New-York tribune., 1880-04-06

defendant is Incorporated nor the requirements and
conditions imposed upon the defendant by tue Board OF
Commissioners created BY the Legislature confer or at
tempt confer any right power to introduce into the
plaintiffs premlses for instance, the stencil or noxious
gas OF which other grievances the plaintiff COM
plains. and which the demurrer admits Will greatly
diminish the paintfrs enioYment OF his dwelling house
The question is directly raised whether this is lawful
act on the part OF the defendant COnoedng that the
defendant has full power AMI right to enter upoa the
public to construct and operate an elevated rail-
road there from what does 1t derive the power
thus 10 diminish the planns enjoyment OF ms mouse
TIE OF the Legislature authorizes the defendant 70
operate road ty atmospheric power" II neither d.
recy by implication authorizes the infection Of this
tn comp aims and which the demurrer admits.
Judge Curtis then reviewed at length the case OF Hay
against the COhOes Company. decided by the Court
OF Appeals and reported in q New-York Reports, 1o9
Afcrward he saws:
The law as 1t was administered In that case, seems
applicable to the present. Tho defendant IN TINS
constructed the canal pursuant 70 the authority
conferred by the Legislature as was It's right out a,s
turbcd che rightfu possession and enjoyment OK tue
plaintiff In the present case railroad is substituted
for canal aud in place OF fragments OF rocks cast upon
the plaintiffs premises, stencil gas dsagreeabe to
It Is difficult to see anv distinction between cast
ing stone uDon plaintiffs premises or filling his
good onuse OF action Ia concerned The gas Is In ITSELF
material substance captnle OF more or less eohu%s %
can be more penetrating ana p0lung TO IN abodr or
tiiity Of cannot change the principle OF law by
which every individual Is entitled to the undi5tnped
possession aud enjoyment Of his own property.
qualify that tends % increase ana proong the injury
No law gives urban nrighbOr the right thus 10 in
wade the adjoining dwelling OF another, and deprive
him OF tn" eHOymrnts OF home and health. Tho Legs
arre has not conferred, attempted 20 confer euch
power upon the defendant does the eXctcse OF It
appear 10 be necessary or incident TO tho operation OF
the dtfcndant's road.
Whether the defendant has right to occupy
the street from curb TO curb with struc
lures raised for It's use, let them for
questions before But question il whether any or
the Of the defendant charged by the plntlh In the
complaint injurious to is property aud admitted by
the demurrer unwaiTanfcl by law. The POLLUTION OF
the AR In the drenhlnt's dwelling by GOisOme gases, IN
the consideration above given 10 II, comes WITHIN tho
pale OF the decision Hay against the Cohoes Company
ana Is n violation OF the plantHS right or
domain and not included In Justified by
the legislative grants to the defendant, necrssa
riy incident to it, enjoyment OF these grams II such
broad construction given tO them ds Is claimed bv
the defendant then the defendant vested with rights
anl powers inconsistent with the prOtectu and enjoy
the Just and reasonable Eierpro of the of
the Legislature that no adjacent owner OF property
should be deprived or the enjoyment OF II hy act OF
the defendant such the have considered. gra
tutOus unnecessary and III respect Incident to the
proper by defendants OF tho grants from the LeSs
lature.
To hold that the plaintiff Is entitled 10 protection
conversation by thr law for the injury the defend
ant ntiCs upon him. and that he Is utterly without
redress Ia Inconsistent with the views am constrained
10 entertain to what constitutes the due admDisra
tiOD OF instlcr.
We think that the complaint states facts sufficient TO
constitute cause OF action against the defendant, ana
tnat the Judgment appealed from should be reversed