Sautter v. Utica City National Bank

extends into the street is permanent and as much a part of the structure as any other portion thereof. The occupancy of the street by such building under a claim of right would undoubtedly vest the. defendant with title to the- same if sufficiently long continued. .It appears that immediately upon the assertion by the defendant bank of the right to construct its building as indicated, the . plaintiff protested, asserting that it had no right so to do. The defendant ignored the plaintiff’s protest in that regard and proceeded with the erection of its building as planned. Thereupon this action was commenced to restrain the defendant from erecting its building so that it Would project into Genesee street, and a temporary' injunction was'obtained restraining such construction or action on the part of the defendants. , There-'. . after a motion was made on behalf of the" defendant bank to dissolve sueh injunction, it alleging iu substance that it was amplyable to respond in any damages which the plaintiff might sustain by reason of the erection- of such building in the manner contemplated, and thereupon such injunction order was modified so as to permit the erection of the building as planned, but providing, however, that nothing therein and in the other orders- made in said action should affeqt the ultimate rights of the parties at the trial thereof: Thereupon the construction of the building was proceeded with and had, at the time'of the trial, been completed in the manner indicated. In other words; five columns which are built into and made a part of the: front wall of defendant’s building, and which are a permanent and essential part of it, extending up thirty-one feet, - .project out into the street from nineteen and one-half to sixteen and one-half-inches, and each is; set upon a base five feet high, which extends into the street . and beyond the line of plaintiff’s store twenty-three and three-sixteenths inches, and one of which is immediately, adjacent to his premises. After the commencement of this action, subdivision 5 of section 36 of chapter 18 of the Laws of 1863; entitled “An act to revise the charter of the city of Utica,” was amended by chapter 3 of the Laws of 1903, so as to authorize-the-common council to “permit steps, porches, show windows, bow windows, columns,. pilasters and orna-" mental portions of any building to encroach upon any. street to. a specified extent, where in its judgment the same will not interfere with-the reasonable and substantial use thereof by the .public.” Two days after said- act went into, effect, and on the 16th day of February, 1903, the common council of the city of Utica adopted the following resolution: “Resolved,, that permission is; hereby-given to the Utica City National Bank to have the five columns of the front wall of its new building at Nos. 108,-110 and 113 Genes'ee Street encroach and project on Genesee Street not exceeding 34 inches into the sidewalk from the face of the building line as it' now exists at each side of said building. This permission is • intended to cover the position of said columns as they are now being constructed, and permission is further given to said Utica City National Bank to have the cornices and ornamental projections above the. street'project over said Genesee Street to the extent and as shown and marked on the plans of the front of said building filed with the City Clerk Febi 16,1903. Resolved, that it is the judgment of the common council, and it does determine that the encroachments above permitted do not and will not interfere with the reasonable and substantial use:

of-Genesee. Street and of the said sidewalk by the ¡public.” Thereafter .defendant’s building was completed in the-manner indicated. ■ The justification- of the defendant’s acts in the premises, and of which the plaintiff complains, -must, if it exists, be found in the “Act” to which attention has been called and the resolution adopted by the common . council pursuant thereto. It. must be com-ceded that if the resolution of the common council conferred.any rights upon the defendant bank it had the effect of vesting in it ¡the right to occupy the street "permanently and for all time; that for all practical purposes it thereby,acquired-title to so much of the street. as is occupied by it. It cannot be claimed' that- if the common council had authority to give such permission and which .was acted upon, that it could revoke the saíne,: esisecially when there is no power of revocation reserved • to it- either by the “Act” or resolution. So that the. question is presented, may the State or city, either 'or. both, grant to a private individual for , his exclusive use ¡ and ■ benefit, without' consideration or any advantage given to the public in ¡return, a substantial part of a public street, against the protest of .an adjacent owner? If such right exists, the individual may be permitted to thus occupy ten feet as well .as two, and it" would be unnecessary to restrict such use to the; erection of pilasters or columns. A solid brick Wall'might be even less objectionable. It is unimportant to inquire whether the- title to the street in question; is in the State or in the city of Utica. /' In either case it is for the benefit-of the public generally and particularly for, the benefit of the owners of premises' abutting thereon. There ¡is no substantial difference between streets in which the legal title is in private individuals and those in which it is in the public, as to the rights of the public therein. (Barney v. Keokuk, 94 U. S. 324 ; Story v. N. Y. Elevated R. R. Co., 90 N. Y. 155 .) The whole subject of the rights of owners of premises abutting upon city streets was elaborately discussed by Judge Andrews in' Kane v. N. Y. E. R. R. Co. ( 125 N. Y. 164 ),' and it was there held: “The owners of "lots abutting on a city street, the. fee of which is in the municipality, have, 'by virtfie.of proximity, special and- peculiar rights, facilities and privileges therein in -the nature' of eásements,_which.are not common to the citizens.at largp, and constitute property of which- they cannot be deprived by the. Legislature or the municipality, or both-, without compensation; and any use of such street inconsistent with its use as a public street, which interferes with those easements., is a taking of property, for - which said owners- are entitled to compensation to the extent of the damages occasioned thereby.”. It was further held in that case that while the city of New York owns the fee of the lands occupied by the streets of said city, its tenure is in trust for street uses and “the trust so created is' not only for the benefit of the public at large, but for the special benefit of.-abuttirig owners, "hnd it is to be pre- ' sumed that upon the faith that the streets shall be forever kept open, such owners have acted- in improving arid building on-their adjoining land. The Legislature has no power to abrogate this "trust or authorize its violation , by devoting a street to other arid inconsistent purposes, without "making compensation to abutting owners.” The learned judge in his-opinion (p.. 1.83) says: “Can 'the-Legis-lature abrogate this trust, or. authorize its violation without making compensation for any injury sustained by abutting, owners?- Justice requires -'a negative

