
    George Lahr, Resp’t, v. The Metropolitan Elevated Railway Company, App’lt. Emily Wagner, Resp’t, v. Same, App’lt.
    
      (Court of Appeals,
    
    
      Filed February 1, 1887.)
    
    1. Railroad corporations—Abutters upon streets—When and to what EXTENT ENTITLED TO DAMAGES—ELEVATED RAILROADS IN NEW YORK.
    Abutters upon public streets in cities are entitled to such damages as they may have sustained by reason of a diversion of a street from the use for which it was originally taken and its illegal appropriation to other and inconsistent uses.
    3. Same—Rule of Story case applied.
    The rule of the btory Case (90 N. Y., 133) “that an elevated railroad is a diversion of the street to a use inconsistent with street uses,” applied to streets opened under the act of 1813.
    3. Same—Dissemination of noxious and unwholesome elements.
    The dissemination through the air of noxious and unwholesome elements, such as gas, smoke, dust, cinders, ashes, etc., is such a taking of property as entitles the party injured to compensation under the constitution.
    4. Same—Nuisance—Agreement of parties as to permanency of.
    Where both parties agree in an action for damages for a continuing nuisance that the nuisance will be permanent and try the case on the theory that recovery can be had once for all, and both request the court to direct the jury in accordance with that assumption, one party cannot subsequently seek a new trial, although that assumption is erroneous under the decision in the dine Cuse (101 N. Y., 98).
    5. Same—Extent of recovery.
    In an action for damages against an elevated railroad, for an illegal use of the s'reet, the plaintiff can recover for the operation of the road as well as for the maintenance of the structure and for the consequences flowing therefrom in respect to the manufacture and distribution in the air of gas, smoke, steam, dust, cinders, ashes and other unwholesome and deleterious substances.
    6. Same—Unlawful use of street a trespass.
    An unlawful use of a street constitutes a trespass, although the use is authorized by statute.
    
      The action was tried as a common law action, before Hon. George M. Yah Hoesen, of the court of common pleas for the city and county of New York and a jury.
    • The case was submitted to the jury, who found a verdict for the plaintiff for $1,957.50. The defendant moved upon the minutes of the judge .for a new trial and to set aside the verdict, upon the exceptions taken, and because the verdict was for excessive damages, was contrary to evidence, and was contrary to law. The motion was denied and an order entered to that effect.
    From this order and the judgment entered on the verdict, the defendant appealed to the general term, which affirmed both the judgment and the order. No opinion was rendered. From the judgment and order entered by direction of the general term, the defendant appeals to this court.
    
      Inglis Stuart and G. Willett Van Nest, for resp’t; David Dudley Field, Julien T. Davies & Edward S. Sapallo, for app’lt.
   Ruger, Oh. J.

This action is the sequel of the Story Case, and its defense seems to have been conducted upon the theory of securing a re-examination of the. questions then decided, and in case that effort should prove fruitless, of limiting and restricting, as much as possible, their logical effect.

The endeavor to secure a re-examination of the doctrines of that case must fail, since the decision there made embodied the deliberate judgment of the court, pronounced after the most careful and thorough consideration, and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resources of learning and argument in the discussion of the questions presented. ,

It would be the occasion of great public injury, if a determination thus made should be inconsiderately unsettled and suffered to again become the' subject of doubt, and thence of renewed discussion.

The reasons advanced by the able counsel for the appellant to induce us to reconsider that case, seem to us to be insufficient to render it wise or expedient to do so. The doctrine of the Story Case, therefore, although pronounced, by a divided court, must be considered as stare decisis. upon all questions involved therein, and as establishing the. law, as well for this court as for the people of the state,: wherever similar questions may be litigated. )

Wherever, therefore, the principles of that case logically lead us, we feel constrained to go and give full effect to the. rule therein stated, that abutters upon public streets in, cities are entitled to such damages as they may have sustained by reason of a diversion of the street from the use - for which it was originally taken and its illegal appropriation to other and inconsistent uses.

The case is not only upon the questions which it expressly decides; but also upon all such as logically come • within the principles therein determined.

It is, therefore, unnecessary to enter into a general dis- - cussion of those questions, but after restating such propositions therein, as seem to be controlling in this case, we -shall simply refer to some alleged distinctions between the present case and the Story Case.

We hold that the Story Case has definitely determined:

First. That an elevated railroad, in the streets of a city, operated by steam power, and constructed as to form, equipments and dimensions like that described in the Story ease, is a perversion of the use of the street from the purposes originally designed for it, and is a use which neither the city authorities nor the legislature can legalize or sanction without providing compensation for the injury inflicted upon the property of abutting owners.

