
    The Brooklyn Elevated Railroad Company, Plaintiff, v. The City of Brooklyn, Defendant.
    
      Brooklyn:—rights of the elevated railroad in the streets — building of a sewer beneath the railroad — the expense of shoring up.the elevated structure is a charge upon the company.
    
    The Brooklyn Elevated Railroad Company has no fee in the streets of Brooklyn over which it is constructed, in the sense in which the word fee is ordinarily used, but it has a franchise which cannot be abrogated or destroyed by the public authorities without their making compensation therefor.
    
      Any grant to the elevated railroad company must necessarily he construed as subject to the right of the public to enter upon the street for such a purpose as that of laying and constructing a sewer, and any interference with the elevated railroad company in the proper construction of such work must be con- • sidered as a burden which the elevated railroad company assumed to bear.
    Upon the submission of a controversy, made upon an agreed statement of facts, it appeared that the city of Brooklyn constructed a sewer beneath the Brooklyn Elevated Bailroad Company’s structure; that the contract of the city provided that the contractor should support the sides of the excavation with suitable planks and shoring; that this excavation rendered it possible that the elevated structure might settle, and that, in order to guard against this' danger, the elevated structure itself was shored up.
    The question presented for decision was whether the city should meet this latter expense or whether it should be borne by the elevated railroad company
    
      Held,, that the burden must fall upon the elevated railroad company.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      F. S. Gerrodette and Fro. B. Page, Jr., for the plaintiff.
    
      Albert G. McDonald and Alfred F. Mudge, for the defendant.
   Cullen, J.:

The defendant,, the City of Brooklyn, constructed a sewer through Marcy and other avenues which intersect Lexington avenue, upon which lattér street plaintiff maintains an elevated railroad. The contract of the defendant for the construction of the sewer provided that the contractor should support the sides of the excavation with suitable plank and shoring. In the progress of the work this requirement was complied- with, but on account of the proximity of plaintiff’s structure to the excavation for the sewer, proper regard for the safety of the traveling public, to guard against the possibility of the structure settling, rendered it necessary to shore up the elevated structure itself. By an arrangement between the parties this work was done by the plaintiff, the question of upon whom the expense of the work prop,erly rested being left to the subsequent, determination of the courts. The question of who should pay this expenditure is the one presented on this submission.

We do not think it necessary, even if it were possible, to define or name the exact character of the right or estate acquired by the plaintiff in the public streets through which its road is constructed. In the case of The People v. O'Brien (111 N. Y. 1) it is stated that' the right .acquired hy thé street railroad in that case was a fee. If, the term fee ” is to be construed as referring to the land itself on which the structure is erected,, it can hardly be applicable to the case of the present plaintiff, for in the streets of the city of Brooklyn the public acquire merely an easement; the fee of the property remains in the original owners. Also under the elevated railroads run surface railroads, and the rights of the latter are as great as those .of the former. These roads, too, would have a fee in the street. ■’ Thus it would be possible to have several estates in fee in the same piece of land. We think, however, that the term “fee” is to be applied to the franchise which the railroad company obtains to construct and operate its railroad. We, therefore, concede the claim of the plaintiff, that its right to maintain its railroad, as against the public, is as great as any obtained by the railroad companies in New York, and that its franchise cannot be abrogated or destroyed by the public authorities without compensation.

