Lent v. Tilyou

The plaintiffs are an electric lighting corporation, and Lent is a would-be customer. In order to furnish light to Lent or any other customers who might apply, this corporation sought to lay down conduits, tubes, and other apparatus in certain ways known as the Bowery, Tilyou’s Walk, and Kensington Walk. Lent is the lessee of the premises which abut upon the Bowery. It is practically undisputed that these three ways are walks made and maintained by the defendant, or by a company which he "controls, over private property of which parts have been leased to various persons, as in Lent’s case, for places of amusement, and of which a large part has been kept and maintained by the defendant and his said company for like purposes. The public has used- these ways or walks for access to these various places of amusement. The Bowery has existed about 13 years. The defendant asserts that none other has ever exercised authority or asserted any jurisdiction over these, ways; that he or his compány has laid them-down

The learned and able counsel for the respondents concedes that the appellant is the owner of the legal and equitable title to all that part of the Bowery between the westerly terminus of the company’s conduit and Lent’s premises, and that the said Bowery and the said walks “have never been acquired by the city or dedicated so as to become streets in the legal sense”; but he asserts that Lent, with ■other occupants, “received their grants or leases, as the case might be, bounded by such streets, or with such streets in physical existence at the time.” He asserts that the plaintiff corporation “bases its right to extend its conduits * * * solely by reason of its employment by the said plaintiff (respondent) Abraham Lent, and by other occupants of premises abutting- upon the Bowery, Kensington Walk, and Tilyou’s Walk.”

It is contended that the reasoning in Thousand Island Park Association v. Tucker, 173 N. Y. 203 , 209, 65 N. E. 975 , 976, 60 L. R. A. 786 , is applicable. In that case the plaintiff, a camp meeting or summer park association, had leased lots, and it was held that as against the plaintiff, the errand of Tucker, a farmer who supplied certain lessors of the lots with poultry and vegetables, was lawful; Cullen, J., saying:

“But, however this may be, the lots leased were laid out on a map and plan of the park showing the streets and roads. By leasing the lots as designated on such maps, the plaintiff thereby dedicated,,the land in the streets and roads to the use of the lot lessees, and any one using a road for access to the premises of such lessee on the latter’s request can justify his presence there as against the plaintiff under such dedication.”

The cases may be discriminated. Tucker, incidentally to the -errands of his business, merely used the road for access, as he had the right to do in common with the public, Naturally, he simply passed and repassed along it as his business required. The case at bar would be analogous if the plaintiff sought to use the way to carry lamps to Lent, or to deliver illuminating oil to him. But the plaintiff does not seek any such occasional use of the way in ■common with the public, but a permanent physical invasion thereof pro tanto, to. the permanent physical exclusion of the defendant. The passing to and fro of Tucker was like unto the user of the public which was contemplated by the defendant in this case. But in permitting the public to use this way for access to the various places, the defendant did not thereby contemplate such use as the plaintiff would make of the land within the - ways, In Eels v. A.

“Still the primary law of the highway is motion, and, whatever vehicles are used, or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body, which must pass along the highway either on or over, or perhaps under, it, but it cannot permanently appropriate any part of it.”

And again, speaking of a highway:

"It is not a place which can be permanently and exclusively appropriated to the use of any person or corporation, no matter what the business or object of the latter might be. It was because the highway was permanently, and to some extent exclusively, appropriated by the elevated roads that it was held their erection, without the consent of the abutting owners, was illegal. Story v. Railroad Co., 90 N. Y. 122 , 43 Am. Rep. 146 .”

In Bloomfield, etc., Gas-Light Co. v. Calkins, 62 N. Y. 386 , 389, 390, the court, speaking of the laying of gas pipes in a country highway, say:

“The use of the highway thus sought to be maintained is different, more injurious, and liable to produce far greater damage to the owner of the fee than mere passing or repassing; and the pecuniary loss occasioned by the exercise of such a power must necessarily be far more extensive and unlimited in its character. It would be beyond an ordinary trespass on the land or an appropriation of the surface of the soil. It would interfere materially with the freehold and the enjoyment of the fee to an extent greatly exceeding anything which was ever contemplated or intended when the land was appropriated for the ordinary purposes of a highway. The right to the fee, to the fruits of the soil, and to carry water in pipes under the highway, which are laid down as expressly reserved (3 Kent, supra), would be taken away, diverted, and appropriated for the purposes of a corporation, without compensation, and contrary to the clear and manifest original design contemplated by the laying out of the highway, and the intention of the owner of the fee when he parted with his interest.”

It is also contended that the grant or lease of lots in this territory includes a corresponding grant or lease of the private street for all street purposes, and that this principle assures the right of the plaintiff to lay its conduits in these ways. We are cited to Palmer v. Larchmont Electric Co., 158 N. Y. 231 , 52 N. E. 1092 , 43 L. R. A. 672 . I think that the cases are not analogous. The plaintiff corporation asserts its right because it is asked to supply light to Lent and others in their own premises. In Palmer’s Case, supra, the court recognizes the distinction made in Calkins’ Case, supra, that a gaslight company could not lay its pipes in a country highway without compensation to the owner of the abutting land, where its pipes were not used for lighting the highway through which the company sought to lay its pipes. Calkins’ Case was approved in Eels v. A. T. & T. Co., supra, and in Van Brunt v. Town of Flatbush, 128 N. Y. 50 , 55, 27 N. E. 973 , 974. And the basic proposition for the judgment in Palmer’s Case is that the owner of a fee in a country highway “taken and opened and dedicated” for the public use is entitled to no further compensation after the highway has become thickly settled and the highway has become a street, and hence the necessity for lighting the street has come, which requires the erection of poles and the stringing of wires, inasmuch as such

Order reversed, with $10 costs and disbursements, and motion for injunction denied, with costs. All concur.