90 NY 122 (1882)
The rapid rise of railroads and other forms of public transit during the second half of the nineteenth century generated prolific litigation. New York City’s need to accommodate its fast-growing population made it a national leader in the development of street level and elevated rail projects. In Story v. New York Elevated R.R. Co., a decision that has been cited hundreds of times by courts and legal scholars, the Court of Appeals broke new legal ground in addressing issues of nuisance and eminent domain arising from the construction of elevated railroads in heavily populated urban areas.
The plaintiff, Rufus Story, owned a four-story warehouse fronting the street on which the defendant intended to construct an elevated railroad approximately 15-feet high with steel girders extending onto the sidewalks and carrying three sets of rails that would reach within nine feet of the plaintiff’s building. Story sought an injunction to prevent construction on the grounds that he had title to the land in the street as well as an easement in the street that would be destroyed by the railroad.
The trial court in Story found that the steam powered trains were expected to run up to every three minutes at a speed of up to 18 miles per hour and would, to varying extents, obscure light to the abutting premises; interfere with the street as a thoroughfare; and expose abutting buildings to observation from passengers, thus invading the privacy of persons residing on the second or upper floors. Although these burdens would be of a constant and continuing nature, tending to depreciate the value of the plaintiff’s property, the Court of Common Pleas of New York City and County dismissed the action, finding that the plaintiff did not have title to the land on the street and could not otherwise enjoin or seek damages for harm to his property since the legislature had validly authorized construction. The General Term of the Court of Common Pleas affirmed the judgment.
A sharply divided Court of Appeals (4-3) reversed the judgment and ruled for the plaintiff. Judge George Danforth, writing for the court’s majority, held that whether or not the plaintiff had title in the street he had valuable easements in the air, light and access to the street that would be taken by the railroad’s construction, entitling plaintiff to compensation. Judge Robert Earl, writing for the dissenters, argued that the “easements” recognized by the majority were not legally supported and that the plaintiff was not entitled to compensation based on longstanding caselaw holding that defendants constructing public works pursuant to legislative authorization were generally immune from liability for indirect harm to abutting landowners.
Judge Danforth framed the key legal question in the case as whether construction of the elevated railroad would amount to a taking of the plaintiff’s property without just compensation in violation of the State Constitution. The court examined the terms of the original deed conveyed by the City to the plaintiff’s predecessors in title and found that it contained a covenant on the City’s part to build streets at its own expense which “shall forever thereafter continue and be for the free and common passage” of the public. In the majority’s view, the plaintiff secured as part of his title “the right and privilege of having the street forever kept open” for public access, light and air. The majority described this right as an “incorporeal hereditament” or, in modern language, an easement, that followed “the estate and constitutes a perpetual incumbrance upon the land.” This easement to access, light and air was a form of “property” within the meaning of the Constitution and could not be diminished or taken without notice and just compensation. The majority concluded that the elevated railroad “would cause an actual diminution of light, depreciate the value of the plaintiff’s warehouse and thus work his injury. In doing this thing the defendant will take his property as much as if it took the tenement itself. Without air and light, it would be of little value.”
Judge Benjamin Tracy concurred in the result but based on a somewhat different interpretation of the original deed. In his view, the City had made a covenant to keep the street open as a public street for the benefit of the abutting property owners, which granted the plaintiff an easement in the bed of the street. Construction of the elevated railroad was inconsistent with the use of the street as a public road and directly invaded the plaintiff’s easement by “excluding light and air” from his adjoining premises.
The extent to which plaintiff’s property is appropriated is not material; it cannot, nor can any part of it, be appropriated to the public use without compensation. We think such a structure closes the street pro tanto and thus directly invades the plaintiff’s easement in the street as secured by the grant of the city.
Judges Earl, Finch and Miller issued separate dissents. Judge Earl’s opinion, the most extensive of the three, concluded that the plaintiff did not have title to the land in the street. He could find no basis for “an easement somewhere up in the air which is under the Constitution protected as private property.” In Judge Earl’s view, the legislature’s decision to authorize construction of an elevated railway on a public street to facilitate mass transit was not inconsistent with the use for which the streets were opened or dedicated. The street adjoining the plaintiff’s lot would not be closed to the flow of people and traffic would not be substantially impaired. Any obstruction of light or air from the street would be “slight.”
A steam railway operated upon the surface of one of the streets . . . would probably be much more damaging than an elevated railway, and yet, as I have shown, it could undoubtedly be authorized without compensation to abutting owners; and it is impossible for me to perceive upon what reasoning or theory it can be claimed, that abutting owners who have no rights upon the surface of a street for which they can claim compensation, yet have such rights when the railway is elevated above the surface. They have no easement upon or over the surface which cannot be interfered with and greatly impaired under legislative authority without compensation, and yet it is claimed that they have an easement somewhere up in the air which is under the constitutional protection as private property. Where do these aerial rights come from?
The Story decision has been described as “unexpected” for several reasons, including its departure from a long line of undisputed precedent holding that legislatively authorized public works were immune from non-negligent damage to property. A majority of the Court of Appeals also “knowingly precipitated an avalanche of litigation that repeatedly asked the court to decide damage questions and strained its already overburdened docket.”[1] Judge Francis Bergan suggests that the “key to the court’s willingness to extend liability” was the radically changed conditions created by the elevated lines, which darkened the streets, generated noise and vibration and emitted smoke, dust and fumes which came close to the upper story windows of the buildings fronting the tracks.[2]
One commentator has suggested that New York’s highest court “was reconsidering the early nineteenth-century judiciary’s priority of development over individual property rights,” and that this rebalancing was at least partly motivated by the well-publicized takeover of the elevated railroad by the “notorious monopolist Jay Gould” whose track record could not “fairly be equated with the public interest.”[3]
Story had a sequel, Lahr v. Metropolitan Elevated Ry. Co. (104 NY 268 [1887]), in which the Court of Appeals unanimously stood behind its earlier decision and expanded the principles announced in that landmark case.
[1] Elizabeth Arens, The Elevated Railroad Cases: Private Property and Mass Transit in Gilded Age New York, NYU Annual Survey of Amer. Law, Vol. 61, 2006, at 630.
[2] Francis Bergan, The History of the New York Court of Appeals, 1847-1932, Columbia Univ. Press, 1985, at 153.
[3] Arens, at 631.