
    Parsons v. Travis and the Mayor, &c., of New York.
    (Before Campbell, Bosworth, and Emmett, J.J.)
    Dec. 6, 1852;
    Feb. 26, 1853.
    The court will not restrain the erection and continuance of a lamp-post and lamp in front of or near a dwelling-house, upon the ground that it is a nuisance to the owner or inhabitants, unless the fact that it is so is clearly established by the proofs.
    Whether such an erection shall be permitted or continued, rests in the discretion of the corporation of the city, and when no special injury is shown, the court has no right to restrain the exercise of this discretion.
    Judgment dismissing complaint affirmed with costs.
    
      This was an appeal, by the plaintiff, from a judgment at special term, dismissing the complaint with costs.
    • The following is an abstract of the pleadings:—
    The complaint alleges that the plaintiff is the owner of the house and lot Ho. 8 Barclay street, in the city of Hew York; that the house is twenty feet wide on first story, and twenty-five feet wide on the second story; that attached to the house is a vault twenty-five feet wide, built under the side-walk; that between this house and Ho. 10 Barclay street, there is an alleyway ten feet wide, half under each house, running back the whole length of the lots; that the vault extends to the centre of the alley-way; that the plaintiff’s house is intended for a store on the first story, and a dwelling-house in the upper part; that the defendant, Travis, has put down a lamp-post in the street, so sunk as to be two feet and a half within the extreme line of the plaintiff’s side-walk (supposing it to extend to the centre of the alley-way), that in sinking the lamp-post, the plaintiff’s vault was injured; that the lamp is so constructed as to be an annoyance and injury to his house; that plaintiff is injured two hundred dollars a year in the rent of the upper part of the house, the tenant being willing to pay that much more if it is removed; that the lamp is lighted nightly; that it is not required in the street; that the defendant Travis justifies himself by the alleged permission of the Corporation, &c.
    Asks for an injunction order, pendiente Mte, against lighting the lamp, &c., and for a final judgment of removal, &c.
    The answer of the defendant Travis denies that the boundaries of Ho. 8 Barclay street extend to the location of the lamp-post. Alleges that the Messrs. Meeks own the fee of the alley-way, and that they have given permission to the defendant, Travis, to put the lamp-post down. Denies any injury to the plaintiff’s vault in sinking the lamp-post, or any injury to the plaintiff’s property in any way, by reason of its being put down. Alleges that it is benefited by it; alleges also that the plaintiff’s house is a gambling house, &e.’; that the lamp is a public convenience, and that besides the Messrs. Meeks, the agents of the Corporation have assented to -the lamp-post being put down, &c.
    The reply of the plaintiff alleges mainly that David Hosack was the original owner of Hos. 8 and 10 Barclay street, and of the alley-way and premises in the rear; that he fashioned the premises in their present form; that they have remained so for twenty-five years and upwards, and denies generally all allegations of new matter in the answer.
    The Corporation demurred generally to the complaint for want of equity.
    The cause was heard before Mr. Justice Campbell, upon the issues of fact and of law, upon the 13th of November, 1851, and upon the 24th of January, 1852, he dismissed the complaint as to all the defendants with costs.
    The learned judge made and caused to be filed the following statement of the grounds of his decision:—
    • “ I found in this case that, the alley-way mentioned in the pleadings and evidence, belonged to Meeks, the landlord of defendant Travis, that the lamp-post in question was put down by the defendant Travis, by and with the consent and permission of Meeks and the Corporation, which consent and permission they had a right to give. That the plaintiff had been, by himself and his grantors, for more than twenty years in undisturbed possession of the vault mentioned in the pleadings and evidence, but I considered that such enjoyment of the vault so far as the same extended under the front of the alley-way in question, gave to the plaintiff simply an easement, and carried no right to the surface of the street or side-walk ; I further found that the lamp and lamp-post were not a nuisance.
    “ On the trial and argument of the case, it was agreed by the respective counsel, that the demurrer interposed by the Corporation should be treated and considered as a general demurrer.
    “ I thereupon decided, that the plaintiff did not show a right to have the lamp-post removed, and that he could not in this suit recover any damages, and I ordered the complaint to be dismissed as to all the defendants with costs.
    “ William W. Campbell.
    “ To the several conclusions of law above contained and decided the plaintiff’s counsel then and there duly excepted.
    “W.W. 0.”
    
