New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-10-18

street Is about fifteen feet above The roadway 49,,
finds, VIII be to some extent 10 obscure
the light of the abutfing promises opposite
TO It, and will 70 some ext impair the general nsefnl
ness of the plaintiffs premises and depreclate thc
yaue Can the street b. lawfully approprated ID sue
structure without inas sing compensation 10 the plaintiff
for his easement therein This question or power
IL the Legislature mas power 70 authorize suea s.r
lated BY the Courts n road may be authorized "a
be constructed upon two series OF iron columns place.
I'm the streets another may be authorized 70 DC support
ell upon brick columns or upon brick arches epann.
the street III 70 supcrsfructure may be autboHlel
which spans the entire carriageway at fifteen feet
above the bed OF the street, may be authorized
ing TO building thus excluding light and
air from the street and from the prop
ery abuttine thereon. Thus an open street would Dc
converted into covered way, and filed with columns
or DINER permanent structures to be practically I'M
passable for vehicles Tho city undertook anu agreei
with the plantdrs grauiOrs that Frontst when CON
structed by them, should forever thereafter continue
~ other STREETS Of the same city now are lawfully
ght TO be- This xes with deaniteness and precision
the character OF the street which tue parties 10 e ~
tract intended t. sScnre As the otnff ssseo VI 20
be- 1t to be open stroet-Onc Whlch wOniu iut-
nish light and air to The abGtHs Ppopens If The civ
"a 'J n bubble street forever is a cove
nSnt not p1 to build thereon, and brings this
directly within the principle OF the cases OF
agt. Miller. the Phe"X Insurance company az ne
town White AIT. Cowen d Bagg. lSupraI 1900 -, .bo
while the Legislature may regulate tne seS Gi ~
thereon which is sbyersive OF and repugnant
to the uses Of the street a. an open PnDS SlSi s
latuge is consistent or lncOnslsteuI WIN INC usoa
the street as street, must DO largely 3 uTo5I
OF fact depending upon the nature ana cnuIuole
OF the structure authorized. The Court DeiOW i9a t
that the series OF iron columns aordge the street aIu @
sperstrucure erected thereon Vbscures the 2hl 10 we
adjoining promises and depreolates the value Oh ny
plaintiffs property. The extent to wmeh me pi'
can any part of IT, he appropriated to the puo1 use
without compenst tion We nk SUCH strnctaIe eio9T
o,dt
s easement in the street as secured oy the grant Vi
the city,
THE PLAINTIFFS EASEMENT ENCRoAcIED UPON.
Whatever view be taken OF the facts OF this branch Oh
the case The same result b. reached II the title TO
the bed of the street passed the grantees OF the city
fbcn the public acquired easement IN the street
resulting from IT'S dedication to public USE the easement
resting upon the express covenant OF the owners OF the
fee that the street. shall DO kept as pubic street JOE
ever The fee remained in the owner making the
dedication and having sold lots aDut-
ng upon tho street inc npp ppchasfe r,rns
of way over ne space called street 10 the Iu extent OF
its dimensions, Whether the bed OF the street was OK
cepIed from the grant of the city, and the
title thereof never rested in tho grantees or whether thc
bed OF the included In the grant and paesed 70
such grantees ia OF little Importance as IN etner te
the plaintiff has private easement or right OF way IN
the street coupled with express covenant that the en-
tire space marked on inc map as fI"h'St Shi
kept as public street. =. A.. ,.-,,
The defendants railroad. authorized by the Legls-
lature, directly cncrOaChes upon tue plantlrs ease
ment aud apprOpriaes his property 10 the uses aud
purposes or the corporation TINS constitutes taking
of property public use II follows tnat sch TAXING
cannot he gntgoriLed except condition that the de-
fendant makes mpsnsation to pann the prop
erty thus taken Tue conc usOn here reached Is not III
conflict with the dc ermpatOn Of this court IN the case
OF the people agt. Kerr "a " " sSl hennYer aSt inc
Forty-see0nd Street Railroad son Y, 2O6l and other
similar cases We agree with Church, Cmef Judge, III
the case last cited, that IL h not quite clear as 10
what was intended to be decided by the Court in the
people agt Kerr relative to the rights Of abuttng own
ers." In thar case all Of tho private parties were
abuttlng owners upon streets mat had
been opened under the act 1913 whereby tho city ac
aured the fees OF the street in trust, neSer'hees nat
same be appropriated and Kept open for or as part OF
nnbIc street avenue square place forever in like
"a the o.nGr Ohc streets IN u cy arc or ~
right Ought 10 be-" The only question which could
have been there and determined ar as the
abutting concerned was whether te use 10
witch tho street. was pTacd BY the act authorizing
the construction OF what are known horse street
railroads praJed the streets 10 use Inconsistent
wien Their ise as open pablo streets. Whether the
rights Of limiting ov nrrs IN streets invaded
ieuended upon the nature and extent or the interest
cnir Inv +be nublic in the lands embraced therein
n Is well settled that the state in exercise OF tine right
~ ,d ~er u"y c0iire sleh I'm Interest or estate as
ldSn iii Il NAY acquire the properly in fee sim
sixt6 Ayenue Raiiroid Company agt. Kerr az y. Y.
