Opinion · Appellate Division of the Supreme Court of the State of New York

New York Steam Co. v. Foundation Co.

108 N.Y.S. 84

Type
Opinion
Court
Appellate Division of the Supreme Court of the State of New York
Jurisdiction
New York
Date
1908-01-10
Topic
bankruptcy

Laughlin, J.: I am unable to agree with all of the views'of the learned referee upon the law applicable to the facts found, or with his conclusion. He correctly ruled that section 22 of the Building Code has no bearing on the case.' The provisions of that section, like the previous statute from which they were taken, were designed to regulate the rights of the adjacent owners and 'occupants of premises with respect to building operations upon one lot, affecting the building, ¿he occupants thereof'and property on an adjacent lot (Dorrity v. Rapp, 72 N. Y. 307; Paltey v. Egan, 122 App.

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7 opinions
NEW YORK STEAM CO.v. FOUNDATION CO.,123 App. Div. 254(1908)
108 N.Y.S. 84
THE NEW YORK STEAM COMPANY, Respondent,v. THE FOUNDATION COMPANY,
Appellant.
Appellate Division of the Supreme Court of New York, First Department.
January 10, 1908.
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Edwin D. Worcester, for the appellant.James W. Hawes, for the respondent.
LAUGHLIN, J.:
I am unable to agree with all of the views of the learned referee upon the law applicable to the facts found, or with his conclusion. He correctly ruled that section 22 of the Building Code has no bearing on the case. The provisions of that section, like the previous statute from which they were taken, were designed to regulate the rights of the adjacent owners and occupants of premises with respect to building operations upon one lot, affecting the building, the occupants thereof and property on an adjacent lot (Dorrityv.Rapp,72 N.Y. 307;Palteyv.Egan,122 App. Div. 512), but they have no application to excavations in a public street. (Jencksv.Kenny, 28 Abb. N.C. 154;Brooklyn Elevated R.R. Co. v.Cityof Brooklyn,2 App. Div. 98.) The case, therefore, is to be decided upon the principles of the common law. If the decision of this appeal depends upon the doctrine of lateral support, I think the defendant would not be liable, but for the reasons to be presently stated I am of opinion that it is governed by another principle of law. At common law an owner of land is only entitled to the lateral support of his land against an adjoining owner, where his lands remain in their natural state and the cohesiveness of the soil has not been disturbed by excavations or the erection of structures thereon. (Gilliesv.Eckerson,97 App. Div. 153;Rileyv.Continuous Rail Joint Co., 110 id. 787;Boothv.R., W. O.T.R.R. Co.,140 N.Y. 267,275;Dorrityv.Rapp, supra.) This street has been extensively excavated and four lines of underground improvements have been placed therein. It is manifest, therefore, that the natural cohesiveness of the soil has been materiallyPage 262affected and it cannot be said that if this had not been done the soil would have been materially disturbed by driving the sheath piling, the jarring incident to which, it is to be inferred, caused the damages. If, therefore, the plaintiff owned the lot adjacent to that upon which the contractor was excavating and constructing the foundation and had excavated the soil of its lot and placed therein the structures that it placed in New street, it is quite clear under the principles of the common law that there would be no liability for injury to them. If there would be no liability to the plaintiff for damages to this underground improvement on its own land, I fail to see upon what principle it obtains greater rights in a public street where it is a licensee or at most has an easement without title to the soil. The respondent relies upon the cases ofMilburnv.Fowler(27 Hun, 568) andFineganv.Eckerson(32 App. Div. 233), following it, but I think they are distinguishable. It was decided inRadcliff's Executorsv.Mayor, etc., of Brooklyn(4 N.Y. 195) that the common-law rule of lateral support does not obtain in favor of an owner of land abutting upon a public highway, as against the public, and that he is not entitled to the support of his land by the soil in the street. TheMilburnandFinegancases hold in favor of those having the right to use the highway for public travel, that an owner of land abutting thereon has no right to make an excavation upon his own land which will so undermine or render insecure the highway as to create a nuisance by causing part of the surface thereof to fall off. Assuming that the nature of the rights of the public in a highway is such that the owner of land abutting thereon owes a duty of lateral support to prevent the creation of a nuisance, it does not necessarily follow that he owes this duty to every owner of underground improvements or structures made or placed in the highway under a license or grant from the public authorities. Moreover, the damage to the plaintiff's property was not caused by an excavation upon the lands of the abutting