While under the law of the New York, the owner of land abutting
on a street has easements of access, light and air as against the
erection of an elevated railway by or for a private corporation for
its own exclusive purposes, he has no such easements as against the
public use of the streets, or any such structure which may be
erected upon the street to subserve and promote the public use, and
he is not therefore deprived of his property without due process of
law by the erection of such a structure for the public use.
The decision of the Court of Appeals of the New York in the
Elevated Railroad cases related to the structure of an
elevated railroad for a private corporation, and did not create any
contract within the impairment of obligation clause of the
Constitution of the United States between the City of New York and
owners of property abutting on the streets which would be violated
by the change of grade or erection of a viaduct for public use of
the city.
These rules applied to the case of an abutting owner on 155th
Street in New York City and
held that the erection of the
viaduct therein was merely a change of grade, and that he was not
thereby deprived of his property without due process of law, nor
was the obligation of any contract impaired by the judgment of the
Court of Appeals holding that the rule of the
Elevated
Railroad cases did not apply in such a case.
Muhlker v.
Harlem R. Co., 197 U. S. 544,
distinguished.
George W. Sauer, the intestate of the plaintiffs in error
(hereafter called the plaintiff), became, on July 1, 1886, the
owner in fee simple of a parcel of land on the corner of One
Hundred and Fifty-fifth Street and Eighth Avenue, in the City of
New York. There was then upon the land a building used as a place
of public resort. The City of New York was and is the owner of the
fee of One Hundred and Fifty-fifth street and Eighth Avenue, which
it holds in trust for the public for highways.
Before the passage of the act hereinafter referred, to One
Hundred and Fifty-fifth Street had been graded from Eighth
Page 206 U. S. 537
Avenue in a westerly direction until it reached a high, and, for
street uses, impassable bluff on the summit of which ran St.
Nicholas Place, a public highway. The street, as laid out on the
records, ascends the bluff and continues westerly to the Hudson
River. It extends easterly to the Harlem River at a point where the
river is bridged by McComb's Dam Bridge.
In 1887 the Legislature of the State of New York enacted a law
which authorized the City of New York, for the purpose of improving
and regulating the use of One Hundred and Fifty-fifth Street, to
construct over said street from St. Nicholas Place to McComb's Dam
Bridge an elevated iron viaduct for the public travel, with the
proviso that no railways should be permitted upon it. There was no
provision for damages to the owners of land abutting on the street.
Subsequently the viaduct was constructed, resting upon iron columns
placed in the roadway. The surface of the viaduct consisted of
asphalt and paving blocks laid on iron beams. Opposite the
plaintiff's land, it is sixty-three feet wide and about fifty feet
above the surface of the original street, which, except as
interfered with by the viaduct, remains unobstructed for public
travel. At the junction of the street with Eighth Avenue it is
widened into a quadrangular platform, 80 by 160 feet in extent.
Near the plaintiff's land, the viaduct may be reached by a
stairway. By the construction and maintenance of the viaduct, the
plaintiff's access to his land and the free and uninterrupted use
of light and air have been impaired, and the value of his property
has been decreased by reason of the dust, dirt, and noise
occasioned by the structure. This action was brought to enjoin the
defendant from maintaining the viaduct, or, in the alternative, for
the recovery of damages caused by it. There was judgment for the
defendant by the supreme court, affirmed by the appellate division
and the Court of Appeals. 180 N.Y. 27. After the last decision, the
case was remitted to the supreme court, where there was final
judgment for the defendant, and it is now here on writ of error
under the claim that --
Page 206 U. S. 538
First. Plaintiff has been deprived of his property without due
process of law, in violation of § 1 of the Fourteenth Amendment to
the Constitution of the United States; and
Second. That the act under which the viaduct was constructed, as
construed by the court, impairs the obligation of a contract, in
violation of § 10, Article I, of the Constitution of the United
States.
Page 206 U. S. 541
MR. JUSTICE MOODY, after making the foregoing statement,
delivered the opinion of the Court.
The acts of the defendant for which the plaintiff sought a
remedy in the courts of New York may be simply stated. The
plaintiff owned land with buildings thereon situated at the
junction of One Hundred and Fifty-fifth Street and Eighth Avenue,
two public highways, in which the fee was vested in the city upon
the trust that they should be forever kept open as public streets.
