Siegel v. New York & Harlem Railroad

Upon the question of the title to the land of the parties, respectively, the only feature which distinguishes this case from many of the former cases (see Birrell v. Railroad Co., 41 App. Div. 506 , 58 N. Y. Supp. 650 ; Conabeer v. Railroad Co., 156 N. Y. 474 , 51 N. E. 402 ) is that here the deed to the defendants with respect to the 24 feet in the center of the avenue antedates the deed to the plaintiff; the common source of title of both parties being one Charles Henry Hall. It is unnecessary to discuss the legal effect of this difference, no serious complaint arising but that it was duly considered by the learned trial judge. And equally upon the question of the amount awarded for damages, which was moderate and amply supported by evidence, nothing is required but a consideration of the appellants’ contention that the rule which was applied deprived them of the benefit of certain deductions to which, upon the decision as made, they claim they were entitled. The learned trial judge found that the defendants could rightfully maintain their railroad structure as it was maintained and used prior to February 16, 1897, and at any height within the lines of the central 24 feet of the avenue. Assuming, as we must, without deciding, that this finding is right, we have to consider the contention that the judge “erred, in that, instead of finding and awarding as rental and fee damages the depreciation of rental and fee value, respectively, below what they would have been if defendants had maintained and operated trains upon such structure or structures as they had acquired the right to thus maintain and use, he found and awarded as rental and fee damages the depreciation of rental and fee values, respectively, below what they would have been ‘if there had been no change in defendants’ said railroad in Park avenue in front of said premises pursuant to chapter 339 of the Laws of 1892.’ ” The contention, differently stated, is that as the court found: First, that the defendants, having acquired the right, could build their structure at any height on the 24 feet in the center of the avenue; and, secondly, that the defendants acquired the right prior to 1897 to maintain the railroad as it then existed in the depressed cut in the ave

The error which we think lies at the basis of this argument is that the damage sought by the plaintiff was not for structure so placed, but was for the new viaduct of iron and steel, about 20 feet above the surface of Park avenue, and about 59 feet wide, which structure, the learned trial judge found, was illegal, and caused fee and rental damage to the plaintiff in the sums awarded, for which judgment was directed, with the provision that unless the amounts were paid the illegal structure should be removed. The defendants, as stated, insist that this judgment is illogical and erroneous, because, as they claim, the extent to which the judgment could go affects only so itiuch of the structure as projects on both sides beyond the 24 feet, or all the damages that could be awarded result therefrom. In other words, in every computation of the amounts to be awarded the 24 feet should be excluded. This contention we think is unsound. The structure is an entire one, and it would be difficult, if not impossible, to separate the legal from the illegal part. Instances may be imagined where this could be done, as where a third track is added to an elevated railroad structure, which could be removed if unauthorized, just as it was added, without destroying the rest of the structure, which the owners had the right legally to maintain, or, if allowed to remain, the difference in damage between the structure as it existed with the two tracks, and with the third track added, could be determined. In the present case, however, we have an entirely different structure, at a different elevation, affecting the abutting property differently, and one in which the legal and illegal portions are integral parts, and that which is illegal could not be removed without destroying the viaduct as an entirety. Moreover, considering the injury inflicted upon abutting owners, it might well be, in regard to such a structure, that, had it been limited to 24 feet in width, no appreciable damage might have resulted. Here the evidence shows that damage was caused by the placing of this particular structure in the avenue, and the fact that part of it was erected without warrant makes it, as a whole, illegal. It may not be difficult, in the abstract, to theorize as to how much less the plaintiff is damaged by the entire structure because of the defendants’ right to use 24 feet thereof in the center of the avenue. Thus, if the injury to her property were in exact ratio to the number of feet in the width of the viaduct, the arithmetical computation of damages would be simply one of proportion, and she should be awarded such part of the whole damage as 24 feet bears to 59 feet. The injustice of any such method, however, we have already alluded to, in suggesting that a viaduct 24 feet wide might not have done any damage whatever to the abutting property, but that all the injury to the plaintiff’s easements resulted from the structure as an entirety, occupying, with the portions added without authority, a large part of the avenue. If, instead of taking up 59 feet, the defendants had appropriated the entire avenue, so

