
    John O’Brien and Others, Respondents, v. The New York Central and Hudson River Railroad Company and Others, Appellants.
    Second Department,
    January 19, 1912.
    Beal property — elimination of grade crossing — damages to private easements of access—unlawful obstruction — evidence of damages to easements of access — right of access during construction.
    The building of an embankment in a street pursuant to an order of the Public Service Commission to eliminate a grade crossing, thereby making the access of certain abutting owners on other streets to the business part of a city longer by a few hundred feet, is not sufficient to support a judgment for damages to private easements of access, for the substitution of a longer route or of one that would make the plaintiffs’ premises less accessible would not deprive them of any vested right or cause them any injury which must be compensated.
    An embankment built pursuant to an order of the Public Service Commission to ehminate a grade crossing is not an unlawful obstruction.
    
      It seems, that where the only question involved in a case is the easements of access, which are confined to the surface of the soil, the court should not take into consideration the sewer and other mains or pipes which are to be laid beneath the surface of the earth.
    
      It seems, that if no proper substituted right of access is afforded during the construction of such an embankment, the plaintiffs would be entitled to damages therefor.
    Appeal by the defendants, The New York Central and Hudson Biver Bailroad Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1910, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      George H. Walker [Alexander S. Lyman with him on the brief], for the appellants.
    
      Thomas A. McKennell [George C. Appell and Alfred H. Appell with him on the brief], for the respondents.
   Jenks, P. J.:

The judgment for the plaintiffs is for damages to their private easements of access. They assert these rights in that their property was laid out originally into lots upon certain streets on a map made by Kurth and filed in the register’s office of Westchester comity in 1854 and 1859 respectively, and in that their conveyances were made with reference to such map. Pursuant to law the Public Service Commission of the .second district have approved and have adopted a plan which required the defendant to eliminate certain grade crossings. This plan required the building of a solid embankment to support the defendants’ tracks. The construction of this embankment is the alleged offending of the defendant.

The plan also required the extension and reconstruction of a road called the Bronx Place road. The embankment is to be built upon a way known as West Eailroad avenue, extending northerly and southerly, whereon are now laid the tracks of the defendant. Certain streets which appear as Bronx, Howard and Putnam streets on the Kurth' map, run easterly up to West Eailroad avenue and also, to the west, cross or run into the streets upon such map upon which the lots of the plaintiffs face. The sides of some of the plaintiffs’ lots adjoin such streets.

The Special Term found that prior to the building of the embankment plaintiffs’ access to the business part of the city of Mount Vernon was by way of Putnam, Bronx and Howard streets to and through West Eailroad avenue to Oak street and Mount Vernon avenue. That is, the plaintiffs could travel easterly by a block or two blocks by either of these streets and thence would proceed along West Eailroad avenue to the south. The court further decided that the said Bronx Place road when constructed will provide an “outlet” to the plaintiffs to the west and south, but the result of the substitution “will be to make the distance from the plaintiffs’ premises to Mount Vernon Avenue and the business part of the City of Mount Vernon greater by several hundred feet than is the distance by way of West Eailroad Avenue and Bronx, Howard and Putnam Streets.” The court also considered the corollary that the plaintiffs would be deprived of access from West Eailroad avenue through those said streets, also certain difficulties in the laying of sewers, gas or water pipes, and also interference with police and fire protection of the territory. The conclusion of the court is that the “ damage done to the plaintiffs’ property by the building of the railroad embankment, and the shutting off of Bronx, Howard and Putnam Streets, is the sum of fifteen thousand dollars.” Thereupon an injunction was awarded with alternative of the payment of that sum and the defendants appeal.

Aside from the question of main or pipe construction and of police and fire protection, the judgment seems to rest upon the determination that the substituted route is longer by several hundred feet. I think that this fact is not sufficient to support the judgment, for the substitution of a longer route or of one that would make the plaintiffs’ premises less accessible did not deprive the plaintiffs of any vested right or cause them any injury which must be compensated. (Matter of Grade Crossing Commissioners, 166 N. Y. 69, citing Coster v. Mayor, etc., of Albany, 43 id. 399, 414; Kings County Fire Ins. Co. v. Stevens, 101 id. 411; Egerer v. N. Y. C. & H. R. R. R. Co., 130 id. 108. See, too, Fearing v. Irwin, 55 N. Y. 486; Reis v. City of New York, 188 id. 58, 68; Pearson v. Allen, 151 Mass. 79; Putnam v. B. & P. R. R. Co., 182 id. 351; Dantzer v. Indianapolis Union R. Co., 141 Ind. 604; Dodge v. Penn. R. R. Co., 43 N. J. Eq. 351, 363; affd. on opinion below, 45 id. 366; Heller v. Atchison, T. & S. F. R. R., 28 Kans. 625.)

