
    William P. Abendroth, Resp’t, v. The New York Elevated R. R. Co. and The Manhattan R. Co., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    1. Railroads—Elevated—Rights oe abutting owner.
    The owner of a lot on a public street, which is bounded by the side of the street, has incorporeal private rights in such street, consisting of ease.ments of light, air and access, which are incident to his property, and which may he so impaired as to entitle him to damages.
    2. Same.
    Such rights are "private property” within the meaning of the constitution, and for damages to which hy the construction and operation of an elevated railroad in front of the preñases an action may he maintained, and the fact that the road was constructed under legislative authority is no defense to such action.
    3. Same—Estoppel—Laches.
    In an action for the recovery of damages arising from the construction and operation of an elevated railroad, the conduct of the plaintiff in using the road as a passenger, and his delay in bringing suit until his right to do so had been decided in suits by other parties, is not a defense.
    Appeal from an order of the general term, of the superior court of the city of New York, entered May 12, 1887, reversing a judgment which dismissed the complaint on the merits, and granting a new trial, with costs to abide the event
    When the inhabitants of the island of Manhattan were governed by the United Provinces, a public highway was opened pursuant to the laws then and there existing, which way, so far as it appears, had no name, but was a country road, and so remained until the authority of the British government was established on this island.
    After New York became a British colony the highway was called Queen street, and when it became a state the way was known as Pearl street, by which name it is now designated. In front of the plaintiff’s premises the street is forty-one feet wide between the house lines, but whether its exterior lines at and near this point coincide with those of Queen street, and of the ancient highway, does not appear. Since January 2, 1865, the plaintiff has been the owner in fee and in possession of a lot on the south side of this street, which is about twenty feet wide, and about ninety feet deep, on which a four story brick building about forty-three feet high, about twenty feet wide and sixty feet deep, has stood for more than fifty years, and is known as number 280. There is no other street or public way by which this lot can be reached.
    In 1871 The New York Elevated Railroad Company was incorporated under the general railroad law of this state, and in 1875 The Manhattan Railway Company was incorporated pursuant to chap. 606 of the Laws of 1875. During the winter of 1877 and 1878 the first mentioned corporation built an elevated railroad in this street, and in front of the plaintiff’s lot; which road, in August, 1878, opened for business, and was operated by that corporation until May 20, 1879, since which it has been operated by The Manhattan Elevated Railroad Company under a lease from its owner. The railroad, and its relation to the plaintiff’s property is described in the findings of fact (which description is not questioned) as follows: “ Pearl street, in front of plaintiff’s said premises is forty-one feet wide between the house lines; and the sidewalk is from nine feet eight inches to nine feet eleven inches wide. The elevated railroad structure, erected as aforesaid in front of these premises, consisted of a double row of hollow latticed iron columns, set about opposite each other in the edges of the sidewalk, on each side of the street, at intervals, along the street of about forty feet, each column being fifteen inches square, standing on an iron plate about eighteen inches square, supported by a foundation of stone, brick, etc., beneath the surface of the ground, about eight feet deep and six feet square, and said pairs of columns being connected at a height of sixteen feet above the street with open-work iron cross girders, about twenty-two feet six inches long, three feet deep and one foot wide on top, upon which along the street were placed four open-work iron longitudinal girders, about three and one-half feet deep and one foot wide on top, on which were laid, at a height of about twenty-two feet above the street, two railway tracks, consisting of iron rails placed upon wooden ties or sleepers, said rails being laid in parallel lines about four feet eight and one-half inches apart, and said sleepers being about eight feet long and eight inches wide and six inches thick, and placed with open, intervals from sleeper to sleeper of sixteen inches; the said tracks were laid seven feet three and one-half inches from each other, and just outside each iron rail was placed a wooden guard rail, parallel with the rails; said guard rails being about eight inches, high and six inches wide. Between the tracks is a narrow plank walk way. The said upper structure was made of open iron work with cross braces.
    “ The building on plaintiff’s said premises was erected upwards of fifty years ago. It is a brick building, four stories high, twenty feet wide, about sixty feet deep and measuring forty-three feet two inches in height from the sidewalk to the cornice line. The nearest rail of the elevated railroad is ten feet and si'x inches from the face of said building; the nearest portion of the upper structure of said railroad is about seven feet six inches from the face of said building. The level of the tracks is a little above the second story windows. One of said iron columns stands in the edge of the sidewalk, opposite the westerly wall of plaintiff’s said building, so that the westerly line of plaintiff’s said premises prolonged into the street would intersect the same, and leave about ten inches of the width of said column east of said line; and the space between the south face of said column and the face of plaintiff’s said building at the nearest point is eight feet.” Neither defendant has acquired, or taken any steps to acquire, by agreement or by condemnation, the right from the plaintiff to build, maintain or operate the railroad.
    This action was begun in November, 1883, to restrain the defendants from maintaining or operating the railroad and to compel them to remove it, and also to recover the damages sustained by the plaintiff by its construction and operation. The defendants, by their answers, deny that they have taken or impaired any of the rights of the plaintiff, and allege that he has acquiesced for five years in the construction and operation of the railroad.
    The trial court found as a fact “ the said railroad structure does not interfere with the air of plaintiff’s building, or with access thereto, in any substantial degree.” The court also found the fol-. lowing facts: “ That said structure is permanent, has and does fill a large portion of the space of said street in front of plaintiff’s said premises and seriously impairs his light; that said engines (those drawing the trains) emit smoke, gas, steam and cinders, which at times have and do enter the plaintiff’s premises through his doors and windows and cause him injury ; that by reason of the facts aforesaid the rental value of the plaintiff’s premises has been seriously diminished, * * * and his property has been and is permanently damaged and its value lessened.” It is also found as a fact that plaintiff’s north line is the south side line of Pearl street.
    
