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Knox agt. Mayor, &c., of New York.
proceeding even if the structure in controversy could be clearly established to constitute a common nuisance. The fact that he could, as a tenant of the premises which it is complained are injured, maintain only actions at law for damages, and that such actions would have to be from time to time repeated, as the damages might continue to accrue, without resulting in the removal of the structure itself, is sufficient to entitle the plaintiff to bring his action in this court as a court of equity. It is so for three reasons. First, that he has no adequate remedy at law; secondly, to prevent a multiplicity of actions; and thirdly, to prevent irreparable injury by the continuance of the nuisance itself. (2 Story's Eq. Jur., sec. 924; Spencer agt. London and Birmingham R. R. Co., 8 Simons, 193; Sampson ayt. Smith, id., 272; Ripon agt. Hobart, 3 Mylne and Keen, 169; Catlin agt. Valentine, 9 Paige, 575.)
A complete and adequate remedy in cases of nuisances in favor of all persons specially injured by them when they are of a public nature, can be administered in this court unem barrassed by the technical rules prevailing upon the subject in courts of law. And if the complaint made by the plaintiff shall prove to be well founded he has presented such a case, as for the reasons already mentioned may be properly redressed by this court as a court of Equity.
The structure which the plaintiff in this action alleges has been erected, and is now maintained by the dcfendant in violation of his rights as tenant and occupant of the premises mentioned, is a bridge elevated at the heighth of eighteen feet over the junction of Fulton street and Broadway. This bridge is reached by stairs provided for that purpose at each of its corners, resting upon the sidewalk on Broadway. They extend to such a distance along the sidewalks from the sides of the top of the bridge as to afford proper means of ascending to, and descending from the bridge itself. In front of the plaintiff's store the sidewalk is thirteen feet in width, and the stairs to the bridge have
Knox agt Mayor, &c., of New York.
been so constructed as to occupy just one-half of this space. The northeasterly stairs ascend from the walk to the bridge across a considerable portion of the front of the store occupied by the plaintiff, obstructing the free passage of the light into the store and rendering the rear portion of it so dark as to require the gas to be lighted, for a part of the day at least, in order to enable the plaintiff to carry on and transact his business. The evidence also quite satisfactorily showed that the upper portion of the building, which the plaintiff had previously leased for offices and other similar purposes, had been so far injured by this bridge being in front of them, and the obstruction to the approaches to it caused to pedestrians passing along the walks, that they had been deserted by the tenants, and he was unable to procure others to occupy them. And in addition to that, the persons who passed along the streets at this point, on account of the diminished capacity of the sidewalk by the erection of the stairs to the bridge, blockaded the front of his store, rendering it inconvenient for goods to be taken to and removed from it and for his customers to pass in and out, and frequently driving the persons collected upon the walk through the inside of his store for the purpose of passing and repassing between Broadway and Fulton street.
No reason exists under the evidence given tor doubting the truth of these statements. And assuming them to be true, as the court is bound to do, even though they may be somewhat colored, they exbibit such a clear case of special injury to the plaintiff as will enable him to maintain the present action, if the structure complained of can justly be declared to be a public nuisance. To constitute such a nuisance it is necessary that it shall be shown to have been erected and maintained in violation of law, and that it shall pe found to render the enjoyment of the rights obstructed by it inconvenient, unwholesome or uncomfortable. On account of the large amount of travel upon the streets and on the walks at this point the former frequently became so
Knox agt. Mayor, &c., of New York.
completely obstructed and blockaded by vehicles as to render it impossible, for the time being, for pedestrians to effect a crossing; and when that was not the case, crossing these streets by persons on foot was frequently difficult as well as dangerous. It was to relieve pedestrians from these interruptions and dangers that the defendant erected and has since maintained this bridge. When the streets have been very wet and muddy, and in the winter season, when the melting snow or ice has rendered a passage over them troublesome and difficult, then the evidence shows that this bridge has been used, but even then, not to such an extent as to justify the conclusion that it has afforded any great or substantial relief to the walks themselves, or the persons using them. Even at those periods the bridge does not appear to be used. to such an extent as to accommodate a number of people equal to that which the stairs obstruct by contracting and reducing the capacity of the walk. During the ordinary weather which prevails, a much smaller proportion of people make use of it, and for much of the time, its chief purpose seems to be that of affording convenient accommodations for persons desirous of observing the movements upon the streets.
