Muhlker v. New York & Harlem Railroad

197 U.S. 544, 25 S. Ct. 522, 49 L. Ed. 872, 1905 U.S. LEXIS 1167

• Court: Supreme Court of the United States
• Decided: April 10, 1905
• Docket: 99
• Status: Published

Opinions

Mr. Justice McKenna,

after stating the case, announced the judgment of the court and delivered the following opinion:

As we have observed, the Supreme Court followed Lewis v. New York & Harlem Railroad, 162 N. Y. 202, botín in the “form of decision and judgment” and “the legal principles involved.” Discussion was not considered necessary. The Appellate Division affirmed the judgment on the authority of the same case and other cases which had been ruled by it. The court, by brief expression, pointed out the identity of the cases and disposed of the defense made by the railroad companies of adverse possession as follows:

“The question of defendants having acquired title by adverse possession was considered by this court in both the Fries and Sander cases. In the former it was said: ‘For these reasons the deed to the city was valid as against the railroad company, and it had no title to that part of the street in front of the plaintiff’s premises, and its only rights, therefore, were those which it had acquired by adverse possession. Within the rule laid down in the case of Lewis v. New York & Harlem R. R. Co. (cited above), that adverse possession did not give to the railroad company the right to carry its tracks, which for twenty years had run in a cut, upon a viaduct such as this is, above ground, in front of the. plaintiff’s premises. The case of Lewis applies fully to the one at bar.’ In the Sander case this court followed the decision just quoted, the presiding justice dissenting on the sole ground that ‘Title by adverse possession as to the twenty-four foot strip at least was established by the evidence.’ ”

In the case at bar there is -a complete change of ruling by the Court of Appeals. The Lewis case is declared, in so far as it expressed rights of abutting property owners, to have been improvidcntly decided, and the elevated railroad cases, which were made its support, were distinguished. The court rested its ruling on one point, the effect of the act of 1892, under which the structure complained of was erected, the court declaring that act a command to the railroad company in the interest of the public; indeed, made the £3tate. the builder of the new structure and the use of it by tne railroads mere obedience to law. But it does not follow that private .property can be taken either by the erection of the structure or its use. This was plainly seen and expressed in the Lewis case'as to the use of the structure. It was there said: “When they (the railroads)^ commenced to use the steel viaduct they started a new trespass upon the rights of the abutting owners.” There was no hesitation then in marking the line between the power of the State and the duty of the railroad, and assigning responsibility to the latter. This was in accordance with principle. The command of the State, the duty of the railroad to obey, may encounter the inviolability of private property. And in performing the dpties devolved upon it a railroad may be required to exercise the right of eminent domain. Wisconsin, Minn. & Pac. R. R. v. Jacobson, 179 U. S. 287; see also Mayor and Aldermen of Worcester v. Norwich and Worcester R. R., 109 Massachusetts, 103. We do not, therefore, solve the questions in this case by reference to the power of the State and the duty of the railroads; the rights of abutting property owners must be considered, and against their infringement plaintiff urges the contract clause of the Constitution of the United States and the Fourteenth Amendment. The latter is invoked because the act of 1892 does not provide for compensation to property owners, and the former on account of the conditions upon which the strip of land constituting the avenue was conveyed to the city. There were two deeds to the city, one made in 1825 and the other in' 1827. That of 1825 was stated to be “ in -trust, nevertheless, that the same be appropriated and be kept'open as parts of public streets and avenues forever, in like manner as the other public streets and avenues in said city are and of right ought to be.” The deed of 1827 was also “in trust that the same be left open as public streets, for the use and benefit of the inhabitants of said city forever/* Plaintiff derives title from Poillon, grantor of the city in the deed of 1827, and hence contends that he is entitled to enforce the trust created by Poillon’s deed to the city. The railroads oppose this contention. They assert title to the land upon which the structure complained of stands by deed and by prescription-; The details of these contentions we need not repeat nor discuss. They are stated at length in the Lewis case, and the conclusions there expressed are not disturbed by the decision of the Courts of Appeals in the case at bar. The case is therefore presented to us as to the. effect of the deed of Poillon toNthe plaintiff and to the city as constituting a con-' tract, and the effect of the act of 3,892 as an impairment of that .contract or as taking plaintiff’s property without due process of law. These questions were directly passed on and negatived by the Court of Appeals. ,

