The New York Central & Hudson River causes, the rental and usable value of said Railroad Company, in 1872 operated its premises was depreciated from February 16, trains over the railroad in front of said 1897, down to October 10, 1900, in the sum premises, and continued to do so until Feb- of fourteen hundred dollars ($1,400) below ruary 16, 1897.

what said rental value would have been durThe other facts are expressed in the finding said period, if there had been no change ing of the court as follows:

in defendants' said railroad in Park avenue "Fourth. That, pursuant to chapter 339 in front of said premises pursuant to chapof the Laws of 1892, there was constructed ter 339 of the Laws of 1892; and that the along Park avenue, in front of plaintiff's fee value of said premises has been, and was said premises, between April, 1893, and on October 10, 1900, depreciated thereby in March, 1896, a new, permanent, elevated the sum of three thousand dollars ($3,000) railroad structure of iron and steel; that below what said fee value would have been said railroad in front of plaintiff's said on said date if there had been no change premises is about 59 feet wide, and consists in defendant's railroad as aforesaid.

on as ing a mean elevation of about 31 feet above damages are over and above any and all the surface of said avenue, which roadbed benefits conferred upon said premises by the is girded along the sides and in the center changes made, pursuant to chapter 339 of by solid iron girders, each 7 feet and 4 the Laws of 1892, which said benefits result inches high, and is supported by iron col- in part from improved access to said premumns, of which there are six directly in ises afforded by said changes, and are offset front of plaintiff's said premises; and that against the damages to said premises caused the work of constructing said permanent by said changes. elevated railroad structure was done under “Ninth. That the said sums awarded as the supervision of a board created by said damages are exclusive of the damages that acto

would have been occasioned to plaintiff's "Fifth. That the defendant the New York premises by the maintenance and use of the Central & Hudson River Railroad Company defendant's railroad and structures had laid the tracks on said permanent elevated there been no change in the same pursuant railroad structure about March, 1896, and to chapter 339 of the Laws of 1892, for from said date down to February 16th, 1897, which last-mentioned damages the defendoperated thereon in front of said premises ants are not liable either jointly or severtrains of cars drawn by steam engines for ally. the carriage of freight and material used “Tenth. That this action was commenced in the construction of said structure, for by the plaintiff on January 7, 1897, that the which service said defendant was paid; that plaintiff on April 28, 1892, began an action said defendant, on February 16, 1897, began in this court against the defendant for an to operate regularly and permanently upon injunction and damage by reason of the desaid permanent elevated railroad structure fendant's railroad structure and the operain front of plaintiff's said premises its pas- tion of trains thereon in front of the premsenger trains, drawn by steam locomotives. ises described herein, as said railroad ex

“Sixth. That the rental and fee values isted and was operated on said date; and of the plaintiff's said premises were dam- that said last-mentioned action was disconaged by the work of constructing said per- tinued on February 27, 1900.” manent elevated railroad structure and by A decree was entered enjoining the use the existence of the same from April, 1893, of the railroad structure and its removal to March, 1896; also by said structure and from in front of plaintiff's premises; but it the operation thereon of trains, ás aforesaid, was provided that the injunction should not from March, 1896, to February 16, 1899; become operative if the defendants tender but that neither of said defendants is liable for the purpose of execution by the plaintiff for such damage.

"a form of conveyance and release” to them “Seventh. That said permanent structure of the easements of light, air, and access and the operation by said defendant the appurtenant to said premises, and tender New York Central & Hudson River Railroad further the sum of $3,000, with interest Company of passenger trains thereon since thereon from October 10, 1900. Damages February 16th, 1897, are and have been a were also adjudged to plaintiff in the sum continuous trespass upon the plaintiff's ease-of $1,400, with interest from February 16, ments of light and air appurtenant to his 1897, and cost. Either party was given the said premises, hereinbefore described as hav- right to move at the foot of the decree for ing a frontage of 76 feet and 10 inches on further directions as to the enforcement of said Park avenue and a depth of 26 feet on the same. 115th street; that solely in consequence of