As One Hundred and Fifty-fifth Street was graded at the time the
plaintiff acquired his title, it was isolated to a considerable
extent from the street system of the city. Its west end ran into a
high and practically impassable bluff, which rendered further
progress in that direction impossible. The east end ran to the bank
of the Harlem River at a grade which rendered access to McComb's
Dam Bridge, which crossed the river at that point, impossible.
Under legislative authority, the city constructed, solely for
public travel, a viaduct over One Hundred and Fifty-fifth Street,
beginning at
Page 206 U. S. 542
the bridge and thence running with gradual ascent to the top of
the bluff. This viaduct enabled travelers to use One Hundred and
Fifty-fifth Street in connection with other streets of the city,
from which it had previously been disconnected. The viaduct rested
upon columns planted in the street, and they, and the viaduct
itself, to a material extent impaired the plaintiff's access to his
land and the free admission to it of light and air. The plaintiff,
in his complaint, alleged that this structure was unlawful because
the law under which it was constructed did not provide for
compensation for the injury to his private property in the
easements of access, light, and air appurtenant to his estate. The
Court of Appeals denied the plaintiff the relief which he sought
upon the ground that, under the law of New York, he had no
easements of access, light, or air, as against any improvement of
the street for the purpose of adapting it to public travel. In
other words, the court in effect decided that the property alleged
to have been injured did not exist. The reasons upon which the
decision of that court proceeded will appear by quotations from the
opinion of the court, delivered by Judge Haight. Judge Haight
said:
"The fee of the street having been acquired according to the
provisions of the statute, we must assume that full compensation
was made to the owners of the lands through which the streets and
avenues were laid out, and that thereafter the owners of lands
abutting thereon hold their titles subject to all of the legitimate
and proper uses to which the streets and public highways may be
devoted. As such owners, they are subject to the right of the
public to grade and improve the streets, and they are presumed to
have been compensated for any future improvement or change in the
surface or grade rendered necessary for the convenience of public
travel, especially in cities where the growth of population
increases the use of the highways. The rule may be different as to
peculiar and extraordinary changes made for some ulterior purposes
other than the improvement of the street, as, for instance,
Page 206 U. S. 543
where the natural surface has been changed by artificial means,
such as the construction of a railroad embankment, or a bridge over
a railroad, making elevated approaches necessary. But as to changes
from the natural contour of the surface, rendered necessary in
order to adapt the street to the free and easy passage of the
public, they may be lawfully made without additional compensation
to abutting owners, and for that purpose bridges may be constructed
over streams and viaducts over ravines, with approaches thereto
from intersecting streets. . . . In the case under consideration,
as we have seen, One Hundred and Fifty-fifth Street continued west
to Bradhurst Avenue. There it met a steep bluff seventy feet high,
on the top of which was St. Nicholas Place. The title of the street
up the bluff had been acquired and recorded, but it had never been
opened and worked as a street. The bluff was the natural contour of
the surface, and, for the purpose of facilitating easy and safe
travel of the public from St. Nicholas Place to other portions of
the city, the legislature authorized the construction of the
viaduct in question. It is devoted to ordinary traffic by teams,
vehicles, and pedestrians. It is prohibited for railroad purposes.
It is one of the uses to which public highways are primarily opened
and devoted. It was constructed under legislative authority, in the
exercise of governmental powers, for a public purpose. It is not,
therefore, a nuisance, and the plaintiff is not entitled to have
its maintenance enjoined or to recover in this action the
consequential damages sustained."
The plaintiff now contends that the judgment afterwards rendered
by the Supreme Court of New York, in conformity with the opinion of
the Court of Appeals, denied rights secured to him by the federal
Constitution. This contention presents the only question for our
determination, and the correctness of the principles of local land
law applied by the state courts is not open to inquiry here, unless
it has some bearing upon that question. But it may not be
inappropriate to say that the decision of the Court of Appeals
seems to be in full accord
Page 206 U. S. 544
with the decisions of all other courts in which the same
question has arisen. The state courts have uniformly held that the
erection over a street of an elevated viaduct, intended for general
public travel and not devoted to the exclusive use of a private
transportation corporation, is a legitimate street improvement,
equivalent to a change of grade, and that, as in the case of a
change of grade, an owner of land abutting on the street is not
entitled to damages for the impairment of access to his land and
the lessening of the circulation of light and air over it.
