The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-11
BILL Y.CENTRAL MUST PAY.
HIGHEST COURT DECIDES PARK
AVENUE DAMAGE CASES.

AbuttinE Owners MnSt he Compensated
for Light and AiF, Athough the state
Commanded the Road 20 Build the
Viaduct-seVeral Millions Involved.
The Supreme Court Of tho United States
gave a decision yesterday by divided
oomt In favor Of the plaintiff In the case
OF Henry Muhlker against the New York
Central Railroad and the New York and
Harlem Railroad. Muhlker owns property
at ll5th street and Park avenue. and he
sued TO recover damages after the new
steel viaduct was erected by the railroad In
front Of his premises. The Court Of APP
peals Of this State decided that he was not
entitled TO damages. and he took the case
TO the United States Supreme Court on
the ground that he had been deprived
without compensation Of his property
In the shape Of easements Of light and air.
The Court so holds. Nearly q hundred
like cases, involving claims for nearly
s., 900 900 are affected by the decision.
After awarding damages In several OF
the suits, the New York court, in the pres
ent case, reversed by divided bench lie
stand In the prior cases and held that as
the statute authorizing the change OF grade
made that action compulsory upon the
companies, and the right Of access restored
by the elevation Of the tracks Offset the loss
by light and air, the roads were not liable
for damages Muhlker then appealed,
Elihu Root appearing for him.
Justice McKenna, who gives the opinion
Of the court, says that the command OF
the State and the duty Of the railroad TO
obey might nevertheless encounter the
inviolability Of private property.
The taking Of the tracks from the trench
and placing them upon an elevated struo-
ture undoubtedly restored access TO the
property, but deprived It Of light and air.
TO do this was TO make one easement de-
pendent upon another, both being IN
separable attributes Of property ana equally
necessary 70 it's enjoyment. IL was I'M
or with any benefit in streets, II the prop
erty abutting on them had not attached
to Il, as an essential and inviolable part,
easements Of light and air as well as Of
access.
II was something like mockery to give
one access to property which might be
unfit TO live on when one got there. Be-
cause the owner might cross the ralroad
at more places on the street, the state, IL
was contended, could authorize dirt cinders
and smoke from 200 trains day 20 be
poured into the upper windows Of his house.
Quoting from a decision by the New Jersey
courts, Justice McKenna said that the
right Of abutttng owners to light and air
was founded in such an urgent necessity
that all laws and legal proceedings took
Il for granted-a right 80 strong that It
protected itself, so urgent that upon any
attempt TO annul or infringe 1t, II would
set at defiance all legislative enactments
and all judicial decisions. That In New
York the easements could be taken away
In the interest Of the public had been settled
In the elevated railroad cases, which de-
clared them 10 be properly within the pro-
lection Of the constitutional provision Tor
compensation. The plaintiff bought under
the assurance Of these cases.
Chief Justice Fuller and justices White,
Peckham and Holmes dissented, on the
ground that the majority opinion gave too
great weight 20 the rights OF the individual
and too little 10 the power OF the State and
the welfare OF the public.
Albert B. Harris, general attorney Of
the New York Central, refused yesterday
TO discuss the decision OF 10 give any opinion
as TO what effect II might have on other
cases pending for damages In Park avenue,
He said IL would be impossible 70 talk
intelligently on the matter until be had had
a chance TO read the decision. The aggre-
gate amount involved In the Park avenue
damage suits was large, but just how large
he could not say.
The decision caused something Of q stir
In Wall Street and in Rome quarters the
decline Of ~ in New York Central stock
was attributed TO the adverse action OF
the court