoyment of the property granted. Rothing passes by implication, or as incident or appurtenant to the lands granted, except such rights, privileges .and easements as are directly necessary to the proper enjoyment of the granted estate. * * * It must be an actual and direct ■necessity, and mere convenience is not sufficient to create or convey a right or easement, or impose burthens on lands other than those granted as incident to the grant. In all cases the question ■of necessity controls.” In Fearing v. Irwin, 55 N. Y., 486, it was held that the legislature had the right to pass an act closing a ■street without providing any compensation to owners of land adjoining, deprived of the right of way therein, when they could have access to such land through another street. The court says: “ Though one public way to property is closed, if there is another left, the property owner sustains no actionable damage.”

So it would seem that to entitle the plaintiff to recover in this case there must be a deprivation by the defendant of his light of access to his land; and the simple fact that the street north of his land has been deflected and turned into Schiller street, does not bring him within the authorities which hold that a party is entitled to damages for closing a street. His right to use the street where the railroad crosses is a common right which other citizens enjoy equally with him, and such a one as public authorities may regulate without being subject to damages. Coster v. Mayor, supra, and Badeau v. Mead, 14 Barb., 328.

If I am right in the conclusion which my examination has led me to, then it follows that the plaintiff upon the evidence cannot maintain his action against the defendant; and that the motion of the defendant’s counsel for the direction of a verdict in his favor should have been granted. The judgment should, therefore, be reversed, with costs to abide the event.

Hatch, J.

I fully concur with the conclusion reached by Judge Titus upon the main questions in this case, and for the reasons stated in his opinion. Farther discussion of the points involved would be unnecessary were it not for the fact that in many othe,r cases, now pending, a question relating to the rule of evidence, adopted .and applied in the present case, has been questioned, as it has been here. It is, therefore, thought best to state it and our conclusions thereon.

The court upon the trial charged the jury that the measure of damages was the difference in the rental value of the premises with and without the blockaded street. The claim is that as plaintiff has continuously occupied the premises, there has been no loss of rents, and that consequently the damage must rest in such loss as has been occasioned by increased expense, burden and inconvenience created by the obstruction of the street. It seems to be conceded that rental value might he proper evidence of the damage sustained, but that, as a measure of damage, it cannot be upheld. Ho case is found making such distinction, and, at the most, it seems to be a distinction without a difference. The definition of the term rent shows it to be a profit in money, .goods or labor issuing out of lands and tenements in retribution for the use. 3 Kent's Com., 12th ed., 460; Chase’s Bl’k. Com., 2d cd. 238.

It seems logical, at least, that the profit of the use must depend upon the earnings of the property tor a contemplated purpose. And if by reason of extraneous circumstances such profit is diminished, the value of the use is diminished, and under such conditions it can matter nothing whether the owner makes use of them, himself or leases to another, for, in either case, the loss of profit is the same. It therefore comes back to the point, not whether there has been a loss of rents, but whether if the extraneous circumstances creating damage had not existed the use of the premises would have produced more profit. The learning of courts and lawyers have finally formulated a rule applicable to such case, and, as stated, it is the diminished value of the use, and where-property is rented, or its rental value may be determined in the market, such rental value furnishes the most satisfactory evidence from which to measure the loss of profit sustained. Francis v. Schoellkopf, 53 N. Y., 152; Tallman v. Met. El. R. R. Co., 16 N. Y. State Rep., 684.

The plaintiff was the owner of vacant unimproved property, and the rule of damage laid down was the value of the use. This, as we have already seen, was only another way of stating what could the use have been sold for during the period claimed, in other words rented for. The difficulty in the case was, not as to the rule, but of the failure of evidence to establish a state of facts to which it could be applied,, and as there was no marketable rental value, proof was given of surrounding conditions and circumstances, and from them the jury were required to fix the value of the use. Drucker v. Man. R. Co., 106 N. Y., 157; 8 N. Y. State Rep., 599 ; Barrick v. Schifferdecker, 48 Hun, 355; 16 N. Y. State Rep., 449.

Counsel for appellant relies upon Bank v. R. R. Co., 58 N. Y. Supr. Ct. (21 J. & S.), 412. The authority concedes that the rule, heretofore stated, is applicable to the case of an individual suing to recover damages for an act which renders the premises disagreeable and uncomfortable. But it claims the rule to be different in the case of a corporation where premises are made disagreeable and uncomfortable to its agents and servants by the act of another, when there is no evidence showing that such disagreeable conditions imposed upon the corporation any additional expense in the management of its business or in any other way, and this is placed upon the ground that discomfort to the servant, in the performance of his duties, standing alone, is no evidence of damage to the corporation.

This case was so limited and applied by Judge Freedman, of the same court, in Kearney v. Met. El. R. Co., 14 N. Y. State Rep., 854-5. As so limited, it decides no question in conflict with the views here advanced. This contention may not, therefore, be sustained.

Beckwith, Oh. J., not sitting.  