In the form of the decision and judgment said trespass, and aside from any other 'entered, and as to the legal principles involved, the court professed to follow Lewis ers, to have been improvidently decided, and V. New York & .. R. Co. 162 N. Y. 202, the Elevated Railroad Cases, which were 56 N. E. 540.

made its support, were distinguished. The The judgment was affirmed by the appel-court rested its ruling on one point, the late division. It was reversed by the court effect of the act of 1892, under which the of appeals (173 N. Y. 549, 66 N. E. 558), structure complained of was erected, the and the judgment of that court, upon the court declaring that act a command to the remission of the case, was made the judg- railroad company in the interest of the pubment of the supreme court and the com- / lic; indeed, made the state the builder of plaint dismissed without costs. The case the new structure and the use of it by the was then brought here.

railroads mere obedience to law. But it

does not follow that private property can Messrs. Elihu Root, James O. Bushby, be taken, either by the erection of the strucand L. M. Berkeley for plaintiff in error. ture, or its use. This was plainly seen and

Messrs. Ira A. Place and Thomas Emery expressed in the Lewis Case as to the use for defendants in error.

of the structure. It was there said: "When

they (the railroads] commenced to use the Mr. Justice McKenna, after stating the steel viaduct, they started a new trespass case, announced the judgment of the court upon the rights of abutting owners.” There and delivered the following opinion: was no hesitation then in marking the line

As we have observed, the supreme court between the power of the state and the duty followed Lewis v. New York & H. R. Co. of the railroad, and assigning responsibility 162 N. Y. 202, 56 N. E. 540, both in the to the latter. This was in accordance with “form of decision and judgment” and “the principle. The command of the state, the legal principles involved.” Discussion was duty of the railroad to obey, may encounter not considered necessary. The appellate the inviolability of private property. And division affirmed the judgment on the au- in performing the duties devolved upon it thority of the same case and other cases a railroad may be required to exercise the which had been ruled by it. The court, by right of eminent domain. Wisconsin, M. brief expression, pointed out the identity of & P. R. Co. v. Jacobson, 179 U. S. 287, 45 the cases, and disposed of the defense made L. ed. 194, 21 Sup. Ct. Rep. 115. See also by the railroad companies of adverse posses- Worcester v. Norwich & W.R. Co. 109 Mass. sion as follows:

103. We do not, therefore, solve the ques“The question of defendants having ac- tions in this case by reference to the power quired title by adverse possession was con- of the state and the duty of the railroads; sidered by this court in both the Fries and the rights of abutting property owners must Sander Cases. [57 App. Div. 577, 68 N. Y. be considered, and against their infringeSupp. 670, and 58 App. Div. 622, 69 N. Y. ment plaintiff urges the contract clause of Supp. 155.] In the former it was said: the Constitution of the United States and 'For these reasons the deed to the city was the 14th Amendment. The latter is invoked valid as against the railroad company, and because the act of 1892 does not provide for it had no title to that part of the street compensation to property owners, and the in front of the plaintiff's premises, and its former on account of the conditions upon only rights, therefore, were those which it which the strip of land constituting the had acquired by adverse possession. Within avenue was conveyed to the city. There the rule laid down in the case of Lewis v. were two deeds to the city, one made in New York & H. R. Co. 162 N. Y. 202, 56 1825 and the other in 1827. That of 1825 N. E. 540, that adverse possession did not was stated to be “in trust, nevertheless, give to the railroad company the right to that the same be appropriated and be kept carry its tracks, which for twenty years open as parts of public streets and avenues had run in a cut, upon a viaduct such as forever, in like manner as the other public this is above ground, in front of the plain- streets and avenues in said city are and of tiff's premises. The Case of Lewis applies right ought to be.” The deed of 1827 was fully to the one at bar.' In the Sander also “in trust that the same be left open Case this court followed the decision just as public streets for the use and benefit of quoted, the presiding justice dissenting on the inhabitants of said city forever.” Plainthe sole ground that 'title by adverse posses- tiff derives title from Poillon, grantor of the sion as to the 24-foot strip, at least, was city in the deed of 1827, and hence contends established by the evidence.' ” [60 App. that he is entitled to enforce the trust cre. Div. 621, 69 N. Y. Supp. 910.]

