Leffmann v. Long Island Railway Co. , 93 N.Y.S. 647 ( 1905 )

Gaynor, J.:

The defendant has a prescriptive right to use a strip 30 feet wide through the center of Atlantic avenue on the surface for a double track steam railroad, acquired by long user. A prescriptive right is measured by the user, and! the user here was on the surface only. It therefore does not justify a structure above the surface.

The structure complained of, however, was erected by the defendant and the city of ¡New York at joint expense by legislative direction (ch. 499, Laws of 1897; ch. 297, Laws of 1901; ch. 452, Laws of 1902), to be used by the defendant in lieu of the surface for its railroad; and from this it is argued that any direct injury done thereby to the plaintiff’s abutting property is damnum absque injuria.

I have recently considered this question in Sadlier v. City of New York (40 Misc. R. 78), and do not need to add anything here. The notion that your property could be taken or directly injured by express legislative direction, any more than by the executive or judicial branches of government, without your being entitled to' obtain redress therefor in court by way of damages or injunction or both, which had grown to such large proportions in this state, has finally been dispelled by the decision of the Supreme Oourt of the United States in the case of Muhlker v. N. Y. & H. R. Co. 197 U. S. 544.

The common law allows no damages for what we call u consequential ” injuries, and therefore as no statute is necessary to exempt from such damages, it is idle and meaningless to talk of a statute as effecting, or being necessary to effect, that result. And as a “ direct ” injury to property is a “ taking ” of property within the constitutional meaning' of that word, it is just as idle to talk of a statute exempting from damages for such an injury. No statute can do it. Both the Federal and State constitutional prohibitions against taking private property for public use without just compensation stand in the way.

Though the statutes in question direct the work to be done, their meaning was and is that the defendant should make compensation for any private property taken or directly injured in doing it, to he fixed by agreement or else by condemnation proceedings. They are not unconstitutional for not providing that compensation he paid1. The defendant and the city of New York already had the power of acquiring private property by condemnation proceedings, and it was not necessary to confer it on them again.

An injunction must therefore issue1; hut the defendant may avoid it by paying the plaintiff the sum of $1,200, which I find to be her fee damage for injuries to her easements of light, air and access.

Judgment accordingly.