
    WILLIAM P. ABENDROTH, Plaintiff and Appellant v. THE NEW YORK ELEVATED RAILROAD COMPANY and THE MANHATTAN RAILWAY COMPANY, Defendants and Respondents.
    
      Tald7ig of property without due process of law and without compensation— Damages to property abutting on a street in New York, caused by building an elevated railroad on Hie street.
    
    The plaintiff was owner in fee of premises abutting on Pearl street in-the city of New York, and claimed to be the owner of an easement in that street, and brought an action to obtain an injunction against the obstruction and encumbrance of that street by defendants in the maintenance of their elevated railroad on the same in front of plaintiff’s premises, and also that they be compelled to remove the same, and that he should have judgment for the damages sustained by him.
    The trial judge found that the title to the soil in the street was vested in the mayor, aldermen and commonalty of the city of New York, and that plaintiff had no easement nor private property whatever in the street against the taking of which he was entitled to protection under the constitution of this state; and, because of these facts, he dismissed the complaint.
    The trial judge also found that defendants had not taken any proceedings to condemn or acquire any property of the plaintiff; that the railroad structure seriously impaired the plaintiff’s light, and their engines emitted smoke, gas, steam, cinders, etc., which entered the plaintiff’s premises through his doors and windows and caused him injury, and the rental value of his premises had been seriously diminished, and his property had been and is seriously and permanently damaged, and its value greatly lessened. That the defendants’ railroad was a lawful structure, and its operation, as operated by the defendants, a lawful use of the structure, and their trains were furnished with the best possible appliances known for the prevention of noise and to arrest sparks and cinders.
    
      Held, that, irrespective of the conclusion, that the plaintiff had no private easement or property rights in the street, plaintiff is entitled to relief by injunction, etc., on the ground that the acts of the defendants complained of were not necessary incidents of the lawful use of the railroad, and also on the ground that, even if they had. been such necessary incidents, they were, so far as they impaired the plaintiff’s beneficial use of his property, and diminished its rental value, either trespassers or a private nuisance for which he had a valid right of action to recover damages, or such acts were a taking of plaintiff’s private property, without compensation and without due process of law, which is prohibited by the constitution of the state.
    
      27eld by Truax, J.—One’s right to enjoy property free from smoke, gas, steam, cinders, etc., is property; and, when he is deprived of that right without due process of law, he is deprived of his property without due process of law. Even if the legislature had authorized the defendants to do the very acts complained of, such authorization would be unconstitutional and void because the legislature cannot deprive one of his property without due process of law.
    
      Held by O’Gorman, J.—If it were necessary for the decision of the case at bar, I should have no hesitation in holding that the legislature had no right to authorize or sanction any serious injury to the private property of a citizen, so far destroying or impairing its beneficial use to him as to constitute a taking thereof, unless such taking were accomplished under due process of law, and provision he made that he be duly compensated therefor.
    The trial judge also found that the plaintiff had paid assessments as well as taxes to the city, upon his said premises. (It was in evidence that plaintiff’s grantor paid, in 1862, an assessment for paving Pearl street from Fulton to Beekman street.)
    
      Held by Truax, J.—If they were assessments for street purposes, then within the decision of the Court of Appeals in the “ Story” case, in the “Lahr ” case (and others cited), the plaintiff would have an easement of light, air and access to the street. If he has such an easement then within the decisions in those oases, iliis easement has been taken from him without compensation.
    
      Held by O’Gorman, J.—(reviewing same cases.) It seems a natural and proper step, and a logical consequence of the principle sustained by these authorities, to hold that, when an abutting owner pays, under compulsion of law, a sum specially awarded as his individual contribution to the well-being and improved utility of the street to the public, and to himself, as abutting owner, a contract must be implied that he shall be secure in his right to use and enjoy the street with all the improvements and advantages to the creation of which he has specially contributed.
    Sedgwick, Ch. J., concurred with both judges delivering opinions that the property of plaintiff was taken without compensation.
    The following cases reviewed and discussed in the opinions of the court: Wynehamer v. People, 13 N. Y. 378; Arnold v. Hudson River R. R. Co., 55 Ib. 661; McKeon v. See, 51 26. 300; Bertholf v. O’Reilly, 74 26. 509; Uline v. N. Y. C. & H. R. R. R. Co., 101 26. 107; Cogswell v. 
      FT. Y. FT. H. & H. R. R. Co., 103 Ib. 10; Lahr v. Metropolitan El. R’y. Co. (Court of Appeals, February, 1887), 104 N. Y. 268; Penn. R. R. Co. v. Angel, 6 Eastern Reporter, 353.
    Before Sedgwick, Ch. J., Truax and O’Gormar, JJ.
    