      The case was now heard upon the pleadings, proofs, and exceptions.
    
      J. Graham, for the plaintiff and appellant,
    insisted that the judgment ought to he reversed upon the following grounds:—
    I. It was not necessary to show pecuniary damage to entitle the appellant to,a judgment for a perpetual injunction order against the lamp and lamp-post in question, or for judgment of removal, &c. If it can be seen that Travis intended to do him an injury, or that such is the inevitable result of Travis’s act, an injunction order is proper. The highest office of an injunction is prevention, and prevention in time, before injury.
    The rule of the “Code” as to irreparable injury, &c., means injunction orders, pendente lite. Code, § 219.
    This case is analogous to an application for judgment restraining the use of a trade mark. Show the fact, the violation of right, and damage is matter of presumption.
    II. If the court can see no good reason for Travis sinking the - lamp-post (its unusual construction, and its not being ostensibly connected with his business being unexplained), it is bound to infer that it was intended to injure or annoy the appellant, particularly when such is its necessary or unavoidable effect. (The M. & H. R. R. Co. v. Archer & Ors., 6 Paige, 83; Gatlin v. Valentine, 9 id. 575.)
    IH. It is perfectly immaterial in whom the fee of the sidewalk in question vests or resides, whether in the Corporation, the Messrs. Meeks, or the appellant; as a part of the public highway or street, it is under the control of the Corporation, to be controlled only for the public benefit and public use. "Whether the Corporation is to be looked upon as controlling its own property, or merely exercising a fiduciary right of control over the property of another, the use or appropriation in every instance is or must be the same, i. e. for the benefit of the public. The Corporation is a public body, existing for public purposes. For its rights over the streets of the city, see Drake v. H. R. R. Co., 7 Barb. S. C. R. 508; as illustrative o( this principle, see State of N. Y. v. City of Buffalo, 2 Hill, 434; Hodges v. Same, 2 Den. 110; Adriance v. The Mayor, &c., 1 Barb. S. C. R. 19; Lawrence v. The Mayor, &c., 2 id. 577; 
      Brown v. Same, 3 id. 254; Halstead v. Same, 5 id. 218, S. C. in error, 3 Comst. 430; Reynolds v. The Mayor, &c. of Albany, 8 id. 597.
    IY. If the fee of the side-walk in question vests in the appellant, he is entitled to maintain his action on both or one of two grounds, viz.:
    1. Because putting down the lamp-post was a permanent appropriation of his-fee below the surface. The surface is alone subject to the public use.
    2. Because of the annoyance or discomfiture necessarily occasioned to the appellant, or the occupants of his property, by light reflected from a lamp, constructed as the one in question.
    If the lamp-post is offensive to the eye, why is he not entitled to the removal of it %
    
