
    Luke Eldert, Respondent, v. The Long Island Electric Railway Company, Appellant.
    
      Nuisance — erection on a highway of an inclined road connecting-a surf ace with an elevated railroad ■—• highway commissioners cannot authorize it — consents of property owners and of the public authorities are necessary.
    
    Highway commissioners have no power to authorize the erection by a street surface railroad corporation, upon a public highway, of an elevated inclined plane connecting its track with an elevated railroad, their power in the premises being limited to granting permission to the surface railroad corporation to extend its road or some branch thereof on the surface.
    An owner of land in the highway adjoining the point at which the inclined plane begins has,' although no part of the structure is in front of his premises, such a special interest in the matter as entitles him to maintain an action in his individual name for its removal as a nuisance.
    The consents of abutting owners and of the local authorities are essential to the legality of such an erection.
    Such elevated 'inclined plane imposes an additional burden upon the highway not contemplated by the original consent of the property owners to the construction of the street surface railroad.
    A connection between a street surface railway and an elevated railroad by an inclined plane is not a joining or union within the meaning of section 4 of the Railroad Law (Chap. 565, Laws of 1890).
    Appeal by the defendant, The Long Island Electric Railway Company, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of January, 1898, upon the decision of the court, rendered after a trial at the Queens County Special Term, perpetually enjoining the defendant from maintaining upon a public highway, known as Liberty avenue, in the county of Queens, a wall of masonry and an iron structure, erected by the defendant to connect its railway track with the Kings County Elevated Railroad at the county line between the counties of Queens and Kings.
    
      
      Meyer Auerbach [Edward C. James with him on the brief], for the appellant.
    
      F. H. Van Vechten, for the respondent.
   Goodrich, P. J.:

The plaintiff and two other persons, not parties plaintiff, are the owners, as tenants in common, of property on both sides of Liberty avenue, and the owners in-fee of the adjacent roadbed of the highway upon which the structure in question is erected. The record contains an agreed statement of facts, in which, and also in the court’s finding of facts, it is stated that the plaintiff’s land lies on both sides of Liberty avenue, beginning at a point about 1,000 feet easterly from the line dividing the counties and extending easterly about J50 feet, and that the plaintiff and two other persons, as tenants in. common, are the.owners of the fee of the roadbed of said public highway, known as Liberty avenue, in front of Said premises, subject, to the public easement of the right of passage and repassage over the same.”

The defendant is a corporation, organized under the General Railroad Laws of the ’ State applicable to street surface railway companies, for the purpose of constructing and operating a street surface railroad along certain public highways in Queens county, including Liberty avenue, and extending thence easterly to Broadway, in the town of Jamaica.

It is further found that upon a.portion of Liberty avenue, and about the center of the roadbed, the defendant has erected a solid embankment or wall of masonry, about eight feet in width, from a point one thousand feet easterly from the dividing line of the counties; that the embankment starts at the level of the grade of Liberty avenue and thence extends about two' hundred feet westerly, by a gradual slope, to a maximum height of about ten feet above the grade of the avenue; and that -from the westerly end of the wall the defendant has erected iron girders in the middle of the avenue, about twenty-five feet apart and about ten to thirty-five feet in height, on which girders rest a structure of iron in the form t>f a railroad track trestle, with a gradual slope upwards to and connecting with the railroad tracks and structure of the Kings County Elevated Railroad, at the dividing line between the counties; that the defendant erected this structure with the permission and consent of the highway commissioners of the town and for the purpose of connecting its track with that of said elevated road; and that Liberty avenue is sixty feet wide and that there is a space of twenty-five feet on-each side of the structure.

The court found, as matter of law, that the defendant had no authority to erect the structure; that the authority or consent of the highway commissioners was not comprehended within their powers, and conferred upon the defendant no right to erect the structure; that it is a nuisance and unlawful burden on the property rights of the plaintiff and has worked him an injury, as owner of the fee of the road and the land on both sides of Liberty avenue, “ abutting upon that portion of the avenue upon which the defendant has erected the wall of masonry and structure aforesaid.”

The judgment enjoined the defendant from erecting, constructing or maintaining said structure, upon Liberty avenue in front of the property on said avenue, now owned by the plaintiff and the other parties as tenants in common, and directed it, within thirty days, to remove the same “ from the roadbed of said Liberty avenue in front of the premises aforesaid.” From this judgment the defendant appeals.

There is no evidence that any part of the structure is erected opposite the plaintiff’s property. I assume that the roadbed of Liberty avenue, referred to in the agreed statement, findings and judgment as belonging to the plaintiff, is only that part of the avenue upon which the plaintiff’s property abuts. Such property is described as commencing at a point about 1,000 feet easterly of the dividing line of the counties and running thence easterly 750 feet, while the structure in cpuestion is described as commencing at a point 1,000 feet from the dividing line of the counties and running thence westerly, that is, towards the county line. In other words, there is a j>oint 1,000 feet from the county line, and the plaintiff’s lands are all easterly of that point, while the structure rises and extends westerly from that point, so that no part of the structure is exactly opposite the plaintiff’s lands.

But it does not follow from this that the plaintiff has no individual right of action, or that .he has no interest in the subject other than that' which belongs to the general public, and that on that account . this action is maintainable only in the name of the People.

■Taking the description of the plaintiff’s premises as commencing at a point exactly, instead of “ about,” 1,000 feet easterly from the county line, and the defendant’s structure as commencing at a point 1.000 feet easterly from said line, the plaintiff’s lands adjoin or are adjacent to the point in the highway where the structure begins.

