In re Board of Rapid Transit Railroad

The Rapid Transit Act authorizes the city, through its board of rapid transit commissioners, to acquire by contract or condemnation “ any real estate and any rights, terms and interests therein, any and all rights, privileges, franchises and easements, whether of owners or abutters, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference.” (Rapid Transit Act, L. 1901, eh. 587, § 39.) The same section further provides that “ the word ‘ property,’ hereinafter used shall be deemed to include any such real estate, and any rights, terms and interests therein, and any such rights, privileges, franchises and easements, whether of owners, abutting owners or others.”

Pursuant to this authority said board, deeming it necessary, as it recited in its petition, “ to acquire a permanent and perpetual underground right, easement and right of way for the

Joralemon street is an old residential street, well built up with a good class of houses. As it extends from the river to Henry street and passes by the Mynderse and Abbott properties, it is sixty feet wide between the building lines, with a carriageway of thirty feet and a sidewalk on either side fifteen feet in width. From Henry street to the City Hall, passing by the Hotman property, it is fifty-five feet wide, with a carriageway of' twenty-five feet and sidewalks of about fifteen feet each. The subway consists of two tubes, parallel but not close together, which occupy a space forty-two feet eight inches wide, located at a depth below the surface of the street varying from thirty to fifty-two feet. Each tube has an outside diameter of sixteen feet eight inches, and extends in part under the adjacent sidewalk. In each tube is a single-track railway over which trains of cars operated by electricity run every few minutes, the first stop being at Borough Hall. The cars are of steel and weigh from forty-four to forty-seven tons each. The excavation for the tube -was made by means of a shield, or steel cylinder, slowly forced ahead by hydraulic pressure of a thousand tons, the excavated material being taken to the surface through two shafts, one for each tube, about twenty by twenty-four feet, the latter being the transverse measurement, or across the tunnel. The diameter of the excavation made for each tube was about seventeen feet. The north shaft was sixty-seven feet deep and the south shaft about sixty-three. The shell of the tubes is constructed of heavy cast iron plates bolted together so as to form a ring fifty-

In constructing the tunnel a space of between one and two inches was left between the outer surface of the shell and the place where the outer surface of the shield was before it was withdrawn in the ordinary course of operation, but this space, which amounted to eight and one-lialf cubic feet per running foot, was filled with liquid grout forced in under high pressure. While this was done to minimize the settling of the soil around the tubes, it did not wholly prevent the caving in of the material through which the shield was driven, but it is the best known method "of construction, as the evidence tended to show. The general character of the soil through which the shield was forced is dry sand with a little gravel, compact when confined but somewhat movable when unconfined. Forcing the shield through the soil compressed it and when expansion gradually came through the action of gravitation and the seepage of water, holes or vacancies were left until they were filled by the subsidence of the land on which stood the buildings of abutting owners. One of the witnesses said that “ sand must of necessity be confined and if it is disturbed it runs away like water.” As the tunnel advanced, a trench three or four feet deep was dug in the street and filled with water, so that by soaking through the ground it would carry the sand with it and fill the vacant spaces more quickly than would otherwise have been the case.

The effect of the work upon the abutting lots and the fine, large dwelling houses thereon, was, owing to a substantial settling of the soil, to seriously injure the structures, by cracking the walls and floors, breaking the plumbing and the like; to render them unfit to live in for about eighteen months, and to require an expenditure of large sums of money, varying from $3,000 to upwards of $20,000 in order to restore them to their former condition. Witnesses testified that some of the buildings were “ wrecked, * * * that is, cracked all to pieces, front walls and the interior walls.” Some of the cracks were three inches wide and some of the walls

So many questions were argued before us that in an opinion of reasonable length we can do little more than announce our conclusions as to the most of them, and little more is needed in view of the elaborate discussion of the case in the learned opinion of the Appellate Division. In order to avoid confusion, we will endeavor to consider each question by itself, although to some extent the discussion of one may run into that of another.