    
      Y. The appellant is the owner of the side-walk for the width of twenty-five feet up to the centre of the alley-way. Hie deed from Dr. Hosack conveyed the house and lot Vo. 8 Barclay street,' “ with the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining,” in fee, a fee in every particular of the grant.
    Was .not the vault a tenement?
    For “ tenement” see 2 B. Blacks. Corns. 16,17.
    If the vault was granted in fee, the grantee took the same estate in every necessary incident as in the thing granted.
    For presumptions as affecting grants, see 2 Ph. Ev. (Cow. & Hill’s Ed.) 303, 304, notes; 4 Kent’s Coms. 466-469.
    Again,—The vault merged the fee of the soil. The soil was dedicated to it. It appropriated the entire beneficial use of the soil. The land is capable of little or no beneficial use besides. Although such a thing can exist as one person owning the surface of the soil in fee, and another owning an estate in fee above or below the surface (Humphries v. Brogden, 12 Adol. & El. 738; S. C. 64, E. C. L. R. 738), it is not to be implied— in must be created by express grant. If left to itself, the law will presume against a complication of estates in fee.
    VI. Although the deed from the heirs of David Hosack to the Messrs. Meeks purports to convey the alley-way, bounding in front on Barclay street, that does not carry the fee in the land to the centre of the street; for the fee of that part of the property had already been attached to the vault of Ho. 8 Barclay street, and passed as an incident of the grant of that pro- • perty. This latter grant being antecedent to the former, the heirs of Hosack could make no larger grant than he could, or could convey no right but what he could. The case, therefore, on this branch of it, is to be looked at with reference to what Hosack could have granted to the Meeks, if he and not his heirs had executed the deed to them. He fashioned the premises Hos. 8 and 10 Barclay street, with these vaults extending to the centre of the alley-way, and his heirs are estopped by his acts.
    Can it be said that he intended to reserve any interest in the soil below tiie vault, or between the arch and the flagging of the side-walk? Can it be supposed that he had such a thing in his mind when he first deeded to Townsend ? Or can it be supposed that he did not consider the fee entirely appropriated or dedicated to the vault? If it can be seen that the intention of the party is narrower than the presumed effect of his act, intention may prevail, but is it so here ?
    The deed then from the heirs of Hosack to the Meeks abutted the alley-way upon Barclay street as a space and not as a line. (MacLachlan v. Hammond, 1 Sand. S. C. R. 323.)
    It is not disputed that Barclay street is within that section of the city where the fee of the streets does not vest in the Corporation. (19 Wend. 659; Laws of N. Y., Webst. Ed., Vol. ii., p. 92; Laws of N. Y., Webst. & Skin. Ed., Vol. v., p. 125.)
    This street w&s laid out in 1763, and the old common law rule of “ usque ad medmmvfilum wee” applies. (20 Wend. 96.)
    YH. Even if the fee of the side-walk vests in the Messrs. Meeks, and their permission to Travis to put down the lamppost was sufficient—if it was not put down for a legal, useful purpose—the appellant is entitled to have it removed; a mischievous exercise of a right is not tolerated. (Lasala v. Holbrook, 4 Paige, 169.)
    Even if the lamp-post was connected with Travis’s business (and there is no proof or pretence of such a thing in the case), the keeping of a “ pistol gallery ” is illegal, and the lamp-post, as connected with such a business, must fall also. (Tanner v. Trustees of Albion, 5 Hill, 121.)
    YU!. Under any circumstances the appellant was entitled to a judgment for the damage done to this vault in sinking the lamp-post. The proof was sufficient to show and sustain a claim for some damage.
    The defendant, Travis, knew who it was he employed to sink the post, and could have produced whoever it was to show that no injury was done to the vault. The better proof was with him. Enough was shown to put him on his defence as to the fact. He offered no proof on the point, and so conceded it.
    Justice Campbell does not question the sufficiency of the proof, but excluded it entirely from consideration. In this he erred. All the rights of the parties, as connected with the sinking of the lamp-post, the right to put it there, the damage done to the vault in sinking it, &c., should have been (certainly ought to be) finally and definitively passed upon in the present action.
    IX. The Corporation and their agents were a necessary, certainly a proper party to the action. The complaint, in one aspect of it, savored of the old “ bill of peace,” and was intended to prevent a substantial disappointment of the objects of the action by the Corporation, through its agents giving a permission to some one else to maintain the lamp-post, which might have been the case had Travis sold it, or surrendered the permission given to him. Without the Corporation and its agents, as parties, the action would have reached Travis alone, when the prayer for judgment in the complaint shows a desire to avoid a multiplicity of suits by determining the right of the Corporation, under the circumstances, to give permission to Travis or any one else.
    In other words, the object of the action was to try or test the right of the Corporation to give the permission to Travis to put down a lamp-post for his own private purposes, to the annoyance or injury of the appellant or any one else, and the right of Travis to act upon this permission; and also to recover against Travis the value of the injury done to the appellant’s vault, an item of claim growing out of his act and therefore confined to him.
    X. By their demurrer, the Corporation and their agents admit the whole of the appellant’s case as alleged in his complaint, the loss of rent, the injury in other respects to the appellant’s property; that they have been applied to to remove the lamp-post; that it is unnecessary, an obstruction in the public street, &c., &c. The demurrer as to them should have been overruled with costs, or final judgment pronounced against them. ¡No one will pretend, no matter what control they are entitled to over the public streets, that they have a right to appropriate any part of them permanently to one individual at the expense of another, when they know too, that not only the individual complaining, but the public generally, are or must be interfered with in their enjoyment of the streets. Yet this is what these defendants have virtually brought their case to by their demurrer.
    The court may, in its discretion, still allow them to plead over, on terms. (Code, § 172.)
    XI. Any recovery against the defendant, Travis, entitles the appellant to costs.
    
