Muhlker v. . N.Y. Harlem R.R. Co.

Parker, Ch. J. The facts of this case present the same question that was before this court in the Lewis Case (162 N. Y. 202) and the Fries Gase (169 N. Y. 270) and that is, whether defendant is liable for any damages that may have been sustained by plaintiff by reason of the interference with his easements of light, air and access by the erection of the viaduct upon which its trains are now being run. Defendant was incorporated in 1831, and in 1832 it took from one Poillon a deed to a strip of land 24 feet wide in the center of what is now known as Fourth avenue, in the city of Hew York, along which the premises belonging to the plaintiff are situated. Subsequently double tracks were laid thereon and trains operated, and this continued until after 1872. In that year an act was passed (Ch. 702, Laws of 1872) under which the tracks were increased to four and were laid in a subway or cut bounded on both sides by masonry walls which rose to a height of three feet above the surface of the avenue. As soon as the work was completed the tracks were used for railroad purposes and so continued until the state compelled the road to abandon their use and to operate its cars upon the viaduct which was constructed by the state pursuant to ch. 339, Laws of 1892. "Without further reference to the history of the road in that avenue it may be said that prior to the time when the operation of its trains was transferred from the subway to the viaduct. it had acquired the right as against the abutting owners to , maintain its railroad and run its trains along and over Fourth avenue. (Fries Case, supra) In 1890 Congress passed an act directing the secretary of war to cause the bridges over the Harlem river to be replaced by other bridges which should be at least 24 feet above the high water of the spring tides. (U. S. Statutes at Large, vol. 26, p. 437.) As defendant’s road crossed one of these bridges, compliance with the provisions of this act made *552 necessary a change in the grade of defendant’s railroad, and the act provided that such changes should be made as soon as the necessary legislation could be obtained to authorize a change in the grade of the approaches to the bridge. About two years later the legislature passed the act already referred to by which it undertook to accomplish the result aimed at by Congress in such a manner as actually to improve the use of the street itself, a part of the scheme being to compel this defendant to operate its road upon a steel viaduct elevated above the ground, thus giving the public the use of the whole of the surface of the street which before was impossible. This improvement was made by the state for the benefit of . the public, the expense of it, by the mandate of the state, being borne by the city and this defendant in equal proportions. What was done by the state and the legal effect of its action upon the rights of this defendant cannot be better stated than it was by Judge 'Vann in the Lewis Case (supra?) and so I quote it: “ That structure was not erected by the defendants, but by the state, as appears from the facts already stated. South of 125th street it gave them no facilities which they did not' have before. The stone structure of 1872 did away with grade crossings and gave them four tracks, and this is all they have now. The change of grade north of 125th street, in order to cross the Harlem river at the height required by the general government, has no bearing upon the change of grade south of that point. The defendants are liable for what they did but not for what the state did. (Atwater v. Trustees of Vil. of Canandaigua, 124 N. Y. 602.) The state created a board of experts and required them to make the improvement for the benefit of the public, giving them absolute control with no right on the part of the defendants to let or hinder. The board made the plans and did the work, letting their own contracts, employing and discharging their own men, without supervision or interference by the companies, which did not and could not set the board in motion, for the want of power, *553 if for no other reason. The change of grade in front of the plaintiff’s premises was not only for a public purpose, but was wholly in the interest of the public and not for the benefit of the defendants who had no power to prevent it. They simply paid one-half of the expense by the command of the statute, and, hence, under compulsion of law. They are not liable for the acts of the Park avenue board, which was not their agent, but a governmental agency of the state. (Benner v. Atlantic Dredging Co., 131 N. Y. 156, and cases cited on page 162.) Their offer in advance to obey the statute did not affect its compulsive force, for obedience was their duty. As was tersely said in a late case, the railroad company ‘ had no choice left to it. The state intervened and directed that a work, which it had the power to require to be done, should be done, not by the railroad nor even by the city, but by an independent board in the creation of which the defendant had no voice, over whose selection of employees it had no control, with the discharge of whose functions it could not interfere and whose operations it was powerless to prevent.’ * * * The statute ‘ authorized and directed ’ the defendants to operate their trains on the structure ‘ when completed.’ Accordingly they laid their tracks, at first on the trestle work, which they used for a short time, and then on the steel viaduct, which they have used ever since. In thus using the work of the state they doubtless accepted it as their own, but they accepted it as a completed structure, and did not thereby become parties to the process .of construction. Their acceptance did not reach back and adopt the previous acts of the state, but the effect was the same as if they had purchased it from the state on the day'they commenced to use it.” Although at the time of the decision of the Lewis case we accepted as sound the proposition that, when defendant commenced to use the steel viaduct, it started a new trespass upon the rights of the abutting owners for which it could properly be held liable, subsequent reflection persuaded the majority of the court that this was error. The reasoning which seemed to command the latter conclusion was, briefly, that the state, *554 setting about making improvements in Fourth avenue which were to benefit the general public, found defendant in possession of four tracks in the middle of the avenue, with the right to operate its trains upon them, which it was enjoying. The state could not if it would —• and probably would not if it could — deprive defendant of its right to operate its trains in the street. But it had the power in the public interest to compel it to run its trains upon a viaduct instead of in the subway. So the state builded the viaduct over the part of the street formerly occupied by the subway and compelled it