The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-07-20

ven settled rae q con traction, eytended the line
York Central Ruiifo9d Company - New York ~.
rerrne "a. same 90 New ihrS, 1901 The pla;ntiN
therefore - legally entitled to complain OF lhis
structure u Il he's imposed new harden or servi-
tude upon land the street beyond that devoted
90 The use OF the public, which In substance was one
@; passage merely. This bridge IL a structure per-
manenty erected over the streets approprating for
support and the avenues to II thirteen feet IN the
aggregate Of that part OF The street which had
been devoted to the and convenience
of pedestrians Il was not done for the
purpose Of improving the easement upon and
over the land itself which the public were and are
entitled to enjoy: and 1t has no tendency Whatever
Ia produce any such improvement, but for the pnr-
pose OF creating new and distinct servitude above
the streets and above the land upon which the pub
l'c easement was created. The fact that portion
OF the street has been exclusively devoted TO the
support OF this structure is sufficient to show that 1t
can ne no development or improvements or the pre-
existing easement for that actually deprves the
public OF the use Of much OF the easement Itself
as the bridge requires for its own support II the
appropriation OF portion OF the street or sidewalks
can be justified for this purpose it may also be for
the support OF any other device that can be made
the other side OF a blockaded or crowded
street. If the object In view is sufficient to justify
any manner that either ingenuity y' or + fancy may
suggest: And If bridge Is found to fail,
In fulfilling the expectation In this respect OF those
who designed and erected 1t, hosting apparatus
with cranes and engines FOR It's use may be subsi-
tuted in its place. And this may be done not only
where the streets liable to become bockaded and
dangerous but whenever that condition NAV be
reasonably apprehended II this may be done,
nothing would appear to be in the way OF a raised
walk not only across but along the streets them
selves. The power over the streets that will Thor
i've and sanction one will permit the existence o. the
others. II IL could be sustained IL Is capable OF being
used In such manner as not only TO seriously I'M
pede and impair the public utility Of streets ~
avenues for travel but beyond that 1t would lie IN
danger of rendering them not only annoy ny but
useless to those who should endeavOr to carry on
business upon them. Within the well settled
principles OF law appncaple 10 me govern
Improvement 4
no such erection as the complained of can con-
stltute proper exercise OF the power over them
tnat has been contded To the public authorities. 1t
Is SO entirely unadapted to the Improvement en-
loynent OF the street. as to be incapable OF promoting
the utility or the easement which the public have in
IT, IN any respect whatever. On the contrary 1t is
permanent obstruction, In the way OF existence and
ENJOYMENT OF the easement, and to that extent de-
prves the pubic oil the use OF that which has been
dedicated and designed for their cony enience and
accommodation. AZ such it is pubic nuisance
which may be and should be abated and removed
People vs.. CUNNINGHAM, L DEMO, 524. People vs..
Vanderbilt, % New York. 296.) And the structure
has sGs whcn for its
nave maintained open and unobstructed, sub
ject only to the right OF the public to pass
IL for the Improvement and more perfect enjoyment
OF tnat right and special injury has been occasioned
TO MN IN consequence OF It he has made out and
| and removal. He cannot however, recover in this
action the damages he has sustained by reason OF
such injury because he did not present his claim for
them to the Comptroller for adjustment as he was
required to do by the statute before he commenced
the action laws OF $780, page GAS section ~ II the
action had been for their recovery alone, 1t would
have been plainly within the language TINS statute
The fact that further relief OF equitable nature
| has been also demanded cannot have the effect O
| excluding from the operation OF the statute tina
| which would otherwise have been plainly within
| II. The plaintiff must have Judgment directing the
| removal or abatement OF this bridge as nuisance
within ninety days after service upon the proper
officer OF the defendant OF certified copy OF tn,
| judgment, without prejudice to the plaintiffs rgh
to maintain action at law for the recovery OF the
| damages sustained by him. As both parties have
succeeded in part neither Is entitled to
as against the other.