      Julien T. Davies and JEdward 0. James, for app’lts; Charles P. Justus A. B. Cowles, for resp’t
    
      
       Affirming 7 N. Y. State Rep., 43.
    
   Pollett, Ch. J.

The principal questions involved in this appeal are: (1). Has the plaintiff, by his ownership of a lot abutting on Pearl street, private rights, or rights of property therein. (2). Have the defendants taken or materially impaired those rights, if any the plaintiff has, within the meaning of the constitution. The term “ abutting owner ” will be used in this judgment to denote a person having land bounded on the side of a public street and having no title or estate in its bed or soil, and no interests or private rights m the street except such as are incident to lots so situated. The evidence upon which the facts were found not appearing in the record, the findings of the trial court must be accepted as true. In addition to the finding that the plaintiff’s lot does not extend beyond the line of the street, it should be noted that there is no finding that the plaintiff or any of his predecessors ever had any title to, or estate in, the land whereon this street is maintained, or any in the street except that of an abutting owner. ,,

The view taken of the rights of abutting owners renders it unnecessary to consider the much debated and interesting historical question as to whether the island of Manhattan was, within the law of nations, so discovered, settled, subjugated or possessed by the United Provinces as to impress upon it and its inhabitants the law of that country and the general rule of the civil law, that the title to the soil of highways and the beds of public streets is in the government If the plaintiff, by virtue of being an abutting owner, has not sufficient private rights or interests in this street to have enabled him to have maintained an action for the injuries found to have been inflicted, or for similar injuries inflicted without legislative authority, then he is without remedy m this case. In the cases about to be referred to, the plaintiffs were not all abutting owners, but none of them owned the part of the street whereon the obstruction or encroachment was placed which was the cause of the injury complained of. In Corning v. Lowerre, 6 John. Ch., 439, the owner o'f a lot on Vestry street was held en titled to maintain an action to restrain the defendant from constructing the street. In Van Brunt v. Ahearn, 13 Hun, 388, the parties owned lots on Catherine street in Brooklyn. The defendant obstructed the street at a point some distance from the plaintiff’s lot, causing him special damages, and it was held that the plaintiff had such a private right, the right of free ingress and egress, that he could maintain an action to recover his damages and restrain the continuance of the obstruction.

In Crooke v. Anderson, 23 Hun, 266, the parties owned lots on Washington Avenue in the city of Brooklyn and the defendant encroached (not obstructed) on that part of the street which was in front of his lot so that the street was less convenient for the plaintiff’s use in going to and from his lot, thus specially damaging the plaintiff; and it was held that he could maintain an action to abate the encroachment.

