In re Squire — 125 N.Y. 131

Majority

p. 131

In the Matter of the Petition of Rollin M. Squire, Commissioner, etc. In re Claim of Ashbury Lester, Appellant.

(Argued December 1, 1890;

decided January 13, 1891.)

Headnote

The provision of the act of 1888 to provide an increased water supply for the city of New York (§ 18, chap. 490, Laws of 1888), which authorizes the commissioners appointed under the act to award damages to the owner of lands contiguous to land taken “ which may be affected by the construction and maintenance ” of the aqueduct and its appurtenances, does not impose upon the-city a liability for damages for the temporary inconvenience occasioned to adjacent lot owners from the prosecution of the work; it applies only to permanent injuries arising from the completed works and their use thereafter.

A lot was taken by the city under said act, an engine-house and fixtures erected upon it and coal deposited thereon to be used in the construction of the aqueduct, the use to be continued only while the work was in progress. Held, that the owner and occupant of a house on an adjoining lot, although seriously incommoded by the noise, soot, smoke and dust, were not entitled to damages therefor under said act.

Appeal from order of the General Term of the Supreme 'Court in the second judicial department, entered upon an order made July 18, 1890, which affirmed an order of Special Term ■confirming the report of commissioners of appraisal appointed under the Mew Aqueduct Act (Chap. 490-, Laws of 1883). The facts, so far as material, are stated in the opinion.

James A. Deering for appellant.

This appeal involves only a question of law, whether under the act of 1883 the appellant is entitled to compensation for the damage he has sustained or will sustain. (In re Thompson, 121 N. Y. 277 ; In re N. Y. C. & H. R. R. R. Co., 15 Hun, 66 ; In re Munson, 29 id. 331.) The provisions of the statute of 1883 ¡providing for compensation are remedial and should- be liberally construed. (Sedgwick on Stat. Const. 302, 308; Potter’s Dwarris on Stat. 632; Sipple v. State, 99 N. Y. 284 ; Neal v. Moultrie, 12 Ga.

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104 ; Mayor, etc., v. Nicoll, 3 Bax. 338 ; Mayor, etc., v. Lord, 17 Wend. 285 ; Heiser v. Mayor, etc., 104 N. Y. 68 ; Sudbury v. Middlesex Canal, 23 Pick. 36 ; Dodge v. Essex, 3 Metc. 380 ; Sprague v. Worcester, 13 Gray, 139 ; Bartlett v. Cragie, 17 Johns. 447 ; Stevens v. Middlesex Canal, 12 Mass. 466 .) The appellant is entitled to compensation under the act of 1883, for his claim is a statutory claim and is covered by its terms. (Laws of 1883, chap. 490, § 18; Laws of 1852, chap. 52; Anderson’s Law Dict. 39; Lewis on Em. Domain, § 222; Mayor, etc., v. Lord, 17 Wend. 292 ; Sipple v. State, 99 N. Y. 287 .) The statute of 1883 in providing that where the real estate of a contiguous owner has been “ affected by the construction and maintenance of said aqeduct,” etc., the commissioners of appraisal shall allow to him “ just and equitable compensation * * * as damages for affecting the real estate owned by said person,” does not limit the right to such damages only as are actionable at common law, but extends, the liability of the city to all actual and ascertainable losses, resulting from the work' of construction. (Lewis on Em. Domain, § 232; People ex rel. v. Green, 3 Hun, 755 ; 62 N. Y. 624 ; Bank of Auburn v. Roberts, 44 id. 198, 200; Mayor, etc., v. Lord, 17 Wend. 292 ; Dodge v. County Comrs., 3 Metc. 380 ; People ex rel. v. Green, 64 N. Y. 606 ; Laws of 1857, chap. 743; H. S. R. R. Co. v. Williamson, 45 Ark. 429 ; Reardon v. City of San Francisco, 66 Cal. 492 ; Anderson’s Law Dict. 587; V., etc., R. R. Co. v. Henry, 8 Nev. 171 ; United States v. Jones, 109 U. S. 518 ; In re Thompson, 45 Hun, 261 .) The Aqueduct Act of 1883 is in accord with the uniform policy of the state to provide full compensation for all damages to private property from the prosecution of public improvements, irrespective of any common-law liability. (N. Y. Const, art. 1, § 7; Lewis on Em. Domain, § 222; Laws of 1882, chap. 410, §§ 450, 970, 978, 1009, 1021; Laws of 1852, chap. 52; People ex rel. v. Green, 3 Hun, 759 ; People ex rel. v. Green, 64 N. Y. 606 ; Radcliff v. City of Brooklyn, 4 id. 195; People ex rel. v. Asten, 6 Daly, 18 ; In re Barclay, 91 N. Y. 430 ; In re A.