“No partial justification of the damages inflicted by an unlawful structure, and its unlawful use, can be predicated upon the circumstance that under other conditions, and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable for damages. The structure here, and its intended use, cannot be separated and dissected; and it must be regarded in its entirety, in considering the effect which it produces upon the property of the abutter. However the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass rendering-the wrongdoer liable for the consequences of his acts.”

We think, therefore, as in effect did the learned trial judge, -that where there is but one. entire structure, part of which is illegal and not separable, this latter, to those whose property is injured, makes the whole illegal. The plaintiff’s evidence was directed (as. defendants contend, improperly, but, as we think, properly) to showing the difference in effect between the former cut, as it existed, with its tracks and the trains operated thereon, which the defendants had the right to maintain and use, and the present permanent structure, which, in its entirety and as used, constitutes a continuous-trespass upon the plaintiff’s easements of light, air, and access, and which structure it was in the power of the court to enjoin unless

We think the judgment was right, and should be affirmed, with costs.

INGRAHAM, HATCH, and LAUGHLIN, JJ., concur.

The defendants had a right to erect a steel viaduct 24 feet wide in the center of Park avenue, at any height they saw fit. That they had such right was settled and determined by this court in Birrell against these same defendants ( 41 App. Div. 506 , 58 N. Y. Supp. 650 ). They also had acquired by prescription the right to occupy so much of the avenue outside of the 24-foot strip for railroad purposes as they had used for that purpose from 1873 to February 16, 1897. This was settled and determined by the court of appeals in Conabeer against these same defendants ( 156 N. Y. 474 , 51 N. E. 402 ), and in Lewis against these same defendants ( 162 N. Y. 202 , 56 N. E. 540 ). The learned trial court also found as a fact that the defendants had such right, as appears from the following findings:

“Third. * ® * Said railroad prior to February 1G, 1897, was operated along the center of said Park avenue in front of plaintiff’s premises in a depressed cut, about 14 feet below the surface of said Park avenue, and 61 feet and S inches wide, which said railroad cut was bounded on each side by parapet walls of about 2 feet 6 inches above the surface of said avenue, which said embankment or viaduct cut off access from one side of the said avenue to the other. * * * Fourth. That the said railroad companies * * * acquired the right, without liability to the plaintiff, to have, maintain, and use their railroad and railroad structure as the same were maintained and used prior to February 16, 1897, as hereinbefore described, and at any height within the central 24 feet of said Park avenue.”

But, notwithstanding these findings and the authorities referred to, the learned trial court held that the structure and the operation of trains thereon since February 16, 1897, have been “continuous trespass upon plaintiff’s easements of light and air appurtenant to her said premises,” and for which fee and rental damages were awarded. This court is about to affirm the judgment, upon the theory that “the structure is an entire one, and it would be difficult, if not impossible, to separate the legal from the illegal part,” and that, inasmuch as a portion of it is illegal, the entire structure becomes illegal, and must be removed. I am unable to agree to this conclusion. It is a novel proposition to me that a party who has a legal right to build or maintain a structure upon his own land, or in a given locality, must tear down the entire building or remove the entire structure if a portion of the building or a part of the structure happens to be constructed upon his neighbor’s land, or in such a way as to impair his neighbor’s easements of light, air, and access.. I do not see how such a principle can be applied, if justice is to be meted out to parties according to their respective legal rights. It is no answer to the suggestion to -say that “it would be difficult, if not impossible, to separate the legal from the illegal part.” Difficulties and impossibilities are unknown to the law. Those terms are only applicable when legal principles are sought to

For the foregoing reasons, I am unable to concur with the other members of the court. I think the judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.