owner which deprived the soil of the street of lateral support. The excavation here, the construction of which resulted in the damages, was made in the public street itself and by due authority of law. A permit for the construction of a vault in a public highway, for the use of the abutting owner, is in the nature of a revocable private easement. It may be revokedPage 263when the space is required for municipal or other public purposes, but until revoked it may be fully enjoyed. (LincolnSafe Deposit Co. v.City of New York,96 App. Div. 624;Deshongv.City of New York,176 N.Y. 475;Marchv.Cityof New York,69 App. Div. 3;Babbagev.Powers,130 N.Y. 281. ) The municipal authorities were expressly authorized by the Legislature to grant the right to the abutting owner to construct these vaults and it has often been decided by the courts that the construction of such vaults in a public street is a proper use of the street and that the owner's rights therein will be protected while the permit stands unrevoked. (Greater N.Y. Charter [Laws of 1901, chap. 466], § 49, subd. 7;Jorgensenv.Squires,144 N.Y. 280;Parishv.Baird, 160 id. 302;Matter of BrooklynUnion Elevated R.R. Co.,105 App. Div. 111;Deshongv.Cityof New York,176 N.Y. 475; 2 Dillon Mun. Corp. [4th ed.], § 664a. See, also,Lahrv.Met. Elev. R. Co.,104 N.Y. 268;Rogersv.Randall,29 Mich. 41.) There is, in my opinion, no force in the contention of the respondent that it being a public service corporation and its rights having been first conferred, are superior to those of the defendant acting for the owner of the adjacent property to whom the vault permits were granted. The plaintiff obtained its grant subject to the right of the municipal authorities to place in the street other local improvements, even though the construction thereof should require it to take additional precautions for the protection of its property in the street or subject it to greater expense in the maintenance of its property in changing the location thereof. (Matter of Deering,93 N.Y. 361;New Orleans Gas Co. v.Drainage Commission,197 U.S. 453;National Water Works Co. v.City of Kansas, 28 Fed. Rep. 921;Chicago, BurlingtonQ.R. Co. v.Drainage Commissioners,200 U.S. 561;WesternUnion Tel. Co. v.Syracuse Electric Light Power Co.,178 N.Y. 325;Brooklyn Elevated R.R. Co. v.City of Brooklyn,supra; Interborough Rapid Transit Co. v.Gallagher, 44 Misc Rep. 536.) It likewise took its grant subject to the right of the municipal authorities to exercise their statutory power of granting vault privileges. Doubtless if the defendant inflicted a direct injury upon the plaintiff's property, it would be liable, but neither the plaintiff's line of steam pipe nor the walls built to protect the same were within that part of the street wherein the construction ofPage 264the vaults was authorized and the injury was not directly inflicted. It does not appear that any part of the structures placed in the street by the plaintiff was uncovered by the excavation for the vaults, or touched by the piling that was driven in the execution of the work. It does not even appear how near the piling came to any of the plaintiff's underground construction. As already observed, the only inference from the findings is that the jarring or compression of the earth incident to driving the piling caused the damages. There was no caving in toward the vaults and there is no evidence that the soil of the street or any structure therein settled or was disturbed for want of lateral support. The findings exonerate the defendant from any charge of negligence. The work was conducted carefully and properly and the driving of the piling was incidental and necessary to the proper construction of the vaults as authorized by the permits. In view of the findings there is no force in the suggestion that the permits did not authorize the driving of the piling just outside the curb line, for the abutting owner was authorized to construct the wall of the vaults on the curb line and it was manifestly necessary to drive the piling outside that line in order to permit the construction of the wall where authorized. The judgment cannot be sustained upon the theory of trespass. Nothing was thrown upon or against the property of the plaintiff which would justify a recovery upon the theory of trespass without negligence. (St. Peterv.Denison,58 N.Y. 416;Hayv.Cohoes Co., 2 id. 159.) The case, in my opinion, falls within the doctrine ofHolland House Co. v.Baird(169 N.Y. 136);Atwaterv.Trustees, etc. (124 id. 602);Bennerv.A.D. Co. (134 id. 156) andBoothv.R., W. O.T.R.R.Co. (140 id. 267) where it is held that in the absence of negligence there is no liability for consequential damages incidentally resulting from the vibrations of the earth or air caused by the construction of a lawful improvement either in a public street or upon private property. The clause of the permit with respect to underground improvements was designed for the protection of those directly encountered in the progress of the work.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

