The times. [volume] (Washington [D.C.]) 1897-1901, 1901-02-23
CURIOUS DAMAGE SUITS
Oddities of Cases Against Rail-
roads in New York City.
The Manhattan Elevated Defend
ant in Some Queer Litigation
Gasei Smoke, Cbstruction to
Light. and Similar Allegations
Claims by Real Estate Owners.

NEW YORK, Feb. 22.-Recent afirma
tion by the Court of Appeals Of verdict
of $780, 600 damages against the Manhattan
Elevated Railway Company calls attention
to some curious developments in the lrin-
ciples upon which the courts decide the
various suits for damage to easements
caused by the elevated structures and the
operation of trains. The history of The
litigation which has during the past ten
years been waged against the Manhattan
Company is surprisingly fertile in enter
tanning excursions into the whole philOso-
ply of transportation and the movements
Of city population.
All these easement suits are based upon
obstruction to light and air noise, smoke.
etc, which may be claimed to have de-
pressed the value OF the plaintiffs build
ings or lands. All these Clements may ex-
list, however and the elevated road he
demonstrably benefit to the property it
passes. as was the case in the develop
mcnt of Harlem. Generally speaking. the
lower part of the city now suffers from
the elevated road for the good of prop
critics far up town.
Below Fifty-ninth Street" said law
yer today, Il should say that plaintiff
was pretty sure TO be awarded damages
against the elevated. Above that point
the case is generally n special one which
has 10 be settled largely by local and
peculiar factors. Take the Levin decision,
Just affirmed. and we have one of the
plain sort. There the building occupies
the northeast corner OF Wall and Pearl
Streets, and is ovcrshadoved by the
Second Avenue elevated tracks. and the
damages are set at $3.50 600
In cases above Fifty niath Street or
thereabouts, the argument gets to be in
tercsting Here. say, is an apartment
house on Third Avenue, originally made
profitable. or even possible. by the build
ing of the elevated road. 1t has been oc-
cupied in spite OF noise and smoke. But
now comes the surface railroad with new
cars and electricity instead OF horses. In
stantly the tenants have a new choice of
living places, because the new transit
relieves them of dependence upon the ele-
waited. And just then the elevated may
become the source OF injury to the prop
erty, because the tenants, Directing to
the noise, are able to move elsewhere.
Now the owner can come forward and
sue, for it has been established by de-
cisions of the Appellate division that a
past benefit. like the one l have sketched,
does not prevent suit for subsequent dam
ages, due to a change in circumstances.
This brings up the discussion of the
effect on the elevated read OF surface rail-
way improvement. 1t used to be held that
it was detriment, but there have been
some surprising exceptions. For instance
when the Sixth Avenue elevated line was
proposed, the project was bitterly fought
by the Sixth Avenue horse railway. But
to the great surprise of the management,
the horse railways receipts increased very
much after the elevated road was built
because the latter built up the street and
brought business into It, There was
curious double benefit both to the surface
franchise and to the property along the
street. So the Introduction OF electricity
on the surface cars was looked upon by
the elevated road people q dangerous
move against their traffic. Temporarily
their receipts fell eff, but with their local
traffic lessened there began the great in
crease Of travel from the upper part OF
the city which has more THAI made good
the loss"
THE introduction OF electricity" went !
on this commentator ION the elevated |
road may involve great change in the way |
the road is regarded by tenants, and in |
places where it has become detrimental
TO property the road may again be bene- |
fit
The question whether the elevated road |
IAN "eiuiie an edseIHShl III the AtTeets' |
by twenty-year possession. adverse TO |
the interests of adjacent property owners, |
is point not yet passed upon by the |
courts. Apparently any such easement |
and consequent immunity from many dam |
age suits is far in the future. even if |
the courts should hold such to be possible |
1t has been decided that the Ninth Avenue |
line in Greenwich Street could not claim |
an easement. as the successor OF the old ,
"one-legged" line. because II had occupied |
more of the street. run more trains, etc.
The easement must be held in one I'M
changed form for the twenty-year period, |
and this is obviously out OF the question
in the face of constant enlargement of the
structure and service. AS to how far such
a theory could be pushed lawyers do not
agree