Selden v. Jacksonville, 28 Fla. 558;
Willis v.
Winona, 59 Minn. 27;
Colclough v. Milwaukee, 92 Wis.
182;
Walish v. Milwaukee, 95 Wis. 16;
Home Building
Company v. Roanoke, 91 Va. 52 (cited with apparent approval by
this Court in
Meyer v. Richmond, 172 U. S.
82,
172 U. S. 95;
Willets Manufacturing Co. v. Mercer County, 62 N.J.L. 95;
Brand v. Multnomah County, 38 Or. 79;
Mead v.
Portland, 45 Or. 1, affirmed by this Court in
200 U. S. 200 U.S.
148;
Sears v. Crocker, 184 Mass. 588; (
Semble)
Delucca v. North Little Rock, 142 F. 597).
The case of
Willis v. Winona is singularly like the
case at bar in its essential facts. There, as here, a viaduct was
constructed, connecting by a gradual ascent the level of a public
street with the level of a public bridge across the Mississippi. An
owner of land abutting on the street over which the viaduct was
elevated was denied compensation for his injuries, Mr. Justice
Mitchell saying:
"The bridge is just as much a public highway as is Main Street,
with which it connects, and, whether we consider the approach as a
part of the former or of the latter, it is merely a part of the
highway. The city having, as it was authorized to do, established a
new highway across the Mississippi River, it was necessary to
connect it, for purposes of travel, with Main and the other streets
of the city. This it has done in the only way it could have been
done, by what, in effect, amounts merely to raising the grade of
the center of Main Street in front of plaintiff's lot. It can make
no difference in principle
Page 206 U. S. 545
whether this was done by filling up the street solidly or, as in
this case, by supporting the way on stone or iron columns. Neither
is it important if the city raise the grade of only a part of the
street, leaving the remainder at a lower grade. . . ."
"The doctrine of the courts everywhere, both in England and in
this country (unless Ohio and Kentucky are exceptions), is that, so
long as there is no application of the street to purposes other
than those of a highway, any establishment or change of grade made
lawfully, and not negligently performed, does not impose an
additional servitude upon the street, and hence is not within the
constitutional inhibition against taking private property without
compensation, and is not the basis for an action for damages unless
there be an express statute to that effect. That this is the rule,
and that the facts of this case fall within it, is too well
established by the decisions of this Court to require the citation
of authorities from other jurisdictions. . . ."
"The
New York Elevated Railway cases cited by plaintiff
are not authority in his favor, for they recognize and affirm the
very doctrine that we have laid down,
Story v. New York
Elevated R. Co., 90 N.Y. 122, but hold that the construction
and maintenance on the street of an elevated railroad operated by
steam, and which was not open to the public for purposes of travel
and traffic, was a perversion of the street from street uses, and
imposed upon it an additional servitude, which entitled abutting
owners to damages."
The cases cited usually recognized the authority of the
New
York Elevated cases, hereinafter to be discussed, and approved
the distinction from them made by Mr. Justice Mitchell.
But, as has been said, we are not concerned primarily with the
correctness of the rule adopted by the Court of Appeals of New York
and its conformity with authority. This Court does not hold the
relation to the controversy between these parties which the Court
of Appeals of New York had. It was
Page 206 U. S. 546
the duty of that court to ascertain, declare, and apply the law
of New York, and its determination of that law is conclusive upon
this Court. This Court is not made, by the laws passed in pursuance
of the Constitution, a court of appeal from the highest courts of
the states, except to a very limited extent, and for a precisely
defined purpose. The limitation upon the power of this Court in the
review of the decisions of the courts of the states, though
elementary and fundamental, is not infrequently overlooked at the
Bar, and unless it is kept steadily in mind, much confusion of
thought and argument result. It seems worthwhile to refer to the
provisions of the Constitution and laws which mark and define the
relation of this Court to the courts of the state. Article III of
the Constitution ordains, among other things, that
"the judicial power shall extend to all cases in law and equity
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority,"
and that the appellate jurisdiction of the Supreme Court shall
be exercised under such regulations as Congress shall make.
