New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1894-02-14
ELEVATED RAILROADS IN COURT.
THE RISE AND GROWTH OF ELEVATED
RAILROAD LAW. By Theodore F. {. Dema-

THE RISE AND GROWTH OF ELEVATED
RAILROAD LAW. BY Theodore +. {. Dema-
rest. PIP XII. 27s; Baker, WORMS q co.
One of the Oldest and most experienced or the
Judges In the higher courts OF THIS city was en-
gagged day. about six years ago, In calling lot
trial the cases upon a long calendar-cases made
up almost entirely OF suits brought by aDutuhs
property owners to recover damages Tor the IN
,nries inflicted by the elevated railway running III
front OF their property. The number or lawyers
In attendance large. and as the various cases
were called objection to proceeding 10 tr'ai was
made by the counsel for the railway companies
until certain legal questions raised by them had
been passed upon by the higher courts Finally
the Judge turned with a Slight show Of Impotence
TO the Directing attorneys and said: "Gentieneh'
all the questions of law relating TO THESE acuohS
have been settled by the Court OF Appeals Inc
duty Of this and other trial courts IS now very
simple 1t only remains for us TO take evidence
as to the amount of damage inflicted upon the In
dividuol obutting owner and to make the award
accordingly"
This judicial utterance sounds very odd n the
light OF what has subsequently happened, as evil
denced By the contents Of Mr. DemarestS DOOR,
The volume is review of all the decisions OF the
higher courts in elevated railway cases. ana in"y
nine-tenths of the most important questions OF
law involved have been raised and disposed or
since the remark quoted above was made me
Judge who made II retired from the bench three
years later. but not until he had seen the slender
cant stream Of controversy over questions oil eie-
waited railway law swollen into tremendous ana
wholly unprecedented torrent Of litigation that for
a time threatened to ovcrwhelm the courts by us
magnitude The history Of those six years OF litl-
CATION is wholly without a parallel ana iuII OF IN
terest to the student of legal science. as affected
by new developments Of human progress 1t de-
served n thorough and efficient historian. and II
has found one in Mr. Demarest. He was for sew
eral years associated with the counsel Tor the Man
haitian Railway in thu defence Of It's land damage
suits. and he the author OF several or the
abest and most skllfully constructed briefs that
have appeared from that office. 1t Is. perhaps not
surprising that he becare so thoroughly convinced
of the Justice Of TIE views advocated by himself
that. although different conclusions were reached
by the courts. he 70 unable to free his mind from
the influence Of these profound convictions In tho
writing of his book. But despite these imperfec-
tons Mr. Demarest has succeeded In presenting
what is upon the whole. not only lucid history
Of the elevated railroad litigation. but also fair
exposition of the theories and reasoning upon
which the law relating TO these actions seems now
TO
1t is still prudent TO the word "seems'' In
that connection. because the individual who would
venture even now to declare that the law relating
to elevated railroads a matter OF positive
knowledge might find himself as sadly dlsap-
pointed by future judicial action as was the judge
who six years ago thought that 1t was all posi-
appointments upon both sides. When the lines
of the New-York and Metropolitan Elevated rail-
ways were first projected, and before the scheme
by which they merged into the Manhattan
Railway system was concoctcd. Mr. Field and the
other very learned and skilful lawyers who at
that time, were advising the railway companies.
were entirely satisfied that the law. so far as II
affected owners of street property, was settled by
the Old surface railway cases; and that so long as
the railways had legislative and municipal author
iy for their encroachments upon the streets
the abuttIng owner. whose properly vas there
! by injured. might be almost ruined ma
no redress Such positive opinions received
| deadly shock by the decision Of the Court or APP
peas IT. the Story case. which was the great test
| action The court found itself confronted by con-
| dtions that did not exist and that could not have
| been anticipated when the street surface railway
| cases were adjudicated. To have followed strictly
the precedent and reasoning of those cases would.
ii seemed the majority Of the court. have en-
tailed a loss upon property owners along tn" lines
Of the elevated railway which was equivalent 10
an unconstitutional taking Of their property with
out compensation. The judges, therefore. cut the
C;ordian knot by holding In a word. that the abnt-
| ting had certain property rights In the
street in front OF his premises. namely, easements
| OF light air and access; that these were taken
by the company when 1t built the structure and
! operated its trains thereon and that the court
would enjoin the continuance Of the same until
| the company had made compensation therefor.
! The Of reasoning by which this conclusion
is reached excites Mr.. Demarest's most cnustic ~
not sarcastic criticism; but his comment IL
scarcely less when he comes 10 consider
| the subsequent decisions OF the court by
| which the damages suffered by the property owner
| were allowed to be Offset by the benefits" from
| the construction and operation OF the railway In
! fact. Mr.. Demarest has the temerity TO tell the
| Court OF Appeals that. by their decisions In the
| Newman and Bohm cases. "they repealed the stat
,bo n ali,va or
deduction account OF benefits" And he Is
| clearly right II was the most extraordinary In
stance Of judicial legisla ton known to the rec
| ords
There is. however a more or less satisfactory
| explanation of the uncertainty that has attended
| the prosecution OF this litigation and OF the mag
nicent surprises to which the court OF last resort
| in the State has repeatedly treated the lawyers
| the litigants and the Judges below. The decision
| in the Story case. upon which all the subsequent
| controversy depends, made by a divided court
| and by as closely divided court possble-eour
| judges to three Some Of the judges who partici-
pated in that decision still remain the Court OF
| Appeals bench. but not all one of them In
| the minority in the Story case, and wrote
| haustve dissenting opinion. Apparently he has
| never seen good to change the Judgment
| he there deliberately expressed, but continues to
think. he then thought. that the decision of the
majority giving right Of compensation to abut-
ting owners for injuries inflicted by the elevated
| railways was inherently and radically wrong. lie
| is a judge loyal TO his court and the doc
! trlne OF stare decisis. we'll an exceedingly
able and learned Judge; and he will follow strictly
| the decision in the Story case as settled law.
! whenever exactly the same questions present
| ed. But when questions come up that is
other matter and II he to 1t ;ha, 50 far In
| him lies. and far his great influence goes
the scope of the Story decision is not extended
| but rather that what he regards the evil result
| ing from its first enunciat!on is limited and
| tailed by the new adjudcations he is only
! cisng legitimate prerogatve OF his position and
| making the law more nearly to accord with his
| own conscience The frequent changes that have
| occurred in the Court OF Appeals have brought
! others upon that bench who have sympathized
with Judge Earl in his views respecting the Story