Jeaume v. New York, Lackawanna & Western Railway Co.

This action and two others (Strasser v. Railway Co., not reported, and Reining v. Railway Co., ante, 238) involve the same question of the plaintiff’s right to recover, the facts being similar in each case, argued at the same time, and submitted substantially upon the same brief by the defendant’s counsel. The gist of the action is based upon the fact that the defendant built an embankment in and along Water street, on which it laid tracks to operate its railroad. The fee of the street is in the city of Buffalo. Water street, in front of the plaintiff’s premises, is 48 feet wide between the curb lines. The embankment is 24 feet wide, and the retaining wall 9 feet from the curb line of the street. The embankment commences at Commercial slip and runs westerly along Water street to Commercial street, where it reaches its greatest elevation, being nearly six feet above grade. From that point it runs on down grade westerly past Maiden lane and past the plaintiff’s premises to a point 356 feet west of Commercial slip, where it touches the grade of the street. Opposite the plaintiff’s premises the walls of the em

The principal question presented by these facts is, is this such a permanent and exclusive appropriation of a portion of the street as will authorize the plaintiff to maintain an action against the defendant for damages, or is it a simple change of grade of the street, made in the manner pointed out by the charter? I regret that I cannot concur with my learned associate in the conclusion reached by him in the Reining Case. It cannot be denied, I think, that the structure, built, as it is, of solid, quarried stone retaining, walls, filled in between with clay and gravel, and paved on the surface, is a permanent structure. Whether that portion of the street occupied by the embankment is exclusively occupied by the defendant company within the meaning of the decision in Story v. Railroad Co., 90 N. Y. 122 , as explained and construed by subsequent decisions in the court of appeals, is not quite so clear. From the arguments used by the learned judges of the court of appeals in the discussion of this question it seems to me that it must be assumed that if a wall had been built along the street in front of the plaintiff’s premises, of the height and character of the retaining walls now standing there, of sufficient width only to enable the defendant to lay its tracks, such a structure would be such an exclusive appropriation of the street to the purposes of the defendant as would entitle him to maintain this action, because, in that case, it could not be claimed that the embankment was asimple change in the grade of the street, but an absolute and exclusive appropriation of it so as to destroy, in part at least, the easement which the plaintiff, as abutting owner, has in the street. How wide, then, and how much surface must the embankment cover that it shall not be deemed a structure devoted exclusively to the uses of a railroad? Clearly it must depend somewhat upon the facts proven in a given case. Judge Tracy, at page 170, in the Story Case, says: “ Whether a particular structure authorized by the legislature is consistent or inconsistent with the use of the street for street purposes must be largely a question of fact, depending upon the nature and character of the structure authorized.” The verdict in this case must be considered as a finding in the affirmative on this proposition, although the precise question was not submitted to the jury. In this connection the learned judge continues: “The extent to which the plaintiff’s property is appropriated is not material. It cannot, nor can any portion of it, be appropriated to the public use without compensation.” Again, at page 171: “The fee remained in the owner making the dedication, he having sold lots abutting upon the street. The purchaser * * *■ obtained a perpetual right of way over the space called a “street” to the full extent of its dimensions. Whether the bed of the street was excepted from the grant of the city, and the title thereof never vested in the grantees, or whether the bed of the street was included in the grant, and passed to such grantees, is of little importance, as in either event the plaintiff has a private easement of a right of way in the street, coupled with an express covenant that the entire space marked on the map as • Front Street ’ shall forever be kept as a pub-

It is claimed that the Forbes Case, 24 N. E. Rep. 919 , 121 5". T. 505, has in some manner explained and limited the effect of the Story Case, and that the law as there laid down is inconsistent with the plaintiff’s right to recover in this action. I confess I do not so understand it. In that case tracks were laid upon the surface of the street, presenting no permanent obstruction to travel by the public, and nothing except the occasional passage of trains to interfere with the unobstructed access to the plaintiff’s premises. In speaking of the Story Case Judge Peckhah says: “The case embodied the application of what was regarded as well-established principles of law to a new combination of facts, such facts amounting, as was determined, to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant, * * * which amounted to a taking of some portion of the plaintiff’s easement in the street for the purpose of furnishing light, air, and access to his adjoining lot. * * * The structure permanently, and at every moment of the day, took away from the plaintiff some portion of the light and air which otherwise would have reached him, and interfered with and took away from him his facility of access to his lot.” The learned judge lays stress upon the fact that in the Forbes Case the surface of the street was not interfered with, but was sub

