The sun. [volume] (New York [N.Y.]) 1833-1916, 1891-10-13
AGAINST THE ELEVATED.
CHIEF JUsT ,lE RUGEns OPINION IN
THE a.. nay DIMfGE CASE.
ri. Action OF the Property Owner Not
Haired ny the statute or Limitations, He
says-Other Pleas OF tho Elevated Pro.
,ouuced by Him Equally Gnfounded.

barred ny the statute or Limitations, He
says-Other Pleas OF tho Elevated Pro.
.ouuced by Him Equally Cnfounded.
ALBANY. Oct 12.-Tho opinion Of Chief Jus
tee Ruger In the four cases decided by tho
Court of Appeals on Tuesday last against the
Manhattan Elevated Railway Company and
another Of New York city. is Of much interest
I, property owners along the line Of the COM
rnny's system of roads. Tho opinion was
written on the case OF James Galway. which
contains tho same questions at issue us the
other three cnses, and says:
This il ono of the usual actions in equity to
restrain the defendants from further main
tanning and operating an elevated street rail-
road on sixth avenue in the city OF New York
adjacent to the plaintiffs property. thereby
unlawfully interfering with It.
~Tho defendants requested tho trial court
to flnl the following propositions OF law: First.
that this action is barred by tho statute Of linn
i.ations and second, that plaintiffs alleged
right Of action Is barred by his ac1uiesccnce
in'snid railroad and its operation and his use
thereof as passenger. and that he is estopped
from maintaining the action. Tho court TO.
fused to find as requested. and 1t is conceded
by ,dcfendants that the exceptions to such
ref al rnisc the only questions to he consd-
erc on this appeal.
IL il claimed that tho ten years statute Of
limitations commenced TO run against an
equity action from the time the plaintiff was
first entitled to commence such action, md
that period having elapsed that the plaintiff
was barred from maintaining such action by
section 3SS of the Code Of Civil Procedure.
This section Is the general statute adopted IN
tho code rs a precautionary measure TO cover
cases inadvertently omitted or otherwise I'M
provided for.
1--WE think 1t would no impossible to sustain
thi, appeal without unsettlinc the established
law ot the State. 1t Is In effect. IN effort to
exempt actions in equity from the operation OF
the wci-settled principle that trcspasscs upon
real property affected by all unlawful structure
or nuisance are continuous in their nature,
aud give successive causes Of action from time
TO timo MS tho injuries nrc pcrpetrnted. me
principles estahished in this State By, nnmeer-
GUS reported cases; They arr found IN the the
two rss ss'ass c t"s y I ans
nance Of nussnee or other tr,I ma'a% ";
tu r. sr H h srras ha satnts
agu,nht the successive trcsIasseS. ana the
further priIripio that \" lapse OF TINE OR IN
Tug the erection and maintenance Of such
structure. unless II has continued Tor the
length Of time to tneft ov e hos6 OF
jurcd. is sufficient t., defeat the right OF tho
owner to damages. IT may be that there is no
% to Of
Inns boon directly decided in this state: but the
cases. aud 1t affords n strong argument against
the arpelantss theory tnat n, tn" numerous
m s h has .He
takcn by counsel for the trespasser In any case
in this court. 1t is not claimed here that the
rasem ents impaired or that any other party has
acquired title thereto: but 1t is argued that he
power pow e BY reason 81 lis aeseet
demand it within ten years from the time when
u cause Of action accrued. Thus. although the
owner subjected to irreparabIe injury. and his
legal remedy may be either Inadequate or re-
ed and numerous actions at law, It is contend
ed that the jurisdiction OF an equity court
pube the It's sae
This claim. We think, Is altogether untenable.
for an invasion, Of their rights in the public
streets Is predicted upon the constitutional
ber sshoa ne due
use without lust compensation: and It neces-
be injured in respect thereto by the unlawful
lection Of the fundamental law. Without re-
gard to the lapse oftime that may occur before
tSs sRe 81 %Ts bss
right or before adverse possession has barred
s % q seaon law and equity.
in such cases arises put q the trsspassss CON
property upon WHICH the Injuries arc iaiiieted:
and 1t lie Obvious that no cause OF action can be
tSsFs s IL s9
remedy. The existence Of q legal cause OF
action is not only a prerequisite to ths,main-
foundation Of the jarisdiction which equity
courts possess IN respect to the subject mat
and e this
tention Of the appellants that they should no
bar @ % 80 st nsst hat
tutes. a. defence to the action. There is no
foundation In the case for q claim that the
SH ~ to- an
BY the appellant. It is obvious TINT such con.
duct has never led the deiendants into a line Of
pursued. or encouraged them to expend money
or make improvements by reason OF their re-
a2@ ria heS sfHn or
ty a. plaintiff and other AUDITING owners. and
item From the G ipceptiaSn d the ENTERPRISE to
the defendants had no right 70 hui li their road
IN the streets Of Now York without compensat-
tng the abutting owners for the damages In
ants have continued the prosecution oi their
purpose regardless OF their legal inability and |
In the face Of strenuous opposition; with an
81 such owners. The judicial annals Of the |
State are Oiled with tho history Of the litiga:
tho elevated railroad companies to appropriate
tn. benefit Of such railroads, without commpen-
claim that snch companies have been induced. |
In any respect to prosecute their enter
|
sssconcGG o, the oTTncrSS lB9oardNmapy VS.
Ihr building and completion Of their , road
and before the. numerous parties concerned
could have heen fully awake to tho real conse-
Incnocs II the enterprise. So far MS tho per-
,nnnrnt structure Is concerned. their expendi;
tnrn4 We're all incurred within six months and
y, u. parties were making earnest Efforts
destitute of proofs showing THO existence Of
my elements Of estoppel. and the defendants
nnon the mere inaction Of the plaintiff to pros.
ccute his claim. This claim comes with little
grace from parties who havo for q much
longer period neglected to take proceedings to
acquire the real ownership OF the property re-
uired by thcm in the prosecution Of their en-
lprDriAp. Rnf thia uIInatinn Va algp think ia |