
    Hine v. New York El. R. Co.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Conflict of Laws—Dutch Occupation of New York.
    The city of New York, though occupied by the Dutch, was always English territory ; and hence the “Bowery, ” a street alleged to have been dedicated during the Dutch occupancy, is governed by the rules of the common law, and not by the civil law, as to the rights of abutting owners.
    2. Streets—Rights of Abutting Owner.
    An owner of land abutting on the Bowery is entitled to easements of light, air, and access, and may recover for injuries to those rights arising from the construction of an elevated railroad on the street.
    Appeal from circuit court, New York county.
    Action by Charles S. Hine against the New York Elevated Baiiroad Company to recover for injuries to plaintiff’s premises by the construction and operation of an elevated railroad on a street adjacent thereto. After plaintiff’s testimony was in, defendant moved to dismiss for failure of plaintiff to-“prove facts sufficient to constitute a case.” The motion being granted, plaintiff appeals. For former report, see 36 Hun, 293.
    Argued before Brady and Daniels, JJ.
    
      W. IT. Arnoux, for appellant. Davies & Sapallo, for respondent.
   Brady, J.

The plaintiff brought this action to recover damages alleged to have been sustained by reason of the manner in which the defendant built, constructed, and operated its railway. The details given in the complaint were that the engines used constantly emitted noxious gases, odors, smoke, steam, coal-dust, and cinders, which passed into and through the plaintiff’s building, to the great discomfort of the occupants; and, further, that to exclude the odors and gases mentioned, and to lessen the noises occasioned by the passage of the defendant’s engines and cars, it was necessary to keep the windows of the plaintiff’s building shut; that he had been unable to remedy the evils stated, and, in consequence, the beneficial use and enjoyment of his property had been greatly damaged, and its value greatly reduced. The defendant denied that the plaintiff had any right, interest, easement, privileges, or benefits in the street known as the “Bowery,” and in which plaintiff’s property is located, other than the right of passage, and alleged that such right was not interfered with. It also denied the emission of gases, odors, smoke, steam, coal-dust, or cinders, which passed through the building of the plaintiff; denied that the plaintiff was obliged to keep the windows of the building shut, as alleged in reference to such elements; and that the plaintiff had sustained damages by their wrongful acts. The defendant then alleged that it was duly organized under the acts of the legislature set out; that it had authority to build the railway, and to equip the same with locomotives for use thereon; and that such construction and use had been made in the most skillful and careful manner in which it was possible to operate an elevated railway in the streets of this city. Upon the trial the plaintiff put in evidence a warranty deed granting the locus in quo to the plaintiff, and then gave evidence tending to show that the rental value of the premises was injured by the construction and operation of the defendant’s railway, in their effect upon the light, air, and access to them, to the extent of $2,500 a year, and that they were thereby injured in value to the extent of $20,000, and rested. Defendant’s counsel put in evidence Act 1866, c. 697. Also put in evidence articles of association of the West Side & Yonkers Patent Railway Company. Also put in evidence the following acts: Act 1867, c. 489, and Act 1868, c. 855. Also put in evidence appointment of commissioners by the Croton aqueduct department by the governor, pursuant to the requirements of the aforesaid acts. Also put in evidence supplemental articles of association of the West Side & Yonkers Railway Company, changing the name of the company. Also put in evidence a mortgage given by the company, and foreclosure proceedings under the mortgage given by the company, and the deeds of the property and franchises of the company to the Hew York Elevated Railroad Company, and the permission of the commissioners so appointed to use dummy engines. Also put in evidence approval by the commissioners of the location and the plans of the structure, stations, and so forth, of the defendant road, and the resolutions connected therewith. Also put in evidence articles of association of the New York Elevated Railroad Company; Act 1875, c. 595; also Act 1875, c. 606; also appointment of commissioners by the mayor, under chapter 606 of the Laws of 1875. Also put in evidence the plan of the route designated by the commissioners, and the conditions and requirements imposed by the commissioners, with the resolutions relating to the same. Also put in evidence proceedings in the supreme court giving consent to the construction and the operation of the Hew York Elevated Railroad, including the order in said proceedings. Also put in evidence resolutions of the board of aldermen, with the approval by the mayor, consenting to the route so designoted. Also putin evidence the lease of the New York Elevated Railroad Company to the Manhattan Company in 1879, and the subsequent lease of 1884 by the same company to the Manhattan Company. Defendant’s counsel then put in evidence a stipulation as to the description of the property taken in this case, marked “Exhibit No. 1;” *