PATTERSON, P.J., and LAMBERT, J., concurred; McLAUGHLIN and HOUGHTON, JJ., dissented.Page 265
McLAUGHLIN, J. (dissenting):
I am unable to concur in the opinion of Mr. Justice LAUGHLIN. I think the judgment should be affirmed for the reason stated in the opinion of the learned referee. No other rule is practicable in a great city where the streets are full of pipes laid by various public service corporations, and it is unwise to lay down the rule that in order to recover for injury thereto negligence in interfering with them must be shown.

I, therefore, vote to affirm the judgment.

HOUGHTON, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.

The following is the opinion of the referee:

LEWIS L. DELAFIELD, Referee:

The defendant, being engaged in the erection of a building upon lands east of New street in the city of New York, excavated such lands, and also certain adjacent lands forming a part of such street. Such excavation, in so far as it affected the street, was made under licenses from the city of New York, whereby permission was granted, for a recited consideration, to construct vaults under the surface of the street not extending beyond the curb line. The city owned the fee of New street, and the vault licenses granted by it were of the usual revocable character. In the course of the work of excavating the vaults under such licenses, sheet piling was sunk by the defendant immediately outside of the curb line, for the purpose of supporting the soil of the street. The plaintiff asserts that, in so doing, the defendant transcended the terms of its licenses and became a trespasser in the street. If so, it is liable, of course, for all of the consequences of its trespass. I find, however, that the vaults could not have been constructed to the curb line without the sinking of sheet piling in the street bed, immediately outside of that line, and that the right to sink such sheet piling outside of the curb, during the brief period of construction, was within the contemplation of the grant, and was impliedly sanctioned thereby.

The evidence establishes and I also find that the work of excavating the street was performed by the defendant with all due care, and that the subsidence of the soil of the street, by which the plaintiffPage 266was damaged, was not attributable to negligence on the part of the defendant, but was the inevitable result of the construction of its vaults.

The novel and interesting question is thus presented whether a private individual who, under a permit from the city, excavates the street for his own private purposes, is liable for damages caused thereby, without negligence, to a public service corporation having franchises and property rights in the street under an earlier grant from the city.

This question is by no means free from difficulty, but, in my judgment, the facts present a case in which there is cast upon the individual making the excavation an obligation so to use his property (for the right to excavate conferred by the license is property) as not to injure his neighbor.

It is true, indeed, that in the case of adjacent properties under private ownership, the obligation of lateral support does not (in the absence of statute) extend to the support of lands burdened by structures. But this rule has latterly been applied by the courts under protest, and its operation should not be extended. Moreover, it applies only to adjoining lands under private ownership, for it seems to be settled that the owners of lands abutting upon a highway are under obligation to support it. (Milburnv.Fowler, 27 Hun, 568.) This obligation undoubtedly includes the duty of supporting all pipes, mains and other structures lawfully placed thereon. As this duty rests upon the individual who owns abutting property, I can see no reason why he should be relieved from a similar obligation, when for his own purely private ends, but under a permit from the city authorities, he enters upon and excavates the highway itself. To hold that, under such circumstances, he is not bound to make good such damage as he may inflict upon a public service corporation owning property rights in the street under a grant from the city, would involve the further conclusion that he is not liable (in the absence of contract) to the city itself, even though he destroy the highway.

