Muhlker v. New York & Harlem Railroad Company

Plaintiff sues to enjoin the use of a certain elevated railroad structure on Park avenue, in the city of New York, in front of his premises, unless upon payment of the fee value of certain easements of light, air, and access, and other rights appurtenant to his premises. He also prays damages for injury sustained from the year 1890 to time of trial.

From the evidence in the case the supreme court found that the plaintiff had been, since 1888, the owner of a lot of land on the northwesterly corner of Park avenue and 115th street, on which he, in 1891, erected a five-story brick building, and that there were appurtenant to said lot and building 'certain easements of light, air, and access in and over said Park avenue, in front of said premises.' The defendant, The New York & Harlem Railroad Company, is and was during all the times mentioned herein the owner of a railroad and railroad structures in Park avenue, in front of such premises, and the New York Central & Hudson River Railroad Company is the lessee of said railroad structures under a lease dated April 1, 1873, for a term of four hundred and one years; that said railroad, prior to 1872, was operated on two tracks laid upon the surface of said avenue and along the center thereof, in front of said premises.

In pursuance of chapter 72 of the Laws of 1872 certain changes were made in the railroad in front of said premises, between the years 1872 and 1874, whereby the number of tracks was increased from two to four, and were laid along the center of the avenue, and at the south line of said premises were at the surface, and at the north line of said premises were laid in a trench about 5 1/2 feet below the surface. In front of said premises the railroad was bounded on both sides by masonry walls about 3 feet high above the surface, and cut off access across said avenue immediately in front of said premises.

The New York Central & Hudson River Railroad Company, in 1872 operated its trains over the railroad in front of said premises, and continued to do so until February 16, 1897.

The other facts are expressed in the finding of the court as follows:

'Fourth. That, pursuant to chapter 339 of the Laws of 1892, there was constructed along Park avenue, in front of plaintiff's said premises, between April, 1893, and March, 1896, a new, permanent, elevated railroad structure of iron and steel; that said railroad in front of plaintiff's said premises is about 59 feet wide, and consists of four tracks laid on a solid roadbed, having a mean elevation of about 31 feet above the surface of said avenue, which roadbed is girded along the sides and in the center by solid iron girders, each 7 feet and 4 inches high, and is supported by iron columns, of which there are six directly in front of plaintiff's said premises; and that the work of constructing said permanent elevated railroad structure was done under the supervision of a board created by said act.

'Fifth. That the defendant the New York Central & Hudson River Railroad Company laid the tracks on said permanent elevated railroad structure about March, 1896, and from said date down to February 16th, 1897, operated thereon in front of said premises trains of cars drawn by steam engines for the carriage of freight and material used in the construction of said structure, for which service said defendant was paid; that said defendant, on February 16, 1897, began to operate regularly and permanently upon said permanent elevated railroad structure in front of plaintiff's said premises its passenger trains, drawn by steam locomotives.

'Sixth. That the rental and fee values of the plaintiff's said premises were damaged by the work of constructing said permanent elevated railroad structure and by the existence of the same from April, 1893, to March, 1896; also by said structure and the operation thereon of trains, as aforesaid, from March, 1896, to February 16, 1899; but that neither of said defendants is liable for such damage.

'Seventh. That said permanent structure and the operation by said defendant the New York Central & Hudson River Railroad Company of passenger trains thereon since February 16th, 1897, are and have been a continuous trespass upon the plaintiff's easements of light and air appurtenant to his said premises, hereinbefore described as having a frontage of 76 feet and 10 inches on said Park avenue and a depth of 26 feet on 115th street; that solely in consequence of said trespass, and aside from any other causes, the rental and usable value of said premises was depreciated from February 16, 1897, down to October 10, 1900, in the sum of fourteen hundred dollars ($1,400) below what said rental value would have been during said period, if there had been no change in defendants' said railroad in Park avenue in front of said premises pursuant to chapter 339 of the Laws of 1892; and that the fee value of said premises has been, and was on October 10, 1900, depreciated thereby in the sum of three thousand dollars ($3,000) below what said fee value would have been on said date if there had been no change in defendant's railroad as aforesaid.

'Eighth. That the said sums awarded as damages are over and above any and all benefits conferred upon said premises by the changes made, pursuant to chapter 339 of the Laws of 1892, which said benefits result in part from improved access to said premises afforded by said changes, and are offset against the damages to said premises caused by said changes.

'Ninth. That the said sums awarded as damages are exclusive of the damages that would have been occasioned to plaintiff's premises by the maintenance and use of the defendant's railroad and structures had there been no change in the same pursuant to chapter 339 of the Laws of 1892, for which last-mentioned damages the defendants are not liable either jointly or severally.

'Tenth. That this action was commenced by the plaintiff on January 7, 1897, that the plaintiff on April 28, 1892, began an action in this court against the defendant for an injunction and damage by reason of the defendant's railroad structure and the operation of trains thereon in front of the premises described herein, as said railroad existed and was operated on said date; and that said last-mentioned action was discontinued on February 27, 1900.'

A decree was entered enjoining the use of the railroad structure and its removal from in front of plaintiff's premises; but it was provided that the injunction should not become operative if the defendants tender for the purpose of execution by the plaintiff 'a form of conveyance and release' to them of the easements of light, air, and access appurtenant to said premises, and tender further the sum of $3,000, with interest thereon from October 10, 1900. Damages were also adjudged to plaintiff in the sum of $1,400, with interest from February 16, 1897, and cost. Either party was given the right to move at the foot of the decree for further directions as to the enforcement of the same.

In the form of the decision and judgment entered, and as to the legal principles involved, the court professed to follow Lewis v. Now York & H. R. Co. 162 N. Y. 202, 56 N. E. 540.

The judgment was affirmed by the appellate division. It was reversed by the court of appeals (173 N. Y. 549, 66 N. E. 558), and the judgment of that court, upon the remission of the case, was made the judgment of the supreme court and the complaint dismissed without costs. The case was then brought here.

Messrs. Elihu Root, James C. Bushby, and L. M. Berkeley for plaintiff in error.

[Argument of Counsel from pages 548-553 intentionally omitted]

Messrs. Ira A. Place and Thomas Emery for defendants in error.

Statement by Mr. Justice McKenna:

Mr. Justice McKenna, after stating the case, announced the judgment of the court and delivered the following opinion: