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New York Steam Co. v. Foundation Co.

123 A.D. 254 Court First Department, Decision date 1908-01-10 English

Decision Majority — Laughlin, J.: · Dissent — *265 McLaughlin, J. (dissenting):

Contents

Majority

p. 254
The New York Steam Company, Respondent, v. The Foundation Company, Appellant.
First Department,
January 10, 1908.

Headnote

Beal property—municipal corporation — structures under public street — lateral support — injury to pipe line by construction of vault — mutual rights of licensees — injury by vibration.
Section 22 of the Building Code of the city of Dew York, requiring an owner excavating ten feet below the. curb line to protect buildings of adjoining owners, is designed only to regulate the rights of adjacent owners and occupants of premises with respect to building operations upon one lot,, affecting the" build-' ing, occupants thereof and property on an adjacent lot. It has no application where one constructing a vault beneath a sidewalk under a municipal permit injures pipe lines laid under the center of a public street by virtue of a municipal franchise. The respective rights, of such parties are governed by common-law principles
p. 255
At common law the owner of lands is only entitled to the lateral support of his land by that of an adjoining owner where his lands remain in their natural state and the cohesivériess of the soil has not been disturbed by excavations or the erection of structures thereon. '
Hence, when in constructing a conduit in which the plaintiff’s pipe line was installed the soil has been extensively excavated and four other underground improvements have been installed in the same street, the natural cohesiveness of the soil has been materially affected, and the plaintiff,' whose pipes were injured by one licensed to excavate under an adjoining sidewalk, cannot recover upon the ground that it has been deprived of the common-law right to lateral support.
Assuming that-the nature of the right of the public in a highway is such that the owner of land abutting thereon owes a duty of lateral support so as to prevent the creation of a nuisance, it does not follow that this duty is owed to owners of underground improvements or structures laid in the highway under a license or grant from the public authorities.
A permit to an abutting owner to construct á vault under a public sidewalk is in the nature of a revocable private easement. It may be revoked when the space is required for municipal or other purposes, but until revoked may be fully enjoyed. Hence, one constructing such vault under a municipal license is not liable on the theory that he is depriving the soil of the street of lateral support.
A franchise permitting a corporation to lay pipes in a conduit under a public street is subject to the right of the municipal authorities to authorize other improvements in the street,«even though the construction thereof requires the corporation to take additional precautions to protect its property, or subjects it to greater expense in its maintenance.
The rights of a public service corporation authorized to lay pipes in a conduit under a public street are not superior to those of one who, under a municipal license, excavates a vault under the adjoining sidewalk, for the franchise is held subject to the statutory power of the municipal authorities to grant vault privileges.
A public service corporation whose pipe line, laid in a conduit under a public street, has been injured solely by the shock or compression of the earth caused by the construction of a vault under the adjoining sidewalk which was built without negligence and without causing a cave-in or any settling of the soil or disturbance from want of lateral support is not entitled to recover for the injury. Hor can there be a recovery on the theory of trespass without negligence, when .the person constructing the vault threw nothing upon or against the property of the plaintiff.
One licensed, to construct a vault extending to the curb of a sidewalk in the city of Hew York may drive piling outside the curb line in order to construct the wall on the line authorized.
In the absence of negligence there is no liability for consequential damages incidentally resulting from the vibrations of the earth or air caused by the construction of a lawful improvement either in a public street or upon private property.
McLaughlin and Houghton, JJ.,' dissented, with memorandum.
p. 256
' Appeal by the defendant,- The Foundation -Company, .from a judgment of the Supreme Court in favor of the plaintiff, entered in,' the office of the cleric of the county of New York on the 19th day of July, 1907, upon the report of a referee.
No case and exceptions was -made and the appeal,merely brings up -the judgment roll for review. The- facts, therefore, stand as found by the referee. The only-exception, is to the second conclusion of law, which authorizes a judgment in -favor of the plaintiff for the damages which it has sustained.' ■ ,
The material facts found-by the referee are that the-plaintiff is a domestic corporation duly formed' in 1881 by-'the consolidation of the Steam- Pleating and Power -Company of Néw York and the New York Steam Company,. which were incorporated respectively on the 23d day of July, 1879, and the 26tli day of July, 1880, pursuant to-the . provisions of chapter 40 of the La ws of 1848, as amended by various acts, izicluding chapter 290 of the Laws of 1879, for' the pulpóse, among othei's, of supplying steam for motive powez, Léating, cooking and other applications in the streets and public-and private buildings of the city of New, York, and succeeded to the "property, franchises, rights and privileges of said companies; that since its incorporation it has been engaged in the business of -supplying steam to consumers from central stations through pipes, laid in the public streets of the borough of Manhattan, New York; that pursuant,to the provisions of chapter 317 of the Laws of 1879, the New York Steam Company obtaizred the consent of tlie mayor, aldermen *and, commonalty of the city -of New York, to lay its pipes or Conductors for conducting hot watei*,' hot air or steam through the streets, avenues, lanes, alleys, squares and highways of said city, by a' resolution of the board of aldermen, which became effective cm the 14th day of December, 1880, arid in all respects complied with' the com ditions of said, grant,i among which was the condition that it should • annually pay into the sinking fund for the benefit of the city .the - sum of three cents , per lineal foot of street in which, its pipes -or mains were laid; that since the year 1891, the- plaintiff, pursuant to said giant, has maintained an iron pipe with the necessary expansion joints, protective brick walls, coverings and other appurtenances in New street on the east side thereof between Wall street and Exchange place, eight inches in diameter, connected with its central station at'
p. 257
Cortlandt and Dey streets, through which it has supplied steam to consumers on New street and other streets in said borough of Manhattan. The construction placed in said street by the plaintiff is defined in findings 7 to 11, inclusive, as follows»:
“Seventh. The said pipe was a steel pipe, eight inches in diameter, made in lengths of about twenty feet, having cast iron flanges, with expansion joints every one hundred feet, and anchorage points midway between the expansion joints.. On either side of the steam pipe, at a distance of four inches from the outside of the pipe, was a vertical eight-inch brick wall which extended.about a foot below the bottorti of the pipe and about five or six inches above the pipe. Above the pipe, and spanning the brick walls and the pipe that lay • between them, were wooden covers about three inches thick; there were two layers of these .wood-covers with tar paper on top to keep the moisture from percolating through. Underneath the brick work and the pipe there were about two inches of concrete. Between the brick walls and surrounding the pipe up to the level of the wooden covers is mineral wool to prevent the radiation of heat. Mineral wool is a non-conducting substance, and is made by blowing a blast of steam through the slag of a blast furnace. The extreme distance from the outside of one of these brick walls to the outside of the other brick wall was forty-six inches at the expansion joints, and in other places thirty-two inches approximately. The extreme vertical dimension of each wall was about fifty-six inches, including foundations under variator. This brick structure has no rigidity of its own, except as being a mass of masonry.