In Fanning v. D. M. Osborne & Co. and others, 34 Hun, 121, affirmed 102 N. Y., 441; 2 N. Y. State Rep., 64, the plaintiff was an abutting owner on Garden street in the city of Auburn, and the defendant', without legislative authority, maintained a railroad track in the street, over which cars were drawn by the power of steam. It was held that the plaintiff (he showing that he had sustained special damages), had a sufficient private right in the street to maintain an action to restrain the operation of the railroad. The same doctrine was held in Hussner v, Brooklyn City R. R. Co., 114 N. Y, 433 ; 23 N. Y. State Rep., 856.

In Callanan v. Gilman, 107 N. Y., 360; 12 N. Y. State Rep., 21, two abutting owners on Vesey street, in the city of New York, were engaged in business in adjoining stores. It was held that the plaintiff could, by action, restrain the defendant from improperly obstructing the sidewalk by using a temporary bridge or plankway, by which goods were taken from and into the store, and thus causing a special inj'ury or damage to the plaintiff.

In Stetson v. Faxon, 19 Pick., 147, the parties owned adj'oining lots in the city of Boston, which were bounded north by Ann street, and south by a street running along the north side of Market square. The city laid out a new street south of the last mentioned one, and sold to the defendant the land between his lot and the new street, which had formed a part of the old street. The defendant erected fences and buildings on the rand so purchased, which impaired the value of the plaintiff’s property by rendering it less convenient of access, and obscuring the view. In an action to recover damages, it was held that the old street not having been legally discontinued, the defendant was liable. The principle running through these cases has been maintained in England for at least two hundred years. Maynell v. Saltmarsh, 1 Keb., 847; Fritz v. Hobson, 14 Ch. Div., 542. The same rule has been held applicable to country highways, Pierce v. Dart, 7 Cow., 609; Hood v. Smith, 5 N. Y. Week. Dig., 117, and has received the sanction of the courts of most of the states of the Union. Ang. High., § 285. These cases do not rest on the fact that the wrongs happen to amount to public nuisances, for no person can maintain a private action for the recovery of damages against the creator or maintainer of a public nuisance, unless it occasions him special damages by an immediate injury to his person or property, or by a consequential injury to his property. Lansing v. Smith, 8 Cow., 146; aff’d. 4 Wend., 10; Wood Nuis., 655. All of these cases were for the recovery of consequential damages to real property, bounded by the side or center of the street, or for the recovery of such damages sustained by occupants of such property, and in none of the cases were the obstructions or encroachments on, or opposite to, the property of the plaintiff.

There are important differences between the case at bar and those cited. In the cases referred to the acts which were held to be actionable wholly or partly obstructed the streets and rendered the property of the plaintiffs less accessible, and none of them were done pursuant to legislative authority; while in the case at bar the acts complained of were done pursuant to súoh authority, and do not, as found by the court, impair, in any substantial degree, the accessibility of the plaintiff’s premises. But these cases do establish the principle that the owner of a lot on a public street, whether it extends across, to the center, or only to the side of the street, has incorporeal private rights therein which are incident to his property which may be so impaired as to entitle him to damages. If this be not so, it is difficult to see how he can maintain any action except such as can be maintained by a stranger for an immediate injury to person or property caused by an obstruction while" lawfully travelling in the street. The judgments in Story v New York Elevated Railroad Co., 90 N. Y., 122 ; Lahr v Metropolitan R. R. Co., 104 id., 268 ; 4 N. Y. State Rep., 340, seem to compel this conclusion. In Story’s case importance was given to the language of a covenant contained in the grants dividing and conveying the lots forming a larger tract owned and granted by the city (of which Story’s lot was a part), and to chapter 86 of the Revised Laws of 1813, under which the street was laid out. But the judgment in Lahr’s case was not placed on the ground that any rights in or to the bed of. the street had been granted or reserved to him, or to any of his predecessors, and it was held, some force being given to the act of 1813, that he had rights of property in the street. The learned judges who delivered dissenting opinions in Story’s case did not deny, but rather assumed that the abutting owner had rights of property in the street, and held that those of the public were paramount, that the rights of both arose and existed by virtue of the same authority, and that those of the abutting owner could, by legislative and municipal action, be further subordinated to the rights of the public for the purpose of affording additional and necessary facilities for the transportation of persons and property through the street. Since Story’s case was decided, questions akin to the one under consideration have been discussed by the court of appeals.

