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

The suit of Rufus Story against the New-York
Elevated Railroad Company was brought in the
New-York Court VI Common Pleas aud was tried in
October. 1877, before Judge Robinson. Mr. Story
claimed 10 one-half of the bed of the street in
front Of the premises belonging to him at Nos. 2
and Front-st No proceedings were ever taken 70
condemn his interest in the street. lie sued the
company to recover damages for constructing aud
operating their elevated road in front of bis prem
ises. The defendants in their answer denied the
title of Mr. Story TO the bed of the street and denied
that he had sustained any injuries. They claimed
the right to run and operate their railroad through
the street without interference. Judge Robinson
gave judgment for the company. He found that
Mr. Story the owner of Nos. and Front-st;
that his title was derived from two city grants of
water lots gwen in 1773 and that the of Front
st. by the railroad company would cause " but
slight obstruction to light and air from the street,
would to some extent obscure the light Of tho
abutting premises; that the passing trains would
give to the light q Pickering character which
would be to some extent Objectionable
for business purposes" and to some extent would
Impair the general usefulness of the plaintiffs
premises" and would tend to the occasioning Of
Incidental damages TO the plaintiffs premises and
the depreciation of their value" The trial judge
also found that Mr. Story had no property or pro.
pretary right in the street nor any right or ease
ment to have the street kept free from the incGm-
brance of an elevated steam railroad until his in
terest should be taken under the exercise of the
right of eminent domain. Therefore Judge Robin
sou held that Mr. Story was not entitled TO an n-
junction 10 prevent the operation of the road.
Judges Van Bruht and Beach at General Term
affirmed this judgment. When the came be-
fore the Court OF Appeals in May, 1881, the six
judges who heard the argument stood three to three
for each party. Judge Tracy, afterward appointed
to this bench, held the deciding voice when tho
case came up again for reargument; John L. Par-
Story, and David Dudley Fsld for the
railroad company The point especially in
sisted upon for the plaintiff was that as
a mere abntting owner he had an absolute
right tO protect the street in front of him for ordn-
ary street uses. To deprive him of air and light,
ventilation and access, 1t was argued. was to take
from HIM his property, and no compensation hay-
ing been given to HIM. 1t Was IN violation OF tho
constitutional protection that private property
ns Dc and ef Ss bd
of hls property without due process Of law. When
1t was necessary to take the property of an indiyd-
nal or sto destroy or materially inlure 1t or its
appurenances III regard to Its present or future use
for the public go ID, the owner entitled to COM
pensaIon and would be protected by injunction
until such compensation was provided for. The
interest OF the abuttng owner, his right to light
and air and ventilation and access property
and it could only be taken from him by legal pro-
cess and for just compensation, and Injunction was
the proper remedy.
Nj. Field in reply contended that Mr. Story had
no title to the bed of the street, that he could not
complain that his right of way had been obstructed
aud that he had no cause of complaint by reason
Of the obstruction of light and air
or right of privacy. The railroad COM
pany were authorized by the Legislature 10
struct and work the road and the designs of the
Legislature had been complied with. Even if in
juTlously affecting property was to be deemed
taking of it, Mr.. Story property had not been in-
uuously affected by the construction and operation
of the deten ianTs railway. Property could no! be
said to have been njuriously affected unless it had
been diminished in value, and there was no proof
that Mr. StoIy's property had been diminished in
value The street by the original covenants was 10
be kept for passage in such manner as - the other
streets of the said city or lawfully ought 10
be-" That left the OF the street a public way
under the control of the law-makBg power. And
who but the Legislature, Mr.. Field inquired, was
authorized TO determine how the streets OF the ely
lawfully ought to bei Who except the Legislature
could say wnat was their just public usei