“Eighth. The expansion joints, which were also known as variators, were a device to take care of the expansion of the pipe when it was heated by the steam ; a device to confine.the steam and still* allow the pipe to expand from the natural expansion caused by the different temperatures to which it was subjected. The outside diameter of the expansion joints was about 31 inches.
“ Ninth. Midway between the expansion joints or variators were anchorage points, at which the pipe was braced or anchored to the brick walls; and the clasping of the expansion joints was also clamped to the brick walls. The object of the anchorage points ■was to keep the pipe midway between the-variators, and to allow
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the pipe to expand into each variator at either side of it equally. It was not the office of the anchorage to prevent unequal sinking of the pipe, or to keep the pipé on the same level, so as not to leak. That office was performed by the piers.hereafter described,, and the only office of the anchorage was to prqvent longitudinal motion. The object of the clamping of the clasping of the expansion joints was to leave the pipe free, at the expansion joints, to move into the ■ clasping. At each.ancliorage point there was usually a service box, with side outlets about three inches in diameter, to which service pipes could be connected.' Thére were also outlets on the outside of the expansion joints for connecting services.' Service boxes are merely used to furnish an outlet for taking services off, and they are usually' provided on one side with what is termed a ball joint, which allows a change of direction in the main at that point. The service boxes were adopted to supply a building on the line that was not already supplied ; it is there that the service pipe would be connected “ Tenth. Underneath each expansion joint there was a brick pier and sheet-iron plate, and under each anchorage point there was a brick pier.; and at every length of pipe there was a brick pier sup.. porting a roller, or saddle, upon which the pipe rolled as it expanded. These piers were about 15 or 16 inches square, and about a foot and a half deep, merely placed in a hole dug beneath the level of the pipe. They were not carried down to rock, nor did the general pipe structure anywhere rest on rock. The lowermost point to which the plaintiff’s pipe structure went including the piers, was about ten feet below the surface. Down to that point the soil of the street was a fairly good compact soil. There .is no evidence as to the character of the soil at greater depths.
“ Eleventh. The object of the brick walls was to keep the service boxes midway between the variators, so that the pipe could expand equally into the variator from both sides, and by its support of. the wooden covers to keep the weight of the street from resting directly on the pipe. The object of the mineral wool was tq act as a nonconductor and it prevented undue waste'of heat in the pipe.”
The learned referee also found that in' addition to the plaintiff’s pipe and. appurtenances, there'were also in this part of New street a sewer, a Croton water main, a 'gas main and a conduit for carrying electric wires; that for some months prior and subsequent to
p. 259
• the 1st day of March, 1905, the defendant was engaged in excavating for and constructing the foundation of an addition to the Commercial Cable Company’s building on New street, between Wall street and Exchange place, known as Nos. 21 to 28 New street, having a frontage on the east side of New street of seventy-two feet and six inches, including the work of building a vault wall on the curb line on the east side of the street; that in preparation for and in the course of the work, it drove and maintained sheet piling, consisting of planks about four inches in thickness, in the street immediately outside of the curb line, there being at the time a vault in the street in front of said lots, extending under the sidewalk to the curb line, a distance of about eight and one-half feet from the building line; that the vault was sunk to the depth of eighteen or twenty feet and the piling was driven to the same depth below the curb or deeper; that the vaults constructed by the defendant extended to but .not beyond the curb line, and the total length of the vault from the northerly curb line of Exchange place, northerly along New street, was eighty feet eight inches, including the wall; that “ the driving and maintaining of said piling by the defendant and its operations in and about said premises caused the street in places to settle, causing the said pipe of the plaintiff to bend, break and leak, and making it necessary that the same and the construction around it should be removed, and that ninety-two feet of new pipe (including one expansion joint and one service box) and the necessary construction around it should be laid, and that the same should be brought to the original level of the plaintiff’s pipe, in the course of which work (which was done as soon as the condition of the street permitted) it was necessary for the plaintiff to op.en the street and replace the soil, and in and about said work the plaintiff necessarily expended ” the sum of $876.83 and was damaged in the sum of $725; that “when, the defendant commenced the work of driving its said piling, the plaintiff notified it that driving this piling so near plaintiff’s pipe would carry down some of plaintiff’s construction with it and otherwise endanger the pipe, but defendant replied that said piling had to be driven; ” that upon discovering the injury plaintiff notified the defendant thereof, and that it would be necessary to relay or line up the pipe, and that it would hold defendant responsible for the
p. 260
danaage; that “ during the progress of the work the plaintiff had full knowledge and cognizance of the said work of vault construction by defendant, and of the character of such work, and of the. excavation which defendant- was making in the course thereof; ” that the fee of New street has been in the city of New York since 1850; that “ the defendant was not guilty of any negligence in the • construction of said foundations or of said vaults; or in the making- or guarding of said excavations; or in the driving or maintaining of said sheet piling; or in the holding up or supporting of the soil of New street lying outside the curb; or in any work of methods of. work used by it for the purpose of or in connection with any o'f-said details; ” that the brick walls, expansion joints, coverings and other appurtenances of the plaintiff’s pipes are necessary to prevent injury to the public and other structures in the street from the radiation of heat and to the practical operation of a steam system in t-lie streets of the city;' that there are connected with plaintiff’s station with which this pipe was connected, about five and one-half miles of main pipe, the greater part-.of which has been in operation since 1882, now supplying about-550 customers; that it has another similar large station at Fifty-ninth street and East river ;• that its pipes, have always been laid Under the supervision of inspectors appointed by the proper local authorities; that on the 14th day of July and the 10th day of August, 1904, the Commercial Cable Company, with whom the defendant contracted, obtained permits from the proper local authorities for the construction of these vaults, and paid therefor the sum of $460.40 and $385.88 respectively. They each contained a clause as follows:
“It is distinctly understood.that this.permit gives no authority, and it is strictly forbidden, to disturb, by excavation or otherwise^ or in any way damage or interfere with the proper use of any lamp post, sewer, culvert, receiving basin, house drain, water hydrant pr stop-cock, or stop-cock chamber of water pipe, or do anything to prevent the proper use of any hydrant or stop-cock,, or expose thém to freezing, or to disturb or interfere with any subway, gas or other connections,, authorized under permits granted by the Commissioner of Public Works. * * * This permit is issued subject to revocation thereof at any time hereafter by tlie Commissioner of Public.
p. 261
Works, when in his judgment the space occupied by said vault or any portion thereof may be required for any public improvement, of upon any violation of any of the terms or conditions hereof.”
A former permit for the construction of a vault in front of No. 28 New street, extending as far as the curb, was duly issued on the 13th day of July, 1877, and the sum of $157.50 paid therefor. The referee set forth the provisions of the Building Code in his findings, and, so far as material, they will be alluded to in the opinion.
Edwin D. Worcester, for the appellant.
James W. Hawes, for the respondent.