p. 133

C. & S. R. R. Co., 56 Barb. 456 .) The damage to the appellant’s real estate arising from vibration, smoke and noise, coal •dust, ashes and cinders, caused by the work of construction on contiguous lands of the city, are recoverable under the statute •either as real estate taken therefor, or affected thereby. (Lewis on Em. Domain, § 230; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10 ; Lahr v. M. E. R. R. Co., 104 id. 268, 292; Abendroth v. N. Y. E. R. R. Co., 22 J. & S. 417; Pompelly v. G. B. Co., 80 U. S. 166 ; Brand v. H., etc., R. Co., L. R. [2 Q. B.] 223; Mumford v. O., etc., R. Co., 1 H. & N. 34; Cooper v. N. B. R. Co., 35 Jur. 295; In re Utica, etc., R. R. Co., 56 Barb. 464 ; In re N.Y. C. & H. R. R. R. Co., 15 Hun, 69 ; Bradley v. N. T. & N. H. R. R. Co., 21 Conn. 294 ; P., etc., R. R. Co. v. Rose, 74 Penn. St. 362 ; Henderson v. N. Y. C. R. R. Co., 17 Hun, 344 ; 78 N. Y. 423 ; Horter v. N. H. C. Co., 14 Conn. 145 ; Stark v. East St. Louis, 85 Ill. 337 .) The appellant’s damage could be •actionable at common law, but the remedy therefor is now "under the statute. (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10 ; Bailey v. Mayor, etc., 2 Den. 433 ; McAvoy v. Mayor, etc., 54 How. Pr. 245 .) It is immaterial "that the injury to the appellant’s real estate was not permanent. (Eaton v. B. C. & M. R. R. Co., 51 N. H. 504 ; Francis v. Schoellkopf, 53 N. Y. 152 ; Kearney v. E. R. Co., 14 N. Y. S. R. 854.)

D. J. Dean for respondent.

The damages sought to be recovered are not within the class provided for or .intended by the statute. (Laws of 1883, chap. 490, § 18; Mills on Em. Domain, § 220; Whitehouse v. A. R. R. Co., 52 Me. 208 ; Sabin v. V. C. R. R. Co., 25 Vt. 363 .) The statute does not provide for the kind or class of damage sought by the claimant. (Laws of 1883, § 18; Story v. N. Y. E. R. R. Co., 90 N. Y. 122 ; Liefert v. City of Brooklyn, 101 id. 136 ; Coggswell v. N. Y. & N. H. R. R. Co., 103 id. 10; Lahr v. M. E. R. R. Co., 104 id. 269.) The claimant’s property was not ••affected within the meaning of the statute. (N. Y. & B. S.

p. 134

M. Co. v. Mayor, etc., 71 N. Y. 580 .) Ho new rule of damages is made by this act. The land must be taken in fee, and the damages specified, for lands affected, did not include the injury such as made out here, to wit, inconvenience, noise, jarring, etc., to lands not taken. ( 50 Hun, 416 ; 110 N. Y. 669 .)

The appellant Asbury Lester presented a claim for damages to his lot in the city of Hew York, contiguous to lands actually taken for the purpose of a public: aqueduct, under chapter 490 of the Laws of 1883. Section IS of the act authorizes the commissioners to award damages to the owner of lands contiguous to land taken, “ which may be affected by the construction and maintenance ” of the aqueduct and its appurtenances. The lot adjacent to the lot of the claimant was taken by the city, and upon it was erected an engine-house and fixtures, and coal was deposited .thereon to be used in the construction of the aqueduct, but, so far as appears, the appropriation of the lot for that purpose was temporary, and was to be continued only while the work was in progress. The claimant has a house on his lot, which he occupied as a residence, and he was seriously incommoded by the noise and by soot and smoke from the engine on the' adjacent lot, and the dust from the coal deposited thereon-. The remedy sought in this proceeding is purely statutory, and the only question is whether the injury which the' claimant suffered is within the statute, and one for which the commissioners were authorized to award compensation.