ated by Poillon's deed to the city. The rail. In the case at bar there is a complete roads oppose this contention. They assert change of ruling by the court of appeals. title to the land upon which the structure The Lewis Case is declared, in so far as it complained of stands by deed and by preexpressed rights of abutting property own- 'scription. The details of these contentions we need not repeat nor discuss. They are

They are to be poured into the upper windows of his stated at length in the Lewis Case, and the house. conclusions there expressed are not dis- In Barnett v. Johnson, 15 N. J. Eq. 481, turbed by the decision of the court of ap- there is a clear expression of the right of peals in the case at bar. The case is there abutting owners to light and air, and of the

, fore presented to us as to the effect of the common practice and sense of the world deed of Poillon to the plaintiff and to the upon which it is founded. "It is a right," city as constituting a contract, and the the court said, “founded in such an urgent effect of the act of 1892 as an impairment necessity that all laws and legal proceedings of that contract, or as taking plaintiff's take it for granted; a right so strong that property without due process of law. These it protects itself, so urgent that, upon any questions were directly passed on and nega- attempt to annul or infringe it, it would tived by the court of appeals.

set at defiance all legislative enactments It will be observed from the statement of and all judicial decisions." And, graphfacts that, before the construction of the ically describing the right, observed further, viaduct complained of, the railroad ran “is not every window and every door in partly on the surface of the street and every house in every city, town, and village partly in a cut or trench, the latter being the assertion and maintenance of this flanked by masonry walls 3 feet high. The right?” It has been said Barnett v. John viaduct is a solid roadbed 31 feet above the son anticipated “the principle upon which surface, having iron girders on the sides and compensation was at last secured in the in the middle, and supported by iron col. Elevated Railroad Cases in New York." umns, of which there are six in front of the 1 Lewis Em. Dom. 183. plaintiff's land. The old construction pre- It is manifest that easements of light and vented crossing or access to the tracks. The air cannot be made dependent upon the new construction impairs or destroys the easement of access, and whether they can be plaintiff's easements of light and air. And taken away in the interest of the public such easements the trial court found be- under the conditions upon which the city longed to plaintiff in common with other obtained title to the streets is now to be abutters upon the public streets of New considered. The answer depends upon the York, and his damages for their impairment cases of Story v. New York Elev. R. Co. 90 to be, as expressed by Bartlett J., in his dis-N. Y. 122, 43 Am. Rep. 146, and Lahr v.

N. senting opinion, “$3,000 fee damages, $1,400 Metropolitan Elev. R. Co. 104 N. Y. 268, rental damages, from February 16, 1897, to 10 N. E. 528, known as the Elevated RailOctober 10, 1900,” the date of trial; that is, road Cases. The Lahr Case was decided in $4,400 present damage. It is suggested, 1887. The plaintiff in the case at bar achowever, that the court of appeals did not quired title to his property in 1888. deny the rights of the abutters, but consid-) The first of the Elevated Railroad Cases ered that the most important phase of those was the Story Case, decided in 1882. The rights was that of access, and the plaintiff plaintiff in the case was the owner of a lot did not have this over the railroad by rea

on the corner of Moore and Front streets son of the stone wall. The basis of the in the city of New York, on which there suggestion, as we understand, is the idea were buildings. To their enjoyment light, that plaintiff was compensated for the in- air, and access were indispensable, and were jury of his easements of light and air by an

had through Front street. The defendant increase of his easement of access without was about to construct a railroad above the regard to the resulting damage. To do this, surface of that street upon a series of colhowever, is to make one easement depend inches high, placed 5 inches inside of the

umns, about 15 inches square, 14 feet and 6 upon another, both of which are inseparable sidewalk, with girders from 33 to 39 inches attributes of property and equally neces- deep, for the support of cross ties for three sary to its enjoyment. It is impossible for sets of rails for a steam railroad. The cars us to conceive of a city without streets, or

were to be of such a construction as to reach any benefit in streets, if the property abut-within 9 feet of plaintiff's buildings, and ting on them has not attached to it, as an trains were to be run every three minutes, essential and inviolable part, easements of and at a rate of speed as high as 18 miles light and air as well as of access. There is an hour. something of mockery to give one access to The fact of injury to the abutting lot property which may be unfit to live on when was found by the trial court, and also that one gets there. To what situation is the the city of New York was the owner in fee plaintiff brought? Because he can cross of Front street, opposite plaintiff's lots, and the railroad at more places on the street, that he was not and never had been seised the state, it is contended, can authorize dirt, of the same in fee, nor had any estate cinders, and smoke from 200 trains a day therein.

