The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-07-20
NEW YORK HERALD, MONDAY, july 20, 1868

as TO occupy inst one-hin ~ th'a srhce The north
easterly stairs ascend from the walk 90 the>ordee
scross consdeIabie portion Of the isrG of the store
occupied by uie plaintiff 0bsaructng Nh" re pass
are az the light INTO the store anu rendering the rear
portion of 10 80 dark a. "a require the gas 90 DE
Lnhted Tor part OF he day AT ,GIst, ~ ord "
TO enable the paintiH Ia carry GA aud tfans-
act his business The evidence also quite sat.sac-
t0riiy snowel ina inc upper portion % ine oohd-
ing which the plaini.i had previously leased lur
Offices aud other similar PURPOSES mad been 20 iar
injured ~ this bridge being in mont OF them, ani ne
Obstruction the approaches to 10 caused 10 pedei-
trans passing along the wa Ks, mat they had been
deserted by tue leualCS and he was unable % pro-
cure others to occupy them and IN addition 10 that
the persons VINO passed along the streets 1T hrs
point, ON account o. tre diminished capacity ~ the
sidewalk by he erection Of the stairs t. tie bridge,
bock9ded tue IRON OF Ills store, rendering 10 neon
veBient lor goods 10 be taken ana removed rom
IL anu Tor ais customers pass IN and out and fire.
quenty driving the persons collected upon the walk
through the inside Of his tore Tor the pupO or
passing aud repassing between Broadway and Ful-
ton street. No reason exists under tIe evt-
statements. And assuming them to be true, as
the Court Is bound t. do, even though they may be
special INJURY TO the piantlr AS viii enable him to
maintain the present action II the structure coui-
AIMED of can Justly be declared to be public nui-
sance To constitute such nuisance Il Is necessary
that II shall be shown 10 have been erected and
maintained in violation Of law and that IL shall be
found To render the enjoyment OF the rignts OBJ
structeu D. n announcement unWholes0me OF uncOnl-
Portable on account Of the large amount OF travel
upon the streets ana on the walks at this point the
aud pOckaded by vehicles to render il impossible
Tor the tlule b ing Tor pedestrians to effect cross
Ing: anu when tnat was not the case crossing the e
streets sby persons on loot was frequently
difficult as well as dangerous. 1t to relieve pc
destrians from these Interruptions and dangers that
the defendant cree ed and has SINCE maintained this
bridge. When the streets have been very wet AMI
muddy, and n the WIN season. when the me ting
snow ice has rendered passage over them
troubles me and difficult, then the evidence shows
tnat this bridge has been used, but tnen not to
such an extent as to justify the conc usiOn that has
Ilf uals
themselves or the persons using them. Even at those
periods the bridge does not appear to be used to such
an extent as To accommodate a number OF peop'e
equal to that which the stairs Obstruct by contract
Ing and reducing tn capacity Of the walk. During
the ordinary weather wnich prevails much smaller
proportion OF people make Of II, and for much Of
the time It's chei purpose seems TO be That OF aord
ing convenient accommodations for persons DESTROYS
OF observing the ements upon the streets.