      Decided May 2, 1887.
    Appeal from a judgment of the Special Term dismissing the plaintiff’s complaint with costs.
    Action for injunction and damages.
    
      Edward B. Cowles, attorney and of counsel for appellant.
    
      Davies & Sapallo, attorneys, and Edward C. James, Julien T. Davies and Charles A. Gardiner, of counsel for respondents.
   Truax, J.

The judgment in this case must be reversed, irrespective of the question which seems to have solely influenced the learned judge before whom the case was tried.

It is immaterial, for the purposes of this case, whether the plaintiff has or has not any interest in the fee of Pearl street in front of and adjacent to his premises, or any easement in the street,—and for the following reasons:

The judge, before whom the case was tried, found in his twelfth, thirteenth and fourteenth findings of fact that the engines used by the defendants, emit smoke, gas, steam and cinders, which at times have entered and do enter the plaintiff’s premises through his doors and windows, and cause him injury. That, by reason of the facts aforesaid, the rental value of the plaintiff’s premises has been seriously diminished, and the plaintiff’s property has been and is permanently damaged, and its value lessened.

Having found these facts, the trial judge should have found in favor of the plaintiff instead of for the defendant.

Even if we should concede that the defendants own a fee in the street, and they so use that fee that their use of it permanently damages the plaintiff’s property, and lessens its value then the plaintiff has a cause of action for such damages against the defendants, and he is entitled to an injunction restraining the commission of the acts which damage him.

The constitution of this state provides that property shall not be taken for public use without compensation, and that no one shall be deprived of his life, liberty or property without due process of law.

It is to be noticed that a distinction is made between taking property for public use, and depriving one of his property without due process of law.

What is a deprivation of property without due process of law was determined by the Court of Appeals in the case of Wynehamer v People, 13 N. Y. 378, where it was held that the provisions of the act to prevent intemperance (Laws of 1855, page 340) substantially destroyed the property in intoxicating liquors owned and possessed by persons within the state when the act took effect, and for that reason the act violated the provisions of the state constitution above referred to.

It is to be noticed that in this case the actual possession of the property was not taken from the owner, and yet a law which simply decreased the money value of the property by rendering it difficult for the owner to dispose of it, was held to be a violation of the constitution.

This case was cited by the Court of Appeals with approval in the case of Bertholf v. O’Reilly, 74 N. Y. 509.

In this last case it was said that the provisions in the act then under consideration, were held to deprive persons owning' intoxicating liquors at the time of its passage of their property, although their title was not affected by the act, or the property itself, in its material substance, taken or destroyed.

A like question was before the Court of Errors and Appeals in New Jersey, in The Pennsylvania Railroad Company v. Angel, reported in the 6th Eastern Reporter, 353. It is to be noticed that there is no provision in the constitution of New Jersey that no one shall be deprived of property without due process of law. In that case it was held that the plaintiff, by using for the purpose of a terminal yard a portion of a street over which it has only a right of way, became responsible for any nuisance, public or private, thereby created, and an act of the legislature cannot confer upon individuals or private corporations acting primarily for their own profit although for public benefit as well, any right to deprive persons of the ordinary enjoyment of their property, except upon condition that just compensa-, tion be first made to the owners. This case first came before Vice Chancellor Bird who held, as was held in the case now before us, that the smoke, dirt, cinders, noises and smells worked inconvenience, discomfort, hurt and damage to the complainants, and that the value of their property was, therefore, greatly depreciated. The Court of Errors held that “whether you flood the farmer’s fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion.”

This is a taking of his property in a constitutional sense.

This decision is in harmony with the decision of the Court of Appeals of this state in Cogswell against The New York, New Haven and Hartford R. R. Co., 103 N. Y. 10.

In the Cogswell case which, in this respect is unlike the Story case, (90 N Y. 122) no easement of light, air and access was taken, but the defendant was held liable for the damages that it had done to the plaintiff by the emission of smoke, cinders, ashes and dust upon the property of the plaintiff, on the ground that, by these acts of the defendant, plaintiff’s property was subjected to a burden in the nature of a servitude in favor of the defendant which seriously impaired the value and enjoyment of the property.

And the Court of Appeals, in the case of Lahr against The Metropolitan Elevated Railway Co., (104 N. Y. 268,) held that the Cogswell 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.

One’s right to enjoy property free from smoke, gas, steam, cinders, etc., is property, and when a person is deprived of that right without due process of law, he is deprived of his property without due process of law. The word abridge ” is one of the synonyms of deprive. (See Webster and Worcester.)