The supreme court said the case involved for compensation for its diminution by the the question whether the scheme of the de- contemplated structure. fendant amounted to the taking of any It is, of course, impossible to reproduce

, property of the plaintiff; if it did, it was the argument of the court by which its consaid, the judgment was invalid on the clusions were sustained. It is enough to ground that the intended act, when per- say that a distinction was clearly made beformed, would violate, not only the pro-tween the rights of abutting owners in the vision of the Constitution, which declared surface of the street and their rights in the that such property. should not be taken space above the street, and the distinction

, without just compensation, but certain stat was also clearly made between damages and utes by which defendant was bound or owed a taking. A review was made of the cases its existence, and which would not have been upon which those distinctions rested. The upheld unless, in the opinion of the court, power of a city to alter a grade of a street they had provided means to secure such was adverted to, and held not to justify compensation.

the intended structure. There was The plaintiff contended that, as owner of change in the street surface intended, it was the abutting premises, he had the fee to one said, “but the elevation of a structure use. half of the bed of the street opposite there less for street purposes and as foreign thereto, and he also contended, if the fee was in to" as the house which was held to be an the city, he, as abutting owner, had such obstruction in Corning v. Lowerre, 6 Johns. right to have light and access afforded by Ch. 439, or the freight depot in Barney v.

Keokuk, . . to have it kept open for those uses until by. The conclusion of the court and the dislegal process and upon just compensation tinctions made by it were repeated in Lahr that right was taken away. The defendantv. Metropolitan Elev. R. Co. 104 N. Y. 271, justified its intended acts through the per- 10 N. E. 528. The structure complained mission of the city. The issue thus made of in the latter case was also an elevated the on, in railroad.

no

sumed that the city owned the fee of the Chief Judge_ Ruger, speaking for the

street and that the plaintiff derived his title court, opened his opinion by observing that from the city. It was held that the plain the action was “the sequel of the Story tiff had acquired "the right and privilege Case," and that its defense seemed to have of having the street forever kept open as been conducted upon the theory of endeavor. such;” and that the right thus secured was ing to secure a re-examination of that case. an incorporated hereditament, which "be- The endeavor, it was said, must fail, became at once appurtenant to the lot and cause the doctrine of the Story Case had formed an 'integral part of the estate' in it,” | been pronounced after most careful considerand which followed the estate and consti- ation, and after two arguments at the bar, , tuted a perpetual encumbrance upon the made by most eminent counsel, had apparland burdened with it. “From the moment ently exhausted the resources of learning it attached,” the court observed, “the lot and reasoning in the discussion of the quesbecame the dominant, and the open way or tion presented. And it was declared that street the servient, tenement." Cases were “it would be the occasion of great public cited for these propositions. And the ex- injury if a determination thus made could tent of the easement was defined to be, not be inconsiderately unsettled and suffered only access to the lot, but light and air again to become the subject of doubt and from it. The court said: “The street oc- theme of renewed discussion." The doccupies the surface, and to its uses the rights trine of the Story Case was declared to be of the adjacent lots are subordinate, but stare decisis, not only upon all the questions above the surface there can be no lawful involved, but upon all that came logically obstruction to the access of light and air, to within the principles decided.

There was the detriment of the abutting owner.” And an enumeration of those principles, as fol. further: “The elements of light and air lows: are both to be derived from the space over (1) That an elevated railroad, of the the land on the surface of which the street kind described was a perversion of the use is constructed, and which is made servient of a street, which neither the city nor the for that purpose." This was emphasized, legislature could legalize without providing the court observing: “Before any interest compensation for the injury inflicted upon passed to the city the owner of the land the property of abutting owners. had from it the benefit of air and light. (2) That abutters upon a public street, The public purpose of a street requires of claiming title by grant from the municipal the soil the surface only." The easement authorities, which contained a covenant that was declared to be property and within the streets which could be laid out should conprotection of the constitutional provision'tinue as other streets, acquired an easement in the bed of the street for ingress and the Story and Lahr Cases were said not to egress to and from their premises, and also be in point. We think that the Lewis Case for the free and uninterrupted passage and was an irresistible consequence of the others, circulation of light and air through and and the Story and Lahr Cases are in point over such street for the benefit of the prop- and decisive. erty situated thereon.

