Hearst v. New York Central & Hudson River Railroad

This action was brought by appellant to enjoin certain uses by respondent of its railroad tracks west of Eiverside Drive and between Seventy ^second and Ninety-sixth streets in the city of New York. The trial court found that various acts performed by respondent in the maintenance and operation of its said tracks were unauthorized, unlawful and constituted nuisances with resulting special injuries to the appellant and rendered judgment enjoining the same.

The Appellate Division reversed this judgment but did not state that such reversal was on the facts and it did not make any new finding of fact. Under these circumstances we must assume that the reversal was on the law and that we are bound by the findings made by the trial court if supported by the evidence and unimpeached by any erroneous rulings. (Code Civ. Pro. section 1338.)

Many of the underlying and surrounding facts found by the court were uncontradicted, and amongst.them are the following:

Appellant owns and resides in an apartment house situated at the southeast comer of Eighty-sixth street and Eiverside Drive, in what is a fine residential portion of the city of "New York. Eespondent owns and operates immediately west of the Eiverside Drive and Parkway, and at a level much below the same, a railroad which north of Seventy-second street consists of four tracks. These tracks were laid under the authority of the legislature and of the municipal government which authorized the construction and operation of “ a double track of rails with suitable turnouts along the line of the Hudson Eiver

Appellant has no title to or interest in the lands covered by respondent’s tracks, but his right to relief, if at all, is based upon the ground that he has suffered special injury and damages from various acts committed by it and of which complaint is made.

Other material facts found by the trial court and which are the direct basis for the contest between the parties are controversial, not so much because of any conflict of evidence concerning their existence, as because of a conflict of opinion concerning their significance and sufficiency to sustain the conclusions of law reached by the trial court. Amongst these facts thus found are the ones which may be summarized for the purposes of this opinion as follows:

Owing to the increase of business the respondent’s freight yard below Seventy-second street has become inadequate and although it is badly arranged and no substantial improvements have been made therein for many years the respondent “ is now making full use of its facilities to their full capacity,” and “to the fullest extent which the existing area of said yards and terminals and the movement of freight cars and the disposition of freight permits,” and “the capacity of said.yards cannot be materially increased without the acquisition of about nine acres of land, the title to which is in the city of New

While it was found in general terms that the respondent used its tracks between the streets last mentioned “as a freight and terminal yard for the purpose of switching, classifying and storing freight cars,” this finding was modified by and must yield to findings of the specific acts which respondent performed in the use of its said tracks and which the trial court held to constitute nuisances. Under these latter findings it appears that outgoing freight trains are drawn from the freight yard on to the through tracks by a switching engine which is then detached and a road engine attached which draws the train away, and in a similar manner the road engines on incoming trains are detached before reaching the yard and the trains thenceforth handled by switching engines. The cars in some of these incoming trains are classified for the different yards and the cars in other trains are not even thus classified. In the cases of the first class of trains the cars billed for the Thirtieth street and John street yards are drawn into the .Sixtieth street yard and thence dispatched to the lower ones, and the cars billed

Switch engines and ordinarily outgoing road engines are supplied with and use hard coal. Incoming road engines are supplied with soft coal but ordered to bank their fires before coming into the locality in question, and which, if done, would practically avoid the emission of soft coal smoke and soot, but notwithstanding these orders road engines frequently emit a large amount of soft coal smoke and soot which penetrate appellant’s dwelling, and he has been annoyed and his comfort disturbed by the noise of switching, by the odors from the live stock cars and by the smoke and soofc caused by burning soft coal.

The respondent was not found to be guilty of any negligence in the operation of its railroad.

The basis of appellant’s complaint against the respondent, except that relating to the use of soft coal, is that it has been using its tracks above Seventy-second street, which were designed and authorized merely for the passage of trains, for yard purposes with resulting annoyance and injury to him. It is not disputed and, of course, cannot be that a certain amount of disturbance and annoyance is inevitably incident to the operation of a steam railroad and must be endured by those who, like the appellant, live near to it. The assertion here is that the use by respondent of its tracks in the locality involved