- Second. That abutters upon a public street, claiming title -to their premises by grant from the municipal authorities, who at the same time covenant that a street to be laid out in front of such property shall continue forever thereafter for the free and common passage of, and as public streets and ways for, the inhabitants, and all others passing and returning through or by them, in like manner as the other streets of the same city now are, or lawfully ought to be, acquire an easement in the bed of the street for ingress and egress to- and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of their property situated thereon.

Third. That the ownership of such easement is an interest in real estate, constituting property within the meaning of the term, as used in the constitution of the state, and requires compensation to be made therefor, before it can lawfully be taken from its owner for public use.

Fourth. That the erection of an elevated railroad, the use of which is intended to be permanent, in a public street, and upon which cars are propelled by steam engines, generating gas, steam and smoke, and distributing in the air, cinders, dust, ashes and other noxious and deleterious substances,- and interrupting the free passage of light and air, to and from adjoining premises, constitutes a taking of the easement, and its appropriation by the railroad corporation, rendering it liable to the abutters, for the damages thereby occasioned to their property.

The jury in this case, under the instructions of the court, have found upon evidence, which justifies the finding, that the structure of the defendant, in Amity street, in connection with the running of cars thereon, propelled by steam engines, with the consequences naturally flowing therefrom, constitutes an employment of the street for purposes not originally designed, and a perversion of its use from legitimate street purposes.

Assuming, therefore, the binding force of the decision in ■ the Story Case, we will where they are raised by sufficient exceptions, proceed to examine some distinctions claimed by the appellant, to exist between the cases.

Among other things, it is claimed that the Story Case is an authority, only where abutting owners hold title to their property, under conveyances similar to that of Story’s, and that abutters claiming title under any other tenure than that of a deed, from a municipality, containing covenants, protecting the street from any other use than that of a public street, do not come within the principles there determined.

This claim, we think, is not well founded.

We are of the opinion that no legal difference exists with reference to the interest acquired by abutting owners in a public street, between that afforded by a title conferred under such a deed as Story had, or that acquired through a series of mesne conveyances from the 'original owner, whose property was taken by proceedings in invitum instituted by the municipality under a public statute, to acquire land for street purposes, which provided that the land thus taken should be in trust, nevertheless, that the same be appropriated and kept open for or as part of, a public street, etc., forever in like manner as the said public streets, etc., in the said city are, and of right ought to be.

Such proceedings created not only a valid trust in the city for the purposes expressed, which would preclude it from authorizing any other use of the land acquired than that expressly described in the statute (Cooley on Const. Limitations, 531), but also constitutes a contract between the public and the abutting owners severally, by which the liabilities, rights and interests of the respective parties are to be measured and the enjoyment of their respective interests in the property (retained as well as acquired), regulated and determined. Shephard v. Mayor of New York, 13 How. Pr., 286; Matter of Commissioners of Washingington Park, 56 N. Y., 144; Matter of Rhinebeck and Connecticut R. R. Co., 67 N. Y., 242.

It is not essential to the acquisition of an abutter’s rights, that any land for the bed of the street should have been originally taken from him, for whether it be so or not, he is a party to the proceedings to appropriate the land for a street and hable to be assessed for its benefits, and therefore entitled to enjoy them. Upham v. Worcester, 113 Mass., 97. He acquires his interest in the land taken, by the same tenure by which parties to a partition proceeding acquire theirs, viz.: By the judgment of a competent tribunal having jurisdiction under statutory regulations to describe and determine the rights and liabilities of the respective parties in the land to be affected. Mayor of New York v. Colgate, 12 N Y., 148; Child v Chappell, 9 N. Y , 255.

The contract created by the statute and proceedings referred to, applies to all persons entitled to be heard on the proceeding, and enures equally to the benefit of all, although they may be assessed unequally for its cost.

These differences in value are regulated by the awards of the commissioners and are intended to be apportioned as-equally as possible among the respective abutters and individuals benefited by the improvement according to the-value of the property taken and the benefits which they are supposed to derive from the street.

The claim made that the owner of property taken for a ' street obtains through the award of the commissioners, full compensation for his property, is unfounded, unless the benefits for which he is assessed are inviolably secured te him by such proceedings.

Any other construction of-the statute would render it an efficient engine of fraud and injustice.

