New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-10-17
LAST OF THEIR DEFENCES.
ELEVATED RAILWAY MEN DEFEATED.
THE COURT OF APPEALS DESTROYS THEIR ONLY
REMAINING CHANCE TO DEFEAT PROP


ERrY OWNERS RIGHTS.
The last hope of the elevated railway authorities
20 defeat the right of abutng owners TO compensation
for damages nom The operation Of the roads was
destroyed by decision of the Court OF Appeals ts
week In the case OF Len Pappenhem against the
Metropolitan Elevated Railway Company 80 lar as
the amount OF money involved is concerned IL Is te
most important decision in the history OF TINS gsshao
litigation since the Story and Lair cases. II the de-
PENDANTS had succeeded their contention, 1t would
probably have relieved them from the payment Oh
damages to four-hfths of the property in the proaa
avenues through which these railways run
The claim OF the defendants that If the properly
had once changed hands after the railway was pulS
and its operation begun the purchaser could neither
enoin its continuance nor recover damages for the
injury indicted upon the premises The argunene WIS
that the damage to the property was ihllo'eo o.0e
for all the railroad was in operation > ui"'
the right to recover for those damages was only ia
the owner Of the property at that time ana uae
therefore when the premises were afterwara solo, ho
right of action against the railway companies except
perhaps for merely nominal damages, passed 10 uic
purchaser II is obvious that decision 10 us eheo"
by the highest court in the early history OIL the ee
waited railway litigation, would have been Oh htte
or no advantage to the defendants, because IL WOMB
meant merely substitution o. one SCI OF pianOhs'
namely the former owners, in place OF the present
owners and would not have relieved them rom inc
payment Of any damages.
But they took good 10 wait until the statute Ol
limitations had run against such claims Of former
owners before raising the point In the Court Oh
Anpeals so that II they dsucceeded i'll the Pappen
helm case, they would not only have been absolved
from paying any damages TO purchasers OF aDutiIhs
property the construction of the roads, but ms
under the statute OF limitations, have also escaped
from the claims of former and in this way have
gone scot free from any legal obligations 10 make
compensation for very much the largest part OF the
property along their routes.
The courts in this city have, beginning with the
notable Glover case, decided by Judge Ingraham IN
1884 uniformly decided this point against the railway
companies but the point was not raised by them In
the Court of Appeals until the present case 1t Is
true that the General Term of the Common Pleas dld
about year ago in the Welerman case hand down ar
opinion sustaining the defendants and holding that the
right of action against the companies rested only III te
individual that the owner at the time Oh puid-
ing the railway. But upon a reargument the court
made haste to reverse this decision and put itself on
line with the other courts In holding that the owner
ship OF real property carried with 1t the right OF pro
lection against continuing respasses quite Irrespective
of the circumstances or terms of purchase.
The Court Of Appeals, in the elaborate and con-
yincug opinion of Judge Peckham in the Pappenhelm
case fully sustains the claims OF the property
He sums up the matter as follows
Az the act of the defendant trespassing upon or
appropratlng any portion of the property was uniaW
flt any depreciation in the value Of the properly
caused by such Illegal action cannot be regarded IN
txnG the value of the property to be taken or the dam
age 10 that which will remain. The claim OF the oe
fendants that this depreciation in value was sunereo
by the original owneg when he sold, ana tnat IL II
personal Claim in his case against them for which they
are res ponsibe cannot ii seems to me, be main
tained Such a doctrine would do away WIN uie
right Of an of property to prevent S
say that because the original owner @ son
thereof were thereby invested with the right TO con
tnue forever the original Tespas ana ne 10 nv
mot necessarily in the payment to- the vendor tne
difference between the sum wh lea nd thai which
he would have able TO secure had IL not peen lot
the acts of the defendants. -, - 40. o,d 10
Whether such sum had been paid or hop "ouu 10
immate far as concerned tns ReSey ner and
That would be matter between the Sga On Account
the defendants But the present owner b ON Wouid
of the transfer of the present iand 10 "U "at
really have no g s 10 bs propey was damaged and
although the defendants had no more tie 70 uS pod
ery trespassed upon than they ever had They couiu
Sy No lille because the original transferred u
To his yendee and after such transfer OF voFso, III
rnnerty To- any one else The vendee took the title
and he certainly has not conveyed IL 70 te Th
%tb no Title the defendants by this course Of
reasoning been, in substance, invested win rse
nernetnaIlv 10 appropriate property belonging 10 e
PpaIntif. because Of liability their part, as they
alege TO pay former owner certain uslse tv 70 the
piain.lf at reduced value caused by oelenu"nN
rms mere liability of the defendants to reimburse the
vendor operates by defendants argument as DAT
the rights s Of the S eman nS Sn p Of
t,i contlnaes and thus the general right which ioi
snsSS L denied an owner because the defendants
are they say, liable to a former owner on PIarato
claim by him for loss occaconed by a sale. Hereto
fore absolute ownership legal possession OF proPe
has been regarded sufficient TO enaple tne YMe! ~
protect it from tespass. It has been sufe e co 10
permit him maintain action to Desta2 no lS cO to
tinuance though he was fortunate enough S i1
Snry in such cases where the owner sought TO restrain
the future respas has meyer been II e former
owner sold al a loss account of the trespass Inc
inquiry has ~ BEEN fe poeson aud whether the a Of
the defendant were Illegal This Is all ts shouu nO"
have thus far referred to the of the yendee
for the purpose of nqurng what rights appertaned 70
gn@ S H in favor OF the vendor who owned the prop
ery when the road built and who sold Ibis bis lana ana
81 the defendants is not to my mind very strong o. -.
cover zen i for ali damage esused by the espass the
time Of the commencement OF his acuOn anu tne SUI
seet hat right If he desired restrain its further
continuance to recover for the permahenI uShase
action In comfy In that action he would obtain full
relief II he chose to instead Of using the RENE
ds ot w his own choice The defendants
compel or limit restrain such sale Nothing that
them The law saws their actions cannot be REGARDED
as permanent trespss for the very reason st tSt IL Is
full act is to be forever continued
HI, choice ea to b Se b T fSe I lawn doe NOT furnish
cause OF action against the defendants to reimburse
him for loss arising because OF the PRESUMPTION ne
has indnIred in that the epass would be continuous
aud unpaid for He has chosen to regard the trespss
In a Hight opposite TO that in which the law regards
II and The loss he has suffered thereby is not one
which the law regard caused by the defendants
To fhe original owner thus chooses TO sell his property
Ndthiut enforcing those rights which he has only by
virtue of such ownership, the purchaser at any rate
takes his fee and with 1t the rights of such an owrcr
The right 10 enoin the continuance of the trespass
has not escaped by the conveyance.
n cannot rest with the vendor. for he has no longer
any interest In the land. Unless II passed to the
vendee IL has vanished and vet conveyance by any
laxfDO fha rio
treSpasser and so far the legal title to the prop
ety IS concerned the trespaser has no lot or parcel
In II IL seems TO me the right passed to the vendee
Charles Gibson Bennett Of the firm OF sackett &
bennett argued the Of the property owners;