Page:Harvard Law Review Volume 4.djvu/89

73 ELEVATED ROAD LITIGATION. 73 It would be perhaps presumptuous in the writer to enter into any discussion as to which opinion was correct law, after the able presentation of each question by the respective advocates and judges. But I think every one must admit that the conclusion reached by the majority of the court was consonant with every natural sense of justice. No one can really suppose that such an appropriation of the streets as was made in 53d street or Pearl street, New York City, was ever contemplated or dreamed of by either the municipality or the abutting property owners when these streets were laid out. And whatever view may be held as to the effect of the elevated railroads on value in some streets in New York City, on these streets there can be no question a serious in- jury was done to property by the construction of elevated rail- roads. Nor does the court seem to have violated the principle of stare decisis in reaching the conclusions it did. Tracy, J., very satisfactorily says, " The fact that a particular structure is found to be consistent with the uses of a street is no evidence that a dif- ferent structure is not inconsistent with such uses." There is no similarity between a surface horse railway and an elevated road. And it would indeed have been a startling suggestion if the court had held that any use of a public street which might be convenient for the use of the people of the city could legally be authorized by the Legislature. To the writer it has always seemed that the decision in Story e/. N. Y. Elevated Railroad Company was a most desirable conclusion — all the more worthy of praise because of the clamor with which the argument was pressed of the great benefit conferred upon the city of New York by these elevated roads. The decision in the Story case, carefully considered as it was, and clear and satisfactory as it would seem to be in the principle it laid down, was not to be permitted to stand without a desperate attempt to reconsider and overrule it, or at least to limit its effect within a very narrow compass. It remained for the court in the case of Lahr v. Metropolitan, 104 N. Y. 268, to reiterate the doctrine of the Story case in even more decided language. In this second case it was argued by the defendant that the doctrine of the Story case only applied to cases where there existed the peculiar covenant in the deed. And had this view prevailed it would have resulted in putting an end to the great mass of the elevated litigation. A large proportion of the territory over which