New-York tribune., 1905-04-11
HENRY MUHLKER WINS.
Ne1c-YOrk Central Must Pay for
Damage Done Property.

washington, April 10-The Supreme Court OF
the United States to-day decided the case of
Henry Muhlker against the New-York Central
Railroad in favor Of MuhIker. The in
volved the question of damage to property To-
Gated at the intersection of Park-ave. ami
lloth-st.. New-York City. owned by Muhlker.
"y widening the railroad tracks in front Of it.
Inc decision announced by Justice Nc
henna and reverses the judgment of the New
York court Chief Justice Fuller and Justice
white. Justice Peckham and Justice Holmes
united in a dissenting opinion.
Ihe proceeding was instituted in the State
courts OF New-York to enjon the use of the
ralIroad company's elevated structure in front
OF MS premises unless upon payment of the
Zee value of certain easements of light, air and
access or other rights appurtenant to his prem
ises' Damages to the extent of 81 400 was
awarded by the trial court but the decision
reversed by the Court Of Appeals Muhlker be-
came the owner of the property in 1883. and in
1891 erected a five story building upon the
ground and the elevated road was constructed
IN 1896 The railroad company claimed i'm
munlty against damages under a legislative act
OF 1892
The decision of the court was based largely
on the decisions in the elevated railroad cases,
which Justice McKenna said were the law Of
New-1ork when AIuhlker acquired his property
and assured TO him that his easements of light
and air were secured by contract as expressed
IN those cases, and could not be taken from
MN without payment of compensation. Con-
tlnuing' Justice McKenna said. in part:
And this is the ground of our decision. We
are not called upon to discuss the power or the
York to declare sales Of property or change or
Hodlfy their decisions, but only to decide that
suGh power cannot be exercised TO take away
IlshIs which have been acquired by contract
ana nave come under the protection Of the Con-
sututlon Of the United States. We certainly
can estimate the difference between a building
with fun access Of light and air and one with
those elements impaired or polluted. We need
only add that the right of passage is not al,
there is TO a street, and to call IL the primary
right is more or less delusive.
The judgment of the Supreme Court Of the
State Of New-York was therefore reversed and
the case remanded for further proceedings not
inconsistent with to-day's decision.
The dissenting opinion was presented by Jus
tice Holmes. He said in part:
Bearing in mind that the PLAINTIFFS rights
however expressed, wholly a construction of
the courts, cannot believe that whenever the
fourteenth amendment of Article L Section 10
Is set up. we are free TO go behind the local de-
cisions on a matter of land law and on the
ground that we decide what the contract is, de-
clare rights TO exist which we should think
ought TO be implied from dedication or loca-
tion II we were the local courts I cannot be-
heve that we are liberty to create rights over
the streets of ssachusetts for instance that
never have been recognized there. If we prop
erly may do that, then I wrong in my as
sumption that If the New-Yor courts originally
had declared that the laying out of a public
way conferred no private rights we should have
had nothing TO say. But if I am right-if we
are bound by local decisions as to local rights
In real estate-then we equally bound by the
distinctions and limitations of those rights de-
ciared by the local courts
Henry Muhlker the retired builder in whose IA
vor the decision was rendered was found last night
at his home in the Kanawha apartments No 2O94
5th-ave
I have been fighting for my rights in this CASE
said Mr. Muhlker, for twelve years I am an old
Inan-seventy-four years of age-but told the law
yers that as long I lived I would keep up the
night ana, of course, ] glad that I have won
Tor now there viii be chance for others 20 get
their rights There is Herman Sanders. for instance
al ll0th-st and Park-ave. he has a suit under wav
ana there are many others that the railroad has
tried to get the best of. Bushby & Berkeley of
NO 70 Broadway. were our lawyers in Albany and
E1llhu Root at Washington. NY property that was
qa6ged IS at the northwest corner Of ll5th-st and
tark-aVe It is q feet in length and it was prac-
ucsly ruined: The money l shall get from this
sun VIII NOT begin 10 cover what have spent 10
obtain my rights -