
    The Rochester Saving & Loan Association, Plaintiff, v. Charles A. Gorman and Joseph Stork, Defendants.
    (Supreme Court, Orleans Special Term,
    October, 1897.)
    Trespass on street — Wrongdoers cannot raise the question whether the street has ever been accepted by the public)
    Where a corporation brings an action to restrain the defendants from excavating for building stone in an alleged street, running in front of the premises of the corporation and absolutely necessary for access, and shows an undoubted right of way over the same, irrespective of the fact whether the way has ever been accepted as a street by the public,- the defendants showing no right or title in themselves cannot raise the question whether the locus in quo is a public- or private way; and, failing to show any right in themselves to excavate, will be required to restore the way to its former condition;
    Action for injunction.
    George W. Thomas and John Desmond, for plaintiff.
    Eilkins & Coe, for defendants.
   Woodward, J.

The plaintiff in this action, brought for the purpose of restraining the defendants from making further excavations in a certain street, known as Childs street, in the village of Albion, Orleans county, and to compel the defendants to place the "street in a proper condition for the traffic incident to such street, and the preservation of the rights of the plaintiff in certain property, alleges that it is a domestic corporation incorporated under and by virtue of the laws of the state of Hew York, and that it is the , owner in fee and in possession of alb that tract or parcel of land situate in the village of Albion, comity of Orleans, and state of Hew York, known and distinguished as lot number 28 of the Albion Homestead Tract, as shown by a map thereof made by Gray & Storey, surveyors,. and filed in Orleans county clerk’s office in liber 2 of maps at page 15; that the plaintiff’s premises extend to the center of the said Ohilds street, which said street is alleged to be one of the public highways of the village of Albion; that it runs at right angles with McKinstry street and due. east therefrom; that there is no street between McKinstry street and plaintiff’s premises, and that Childs street is the only street leading; from plaintiff’s premises to the business portion of the village of Albion in a westerly direction. All of these allegations, with the-exception that the said Childs street is a public highway, are substantially admitted by the defendants.

The plaintiff also alleges that there is a substantial •brick house-upon the said premises, which the plaintiff has owned from the 11th. day of April, 1893; that the premises, except for the nuisance-•complained of, which nuisance consists of an excavation for the-purpose of removing building stone, making the street impassable,, are fairly worth $2,000 with an annual rental of $100; that the plaintiff, before beginning this action, requested the defendants not to dig out said street, and to fill and repair said street where they had destroyed it and place the same in proper condition, and that the defendants have refused and neglected to do so. The plaintiff further alleges, on information and belief that unless the street is filled up and placed in a proper condition its property will be-seriously damaged, both in its rental and selling value, and that the defendants are still engaged in "excavating and quarrying the rocks and stones from said street. In view of these allegations,, which are either substantially admitted, or established by the evidence taken at the trial of the action, the plaintiff prays for a judgment to perpetually restrain the defendants, their agents and employees, from making further excavations, and that they be adjudged and compelled to fill up and put the said street in a proper and safe condition; and that the plaintiff recover from the said defendants the sum of $2,000- as damages and such other relief as-the court may direct. , 1

The only material question presented to this court seems to be whether there is, in fact, such a street as Childs street, and whether .the excavations constitute such a damage to the premises of the-plaintiff as to entitle him to any part of the relief prayed for. Hpon the first proposition there can be no reasonable doubt that for the purposes of this action the plaintiff had such a right in the-parcel of land, known upon the maps submitted in evidence as Childs street, as entitles him to an unobstructed right of way over the same whether it has, in fact, ever been accepted by the public- or not. It was a property right gained by the plaintiff in the purchase of the premises which are alleged to have been damaged by the action of the defendants; it is a right essential to the enjoyment of his property which cannot be taken away without first establishing a superior right in the. defendants, which is nowhere attempted; The plaintiff purchased the property described in the pending action-upon the representation, as shown by the maps submitted in evidence, that Ohilds street had an actual existence, and. it is inconsistent with, every known rale of equity for the defendants to come into -this court, asserting the right to destroy the value of property without themselves showing any title to the premises, the working of which operates to the injury of the plaintiff. The question whether Ohilds street is a public or a private way can have no hearing upon the merits of this case. The defendants are bound to show that they have a right to make these excavations; that they - have an equitable right to the premises which they have assumed to work superior to that of the plaintiff, and this they have failed to establish. ' '•

It is ordered, therefore, that the ■ defendants, their agents and employees, be "restrained from making further excavations within the described limits of Ohilds street; that the defendants proceed with due diligence to place the said Ohilds street in a passable and safe condition; that all sewers, water pipes or other public conveniences which have been removed from the said Ohilds street be restored, and that the defendants pay the costs of this action.

Ordered accordingly.  