■“N. Y. supreme court. . Charles S. Hine against The New York Elevated Railroad Company. It is hereby stipulated by the parties to this action, for the purpose of any future trial of'the same, that the diagram marked ‘A,’ signed by the counsel hereto, correctly represents the length and position of the boundary lines, according to survey, of the lot No. 13 Bowery, which is described in a deed made February 1st, 1855, by Thomas Ward and wife to Charles S. Hine; the figures upon said diagram correctly stating the length of the respective boundary lines in feet and inches,—the distance from the northeast corner of said lot, along the northerly boundary line, to the easterly line of the Bowery, being, by measurement, 106 feet six inches; and the distance from the south-easterly corner of said lot, along the southerly boundary line, to the easterly line of the Bowery, being, by measurement, 110 feet nine inches. Dated N. Y., March 24th, 1886. Arnoux, Bitch & Woodford, Attorneys for Plaintiff. Davies & Rapallo, Attorneys for Defendant.

“Supreme court. Hine v. New York Elevated R. R.

Also put in evidence Valentine's History of New York from 1609, vol. 1, pp. 30, 31, 69, 70. Also put in evidence Hoffman’s Appendix to the Estate and the Eights of the Corporation of New York, vol. 2, the grants mentioned in pages 214, 242, 237, 226, 238, and 193. Also put in evidence Map of Ancient Bowery, being Diagram No. 14 in Hoffman’s Appendix, p. 226. Also put in evidence page 236 of Hoffman’s Appendix, and the grant made in 1645, by Governor Keefe to Classen; also grant dated in 1653, of the same property, from Classen to Beekman; also grant made in 1667. Also put in evidence deed dated 1784, recorded in Liber 54, p. 348, from Isaac Stonghtenburgh and others, commissioners in forfeiture, to John W. McKesson; letters of administration on the estate of John W. McKesson, recorded in the surrogate’s office in Liber 5, p. 246; records of the court of common pleas, containing the proceedings in the partition of the real estate of said McKesson; order of said court, dated January 6,1801, appointing commissioners to make partition; deed of the commissioners to Smith Hicks, recorded in Liber 79 of Conveyances, p. 39; deed from Smith Hicks to Anna Gearadt, recorded in Liber 85 of Conveyances, p. 93; deed from Anna Gearadt to Henry T. C. Feltus, recorded in Liber 180 of Conveyances, p. 52; the last will and testament of Henry T. C. Feltus, recorded in the surrogate’s office in Liber 62, p. 372; letters testamentary and deed of executors, recorded in Liber 328 of Conveyances, p. 570, to Jacob Lorillard, conveying the same property; last will and testament of Jacob Lorillard, recorded in the surrogate’s office in Liber 79 of Wills, p. 104; deed of Margaret Anna Lorillard, recorded in Liber 447 of Conveyances, p. 574, to Jacob Lorillard, Jr., and others; letters testamentary on the estate of Margaret Anna Lorillard, issued to Albon P. Man, dated December 3,1846; deed recorded in Liber 486, p. 38; deed of partition, recorded in Liber 488 of Conveyances, p. 245; deed from Thomas Ward to the plaintiff. The deed from Isaac Stoughtenburgh, Liber 54, page 348, to John McKesson, conveys a portion of the land designated on Diagram No. 14, of Hoffman, supra, as “E. Bowery, No. 5; ” the description being, “Bounded westerly by the Bowery lane,” etc. The foregoing chain of title conveys the same property down to the plaintiff’s grantors, Thomas Ward and Margaret H., his wife, except that the description in deed of partition, supra, Liber 488, p. 245, is as follows: “Bounded westerly in front by the Bowery, * * * containing in width twenty-four feet five inches in front, and twenty feet eight inches in the rear, and in length on the north side 106 feet six inches, and on the south side 111 feet, be the said several dimensions more or less. ” Also put in evidence terms of capitulation between the British and the Dutch government in 1664, which appear in Hoffman’s Estates, etc., of the Corporation of New York, vol. 1, pp. 19, 333. .Also put in evidence the treaty of Breda, 1674, by which the terms of that capitulation were affirmed. Also put in evidence patent from the British government to the Duke of York. Also put in evidence the Dongan charter of 1686, and the Montgomerie charter of 1730. And thereupon, for the purposes of the following motions, the defendants rested their case.