• An abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property, which belong to him by reason of its location, and are not-enjoyed by the general public, such as the right of free access to his premises and the free admission and circulation of light and air to and through his property

These rights are not only valuable to him for sanitary' purposes, but are indispensable to the proper and beneficial use of his property and are legitimate subjects of estimate by the public authorities in raising the fund necessary to-defray the cost of constructing the street. He is, therefore,, compelled to pay for them at their full value, and if in the next instant they may by legislative authority be taken away, and diverted to inconsistent uses, a system has been inaugurated which resembles more nearly legalized robbery, than any other form of acquiring property.

Although it may be assumed that the municipality by proceedings to open a street, acquires the fee to the land: taken, it is yet a qualified fee held in trust under the statute to a certain use, and that use cannot be departed from' without violating an essential condition of the contract, under which the land was obtained. Cooley, supra.

The right which the municipality acquires is limited by the public necessity, and in this case cannot extend beyond its use for street purposes, and all other uses which might be enjoyed therein, consistent with its use as a public street, must from necessity have remained in, and resided with, the person from whom it was taken, even after the transfer of the fee to the municipality. In the Matter of Albany Street, 11 Wend., 149; In the Matter of Pearl Street, 19 Wend., 650; Hooker v. Utica and Minden Turnpike Road Co., 12 Wend., 371; Heyward v. Mayor, 3 Seld., 314; Deerborn v. Black, 36 Barb., 136.

Even if this were not so, the covenant implied from the language of the statute, and the proceedings taken thereunder, was made with, and intended for, the benefit, among others, of abutting owners, and is a covenant which runs with the land and enures to the advantage of each successive grantee as he becomes the owner thereof.

Covenants by grantors in conveyances, to the effect that their adjoining lands shall be forever used- in such manner as not to interfere with the free passage of light and air to the premises conveyed, are effectual to create an easement over the lands retained for the benefit of the lands conveyed, and so it has been frequently held. White’s Bank of Buffalo v. Nichols, 64 N. Y., 75, and cases cited.

This easement constitutes property of which its owner cannot lawfully be deprived without receiving compensation therefor, and it was so held in the Story Case.

The act of the legislature under which the defendant was organized, and from which its authority to take the property in question is claimed to be derived, if held to authorize an interference therewith, without making compensation, is plainly obnoxious to the objection that it sanctions the taking of private property for public use, and is also in conflict with that provision of the Federal Constitution prohibiting state legislatures from passing laws impairing the obligation of contracts.

The logical effect of the decision in the Story Case is to so construe the constitution as to operate as a restriction upon the legislative power over the public streets opened under the act of 1813, and confine its exercise to such legislation as shall authorize their use for street purposes alone. Whenever any other use is attempted to be authorized they exceed their constitutional power. Those statutes relating to public streets which attempt to change their use from one proper street use to another, are obviously within the power of the legislature, and cases arising under them are inapplicable to the questions here involved.

Such are the cases in respect to changes of grade; the use of a street for a surface horse railroad; the laying of sewers, gas and water pipes, beneath the soil; the erection of street lamps and hitching posts, and of poles for electric lights used for street fighting. All of these relate to street uses sanctioned as such by their obvious purpose and long continued usage, and authorized by the proceedings under which the land is appropriated for a public street.

We also deem it unnecessary to consider those cases defining the rights of municipal corporations in lands whereof they have obtained an absolute fee by purchase or otherwise, for no such case is here presented and they are in no sense analogous to the questions under consideration. Heyward v. City of New York, 7 N. Y., 314; Rexford v. Knight, 11 N. Y., 308; De Voraigue v. Fox, 2 Bl. C. C., 95.

Neither do cases apply here which refer to the continued control retained by the legislature over grants by the state of public privileges to individuals or corporations, for these are generally conferred subject to the power of revocation and modification whenever the public interests require it, and their power over them is attributable to the reserved rights of the state in the subject of the grant. East Hartford v. Hartford Bridge Co., 10 How. [U. S.], 536.

It may also be proper to observe, without intending to discuss the case upon that theory, that it is difficult to see why this action is not maintainable within the principle recently decided by this court in Cogswell v. N. Y., N. H. and H. R. Co. (103 N. Y.,-; 3 N. Y. State Rep., 56). Certainly that case is a conclusive authority upon the question as to what constitutes a taking of property within the meaning of the constitution and of the liability of the perpetrator of such injuries for the damages occasioned by a corruption of the air through the dissemination therein of noxious and unwholesome elements, such as gas, smoke, dust, cinders, ashes, etc., to the detriment of the property of adjoining owners.

No question arises in this case as to the proper rule to be laid down for the assessment of the abutter’s damages in such an action as this, inasmuch as the parties agreed upon the rule to be adopted and have made that the law of the case.