I am unable to agree with all of the views'of the learned referee upon the law applicable to the facts found, or with his conclusion. He correctly ruled that section 22 of the Building Code has no bearing on the case.' The provisions of that section, like the previous statute from which they were taken, were designed to regulate the rights of the adjacent owners and 'occupants of premises with respect to building operations upon one lot, affecting the building, ¿he occupants thereof'and property on an adjacent lot (Dorrity v. Rapp, 72 N. Y. 307 ; Paltey v. Egan, 122 App. Div. 512 ), but they have no application to excavations in a public street. (Jencks v. Kenny, 28 Abb. N. C. 154 ; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98 .) The case, therefore, is to be decided upon the principles- of the common law. If the decision of this appeal depends upon' the doctrine of lateral support, I think the defendant would not be liable, but for the reasons to be presently stated I am of opinion that it is governed by another principle of law. At common law an owner of land is only entitled to the lateral support of his land against an adjoining owner, where his lands remain in. their natural state and the cohesiveness of the soil has not been disturbed by excavations or the erection of structures thereon. (Gillies v. Eckerson, 97 App. Div. 153 ; Riley v. Continuous Rail Joint Co., 110 id. 787; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267 , 275; Dorrity v. Rapp, supra.) This street has been extensively excavated and four lines of underground improvements have been placed therein. It is manifest, therefore, that the natural cohesiveness of the soil has been materi