But though the city cannot derogate from the grant made by the State, and by it to the plaintiff, the question still remains, what are the limits and conditions of that grant and how is that grant to be construed ? Y already .stated, we are not dealing-with ordinary estates or easements in a piece of real property, nor are we dealing with the construction of a deed, the phraseology of which is in well-defined legal terms. The franchise of the plaintiff proceeded from an act of the Legislature and the action of the city authorities under it. As the public had already acquired a property right in the street, to wit, an easement or right of passage, the- plaintiff probably also acquired a' certain portion of that public easement, although it remained liable to make compensation to the owner of the fee. The statute under which the plaintiff’s road is constructed authorizes it to construct and maintain an elevated railroad upon the street. Now, this statute did not contemplate the abandonment of the street or the easement of way in it by the public. On the contrary, the value of plaintiff’s franchise would largely "depend on the fact that the street was to be kept .open and maintained"ás a public highway." .The plaintiff’s road was to be essentially a street railroad, and therein lay its great profit. " But if it was contemplated that the route of the railroad should still remain a public street, it must have, been equally contemplated that the public should enter upon it for the purpose of exercising those urban easements which. it possesses in city streets, such as the right to lay and construct sewers, water mains, etc.' Any grant to the plaintiff must necessarily be construed as subject to the right of the public to enter upon the street for such purposes, and any interference with the plaintiff’s road in the proper construction of such work must be considered a burden which plaintiff assumed to bear. It would be most unreasonable to suppose that the city, knowing that from time to time it would have to tear up the street and make excavations therein, should make a grant to' the plaintiff, the effect of which would be to subject' the city to increased expense in such improvements.

In the case at bar the physical, tangible property of the plaintiff was not injured or taken. At most it lost the right to- the support of its structure by adjacent land not owned by it. As against an adjacent private owner the plaintiff, having placed a structure on its land, would have no right to the support of. the adjacent land, except so far as it is protected by 'the charter provisions as to depth of excavations, provisions which have no application to this case. If the railroad of the plaintiff lay outside of the street the damage it might sustain from grading the street or the city’s entry thereon would be damnum absque lujuria. (Radcliff’s Executors v. The Mayor, 4 N. Y. 195 ; Bellinger v. N. Y. C. R. R. Co., 23 id. 42.)

It is, therefore, doubtful whether, even assuming that plaintiff was the absolute owner not only of its roadway but of the land which it spanned, it would, as a matter of technical law, have any valid claim against the defendant. But we prefer to rest our decision upon the other ground, that g-rants to railroads or other corporations in public highways must be construed as subject to the paramount right of the public to use those highways for all proper purposes. We do not say that there might not be a use of a street by the public of such a character as to destroy, practically, the plaintiff’s franchise and property, and so far unforeseen at the time of the grant as to require compensation to the plaintiff for the injury to or destruction of its property and franchises. But such uses of the public street as were notorious and of common exercise at the time of the grant must have been contemplated by all parties, and any grant must be held subject to such uses of the street as would be naturally contemplated.

This rule is in accordance with the uniform line of authorities, though few authorities are to be found on the subject. In the case of The Dry Dock, E. B. & B. R. R. Co. v. The Mayor (55 Barb. 298) it was held that the city was justified in interfering with the street railroad by the construction of a sewer. The same doctrine was held in Kirby v. Citizens' Railway Co. (48 Md.168), and the general principle is stated in Booth on Street Railway Law (§■ 42), and in Elliott on Roads and Streets, 367. It has been the uniform course in this city and in New York that the street railroad companies bore whatever expense was entailed by the interference of street improvements with their railroad tracks.

The case of The Manhattan Railway Co. v. The Mayor (89 Hun, 429) is not in conflict with the views here expressed. In that case, ' in addition to maintaining the street, the defendant constructed a viaduct, which viaduct destroyed part of one of the plaintiff’s stations. For the expense of cutting down the station to enable the viaduct to pass over it, the defendant was held hable. This liability appears to have been ultimately placed on the ground that the statute of 1853 (Chap. 62), authorizing the laying out of public highways Over railroads,, did- not authorize the construction of a viaduct through the station. We would be inclined to concur in the decision there made, even on the ground first discussed, that the property of the plaintiff could not be destroyed by the city without compensation, apart from the question of the interpretation of. the statute. But such a rule- has no application here. The improvement which the city of New York sought to make in the case cited was not only physically destructive of the plaintiff’s property, but was one plainly not within the contemplation of the parties- when the grant to the railroad company was made. In these respects it entirely differs from Hie present case.

There should be judgment for the defendant on submitted case, with costs.-

All concurred.

Judgment for the defendant on submitted case, with costs.  