1. Was the action of the city in building the subway governmental or proprietary in character ?

The city owns the subway, and it is a railroad corporation so far as the construction, operation and leasing thereof is concerned. It was not required, but simply permitted, to build and operate the road. It is authorized to lease its railroad, either for “ a specified sum of money or a specified proportion of income, earnings or profits; ” or it may operate the road itself and charge such rates of fare for the transportation of persons and property as may be fixed by its own boards and officers. (L. 1909, ch. 498, §§ 27 and 30.) In other words, the subway is a business enterprise of the city, through which money may ' be made or lost, the same as if it were owned by an ordinary railroad corporation. It was built by and belongs to the city as a proprietor, not as a sovereign. (Maxmilian v. Mayor, etc., of N. Y., 62 N. Y. 160 ; Missano v. Mayor, etc., of

The construction of the subway comes within none of the apparent exceptions to the command of the Constitution that private property shall not be taken for public use without just compensation. (Art. 1, § 6.) The appropriation of land in order to build it is not temporary, but permanent, and while necessary for a public purpose, it is not necessary in order to protect the public from the danger of sudden and overwhelming calamity such as may spring from war, pestilence or fire. As was said by Judge Earl in an important case : “ There never can be any necessity under the police power or the law of necessity to permanently appropriate land to the public use without compensation. It may temporarily be interfered with or appropriated; necessity may justify so much; but when the necessity passes away, the right ceases.” (Matter of Cheesebrough, 78 N. Y. 232 , 237.)

We regard further discussion of this subject as unnecessary, since the capacity in which the city acted is not of primary importance, as claimed by some of the counsel, because it cannot permanently appropriate private property either as a municipal government or as a railroad corporation without paying for it.

2. The use made of the street by the city in constructing the subway and operating, or causing to be operated, a railroad therein, is not a street use as that term is known in the law. As we have recently said, “ There is a broad distinction between a municipal purpose and a street purpose.” (Palmer v. Larchmont Electric Co., 158 N. Y. 231 , 235.) We have held that a subway of the kind in question is built for a city purpose, because it is necessary for the general welfare of the people of the municipality, is public in character, sanctioned by its citizens and authorized by the legislature, and hence the city has power to construct and pay for it. (Sun Printing & Publishing Assn. v. Mayor, etc., of N. Y., 152 N. Y. 257 , 267.) A street purpose, on the other hand, is exclusively a highway purpose and any use of the street, which improves or benefits

The law thus announced was not new, for thirty years before this court had said : “ It is quite apparent that the use by the public of a highway and the use thereof by a railroad company is essentially different. In the one case every person is at liberty to travel over the highway in any place or part thereof, but he has no exclusive right of occupation of any part thereof except while he is temporarily passing over it. It would be trespass for him to occupy any part of the highway exclusively, for any longer period of time than was necessary for that purpose and the stoppages incident thereto. But a railroad company takes exclusive and permanent possession of a portion of the street or highway. It lays down its rails upon, or imbeds them in the soil, and thus appropriates a portion of the street to its exclusive use, and for its own particular mode of conveyance. In the one case all persons may travel on the street or highway in their own common modes of conveyance. In the other no one can travel on or over the rails laid down except the railroad company and with their cars specially adapted to the tracks. In the one case the use is general and open alike to all. In the

Therefore, a use made of a street which does not help it as a highway “ for uninterrupted passage by men, animals and vehicles ” is not a street use, but is foreign to the purpose for which the street was created. Such a use was not within the contemplation of the original owner of the land when he parted with the title thereto for a street, or gave a perpetual right of way over the same for the purpose of a street.

The subway occupies a part of the street, which, although beneath the surface, might, by proper construction and change of grade, be used for ordinary highway purposes and traveled upon freely, without license or recompense, by persons using their own vehicles or their own methods of transportation. The occupation by the subway and its trains of cars is exclusive, for no one may enter either without payment of fare. Highways are free and open to all the people; the subway is not. Highways are for the exclusive use of none; the subway is for the exclusive use of one. Highways are for travel by means under the exclusive control of the traveler; the subway is for travel by means under the exclusive control of its owner or operator.

3. The result of the principle thus announced, as applied to the case in hand, is obvious. If the use were for a street purpose the city would not be liable for damages caused by proper construction in any case where it took no land. A city may change the grade of a street by so cutting it down as to cause the bank forming a natural support to the premises of an abutting owner to fall in without liability if the work is done without negligence or malice and no land is actually taken, as was held in Radcliff's Exrs. v. Mayor, etc., of Brooklyn ( 4 N. Y. 195 ). Under like circumstances it may build a huge sewer, even if the same result follows, or construct an elevated viaduct, or two-story street for ordinary public travel, without liability. (Uppington v. City of New York, 165 N. Y. 222 ; Sauer v. City of New York, 180 N. Y. 27 .)