It will be observed from the statement of facts that before the construction of the .viaduct, complained of the railroad ran partly on the surface of the street and'partly in a cut or trench, the latter being flanked by masonry walls three feet high. The viaduct is a solid roadbed thirty-one feet above the surface, having iron girders on the sides and in. the middle, and supported by iron columns, of which .there are six in front of the plaintiff’s land. The old construction prevented crossing or access to the tracks. The new construction impairs or destroys the plaintiff’s easements of light and air. And such easements the trial court found belonged to plaintiff in common with -other abutters upon the public streets of New York and his damages for their impairment to be as expressed by Bartlett, J., in his dissenting opinion, “$3,000 fee damages, $1,400 rental damages, from February 16, 1897, to October 10, 1900,” the date of trial; that is, $4,400'present damage. It is suggested, however, that the Court of Appeals did not deny the rights of the abutters, but considered that the most important phase of those rights was that of access, and the plaintiff did' not have this over the railroad by reason of the stone wall. The basis of the suggestion, as we understand, is the ideft that plaintiff was compensated for the injury of his easements of light and air by an increase of his casement of access without regard to the resulting damage. To do this, hp'wever, is'to make one easement depend upon another, both of which are inseparable attributes of property and equally necessary to its enjoyment. It is impossible for us to conceive of a city without streets, or any benefit in streetsj if tne property abutting on them has not attached to it as an essential and inviolable part, easements of light and air as well as of access. There já something of mockery to give one access to property which may be unfit to live on when one gets there. To what situation is the plaintiff brought? Because he can cross the railroad at more places on the street, the State, it is contended, can authorize dirt, cinders and smoke from 200 trains a day to be poured into the upper windows of his house.

In Barnett v. Johnson, 15 N. J. Eq. 481, there is a clear expression of the right of abutting owners to light and air, and of the common practice and sense of the world upon which it is founded. “It is a right;” the court said, “founded in such an urgent necessity that all laws and legal proceedings take it for granted. A right so strong that it protects itself, so urgent that, upon any attempt to annul or infringe it, it would set at defiance all legislative enactment and all judicial decision.” And, graphically describing the right, observed'further, “is not every window and every door in every house in every city, town, and village the assertion.and maintenance of this right?” It has been said Barnett v. Johnson anticipated “the principle upon which compensation was at last'secured in the elevated-railroad cases in New York.” 1 Lewis Eminent Domain, 183.

It is manifest that easements of light and air cannot be made dependent upon the easement of access, and whether they can be taken away in the interest of the public under the conditions upon which the city obtained title to the streets is now to be considered. The answer depends upon the cases of Story v. New York Elevated R. R. Co., 90 N. Y. 122, and Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268, known as the elevated railroad cases. The Lahr case was decided in 1887. The plaintiff in the case at bar acquired title to his property in 1888.

The first of the elevated railroad cases was the Story case, decided in 1882. The plaintiff in the case was the owner of a lot on the corner of Moore' and Front streets in the city of New York, on which there were buildings. To their enjoyment light, air and access were indispensable, and were had through.Front street, The defendant was about to construct a railroad above the surface of that street upon a series pf columns, about fifteen inches square,. fourteen feet and six inches high, placed five inches inside of the sidewalk, with girders from thirty-three to thirty-nine inches deep, for the support of cross ties for three sets of rails for a steam railroad. The cars were to be of such a construction as to reach within nine feet of • plaintiff’s buildings, and trains were to be run every three minutes, and at a rate of speed as high as eighteen' miles an hour.

The fact of injury to the abutting lot was found by the trial court, and also that-the city of New York was the owner in fee of Front street, opposite plaintiff’s lots, and that he was not and never had been seized of the same in fee nor had any estate therein.

The Supreme Court said the case involved the question whether the scheme of the defendant amounted to the taking" of any property of the plaintiff; if it did,, it was .said, the judgment was invalid on the ground that the intended act, when performed, would violate not only the provision of the Constitution, which declared that such property should not be taken without just compensation, but certain statutes by which defendant was bound or owed its existence, and which would not have been upheld unless, in the opinion of the court, they had provided means to secure such compensation.