We are of opinion that the language of the 11th section, authorizing damages to the owner of lands “ which may be affected by the construction and maintenance ” of the aqueduct and its appurtenances, applies only to permanent injuries to the land from the completed works and their use thereafter. It may be supposed that the legislature understood that the construction of the aqueduct would injuriously affect rights appurtenant to contiguous lands, and that the struct ires which were to form a part of .the aqueduct system might interfere

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with the enjoyment or impair the value of such contiguous lands, and that for consequential injuries merely, sustained in consequence of the construction and maintenance of public works under legislative authority, the parties would not, under the general rule of law, have any redress. It was, we think, to meet this class of cases that the provision in question was made. It would require very clear language to impose a liability upon the city for damages for the temporary inconvenience which would be occasioned to adjacent lot owners from the prosecution of the work and during the course of construction.

The view we have taken is illustrated by the cases which have arisen in England under the “ Lands’ Claims Consolidation Act,” and “ The Railways’ Claims Consolidation Act,”' of 8th and 9th Viet. The 68th section of the act first mentioned authorized compensation “ in res pect of any lands or any interest therein which shall have been injuriously affected by the execution of the works.” The 6th section of “ The Railways’ Claims Consolidation Act ” requires compensation to be made for all lands taken “ or injuriously affected by the construction” of a railway. In Ricket v. Directors of Metropolitan Railway Co. (L. R. [2 Eng. & Ir. App.] 175), the plaintiff claimed to recover compensation for temporary obstruction of the highway during the construction of the defendant’s railway, which prevented free passage of persons and resort to the plaintiff’s inn. The clauses in the two acts mentioned were elaborately considered by the judges, and the cases reviewed, and it was held that the case was not within the act. Lord Chelmsford, referring to the words “injurioxisly affected by the construction,” etc., said that they “appear to me to apply not to temporary, but to permanent works of companies,” and Lord Cranworth was of opinion that “ the in jury must be an actual injury to the land itself, as by lowei-ing the foundation of the buildings on it, or obstnxeting its Hglit or its drains, making it inaccessible by lowering or x-aising the gx-ound, or by some such physical destruction ” to bring a case within the act.

We think the injury of which the appellant complains was

p. 136

not within the language of the 11th section of the act of 1883, and that the claim was properly disallowed.

The order of the. General Term should, therefore, be affirmed.

All concur.

Order affirmed.

Cases cited

In re Thompson 121 N. Y. 277 N.Y. 1890-04-29 p. 131
Sipple v. State 99 N. Y. 284 N.Y. 1885-06-09 p. 131
Mayor of New York v. Lord 17 Wend. 285 N.Y. Sup. Ct. p. 132
Heiser v. Mayor of New York 104 N. Y. 68 N.Y. 1887-01-18 p. 132
People ex rel. Tytler v. Green 64 N. Y. 606 N.Y. 1876-04-11 p. 132
Reardon v. City of San Francisco 66 Cal. 492 Cal. 1885-03-12 p. 132
In re Barclay 91 N. Y. 430 N.Y. 1883-03-06 p. 132
In re the appraisal of the compensation to be made by the Utica, Chenango & Susquehanna Valley Railroad 56 Barb. 456 N.Y. Sup. Ct. 1868-04-07 p. 133
Cogswell v. New York, New Haven & Hartford Railroad 103 N. Y. 10 N.Y. 1886-10-05 p. 133
Pumpelly v. Green Bay Co. 80 U. S. 166 SCOTUS p. 133
Henderson v. New York Central Railroad 78 N. Y. 423 N.Y. 1879-11-11 p. 133
McAvoy v. Mayor of New York 54 How. Pr. 245 N.Y. Sup. Ct. p. 133
Francis v. Schoellkopf 53 N. Y. 152 N.Y. 1873-06-10 p. 133
Story v. New York Elevated Railroad 90 N. Y. 122 N.Y. 1882-10-17 p. 133
New York & Brooklyn Saw-mill & Lumber Co. v. City of Brooklyn 71 N. Y. 580 N.Y. 1878-01-15 p. 134