p. 262
ally affected and it cannot be said that if this had not been done the soil would have been materially disturbed by driving the sheath piling, the jarring incident to which, it is to be inferred, caused the' damages. If, therefore, the plaintiff owned the lot adjacent to that upon which the' contractor was excavating and constructing the foundation and had excavated the soil of its. lot and placed therein the structures that it placed in New street, it is. quite clear under the principles of the common law that there would be no liability, for injury to them.- If. there would be no liability to the plaintiff" for damages to this underground improvement on its own land, I fail to see upon what principle it obtains greater rights in a public street where it', is a licensee or at most has an easement. without title to the soil. The respondent relies upon the cases of Milburn v. Fowler ( 27 Hun, 568 ) and Finegan v. Eckerson ( 32 App. Div. 233 ), following it, but I think they are distinguishable. It was decided in Radcliff’s Executors v. Mayor, etc., of Brooklyn ( 4 N. Y. 195 ) that the common-law rule of lateral support does not" obtain in favor of an owner of land abutting upon a public highway, as against the public, and that lie . is not entitled to the support of his land by the soil in the street.. The Milburn and Finegcm cases hold in favor of those having the right to use the highway for public travel, that an' owner of land abutting thereon has no right to make an excavation upon his own land Which will so undermine of render insecure the highway as to' create a nuisance by causing part of the surface thereof to fall off. Assuming that the nature of the rights of the public in a highway is such that the owner of land abutting thereon owes a duty of' lateral support to prevent the creation of a. nuisance, it does not necessarily -follow that he owes this duty to every owner of underground improvements or structures made or placed in the, highway under a license or grant" from the public authorities. Moreover, the damage to the plaintiff’s property was not caused by an excavation upon the lands of the abutting owner Which deprived the soil of the street of lateral support. The excavation here,' the construction of which resulted in the damages, was made in the public street ■itself and by due authority of law. A permit for. the construction of a vault iñ a public highway, for. the use of the abutting owner, is .in -the nature of a revocable private easement, It may be revoked
p. 263
when the space is required for municipal or other public purposes, but until revoked it may be fully enjoyed. (Lincoln Safe Deposit Co. v. City of New York, 96 App. Div. 624 ; Deshong v. City of New York, 176 N. Y. 475 ; March v. City of New York, 69 App. Div. 3 ; Babbage v. Powers, 130 N. Y. 281 .) The municipal authorities were expressly authorized by the Legislature to grant the right to the abutting owner to construct these vaults and it has often been decided by the courts that the construction of such vaults in a public street- is a proper use of the. street and that the owner’s rights therein will be protected while the permit stands unrevoked. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 49, subd. 7; Jorgensen v. Squires, 144 N. Y. 280 ; Parish v. Baird, 160 id. 302 ; Matter of Brooklyn Union Elevated R. R. Co., 105 App. Div. 111 ; Deshong v. City of New York, 176 N. Y. 475 ; 2 Dillon Mun. Corp. [4th ed.], § 664a. See, also, Lahr v. Met. Elev. R. Co., 104 N. Y. 268 ; Rogers v. Randall, 29 Mich. 41 .) There is, in my opinion, no force in the contention of the respondent that it being a public service corporation and its rights having been first conferred, are superior to those of the defendant acting for the owner of the adjacent property to whom the vault permits were granted. The plaintiff obtained its grant subject to the right of the municipal authorities to place in the street other local improvements, even though the construction thereof should require it to take additional' precautions for the protection of its property in the street or subject it to greater expense in the maintenance of. its property in changing .the location thereof. (Matter of Deering, 93 N. Y. 361 ; New Orleans Gas Co. v. Drainage Commission, 197 U. S. 453 ; National Water Works Co. v. City of Kansas, 28 Fed. Rep. 921 ; Chicago, Burlington & Q. R. Co. v. Drainage Commissioners, 200 U. S. 561 ; Western Union Tel. Co. v. Syracuse Electric Light & Power Co., 178 N. Y. 325 ; Brooklyn Elevated R. R. Co. v. City of Brooklyn, supra; Interborough Rapid Transit Co. v. Gallagher, 44 Misc. Rep. 536 .) It likewise took its grant subject to the right of the municipal authorities to exercise their statutory power of granting vault privileges. Doubtless if the defendant inflicted a direct injury upon the plaintiff’s property, it would be liable, but neither the plain tiff’s line of steam pipe nor the walls built to protect the same were within that part of the street wherein the construction of

