Mayne v. Nassau Electric Railroad — 151 A.D. 75

Majority

p. 75

Mary J. Mayne, Respondent, v. Nassau Electric Railroad Company and Brooklyn Heights Railroad Company, Appellants.

Second Department,

May 24, 1912.

Headnote

Railroad — damages to abutting owner having fee in street — operation of surface railway — when objections to evidence in equity effective.

In a suit by an abutting owner to enjoin a surface railway from operating in front of her premises, except upon the payment of damages, it appeared that the plaintiff acquired title to the fee in the street and in the adjoining premises by separate conveyances.

Held, that, although the damages to the fee of the street may be nominal to the separate owner thereof, it does not follow that when he has also acquired the adjoining premises he cannot recover substantial damages. A ruling upon evidence in a suit in equity to be effective must substantially affect the judgment.

Appeal by the defendants, the Nassau Electric Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of April, 1911, upon the

p. 76

decision of the court rendered after a trial at the Kings County Special Term.

Edward W. Hatch [Charles L. Woody and George D. Yeomans with him on the brief], for the appellants.

Charles H. Strong [Edwin A. Watson with him on the brief], for the respondent.

We think that this case was well decided at Special Term, and that in view of the opinion of Putnam, J., who presided, any extended discussion is unnecessary. It may be quite true that the plaintiff as a mere abutter had no cause of action when the railroad was laid down and when its working began, and we may concede safely that the value of the fee of the street in front of that abutter’s premises might have been nominal to the separate owner thereof, and yet it would not follow that when the abutter had acquired that fee and thereupon presented.himself to a court of equity as an abutter who owned that fee, he could not recover substantial damages, for the court was not bound to consider that the value of the said fee to. the former separate owner determined the value thereof to the abutter. Cullen, Ch. J., in Rasch v. Nassau Electric Railroad Co. ( 198 N. Y. 389 ), says: “In that discussion we did say that the owner of the fee was entitled to no more than nominal damages. But the ownership of a fee of a street disconnected with adjoining land and subject to the easements of abutting owners is a very different thing from the fee of a street in connection with other property which abuts on the street. It is-just this distinction which is pointed out by Judge Gray in City of Buffalo v. Pratt ( 131 N. Y. 293 ), where he said: ‘ It is unquestionable, however, that the ownership of the fee of the land in a street has a substantial value to the abutting property holder, in the degree of control it gives to him . over the uses to which the street may be put. It vests him with the right to defend against and to enjoin a use of, or an encroachment upon the street, under legislative or municipal authority, for purposes inconsistent with those uses to which streets should be, or have been ordinarily subjected, unless

p. 77

just compensation is provided to be made.’ (p. 299.) ” And the question was as to the position of the owner a,t the time he came into the equity court. (Koehler v. N. Y. El. R. R. Co., 159 N. Y. 218 . See, too, Stevens v. N. Y. El. R. R. Co., 130 N. Y. 95 ; Chanler v. N. Y. El. R. R. Co., 34 App. Div. 305 .) None of the rulings upon the evidence is fatal, for the old chancery rule applies in this case, that a ruling to be effective must substantially affect the judgment. (De St. Laurent v. Slater, 23 App. Div. 70 ; Townsend v. Bell, 167 N. Y. 462 , 470; Young v. Valentine, 177 id. 347, 358.)

The judgment is affirmed, with costs.

Jenks, P. J., Burr, Thomas, Carr and Woodward, JJ., concurred.

Judgment affirmed, with costs.

Cases cited

City of Buffalo v. Pratt 131 N. Y. 293 N.Y. 1892-03-01 p. 76
Koehler v. New York Elevated Railroad 159 N. Y. 218 N.Y. 1899-06-06 p. 77
Stevens v. New York Elevated Railroad 130 N. Y. 95 N.Y. 1891-10-30 p. 77
Townsend v. Bell 167 N. Y. 462 N.Y. 1901-06-11 at 470 p. 77