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Knox agt. Mayor, &c., of New York.

edly will be discovered and made to increase the safety and facilities of the public in the use of the streets, but it may very well be questioned whether experiments like the one in controversy will be found to have sufficient tendency in that direction to justify a repetition of it.

Beyond this right of improving and regulating the manner in which the streets may be used, where the public have acquired only the easement secured by the dedication, the public have no right to make use of the land over which the streets may be lawfully maintained and preserved. It was claimed upon the trial that the provisions in the early charters conferred upon this city, would authorize a more unrestricted use than that of. the land devoted to the purposes of a street. But even if these statutes were themselves capable of being so construed, which certainly would admit of very great doubt indeed, such a construction could not be sanctioned at the time when this bridge was erected, for the constitution of this state had long before that intervened with its potent injunctions that no person should be deprived of his property without due process of law, indd that private property should only be taken for public purposes by properly and justly compensating the owner for it. (Constitution of 1822, article 7, 5$ 1,7; 1. R. S., fifth edition, 44, 45.) And these provisions have been prominently placed in the constitutions formed in this state since that time. The interest which the owners of the fee had in the land dedicated to the use of the street was property in the legal as well as popular signification of that term, recognized and protected as such, the same as the other property of the owner, by the laws of this state, and therefore within these constitutional provisions. And even if the statutes previously existing within the city were of themselves so comprehensive as to allow the owner to be deprived of it without compensation and without due process of law, as long as the right secured by them was not resorted to or in any manner rendered available, until after these constitutional Knox agt. Mayor, &c., of New York.

limitations had prohibited that from being done, they will not and cannot in any manner impair the rights of the owner in this respect. Those rights are now and were when this bridge was erected within the restrictions imposed upon the public authorities by these salutary provisions of the constitution. And it was not therefore within the power of the common council or of the legislature, or both combined, to deprive the defendant of them, unless the measures for doing so were taken in conformity to its requirements. Those measures only could be effectual in this respect which would provide compensation for the property taken or would result in the assent of the person entitled to its enjoyment.

Without one or the other, the act of appropriating the property in question would necessarily be illegal and unjustifiable, if it has imposed an additional easement or burden upon the property beyond that included in the dedication. If that be its character, the provisions of the act of 1866, authorizing a certain amount to be raised by taxation for the purpose of paying for the erection of the bridge, would not deprive the plaintiff of any of his rights for redress on account of it. (Laws of 1866, 2,060.) An act of the legislature is not of itself due process of law within the contemplation and meaning of the constitution. And this act provided no compensation for the owner whose property has been rendered subservient to the maintenance of this --structure.

An attempt was made on the part of the defendant to show that the present plaintiff consented to the erection of this bridge, but no evidence was given which warranted that conclusion as a matter of fact. The right of the owner of this corner to the fee of the land in the street, subject to the easement of the public, has been acquired by the plaintiff by virtue of the lease executed and delivered to him. That bounds the land leased on the street, which by is well settled rule of construction extended the live to

Knox agt. Mayor, &c., of New York.

the centre of the street. (Bissell agt. the N. Y. C. R. R., Co., 23 N. Y., 61; Perrine agt. same, 36, N. Y., 120.) The plaintiff, therefore, is legally entitled to complain of this, if it has imposed a new burden or sei vitude upon his land in the street beyond that devoted to the use of the public, which in substance was one of passage merely.

This bridge is a structure permanently erected over the streets, appropriating for its support and the avenues to it thirteen feet in the aggregate of that part of the street which had been devoted to the use and convenience of pedestrians. It was not done for the purpose of improving the easement upon and over the land itself, which the public were and are entitled to enjoy; and it has no tendency whatever to produce any such improvement, but for the purpose of creating a new and distinct servitude, above the streets and above the land upon which the public easement was created. The tact that a portion of the street has been exclusively devoted to the support of this structure, is sufficient to show that it can be no development or improvement of the pre-existing easement, for that actually deprives the public of the use of so much of the easement itself as the bridge requires for its own support. If the appropriation of a portion of the street or sidewalks can be justified for this purpose, it may also be for the support of any other device that can be made useful in transferring persons from one side to the other side of a blockaded or crowded street. If the object in view is sufficient to justify the exercise of the power, it may be used in any manner that either ingenuity or fancy may suggest. And if a bridge is found to fail in fulfilling the expectation in this respect of those who designed and erected it, a hoisting apparatus with cranes and engines for its use, may be substituted in its place. And this may be done not only where the streets are liable to become blockaced and dangerous, but whenever that condition may be reasonably apprehended. If this may be done, nothing would appear to be

Knox agt. Mayor, &c., of New York.

in the way of a raised walk, not only across, but along the streets themselves. The power over the streets that will authorize and sanction one will permit the existence of the others. If it could be sustained, it is capable of being used in such a manner as not only to seriously impede and impair the public utility of streets as avenues for travel, but beyond that it would be in danger of rendering them not only annoying but useless to those who should endeavor to carry on business upon tiem.

Within the well settled principles of law applicable to the. government and improvement of public streets, no such erection as the one complained of can constitute a proper exercise of the power over them that has been confided to the public authorities. It is so entirely unadapted to the improvement or enjoyment of the street, as to be incapable of promoting the utility of the easement which the public have in it, in any respect whatever. On the contrary, it is a permanent obstruction, in the way of existence and enjoyment of the easement, and to that extent deprives the public of the use of that which has been dedicated and designed for their convenience and accommodation. As such it is a public nuisance, which may be and should be abated and removed. (People agt. Cunningham, 1 Denio, 524 : People agt. Vanderbilt, 28 N. Y., 396.)

And as the structure has necessarily appropriated for its support the land which the plaintiff is entitled to have maintained open and unobstructed, subject only to the right of the public to pass and repass over it, and temporarily to occupy it for the improvement and more perfect enjoyment of that right, and special injury has been occasioned to him in consequence of it, he has made out and sustained his right to insist upon such abatement and removal. He cannot, however, recover in this action the damages he has sustained by reason of such injury, because he did not present his claim for them to the comptroller for adjustment, as he was required to do by the

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Knox agt. Mayor, &c., of New York.

statute, before he commenced the action. (Laws of 1860, p. 645, $ 2.)

If the action had been for their recovery alone, it would have been plainly within the language of this statute. The fact that further relief of an equitable nature has been also demanded, cannot have the effect of excluding from the operation of the statute that which would otherwise have been so plainly within it. The plaintiff must have judgment directing the removal or abatement of this bridge as a nuisance, within ninety days after service upon the proper officer of the defendant of a certified copy of the judgment, without prejudice to the plaintiff's right to maintain an action at law for the recovery of the damages sustained by him. As both parties have succeeded in part, neither is entitled to recover costs as against the other.

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