The defendants contend that the legislature has authorized them to do the very thing that it is now doing; but such an intent of the legislature cannot be inferred from the charter of incorporation, either by express provision or fair construction. Even if the legislature had authorized the defendants to do the very acts complained of, such authorization would be unconstitutional and void because the legislature cannot deprive one of his property without due process of law. And it was held in the Wynehamer case that the words “due process of law” in the constitution did not mean an act of the legislature, but that it meant law in its regular course of administration through courts of justice: See 2 Kent’s Commentaries, page 13; Campbell v. Evans, 45 N. Y. 358; In the Matter of Townsend, 39 Id. 171; People v. Draper, 15 Id. 563.

This court held, in McKeon v. See, 4 Robertson, 449, that the lawful character of the results of an occupation, trade or mechanical art, or the care with which it is carried on, will not prevent a right of action by those whose enjoyment of life and property is disturbed by the mode or means of conducting such occupation, trade or mechanical art. The right of jarring a neighbor’s house by the motion of a steam engine upon one’s own premises, cannot depend at all upon the utility and lawfulness of the purpose for which such motion is?employed, or of its final results. The intermediate injury before such results are obtained, wrought upon another’s juoperty or enjoyment of life, makes such employment unlawful: and a nuisance may consist in the application of steam as a motive power to an engine already upon the defendant’s own premises, and in using the same, thereby producing a vibration and shaking of the plaintiff’s buildings, and injury thereto, causing an offensive noise, interfering with the quiet use of such buildings, alarming the tenants and diminishing the rents.” This case was affirmed on appeal, see 51 N. Y. 300.

It may be that we cannot determine what portion of the total diminution of the value of plaintiff’s jn’operty is caused by the smoke, or what portion is caused by the steam, or the noise, or the ashes, or the dust, or what portion is caused by the structure itself, and by the loss of light, air and access; but this difficulty does not prevent the plaintiff from having the protection of an injunction to restrain the defendants from injuring him by emitting smoke, ashes, dust and noxious gases upon his property; or rather it is a reason why an injunction should be granted, because of the difficulty in ascertaining the damages that he is sustaining.

The judge before whom the case was tried also found that the plaintiff has paid assessments as well as taxes to the city upon his said premises.

We are unable to say to what assessments, or to assessments for what purposes, the trial court referred in this finding; if they were assessments for maintaining the street as a street, if they were assessments for street purposes, then within the decision of the Court of Appeals in the Story case, in the Lahr case and in Washington &c. v. Prospect Park &c., 4 Abb. N. C. 16, and of this court in St. Johns v. Mayor, etc., 3 Bosw. 483, the plaintiff would have an easement of light, aii; and access to the street. If he has such an easement then, within the decisions in those cases, this easement .has been taken from him without due process of law and without compensation.

In this connection we may remarle that the records of the department of taxes in the city show that plaintiff’s grantor did pay, in 1862, an assessment for paving Pearl street from Fulton to Beekman street.

We are also of the opinion that the acts of the legislature under which the defendant operates its road, and especially chapter 606 of the Laws of 1875, commonly known as “The Rapid Transit Act,” require that the defendant shall compensate a person whose land is subjected to the use that the findings in this case show that the plaintiff’s land was subjected to.

It is provided in section 17, chapter 606, of the Laws of 1875, “ that the defendant shall have the right to acquire and hold such real estate or interest therein as may be necessary to enable it to construct, maintain and operate its railway.”

This act contemplates the contingency of the defendants needing less than a fee in the land for the purpose of maintaining and operating its road, and that it should pay for any interest in the land less than the fee that it acquired. "

The right to use another’s land as a place on which to throw dust and ashes is an easement, and an easement ii an interest in the land. Arnold v. Hudson R. R. Co., 55 N. Y. 661.

The defendant claims to have the right to throw dust and ashes upon plaintiff’s premises without compensation, and therefore it claims and has taken an easement or interest in his land. This easement it has not yet acquired by contract with the plaintiff, or in the method pointed out in the act above referred to. It has no right to this easement without compensating the plaintiff therefor.

The judgment appealed from should be reversed, and a new trial ordered with costs to the appellant to abide the event.

O’Gorman, J.

