Foster v. New York Cent. & H. R. R.

This action was commenced April 30, 1900, to recover damages for diminution of rental value alleged to have been caused by a trespass upon the easements appurtenant to plaintiff’s premises, situated at the southeast corner of Park avenue and 108th street, by reason of various railroad structures erected at different times in front of said property. The premises are known as No. 1475 Park avenue. The lot has a frontage of 50'feet on the avenue of the uniform width of 25’ 6". The building is four story brick, with two stores on the ground floor, and two apartments of four rooms each on the upper floors.

The history of Park avenue and the occupation of a portion thereof by railroad structures has been stated so often in recent, cases in this •court, and in the Court of Appeals, as not to require ’ repetition here. Pursuant to chapter 702, p. 1674, of the Laws of 1872, the railroad viaduct structure of the New York & Harlem Railroad Company opposite the plaintiff’s premises was increased in width so as to be about 59 feet wide at the bottom, and was modified so that the base of rail was 24' 2§" above the grade of Park avenue at the south line of plaintiff’s premises, and 23' 11J" at the north line of plaintiff’s premises, and four tracks were laid thereon; said structure being surmounted by parapet walls about 3 feet above the base of rail, upon which structure trains were continuously operated from the date of completion of said structure, in or about the year 1875, down to .September, 1894. Pursuant to the provisions of chapter 339, p. 694, of the Laws ■of 1892, as amended, by chapter 548, p. 1149, of the Laws of 1894, the board of Park avenue improvement above 106th street, appointed pursuant to said first-mentioned act, by its contractors erected along the easterly and westerly roadways of Park avenue, between the respective curb lines and the permanent viaduct structure, wooden trestles, each of which supported two tracks, and, pursuant to the direction of said board, trains were operated on said temporary trestles from September, 1894, to February, 1897. During said period the roadbed of the stone embankment in front of plaintiff’s premises was increased in height by said board, so that, the base of rail was about five feet higher after the improvement than it was prior thereto, although the parapet walls of the former stone structure were not changed nor added to.

In the case at liar, the action having been begun on April 30, 1900, plaintiff has been allowed to recover from September, 1894—that is, for six years prior to the commencement of the action—damages for the injury caused to his premises by the existence of the stone viaduct in front of said premises, upon the theory that the whole structure, •as erected pursuant to the authority of the act of 1872, constituted a trespass upon his easements. The plaintiff claims that as to him the defendants had acquired no prescriptive rights. This claim, which has been supported by the trial court, is based upon the fact that in 1892 he commenced an action against this defendant and the New York & Harlem Railroad Company for an injunction and damages by reason of said structure erected and operated by trains under chapter 702, p. 1674, of the Laws of 1872. The claim is that, as prescription rests upon the presumption of a lost deed after adverse use and enjoyment for 20 years, this presumption as to a lost deed may be rebutted, and that, so far as the plaintiff is concerned, it was rebutted by the bringing of the action referred to. But the said action was discontinued on the 27th day of .February, 1900, prior to the commencement of the action at bar. “By the discontinuance of an action further proceedings in the action are arrested not only, but what has been done therein is also annulled, so that the action is as if it never had been.” Loeb v. Willis, 100 N. Y. 231 , 3 N. E. 177 .

This precise question was before Mr. Justice Russell in this Park avenue viaduct litigation, in Campbell v. New York & Harlem R. R. Co., 35 Misc. Rep. 497 , 71 N. Y. Supp. 1105 , who said:

“I cannot hold that the abandoned suit of 1891 is such a disturbance of that user as to justify the claim that the use was broken. The discontinuance is as forceful as the commencement of the action. It was an admission that that action was not maintainable, and such inference cannot be rebutted by the commencement of a later action.”

It has been many times held that the beginning of a suit which is subsequently discontinued does not interrupt the running of the statute of limitations, and, in all the cases dealing with prescriptive rights, based upon the presumption of a lost deed, the period of time of ad

It seems to me that the claim, the assertion of which was evidenced by the beginning of the suit of 1893, was abandoned and rendered of no effect by the voluntary discontinuance, and therefore constituted no interruption of the running of the prescriptive period. If the court had not held that the plaintiff was entitled to recover for the whole structure, as erected pursuant to the act of 1873, it might well have followed that it would have held that the slight addition of about five feet in the height of the base of rail, without any elevation of the parapet, and without any widening of the structure, would have caused no material injury" to the plaintiff’s premises. It must be borne in mind that, under the rule as laid down in the Lewis Case, which case is now a leading and controlling authority, by reason of the decision in the Muhlker Case, 197 U. S. 544 , 25 Sup. Ct. 522 , 49 L. Ed. 872 , the plaintiff has the right to recover the net differences measured in money between the effect of the new and the old structure while in actual use, less the benefits conferred by the latter, and also for the damages inflicted by the temporary work during the period of user. The defendant is not liable, however, for the acts of the board of Park avenue improvement, while either structure was in its possession for purposes of construction. It follows, therefore, that the judgment in the case at bar, based upon structures and during periods for which the defendant was not liable, cannot be sustained.

As the case must go back for a new trial, it becomes necessary to allude to certain exceptions to the exclusion of evidence offered by the defendant. The court excluded chapter 703, p. 1674, of the Laws of 1873, chapter 339 of the Laws of 1893, chapter 548 of the Laws of 1894, chapter 613, p. 1468, of the Laws of 1898, the plans and profile of the structure provided to be built by chapter 703, p. 1674, of the Laws of 1873, the plans of the work required to be done by chapter 339 of the Laws of 1893, and certain contracts between the Park avenue board and the contractors for work to be done under said plans and in pursuance of said laws—in other words, the legislative requirement for the changes in the structure theretofore existing and the plans and acts done thereunder—the ground for the exclusion being that said acts were unconstitutional. The acts were not unconstitutional, and never have been so held. The Supreme Court of the United States, referring to the previous decisions of the courts of this state in the elevated railroad litigations, commencing with the Storey Case, said, in the Muhlker Case, supra:

“When the plaintiff acquired his title, those cases were the law of New York, and assured to him that his easements of light and air were secured by contract as expressed in that case, and could not be taken from him without payment of compensation.”

This was not a holding that the acts requiring the change in the viaduct structure were unconstitutional; but, in the absence of any provision in said acts as to the payment of due compensation for any

The judgment appealed from should be reversed, and a new trial ordered, with cpsts to abide the event. All concur.