The obstacles interposed by the stairs themselves to the free and unobstructed use of the sidewalks, at all times, are much greater than the convenience and facilities afforded to persons using them by the bridge. The latter, therefore, constitutes a positive obstruction to those who are entitled to the enjoyment and use of the sidewalks at this part of the city, instead of adding to or promoting their convenience. And such appears to be the manner in which it is commonly regarded, for pedestrians seem to prefer encountering the delay, difficulty and danger of crossing upon the surface of the streets themselves, to the performance of the labor required to make a combined ascent and descent of thirty-six feet, for the purpose of securing freedom from these obstacles by crossing over the bridge. Of the two, the journey
Knox agt. Mayor, &c., of New York.
over the bridge, in the judgment of those using the walks, appears to be regarded as the most difficult to be made.
For these reasons, the bridge is not such a structure as can, in any proper or legal sense, be pronounced an improvement promoting the convenient use and enjoyment of the streets. It not only impairs the value and usefulness of the adjacent property, but beyond that it renders it exceedingly inconvenient to use it for some of the ordinary purposes of business, and deprives pedestrians of thirteen feet of sidewalk that previous to its erection was capable of being freely used by them, without affording or providing them any corresponding or adequate advantage for the obstacles placed in their way. It is attended with those consequences, therefore, which, in a legal sense, constitute a public as well as a private nuisance. But whether that can be held to be its legal character, will depend entirely, upon whether it was properly and lawfully placed there.
The land upon which Broadway, at this point, has been constructed, was shown upon the trial to have been dedicated by those under whom the plaintiff has derived his estate for the uses and purposes of a public street. In this respect, it differs from many of the streets of the city where the fee of the land was in the public at large, and by legislation was afterwards transferred to the city, and also from those streets to which the city acquired title in fee by proceedings taken for opening them. In these cases the streets may be devoted to many public purposes that would be entirely unwarrantable and unjustifiable where a simple dedication of the land for the purposes of a street was all that had taken place. Hence, in the former, the legislature of the state may authorize the construction of railways over the streets, without the consent of and without compensation to the adjacent owners of property. (The People agt.Kerr, 27 N.
Y., 198.) While in the latter case, neither the legislature nor the common council of the city, can authorize or sanction such an appropriation of the street, without obtaining
Knox agt. Mayor, &c., of New York.
the consent of or making compensation to such owners. (Williams agt. The New York Central R. R. Co., 16 N. Y., 97.) In this case, it was held that the legislature had no such authority over the public streets of a city, as would permit it to authorize such a use of them. This authority also holds, that the public acquire only such an interest in land appropriated by dedication to the uses and purposes of a highway as will entitle them to use it for that object. And subject to that right, which is denominated an easement, the person or persons making the dedication, and those acquiring the property under them still retain the fee of the land.
For this reason, persons improperly appropriating or using the street for purposes not legitimately appertaining to it as a street, may be successfully prosecuted by the owner of the fee, subject to the easement, and made to respond for the act in damages, or to surrender the property itself, as the particular case may require. The right which the public acquire by means of the dedication and the acceptance of it, is that of using the land simply as a street and for nothing whatever beyond that. Incidental to this, and as a necessary part of it, the public possess the right of rendering the street as convenient, useful, commodious, safe and wholesome, as it can be by means of such improvements and regulations as experience has discovered to be adapted to those ends. To accomplish those results it may be graded, curbed, paved and sewered, and provided with the requisite gas and water pipes to light and clean it; and the manner in which excavations may be made or maintained in or under it, may be suitably and safely controlled by the public authorities having charge of the easement for the benefit of the public. But all this is done and permitted for one end and purpose, and that is, to render the streets as convenient, safe, useful and wholesome as they may be, for those having occasion to use them for the purpose of passing over them. Many other improvements in this respect may and undoubt