The plaintiff being owner in fee of premises abutting on Pearl street in the city of New York, and claiming to be the owner also of an easement in that street, brought this action for the purpose of obtaining an injunction against the obstructing and encumbering of that s.treet in front of his premises by the defendants, by their maintaining their elevated railroad there; and that they be compelled to remove the same and also that he should have judgment for the damage sustained by him. The case was tried by a judge without a jury, and he dismissed the complaint on the ground that the title to the soil of the street in fee simple absolute was vested in the Mayor, Aldermen and Commonalty of the city of New York and that plaintiff had no easement or private property whatever in the street, against the taking of which he was entitled to protection under the constitution of this state. The finding of the trial judge as to the title of the city of New York to absolute ownership of the highway or street, was supported by competent and sufficient evidence; the only condition attached to that ownership, being derived by implication from the provision in the second section of the Dongan charter, that the street should be for the public use and service of the Mayor, Aldermen and Commonalty of the city of New York and travellers there. By that provision, however, no private easement or property right attached to any lot abutting on the street nor was any property right in the street constituting private property vested in any individual owner of such lot. It created a trust in favor of the public at large, but not of any particular individual, whether abutting owner or not. The trial judge also found that the defendants had not taken any steps to condemn or acquire any property of the plaintiff; that the railroad structure seriously impaired the plaintiff’s light; that the engines emitted smoke, gas, steam, cinders, &c., which at times entered the plaintiff’s premises through the doors and windows and caused him injury; that his property had been permanently damaged and its value seriously lessened thereby; that defendants’ elevated railroad was a lawful structure and the operation of it, as it was operated by defendants, a lawful use of the structure; that defendants’ trains caused some noise, but that they were furnished with the best practicable appliance known for prevention of the noise and also with the best practical appliances to arrest sparks and cinders.

Accepting, for the present, the conclusion arrived at by the trial judge, that the plaintiff had no private easement or property rights in the street,—as to which conclusion, more will be said hereafter,—the question is still open for discussion whether, on the authority of, oas a legitimate sequel to the recent decision of the Court of Appeals in Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10 ; and Lahr v. The Metropolitan Elevated Railway Co. (Court of Appeals, February 1887) 104 N. Y. 268. The plaintiff in the case at bar is not entitled to relief, on the ground that the acts of the defendants complained of, were not necessary incidents of the lawful use of the railroad, and also on the ground that, even if they had been such necessary incidents, they were still, as far as they impaired the plaintiff’s beneficial use of his premises and diminished their rental value, either trespasses or a private nuisance for which he had a valid claim to recover damages; or a taking of plaintiff’s private property without compensation and without due process of law which is prohibited by the constitution of this state.

Granting then that the defendants’ structure, having been erected in accordance with law, is not, of itself, a nuisance, either public or private (Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 107), and also that the operation of their road was a lawful use; granting also that they had used the best known means in order to prevent the dissemination of the noxious vapors, etc., which entered the plaintiff’s house and seriously diminished its value; yet these means and appliances were inadequate and inefficient to prevent the mischief, and the impairment of plaintiff’s beneficial use of his house and of its rental value has occurred and continues.

The trial judge has not found that the creation and existence of these noxious vapors, etc., by defendants are necessary incidents to the lawful use of defendants’ railroad.

Excluding then the idea of the possession by the plaintiff of any easement in the street and treating the relations between him and the defendants as such only as ordinarily exist between owners or occupiers of premises adjoining one another in a city, the rights and duties of each as to the other would be these:

Each would have the right to use his own premises for his own private advantage in all ways, not in themselves unlawful, subject, however, to the duty of not. inflicting thereby any substantial injury on the other. If either did inflict injury on the other, the fact that the necessities- of his business required such injury to be inflicted, or that he exercised due care to prevent the mischief, would not be an excuse. McKeon v. See, 51 N. Y. 300; Cogswell v. R. R. supra. The discussion of the principles of law in the latter case is specially instructive and important. The facts were these : The defendant railroad company, having a legal right to operate and run its cars into the city of New York, acquired a lot of land adjoining the premises of the plaintiff, and on this lot, they erected an engine house, in the use of which they flooded the plaintiff’s premises with noxious gases, to the great injury thereof and the pecuniary loss to plaintiff. The defendants contended that the use of this engine house and the emission of these noxious vapors therefrom, were necessary incidents to the use of their railroad and were, “ damnum absque injuriar The court below held that the injury to plaintiff’s premises was not a taking of his property within the constitution, and affirmed a judgment in favor of the defendants. Cogswell v. R. R., 48 Super. Ct. 31. The Court of Appeals reversed that j udgment, and placed its decision on the ground that the legislature had not authorized the wrong of which the plaintiff complained, and it was unnecessary to determine whether the legislature could have authorized it consistently with the principles of the constitution for the security of private rights, without providing for compensation. Cogswell v. R. R. 103 N. Y. 16. In that case, as in the case now at bar, there was no question of any infringement on any easement in the plaintiff, but only of the injury inflicted on him by noxious vapors emanating from the engine house next to the plaintiff’s house; and the Court of Appeals held, that the engine house as used by defendants was a nuisance for which, as between individuals, an action would lie for damages and for which a court of equity would afford a remedy by injunction. Cogswell v. R. R. (supra) p. 15.