The plaintiff contended that, as owner of the abutting premises, he had the fee to one-half of the bed of .the street opposite thereto, and he also contended, if the fee was in the city, he, as abutting owner, had such'right to have light and access afforded by the street above the roadbed as entitled him to have it kept open for those uses until by legal process and upon just compensation that right was taken away. The defendant justified its intended acts through the permission of the city. The issue thus made the court passed on, and in doing so assumed that the city owned the fee of the street' and that the plaintiff derived his title from the city. It was held that the plaintiff had acquired “the right and privilege of having the street forever kept open as such;” and that the right thus secured was an incorporeal hereditament, which “became at once appurtenant to the lot and formed an ‘integral part of the estate’ in it,” and which followed the estate and constituted a perpetual encumbrance upon the land burdened with it. “From the moment it attached,” the court observed, “the lot became the dominant, and the open way or street the servient tenement.” Cases were cited for these propositions. And the extent of the easement was defined to be not only access to the lot, but light and air from it. The court said: “The street occupies the surface and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner.” And further: “The elements of light and air are both to be derived from the space over the land, on the surface of which the street is constructed, and which is made servient for that purpose.” This was emphasized, the court observing: “Before any interest passed to the city, the owner of the land had from it the benefit of air and light. The public purpose of va street requires of the soil the surface only.” The easement was declared to be property and within the protection of the constitutional provision for compensation for its diminution by the contemplated structure.

It is, of course, impossible to reproduce the argument of the court by which its conclusions were sustained. It is enough to say that a distinction was clearly made between the rights of abutting owners in the surface of the street and their ■rights in the space above the street, and the distinction was also clearly made between damages and a taking. A review was made of the cases upon which those distinctions rested. The power of a city to alter a grade of a street was adverted .to, and held not to justify the intended structure. There was no change in the street surface intended, it was said, “but the elevation of a structure useless for street purposes and as foreign thereto,” as the house which was held to be an obstruction in Corning v. Lowerre, 6 Johns. Ch. 439, or the freight depot in Barney v. Keokuk, 94 U. S. 324.

The conclusion of the court and thei distinctions made by it were repeated in Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268. The structure complained of in the latter case was also an elevated railroad.

Chief Judge Ruger, speaking for the court, opened'his opinion by observing that the action was "the sequel of the Sto:y case," and that its defense seemed to have been conducted upon the theory of endeavoring to secure a reexamination of that case. The endeavor, it was said, must fail, because the doctrine of the Story case had been pronounced after most careful and thorough consideration and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resources of learning and reasoning in the dis-. cussion of the question presented. And it was declared that "it would be the occasion of great public injury, if a determination thus made could be inconsiderately unsettled and. suffered again to become the subject of doubt, and theme of renewed discussion.” The doctrine of the Story case was declared to be stare decisis, not only upon all the questions involved, but upon all that came logically within the principles decided. There was an enumeration of those principles, as follows:

(1) That an elevated railroad, of the kind described, was a perversion of the use of a street, which neither the city nor the legislature could legalize without providing compensation for the injury inflicted upon the property of abutting owners.

(2) That abutters upon a public street, claiming title by grant from the municipal authorities, which contained a covenant that streets which could be laid out should continue as other, streets, acquired an easement in the bed of the1 street for ingress and ogress to and from their premises, and also 'for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of the property situated thereon.

(3) That such easement was an interest in real estate and constituted property, within the meaning of the constitution of the State, and could not be taken for a public use without payment of compensation.

(4) That an elevated railroad, upon which cars propelled by steam engines which generated gás, steam and smoke and distributed in the air cinders, dust, ashes, and other noxious and deleterious substances, and interrupted the free passage of light and air to and from adjoining premisés; constituted a taking of the casement, and rendered the railroad company liable for the damages occasioned by. such taking.

The application of these principles was resisted on the ground that the city was the grantor of the plaintiff in the Story case and could not derogate from the title a property it conveyed, and, it was contended, that the case went off on that ground. This was rejected and the principles enumerated held to apply, notwithstanding the land in the street had been taken from plaintiff’s grantor by proceedings in invitum. And rights of abutting owners were held to rest in contract constituted by the conditions upon which the city received the property.

Equally untenable arc the grounds of distinction urged in the case at bar against the application of those principles. What arc they? In the Story and Lakr cases the railroads were imposed for the first time on the street. .In the case at bar the Iiarlcm Railroad had occupied the surface of the street, and was changed to the viaduct. But in the Story and Lahr cases it was not the fact' that the railroads were imposed on the street for the first time that determined the judgment rendered. It was the fact that trains were run upon an elevated structure, interrupting the casements of light and air of the. abutting owners. It was this' that constituted a..use inconsistent with the purpose of the street. It was the elevation of a structure,” to quote again from the Story case, “useless for general street purposes.” This situation of the railroad was especially dwelt upon in the Story case, and that case was distinguished thereby from the surface railway cases. And in the Lewis case a difference was recognized between the two situations, and a balance struck between damage done by the railroad in one situation and the railroad in the other situation. The Lems case, we have seen, was overruled by the Court of Appeals in the ca,se at bar, while the Story and Lahr cases were said not to be in point. We think that the Lewis case was an irresistible consequence of the others, and the Story and Lahr cases are in point and decisive.

