Wolf v. Manhattan Ry. Co.

Plaintiff, as owner of premises situate on the westerly side of Ninth avenue, between Fiftieth and Fifty-First streets, in the city of New York, brings this suit in equity absolutely to enjoin the defendant in the operation of express trains upon the third or middle track on the elevated railway structure in front of said premises. The pertinent facts bearing upon the rights of the respective parties may be stated as follows: Plaintiff purchased her property in June, 1892. At that time defendant’s railroad in front of said property was constructed with three sets of tracks, the two outer ones being the customary north and south tracks used upon the elevated railway system, and the third an intermediate or middle track, the use of which it is here sought to enjoin. At the time of her purchase of said premises plaintiff’s predecessor in title, one Heinig, had recovered the usual abutting owner’s judgment against the defendant corporation, which thereafter and thereupon acquired by purchase the easements of said Heinig and plaintiff in and over Ninth avenue in front of and appurtenant to the lot of land described in the complaint. The instrument of conveyance and release to the defendant, which was executed on February 15, 1893, however, contained the following words of limitation with respect to the easements intended to be relinquished by the grantors, to wit: “For the construction, maintenance and operation of an elevated railroad on said street as the same is now constructed, maintained and operated.” For many years prior to 1892, and up to the

The latest utterance of the Appellate Division of this department upon the rights of the defendant to construct a middle track by an extension of the sidings for the special use of an express service is found' in the recent decision in the case of Elizabeth Knoth v. Manhattan Railway Company (Sup.) 96 N. Y. Supp. 844 , in which the court reaffirmed the illegality of such a construction. An absolute injunction forbidding the use of the said third track was, however, refused in that case, and plaintiff was remitted to the alternative relief of an injunction-only in case defendant failed to pay the plaintiff the damages fixed by the Special Term upon a conveyance by plaintiff to defendant of the-easements for the purposes of a middle track in and upon Ninth avenue-in front of his premises. In the Knoth Case the plaintiff commenced his suit against the defendant eight years after it began running express trains on the middle track, and in the present case about seven years-elapsed since defendant’s first user for express service of the middle-track, without any intimation on the part of plaintiff of any objection-to such user. The attempted explanation of excuse for the delay in protesting against the defendant’s use of the third track or in bringing, this suit, as embodied in the testimony of plaintiff’s counsel, is without the slightest probative force. This case may, however, be differentiated" from the Knoth Case in that here the middle track was in existence in front of plaintiff’s property when she purchased it, and "when she conveyed and released her easements in and upon Ninth avenue to defendant, whereas in the Knoth Case the third or middle track was constructed during Knoth’s ownership of his premises, without his consent and without any compensation to him for the deprivation of light, air, and access, of which he had been deprived by the defendant’s acts. The plaintiff in the case at bar concededly is in 'no position to complain of the third or middle track construction in front of her premises, but only of its use for the running of express trains. To-succeed in her contention it is incumbent upon plaintiff not only to-show that the use of the middle track in front of her land was not

The defendant, as a public carrier of passengers, by its charter and franchises, assumed obligations to the public to transport its passengers as comfortably and safely and with as much speed as its facilities will permit. I am unaware of any limitations or restrictions imposed upon the defendant forbidding the running of its trains at the speed employed in its express service. Obviously, it would be the duty of defendant to run trains as rapidly and frequently, consistent with public convenience and safety, as the construction of its road and rolling stock would allow, and, in the absence of proof that the increased speed was unusual, extraordinary, and detrimental to the public health and safety, no special injury nor damage to an abutting owner may be predicated upon an improved service, which comprehended an increase in the number and speed of its trains. The fee of Ninth avenue is in the city-of New York, and the plaintiff, under the. rule applied in the Story Case, 90 N. Y. 122 , 43 Am. Rep. 146 , had an easement in and upon the public avenue in front of her premises, which would be injuriously affected by the exclusive occupancy of a portion of the street by the elevated railway structure contrary to the general use for street purposes to which the highway had originally been dedicated. But the defendant acquired from the plaintiff and her predecessor in title the right to maintain an elevated railway structure with three tracks in front of her premises, with the right to operate trains upon these tracks. It was not stipulated at what rate of speed or to what extent the trains were to be run. It was stipulated that the easement released and conveyed by plaintiff to defendant was to be limited to the railroad “as the same is now constructed, maintained and operated,” and the plaintiff contends that the user of the middle track for express trains is outside of and not contemplated by the terms of the release and conveyance. The effect to be given to the words of limitation just quoted must be determined by all the attendant circumstances surrounding the execution of the instrument. A reference to the findings in the Heinig Case, which led to the execution and delivery of the conveyance and release in question, shows that “the only interests or property rights of the plaintiffs in said street

It would seem from all the foregoing considerations that a reasonable inference would flow that any annoyance to plaintiff by reason of the increase in the number and speed of the trains in front of her premises would not constitute a legitimate cause of grievance ón plaintiff’s part for which she may assert an injury and consequent damage based upon any wrongdoing on defendant’s part. I am also of opinion that the only easements of plaintiff having been specifically found to be those of “light, air, and access,” she is concluded from asserting any damage due merely to noise in the operation of defendant’s trains. I am further of opinion that the words in the release, “as the same is now constructed, maintained and operated,” had no reference to any such increase in the speed of trains as is shown in this case, but that they were designed not to release to defendant any unlimited use of the highway, but to restrict the easement to a railway of substantially the character of that in existence and operation at the time of the execution of the conveyance. Assuming, also, as I do, the extension of the middle track for a distance of two miles beyond the length of the original • siding and the use of said extended middle track for express trains to be an unlawful and unwarranted use of tire highway so as to constitute them a public nuisance, I nevertheless find that so far as the plaintiff is concerned she has failed to maintain the burden of proving that she has sustained any special damages to her property by the unlawful occupation by the defendant of the highway below her premises. To entitle plaintiff to maintain an action to abate a public nuisance, she must show that she has thereby sustained some special injury of a sub

Without considering any other points, I am of opinion that plaintiff has failed to establish a cause of action, and her complaint is dismissed on the merits, with costs to the defendant. The objections to the admission in evidence of the Heinig judgment roll and the release and conveyance of plaintiff to defendant are overruled, with appropriate exceptions to plaintiff.

Ordered accordingly.