In the case before us there can be no question but that the embankment takes away from the plaintiff his right of facility of access to his lot, and seriously interferes with the convenient use of it. I cannot see that the Rories Case in any way limits the Story Case; nor does it appear that the learned ' court intended-to change the rule as applicable to cases where the facts warranted the conclusion that there is an absolute appropriation of the street to the exclusion of the public, as I believe we are warranted in assuming in the case before us. In the Lahr Case, 104 N. Y. 268 , 10 N. E. Rep. 528 , the principle of the Story Case is emphatically affirmed. Chief Judge Bijger, in the opinion of the court, says: “The doctrine of the Story Case, therefore, although pronounced by a divided court, must be considered stare decisis upon all questions involved therein, as establishing the law as well for this court as for the people of the state whenever similar questions may be litigated. Wherever, therefore, the principles of that case logically lead us, we feel constrained to go and give full effect to the rule therein stated,—that abutters upon public streets in cities are entitled to such damages as they may have sustained by reason of the diversion of the street from the use for which it was originally taken, and its illegal appropriation to other and inconsistent uses.” This rule is practically concurred in by all of the judges of the court, Judges Earl and Einoh adding a memorandum that “it gives abutting owners only damages for the construction of a railway in front of their premises, resulting from the taking or destruction of their street easements of light, air, and access.” It is claimed that the Ottenot Case, reported in full in 23 N. E. Rep. 169 , is decisive of tl)e character of the structure erected in Water street, and is controlling here. In that case the plaintiff’s lot was situated in Commercial street 40 feet south of the exterior line of Water street. The embankment complained of was erected by the defendant under the authority of the city as an approach to the crossing on Water street, and, as I understand from what was said by the learned judge who wrote the opinion in that case, it had reference to the construction of the approach, and not to the structure in Water street, as the character of that structure was not necessarily in question, or the right of the defendant to construct it. The street was not subjected to any new use. ÍTo railroad tracks were laid on the embankment, and it continued to be devoted simply to street purposes; the learned judge saying: “The railroad was built by lawful authority through Water street, and of its existence there, and of any damages caused thereby, the plaintiff had no right to complain, as he was not an abutting owner on that street, and had no property rights therein. I do not think this case is decisive of the question involved here, for the reason that there was no railroad in Commercial street, and no question of appropriation of the street for railroad purposes. While the opinion was written by one of our most learned and distinguished judges, it is not concurred in by a majority of the court, and the judgment was reversed upon other grounds not involving the questions here discussed. The case of Conklin v. Railway Co., 102 N. Y. 107 , 6 N. E. Rep. 663 , was followed, in which the facts were similar to the facts in the Cttenot Case. It seems to, me, therefore, that the structure in Water street must be held a permanent structure, and, to the extent that it occupies the street, an absolute appropriation to the exclusive use of the defendant’s railroad. Whether the elevation in Water street is a legal structure, assuming that it is simply a change of grade, has not heretofore been considered by this court. While the question is not now raised by the plaintiff’s counsel in this case, it is claimed by the learned counsel in the Reining Case that the proceedings pointed out by the charter to be pursued in opening and changing the grade of streets has not been followed, and consequently it is claimed that the change of grade was wholly unauthorized by law. Inasmuch as

The pioperty owner is in some manner to be apprised of what is intended to be done by the common council that he may be heard, not only on the question of taxation, but that his interests in the street may be consulted and protected through his representatives in the council, and that, if his property has been damaged, he may have to resort to the methods provided by the charter to indemnify himself for the damage he has sustained.' Section 2 of title 9 provides that the grade of the street shall be established and described, and a description of such grade, and all alterations thereof, shall be recorded by the city clerk. Section 7 authorizes the common council to change the grade of streets, and when the expense exceeds $500, it is provided by section