to stop running its trains in the subway and to run them on the viaduct instead. The state had the power to do these things and all of them, and defendant, having the right to move its trains over the street, which could not be taken away from it, did not lose that right and become a trespasser because it obeyed the command of the statute, which it could not refuse to obey, to operate its trains upon the structure which the state had built. The plaintiff was injured by the change, as appears from the findings. But who caused the injury ? The defendant, which obeyed the command of the statute which it had not the right to resist, or the state, which had the power .to make the changes which were made in the street and did make them and then compelled defendant to make use .of them ? The question admits of but one answer, and that is, it was the state. When the question was again presented, therefore, as it was in the Fries Case. (supra), we attempted to cure the error which we concluded we had made in the Lewis case. The opinions in the Fries case were written by Judge O’Brien and Judge Martin. In the course of Judge O’Brien’s opinion it is said: “ I am unable to perceive any reason why the legislature had not the power to improve the avenue by removing the railroad from the cut to a viaduct, and if the change affected the rental or fee value of the property of an abutting owner having no title to the street, it was but a consequence of the improvement, for *555 which the railroad was not responsible.' The law is well settled in this state that where the property of an abutting owner is damaged, or even his easements interfered with in consequence of the work of an improvement in a public street conducted under a lawful authority, he is without remedy or redress, even though no provision for. compensation is made in the statute. Whatever detriment the improvement may be to the abutter in sncli cases is held to be damnum absque inju/riaP Judge Martin states the principle as follows: “ It must also be admitted that all the acts of the defendants for which the plaintiff claims they are liable were performed under and in accordance with the direct and express mandate of that statute. That there was no encroachment upon or actual interference with the plaintiff’s premises, and that the improvement was made for the benefit of the public, and in a proper manner, are likewise practically conceded. Hence, the broad question presented is whether, in the absence of any statute providing for compensation, the defendants are liable for remote or consequential damages in having performed only such acts as were required by the express provisions of the statute upon works of a public nature, where there was neither negligence nor want of skill, and no direct invasion of any private property of the plaintiff. We think not. In every civilized community controlled by governmental or municipal laws or regulations, there are many cases where the individual must be subjected to remote or consequential damage or loss, to which he must submit without other compensation than the benefit he derives from the social compact.” The judgment was accordingly reversed. That decision was deliberately and carefully made, and reflected the view of a majority of the members of this court at that time, and still does. The dissenting opinion cited, and correctly, the Reining (Jase (128 N. Y. 157) as authority for the proposition that “ while the public authorities may raise the grade of a street for a street use, or may authorize the construction of a surface *556 railroad on the street, in either ease without liability to the abutters, they cannot raise the grade of a street for the excfooswe use of a railroad without compensating an abutter for the injury inflicted.” But that proposition is not involved in this case. Here the state did not authorize a change in the street for the exclusive use of the railroad. The change was made for the public benefit as well as for that of the railroad, and for that reason the state compelled the city of New York to pay one-half of the expense of it. The decisions in the elevated railroad- cases are not in point. There no attempt was made by the state to improve the street for the benefit of the public. Instead, it granted to a corporation the right to make an additional use of the street, in the doing of which it took certain easements belonging to abutting owners, which it was compelled to compensate them for. It is again urged on this appeal that the act under which these changes were made is unconstitutional, and hence that defendant need not have obéyed its commands. But that question was considered and passed upon by this court in the Fries case, every member of the court, whether voting with the majority or minority, agreeing that the act was constitutional. Judge O’Brien said, in discussing the constitutional question: “ I think it would be difficult, in view of the authorities cited,, to state any ground upon which it can be questioned.” And Judge Martin commenced his opinion by saying: “Although there is a divergence of opinion among the members of the court as to some of the legal questions involved in this case, yet all agree that the statute under which the acts complained of were performed was valid, and that the legislature did not transcend its powers in enacting it.” And Judge Cullen said_: “The statute is not unconstitutional and no decision to that effect is necessary to secure plaintiff’s rights.” We still think, under the authority of Radcliff’s Executors v. Mayor, etc., of Brooklyn (4 N. Y. 195) and the other cases cited by Judge Martin in his opinion in the Fries case, that the state had the power to mgjge this improvement, as it did, without compensation to ttye- abutting owners. Undoubtedly the- *557 state had also the power to provide in the act for compensation to abutting owners, and to apportion the expense incurred in the acquisition of the easements destroyed upon the defendant and the city of Hew York, as it apportioned the expenses of building the viaduct and making the other changes in the street; and it still has the power to authorize ascertainment of tiie damages to the abutting owners through its Court of Claims and to provide for their payment, and it may well be that it would be equitable for it to do so. But that it possessed the power to improve the street, as it did, for the benefit of the public, in the manner that it did, compelling abutting owners to bear so much of the burden of the improvement as resulted from the partial destruction of their easements of air, light and access, we have no doubt. Indeed, if in the judgment of the legislature it had seemed wise and just to do so, it could have assessed a portion of the expense of the improvement upon the abutting owners instead of placing it all upon the defendant and the city. The judgment should be reversed and the complaint dismissed, without costs.