When, however, the construction is not for a street use,

4. The Notman property involves a different and more difficult question which has led to a division of judgment in the court. No part of Mr. Notman’s land was actually taken, the fee of the street in front being in unknown owners, but such serious injury was inflicted upon his abutting premises that if he is entitled to no compensation, he indirectly contributes a large sum toward the construction of a railroad in which he has no greater interest than citizens generally. It is argued in behalf of the intervenor that public policy requires this, so that with the cost reduced more subways may be built, but sound public policy forbids that citizens in one part of a city be injured in order to benefit citizens in another part. The growth of the city of New York cannot be legally promoted at the special expense of one class of its citizens.

We all agree, however, that an abutting owner who owns no part of the street has a right to the lateral support of the land in the street, although we differ as to the origin and reason of the rule. It is contended that the doctrine rests upon

It is doubtful whether the words “ any lot or piece of land ” were intended to include land in the street, and it is even more doubtful whether by “ excavations for building or other purposes ” any excavation was meant other than one made from the surface downward in the usual way, as contrasted with one in the nature of a tunnel far underground. Such excavation under a street was unknown at the date of the statute. The reference to “the curb,” to “any party or other wall,” to “adjoining lands,” to “the necessary license” and to “ the boundary lines of such lot,” as well as the direction to “ the person causing such excavations to be made,” to preserve such wall from injury “ at his own expense,” indicate legislation to govern the relations of lot owners, rather than the relation of the city to lot owners. Otherwise the city could not excavate for a strictly street purpose without coming within the obligation to protect the buildings of adjoining owners when the depth of ten feet was exceeded. Even if the statute affords protection in the city of Hew York, it may be repealed at any time, and if not repealed, it would leave abutting owners in other cities of the state, with one or two exceptions, entirely without protection.

It is claimed, however, that as a railroad corporation is not liable to a mere abutter for laying its tracks on the surface of the street, as held in Kellinger v. Forty-second St. & G. St. F. R. R. Co. ( 50 N. Y. 206 ); Fobes v. Rome, W. & O. R. R. Co. ( 121 N. Y. 505 ) and similar cases, it is not liable in this case to an abutting owner with no title to the street. In that class of cases, it will be observed, there was no exclusive and permanent occupation of any part of the street except by laying rails upon the surface thereof, without any change of grade, or excavation such as would disturb the stability of adjacent buildings.

It has been held in some cases, and we have recently intimated, that the fee of a street has but a nominal value, and so the commissioners of appraisal thought when they estimated the value of the street in front of Mr. Eotman’s premises and awarded the sum of one dollar to the unknown owners thereof. (Matter of City of New York (Decatur Street), 196 N. Y. 286 .) Even if the value is more than nominal, it can be but little more, and I am unwilling to make such a barren and naked title the controlling test to determine whether an abutting owner is entitled to damages for serious physical injury to his property caused by the exertion of enormous hydraulic power upon the sandy soil beneath the street in front of his premises. The real ground on which an abutter is entitled to damages for the physical impairment of his property in a case like this is not that he owns the fee of the street, but owns land abutting on the street. The fee is of slight value and of no value whatever, except to support a theory leading to injustice, for the proximity of his land to the street is what gives value to the abutter’s property. “ By virtue of proximity,” said Judge Andrews in one case, and “ by reason of its situation,” said Judge Beckham in another, does the abutter have easements and rights in the street which are property entitled to the protection of the law. (Kane v. N. Y. Elv. R. R. Co., 125 N. Y. 164 , 180; Bohm v. Metr. Elv. Ry. Co., 129 N. Y. 576 , 587.)

So, in a very recent case, notwithstanding a strong dissent, we said: “ It is the proximity of the street, the situation of

The legislature, by the Rapid Transit Act, authorized the city to condemn the easements of abutting owners in order to build an underground railroad, and, necessarily, easements other than light, air and access were referred to, for they appertain to an overhead road. (§ 39.) Light, air and access cannot be interfered with by a road under ground. What easements, then, were meant? What “rights, privileges, franchises and easements, whether of owners, or abutters or others,” are interfered with by the construction and operation of such a railroad ? What abutting rights did the legislature intend to include in its comprehensive command, unless it is the right to lateral support and the right- to protection against physical injuries to buildings on the abutting lots?

