CARVALHO v. BROOKLYN & JAMAICA BAY TURNPIKE CO.(Supreme Court, Appellate Division, Second Department.Headnote
Injunction—Building of Turnpike—Delay in Tide—Damage.Where defendant has received full approval from the federal authorities to erect a turnpike road with certain bridges and spans across a bay in which the tide ebbs and flows, the fact that such structure will delay the movement of the high tide for some minutes is not ground oh which to enjoin the construction of such road, in the absence of a showing that such delay will damage the property lying on or underneath such bay.
Appeal from special term, Queens county.
Action by David N. Carvalho against the Brooklyn & Jamaica Bay Turnpike Company. Prom a judgment in favor of the defendant, plaintiff appeals.
The following is the opinion of the court below:
The defendant herein is a corporation organized under the provisions of the turnpike law, and is proposing to construct a certain turnpike across Jamaica Bay, in the county of Queens, with certain bridges and spans across channels in such bay. The tide ebbs and flows in said Jamaica Bay, and the defendant has received the full approval of the federal authorities to the construction of its said structure, and proposes to construct the same upon land which it owns .and has acquired under long-time leases from the owners of such land. The plaintiff owns certain land on Jamaica Bay, and land under water in said Jamaica Bay, distant three or four miles from the proposed structure of the defendant, and claims that the erection of such structure by the defendant will delay the movement of the high tide some fifteen minutes. It does not appear that such detention of tide will cause any damage to the property lying upon or underneath Jamaica Bay, nor does it appear that any special damage will be occasioned to the property of this plaintiff. The defendant’s proposed work, therefore, being done under proper authority of law, and the plaintiff not sustaining any general or special damage, I direct that the plaintiff’s complaint be dismissed, and that the temporary injunction heretofore granted herein be vacated and set aside, and that the defendant have its costs as taxed.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.William J. Kelly, for appellant.
James C. Church, for respondent.
.The plaintiff brought this action to enjoin the construction of a turnpike road which the defendant purposed to build across Jamaica Bay from the dividing line of Kings and Queens counties to Rockaway Beach. He is the owner of property •situate on the shore of the bay and of adjacent land under water about four miles distant from the route of the turnpike. He contends that the turnpike would be an unlawful interference with public waters of the state and with the navigation of the bay, and would cause injury to his property. The court dismissed the complaint, and the plaintiff appeals.
We are clearly of the opinion that the plaintiff has no standing to maintain an action of this character, for the reasons stated in the opinion of Mr. Justice JENKS, hereto appended, before whom the case was tried. The judgment should be affirmed.
Judgment affirmed, with costs. All concur.