      A. J. Willard, for respondents,
    contended that the judgment ought to be affirmed, and insisted that,
    I. The locus in quo was not the soil and freehold of the plaintiff, so as to enable him to maintain an action for trespass upon it.
    1. The lamp-post was erected in Barclay street, in front of premises belonging to the defendant’s, Travis, lessor.
    2. The fee of the land covered by the streets in the lower portion of the city of ¡New York, of which the present street is one, vests in the owner of the adjoining property, subject to the easement belonging to the public.
    3. The plaintiff therefore, never having been seized of the locus in quo, cannot maintain an action of trespass.
    ¡H. The plaintiff has not been disturbed in any easement or right of enjoyment connected with the premises owned by him.
    1. The erection of lamp-posts and lamps is incident to the easement enjoyed by the public in the highway; and if any one has a right to complain, it is the public alone. (Drake v. Hudson River Railroad Company.)
    
    2. A lamp-post, erected or permitted to be erected by the public authority, is a lawful use of the highway,, and -does not create a nuisance, either public or private.
    
      3. A lamp is not per se a nuisance, whether lawfully or unlawfully erected in the highway, for which any private citizen can complain. The law cannot take notice of those considerations that render a less degree of conspicuousness desirable for the plaintiff.
    4. There is no evidence in the case that the lamp was a nuisance, or in any respect injurious to the plaintiff.
    5. The plaintiff’s occupation of the vault was not an easement, but a mere tenancy at will, determinable at the will of the owner of the fee; and, consequently, he cannot maintain an action for an act done under authority from the owner in fee.
    TIT. The plaintiff is not entitled to recover damages for any injury to the vault.
    1. The complaint does not lay the foundation of any such claim.
    ■ 2. The only evidence tending to show an injury to the vault, is contained in the testimony of Gilbert Giles, who saw nothing but the appearance of a brick having been replaced for some cause in the inside of the vault, long after the lamp-post had been erected, and who did not, and could not know for what reason it had been replaced.
    3. The court having found upon this evidence that there had been no injury done to the vault, that finding cannot be disturbed. (Osborn v. Marquand, 1 Sand. S. C. R. 457.)
    TV. The plaintiff is not entitled to an injunction that would interfere with the control over the public streets, that the Corporation are invested with by law.
   By the Court. Bosworth, J.

The lot and premises, ISTo. 8 Barclay street, as well as the lot and premises, Fío. 10 Barclay street, are conveyed by metes and bounds. Each is twenty feet wide in front, on Barclay street, and no more. Each lot extends southwardly of the same width, the length of the strip of land or alley-way lying between these two lots. The alleyway is ten feet wide. The fee of the alley-way, and of the premises in'the rear, is not in the plaintiff, but in Meeks. The most that the owners of the lots 8 and 10 Barclay street can claim, under their deeds, is the right to an undisturbed use of the whole vault in front of their buildings, and to have the second and upper stories, of the present buildings, and of any new buildings to be hereafter erected, overhang the alley-way; and that the alley-way shall be used as such, or for a purpose, which will not interfere more than such a use of it would, with the enjoyment of their premises.

Travis, by permission of the owner of the alley-way, and of the Corporation of the city of Hew York, has erected a lamp-post, surmounted with a lamp, within the limits of the alley-way, and near the curbstone of the street.

The object of this action is, to obtain a judgment of the court, that this lamp-post be removed; that Travis be perpetually enjoined from placing the same or any other within the limits of this alley-way;.that the other defendants be “perpetually enjoined” from placing any lamp-post within these limits, designed as and for a private lamp-post, without the assent of the owner of lot Ho. 8, Barclay street, and also from directing or assenting that the lamp-post in question be kept there without the assent of the plaintiff, or other owner of the premises.

