
    ADLER v. METROPOLITAN ELEVATED RAILWAY CO.
    
      N. Y. Superior Court;
    
    
      General Term, April, 1892.
    
      Highways ; elevated railway.] An elevated railroad company has no right to project a station or any other portion of its structure beyond the designated route, into a side street. In an action, therefore, by an abutting owner, to enjoin the operation of the railroad in front of his premises, the court will direct the removal of even a slight projection of defendant’s structure beyond the permitted line.
    Appeal from a judgment for plaintiff entered at an equity term.
    
      The action was brought by Leopold Adler against the Metropolitan Elevated Railway Company, and another, to restrain the operation of defendant’s railway in front of plaintiff’s premises, No. 132 First avenue.
    Plaintiff obtained a judgment for past damages and an injunction against the operation of the road if defendant failed to pay a specified sum for the easement. Defendants were also directed to remove so much of their station as extended into Eighth street.
    
      Davies & Rapallo and B. Tolles, for appellants.
    
      C. P. & J. A. B. Cowles, for respondent.
   McAdam, J.

The evidence satisfactorily sustains the findings of the court below, both as to past damages and value of the easements. The only question requiring special mention arises on the part of the judgment which requires the defendants to remove that portion of their structure or station which projects into Eighth street.

The plaintiff does not dispute the right of the Metropolitan Elevated Railway Company to build and maintain stations along its established route. The Legislature has given it this authority, and in any event it would seem to follow by necessary implication. But he insists that the defendant can exercise only such power as the Legislature has given it; that when the route is designated, this means that the corporation must keep the whole and every part of its structure, of whatever nature the same may be, within the confines of the line, and that although stations, sidings and switches may be constructed on the roadway, they cannot be built off such route. The plaintiff is correct in his contention.

The railway company has no right whatever to appropriate public streets or highways to its use without legislative sanction, and even then is bound to make compensation to the abutting owners for any injury done to their property by reason of any interference which its structure may cause to their easement of light, air or access, or any depreciation in fee or rental value resulting from the operation of its road.

The onus was, therefore, upon the railway company to show some grant which permitted it to diverge from the line of its route into Eighth street, and erect a station projecting two feet beyond the easterly line of First avenue. No such permission was shown, and that portion of the structure must therefore be assumed to have been built and maintained without the semblance of right (not as a temporary privilege, but permanent erection), and the court below properly directed its removal.

This accords with the decision of Judge O’Brien in dismissing condemnation proceedings affecting the same property (N. Y. Supreme Ct., N. Y. Law J., January 26th, 1891, p. 1024). In the construction of grants of franchises, such grants are generally construed most favorably to the public and most strongly against the grantee ; nothing as a rule passes except what is expressed in unequivocal language (Langdon v. Mayor, etc., 93 N. Y. 129, 147; Syracuse W. Co. v. City of Syracuse, 116 Id. 167, 178).

Applying this rule, it follows that as Eighth street is not included in the route designated by the Rapid Transit Commissioners, and was not essential to the enjoyment of the franchise, it is to be regarded as excluded. There is room for no other implication.

The defendants urge that the interference with the public right in Eighth street is too trivial to be made the basis of a judgment for removal, on the principle of de minimis non curat lex. This maxim is never applied to the positive and wrongful invasion of another’s property. The degree is wholly immaterial (Seneca R. Co. v. Auburn, etc. R. R. Co., 5 Hill, at p. 175). Two feet of land in a thickly populated portion of a city is not so trifling as to deny the injured party the legal remedies necessary or proper for asserting the right of property thereto, or to redress any trepass thereon.

We find no error, and the judgment appealed from .must be affirmed, with costs.

Freedman, P. J., concurred.  