Mahady v. . Bushwick Railroad Co.

Andrews, Oh. J. It is difficult to ascertain from the appeal book, on what precise ground the judgment in this case proceeded. The complaint alleges that the siding constructed by the defendant on Bergen street, was constructed without lawful right or authority, and alleges the circumstances of special damage sustained by the "occupation of the siding for the defendant’s cars, the cutting off of access to the plaintiff’s lots, and the annoyance from the noise of defendant’s servants in soliciting passengers, etc., and concludes by demanding judgment for damages, and for an injunction restraining the de *152 fendant from using the siding for its cars, etc. The court impaneled a jury to assess the damages, reserving the question of law. for subsequent decision. The jury, upon the request of the plaintiff, were instructed that in assessing the damages they were to assume that the siding was constructed without lawful right, and to take into consideration the annoyance which the plaintiff7 and his family had suffered from the acts of the defendant. This last instruction was duly excepted to, on the ground that the road was authorized by the common council of Brooklyn, and the jury assessed the damages at $300. The court subsequently directed judgment for the plaintiff for the damages assessed, and for an injunction restraining the defendant from using the siding as a stand for defendant’s cars. There were no formal findings of fact or law by the court. But in the memorandum of decision the judge seemed to. assume the lawfulness of the structure, and placed its direction for an injunction on the ground that the South Brooklyn Railroad Company, the lessor of the defendant, could not confer any right to occupy the siding as a stand for the accommodation of the defendant’s cars, and further that the defendant acquired no such right under the' resolution of the common council of Brooklyn, of March 10, 1879, authorizing the defendant to lay all necessary switches and turnouts to enable it to run over the tracks leased from the South Brooklyn Company. We'think it must be assumed for the purpose of this appeal that the court in finally disposing of the case, decided against the plaintiff on the issue of the lawfulness of the siding, and put its judgment solely upon the ground of an unreasonable use thereof to the detriment of the plaintiff, and that this is to be taken as the law of the case. It is plain that the basis upon which the jury were instructed to assess the damages was inconsistent with the final ruling. The damages were assessed on the theory that the whole structure was unlawful. The damages to which the plaintiff was entitled, might be quite different in the two cases. If the structure was unlawful, the plaintiff was entitled to *153 damages for all the annoyance caused by the cars in front of his premises; if lawful, only for such as resulted from an unreasonable use of the siding. We think the defendant is entitled to a new trial on his exception to the charge to the jury. The question presented is important. The plaintiff, though an abutting owner simply, the fee of the street being in the city, was entitled to the nse of the street, and neither the legislature nor the city could devote it to purposes inconsistent with street uses, without compensation, according to the principle of Story v. The Elevated R. R. Co. (90 N. Y. 122), recently decided; but that case left untouched the decision in the People v. Kerr (27 N. Y. 188), that a horse railroad constructed under legislative authority on the surface of a city street, the fee of which was in the city, was not an unlawful interference with the rights of abutting owners, but was a street use consistent with their rights therein. It cannot, however, be questioned that a street cannot be converted into a yard for the storing or deposit of cars, to the injury of adjoining owners. An unreasonable use of the street by a street railway, may doubtless afford a right of action to the property owners specially injured thereby. On a new trial the facts bearing upon the right of the defendant to maintain the siding, and the manner of its use, may be more carefully presented. The judgment should be reversed and new trial' granted, with costs to abide the event. All concur, except Danforth and Finch, JJ., dissenting. Judgment reversed.