The testimony being thus closed, defendant’s counsel moved to dismiss the complaint upon the following grounds: (1) That plaintiff has failed to prove facts sufficient to constitute a case. (2) That the plaintiff has failed to prove that he has, or that there is appurtenant to his lot, any easement to light, air, or access, or any property right in the street called “Bowery;” or that there is any right or easement to use the land forming the bed of that street, peculiar to himself or his lot, other than those he has a right to enjoy as one of the public. (3) That plaintiff has failed to prove that any property of his has been taken ,by defendant, by the erection or maintenance of the structure of the elevated road in said street, or the operation of trains thereon, and that there is no complaint or evidence of negligence on the part of the defendant. (4) That it appears that the land forming the bed of the Bowery in front of plaintiff’s premises is owned by the state or city of New York in fee, and free from any covenant or trust for the benefit of the abutting owner; that the state or city has, through the treaties, charters, and conveyances in evidence, acquired the absolute title to said land originally vested in the Dutch government, which by Dutch law was free from any right or easement or residuary estate in the owner of the land abutting upon the street. (5) That plaintiff has not alleged owership of any land forming the bed of the street, but has alleged the existence of an easement over said land, which precludes the idea of ownership of said land; that he has failed to prove the ownership of any land in the street, as his deed, taken in connection with the actual measurement of his lot, only carries title to the easterly side of Bowery; and that, merely as an owner of abutting land, plaintiff has no property in the street. (6) That it appears from the pleadings and proof that the defendant has legislative authority and municipal consent to the construction and operation of its railroad through the Bowery past plaintiff’s premises; that as no property of plaintiff has been taken, and no damage been done by negligence, defendant cannot be held responsible for damage or injury (if any) inflicted upon plaintiff incidental to the construction and operation of the road. Motion to dismiss complaint granted, and plaintiff excepted. Plaintiff’s counsel then asked the court for permission to go to the jury on the facts of the case; but this was refused, and the plaintiff excepted. And this “memorandum,” so called, was also placed before the court, as appears by the record: “Memorandum on treaties bearing upon the surrender of the province of the New Netherlands to England.”

The first document we meet is the articles of capitulation, concluded on August 27, 1664, between the English government and Dutch authorities, found in 2 Colonial Documents, 250. Article 1 provides that the states-general or West India Company shall freely enjoy all farms and houses, (except such as are in the forts,) and that within six months they shall have full liberty to transport all arms and ammunition, or else they shall be paid for them; article 2 provides that all public houses shall continue for the use for Which they are now used; article 3 provides that all people shall continue free denizens, and enjoy their lands, houses, goods, and ships wheresoever they are within this country, and dispose of them as they please; article 4 gives liberty to the citizens to remove themselves from the country; article 5 guaranties free transportation to England, if so desired; articles 6 and 7 provide that intercourse and emigration between Plolland and the colony shall be free; article 8 guaranties liberty of conscience; article 9 provides against Dutchmen being pressed in any war whatever; article 10 provides that no soldiers shall be quartered on the inhabitants without compensation; article 11 provides that the Dutch here shall enjoy their own customs concerning their inheritances; article 12 provides for the keeping of public documents by those in whose hands they are now; article 13 provides that no judgment that has passed any judicature here shall be called in question, but an appeal is reserved to the states-general; article 14 provides for the giving of passports; article 15 provides that any public debt that has been incurred shall be paid; article 16 provides that inferior magistrates shall be kept in office until new ones are elected; article 17 provides that the Dutch law shall apply to all transactions entered into prior to this date; article 18 provides for the continuation of duties under certain circumstances; article 19,provides that the military shall march out with drums beating; article 20 provides that, if orders should come to redeliver the colony, it shall be done immediately; article 21 provides that deputies are to be chosen by the town of Manhattan; article 22 provides that those who have any property or any houses in the fort shall be allowed to slight the fortifications, and then shall enjoy all their houses as all people do where there is no fort; article 23 provides for safe-conduct to all soldiers who may want .to go to Holland.

