Page:Harvard Law Review Volume 4.djvu/91

75 ELEVATED ROAD LITIGATION. 75 by the Court of Common Pleas for the City and County of New York. ^ All these courts have interpreted the Lahr case as laying down the broad doctrine that every abutter on a public street as such is possessed of certain easements in the street, which are property which cannot be taken from him without compensation. But the leading case on the Dutch brief question is that of Aben- droth V. N. Y, Elev., reported in 54 Superior, 417, and now argued, but not, at the time of writing, decided by the Court of Appeals. There would seem, however, to be little doubt that the case will be affirmed, and the Dutch brief question determined against the railroad companies by our Court of Last Resort. The whole theory of these elevated road cases as hitherto expounded by that court has been that abutters on public streets have, as such abutters, certain property in the streets which they cannot be deprived of without compensation. This property has been deduced from their liability to be assessed for street openings and improvements (see language of Ruger, C. J., in Lahr case, ubi supra). That liability is just as coextensive on Pearl street as on any other street in New York City. And whoever may own the fee of the streets and whatever law may have prevailed there, yet while they do exist as public streets, it would be an artificial and illogical position to in- terpret the right of property owners upon them as differing from those on any other street in the city. It is to be expected that the decision of the Court of Appeals in the Abendroth case will settle forever the rule that every abutter on any public street has prop- erty rights in the streets of which he cannot be deprived without compensation. We have been considering hitherto what rights of property have been found to exist in abutters on public streets ; a no less mooted question has been in many cases to whom that property belongs. The elevated roads were built and put in operation throughout the city in the years 1876 to 1879. It was not until 1882 that the Story case finally fixed a liability upon the companies. Mean- while much property abutting on the line had been transferred, the grantors in some cases reserving " all causes of action whether in law or in equity against the elevated railroads for loss of rents or depreciation of value of the property," but commonly convey- ing without any reservation. ^ See Hine z/.N. Y. Elev., 27 N. Y. St. R. 303 ; Mortimer t^. N. Y. Elev., 25 N. Y. St R. 872 ; and Kane v. N. Y. Elev. R. R., 6 N. Y. Weekly Supplement, 526.