It was from this provision of the Constitution that Marshall, in
Cohens v.
Virginia, 6 Wheat. 264, derived the power of this
Court to review the judgments of the courts of the states, and, in
defining the appellate jurisdiction, the Chief Justice expressly
limited it to questions concerning the Constitution, laws, and
treaties of the United States, commonly called federal questions,
and excluded altogether the thought that, under the congressional
regulation, the jurisdiction included any power to correct any
supposed errors of the state courts in the determination of the
state law. Such was the expressed limitation of the original
Judiciary Act, in its present form found in § 709 of the Revised
Statutes, which has been observed by this Court in so many cases
that the citation of them would be an idle parade. It is enough to
refer to
Murdock v.
Memphis, 20 Wall. 590, where, after great
consideration, it was held that, under the Judiciary Act, as
amended to its present form, this Court was limited to the
consideration of
Page 206 U. S. 547
the federal questions named in the Constitution. This Court,
whose highest function it is to confine all other authorities
within the limits prescribed for them by the fundamental law, ought
certainly to be zealous to restrain itself within the limits of its
own jurisdiction, and not be insensibly tempted beyond them by the
thought that an unjustified or harsh rule of law may have been
applied by the state courts in the determination of a question
committed exclusively to their care.
In the case at bar, therefore, we have to consider solely
whether the judgment under review has denied to the plaintiff any
right secured to him by the federal Constitution. He complains:
First. That he was denied the due process of law secured to him
by the Fourteenth Amendment, in that his property was taken without
compensation; and
Second. That the law which authorized the construction of the
viaduct, as interpreted by the Court of Appeals of New York,
impaired the obligation of the contract with the City of New York,
which is implied from the laying out of the street, in violation of
Article I, § 10, paragraph 1, of the Constitution. The contentions
may profitably be considered separately.
Has the plaintiff been deprived of his property without due
process of law? The viaduct did not invade the plaintiff's land. It
was entirely outside that land. But it is said that appurtenant to
the land there were easements of access, light, and air, and that
the construction and operation of the viaduct impaired these
easements to such an extent as to constitute a taking of them. The
only question which need here be decided is whether the plaintiff
had, as appurtenant to his land, easements of the kind described --
in other words, whether the property which the plaintiff alleged
was taken existed at all. The court below has decided that the
plaintiff had no such easements -- in other words, that there was
no property taken. It is clear that, under the law of New York, an
owner of land abutting on the street has easements of access,
light,
Page 206 U. S. 548
and air as against the erection of an elevated roadway by or for
a private corporation for its own exclusive purposes, but that he
has no such easements as against the public use of the streets, or
any structures which may be erected upon the street to subserve and
promote that public use. The same law which declares the easements
defines, qualifies, and limits them. Surely such questions must be
for the final determination of the state court. It has authority to
declare that the abutting landowner has no easement of any kind
over the abutting street; it may determine that he has a limited
easement; or it may determine that he has an absolute and
unqualified easement. The right of an owner of land abutting on
public highways has been a fruitful source of litigation in the
courts of all the states, and the decisions have been conflicting,
and often in the same state irreconcilable in principle. The courts
have modified or overruled their own decisions, and each state has
in the end fixed and limited, by legislation or judicial decision,
the rights of abutting owners in accordance with its own view of
the law and public policy. As has already been pointed out, this
Court has neither the right nor the duty to reconcile these
conflicting decisions nor to reduce the law of the various states
to a uniform rule which it shall announce and impose. Upon the
ground, then, that, under the law of New York, as determined by its
highest court, the plaintiff never owned the easements which he
claimed, and that therefore there was no property taken, we hold
that no violation of the Fourteenth Amendment is shown.
The remaining question in the case is whether the judgment under
review impaired the obligation of a contract. It appears from the
cases to be cited that the courts of New York have expressed the
rights of owners of land abutting upon public streets to and over
those streets in terms of contract, rather than in terms of title.