Another distinction is claimed, as we have already observed, between the case at bar and those cases. The act of the railroad in occupying the viaduct, it is said, was the act of the State. But this defense was'made in the other cases. It did not give the court much trouble. It is urged, however, now, with an increased assurance. Indeed, it is made the ground of decision, as we have seen by the Court of Appeals. The court said: “The decisions in the elevated railroad cases are not in point. There no attempt was made by the State to improve the street for the benefit of the public. Instead, it granted to a corporation the right to make an additional use of' the street, in the doing of which it took certain easements belonging to abutting owners, which it was compelled to compensate them for.” And, further, making distinction between those cases and that at bar, said: “The State could not if it would — and probably would not if it could — deprive defendant of its right to operate its trains in the street. But it had the power in the public interest to compel it to run its trains upon a viaduct instead of in the subway.” And the court concluded that it was the State, not the railroads, which did the injury to plaintiff’s property. The answer need not be hesitating. The permission, or command of the State, can give no power to invade private rights, even for. a public purpose without payment of compensation; and payment of such compensation, when necessary to the performance of the duties of a railroad company, may be, as we have already observed, part of its submission'to the command of the State. The railroads paid one-half of the expense of the change, " ‘ by the command of tho statute, and, lienee, under compulsion of law,’ ” to quote from the Court of Appeals. The public interest, therefore, is made too much of. It is given hn excessive, if not a false quantity. Its use as a justification is open to the objection made at the argument, it enables the State to- do by two acts that which would be illegal if done by one. In other words, as under the law of New York the State can authorize a railroad to occupy the surface of a street it can subsequently permit or order the railroad'to raise its tracks above the street and justify the impairment of property rights by the public interest. It was said in the Story cn.se that “ the public purpose of a street requires of the soil the surface only.” And this was followed in Fobes v. R., W. & O. R. Co., 121 N. Y. 505, where a steam railroad was permitted upon a street without liability for consequential damages to adjoining property. The new principle based upon the public interest destroys all distinction between the surface of the soil of a street and the space above the surface, and, seemingly, leaves remaining no vital remnant of the doctrine of the elevated railroad cases. However, wé need not go farther than the present case demands. When the plaintiff acquired his title those cases ,w¡ere the law of New York, and assured to him that his easements of light and air were secured by contract as expressed in those cases, and could not be taken from him without payment of compensation.

.And this is the ground of our decision. We are not called upon to discuss the power or the limitations upon the power, of the courts of New York to declare rules of property or change or modify their decisions, but only to decide that such power cannot be exercised' to take away rights which have been acquired by contract and have come under the protection of the Constitution of the United States. And we determine for ourselves the .existence and extent of such contract. This is a truism; and when there is a diversity of state decisions the first in time may constitute the obligation of the contract and the rneasure of rights under it. Hence/'the importance of the elevated railroad cases and the doctrine they had pronounced when the plaintiff acquired his property. He bought under their assurance, and that these decisions might have been different or that the plaintiff might have balanced the chances of the commercial advantage between the right to have the street remain open and the expectation that it would remain so is too intangible to estimate. We certainly can estimate the difference between a building with full access of light and air and one with those elements impaired or polluted. But we have already expressed this. We need only add that the right of passage is not all there is to a street, and to call it the primary right is more or less delusive.. It is the more conspicuous right, has the importance and assertion of community interest and ownership, properly has a certain dominance, but it is not more necessary to the making of a city than the rights to light and air, held, though the latter are, in individual ownership and asserted only as rights of private property. The true relation and subordination of these rights, public and private, is expressed, not only by the elevated railroad cases, but by other cases. They are collected in 3 Lewis Eminent Domain, section 91c, and, it is there said, “established beyond question the existence of these rights, or easements, of light, air and access, as appurtenant to abutting lots, and that they are as much property as the lots themselves.”

Judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.

Mr. Justice Brown concurs in the result.