As to the argument used in the Cogswell case; viz., that the statutory authority to run railroad cars to the city of New York, justified also the acquisition and the use of the engine house in New York, which would otherwise have given a right of action, the Court of Appeals says:—

“ But the statutory sanction which will justify an injury to property, must be express, or must be given by clear and unquestionable implication from the powers expressly conferred so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be" presumed, from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining them consent. This construction of statutory powers, applies with peculiar force to grants of corporate powers to private corporations which are set up as a justification of corporate acts to the detriment of private property.” (p. 21.)

Applying this clear and emphatic expression of the opinion of the court in the Cogswell case, to the case at bar, it seems impossible for the defendants to justify the infliction by them of the injury complained of by the plaintiff, on the ground that it was the necessary incident to the use of their lawful railroad. It cannot be held that the legislature contemplated the doing of the very act which occasioned the injury to the plaintiff, or even entertained or assented to the probability that the defendants’ cars in their passage on the defendants’ railroad, would emit smoke, gas, and noxious vapors at all, or to such an extent as to render the houses abutting on the street practically uninhabitable.

But even if it could be with good reason held that this emission of noxious vapor was a necessary incident to the use of the defendants’ road, and that "the legislature so intended, the question would still remain whether the legislature had the right to sanction a nuisance so detrimental to plaintiff's private property as to constitute a taking thereof, without compensation.

The opinion of the Court of Appeals in the Cogswell case" on that subject is again important. After stating that they placed their judgment on the ground that the legislature had not authorized the wrong to plaintiff, they proceed, “ It is therefore unnecessary to determine whether the legislature could have authorized it consistently with the principles of the Constitution for thsecurity of private rights, without provision for compensation.”

If it were necessary for the decision of the case at bar, I should have no hesitation in holding that the legislature had no right to authorize or sanction any serious injury to the private property of a citizen, so far destroying or impairing its beneficial use to him as to constitute a taking thereof, unless such taking were accomplished under due process of law and provision be made that he be duly compensated therefor.

But another subject still remains to be considered.

The learned trial judge found that, during the plaintiff’s occupation of his premises, he had paid assessments as well as taxes. It may be presumed that it was meant thereby, that he paid assessments imposed on the premises, referred to in this case, for improvements, repairs, étc., to Pearl, street in front of these premises; other wise the finding would have been irrelevant.

Assessments imposed on real property in the city of New York for local.improvements of streets are special contributions paid by an abutting owner, in addition to, and exclusive of, the general tax which he pays as one of the general public. The distinction between these two imposts, is clear and well defined. Hassan v. City of Rochester, 67 N. Y. 533-34. The assessment is not to be regarded as a burden, but as a compensation paid by the owner of a lot for the enhanced value derived by him from the local improvement. But in making that payment, he has the righfi to expect that his right to use and enjoy the improvement that he thus pays for, shall be preserved to him without impairment, and this right is private property which cannot be taken from, him without compensation. This appears to me to be the natural consequence and sequel to the Story case and of the more recent case of Lahr v. The Metrópoli-, tan El. Ry. Co. (supra.) In the Story case it was held; that the title, in an abutting owner, to an easement in a public street in front of his premises, depending on a deed from the city of New York, containing covenants protecting the street from any use other than that of a public street was good title, and vested in him a private property which could not be taken without compensation. In the Lahr case, the Court of Appeals held, that there was no legal difference between the title acquired under these circumstances, and that acquired through a series of mesne conveyances from an original owner, whose property had been taken in proceedings instituted by the municipality under the Act of 1813, which provided that lands thus acquired should be kept open forever as public streets in the city of New York, are, or of right ought to be ”.....and for the reason especially, that he had been a party to the proceedings under which the land had been appropriated for a public street and was liable to be assessed for its benefit, and therefore entitled to enjoy them. Lahr v. Met. El. Ry. (supra) p. 289.

It seems a natural and proper step and a logical consequence of the principle sustained by these authorities, to hold that when an abutting owner pays, under compulsion of law, a sum specially awarded as his individual contribution to the well being and improved utility of the street to the public and to himself, as abutting owner, a contract must be implied that he shall be secure in his right to use and enjoy the street with all the improvements and advantages to the creation of which he has specially contributed.

For these reasons, it is my opinion that the judgment appealed from in this case should be reversed, and a new trial be ordered with costs to abide th*e event.

Sedgwick, Ch. J.

I concur with both judges deliver-opinions, property plaintiff was taken without compensation.  