Clark v. Middletown-Goshen Traction Co. — 10 A.D. 354

Majority

p. 354

Harriet W. Clark, Respondent, v. Middletown-Goshen Traction Company, Appellant.

Headnote

JSminent domain—the owner of the fee of a street is entitled to recover damages for its use hy a trolley railroad.

‘The owner of the fee of the street in front of her property is entitled to recover the damages sustained hy her from the occupation and use of the street hy a ■corporation engaged in the maintenance and operation of a trolley road.

Appeal by the defendant, the Middletown-Goshen Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 9th day of January, 1896, upon the decision of the court rendered after a trial at the Orange Special Term.

p. 355

The action was brought to recover the damages sustained by the plaintiff in consequence of the maintenance and operation of the defendant’s trolley railroad in front of the plaintiff’s premises.

Albert Reymaud, William F. O’Neill and Henry W. Wiggins, for the appellant.

George T. Clark, for the respondent.

The judgment appealed from perpetually enjoins the defendant from maintaining its tracks and operating its street railway in the city of Middletown in front of the plaintiff’s premises, until such time as the defendant shall have paid to the plaintiff the sum of $750, being the amount of permanent loss and damage to such premises sustained by reason of the location of the defendant’s track and the operation of its railway in front of such property. It is in the usual form of judgments in elevated railroad cases in New York and Brooklyn, where the easements of abutting owners have been injuriously affected by the structure in the street. The plaintiff is the owner of the fee of the street in front of her property, and under the authority of Craig v. Roohester, etc., R. R. Co. ( 39 N. Y. 404 ) the occupation and use of the street by the defendant for its trolley railroad clearly entitled her to compensation. The court at Special Term held, upon evidence sufficient to support the finding, that the plaintiff’s property had been injured by the proximity of the rail to the curb, which prevented her premises from participating in the advantage which they would otherwise have received from the general enhancement of property values in Middletown. The learned counsel for the appellant, in their brief, assume that the trial judge, in what he said about the enhancement which comes from the construction of public improvements, referred to the appreciation of values occasioned by the construction and operation of the railroad itself; but we think it is plain that such ivas not his meaning, especially when reference is had to the testimony on the subject. That he meant a general increase, independent of the existence of the railroad, is shown by this extract from the testimony of a witness in respect to values : “ The Court: Q. Suppose the railroad had not been built, I. understand you to say that the property appre

p. 356

ciated in value? A. Yes, sir. The property was enhancing in value before the railroad was built out that way. I think the railroad has depreciated the stores for renting purposes. It would be harder to rent now than it was before.”

The judgment must be affirmed, with costs.

All concurred, except Brown, P. J., not sitting.

Judgment affirmed, with costs.

Cases cited

Craig v. Rochester City & Brighton Railroad 39 N. Y. 404 N.Y. p. 355