In the City of New York, the city owns the fee of the public
streets (whether laid out under the civil law of the Dutch regime,
or as the result of conveyances between the city and the owners of
land, or by
Page 206 U. S. 549
condemnation proceedings under the statutory law of the state)
upon a trust that they shall forever be kept open as public
streets, which is regarded as a covenant running with the abutting
land. Accepting, for the purposes of this discussion, the view that
the plaintiff's rights have their origin in a contract, then it
must be that the terms of the trust and the extent of the resulting
covenant are for the courts of New York finally to decide and
limit, providing that, in doing so, they deny no federal right of
the owner. The plaintiff asserts that the case of
Story v. New
York Elevated Railroad, 90 N.Y. 122, decided in 1882, four
years before he acquired title to the property, interpreted the
contract between the City of New York and the owners of land
abutting upon its streets as assuring the owner easements of
access, light, and air, which could not lawfully be impaired by the
erection on the street of an elevated structure designed for public
travel; that he is entitled to the benefit of his contract as thus
interpreted, and that the judgment of the court denying him its
benefits impaired its obligation. If the facts upon which this
claim is based are accurately stated, then the case comes within
the authority of
Muhlker v. Railroad Co., 197 U.
S. 544, which holds that, when the Court of Appeals has
once interpreted the contract existing between the landowner and
the city, that interpretation becomes a part of the contract, upon
which one acquiring land may rely, and that any subsequent change
of it to his injury impairs the obligation of the contract. It will
be observed that it is an essential part of the plaintiff's case
that he should show that his contract had been interpreted in the
manner he states. It therefore becomes necessary to examine the
Story case, wherein he asserts such an interpretation was
made. In order to ascertain precisely what that case decided, we
may consider other decisions of the Court of Appeals, though they
are later in time than the acquisition of the plaintiff's
title.
The plaintiff in the
Story case held the title to land
injuriously affected by the construction of an elevated
railroad,
Page 206 U. S. 550
as a successor to a grantee from the city. In the deed of the
city, the land was bounded on the street and contained a covenant
that it should
"forever thereafter continue and be for the free and common
passage of, and as public streets and ways for, the inhabitants of
the said city, and all others passing and returning through or by
the same, in like manner as the other streets of the same city now
are, or lawfully ought to be."
It was held that, by virtue of this covenant, which ran with the
land, the plaintiff was entitled to easements in the street of
access, and of free and uninterrupted passage of light and air;
that the easements were property within the meaning of the
Constitution of the state, and could not lawfully be taken from
their owner without compensation, and that the erection of the
elevated structure was a taking. The decision rested upon the view
that the erection of an elevated structure for railroad purposes
was not a legitimate street use. "There is no change," said Judge
Danforth (p. 156),
"in the street surface intended; but the elevation of a
structure useless for general street purposes, and as foreign
thereto as the house in Vesey Street,
Corning v. Lowerre,
6 Johns.Ch. 439, or the freight depot,
Barney v. Keokuk,
94 U. S.
324."
"The question here presented," said Judge Tracy (p. 174),
"is not whether the legislature has the power to regulate and
control the public uses of the public streets of the city, but
whether it has the power to grant to a railroad corporation
authority to take possession of such streets and appropriate them
to uses inconsistent with and destructive of their continued use as
open public streets of the city."
In the case of
Lahr v. Metropolitan Elevated Railroad
Co., 104 N.Y. 268, decided in 1887, the plaintiff held title
by mesne conveyances from the owner, from whom the land for the
street had been acquired by condemnation under a statute which
provided that the land thus taken should be held
"in trust, nevertheless that the same be appropriated and kept
open for and as a part of a public street . . . forever, in like
manner as the other public streets . . . in the said city
Page 206 U. S. 551
are, and of right ought to be."
It was contended that the principle of the
Story case
should be confined to those who, like Story, held title under a
grant from the city with a covenant that the street should be kept
open. But the court held that there was no legal difference between
the two cases, and that from the condemnation statute a covenant
running with the land was implied for the benefit of its owners,
and that the plaintiff was entitled to recover damages for the
injury to his easements of access, light, and air. But, as in the
Story case, the extent of the decision was carefully
limited. "The logical effect of the decision in the
Story
case," said Chief Judge Ruger (p. 292),
"is to so construe the Constitution as to operate as a
restriction upon the legislative power over the public streets
opened under the act of 1813, and confine its exercise to such
legislation as shall authorize their use for street purposes alone.
Whenever any other use is attempted to be authorized, it exceeds
its constitutional authority. Statutes relating to public streets
which attempt to authorize their use for additional street uses are
obviously within the power of the legislature to enact."