Dissent

p. 264
the vaults was authorized,and the injury was not directly inflicted.. It does not appear that any part of the structures placed in the street by the plaintiff was uncovered by the excavation'for the vaults, or touched by the piling that was driven in the execution of the work. It does not even appear how near the piling came to any of the plaintiff’s underground construction. As already observed, the only inference from the findings is that the jarring or compression of the earth incident to driving the piling caused the damages. There was no caving in toward the vaults and there is no evidence that the soil of the street or any structure therein settled" or was disturbed for want of lateral support. The findings exonerate the defendant from any charge of negligence. The work was conducted carefully and properly and the driving of the piling was incidental and.necessary to the proper construction of the vaults as authorized by th e permits. In view of the findings there is no force in the suggestion that the permits did not authorize the driving of the piling just outside the curb, line, for the abutting owner was authorized to construct the wall of the . vaults on the curb line and it was manifestly necessary to drive the piling outside that lineln order to permit the construction of the wall where authorized. The judgment" cannot be sustained upon the theory of trespass. Nothing was thrown upon or against the property of the plain tiff which would justify a recovery upon the theory of trespass without negligence. (St. Peter v. Denison, 58 N. Y. 416 ; Hay v. Cohoes Co., 2 id. 159.) The case in my opinion, falls within the doctrine of Holland House Co. v. Baird ( 169 N. Y. 136 ); Atwater v. Trustees, etc. (124 id. 602); Benner v. A. D. Co. (134 id. 156) and Booth v. R., W. & O. T. R. R. Co. (140 id. 267) where it is held that in the absence of negligence there is no liability • for consequential damages incidentally resulting from the vibrations of the earth or air caused by the construction of a lawful improvement either in a public street or upon private property. The clause of the permit with respect to underground improvements was designed for the protection of those directly encountered in the progress of the work.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J\, and Lambert, <L, concurred; McLaughlin and Houghton, JJ., dissented.