I think Mr. Rotman, in common with the other claimants, had a right or easement, covered by the statute, which enti

5. Are the claimants entitled to any damages caused by the necessary construction and the proper operation of shafts in the street in front of their properties %

The north shaft was directly opposite the property of Judge Abbott and nearly opposite that of Mr. Mynderse, while the south shaft affected the property of no one here concerned. Mr. Kotman made no complaint of either. Twenty by twenty-four feet in dimensions and over sixty feet deep, they were sunk by driving sheet piling with pile drivers and the inevitable effect, according to the evidence, was to jar and crack the neighboring houses. They caused a settling of the soil and inflicted physical injuries on the adjoining buildings in the same way, but not to the same extent, as the construction of the tunnel itself. They were a necessary part of the work of building the subway, for of what use would it be to drive the shield.and excavate the soil without getting it out of the way by means of the shafts ? The tunnel could not have been built without them and it would be difficult, if not impossible, to separate the injury to lateral support caused by the shield from that caused by the shafts.

The commissioners of appraisal, while they allowed the facts to be proved, did not consider them in making their estimate of the damages. The city in prosecuting the work or causing it to be prosecuted through contractors, was not improving a highway, but building a railroad out of which it could make money, and its liability is that of an ordinary railroad corporation doing the same work in the same way. It can lawfully claim no immunity from liability, except such as would belong to a railroad company, engaged in a similar enterprise, under like circumstances. Although it was conducting a public work, it was such only and to the same extent as the building of a railroad by a private corporation is a public work. While the work was for the benefit of the pub-

6. The measure of damages is the next question in logical order. The rule adopted by the commissioners of appraisal in making their award to Mynderse and Abbott was “the difference in value of their property.before the filing of the oaths of the commissioners, and the value immediately after the filing of the oaths of the commissioners, when the title to the property was vested in the city of Mew York; that if any damage happened by reason of any negligent construction of the contractor, or any damage suffered by reason of the manner in which the work was actually done, beyond such damage as could be contemplated at the time of the vesting of title, such damages can be recovered only in a proper forum, to which the claimants must be limited; that under the Eapid Transit Act the only award that the commissioners in this action can make is the difference in value between the value

The rule applied in making the award to Mr. Rot-man was to estimate the amount of “ damages caused by taking his easement of support,” and nothing else was included in the award to him.

The commissioners, in limiting their awards to the damages apparent or foreseen at the date when title vested in the city, relied on a section of the Rapid Transit Act which provides that on the tiling of their official oaths “ the said city shall be and become seized and possessed in fee or absolute ownership of ” all the property, rights, etc., sought to be acquired. (§ 47.) The object of this section, however, was to promote the convenience of the city by giving it immediate title and possession, so that it could go to work at once; and also to fix the date when interest on the award should begin to run, for the same section further provides that the city shall become “ forthwith liable to the respective owners ” for the value of the property taken, “ together with interest thereon from the time of filing the said oath.” As was said below : “ There is no suggestion in the act that the rights of the parties are to be determined entirely by the condition of the property as it exists ” at a “ particular moment.”

The measure of damages should be adapted to the actual injury. What is the nature of the injury inflicted upon abutting properties by building a subway? Obviously, light, air and access are not injured by an underground road. The damages are owing to the disturbance of lateral support, which results in a settling of the soil and thus causes physical injuries to the adjoining buildings. Therefore, when those physical injuries are properly valued in money a simple, direct and just measure of damages is applied.

We think that the proper measure of damages is the full value of the fee taken, subject to the public easement of passage, and, both as to naked abutters and those who own

7. The rule of evidence adopted by the commissioners was erroneous. They limited the witnesses in their estimates of value to the time when it was known that the subway was an assured fact by the filing of the oaths, although the work of construction had not been commenced, and instructed them to exclude from consideration any physical damage which had actually been inflicted at the time of the trial, when the work in front of the premises in question had been substantially completed. In estimating the market value on this basis, the experts were confined to supposition and speculation, for filing a paper in a public office worked no physical change in the property, and they were not allowed to consider the realities as shown by time and experience. The test presented to them was what the market value would probably be if an intending purchaser knew that the road was to be built. This left everything open to the mere estimate of experts, not founded on fact but on conjecture. Certainty is better than conjecture and the injuries actually inflicted a better guide than the opinions of experts as to the market values just before and just after the oaths of the commissioners were filed, or during the same five minutes. The value of such evidence, always a dangerous and uncertain guide, and in this case especially so owing to the restrictions of the commissioners, is shown by the fact that experts called by the claimants estimated the amount of the depreciation of the property just after the oaths were filed at fifty per cent of its value just before the oaths were filed, while those called by the city, apparently of equal intelligence and experience, placed it at ten per cent.