r. 1888 ami the compensation TO be made Is regulated
by the extent Of the Interest acquired Inc proceedings
y which LAID + acquired BY the exercise OF the right oi
urnt donna I'm amount a statutory conveyance Or
the same hc pablo on the corporation ana there II
NO distraction between slch convey and yOiun-
lar, conveyance made fur pubic Mnerc property
Is acquired for pubic by proceedings in inchua,
he statute which authorizes the acquisition
.oustitutes the contract between the citizen
and the public and when the interest mas once heen
lcaulred 1t cannot be changed enlarged without
TnFtner compensation ii Is only wnen tie title is
Irired fee simple absolute taat the property may bo
converted to otter public uscs; or, the particular use
,easnr il NAV be sold and conveyed. and converted TO
private uses Hayward against the mayor OF New-NOrk
3 Selden, SD BROOKLYN Park Comm ssl0ner5 against
Armstrong 45 n. y. X, 2JO.l
But the public acquire not the property Itself
but the mere III ht 20 IL particular purpose the
title Of The former owner is not eXtngished, but Is so
Iuaed that il only De enjoyed subject 10 the ease
ncn IN such tic tltle Oi the public - limited 10
he particular use, with tna powers and privileges
incident thereto such rs the Esht TO use the
s.ricting or maintaining The street. The former
stl retains his exclusive right in al mines,
luarrIes springs OF wafer timber aud earth, ana may
injoy the beneficial Ownership Of the fee for every
purpose nOt Incompatible with the puDhc uso Tor winch
he Land was taken, and may main trespass eject
ment OF waste JACKSON agt Hathaway Is Johnson
li7 and. the use ceasinS the tle feFcrts 10 the
ornler owner freed from the public easement.
THE RIGHT OF THE AUDITING OWNERS.
BY the act of 1913, the city acquired the fee in the
street. in trust, however for particular public use.
oncedng that this trust is for the benefit Of the abut
ing owner rs well for the public the only right which
ne mas in the the ght insist that the trust
~ faithfully executed so long the street is kept
open public street the admitting owner cannot com
Inc question presented in the OF the People agt
ZeJ was consistent with the continued OF tne
treets open public streets o. the city. Whether 1t
vas or not was a question OF fact dependent apOn the
iaure and character structure therein involved
'he found ana determined that 1t was not neon
scnt with The public uses OF public street, but was In
M oil such uses. And ia K"ilingeI agt the FOrysec
nd Street Railroad compan! 30, y. y r., FOG. this
Ourt limits the decision IN tie case or the people
ut Kerr 10 simple declaration that the
cgislative authority to construct railroad on Che sur
ace Of the street without change Of grade was L.
Ultimate exercise OF the power OF regulating the OF
,ublc streets for public uses" The question whether
he abuitng upon streets opened under the act
If 1913 had the right to prevent their being converted
q uss destructive of their existence public streets
not deemed by the Court 10 ne involved In that
This appears from the report of the case Davies j.,
lid not ait in the EOsciraus J or the Opiu
ON that the power Of the Legislature extended only
governing the mode OF passing upon the surface OF
traets anu Judges BalcOlm and Mcrwin COncurrng in
ne result stated that there might be private right
n the owners adjoining the street TO have free
ccess TO their premises, held under the original
proprietor OF the tract embracing the street. OF which
uc owner could be deprived by the sur