This action was brought upon the theory that the building of defendant’s railroad, and its operation, constituted a permanent appropriation of the street for. railroad purposes inconsistent with its use for street purposes, and entitled the plaintiff to recover in a single action all of the damages occasioned to his property by such taking. The case was tried upon this theory, and the defendant admitted the permanency of the intended use, and acquiesced in the rule of damages adopted by the trial court.

Among the requests to charge made by it was that “the plaintiff can only recover such amount as has been proved to be the permanent loss in the value of his property by reason of the taking by defendant of so much of the easements of hght, air and access, as has been proved to have been taken by it.” The court followed this request and ■charged that “The question is simply how much has he (the plaintiff) lost by the taking away of his light and air, ■and for that you can give him compensation, and you can add interest to the amount if you think fit to do so.”

The charge of the court was not excepted to by the defendant, and its request, followed by its adoption by the •court, constituted a waiver of any previous exception (if any there was) conflicting with the rule laid down.

The rule of damages having been thus agreed upon, the case was taken out of the operation of the Uline Case, recently decided in this court.

The rule adopted assumes that the cause of action arose when the railroad was built and put in operation, and that the liability of the wrongdoer for the entire damage then became certain, absolute and irreparable.

The circumstance that at some time thereafter the operation of the railroad was assumed and carried on by a lessee ■or grantee of the original wrongdoer was entirely imma ■ terial on the question of defendant’s liability, and the evidence of its subsequent operation was important, only as bearing upon, the character af the road and the nature of the wrongs inflicted.

But a single question of any importance remains to be discussed, and that refers to the claim made, that the defendant is not liable for the operation of its trains and the consequences flowing therefrom in respect to the manufacture and distribution in the air of gas, smoke, steam, dust, cinders, ashes and other unwholesome and deleterious substances from locomotives ■ and trains as they move to and fro over its tracks.

We have been unable to see any reason why the defendant should not be liable for the injury thus occasioned, provided the evidence established the fact that they were destructive of the easements of fight, air, and access belonging to the plaintiff.

It follows necessarily from the proposition that a permanent structure erected in the street, which interrupts to any considerable extent the passage of fight and air, works the destruction of easements for such purposes, that any incident of the structure which necessarily increases and aggravates the injury must be subject to the same rule.

No partial justification of the damages inflicted by an unlawful structure and its unlawful use, can be predicated upon the circumstances that under other conditions and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator hable to damages.

The structure here and its intended use cannot be separated and dissected and it must be regarded in its entirety in considering the effect which its produces- upon the property of the abutter. However the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass, rendering the wrong-deer hable for the consequences of his acts.

The legislature, as we have seen, had no power to authorize the street to be used for an elevated steam railroad, and that want of authority extends to every incident necessary to make the road an operative elevated steam railroad, which occasions injury to the rights of abutters on the street. Baltimore and Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S., 329.

We have carefully examined the other exceptions taken by the appellant in the course of the trial, and all seem to us to be covered either by the decision in the Story Case, or the discussion already had.

We have been made aware that many questions involved in actions by abutters against defendant, have been agitated in other cases which it is stated are now on the way to this court, and may hereafter require consideration here.

In discussing this case we have refrained from referring to any of those questions unless properly raised by sufficient exceptions, and necessarily involved in the determination of this case, leaving the consideration of all other questions to-cases where they properly arise.

The judgment should be affirmed.

Andrews and Danforth, JJ., concur; Earl, J., concurs, in result on the authority of Story v. Elevated Railroad; Finch, J., concurs in result; Rapallo, J., takes no part.

Earl and Finch, JJ., not being able to concur in all the views- expressed in the foregoing opinion, concur in the result on the authority of the Story Case; deeming it necessary to add that, while they are unwilling to extend the scope of the decision in that case beyond its fair import, yet in their opinion ifc gives to abutting owners, only damages for the construction and operation of the railway in front of their premises resulting from the taking or destruction of their street easements of light, air and access, and for such damages to their adjoining property as are necessarily caused by such taking and destruction; that the abutters cannot recover damages to or upon their abutting property caused by the lawful operation of the road, and not by the deprivation or destruction of their easements in the street; that there can be no recovery for anything done by the railway in the street, except as it deprives, or tends to deprive, the abutters of the easements mentioned, and that they believe these principles were not violated upon the trial of this action.

Note.—In the case of Emily Wagner v. The Metropolitan Elevated Railway Company, the following opinion was rendered:

Huger, Ch. J.

No material distinction between this case, and the Latir Oase has been called to our attention, and we, therefore, hold that it is governed by the conclusions reached in that case. The judgment is therefore affirmed.  