New York Steam Co. v. Foundation Co.

Laughlin, J.: I am unable to agree with all of the views'of the learned referee upon the law applicable to the facts found, or with his conclusion. He correctly ruled that section 22 of the Building Code has no bearing on the case.' The provisions of that section, like the previous statute from which they were taken, were designed to regulate the rights of the adjacent owners and 'occupants of premises with respect to building operations upon one lot, affecting the building, ¿he occupants thereof'and property on an adjacent lot (Dorrity v. Rapp, 72 N. Y. 307; Paltey v. Egan, 122 App. Div. 512), but they have no application to excavations in a public street. (Jencks v. Kenny, 28 Abb. N. C. 154; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98.) The case, therefore, is to be decided upon the principles- of the common law. If the decision of this appeal depends upon' the doctrine of lateral support, I think the defendant would not be liable, but for the reasons to be presently stated I am of opinion that it is governed by another principle of law. At common law an owner of land is only entitled to the lateral support of his land against an adjoining owner, where his lands remain in. their natural state and the cohesiveness of the soil has not been disturbed by excavations or the erection of structures thereon. (Gillies v. Eckerson, 97 App. Div. 153; Riley v. Continuous Rail Joint Co., 110 id. 787; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 275; Dorrity v. Rapp, supra.) This street has been extensively excavated and four lines of underground improvements have been placed therein. It is manifest, therefore, that the natural cohesiveness of the soil has been materi [262] ally affected and it cannot be said that if this had not been done the soil would have been materially disturbed by driving the sheath piling, the jarring incident to which, it is to be inferred, caused the' damages. If, therefore, the plaintiff owned the lot adjacent to that upon which the' contractor was excavating and constructing the foundation and had excavated the soil of its. lot and placed therein the structures that it placed in New street, it is. quite clear under the principles of the common law that there would be no liability, for injury to them.- If. there would be no liability to the plaintiff" for damages to this underground improvement on its own land, I fail to see upon what principle it obtains greater rights in a public street where it', is a licensee or at most has an easement. without title to the soil. The respondent relies upon the cases of Milburn v. Fowler (27 Hun, 568) and Finegan v. Eckerson (32 App. Div. 233), following it, but I think they are distinguishable. It was decided in Radcliff’s Executors v. Mayor, etc., of Brooklyn (4 N. Y. 195) that the common-law rule of lateral support does not" obtain in favor of an owner of land abutting upon a public highway, as against the public, and that lie . is not entitled to the support of his land by the soil in the street.. The Milburn and Finegcm cases hold in favor of those having the right to use the highway for public travel, that an' owner of land abutting thereon has no right to make an excavation upon his own land Which will so undermine of render insecure the highway as to' create a nuisance by causing part of the surface thereof to fall off. Assuming that the nature of the rights of the public in a highway is such that the owner of land abutting thereon owes a duty of' lateral support to prevent the creation of a. nuisance, it does not necessarily -follow that he owes this duty to every owner of underground improvements or structures made or placed in the, highway under a license or grant" from the public authorities. Moreover, the damage to the plaintiff’s property was not caused by an excavation upon the lands of the abutting owner Which deprived the soil of the street of lateral support. The excavation here,' the construction of which resulted in the damages, was made in the public street ■itself and by due authority of law. A permit for. the construction of a vault iñ a public highway, for. the use of the abutting owner, is .in -the nature of a revocable private easement, It may be revoked [263] when the space is required for municipal or other public purposes, but until revoked it may be fully enjoyed. (Lincoln Safe Deposit Co. v. City of New York, 96 App. Div. 624; Deshong v. City of New York, 176 N. Y. 475; March v. City of New York, 69 App. Div. 3; Babbage v. Powers, 130 N. Y. 281.) The municipal authorities were expressly authorized by the Legislature to grant the right to the abutting owner to construct these vaults and it has often been decided by the courts that the construction of such vaults in a public street- is a proper use of the. street and that the owner’s rights therein will be protected while the permit stands unrevoked. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 49, subd. 7; Jorgensen v. Squires, 144 N. Y. 280; Parish v. Baird, 160 id. 302; Matter of Brooklyn Union Elevated R. R. Co., 105 App. Div. 111; Deshong v. City of New York, 176 N. Y. 475; 2 Dillon Mun. Corp. [4th ed.], § 664a. See, also, Lahr v. Met. Elev. R. Co., 104 N. Y. 268; Rogers v. Randall, 29 Mich. 41.) There is, in my opinion, no force in the contention of the respondent that it being a public service corporation and its rights having been first conferred, are superior to those of the defendant acting for the owner of the adjacent property to whom the vault permits were granted. The plaintiff obtained its grant subject to the right of the municipal authorities to place in the street other local improvements, even though the construction thereof should require it to take additional' precautions for the protection of its property in the street or subject it to greater expense in the maintenance of. its property in changing .the location thereof. (Matter of Deering, 93 N. Y. 361; New Orleans Gas Co. v. Drainage Commission, 197 U. S. 453; National Water Works Co. v. City of Kansas, 28 Fed. Rep. 921; Chicago, Burlington & Q. R. Co. v. Drainage Commissioners, 200 U. S. 561; Western Union Tel. Co. v. Syracuse Electric Light & Power Co., 178 N. Y. 325; Brooklyn Elevated R. R. Co. v. City of Brooklyn, supra; Interborough Rapid Transit Co. v. Gallagher, 44 Misc. Rep. 536.) It likewise took its grant subject to the right of the municipal authorities to exercise their statutory power of granting vault privileges. Doubtless if the defendant inflicted a direct injury upon the plaintiff’s property, it would be liable, but neither the plain tiff’s line of steam pipe nor the walls built to protect the same were within that part of the street wherein the construction of [264] the vaults was authorized,and the injury was not directly inflicted.. It does not appear that any part of the structures placed in the street by the plaintiff was uncovered by the excavation'for the vaults, or touched by the piling that was driven in the execution of the work. It does not even appear how near the piling came to any of the plaintiff’s underground construction. As already observed, the only inference from the findings is that the jarring or compression of the earth incident to driving the piling caused the damages. There was no caving in toward the vaults and there is no evidence that the soil of the street or any structure therein settled" or was disturbed for want of lateral support. The findings exonerate the defendant from any charge of negligence. The work was conducted carefully and properly and the driving of the piling was incidental and.necessary to the proper construction of the vaults as authorized by th e permits. In view of the findings there is no force in the suggestion that the permits did not authorize the driving of the piling just outside the curb, line, for the abutting owner was authorized to construct the wall of the . vaults on the curb line and it was manifestly necessary to drive the piling outside that lineln order to permit the construction of the wall where authorized. The judgment" cannot be sustained upon the theory of trespass. Nothing was thrown upon or against the property of the plain tiff which would justify a recovery upon the theory of trespass without negligence. (St. Peter v. Denison, 58 N. Y. 416; Hay v. Cohoes Co., 2 id. 159.) The case in my opinion, falls within the doctrine of Holland House Co. v. Baird (169 N. Y. 136); Atwater v. Trustees, etc. (124 id. 602); Benner v. A. D. Co. (134 id. 156) and Booth v. R., W. & O. T. R. R. Co. (140 id. 267) where it is held that in the absence of negligence there is no liability • for consequential damages incidentally resulting from the vibrations of the earth or air caused by the construction of a lawful improvement either in a public street or upon private property. The clause of the permit with respect to underground improvements was designed for the protection of those directly encountered in the progress of the work. It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. Patterson, P. J\, and Lambert, <L, concurred; McLaughlin and Houghton, JJ., dissented.