New-York tribune., 1880-04-06
GROUNDS OF THE DECISION.

brOurnt in the name o. SalVatOIc NHro u
whether the Metropolitan Elevated Railway Company
sbould nav for the damages TO the real estate along
which It's road runs Tue plaintiff In the SUIT owned
house in FIfythird-st, which lie claimed was WOrin'
before the elevated road built III front OF S1OOOO
but nc asserted that by the operation OF the roa1 ha
greatly decreased in value The action was brought on
the equity side of the Court TO restrain the committing
OF n and for the redress of wrongs ana INJURIES
The appeal was taken from Judgment OF the Specia
Term on the report of sustaining demurrer TO
the complaint the ground that 1t dd not sct ioith
facts constituting cause Of action. When the appeal
was argued before ChefJudge Curtis and Judge Sper
al General Term In January last. the case eXcted
great deal OF interest the courtroom Deing throhgeu
for two DAYS. Roger A. Pryor and Benjamin T. Butler
presented the case for the plaintiff, while exJudGe John
K Porter and Grosvcnor p Lowrey represented the
elevated road.
The contentious on the part Of the plaintiff and appel
lant werc first that the owner and occupant Oh lo
of land and dwenghouse abuttlne on the street hau
right the use enjoyment Of such lot and dwehg
house free from the disturbance and invasion OF such
right Chis was admitted by the demurrcr), ana that
such disturbance ana invasion constituted taxing G"
properly in the Of the constitutions hioi"o"
second independent OF such constitutional guarah'ee'
the injury inflicted NY tho defendant upon the pah'ih
lot and dwelinghonsc, sc out in the complaint "u
admitted by the demurrer, cOnstituteu wrong cnt'
Ting him to relief ny Injunction"
II WIS claimed by the defendant that the propositions
above stated but. the contrary had Deen
corofully considered and determined by the Court ana
the Court OF Common Pleas and as the defendant oe
lieved practically determined by the Court OF Appeals
II was admitted ana the following CONCESSIONS WcIc
made in advance by tine plaintiffs counsel: ~ That
he fec f the streets for the purpose named In the ACT
of 1913 was III the City OF NrwYork. t2 That the a-
reant had 10 easement other interest In the so OF
the street which the respondent invaded. t3l Iha'
there was constitutional law authorizing Inc defend
ant 10 buI an elevated railroad upon the street III 'front.'
OF appellans dwelling 90 That under the law there
were 10 r. s,ric'ions to he manner OF building or
operating the railruad. ana that the damages ich
might be recovered must be for Injuries directly or I'M
mrdatey caused by the construction or operation Oi
the road In the manner which 1t was OF may be here
after constructed operated and not remotely cohse-
qucntial.
Bo:h the Judses write opinicn'. but they concur 10
their coucn~ons rcvc:sn, the Judgment Judge sper'
VINO writes the leacing opnion rays that TIC Conr has
examined the dec sions n the Court OF Apiea,s ana
hers To watch had been rccrrc bui ~ Dnc 81 thcin
A. Court hclcv,d. had ihc points rTcS NJ ~ 'h'
painiif as appellant ieen aCirdcntei ihr JudS' 'n.5
examines at length and with care nj previous snH
thai H. considers Lave b'aIhS u.'Jh this cAsi' lc
II - urged ihn no private property or interest Is
taken withn tee meaning 0f the Constitution Wlrlr
nov ,,sn /. ipnscd mon the lands in such streets thy
which meant the operation ol ~ lFoid 10y steam
iIr bas ~" snecial ,rrreuey in iha ci.c now hcrnIc
f r. IRE no restrictions upon the of building
ior ~ to the mannrr OF operating the road-ihai
manner; that the defendent has the fight 20
isc the r1ad although II De- new mod of using The
pibllc streets for tie reason that II - one mode OF
using II aud finally that the law l. constitutional a.
provides under Limitations not to ilute IFiNi' pi"
cry without compensation, mud thai II no such pr'vi
slon M idc II wond DC simply void when The cases
of tue suracr steam Tarnhdr were htrt drh'c III ln
courts. the u-e imp0se upon the lands wa0 NJ ~" hi
puor trrcto a. itt!r known or anticipated a. thr l,
eat elevated road. The c""cH ION it,c"'H ~ -. ~
rurf co iailr0nd cases was. that merely operating ire
roads bt steam On the surface couid ho nc H' Wca .