The obstacles nterposed by the stairs themselves to
the free and unrestricted OF the sidewalks at all
times are much greater than the convenience and
facilities afforded TO persons using them by the
bridge. The latter therefore constitutes positive
obstruction to those who are entitled to the enjoy
meh and use or the sidewalks ut this part OF the
city, instead OF adding to OF promoting their conve-
nience. And such appears to be the manner in
which it is commonly regarded for pedestrians seem
TO prefer encounterlng the delay, difficulty and dan
ger Of crossing upon the surface or the streets them
selves TO the performance OF the labor required to
make combined ascent and descent OF thirty-sx
feet the purpose Of securing freedom from these
obstacles by crossing over the bridge. OF the two
the tourney over the bridge, In the Judgment Of
regarded as the most dlnlcult to be
made. For these reasons the bridge IL not
be pronounced an Improvement promoting The con-
venient use and enjoyment OF the Streets 1t not
property, but beyond that 1t renders 1t exceedingly
inconvenient to use 1t for some OF the ordinary pur
poses OF business, and deprives pedestrians OF thr
feet Of sidewalk that previous to its erection was
capable Of being freely used by them without
anordng or providing them any corresponding or
adequate advantage for the obstacles placed in their
attended those
FORE which, In a legal sense, constitute public as
well as private nuisance. But whether that be
held TO be its legal character Will depend entirely
upon whether 1t was properly and lawfully placed
there The land upon which Broadway, at this point,
has been constructed was shown upon the
trial to have been dedicated by those
under whom the plaintiff has derived his estate
for the uses and purposes OF pubic street. In this
respect 1t diners from many OF the streets of the city
where the fee Of tn land was In the public at large
ana by legislation was afterwards transferred to the
city, and also from those streets to which the city
acquired title in fee by proceedings taken for open
ing them. these cases the streets may be devoted
to many public purposes that would be entirely I'M
warrantable and uTJustitable where q simple dedi-
cation OF the land for the purposes OF street all
that had taken place. Hence In the former the
ton of railways the streets without the consent
OF and without compensation to the adjacent owners
OF property. The people W.. Kerr q New York, 1857
While In the latter neither the Legislature
the Common Council OF the city
authorize or sanction such an appropriation OF
the street without obtaining the cOnse q OF or max
ing compensation to such owners. civilians W..
The New York Central X. X. Co., 10 New York, 9I.)
In this case 1t was held that the Legislature had
would permit 1t TO authorize such OF them.
This authority also holds that the public acquire
only suc ~, an interest," IN Land by dsd
entlte them TO use II for that object And subec. to
that right, which is denomina;ed an easement, the
person or persons making the dedication and those
acquiring the property under them still retain the
fee OF the land. For this persons improperly
appropriating using the street for purposes not
lpQitlmafelV aDDertaiulu0 IL n
successfully prosecuted by the owner OF the fee, sub
ject to the easement and made to respond
render the property ITSELF as the particular case
may require. The right which the public acquire by
Of the dedication and the acceptance OF II Ii
that Of using the land simply as street and for
thing whatever beyond that Incidental to this and
as necessary part OF 1t the public possess the right
Of rendering the street as convenient, useful. COM
m0dous, safe and wholesome ~ IL can be by means
OF such improvements and regulations as experience
has discovered to be adapted to those ends 70 &C
complish those results 1t may be graded, curbed,
paved and severed and provided with the requisite
gas and water pipes to light and clean II; and the
tanned In or under II may be suitably and safely
roled by the public authorities having charge Of he
easement ior the benefit Oh the puDnc' but al
purpose, and that Is TO render the streets
M convenient, safe, useful and wholesome
they may be for those having occasion To use them
for the purpose Of passing over them. Many other
improvements In this respect may and undoubtedly
will be discovered and made to Increase the safety
but IL may very well be questioned whether expert
ments like the one In controversy Will be found To
have sufficient tendency In that direction to Justify
a repetition OF II. Beyond this right OF improving
and regulating the manner In which the streets may
be used, where the public have acquired ony the
easement secured by the dedication the public have
no right to make OF the land over which the
streets may be lawfully maintained and preserved.
IL was claimed upon the trial that the provisions In
the early charters conferred upon this city
would authorize a more unrestricted use than
that OF the land devoted to the purposes
OF street. But even II these statutes were
themselves capable OF being construed, which
certainly would admit OF very great doubt indeed
such construction could not be sanctioned at the
time when this bridge erected, for the consttu
ton OF this state mad long before that interv ened
with Its potent njunctons tnat no person should be
del rived Of his property without due process law
and that private property should only be taken Tor
public purposes by properly and justly compensat-
ing the owner for It, Constitution OF 1922 article
sections L. Z; X. S. nfth edition, a. 45) And these
provisions have been prominently placed in the con-
stitutions formed IN this State since that time.
The interest which the owners OF the fee had the
land dedicated TO the use Of the street property