Morning journal and courier., 1882-01-28
satusdaY Morning, Jan. 2s, 1882.
AN IMPORTANT DECISION.

The New York Court Of Appeals has de- ivered an important opinion bearing on the vexed question of claims brought by prop erty- y-holders for damages done to their build ings through the building of the elevated railroads. The case was that of the trustees of Columbia College against Thomas Thatch- CT. The plaintiffs begun some time ago an action in the Superior Court to enforce condition in one of their leases to Thatcher that the premises leased should not be used for business purposes. Thatcher set up that the course of events had made the condition inequitable because the elevated railroad was constructed near the premises together with a station. The Superior Court enforced the condition, and from that decision Thatcher appealed to the Court of Appeals, where his case was argued by ex, Judge Dittenhoefer. The Court of Appeals sustained the appeal and reversed the Superior Court in the mat ter, and the full opinion has been made pub lie.
 Justice Danforth, who delivered the opin- ion, said in the course of it that the plain tiffs had established by their complaint and proof clear legal cause of action, but he found ground for equitable interference in the changed conditions caused by the elevated railroad. The opinion reads on this point as follows Ut is obvious, without further de. tail, that the construction of this road and it's management have rendered privacy and'quiet in the adjacent buildings impossible, and so affected the premises of the defendant and all those originally owned by him. who with the plaintiff entered into the covenant that neither their better improvement nor per manent value can be promoted by enforcing its observance. Now, are the causes of this depreciation transient? The platform of the railroad station, which renders inspection of the interior of the houses easy to all obssrv- CTS, the stairs, which render the road acces- slble, must remain so long as the road is operated, and the noise ard smoke are now at least an apparent necessity, consequent upon it's operation. It is true, the covenant Is without exception or limitation, but I think this contingency which has happened was not within the contemplation of the parties. The road was authorized by the Legislature and, by reason of it. there has been imposed upon the property condition of things which illustrates the scheme devised by the parties and deprives the property of the benefit which might otherwise accrue from it's observance. This new condition has al- ready affected in various ways and degrees the uses of property in it's neighborhood and property values. It has made the defend ants property unsuitable for the use to ioI0 %l,aa appropriated, and if in face of it's enactment and the contingencies flowing from it the covenant can stand anywhere it surely can- not in court of equity" Judge Danforth also says that submission to the changed con- dition is necessary ''because it was author ized by the Legislature, and so the defend ant is made incapable of carrying out, if he should desire it, the wishes of those by whose agreement he would otherwise be bound. There is, l think, no merit in the respond ent's suggestion that the change in the char acter of the neighborhood is insufficient, so long as it does not extend to all the property affected by the agreement. If this assump- tion is well founded, if the influence of the road is felt only by the portion of the land owned by the defendant, it is still apparent that the original design of the parties has been broken up by acts for which neither the defendant nor his grantors are responsible, that the object of the covenant has been, so far as the defendant is concerned, defeated, and that to enforce it would work oppression and not equity"
 The bearing of this decision is obvious It is regarded by some as excluding questions of damage to private property by the con- struction of the elevated roads and as indi- eating that the Court of Appeals sustains the necessary inconvenience of those who suffer for the general good by reason of such con- struction.