New York Steam Co. v. . Foundation Co. , 195 N.Y. 43 ( 1909 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant cannot be held liable on the theory that it was an ordinary trespasser, for it did not touch the structure of the plaintiff and the referee found that the vault could not have been built without driving sheet-piling in the bed of the street just outside the curb line. Such temporary use of the street beyond that line, therefore, was impliedly authorized by the permit, as a necessary method of protecting the rights of the public and shielding travelers from danger. Implication, however, is always reasonable and hence it did not include the right to injure structures already in the street by lawful permission.

Nor is the defendant liable because it violated any duty imposed on it by statute or ordinance, such as the Building Code, which, as was properly held below, applies to adjacent property under private ownership and has no application to excavations in a public street.

The rights of the parties are not controlled by the common-law doctrine of lateral support, as thus far applied by the courts. That doctrine is limited to adjacent lands under private ownership, except that while it requires the adjacent landowner to preserve the lateral support to a public highway, it does not require the municipality owning the highway to preserve the lateral support to the adjacent land. (Village of Haverstraw v.Eckerson, 192 N.Y. 54; Radcliff's Exrs. v. Mayor, etc. ofBrooklyn, 4 N.Y. 195.) It has never been extended to questions arising between the underground occupants of a street under a franchise or license from the authorities in control. It does not apply to the case before us, because the plaintiff and the defendant's employer were not adjacent owners and the injury to the property of the former in the street was caused by what was done by the latter in the street and not on land adjacent thereto. Neither party was on its own land. We find no statute extending the doctrine so as to affect a controversy between a public service corporation, in occupation of a street under a franchise to lay a pipe line therein, and an abutting owner, acting under a lawful permit to construct a vault in the street under the sidewalk in front of his premises.

The case, therefore, is one of first impression and can be decided only by resorting to those principles of the common law that apply most directly to the facts and which are best calculated to do justice to the parties now before us and to those who may come before us in the future.

The principles that we regard as controlling are, that no one can derogate from his own grant, and that every one must so use his own property as not to injure that of another.

Both parties were lawfully in the street, but the occupation by the plaintiff was prior, permanent and for a semi-public purpose, while that of the defendant was subsequent, temporary and for a purely private purpose. The plaintiff had an indestructible property right in the street and the defendant, which for the time being was clothed with all the power of the abutting owner, acted under a revocable license only. The city owned the fee of the street in trust for the public and having lawfully granted a franchise to use the street for a quasi-public purpose, it could not derogate from that grant, especially when making another for a mere private purpose. No such power was reserved either expressly or impliedly. The question does not arise between two public service corporations, or between one of that class and the city, but between a public service corporation and an abutting owner with no absolute right in the street, so that there was no reservation such as sometimes arises by implication when the public is interested. The defendant had no greater right than the city gave the abutting owner, and the city could not give the latter the right to do anything in the street for a purpose wholly private, which, even if done without negligence, would injure the structure of the plaintiff lawfully in the street for a purpose partly public, without derogating from its own grant. The plaintiff had the superior right from the priority and the purpose of its occupation, and the city could not and did not grant any part of that right to the defendant or its employer. The vault license, therefore, did not authorize the defendant to injure, directly or indirectly, the plaintiff's property, even from necessity when prosecuting its work with due care.

The abutting owner, under its license, had a lawful right to build a vault in the street under the sidewalk, and that also was property, or a property right, although not indestructible as to the city. When it came to the work of construction, through the defendant, its agent, it found the property of the plaintiff already in the street pursuant to lawful authority, and in use to furnish many human beings with a necessary of life. Under the principle, sic utere tuo ut alienum non lædas, it was bound to use its right so as not to injure that property. It owed the plaintiff a legal duty not to injure its plant without making compensation. It could not disturb an existing structure lawfully in the street without becoming liable for the damages caused thereby. The defendant rested under the same obligation, and hence proceeded at its peril. Good intentions have no bearing, for the law "does not so much regard the intent of the actor as the loss and damage of the party suffering." Even the exercise of due care did not relieve the defendant from the obligation springing out of the fundamental right of every person to enjoy his own property without interference therewith by the use made of the property of another.

When the fifteenth and nineteenth findings are read together it is clear that the nature of the work done by the defendant in driving, maintaining and removing its piles was such as could not be done at all, even with due care, without injuring the structure of the plaintiff. While the precise cause of the injury was not found by the referee, it is evident from what he did find that it was owing, as he stated in his opinion, to "the subsidence of the soil of the street." The bottom of the vault was so much deeper than the bottom of the plaintiff's structure that compression of the soil caused by driving the piles and expansion caused by pulling them out, apparently resulted in the settling of the earth and the sagging of the pipe, which was the source of the damages sustained. As the referee declared, it "was the inevitable result of the construction of its vaults" by the defendant. Whoever undertakes a work, not on his own land, that will inevitably injure the property of another, subjects himself to liability for the damages inflicted. The defendant, a late comer in the street and prosecuting a private enterprise, was properly held liable by the referee for the damages caused by its interference with the plant of a public service corporation already in the street with the sanction of law. The defendant took its license subject to the burden of paying for the injury caused by the work done thereunder. Any other rule might result in the utter destruction of public utility lines without liability.

Nothing decided in a late case relied upon by the defendant is in conflict with these views. (Western Union Telegraph Co. v.Electric Light Power Co. of Syracuse, 178 N.Y. 325, 331.) That case was brought by one public service corporation against another and also against the city which had granted a franchise to each to build a subway in one of its streets. Neither grant was exclusive or for a private purpose. The real question was whether the public service corporation with the later grant could so locate its subway under the direction of the proper city officer as to make access to the plant of the corporation with the earlier grant less convenient and more expensive. The case turned on a strict construction of the grant in the interest of the public, and we held that all that the owner of the earlier franchise could lawfully demand "is that its structure shall not be unreasonably interfered with." The case now before us does not involve the rights of the city nor the interest of the public, for it is a controversy between two underground occupants of a street, one there earlier, permanently and for a public purpose and the other there later, temporarily and for a private purpose.

We think that the judgment rendered by the referee was right, and we thank him for his able opinion, which we have followed in most respects, and which, fortunately, has been reported. (123 App. Div. 254, 265.)

The order of the Appellate Division should be reversed and the judgment entered upon the report of the referee affirmed, with costs in both courts.

CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT and CHASE, JJ., concur.

Ordered accordingly.