Page:Harvard Law Review Volume 4.djvu/87

71 ELEVATED ROAD LITIGATION. 71 ordinary use of the public highways. It passed upon grave ques- tions of the right of the legislative power to delegate to corpora- tions the right of acquiring property by eminent domain. And, owing to the unusual circumstances under which the elevated roads in New York City were constructed and put into operation, there followed from the decision as a necessary consequence some of the prettiest questions as to the measure of damages and as to the possessor of those damages that a court is often called to pass upon. The action was brought to restrain the defendant from the con- struction of an elevated railroad in front of the plaintiff's ware- houses on Front street in New York City. It was found by the court below that the railroad would obscure to a limited extent the light in the plaintiff's building, and render the same flickering and less useful for business purposes, and would tend to depreciate the usefulness and value of the premises. But it was also found that the acts of the defendants were authorized by the Mayor and Commonalty of the city of New York, and were lawful.^ In the Court of Appeals the judgment was reversed and an in- junction decreed against the defendant, not to issue, however, until it had a reasonable opportunity to acquire the plaintiff's property by condemnation proceedings. What was the property which the court found the plaintiff had that the defendant would appro- priate, and on what ground did the court find the plaintiff to possess such property } It was proven that the land where the plaintiff's building was, had originally belonged to the city of New York, and had been conveyed by the city to Mr. Story's predecessor in title in 1773. The court did not decide whether or not the language in the deed conveyed the fee to the centre of the street. But they determined that whether the plaintiff owned the fee or not, yet there was a covenant created by the language of the deed that the street should be forever mantained as a public street. The deed contained a covenant on the part of grantees to build and erect at their own expense certain streets, and among others the one in question, " which said several streets shall for- ever thereafter continue and be for the free and common passage of, and as public streets and ways for, the inhabitants of the said city, and all others passing and returning through or by the same.
 * See case below, reported in 3 Abbot's N. C. 78,