
    George W. Sauer, Appellant, v. The City of New York Respondent.
    
      tt levaied viaduct for street purposes over a street of which the fee is in the city the damage to an abutting owner is damnum absque injuria. .
    An owner of property abutting on One Hundred and Fifty-fifth street in the borough of Manhattan, city of Hew York, the fee of which street is held: by the city in trust for highway purposes, is not entitled, in the absence of any statutory provision therefor, to any legal or equitable relief on account of the construction by the public authorities of the city of Hew York, pursuant to chapter 576 of the Laws of 1887, of the elevated viaduct above and upon One Hundred and Fifty-fifth street, which viaduct was built to facilitate public travel and is used exclusively for ordinary street uses .and purposes.
    The damage suffered by the abutting owner by reason of the construction of the viaduct is damnum absque injuria.
    
    Appeal by the plaintiff, George W. Sauer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day off September, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits..
    
      Abram I. Elkus, for the appellant.
    
      Edward J. McGuire, for the respondent.
   Laughlin, J.:

The plaintiff owns the premises situate at the southwesterly corner of Eighth avenue .and One Hundred, and Fifty-fifth street, having a frontage of one hundred and seventy-five feet on One Hundred and Fifty-fifth street and forty-nine feet and eleven inches on Eighth avenue. He brings this suit in equity to enjoin the defendant from using the viaduct constructed above and along One Hundred and Fifty-fifth street and to compel the removal of the same and to recover consequential damages. The city owns the fee to One Hundred and Fifty-fifth street and to Eighth avenue and holds the same in trust for public highway. purposes. Prior to the 15th day of June, 1887, One Hundred and Fifty-fifth street had been regulated and graded from Eighth avenue westerly to Bradhurst avenue which runs along the foot of a bluff about' seventy feet high. One Hundred and Fifty-fifth street as laid out upon the records ascends this bluff and continues on westerly to the North river. It was opened, regulated and used from the bluff toward the west, but there was no access from Bradhurst avenue up the bluff to the street above, or from the street above down. From Bradhurst avenue to the Harlem river was a substantially level plain. An elevated bridge known as McOomb’s Dam bridge was constructed over the Harlem river from the easterly end of One Hundred and Fifty-fifth street. By chapter 576 of the Laws of 1887, which became of force on the fifteenth day of June of that year, the Legislature authorized the commissioner of public- works of the city of New York with the approval of the board of estimate and apportionment “ to improve and regulate the use of One Hundred and Fifty-fifth street ” by erecting and constructing over and along One Hundred and Fifty-fifth street from McOomb’s Dam bridge -to St. Nicholas place at the top of the bluff, an elevated iron roadway, viaduct or bridge, with “ the necessary abutments, arches over intersecting avenues and approaches thereto for the passage of animals, persons, vehicles and traffic.” Plans and specifications for the viaduct were prepared and duly approved and the viaduct was constructed in accordance therewith. The street and avenue are each one hundred feet in width. The platform of the viaduct embracing a carriageway of paving blocks and sidewalks of asphalt is sixty-three feet wide. It is built upon two lines of iron columns, each one foot and six inches square resting on the roadway of the street below. The columns are forty feet apart measured from center to center across the roadway and forty-three feet longitudinally. There is a space of about ten feet between the columns and the curb on either side. The southerly edge of the platform above is distant eighteen feet and three inches at right angles from the northerly line of the plaintiff’s premises. The platform over Eighth avenue is widened for the distance of eighty feet, forming a quadrilateral one hundred and sixty feet in length up and down Eighth avenue and eighty feet in width of the same character and method of construction as the main platform. At this point and in front of the plaintiff’s premises the platform is about fifty feet above the surface of the original street. Two of the columns supporting the platform are on the'sidewalk of Eighth avenue about fifteen and one-hálf feet from the line of plaintiff’s land and the platform over Eighth avenue is ten feet distant at right angles from the line of his premises. The viaduct slopes from west to east from the brow of the hill to the level of the roadway of McComb’s Dam bridge. A stairway extends from the platform of the viaduct within the lines of One Hundred and Fifty-fifth street to the southwesterly corner of One Hundred and Fifty-fifth street and Eighth avenue for the use of pedestrians in ascending or descending and there is a similar stairway opposite on the northerly side of the street. There is also another platform constructed underneath over One Hundred and Fifty-fifth street and Eighth avenue on a level with the elevated railway station connecting with these stairways and thus affording access to the station. The surface of the street below as it existed prior to the construction of the viaduct has not been changed and it remains open and unobstructed for public travel, except by these stairways and pillars.

The structure undoubtedly somewhat interferes with ingress and egress to and from plaintiff’s premises and with light and the circulation of air, but in our opinion these constitute dcmmun absque injuria. The structure was authorized and has been constructed for the purpose of facilitating public travel on One Hundred and Fifty-fifth street, a purpose for which the city holds' the fee to that street in trust. The Legislature evidently deemed that, owing to the elevation of this bluff, the difficulty if not impossibility of constructing the street up the bluff and the elevation of the bridge at the easterly end of the street, the convenience of the public would be best subserved by having a roadway and sidewalks above as well as a roadway and sidewalks below, and having them connected by stairways. The street overhead as well as that on the natural surface of the ground has been constructed and used exclusively for public travel and for ordinary street uses and purposes. At common law an abutting owner has no redress for the incidental damages sustained by him by any improvement made in the street to facilitate public travel therein, even though the improvement may consist of a serious change of grade of the street rendering his property inaccessible. In these cases he has no remedy unless the Legislature sees fit to authorize the payment of his damages. In the case at bar the Legislature passed a special act designed to afford the plaintiff relief by compensation for the damages sustained. (Laws of 1894, chap. 512.) Whether the act will be effectual for the purpose is of no importance in the determination of the question now presented. The plaintiff has no easement for light, air and access, as against the public, which will enable him to enjoin the making of any changes or alterations, in the street authorized by the Legislature to facilitate public travel. This being the character of the improvement made, the action cannot be maintained and the complaint was properly dismissed.

It follows that the judgment should be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs.  