I base my conclusion exclusively upon the ground that the defendant has violated the mandatesic utere tuo ut alienum nonlædas, and not upon the ground that it has violated any duty cast upon it by section 22 of the Building Code. For I am satisfiedPage 267that that ordinance, like the statutes which it has supplanted, applies only to adjacent properties under private ownership. (Laws of 1855, chap. 6; Consol. Act, § 474;Dorrityv.Rapp,72 N.Y. 307;Jencksv.Kenny, 28 Abb. N.C. 154;BrooklynElevated R.R. Co. v.City of Brooklyn,2 App. Div. 98.)

In reaching the conclusion already expressed I am not unmindful of the cases which hold that the city itself when constructing works of public utility in the streets, or public service corporations when opening the streets under permits from the city for street purposes, are not liable, in the absence of negligence, for damage inflicted upon the pipes or other structures already placed in the streets by public service corporations under earlier grants. (Western Union Tel. Co. v.Syracuse Electric Light Power Co.,178 N.Y. 331;BrooklynElevated R.R. Co. v.City of Brooklyn,2 App. Div. 98;Interborough Rapid Transit Co. v.Gallagher,44 Misc. Rep. 536.) The reason for that rule is that the earlier grant is subject to the paramount right of the public to use the street for all lawful street purposes, and is qualified by the implied condition that the streets may be used in future times for such purposes (not involving an absolute destruction of the earlier grant), even though such use may involve loss and damage to the occupier under such earlier grant. That reason is not sufficiently broad to embrace such a case as is here presented, for, although these vault permits had been granted by the municipal authorities for many years prior to the grant of the franchise to the plaintiff, it was no part of the implied condition under which the plaintiff entered upon the streets that its rights should be subordinated to the private right of an individual to enter upon the street under a permit from the city and to occupy it for purely private purposes.

I can see no distinction between a gas main or steam main maintained in the streets by a public service corporation under a grant from the city and a water main or sewer maintained in the streets by the city itself; and if, as between the holder of the vault license and the public service corporation, the former is absolved fromPage 268liability (in the absence of negligence) by the mere issuance of the license, I cannot see how (in the absence of contractual obligation) he can be held liable to the city, under like circumstances, if he injures the water main or the sewer. If, as I believe, the present case is one of first impression, the results which would flow from affording to the defendant the immunity for which it contends may properly be considered by the court.

I do not shrink from the assertion that my reasoning involves a finding that the property rights in the streets conferred upon a public service corporation by its franchise are of greater dignity than the property right conferred upon an individual by a license to construct a vault under the street for his own private ends. Even though the motive which induces the formation of a public service corporation is a purely selfish one, such a corporation becomes subject, in the moment of its birth, to the duty to serve the public, and its property interests in the streets are affected by a public duty, the performance of which may be compelled and the non-performance of which may be punished by the extinction of its corporate life. That the existence of these duties involves certain correlative rights cannot, I think, be doubted. Thus, such a corporation may be invested, because of its public duties, with the power to take private property, and the rights in real estate conferred by its franchise differ from the rights of a private owner, in that (although they are subject to the power of the public to regulate the use) they cannot be taken even for public use without anexpresslegislative sanction for the taking. And even when, in the exercise of its franchise in the streets, such a corporation is found to be a trespasser upon private rights, the consideration that it is a servant of the public interests will lead the courts to withhold the injunctive relief which they would grant against a private individual until such time as the private rights, which are invaded by the trespass, can be vested in the corporation by condemnation.

I do not assert, of course, that the public service corporation has any such interest in the streets as to be entitled to insist that no vault right shall be granted to the individual when the construction of the vault will causeindirectdamage to its structure, or that in such a case as is here presented it would be entitled to an injunction against the construction of the vault. For the grant of thePage 269franchise to the corporation does not involve a surrender by the city of its authority to grant such permits. All that I do insist is that when, in the voluntary exercise of the privilege to construct a vault for his private purposes, the licensee does damage to the property of the public service corporation, he must, even though guiltless of negligence, make the damage good. The question whether, having granted property rights in the streets to a public service corporation, the city may authorize a private individual todirectlyinvade such rights (as, for example, by compelling a steam or gas company to move its mains) for purely private ends, even upon making compensation for the damage, is not here involved.

There must be judgment for the plaintiff for the amount of damages, as stipulated, with costs.