New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1890-03-08
A BARREN VICTORY.
SEQUENCES OF THE NEWMAN DECISION
NOT UNrAvoRABLE TO PROPERTY OWNERS, BUT
NAY GIVE THE ELEVATED ROADS SOME
TRoUBLE-CoNFLICT BETWEEN THE
TWO DIVISIONS OF THE
COURT OF APPEALS


The full text of the opinion OF the Second Division
Of the Court Of Appeals in the of Newman against
the elevated railroad companies shows that the officers
and counsel of the companies unduly and prema
turcy elatcd their first advces from Albany as to
tho effect Of the decision. AS they interpreted the
dispatches OF Tuesday the Court had held that the
provision Of the General Railroad Act and of the
Rapid Transit Act requiring that commissioners OF
appraisal Of compensation to property should
not make any allowance deduction on account OF
any real or supposed benefits which the party In
Interest may derive from the construction OF the pro
posed railway did not apply 70 the equity or common
law actions brought In the courts against the elevated
railroads. The officers accordingly. expressed them
selves highly delighted. because. they argued such
. decision meant that property owners IN the upper
part Of the city, where real estate has generally been
enhanced In value by the introduction OF rapid transit
could not recover any damages.
The actual opinion OF the Court in the Newman case
does not sustain such proposition. nut directly ue
converse. II holds positively that these provisions
Of the railroad acts must control the admeasNemeht
of damages In the suits of the courts. whatever Is
takens the opinion says "must be paid for by the rail
road company its full market value. and from such
value no deduction be made, although the re
mander OF the landowners property may be largely
enhanced in value result OF the operation OF tie
railroad. The increase Of value resulting from the
growth of public improvements the construction Of
railroads and improved of transit acces to the
public benefit generally and the general appreciation
Of property consequent upon such improvements be
longs the property and the railroad company
is not entitled TO the consideration Of that element in
the ascertainment Of the compensation il must pay
to the AUDITING proprietor"
These are exactly the propositions against which the
elevated railroads have cOntended. and the published
statements OF the officers indicated that they supposed
this decision had overthrow They the principles
which the courts below have uniformly sustained the
property In maintaining. That is 10 say. where
corporations like the elevated railroads receive the
extraordinary privilege of using the public streets all
property owners In the city have. In consideration Of
these public privileges the right TO the benefit that
therefrom real estate generally But the
propertowner along the line of the railroad in Harlem
has much the right 10 this benefit as his neghbor
IN One hundred and twenty ffh-st IT, however, the
damages which he suffers from the railroad in the
street in front Of his premises TO be Offset
against this general benefit. the result would
i'll effect be to deprive him OF the advantages from
the public improvement to which be in common with
the other taxpayers of the city is entitled That
this would neither be justice good law the lower
have steadily held and the court of last resort
has now affirmed against the persistent contention
Of the railroad companies.
The question of evidence upon which the decision
in the Newman turned simply this: The
defendants offered testimony which indicated that
although the upper parts Of the building in question
lower part had increased in rental vaue and the
Court of Appeals held that the trial judge erred in
not allowing the jury TO pass upon the question
whether this increase in rental of the lower part was
due to the elevated railroad. In other words. the
Court of Appeals says that the appraisal Of damages
must be made upon all the facts affecting rental
and the conclusion reached from the net result 20
far as this relates to evidence OF the effect Of the
elevated railroad business and trade. the same
rule already been laid down by the General Term
of the Common Pleas in a recent opinion written by
Chief Judge Larremorc.
In other respects the reasoning Of Judge Brown
in the Newman opinion is new. But the decision
will not as the railroad officers and counsel appeared
to suppose when they first learned of 1t. njuHoush
affect the claims Of property owners, either uptown o.
downtown, because although this decision VIII open
wfde the for all such testimony. 1T IS only in
few extraordinary cases, As for instance some shop
property in sixthave that such substaut al lenet'
TO the particular piece of real estate, independent OF
general benefit. be shown. As matter of iac'
such testimony has been admitted without 0oJecuoh
from the plaintiff in most OF the cases mat nave
been tried. including those In Harlem, but the DC
PENDANTS were unable 10 show such BENEFITS ASIDE
therefore. from the generally pernicous effects OF
unsettlng what were supposed to be well de ermned
rules OF evidence and 10 change slightly in re"
instances the methods Of trying the cases this decision
has not been prejudicial to the claims of property
owners against the elevated railroad companies.
But its serious consequences ulc OOhiP'''V'
themselves may have reason to apprehend Instead
~ ,esseninc their liability this decision apparently
enlarccs IT, Exactly what was feared when the
Second Division of the Court Of Appeals was creae'
has happened- has put itself into irTeconcllapic con
6tct with the First Division upon the fundamental
principles Of law controlling this series OF elevated
railroad litigation which is perhaps the most I'M
r,ortant both from the magnitude and the lhtflcaS
~ the interests involved. that the courts have ever
had occasion 10 adjudicate upon. No two lines o
reasoning could be Numerically opposed 10 eao
other than that of the original Court oil Appeals /"
the story and subsequent elevated railroad cases ana
that ,of the Second Division in the Newman case
Justlce Lawrence in trying one OF these equity case
=, Thnrsoav remarked that If he understood The
ruIlpe In the Newman case, the second DVlSoh MAJ
there substantially overrued all ta' The fs' D'lsio
had previously held in these cases
The full text of the decision more than sus'Ahs
the Judges keen observation. The Court Of Appeals
Mold IN the story case and has confirmed Its rdlng ~
long series Of decisions, that certain easements oil
ucht Air and access which the owner OF property
abutt.ng OH the street had as appnrtenant To hi'
premises had been "appMpriated' by the eicValcd
railroad company that tncsc easements were " prop
eryr and nat until the company PAID the owner for
the prone y they had thu, apr, priatcd ami aAcn
they weiv wrong doors ana una "l.iy operating ihci
raiir, adj. ihe gust n mr. IRE 81 uai'a-o, Wa
Of ngAt, air AID access. Ins wa the theory upon
when all these cases have since projected III inc
courts Of this city and tie Court u Appeals, 1t Is
also the theory upon when tine elevated railroad com
panies have themselves cvoned the 1ght OF eminent
domain IN lnstit.tn- their condemnau proceedings.
In their petitions they nave prayed iJr the dFlO".
mept OF Commissioner to appai,c the value ~ thee
sesrments Of lignt, air ana access Wn.cn they ha1
alre DIV "aIpr I. lated Up,n settlements and pay
ment of judgments they have received leases "hlon
substantially conveyed u them s"cn easements, ana
there has not been one side or the other any dn-
fcrcnt cOntcn ton than mat me Vaue OF thcsc east
ments Yas the real measure Of damage
Iut now comes the second DIVISION of the Court OF
Appeals in the Newman case. and lVlds that the ap'
D,oDriaton # the IntnS Of leht, air and access
I, not the main and prime pal basis VI the action.
that the loss Of these easements by the property
owner is really small part Of his daim-c, tna shel
have not held in the story case, been " taken
or apprOpiatcd7 by the rdllr .ad bat Only " IN
parcds or Destroyed" and that what the plaintln
really rec for is what Judge Grown terms the
q cOnseuucntial damages Those easements he
s.y, cannot be severed from the land abutting