
    Henry P. Pfohl et al., Plaintiffs, v. The International Railway Company, Defendant.
    (Supreme Court, Erie Special Term,
    June, 1912.)
    Injunctions — street railways — abutting owners.
    The construction and operation of a street railway having a franchise may not be restrained at the suit of an abutting owner who has no title to the fee of the street.
    Motion by defendant to vacate temporary injunction restraining defendant from operating a street railway in front of plaintiffs’ premises on Burnett road.
    Alfred L. Becker and Dana L. Spring, for motion.
    Mark P. Kerr, opposed.
   Brown, J.

The plaintiffs are the owners of lots 67 and 68 on the south side of Burnett road, the north bounds of the lots being the south line of the highway. The plaintiffs do not own to the center of the highway, they are owners of lots abutting on the highway. The plaintiffs claim that as such owners they have an easement and vested rights in the highway and that the operation of the street surface-railway by the trolley system will irreparably injure this easement and vested right, for which they have no adequate remedy at law, and that they are entitled to restrain such operation of the street surface railway until compensation is paid them for such injury.

The defendant has a franchise for such occupation of the highway. The authorities relied upon by the plaintiff are Falkner v. New York, W. S. & B. R. Co., 17 Abb. N. C. 279; Story v. New York E. R. R. Co., 90 N. Y. 122; Peck v. Schenectady R. Co., 170 id. 298.

In the Falkner case the plaintiff was an abutting owner, and the proposed railroad through the street was a steam railroad operated by locomotives; it was held that the occupation of the street by a steam railroad was inconsistent with the use of the street as a public highway. In the Story case the plaintiff owned to the center of the street, and it was held that the erection of columns and iron posts in front of plaintiff’s premises upon which to construct and operate an elevated steam railway interfering with plaintiff’s rights to air, light and access to the street, etc., was an infringement upon plaintiff’s rights. In the Peck case plaintiff was the owner of the fee of the street subject to the public use thereof as a highway, and it was held that the operation of a street surface railroad by electric power imposed an additional burden upon the property rights of the owners of the fee, subject to the public easement for street purposes.

. It is clearly the law that an abutting owner who has no title to the fee of a street cannot complain of the construction and operation of a street surface railway operated by horse or electric power through the street. As was said by Judge Andrews in Reining v. New York, L. & W. R. Co., 128 N. Y. 163, the distinction is made to rest on the location of the feé. When the abutting owner is also the owner of the fee of the highway the taking of such fee for street railroad purposes imposes an additional burden upon such ownership of the street. Kennedy v. Mineola, H. & F. Traction Co., 77 App. Div. 484; Reining v. New York, L. & W. R. R. Co., 128 N. Y. 157; Peck v. Schenectady R. Co., 170 id. 298.

The temporary injunction must be vacated. The defendant’s motion for judgment dismissing plaintiff’s complaint on the pleadings must be granted.

Ordered accordingly.  