I am unable to concur in the opinion of Mr. Justice Laughlin. I think the judgment should be affirmed for the reason stated in.the opinion of the learned referee. Mo other rule is practicable in a great city where the streets are full of pipes laid .by various public service corporations, and it is unwise to lay down the rule that in order to recover for injury thereto negligence, in interfering with them must be shown.

I, therefore., vote to affirm the judgment.

Houghton, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.

The following is the opinion of the referee :

Lewis L. Delaeield, Referee :

The defendant, being engaged in the erection of a building Upon-lands east of Mew street in the city of Mew York, excavated such lands, and also certain adjacent lands forming a part of such street. Such excavation, in so far as it affected the street, was made under licenses from the city of Mew York, whereby permission was granted, for a recited consideration, to construct vaults under the surface of the street not extending beyond the curb line. The city owned the fee of Mew street, and the vault licenses granted, by it were of the usual revocable, character. In the course .of the work of excavating the vaults under such licenses,' sheet piling was sunk by the defendant immediately outside of the curb line, for the purpose of supporting the soil of the street. The plaintiff asserts that, in so doing, the defendant transcended the terms of its licenses and became a trespasser in the street. If so, it is liable, of course, for all of the consequences of its trespass. I find, however, that the vaults could not have been constructed to the curb line without the sinking of sheet piling in the street bed, immediately, outside of that line, and that the right to sink such sheet piling outside of' the curb, during the brief period of construction, was within the contemplation of the grant, and was impliedly sanctioned thereby.

The evidence establishes and I also find that the work of excavating the street was performed by the defendant with all due care, and that the subsidence of the soil of the street, by which the plain

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tiff was damaged, was not attributable to negligence on the. part of the. defendant, but was the inevitable result of the construction of its vaults. ...

The'novel and interesting question' is thus presented whether a private individual who,- under a permit from the city, excavates the street for his own private purposes, is liable for" damages caused thereby, without negligence, to a-public service corporation having franchises and property rights in the street under an earlier grant from the city.

This question is by no means free from difficulty, but, in my judgment, the'facts present a case in whicli.-there is cast upon the indi-, vidual making the excavation an obligation so to-use his property (for the right to excavate, conferred by the license is property) as.not.to 'injure his neighbor.

It is true, indeed, that in the case of adjacent properties under private ownership, the obligation of lateral support does not (in the . absence of statute) extend to the support of lands burdened by structures; But this rule has. latterly been applied by the-courts under protest, and its operation should not be extended. Moreover, it applies only to adjoining lands under private ownership, for it seems to be settled that the owners of lands abutting "upon a highway are under obligation to • support it. (Milburn v. Fowler, 27 Hun, 568 .), This obligation undoubtedly includes the duty -of supporting all. pipes, mains-and other structures lawf ully placed thereon. As this duty rests upon the individual Who owns abutting property, I can see no reason why he .should be- relieved from a similar obligation, when for his own purely private -ends,' but under a permit from the city authorities, he enters upon and excavates the highway itself. To hold that, under such circumstances, he is not bound' tó make good such damage, as lie-may inflict upon a public service corporation owning.property rights in the street tinder a grant from the city, would involve the further conclusion that he is -not liable (in the absence of con tract), to,-the city itself, even though lie destroy the highway.

I base my conclusion exclusively upon the. ground that the' defendant has violated the mandate sic utefe tuo ut aUenum non, leedas, and.not upon the ground that it has violated any duty cast upon it by section 22 of the Building Code. For I am satisfied

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that that ordinance, like the statutes which it has supplanted, applies only to adjacent properties under private ownership. (Laws of 1855, chap. 6; Consol. Act, § 474;[1] D orrity v. Rapp, 72 N. Y. 307 ; Jencks v. Kenny, 28 Abb. N. C. 154 ; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98 .)