Another distinction is claimed, as we have (3) That such easement was an interest already observed, between the case at bar in real estate and constituted property, and those cases. The act of the railroad in within the meaning of the Constitution of occupying the viaduct, it is said, was the the state, and could not be taken for a pub- act of the state. But this defense was made lic use without payment of compensation. in the other cases.

It did not give the (4) That an elevated railroad, upon which court much trouble. It is urged, however, cars propelled by steam engines which gen-now, with an increased assurance. Indeed, erated gas, steam, and smoke, and distrib- it is made the ground of decision, as we uted in the air cinders, dust, ashes, and have seen by the court of appeals. The other noxious and deleterious substances, court said: “The decisions in the Elevated and interrupted the free passage of light Railroad Cases are not in point. There no and air to and from adjoining premises, con attempt was made by the state to improve stituted a taking of the easement, and ren- the street for the benefit of the public. Indered the railroad company liable for the stead, it granted to a corporation the right damages occasioned by such taking.

to make an additional use of the street, in The application of these principles was the doing of which it took certain easeresisted on the ground that the city was the ments belonging to abutting owners, which grantor of the plaintiff in the Story Case, it was compelled to compensate them for.” and could not derogate from the title a And, further, making distinction between property it conveyed, and it was contended, those cases and that at bar, said: “The that the case went off on that ground. This state could not if it would—and probably was rejected and the principles enumerated would not if it could—deprive defendant of held to apply, notwithstanding the land in its right to operate its trains in the street. the street had been taken from plaintiff's But it had the power in the public interest grantor by proceedings in invitum. And to compel it to run its trains upon a viaduct rights of abutting owners were held to rest instead of in the subway." And the court in contract constituted by the conditions concluded that it was the state, not the railupon which the city received the property. roads, who did the injury to plaintiff's prop

Equally untenable are the grounds of dis- erty The answer need not be hesitating. tinction urged in the case at bar against the The permission, or command of the state, application of those principles. What are can give no power to invade private rights, they? In the Story and Lahr Cases the even for a public purpose, without payment railroads were imposed for the first time of compensation; and payment of such comon the street. In the case at bar the Har- pensation, when necessary to the performlem railroad had occupied the surface of the ance of the duties of a railroad company, street, and was changed to the viaduct. But may be, as we have already observed, part in the Story and Lahr Cases it was not the of its submission to the command of the fact that the railroads were imposed on the state. The railroads paid one half of the street for the first time that determined expense of the change, "by the command of the judgment rendered. It was the fact the statute, and hence under compulsion of that trains were run upon an elevated law," to quote from the court of appeals. structure, interrupting the easements of the public interest, therefore, is made too light and air of the abutting owners. It much of. It is given an excessive, if not was this that constituted a use inconsistent a false, quantity. Its use as a justification with the purpose of the street. It was the is open to the objection made at the argu“elevation of a structure," to quote again ment,-it enables the state to do by two from the Story Case, "useless for general acts that which would be illegal if done by street purposes." This situation of the one. In other words, as, under the law of railroad was especially dwelt upon in the New York, the state can authorize a railStory Case, and that case was distinguished road to occupy the surface of a street, it thereby from the surface railway cases. can subsequently permit or order the railAnd in the Lewis Case a difference was road to raise its tracks above the street and recognized between the two situations, and justify the impairment of property rights a balance struck between damage done by by the public interest. It was said in the the railroad in one situation and the rail-Story Case that "the public purpose of a road in the other situation. The Lewis street requires of the soil the surface only." Case, we have seen, was overruled by the And this was followed in Fobes v. Rome, court of appeals in the case at bar, while 'W. & 0. R. Co. 121 N. Y. 505, 8 L. R. A.