answer, and we think it-may be properly said that the acceptance and acting upon this trust by owners of abutting property, creates in them a right which the law will enforce to have and enjoy the advantages and incidents of a public street, in connection with their property, of which the Legislature cannot deprive them without compensation. The statutes for laying out streets proceed on the theory that special advantages are thereby conferred, upon, and will be enjoyed by the owners of abutting property. ' * * *. The system of maintaining, paving and repairing streets and assessing the expense on the adjacent property, recognizes the existence in abutting owners of a special and peculiar interest in the streets, other than that of the public at large.” Further, at page 185 of the opinion, it is said: “ The State has dedicated the streets in the city of New York to be pub-lie streets. The abutting owners have acted upon the dedication and upon the pledge of the public faith that they shall continue to be open public streets forever. It'would be gross injustice to deprive them of the advantages intended, without compensation: The dedication ought to be, and is, we think, irrevocable.” In the case of Lahr v. Metropolitan Elevated R. Co. ( 104 N. Y. 268 ) it was held that it was not essential to the acquisition of an abutter’s rights in the street that any land should • have been originally taken from him, as.in any event he is a party to the proceedings to appropriate the land for the same and liable to be assessed for its benefits, and, therefore, entitled to enjoy them. - In the case at bar, as we have seen,, the title to the street in question was acquired by the State, and the people of the county of Oneida were compelled to pay for the same so far as the right of way was not donated;, were required to pay for a street six rods in width, and the same was dedicated as a public highway by the State. The people, including the plaintiff, have- acted upon the faith of such dedication for more than a century, have been assessed’for its improvement for its entire width, and we think it is not competent for the State to now authorize the giving or granting of any portion of the same to a private individual, or to authorize its appropriation or any part of it, except to a public use, and then only upon condition that compensation shall be made to the abutting owner. The cases cited would seem to be conclusive upon, the question now being considered, except for the suggestion that the decisions in those cases all had reference to the rights of an owner because of encroachments immediately in front of his premises. We think such distinction in no manner affects the proposition. It ■would seem idle to say that an Owner of premises abutting upon a street may , prevent an illegal encroachment immediately in front thereof, but is powerless to prevent such encroachment in front of premises adjacent to his. The plaintiff in this case has no more right to insist that the street immediately in front of his premises shall be kept open and maintained at the width dedicated by the State than he has to insist .that such street shall be-kept open to such width upon either side of his premises, assuming that the fee to such street is in the State, but nevertheless held by it in trust for the public and especially for the owners of abutting property. The plaintiff, as' abutting owner, is entitled to prevent unlawful encroachment' thereon in front of- premises adjacent to his, precisely the same as if such encroachment were attempted to be made immediately-in. front of his premises.' The rights of an abutting owner in a street would be of