The text of the treaty of Breda, in the original Latin, is to be found in Dumont, Corps Diplomatique, vol. 7, p: 44. The date is July 21-31,1677. The third section, after stating that all quarrels should be forgotten, goes on: “In order that this peace may rest on a firm foundation, and from this day every occasion of contention be removed, it is further agreed that each of the high contracting parties shall hold and possess, with full right of sovereignty, property, and possession, (cum plenario jure summi imperia,proprietatis, et possessionis,)' all lands, islands, cities, forts, places, and colonies which such party may have taken from the other party by force and arms, or in any other way, either during the war or at any other time, in such mode and manner as it occupied and possessed them on the 10-20 May last; none of these places being excepted.” When, afterwards, another war broke out between England and Holland, and the colony of Hew Hetherlands had been reconquered by the Dutch, it was stipulated by the treaty which put an end to the war that the colony should be resurrendered to England. This was done by virtue of a general clause of the treaty of Westminster. Dumont, Corps Diplomatique, vol. 7, p. 253, Feb. 9-19, 1674. The sixth clause of this treaty reads: “It is agreed and understood that all places, islands, cities, harbors, castles, or forts taken by one of the contracting parties from the other, from the time that the late unfortunate war broke out, either in Europe or elsewhere, up to the time above mentioned for the cessation of hostilities, shall be surrendered to their-former lord and owner in the condition in which they shall be when this peace is concluded.” The seventh clause is as follows: “It is further agreed -that' the treaty of Breda, concluded in the year 1667, and also all other treaties confirmed by the said treaty, be renewed, and remain in full force, in so far as they are not in contradiction with the present treaty. ” The only treaty referred to in the treaty of Breda was a treaty of 1662. Shortly after the conclusion of the treaty, the states-general, on the 16th of April, 1674, passed a resolution requesting the king of England “that he will allow the inhabitants of Hew Hetherlands, aforesaid, the enjoyment of their lands, bouweries, and all their goods and rights which they possess in that country, or with the same right, privilege, and freedom as the inhabitants above mentioned enjoyed previous to the aforesaid war. ” 2 Colonial Documents, 545.

The defendant’s counsel, as his proofs and motion to dismiss foreshadowed, contends that prior to 1664 the land forming the bed of the street in front of the locus in quo was owned absolutely by the Dutch government; was subject to-the laws of that government in determining the rights of abutting owners; and, being thus controlled, such owners had no right to the soil of the street, highway, or road, either during its use, or upon its discontinuance, except the right of passage, and therefore presented no existing right of easement or other legal element which had been invaded or disturbed. They fortify this position by elaborate briefs, historically and legally replete, and display great research; the result, no doubt, of great industry, patience, and devotion; The contention against the plaintiffs is therefore fully and ably presented; and it may be that, notwithstanding the long period that has elapsed since our Dutch ancestors surrendered the possession of this island, whether it had been rightfully or wrongfully obtained, their laws still prevail to the detriment of its citizens who reside here, and who are supposed to possess an absolute right to those incidents of ownership and possession along the line of a public thoroughfare, which are the enjoyment of light, air, and access. And it matters not whether these elements be called “easements” or “appurtenances,” “rights” or “incidents.” This question, however, evolved from the documents, treaties, charters, and laws arrayed against the plaintiff’s right of action, has been recently examined and determined against the defendant by the superior court of this city in the case of Mortimer v. Railroad Co., 6 N. Y. Supp. 898, and in which comprehensive and satisfactory opinions were delivered by Justices Tiro ax and Freedman, The subjects embraced —indeed, involved—in the ancient history of this island, and its owners, by-right of discovery or conquest, are very attractive, and naturally excite the-desire, if not the ambition, to give them exhaustive exposition, even though it have been done by others; but nevertheless the attraction will be resisted, and reliance, as already suggested, be placed upon the opinions mentioned. They might be enlarged, although not improved, and the conclusions arrived at further sustained by discussion; but this is not deemed necessary.