In Mahady’s case, 91 N. Y., 153, Andrews, J., in delivering the opinion of the court, said: “The plaintiff, though an abutting owner simply, the fee of the street being in the city, was entitled to the use of the street, and neither the legislature nor the city could devote it to purposes inconsistent with street uses without compensation, according to the principle of Story v. Elevated R. R. Co., 90 N. Y., 122.’’ Again, the same learned judge, in deliv<ering the opinion in Pond's case, 112 N. Y, 188; 20 N. Y. State Rep., 479, said: “ the Story case, 90 N.Y., 122, established the principle that an abutting owner on streets in the city of New York possesses, as incident to such ownership, easements of light, air and access in and from the adjacent streets, for the benefit of bis abutting lands, and that the appurtenant easements and outlying rights constitute private property of which he cannot be deprived without compensation.”

In Powers v. Manhattan Railway Company, 120 N. Y., 178. 30 N. Y. State Rep., 584, Brown, J, in his opinion, said' “ The facts of the Story case were not broad enough to necessarily cover the case of an abutting owner whose only property in the street was an easement for light, air and access, and hence the right of such owners to maintain actions for damages was not finally set at rest until the decision in Lahr v. Metropolitan Elevated Railway Co." The cases last cited did not, perhaps, involve the question discussed in the remarks quoted; but" it cannot be assumed that they were made without deliberation, for since Story's case this precise question has been much debated, and hardly out of the niinds of the judges of the court of last resort

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 m the streets before the roads were built, or authorized to be built. _t 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 street and that an action could have been maintained against the defendants for the recovery of the damages caused by tlicir 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 constitution of this state provides, “nor shall private property be taken for public use without just compensation.” Article 1, § 6.

It is settled by Story's case and Lahr's case that such rights as this plaintiff has in Pearl street “ are private property ” within the meaning of the constitutional provision quoted: and these cases also hold that by the construction and operation of an elevated road in the street in front of an owner’s premises his rights are “ taken for public use,” within the meaning of the constitution. It follows that the authority conferred by the legislature to construct the road is not a defense to the action.

Fóbes v. Rome, Watertown & Ogdensburgh R. R. Co., 121 N. Y. 505 31 N. Y. State Rep., 828, does not decide that an abutting owner has not vested rights to light, air and access in a public street, which are incident to his lot and which are private property, within the meaning a£ the constitution; but that the operation pursuant to legislative authority by the defendant of its steam railroad on the grade of the street, which was at about the natural surface of the ground, was not an actionable invasion of the abutter’s right. The learned judge who wrote the opinion in that case thus defined the limits of the question to be discussed “It (defendant) admits that plaintiff had an easement in that street, but it denies that it has occupied or appropriated it. Whether it has taken any portion of the plaintiff’s easement in the street in question, is what the defendant asks shall be decided by us, and it denies in toto any taking whatever of the plaintiff’s-property or any portion thereof.”

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.

It is urged that if the plaintiff ever had a right of action, it has been lost by his acquiescence in the construction and use of the road by the defendant. It is found that when the road was being built through this street the plaintiff forbade the New York Elevated Eailroad Company to construct it, and threatened that corporation with litigation, but began no action until this suit was commenced, and in the meantime he has occasionally been a fare-paying passenger on the road. Had this action been brought in equity solely for the purpose of compelling the defendants to remove their structure, and if all persons having such interests in the elevated road as would entitle them to be heard before such relief could be granted were parties to the action, personally or representatively, this question might require some consideration, but in an action for the recovery of damages, the conduct of the plaintiff, as found by the court, and his delay in bringing the action, is not a defense.

The order should be affirmed, and ¡judgment absolute rendered against the appellants, with costs.

All concur, except Haight, J., absent  