104 NY 268 (1887)
The decision in Story v. New York Elevated R.R. Co. (90 NY 122 [1882]) holding that abutting property owners adversely affected by the construction of elevated railroads were entitled to compensation led to a deluge of litigation in the New York State courts as hundreds of individual property owners sued for damages. In 1887, the Court of Appeals had occasion to revisit its decision in Story. It not only stood behind Story but expanded the principles announced in that case to a broad geographic area of Manhattan.
The plaintiff in Lahr owned a lot abutting the defendant’s elevated railroad located on a street that was first opened and created by an Act of the Legislature in 1813. Chief Judge William Ruger, writing for a unanimous court, described Lahr as the “sequel” to Story. He observed that the appeal was brought for the purpose of securing a “re-examination of the questions” decided in Story and “limiting and restricting as much as possible, their logical effect.” Chief Judge Ruger left no doubt that the court was standing by its earlier decision.
The doctrine of the Story Case, although pronounced by a divided court, must be considered as stare decisis upon all questions involved therein, and as establishing the law, as well for this court as for the people of the State, whenever similar questions may be litigated. Wherever, therefore, the principles of that case logically lead us we feel constrained to go, and give full effect to the rule therein stated, that abutters upon public streets in cities are entitled to such damages, as they may have sustained by reason of a diversion of the street, from the use for which it was originally taken, and its illegal appropriation to other and inconsistent uses.
In Story, title to the affected property was created by a deed conveyed by the City, whereas in Lahr, title was created by an act of the Legislature. The Court found no real distinction between the terms of the Story deed and the language of the 1813 Act, which vested title in the street to the City “in trust, nevertheless, that the same be appropriated and kept open for or as a part of a public street . . . forever in like manner as the other public streets . . . of the said city are and of right ought to be.”
In the court’s view, the 1813 Act created on behalf of the adjoining property owner an easement in the bed of the street for access to the owner’s premises, and for the “free and uninterrupted passage and circulation of light and air through and over such street.” The erection of an elevated railroad with cars propelled by steam engines, “generating gas, steam and smoke, and distributing in the air cinders, dust, ashes and other noxious and deleterious substances, and interrupting the free passage of light and air to and from adjoining premises, constitutes a taking of the easement,” requiring compensation to the plaintiff before it could be lawfully taken for public use.
The ruling in Lahr had significant consequences. At the time the decision was made most of the streets in New York City had been created by the 1813 Act.