It is thought proper, however, to say that the right of the adjacent owner to the advantages of a highway, while it is continued as such, does not appear to have been questioned. The absolute ownership, even, of the soil, though it be vested in the sovereign power, and revert to it when the highway is closed, does not destroy the right to the enjoyment suggested of light and air and access; and particularly as the long and uninterrupted user of the street has deprived (it may be) even the legislative of the state of the power of withdrawing it from that use. On that subject the remarks of Judge Andrews in the case of Mahady v. Railroad, Co., 91 N. Y. 153, are appropriate, namely: “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. Railroad Co., 90 N. Y. 122, (recently decided.)” The case oí Dunham v. Williams, 37 N. Y. 251, is not in conflict with this suggestion, for the reason that there the claim was to the center of an abandoned road-bed,—a claim to the ownership thereof. The highway, it was said in that case, was ancient, and was laid out when New York was a province of the states-general, and subject to the dominion and laws of the Dutch government, which did not permit any person to claim a present or reversionary title to the soil, for the reason that he was not the owner of the lands through which it was laid. Nor is it in conflict with anything dedided in Wetmore v. Story, 22 Barb. 440.

Assuming, therefore, that the doctrines of the civil law were controlling, and that the land or the soil of the highway belonged to the sovereign power, and reverted to it when the highway was abandoned or closed, nevertheless, while open, the public, including, of course, the adjacent owners, were entitled to all the advantages secured by its existence. Some of these already suggested were light and air, which were recognized by the principles of the civil law as belonging so much in common to the whole society of mankind that no one person can make himself master of them, or deprive others of the use of them. 1 Strahan, Civil Law, (translated from Domat,) § 115. And further, that rivers, the banks of rivers, and highways are things public, the use of which is common to all persons, according to the respective laws-of comities, the sovereign power regulating the use of them. Id. § 116. There are things common to every one, (res communes;) as air, flowing water, the open sea, the sea-shore. These things were not appropriated even by the state. Amos, History of the Civil Law of Rome, 124. The adjacent owner gives a consideration for these benefits of light, air, and access in the payment of the taxes imposed upon his land, and which are employed, in part at least, in meeting the expenses of the pavement of the street in front of his-land, and such repairs as are needed,—taxes with which it is legally and properly burdened by municipal authority conferred by legislative action. These benefits, thus paid for, could not, under any system of government less than a despotism, be denied to the adjacent owner. Nothing bearing directly upon this precise question, it is admitted, has been found in the doctrines of the civil law, though they may exist. It cannot be, however, that these rights can be swept away by the asserted supremacy of the sovereign power over the bed of a highway. This suggestion of the right to the enjoyment of the street,, as such, while open, is predicate of the assumed domination of the civil law in this colony in earlier days, which was denied in a well-considered opinion,. though a dissenting one, on the ground that neither Great Britain nor the colonial government ever claimed this province by right of conquest. It was claimed by right of discovery, not as a conquered country; and no part of the civil law, except that which was derived from England, has ever been in force in this colony. The guaranty to the Dutch settlers of the peaceable enjoyment of their possessions did not alter the nature of the British claim to the country. Commissioners v. People, 5 Wend. 445, (opinion of the chancellor.) The judgment should for these reasons be reversed, and a new trial ordered, with costs to abide the event.  