I do not lose sight of the fact that the plaintiffs assert the property right of a private easement of access, but, nevertheless, I think that this principle is applicable to the case at bar. (Decker v. Evansville, Suburban & Newburgh Railway Company, 133 Ind. 493; Dantzer v. Indianapolis Union R. Co., supra; Pearson v. Allen, supra; Reis v. City of New York, supra ; Egerer v. N. Y. C. & H. R. R. R. Co., supra,; Heller v. Atchison, T. & S. F. R. R., supra.) In Decker’s Case (supra) the court, per Coffey, Ch. J., say: It is settled law in this State that the owner of a lot abutting upon a street may have a peculiar and distinct interest in the easement in the street in front of his lot. This interest includes the right to have the street kept open and free from any obstruction which prevents or materially interferes with the ordinary means of ingress and egress to and from his lot. This is an interest distinct from that possessed by the general public, and is a right appendant to the lot and the improvements thereon. Such means of ingress' and egress are as much property as the lot itself. But whether the owner of a lot abutting upon a street may maintain a common-law action where a structure in the street imposes no new burden on the soil owned by him depends upon whether or not the occupation of the street with such structure results in damage to his property peculiar and different in kind from that which is suffered by the community in general. Terre Haute, etc., R. R. Co. v. Bissell, 108 Ind. 113; Dwenger v. Chicago, etc., R. W. Co., 98 Ind. 153; Sohn v. Cambern, 106 Ind. 302; Indiana, B. & W. R. Co. v. Eberle, 110 Ind. 542. The community in general does not mean those who' use the street, and yet reside at such a distance from the railroad, if such be the obstruction of which complaint is made, as to suffer none of the annoyances incident to its construction and operation, but it means those who reside in the immediate vicinity of the railroad, and are subject to the inconveniences incident to such a structure. The location and operation of a railroad upon a public highway may occasion incidental inconvenience to an abutting land-owner, but until it cuts off or materially interrupts his means of access 1 to his property, or imposes some additional burden on his soil, his injury is the same in kind as the community in general. Injuries which result from the careful construction and operation of a railroad on the land of another are common to all those whose lands are in close proximity to such road, and for such injuries there can be no recovery in the absence of a statute entitling the owner to maintain such action. Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62; City of Chicago v. Union Building Assn., 102 Ill. 379; Rigney v. City of Chicago, 102 Ill. 64; Indiana, B. & W. R. Co. v. Eberle, supra.(And see the discussion by Brewer, J., in Heller v. Atchison, T. & S. F. R. R., supra.)

This is not a case of an unlawful obstruction, for the embankment must be regarded as duly authorized for a public purpose — in fact made under legal compulsion. - (Matter of Grade Crossing Commissioners, supra; Rauenstein v. N. Y. L. & W. R. Co., 136 N. Y. ,528.) Nor does it present the' condition of invasion upon the streets whereon the lots of the plaintiffs front. Certainly the substituted road is safer and better. The old way of access as determined by the court was along Railroad avenue, which was but 25 feet wide west of the existing tracks, and required passing over the two dangerous grade crossings. The intersection of Howard street and West Railroad avenue was 20 feet above the level of plaintiffs’ premises. None of these streets ” as laid out upon the Kurth map west of Railroad avenue, on which tract are situated the plaintiffs’ premises, has ever been graded or improved save Monroe street, which was graded in 1854 for 300 or 400 feet north of Howard street. Howard street west of the railroad has only been used to drive upon the lands of the plaintiffs for sod or sand, or to reach a certain electric light plant. Putnam street has never been used save for like purposes of hauling any sod or sand, and Bronx street has never been used. None has been marked by any distinct or defined lines, and the said tract as shown on the Kurth map does" not unite with or have any connection with -any public highway or street or right of way east of the plaintiffs’ premises. It appears that these premises are more available and useful for manufacturing and for the homes of employees than for other residential purposes. Bronx Place road, the substituted route, is to be substantially of level grade and is to be a public highway throughout, 40 feet in width, without any tracks thereon. And the weight of the testimony is that such a highway will afford a safer, an easier and a more commodious way than that which may now exist.

I think that the court should not have taken into consideration the sewer and other mains or pipes which are to be laid beneath the surface of the earth, for the reason that the question in this case involves only easements of access which are confined to the surface of the soil. (Sutton v. Groll, 42 N. J. Eq. 213.) But in any event, the court found that nothing but the width of the embankment and its use by the defendant would present any obstacle to the laying of mains and pipes, and that such work could be done without unusual difficulty. It appeared also that there is an existing sewer underneath the tracks at Howard street, and that a sewer is now under construction in this territory, with which connections are practicable. If the question of police and fire protection is to be ..considered in. the aspect of access to th e territory, it would seem that Bronx Place road, as projected and constructed, even if it involved travel over a greater distance, would, in comparison with alleged existing rights of access, present equal if not better facilities.

Even if the court should find that there was no permanent injury as to the right of access when the improvement was completed, I am not at all prepared to say that, if while the work was doing no proper substituted right of access was afforded to the plaintiffs, they could not have damages therefor, For I think quite to the contrary. (Putnam v. B. & P. R. R. Co.., supra, citing Penney v. Commonwealth, 173 Mass. 507; Edmands v. Boston, 108 id. 535.)

The judgment must be reversed and a new trial be granted, costs to abide the final award of costs.

Hieschberg, Woodward and Rich, JJ., concurred; Thomas, J., not voting. :

Judgment reversed and new trial granted, costs to abide the final award of costs.  