We think it was the duty of the commissioners to receive

8. We are glad, at last, to reach the final question, whether the Bapid Transit Act authorizes the allowance to the abutting owners “ of their disbursements, costs, counsel fees and extra allowances.”

Section 62 of that act is as follows: “ The commissioners of appraisal appointed in pursuance of this article shall receive as compensation the sum of ten dollars per day for each day actually employed. The corporation counsel or other principal legal adviser to said city shall, either in person or by such counsel as he shall designate for the purpose, appear for and protect the interests of the city in all such proceedings in court and before the commissioners. The corporation counsel shall designate assistants to act as clerks to the commissioners of appraisal in all such proceedings without compensation therefor other than their salaries, and shall furnish to the commissioners of appraisal in each proceeding suitable offices and all the assistance which they may require in conducting their proceedings and preparing their reports for presentation to the supreme court for confirmation. The fees of the commissioners and all their necessary expenses in and about the said proceedings provided for by this act and such allowance for counsel fees as may be made by order of the court, and all reasonable expenses incurred by said corporation counsel, or other principal legal adviser of said counsel designated by him for the proper presentation and defense of the interests

In the absence of a statute providing for costs or allowances for expenses in condemnation proceedings none can be allowed. (Matter of City of Brooklyn, 148 N. Y. 107 .)

The statute provides for the payment of the fees of the commissioners of appraisal and their necessary expenses, and for the compensation of counsel designated by the corporation counsel to protect the interests of the city, but it does not, as we read it, either expressly or impliedly, provide for the payment by the city of any part of the expenses incurred by claimants for counsel or otherwise. Clearly, disbursements are not allowed, whether for experts, searches or copies of records. While it is true that the section authorizes the payment “ of such allowances for counsel as may be made by order of the court,” those words are immediately followed by these, “ and all reasonable expenses incurred by said corporation counsel.” The latter words as well as the entire context indicate that the legislature had in mind only the outside counsel acting or employed in behalf of the city. The counsel for the property owners are not mentioned. The fees and expenses are to be taxed before a justice of the Supreme Court upon notice to the corporation counsel, but as no extra compensation is provided for the services of that officer, and as he designates the unofficial counsel for the city, this is not, as contended, a provision for payment of compensation to himself upon notice to himself, although it does include the reasonable expenses incurred by him. The provisions of the city

I recommend that so much of the order of the Appellate Division as reversed the order of the Special Term denying costs, allowances, etc., to the respective owners, be reversed, but that in all other respects the order of the Appellate Division be affirmed, with separate bills of costs to each respondent ; that questions one to four, inclusive, be answered in the affirmative, and question nine in the negative, but that the other questions, owing to their restricted form, should not be answered categorically, or otherwise than is stated in this opinion.

I concur in the result and in the opinion of Vann, J., save in these respects : I think the right of abutters, not owning the fee of the street to lateral support, as owners of land within the cities of Hew York and Brooklyn, may be safely rested upon the statute of' 1855 (chapter 6), which enacts that whenever excavations on a lot or piece of land in those cities is intended to be carried more than ten feet below the curb, the person causing such excavation to be made must at his own expense preserve the walls on adjoining land from injury and support the same by a proper foundation so that they shall remain as stable as before such excavations were made. On the faith of this statute there lias followed the improvement of those cities, by the erection of' buildings of a size and at a cost not then dreamed of. Relying on the protection afforded by the law, investments have been made aggregating hundreds of millions of dollars. As against the owners of buildings erected on the faith of the statute, I do not think it could be repealed so as to impair the rights acquired thereunder. However, it has not been repealed, and the statute should be construed liberally to .afford the protection it was intended to grant.

'As to the cases of Abbott and Mynderse, who were the owners of the fee of the street, they fall within the decision of South Buffalo Railway Company v. Kirkover ( 176 N. Y. 301 ), in which it was held that where land is acquired by a railroad company by condemnation the owner is entitled to

Haight, Werner, Willard Bartlett, Hisoook and Chase, JJ., concur with Vann, J.; Cullen, Cli. J., concurs in result, in memorandum.

Ordered accordingly.