Hier v. New York, West Shore & Buffalo Railway Co.

I concur with the views expressed in the foregoing opinion. (See, also, Burnet v. Bagg, 67 Barb., 154; and Anderson v. Rochester, etc., R. R. Co., 9 How., 561.)

Judgment reversed, and judgment ordered for defendants, with costs of action and of this appeal.

The plaintiff is the owner of lots in block 8 facing on Olive street, situate between Wallace and Franklin streets. The defendant’s *313road crosses Olive street on an adjoining block P. B., between Franklin and Clinton streets, nowhere touching.the plaintiff’s premises. At the point of crossing Olive street, and opposite block P. B., the defendant by its depot obstructs Olive street. Such obstruction prevents the free use of Olivo street as a public highway opposite block P. B. Olive street for a considerable distance is a public street by dedication, acceptance and user. Plaintiff’s lots abut on and by his deed are bounded by said' street. The plaintiff claims that he has a. ■right of way over the wholedength of Oli ve street, which constitutes an easement appurtenant to his lots, and that by reason of such obstruction such easement has been obstructed and the value of his lots-impaired. The action is brought to recover such damages, or in default therefor an injunction against such use. This appeal is brought to review a judgment in favor of the plaintiff, giving him the relief demanded.

Had the plaintiff any easement appurtenant to his lots, in that portion of Olive street between Franklin and Clinton streets, beyond what the public possessed ? As to the portion of Olive street in front of plaintiff’s lots, and between Wallace and Franklin streets,, no question is made.

The defendant’s rights to obstruct Olive street opposite block P. B., are derived from the laws of the State and from the city of Syracuse. (The laws of the State, chap. 300, Laws of 1835; Laws of 1850, chap. 140, § 28, sub. 5, as amended by Laws of 1864, chap. 582, § 1.) The language used by the legislature does not in terms-authorize the erection of buildings within a street, but it does contemplate the use of the street (chap. 133 of Laws of 1880; § 2. amending § 28, sub. 5 of chap. 140 of 1850), and in such a manner as to change the location of the .street with the consent of the corporation of a city. In the present case the city of Syracuse has given its consent to the crossing and the obstruction complained of. As against the rights of the public in Olive street the provisions of the law and the consent of the city have conferred upon the defendant the right to such use of the street as is now being made thereof, it being assumed that compensation has been made to the owners directly affected thereby. If the plaintiff has a legal title by way of easement on that portion of Olive street, he has-not been paid therefor, and whether he has or has not is the question *314to be determined. If the plaintiff has such an easement; for which pay may be demanded of the defendant, it will follow that every owner of land fronting on Olive street has a like interest and is equally entitled to be paid therefor If it be true of Olive street it must be true of every other public highway, because there is no distinction between a highway originating by dedication, acceptance and user and any other public highway. (Wash. on Easements, * 145, § 25; Mercer v. Pittsburgh, etc., R. R. Co., 36 Penn., 99.)

Plaintiff’s theory has not, we think, been the understanding of the profession, nor has such been the practice in acquiring title by right of eminent domain. The persons deemed legally interested by a railroad crossing are those, and those only, whose lands are directly within the line of the track. It has often been adjudged that such lands only suffer damages by the location of a railway track as are touched by it. Thus the owner of a lot in a city, not touched by it, may not recover damages, however much its location may be injured thereby. (Radcliff v. Mayor, etc., 4 Comst., 195.)

Put we are of the opinion that the plaintiff acquired no interest in Olive street beyond the general public (except a way by necessity), by reason of the description contained in his deed and reference to ■Green’s map. The conveyance does not purport to give any right in orto the street or along its course. (Wheelers. Clark, 58 N. Y., 267, 271, 272.) Nor would an easement pass as an appurtenant, unless it were directly necessary to the enjoyment of the estate •granted. A mere convenience is not enough to create a right or easement. (Ogden v. Jennings, 62 N. Y., 526, 531.) Here plaintiff •had free access to his lots by Wallace and Franklin streets, and hence there was no necessity, though there might be a convenience in using the obstructed portion of Olive street, opposite block P. B. (Voorhees v. Burchard, 55 N. Y., 98.)

The learned justice at the Special Term was embarrassed by the absence of any authority directly in point, and no such authority is now presented to us. But the case of Coster v. Mayor of Albany (43 N. Y., 399) is quite analogous. There a bridge and way, connecting a pier, on which plaintiff’s property was situated, with the main land, was taken up, but another way more circuitous and less convenient was left available for the plaintiff’s use. In an action brought to recover damages, for such removal, to plaintiff’s.property, *315tbe court says (p. 414): “ No part of tbe bridge was on tbe property of tbe plaintiffs. They bad no interest or right in it as property. There is left to tbe plaintiffs an approach to their property by tbe State street bridge, though less near, less easy, less commodious. Tbe damage to tbe plaintiffs’ property from this cause is entirely indirect and remote. * * * Over streets and highways tbe legislature has control, and may, when no private interests are involved or invaded, close them and altogether relinquish their use by the public. (People v. Kerr, 27 N. Y., 188-192.) And if in the exercise of this right a street be discontinued and the value of lands abutting on other parts of the street and on neighboring streets is lessened, it is not such an injury to the owner as to entitle him to damages.” (Smith v. City of Boston, 7 Cush., 254.)

In the last case Shaw, C. J., says: “ The inconvenience sustained by the petitioner,'if any, was not such an injury done him in his property as to entitle him to damages within the true intent of the law. Remote and contingent damages are not recoverable. * * * The petitioner has free access to all his lots by public streets. * * * Judge Folger proceeds to say of the injury in Coster’s case (p. 415), it is “ not the direct and immediate result of the removal of the bridge first mentioned. * * * Assuming that the statute did not, by some particular provision or phraseology, provide for the payment of consequential damages or such as may result to persons whose lands are not taken or immediately injured, the State would not have been liable for the damages claimed by the plaintiffs from the removal of this bridge, nor is the city liable.” (Radcliff Exrs. v. Mayor, 14 N. Y., 195.) To the same effect is Sixth Avenue Railroad Company v. Gilbert Elevated Railway Company (3 Abb. N. C., 398, 399). The case of Smith v. City of Boston (supra), seems particularly applicable to the present case. (Fearing v. Irwin, 55 N. Y., 486, 490.)

In Story v. Elevated Railway Company (90 N. Y., 122) and elsewhere, the damages sought to be recovered were for injuries to the plaintiffs’ property by the obstruction and use of the street immediately in front of his lands abutting thereon. They are not authority, •therefore, in this case. .

We "conclude, then, that the plaintiff has no right or interest in Olive street beyond the block on which he is situated and the streets *316bounding the same. "Whether the plaintiff has or can invoke any remedy in CQmmon with the general public for the removal of the obstructions, or whether the right of way or space for public use fifty feet wide from Clinton to Franklin streets in the rear of the depot provided by the defendant is an adequate equivalent for the loss of the use of Olive street in front of the depot, are questions-which we are not called upon to consider. It is enough to say that in our opinion the plaintiff has no private rights or interests in the part of the street obstructed by the defendant, which will entitle him to claim or recover damages from the defendant.

The judgment should be reversed, and judgment ordered for the defendant, with costs of the action and of this appeal.