for the convenience of the abutting owner. (Babbage v. Powers, 130 id. 281 ; Jorgensen v. Squires, 144 id. 285 ; Trustees of Canandaigua v. Foster, 156 id. 354; Broad-belt v. Loew, 15 App. Div. 343 ; affd., 162 N. Y. 642 ); watering troughs, fountains, monuments, statues and the like; a market place erected by the municipality upon land condemned for and being a portion of- the street (Henkel v. City of Detroit, 49 Mich. 249 ). Our attention, however, has not been called to any cáse decided by the courts of this State where an encroachment upon a street has been justified where it constituted a permanent and essential part of a building of an abutting owner and such an occupation as would ripen into title if sufficiently long continued, as in the case at bar. In all the cases to which attention , has been called the authority to encroach upon the street was simply incidental to the right of the abutting owner and was clearly revocable at the will of the municipality'or power authorized to confer such.right. The encroachment was temporary in its nature and was not an essential'part of the structure being erected by the abutting owner and was authorized to facilitate the transaction of the public business. In the case at bar, as we have seen, the encroachment upon the street is an essential part of defendant’s building, is permanent in its character, as much so as the front wall of the same, and is as essential to the structure. And so, as we have seen, if the State and the common council had authority to confer upon the defendant the right to occupy the street in question in the manner indicated, it became irrevocably possessed of such right. One of the most obnoxious features of the legislative act in question is that it assumes to vest in the common council of the city of Utica the power, in its discretion, to say to what extent the streets of the city may bo encroached upon. It has granted to the • defendant the right to extend its building out into the street two feet. It may grant to the owner of the premises upon the other side of plaintiff’s premises the ' right t.o extend the building upon its or his premises to the same distance or farther," and then deny to the plaintiff the right to extend any columns or pilasters in front of his building beyond the street line. In. other words, presumably the plaintiff and defendant have paid equally -for the acquisition by the State of the title to the street in question and have paid equally for the improvement thereof, and still it is claimed that the common council of the city, under authority conferred upon it by the State, may grant to one the right to extend a substantial part of its building two feet into the street and deny to the other the privilege of extending his building beyond the street line. As before suggested, the proposition, as it seems tons, is inequitable and unjust, and as we read the decisions no authority can be' found which supports the respondents’ contention in "that regard. In other words, we think the rule, as clearly established by authority, is to the effect that the State, where it is the owner of the fee of a street, or a municipality which is such owner, which street has been dedicated to the public use, may not give to a private individual whose property abuts thereon a substantial part thereof, against the protest of the adjacent owner; that such adjacent owner has an easement and property right in the street in front 6f the premises of his adjacent owner, which are in legal effect the same as those which he possesses in the street immediately in front of his premises. Further, that in this case the assumed grant by the common council of the city of Utica to the defend

valuable right, and to measure it in dollars and cents was . unnecessary. When it is apparent that nominal damages only have been sustained; then equity in certain cases may not retain jurisdiction solely f of the purpose of awarding them where, the chief relief sought cannot be granted. Here, however, approach to the lot is. essential to its use and enjoyment,..and if that access, is by an unmistakable way, the more profitable inevitably must be that use than if dependent'upon the caprice of the one who-is responsible for obstructing the easement. The plaintiff made a case on the principal-ground and the damages were merely an incident. If to cause the defendant to remove: these obstructions- is out of all proportion to the damages-which would be sustained by the; plaintiff because of the blocking up of her right of way, then it may be the court in its- discretion might award damages in lieu of imposing upon the defendant the large expense, which the removal of such obstructions would entail. If the defendant desired any such relief, however, the burden was upon it to show the facts which would justify the court in, adopting that course,” In People v. Vanderbilt ( 26 N. Y. 287 ) it was-, held that the obstruction complained of which extended into, the .waters of the harbor of New York, was .a public nuisance, -and the action having been, brought to cause the same to be removed, it was held that the-offer to prove that the crib and proposed pier were not and would not be an- actual nuisance and would not injuriously interfere with or affect, the navigation of the river or bay, was-properly 'overruled. The case of De Witt v. Van Schoyk ( 110 N. Y. 7 ) was an action brought to restrain the defendants from obstructing an alleged • highway and to compel them to remove obstructions placed- by them thereon and. to restore the same, to use of plaintiff and the public as it was before the alleged unlawful act of the defendants, and to restrain them from entering- upon and using ’plaintiff’s lands as a public-highway. Danforth, J., writing th'e opinion for the court, said (p. 11): “ Moreover the acts, of the defendant are in- dero. gation of the plaintiff’s title, and, being calculated to injure her in that respect, would, sustain an .injunction, although no damage had actually happened.” The case at bar, as we have seen,' was brought to restrain the defendant from encroaching upon plaintiff’s property rights, to prevent it from erecting its building in such manner that- it would’ project into the street- two- feet immediately adjacent to plaintiff's property. • Ho' damages; were asked for; and we think that if such encroachment was unauthorized, and was -an invasion of plaintiff’s rights, that he was entitled to the relief demanded, wholly independent of whether he proved that he sustained special damage's or not; that the finding of the trial-court that he did not affords no justification to the defendant fof'such illegal encroachment. The cases cited by, and which are relied upon by respondents’-'counsel, are not -in conflict with the proposition enunciated. In all of -those cases the plaintiffs sought, to restrain or -remove a public nuisance "which did not affect them otherwise than it áffected the public- generally, and. in such cases it was held that to entitle them to succeed they must show that some special "damages resulted to them because of the obstruction or nuisance complained of. .-.In other words, that an individual, who had no rights^peculiar to himself -to be protected, would not be permitted to enforce the rights of the public: Hone of. the cases so cited are authority for the -..proposition that strictly property rights of