After findings relating to the size and capacity of the Sixtieth street yard, its use for all the purposes ordinarily served by an important terminal and freight yard, and to which reference has already been made, it was held by the trial court as matter of law, “ That the defendant has lawful authority to maintain and operate its said yard south of 72nd street and the four tracks constructed upon its right of way extending from said yard northerly to Spuyten Duyvil.” It also seems to have been assumed that respondent was lawfully maintaining and operating the two freight yards situate south of this one. Therefore, the appellant is bound by the view that respondent has a right to operate a large terminal freight yard and traffic tracks which have a junction point at Seventy-second street. While it may he assumed that the maintenance and operation of the tracks above Seventy-second street were not authorized primarily or generally for yard purposes, the evidence sufficiently indicates, and ordinary information tells us, that where through tracks and a freight yard join each other the use of each must be somewhat adjusted to that of the other. Trains cannot be run from one upon the other with the same regularity, freedom or independence as elsewhere upon through tracks. The respondent having the right, expressly found against the appellant, to maintain and operate its freight yard, was justified in any use

When in the light of this obvious rule we look through and beyond the general findings that the respondent improperly and unnecessarily used its tracks above Seventy-second street for yard and terminal purposes and consider the specific acts which it is found to have committed, it does not appear to me that many of these were shown to be unreasonable and unlawful. And since I do not entertain the same view about the character and propriety of all the acts which have been enjoined, it will be necessary, briefly, to consider separately each class.

The court enjoined the practice of having switch engines receive incoming freight trains from, and deliver outgoing trains to, road engines on the tracks above Seventy-second street. This method of operation necessarily involved some switching of engines and starting and stopping of trains with accompanying noises. I find nothing in the evidence which justified the court in finding and holding that this was an improper practice. The evidence shows beyond dispute that yard engines and road engines are entirely different, and, therefore, there must be an exchange of one for the other fit some point near the junction of yard and through tracks. There is nothing to show that it is any more unusual or improper for the yard engines to receive and deliver trains outside the yard than it would be for the road engines to run into the yard. In fact, it would seem that a practice which required enormous road engines manned by crews unaccustomed to yard operations, to run into a crowded yard would invite accidents and deserve criticism.

There is no evidence that this method of drawing down the cars for the lower yards was improper. The only feature complained of seems to be that the incoming trains were stopped before reaching the Sixtieth street yard for this operation, but what has already been said sufficiently covers this point. It is not found that the storage of cars on the siding, outside of live stock cars hereafter to be referred to, resulted in any annoyance or damage to appellant. The practice of using the through tracks in part for the operation of pushing or “ kicking ” cars upon different tracks of the yard presents a closer question than the others, but with some hesitation I reach the conclusion that under all of the circumstances the evidence did not sustain the conclusion that it was improper. The nearest of these movements was several blocks from appellant’s residence. The delivery of these cars to the yard obviously could not be made at any other place than at the yard. The cars could only be pushed on the different stub tracks from the rear; they could not be drawn on by an engine coupled in front. An arrangement of the yard with a stem track entirely within its limits long enough for the purposes of these movements would destroy the capacity of a large part of the yard for any other use. Under these circumstances I do not think it should be held that the use of the through tracks, so far as necessary to accomplish

I now come to some uses of the through tracks which were found to be, and I think were, unauthorized and injurious to appellant.

The evidence shows and it was found that at times the respondent was accustomed to bring in daily as many as 35 cars loaded with live stock and that these were allowed to lie outside of the yard habitually and for long periods emitting foul odors which penetrated the appellant’s residence; also that in some of the incoming trains the cars were not at all classified for the different yards and that a large amount of switching was done upon the tracks in question for the purpose of classifying and separating the cars billed for the different yards which after such classification were treated in the manner already described as applicable to classified trains. I think that the evidence justified the conclusion that neither of these operations was reasonably incidental to the operation of the Sixtieth street yard and tracks and, therefore, proper. In view of the annoyance resulting from the storage of the live stock cars and the comparatively small number thereof the court could fairly find that under ordinary circumstances they either ought to be drawn into the yard or stored above the vicinity of appellant’s dwelling until the yard was ready for them. I do not mean to say. by this that under all circumstances the respondent would be bound to move them into the yard without any of that delay naturally incident to the movement of freight trains into a yard, but it ought not to be permitted to store them habitually and indefinitely in the vicinity of appellant’s dwelling to his damage and annoyance.