In Holmes v. Carley (31 N. Y. 289) a question arose .under á statute giving jurisdiction to a justice of the peace to try an action either in the County where the plaintiff, resided, or “ before some justice of another town in the same county next adjoining.” ’ The '■corners of four towns met at one point, and it was held that the diagonal towns adjoined each other at the corner.

In Peverelly v. The People (3 Park. Cr. Rep. 59) the question arose on an appeal from a conviction for arson. The statute defined the crime to be the firing of á building, not the subject of arson in the first degree, but adjoining or within the curtilage of any inhabited dwelling house. The indictment was for firing a Avarehouse adjoining an inhabited dwelling house. The court said that the term adjoin seemed to have no fixed meaning, but held that the buildings must actually touch or be in close contact with each other,, ■to fall within the definition of adjoining.

The statute relating to division fences (1 R. S. [9th ed.] 753) requires the erection of fences by the owners of two adjoining tracts of land. Here, it is evident that the statute relates to lands running side by side.

But in the case at bar the dividing point, where the structure begins is adjacent to the plaintiff’s property, and is spoken of as, being on a road leading to Jamaica and about, and not-exactly, 1.000 feet from the county line. Jamaica is the county town and the largest town of Queens county, and, with this town, it may . be assumed all residents of the county, including the plaintiff, have frequent business. A public and continuing nuisance oil the highway leading to this business center necessarily inflicts upon the plaintiff inconvenience and damage beyond that inflicted upon more distant OAvners. If the structure was not erected by lawful authority, it is a purprestnre and a nuisance. The court, upon the facts, has found that it-“ constitutes a nuisance and an unlawful burden upon the property rights of the plaintiff, and has worked an injury to him.”

This brings us to the question whether the structure is a nuisance. The defendant is organized as a street railway company. It had the right to lay its- tracks on the surface, and only on the surface, of the highway. It claims that the law' gave authority to the highway commissioners to permit the erection, above the grade of the highway, of a structure to connect with the elevated road. We find no such power resident in the highway commissioners. Their power, in respect to a street surface railroad company, is limited to granting it permission to extend its surface road, or some branch thereof, but still on the surface. The elevated structure was, therefore, erected without the consent, either of the abutting owners, or of the local authorities, and was unlawfully built.

The law is well settled that any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass.” Such was the decision of the Court of Appeals in Davis v. The Mayor, etc., of New York (14 N. Y. 506, 524), where the court also held that if a railway were placed in a street “ without right, the authors of the act could not defend themselves from the charge of nuisance. The authorities for this position are constant and uniform, and leave no doubt upon the question.” (Citing numerous authorities.)

Section 385 of the Penal Code defines a nuisance as consisting, among other things, of an act which “ unlawfully interferes with,' obstructs, or tends to obstruct * * * a public * * * street or highway.” In the Davis Case (supra) the court held that that which is authorized by competent legal authority cannot in law constitute a nuisance,” and the defendant contends that it obtained the right to erect the structure, under the Railroád Law (2 R. S. [9th ed,] 1251; Laws of 1890, chap. 565, § 4, subd. 5), which reads:

“§ 4. Subject to the limitations and requirements of this chapter, every railroad corporation, in addition to the powers given by -the general and stock corporation laws, shall have power. * * *

4. To construct its road across, along or upon any * * * highway. * * *

“ o. To cross, intersect, join, or unite its railroad with any other railroad before constructed, at any point on its route, and upon the ground of such other railroad corporation, with, the necessary turnouts, sidings, switches, and other conveniences in furtherance of the objects-of its connections.”

. But article 4, section 90, which provides for the organization of companies for the construction of street railways, requires the filing of a map and profile. It nowhere appears that any profile was filed, and it may, therefore, be assumed that the intention of the organization was to construct a road only upon the surface of the highway. Indeed, its certificate states that it is to be a “ street surface railroad,” and its route is stated to be “ along ” certain highways, including Liberty avenue. Certainly there was no intention- in the organizers to construct any other than a street surface railroad. The original consent of the highway commissioners, given in pursuance of section 91 of the Railroad Law, provided that “ the said tracks shall be laid.in the centre of said avenue, and the present grade thereof shall not be changed without the written consent or order of said commissioners.”

In 1895 the company applied to the commissioners for permission “ to change the plan of construction * * * for the purpose of making a convenient connection with the railroad of the Kings County Elevated Railroad Company; ” and the commissioners gave permission “ to elevate one track of its railroad on the westerly one thousand feet of said Liberty avenue by a gradual incline rising westerly along said Liberty avenue and connecting with ” the said tracks.

The underlying question is whether a connection between a street surface railway and an elevated railroad, by an inclined plane, is a joining or union in the sense of section 4 of the Railroad Law. We are of the opinion that it is not. No elevated structure was originally contemplated by the company when it was organized. The property owners might and did consent to a surface railroad, but they have given no consent to an elevation above the grade of the highway. This is clearly an additional burden, not contemplated. when their consent was given. That consent was to a surface road and not to an elevated structure. A consent for the latter must be obtained from the abutting owners, within the decision of Colonial City T. Co. v. Kingston City R. R. Co. (153 N. Y. 540). The consent of the highway commissioners, if it means anything, refers to the extension of the road, or the building of a branch thereof, and section 91 forbids the construction of an extension or branch, without the consent of one-half of the abutting owners and of the local authorities. The record contains no such consent of abutting owners, and without it the erection of such a structure on a public highway is a nuisance.

. With these views, we cannot do otherwise than affirm the judgment.

All concurred.

Judgment affirmed, with costs:  