In reaching the conclusion already expressed I am not unmindful of the cases which hold that the city itself when constructing works of public utility in the streets, or public service corporations when opening the streets under permits from the city for street purposes, are not- liable, in the absence of negligence, for damage inflicted upon the pipes or other structures already placed in the streets by public service corporations under earlier grants. (Western Union Tel. Co. v. Syracuse Electric Light & Power Co., 178 N. Y. 331 ; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98 ; Interborough Rapid Transit Co. v. Gallagher, 44 Misc. Rep. 536 .) The reason for that rule is that the earlier grant is subject to the paramount right of the public to use the street for all lawful street purposes, and is qualified by the implied condition that the streets may be used in future times for such purposes (not involving an absolute destruction of the earlier grant), even though such use may involve loss and damage to the occupier under such earlier grant. That reason is not sufficiently broad to embrace such a case as is here presented, for, although these vault permits had been granted by the municipal authorities for many years prior to the grant of the franchise to the plaintiff, it was no part of the implied condition under which the plaintiff entered upon the streets that its rights should be subordinated to the private right of an individual to enter upon the street under a permit from the city and to occupy it for purely private purposes.

I can see no distinction between a gas main or steam main maintained in the streets by a public service corporation under a grant from the city and a water main or sewer maintained in the streets by the city itselfand if, as between the holder of the vault license and the public service corporation, the former is absolved from

* See Laws of 1882, chap. 410, §§ 478, 474, as amd. by Laws of 1885, chap. 456; Laws of 1887, chap. 566, and Laws of 1893, chap. 275. See, also, Laws of 1897, chap. 378, § 647; Laws of 1901, chap. 466, § 407, as amd. by Laws of 1904, chaps. 603, 638; Cosby's Code Ord. (Anno. 1907), 174, 175.— [Rep.

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liability (in the absence of negligence) by the mere issuance of the license, I cannot see how (in the absence of contractual obligation) he can be held liable to the city, under like circumstances, if he injures the water main or the.sewer. ' If, as I believe^ the present case is one . of first impression, the results which would flow from affording to the defendant the immunity for which it contends may properly be considered by the court.

I do not shrink from the assertion that my reasoning involves a finding that the property rights in the streets conferred upon a , public service corporation by its franchise are of greater' dignity than the property right conferred upon an individual by a license to' construct a vault under the street for his own private ends. Even though the motive which induces the formation, of a public service corporation is a purely selfish one, such a corporation becomes subject, in the moment of its birth, to the duty to serve the public, and its property interests in the streets are affected by a public • duty, the performance of which may be compelled and the nonperformance of which may be punished by the extinction of its ' corporate life. That the existence, of these duties involves, certain correlative rights cannot, I think, be doubted. Thus,, such a corporation may be invested, because of its public duties, with the power to take private property, and the rights in real estate conferred by its franchise differ from the rights of a private owner, in that (although - they are subject to the power of the public to regulate the use) they cannot be taken even for public use without an express legislative sanction for the taking. And even when, in the exercise of its franchise in the streets, such a corporation .is found to' be a trespasser upon private rights, the consideration that it is a servant of jihe public interests will lead the courts to withhold the injunctive relief which, they would' grant against a private individual until such time as the private rights; which are invaded by the, trespass, can be vested in the corporation by condemnation.

I do not assert, of course, that the public service corporation has any such interest in the streets as to be entitled to insist that no vault right shall be granted to the individual when the construction of the vault will canse indirect damage to its structure, or that in such a case as is here presented it'would he entitled to an injunction against the construction" of the vault. For the grant of the

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franchise to the corporation does not involve a surrender by the city of its authority to grant such permits. All that I do insist is that when, in the voluntary exercise of the privilege to construct a vault for his private purposes, the licensee does damage to the property of the public service corporation, he must, even though guiltless of negligence, make the damage good. The question whether, having granted property rights in, the streets to a public service ■ corporation, the city may authorize a private individual to directly invade such rights (as, for example, by compelling a steam or gas company to move its mains) for purely private ends, even upon making compensation for the damage, is not here involved.

There must be judgment for the plaintiff for the amount of damages, as stipulated, with costs.

Cases cited