In like manner it could be said that the respondent was not entitled to use its tracks in the vicinity of the

I think the views above expressed are sustained by the principles of law applicable to such facts as are before us. So long as the acts performed by it were not shown to be negligently done or to be outside the range of operations necessarily or reasonably incidental to the proper management of its road in the situation which lawfully existed respondent was immune from attack by neighboring property owners like appellant, even though they were disturbed. (Richards v. Wash. Term. Co., 233 U. S. 546 .)

But when it could be found that the acts complained of were injurious and were not necessarily or reasonably incidental to the operation of a railroad at the point in question but could be performed elsewhere, a right to relief arose in favor of the injured property owner. (Baltimore & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317 ; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10 ; Garvey v. L. I. R. R. Co., 159 N. Y. 323 .)

I do not find anything in chapter 777, Laws of 1911, providing “for the regulation and improvement of the railroad, terminals and approaches thereto * * * of the New York Central and Hudson Eiver Eailroad Company in the city of New York ” which relieves the respondent from the application of the principles laid down in the decisions last cited. ■

There is still left for consideration that portion of the judgment which was rendered in effect, as we construe it, restraining respondent from using soft coal in its locomotives within the territory involved in the action.

As has already been stated, it was found' or appeared without contradiction that only anthracite coal was used on switch engines and that respondent’s rules required outgoing road engines to be supplied with enough similar

Thus we have it that the respondent having been authorized to operate a railroad is doing it so far as concerns the feature now under consideration without negligence and in a manner which is neither found nor shown to be unlawful or unusual. Under these circumstances I do not think that the appellant had the right to complain and enjoin respondent in the broad terms employed in the judgment.

In Richards v. Washington Terminal Company, already cited, it is said, in considering a somewhat similar complaint against a railroad, “ And by a great and preponderant weight of judicial authority, * * * it has become established that railroads constructed and

However, while no foundation is found in the evidence for the unqualified injunction granted 'against the use of soft coal, the evidence produced by the respondent itself does show that it is perfectly feasible greatly to mitigate the annoyance which undoubtedly would result to appellant and other property owners on Eiverside Drive from the’ unrestricted use of that kind of fuel. It is undisputed that yard engines are equipped with anthracite coal and that its rules already adopted for supplying outgoing road engines with a quantity of hard coal and 'requiring the proper care of fires on incoming engines will avoid the emission of smoke and soot from soft coal under all ordinary circumstances. There is no reason why respondent should not be held to the observance of these regulations under usual conditions and the injunction granted against it be modified only to the extent of allowing the use of soft coal under the enforcement of the rules and regulations which it has itself formulated.

The views which have been expressed leading to an

In indicating our views on this question of a stay we are inclined to take into account some facts which lie outside the strict legal rights of the parties to this controversy. It is perfectly apparent that a condition exists in the neighborhood covered by appellant’s complaint which is unsatisfactory, to every one. Appellant certainly makes it clear that he and other property owners living on Riverside Drive are much annoyed and disturbed even by operations which we are holding the respondent has a right to conduct with immunity from legal complaint. In like manner it seems to be plain that at best the situation is an inconvenient one for the respondent, and I have no doubt that in addition the public are more or less inconvenienced and indirectly damaged by the inadequate terminal facilities now existing. It is expressly found that these conditions can only be relieved for all of these interested parties through the acquisition by respondent of additional land, the great portion of which is owned by the city. On the record as it is presented to

It thus appearing that the respondent is willing 'to co-operate for the betterment of the situation and that the delay has not been due to its default and unwillingness to act, we believe that it should receive fair consideration in the allowance of a reasonable time in which to make any alterations which may be required by the judgment and which specific alterations may be rendered unnecessary by prompt action on its part and on the part of the city looking to general improvements below Ninety-sixth street. We think that the injunctions of the judgment, outside of those relating to smoke as modified by us, should be stayed for six months, with the right to the respondent to apply for an extension of such stay if deemed necessary, and on which application if made the court will doubtless take into account and be influenced by a consideration of the question whether the respondent- is proceeding as rapidly as it reasonably can to improve the situation of which appellant complains.

Werner, Collin, Cuddeback, Miller, Cardozo and Seabuey, JJ., concur.

Ordered accordingly.