Eldert v. Long Island Electric Railway Co.

The plaintiff and two other persons,.not parties 0 plaintiff, are the owners, as tenants in common, of property on both sides of Liberty avenue, and the owners in fee of the adjacent roadbed of the highway upon which the structure in question is erected. The record contains an agreed statement of facts, in which, and also in the ■court’s finding of facts, it is stated that the plaintiff’s land lies on both sides of Liberty avenue, beginning at a point about 1,000 feet easterly from the line dividing the counties, and extending easterly about 750

There is no evidence that any part of the structure is erected opposite the plaintiff’s property. I assume that the roadbed of Liberty avenue, referred to in the agreed statement, findings, and judgment as belonging to the plaintiff, is only that-part of the avenue upon which the plaintiff’s property abuts. Such property is described as commencing at a point about 1,000 feet easterly of the dividing line of the counties, and running thence easterly 750 feet; while the structure in question is described as commencing at a point 1,000 feet from the dividing line of the counties, and running thence westerly,—that is, towards the county line. In other words, there is a point 1,000 feet from the

But it does not follow from this that the plaintiff lias no individual right of action, or that he has no interest in the subject other than that which belongs to the general public, and that on that account this action is maintainable only in the name of the people. Taking the description of the plaintiff’s premises as commencing at a point exactly, instead of "about,” 1,000 feet easterly from the county line, and the defendant’s structure as commencing at a point 1,000 feet easterly from said line, the plaintiff’s lands adjoin or are adjacent to the highway where the structure begins. In Holmes v. Carley, 31 N. Y. 289 , a question arose under a statute giving jurisdiction to a justice of the peace to try an action, either in the county where the plaintiff resided, or "before some justice of another town in the same county next adjoining.” The corners of four towns met at one point, and it was held that the diagonal towns adjoined each other at the corner. In Peverelly v. People, 3 Parker, Cr. R. 59 , the question arose on an appeal from a conviction for arson. The statute defined the crime to- be the firing of a building not the subject of arson in the first degree, but adjoining or within the curtilage of any inhabited dwelling house. The indictment was for firing a warehouse adjoining an inhabited dwelling house. The court said that-the term “adjoin” seemed to have no fixed meaning, but held that the buildings must actually touch or be in close contact with each other, to fall within the definition of “adjoining.” The statute relating to division fences (1 Rev. St. [9th Ed.) p. 753) requires the erection of fences by the owners of two adjoining tracts of land. Here it is evident that the statute relates to lands running side by side. But in the case at bar the dividing point, where the structure begins, is adjacent to the plaintiff’s property', and is spoken of as being on a road leading to Jamaica, and about, and not exactly, 1,000 feet from the county line. Jamaica is the county town, and the largest town of Queens county; and with this town, it may be assumed, all residents of the county, including the plaintiff, have frequent business. A public and continuing nuisance on the highway leading to this business center necessarily inflicts upon the plaintiff inconvenience and damage beyond that inflicted upon more distant owners. If the structure was not erected by lawful authority, it is a purpresture and a nuisance. The court, upon the facts, has found that it “constitutes a nuisance and an unlawful burden -on the property rights of the plaintiff, and has worked an injury to him.”

This brings us to the question whether the structure is a nuisance. The defendant is organized as a street-railway company. It had the right to lay its tracks on the surface, and only on the surface, of the highway. It claims that the law gave authority to the highway commissioners to permit the erection, above the grade of the highway, of a structure to connect with the elevated road. We find no such power resident in the highway commissioners. Their power, in respect to a street-surface railroad company, is limited to granting it permission t¿ extend its surface road or some branch thereof, still on the surface. The elevated structure was therefore erected without the consent either

Section 385 of the Penal Code defines a nuisance as consisting, among other things, of an act which “unlawfully interferes with, obstructs, or tends to obstruct * a public street or highway.” In the Davis Case, supra, the court held that “that which is authorized by competent legal authority cannot in law constitute a nuisance”; and the defendant contends that it obtained the right to erect the structure, under the railroad law (2 Rev. St. [9th Ed.] p. 1252, c. 39, § 4, subds. 4, 5), which reads:

“Sec. 4. Subject to the limitations and requirements of this chapter, every railroad corporation, in addition to the powers given by the general and stock corporation laws, shall have power: * * * (4) To construct its road across, along or upon any * * * highway. * * * (5) To cross, intersect, join, or unite its railroad with any other railroad before constructed, at any point on its route and upon the ground of such other railroad corporation, with the necessary turnouts, sidings, switches, and other conveniences in furtherance of the objects of its connections.”

But article 4, § 90, which provides for the organization of companies for the construction of street railways, requires the filing of a map and profile. It nowhere appears that any profile was filed, and it may therefore be assumed that the intention of the organization was to construct a road only upon the surface of the highway. Indeed, its certificate states that it is to be a “street-surface railway,” and its route is stated to be “along” certain highways, including Liberty avenue. Certainly, there was no intention in the organizers to construct any other than a street-surface railroad. The original consent of the highway commissioners, given in pursuance of section 91 of the railroad law, provided that “the said tracks shall be laid in the center of said avenue, and the present grade thereof shall not be changed without the written consent or order of said commissioners.” In 1895 the company applied to the commissioners for permission “to change the plan of construction * * * for the purpose of making a convenient connection with the railroad of the Kings County Elevated Railroad Company” ; and the commissioners gave permission “to elevate one track of its railroad on the westerly one thousand feet of said Liberty avenue by a gradual incline rising westerly along said Liberty avenue, and connecting with” the said tracks.

The underlying question is whether a connection between a street surface railway and an elevated railroad, by an inclined plane, is a joining or union, in the sense of section 4 of the railroad law. We are of the opinion that it is not. No elevated structure was originally contemplated by the company when it was organized. The property owners might and did consent to a surface railroad, but they have given

With these views, we cannot do otherwise than affirm the judgment. All concur.