# Story v. . New York Elevated R.R. Co.

> New York Court of Appeals · October 17, 1882 · 90 N.Y. 122

URL: https://www.frixlaw.com/law-library/cases/3626812

## Case

- **Full name:** Rufus Story, Appellant, v. the New York Elevated Railroad Company, Respondent
- **Court:** New York Court of Appeals
- **Decided:** October 17, 1882
- **Citations:** 90 N.Y. 122; 11 Abb. N. Cas. 236; 1882 N.Y. LEXIS 362
- **Precedential status:** Published
- **Opinion:** Dissent
- **Judges:** Danforth, Earl, Finch, Miller, Tracy
- **Cited by:** 291 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3626812

## Opinion text

I concur in the opinion of my brother EARL. His full and careful argument renders unnecessary a further discussion, and yet the importance of the case, and the gravity of the questions involved, seem to require, at least, a brief statement of the grounds upon which I dissent.
If the abutting owners have rights in the streets, the public have such rights also; and where these come in collision, one or the other must, of necessity, yield. Even if we grant that such owners have some right in the streets growing out of their frontage upon them, and that such rights are in the nature of private property, it still remains that such private property ends where the people's right begins; that the abutting owner has no private property except outside of the public right, and whatever he does have is only that which is left after the latter is exhausted. The right of the abutting owner, such as it is, rests upon the trust on which the city holds the streets, and that is expressed in the covenant applicable to the street in question, which is, that it shall "continue and be for the free and common passage of, and as public streets and ways for, the inhabitants of said city, and all others passing or returning through or by the same in such manner as the other streets of said city are, or, of right, ought to be." I understand the meaning of this covenant to be, that Front street shall forever be kept open to the free and unobstructed travel and passage of the public, in the same manner as the other streets are kept open to such travel; and that the abutting owner gets the benefit of light and air and ventilation as the incidents of a due performance of that covenant. If, therefore, the city's covenant is observed, no right of the abutting owner is invaded, although the public shall use the street for travel and passage in a manner which lessens the light and air and ventilation which incidentally benefit such owner. If the street is kept open to free and unobstructed travel, and is used for the general passage of the inhabitants, the covenant is kept, and the abutting owner has received all his rights, even though his incidental benefits are lessened. The question then comes down to this: whether the construction and operation of the *Page 198
elevated railroad is within the public right, and the trust upon which the city holds the fee of the streets. If it is, nothing has been taken from the abutting owners, for their right cannot enter the boundaries of the lawful public use; and the ultimate inquiry is simply and only whether the streets as used by the elevated roads are, nevertheless, used and occupied as public streets for unobstructed passage and travel, and kept open as such. There is no finding of fact to the contrary in the case before us, and no evidence from which such an inference can be justly drawn. The streets in question are kept open to the free and unobstructed passage of the inhabitants. They are not even partially closed to such travel. On the contrary what has been done has been done in the direct line, and in aid of the proper public use. Travel and passage have been aided, and their facility increased, instead of being obstructed and hindered. We are not to put our own eyes or observation in the room of the evidence and the findings of the trial court. These findings are not that the street has been closed, wholly or even partially; they are not that the public use and public travel have been hindered or obstructed. No such fact is in any manner found or furnished to us as a factor in the conclusion to which we ought to come. On the contrary, the only and the solitary fact found in such direction, the only one even pointing to a violation of the city's covenant, is the presence of the supporting columns, standing inside the curb of the sidewalk. If these are unlawful, then the lamp-posts, and the telegraph poles, and the supports for electric lights, are pro tanto a closing of the street, and utterly without right. We have, therefore, in the case as I read it, no evidence of a public use which transcends the public right; and that being so, no private right is or can be invaded, and no private property has been taken.
For reversal, ANDREWS, Ch. J., RAPALLO, DANFORTH and TRACY, JJ. For affirmance, MILLER, EARL and FINCH, JJ.
Judgment reversed. *Page 199

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3626812. Public record. Not legal advice.