Cookman v. New York Elevated Railroad

It is impossible to decide this appeal correctly without a full and definite appreciation of the difference between the case of Bohm v. Met. E. R. R. Co., 129 N. Y. 576 ; 42 St. Rep. 247 , and that of Becker v. Met. E. R. R. Co., 131 N. Y. 509 ; 43 St. Rep. 726 . Both belonged to the class of actions in which the abutting property was shown to have seriously increased in value since the construction of the elevated road, so that, presumably and apparently, benefit instead of damage had resulted ; and in each it was, therefore, necessary to show as ground of recovery two things; first, that when the road was built the locality was increasing in value from the tendency toward it of incoming population and normal city growth, and, second, that in the continuance of progressive increase of value the plaintiff’s property would have shared if the railroad had not been built, but was prevented from so sharing to its due extent by the presence of the road operating more or less as a barrier to a normal advance. In the earlier case we held that there was no evidence of either essential fact, ,and reversed an award of damages ; in the later case we decided that there was some evidence of the necessary facts and so a reversal was not possible, however just such a reversal might have been. Since the evidence in the two cases was very much alike the real difference in its effect was necessarily due to the' wide difference of situation and surroundings existing when the new structure was built, and some consideration of that difference and of its results may prudently precede a reference to the facts now before us.

Where an elevated street railroad enters a vacant and uninhabited locality, which normal growth has not effectively reached, .which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expectation, and thereupon and thereby population and growth, tending elsewhere, are dividerted to the new line of rapid transit, and build up the vacant locality, creating a demand for lots and a steady and persistent increase of values both directly on the line and in the side streets near by, the only reasonable and sensible inference is that the increased values are the sole and substantial product of the newly opened line which has brought prosperity to a neglected locality: So far as normal growth or incoming population has had anything to do with the increase of value they are themselves as operating causes due to the new mode of access, and in no respect separate from or independent of it. In and of themselves they would have spent their force elsewhere; would have built up homes even in other states whence steam would give rapid and easy passage, and left the locality to its

But the situation changes materially when the elevated road enters an area already substantially built up and improved. In such a locality normal growth has come, and built the blocks up solidly, or nearly so, and caused an increment of value due to itself alone, and with which the rapid transit line had nothing whatever to do. Such normal growth it is evident had its own independent existence and operation because it had already worked and was continuing to work its result of an increase of values when the railroad did not exist. The average rate of that observed increase in such locality can be approximately ascértained, and if the rate continued after the construction of the elevated road in the side streets, but a less rate of increase is found on the avenue occupied by the cars, and facts are shown explaining such loss by evil effects of the new line, it <is possible to infer that the avenue property has not shared as it should in the normal and independent increase of value to the extent to which it was entitled. That I understand to be the substantial basis of the Becker Case. The distinction I have sketched was plainly drawn in the opinion. It was there said, “ that although certain of the side streets were not all built upon when the road was erected and put in operation, yet it does appear that the locality where this property is situated was fairly built up before the road was operated, although to some extent the adjacent side streets have been more compactly built upon since that time. There has been no such change from absolute vacancy within large and extensive portions of the city limits as has occurred in the vicinity of Harlem, where it has appeared in evidence the

The present case comes clearly within the scope of the Bohm decision. It is specifically and explicitly found, and upon the evidence no other finding was possible, as to all the property except Ho. 261 Third avenue, that the locality was substantially vacant and unimproved, or at the most only partially built up, while soon after the construction of the elevated road it was com

As to No. 1028 it is found that its rental increased from $2,400, in 1875, to $5,500, in 1892, and the fee value from $36,000, in 1881, to $75,000, at the date of the trial. And the same facts as to the beneficial effect of the railroad upon values are again found.

As to Nos. 1240 to 1248 and 1225 a similar state of facts appeared. The rents of the former in 1877 were $9,136, and in 1892 had grown to $11,855, and in that year the rents were greater than ever before the construction of the road. The great change was in the rental of the stores. While the rental of the flats overhead diminished, evidently because of the new supply of better apartments, the business rentals increased from $3,440, in 1876, to $8,200, in 1893, showing a gain of 138 per cent. It must have been difficult to persuade the owner who took that gain that nevertheless he had been damaged. The value of the lots as distinguished from the buildings was, in 1872, about $66,000, and at the time of the trial about $120,000. The value of No. 1255 was $15,000, in 1873, and at the time of the trial about $20,000. It is further found that, in 1873, the streets and avenues in the vicinity were practically vacant and have all been built up since 1877 ; that the increased accessibility has induced the settlement and building; that the same improvement would not have occurred in the absence of rapid transit, and that the defendant’s road has been one of the great and efficient factors in building up the locality.

We have thus before us a state of facts correrponding to that disclosed in the case of Bohm. The result must be the same That there may have been a greater increase in the side streets, due in part, at least, to the influences of the defendant’s road, does not prove or even indicate damage in a situation like the present. Bor in every case where a vacant area is built up and gains an increase of value coincident with the coming of the railroad and obviously stimulated by it, the appreciation of property in the adjacent side streets is largely due to the same cause, and the case is one in which benefits only have accrued, and they do not become injury on the avenue because they'help more largely the residence lots near by. In such a case there is no normal city growth operating independently, or capable, by itself, of severance or measurement. It is, relatively to the unimproved locality, a secondary cause set in operation by a primary one, and the primary one originating the general benefits flowing from the secondary one, does not become hurtful to one lot because it helps to a greater degree some other. The railroad in the vacant locality cannot be said to hinder what it in fact produces.

The judgment should be reversed and a new trial granted, costs to abide the event.

(dissenting). I feel constrained to dissent from the opinion in this case, not because I am unwilling to agree to the particular rule therein adverted to ; but because I think there was some evidence upon which the decision of the trial court could rest. It may be considered unsatisfactory and it may be vague; but that consideration is no ground for reversing the judgment, as we held in the Beecher Case, 131 N. Y. 500 ; 43 St. Rep. 726 . I do not object to the rule which prohibits an award of damages where there has been no proof of damage, or where it must rest upon theoretical inferences. That rule was laid down in the Bohm Case, 129 N. Y. 576 ; 42 St. Rep. 247 , and must be regarded as established by that decision; but I do not object to the application of the rule to the facts as developed in the present case, which disclose a different condition of things from what was found to exist in the Bohm Case. It cannot be said in respect to the entry of the elevated railroad into the neighborhood of the properties described in the complaint, that that part of the city was brought into existence and peopled through the agency of the defendants, unaided by a normal city growth which was operating to increase city values. It seems to me that consistency with our prior decisions, which have affirmed recoveries based upon a comparison of property values in the neighborhood in connection with other facts relating to the railroad, as the only practicable proof within the reach of the complainant, requires us to affirm the recovery here. The Balter Case, (supra), is an authority which we cannot well overlook in the consideration of the disposition of the present case.

Andrews, Oh. J., Peckham and Haight,.JJ., concur with Finch, J., for reversal; O’Brien and Bartlett, JJ., concur with Gray, J., for affirmance.

Judgment reversed.