All other relief prayed is subordinate to and dependent upon the right of the court to grant this.

Unless the plaintiff has a strict legal right, which is invaded by the erection and continuance of this lamp-post, this action cannot be sustained. Ho special damage is shown to have resulted from it. It is not proved to be in fact an annoyance, and of course is not proved to have been erected with intent to annoy him.

The complaint alleges that it is a serious annoyance to the present occupants, and to all in-goers and out-goers, and a material injury to the value of the plaintiff’s property, and as he believes an impediment to the leasing it to advantage, and he believes it was intended by Travis to vex and harass the plaintiff and his tenants.

This is expressly denied by the answer, and no proof was offered to establish the truth of the allegations.

Ho facts are alleged, from which, if proved or admitted, the court can see, that it is or might be injurious, except the averment that it is “ evidently so constructed as to reflect the light with full force upon the street door or entrance to the upper part of the plaintiff’s house, mating it unduly and unpleasantly conspicuous, and interfering with the comfort of the occupants and others passing in and out.”

The answer denies that it was intended or so constructed as to effect this result, or that the alleged conspicuousness of plaintiff’s house, or any interference with the comfort of the occupants and others passing in and out, result from it.

There is no proof of the truth of these particular allegations, unless the court can say judicially, that a lamp of the form, size, construction, and with the number of lights belonging to this, prwna facie must work such consequences, and be presumed to have been constructed with such an intent.

The court, as I apprehend, will find it difficult without proof to say how the owner of a house can be injured, by having all the light thrown upon it, at any and all hours of the night, which can be furnished by a lamp of six burners. The mere fact of a residence or place of business being conspicuous cannot prima facie be deemed injurious. Hor can the fact, that it is very light in front of it after dark, be deemed prejudicial to its business, if lawful, as that of the plaintiff and his tenants must be presumed to be, as nothing to the contrary is shown by the evidence. There was no such evidence as would justify a jury in finding, that the displacement of the brick in the vault was occasioned by the erection of the lamp-post. The plaintiff did not call a witness to prove its condition at or prior to the time of erecting the lamp-post.

It is alleged to have been erected in October, 1850. The witness who proved that under the lamp-post was a hole about the size of a brick, swears to what he saw when he first examined the vault, which was about a year after the lamppost was erected.

How and when this hole was made he does not attempt to state.

It would seem to be clear that Travis, having the consent of the owner of the alley-way and the permission of the Corporation of the city of Hew York to erect the lamp-post, had a strict legal right to erect it.

The court that tried the cause, found as matter of fact that it was not a nuisance. There is no evidence justifying the inference that it was an annoyance to the occupants of No. 8 Barclay street, or any injury to the premises.' The complaint was therefore properly dismissed as to Travis.

The city Corporation and its officers are made parties to obtain a judgment as against them, restraining them from hereafter permitting any lamp-post to be sunk within the limits ■ of the alley-way, and from directing or consenting to the existing one being kept where it is, without the assent of the plaintiff, or other owner of the premises, No. 8 Barclay street.

The court will not undertake to regulate in advance, the future exercise of discretion, by the body or officers to whom the regulation and superintendence of the lighting of the streets, are confided by law.

The complaint alleges that the lamp “ is not required in the street,” but does not aver that it does not tend in any respect to promote the public convenience. It does not allege that the commissioner of streets and lamps,” or “ the superintendent of lamps and gas,” did not deem it useful to the public, or give permission to erect it, with a view to any such consideration.

Admitting .all the averments in the complaint, which can properly be regarded as allegations of fact, to be true, it would not authorize the court to interfere with the action of these municipal officers, in this particular instance, in permitting the erection of this lamp-post.

They had a discretion to exercise in the matter, and although the court may have the power to review and control the exercise of this discretion in cases that may be supposed, there is not enough stated in the complaint to justify us in interfering in this instance.

We are of opinion that the judgment appealed from should be affirmed with costs.  