nuisance n0t "'chu-r u wa. h'" use "I tI' lut' '
that the law authorized The Use "a u mode OF travel
which did not rnclnIrh upOn priynic rights
IL Is claiin"d when The injury 10 individual rights ~
property great aud linny peiceptblr mat II
TIE harden among ne general lbllr rainier ina" rHN,
to be- bnruc solely by i' se upon whom u lals Ana
of satcsInIusnip" ~ De- specially c"u-'lcrrd when
ihr occiinu arc - tho PROVISIONS II law cannot
tie sat lcs aud the lava c61cie by The l"g-linie,
and intended 10 protect she ci IN tlr enjoyment -
that Ac courts alone can dsI Or ui the question
when and h'w private ptoprIiy shall be ia'rn Tor
pu5rn upon iudiNniulS by rSirluiiTe Ha'tn"its mas
Gf' 2 the ''% rrrdy %IS'Sr nns " Only " bc ' I"nnd VI %
the ls~-'aak'"E power OF the H'vcr9m.nt- ., To
by an appeal to lhr liked and prrmanut principles =
Law aad .quy. II has b'rn well said bJ thr VI ~
lrainci irf Justice 81 our highest Court: We shOnd
al rcgaId departure by thr courts IRON rules oi law
wisely established or tnr protection of ALL II meet ilie
equities of mricunr case or rlHss o. cases ~ lar
gfratcr cyll Than tia sOight to be rem, ded."
The term "prupcrfy" Is of The largest import, AMI
embraces every M de IN which II may be applied To
Iubllc nsc and cXttnis 10 every sp OF valuable
right and interest ald ncindcs ra! and personal pIo
inrit IT, The courts viii Interfere ny injunction 10 secure
To party tile bare prNIirKr con'rnel b' stain'r'
II i elementary Aw inAi Ihr co;ruptin. ihr nlr Oi
mnns dwelling ita 10 some smells - Nuisance, for
llsht ana AR are , w." hn'ici fnv r. !" every
dwell ing Lbn hlA'nru ii"n al idhi u - 10" hrcT
sary that III" sni" should be- even unwnOc.Omr; IL i
enough u IL T.ndr,, 'nc .loyi III 81 u e 1hu pr P,rt
uLcOmipr'alr III WORT we thlhh u may p"i,H'h titt
tEese IL an lnhc!ep ab dilute gt OF property I'm every
man. which consists Ia tEe nee uS, enjoyment and dis
ton, save oily hy the Laws a. The land and 80 great
o, t' lor,% the least yication Of IT, Anansh tIer
are many individual possessions IN lie dcomn tcd IN
~ ak cf mans dwelling gbousr. the abode OF BIZ social
and duin sC He, ihr word prlyac seem. To hayr bru
used by The early writer's III another AMI n0ge hlGnl'
Tie ir.t Of controversy naked p,r.al
rlshi ca mel by the pain'in-io have and enjoy his
land and ceiling hol-e free from The INVASION arising
from inc con-tru ting aud opcrng an elevated steam
railroad producing noises, stencil Ohsiructicn ~ Sht
su, nn an :c,r" 1cirrn,, ih rrsi,irr l,I mi
greatly reducing the market value thereof. II tIis
right CXais ana has been uvair' tbs proper nnd sPc
oihr remedy which snail prevent The continuing Invasion
Il by iniurction, aud IL within ihe ordinary scope of
equity Jurisdiction. II the planH Is d,imbr,l ~ the
Technically q private nuisance.
The compliant. after alleging that II the road be per
itrd to be- hl and operated along the street aud In
front uf tlr planuh-s nOH.c and aud lac viii be- subject
10 continuing nuisance and 10 wrongs and Injuries
for winch damage, will ufurd Inn appropriate ror
adequate rrrf. continues: "Ad he is informed nnu tc
cyc- defendant l. lrs0veut and unable 10 pay any
Judgment for damages that might he recovered aeanst
II. and las motggtd us entire property for sum Tar
beyond It's value. and that any execution against IL
would be iGc ard rutless." Where Insolvency or want
aninty answer for injury bo done the party
mLlaned Of be avprred anu proven. the Court Will
grant Injunction. The truth OF tine above allegations
Is admitted 10y The demurrer.
II IL claimed that the Legislature has lcPazed this
road. aud thereto. IL not public Lulsauce, NJ IL
would be II the Legislature had not legal,Zad II. The
statutes cffcctualy protect tho company II II complies
with the conditions from an indictment ns agniIsl any
interference with its work public nuisance on ac-
count Of the fee In the streets; but not against claims
for private damages arising from injuries ndHcent
owners The company may occupy the streets. but II
must occupy them at It's peril In IA not directly or
immediately to njurc private rights. Ia all the surface
railroad we have examined while thr courts have
held that these roads do not operate nuisance they
have clearly and, think unanimously decided that
the facts after investigation DID authorize Judicial
deduction that nuisa ice had been proven.