In the case of
Kane v. Elevated R. Co., 125 N.Y. 164,
decided in 1891, it appeared that the street there in question was
laid out during the Dutch regime, when the town had absolute title
to the fee of the streets, with no easement over them in favor of
the abutting land. But it was held by the court that, by virtue of
certain legislation, not necessary here to be stated, New York City
owns the fee in all of its streets upon a trust, both for the
public and the abutting land, that they shall forever be kept open
as public streets, and that, as to an abutting owner, this trust
cannot be violated without compensation. But, in the opinion, the
limits of the principle were again carefully guarded. It was said
by Judge Andrews (p. 175):
"Under the decisions, made there seems to be no longer any doubt
in this state that streets in a city laid out and opened under
charter provisions may, under legislative and municipal authority,
be used for any public use consistent
Page 206 U. S. 552
with their preservation as public streets, and this, although
the use may be new, and may seem to impose an additional burden,
and may subject lot owners to injury. The mere disturbance of their
rights of light, air, and access by the imposition of a new street
use must be borne, and gives no right of action."
And again (p. 185):
"We conclude this part of the case with the remark that neither
the
Story nor the
Lahr case imposes any
limitation upon the legislative power over streets for street uses.
They simply hold that the trust upon which streets are held cannot
be subverted by devoting them to other and inconsistent uses."
It would be difficult for words to show more clearly than those
quoted from the opinions that such a case as that now before us was
not within the scope of the decisions or of the reasons upon which
they were founded. The difference between a structure erected for
the exclusive use of a railroad and one erected for the general use
of the public was sharply defined. It was only the former which the
court had in view. That the structure was elevated, and for that
reason affected access, light, and air, was an important element in
the decisions, but it was not the only essential element. The
structures in these cases were held to violate the landowners'
rights not only because they were elevated and thereby obstructed
access, light, and air, but also because they were designed for the
exclusive and permanent use of private corporations. The limitation
of the scope of the decision to such structures, erected for such
purposes, appears not only in the decisions themselves, but quite
clearly from subsequent decisions of the Court of Appeals. In the
case of
Fobes v. R., W. & O. R. Co., 121 N.Y. 505,
Judge Peckham, now MR. JUSTICE PECKHAM, made the following
statement of the effect of the
Story case. Certain
portions of it are italicized here for the purpose of emphasizing
the point now under consideration:
"It was not intended in the
Story case to overrule or
change the law in regard to steam surface railroads. The case
embodied
Page 206 U. S. 553
the application of what was regarded as well established
principles of law to a new combination of facts, such facts
amounting, as was determined, to an absolute and permanent
obstruction in a portion of the public street, and in a
total
and exclusive use of such portion
by the defendant,
and such
permanent obstruction and total and exclusive
use, it was further held, amounted to a taking of some portion
of the plaintiff's easement in the street for the purpose of
furnishing light, air, and access to his adjoining lot. This
absolute and
permanent obstruction of the street and
this total and exclusive use of a portion thereof by the defendant
were accomplished by the erection of a structure for the elevated
railroad of defendant, which structure is fully described in
the case as reported."
"The structure, by the mere fact of its existence in the street,
permanently and at every moment of the day took away from the
plaintiff some portion of the light and air which otherwise would
have reached him, and, in a degree very appreciable, interfered
with and took away from him his facility of access to his lot; such
interference not being intermittent and caused by the temporary use
of the street by the passage of the vehicles of the defendant while
it was operating its road through the street, but caused by the
iron posts and by the superstructure imposed thereon, and existing
for every moment of the day and night.
Such a permanent, total,
exclusive, and absolute appropriation of a portion of the street as
this structure amounted to was held to be illegal and wholly
beyond any legitimate or lawful use of a public street. The taking
of the property of the plaintiff in that case was held to follow
upon the
permanent and exclusive nature of the appropriation by
the defendant of the public street, or of some portion
thereof."
The distinction between the erection of an elevated structure
for the exclusive use of a private corporation and the same
structure for the use of public travel is clearly illustrated in
the contrast in the decisions of
Reining v. Railroad, 128
N.Y. 157, and
Talbot v. Railroad, 151 N.Y. 155. In the
first case,
Page 206 U. S. 554
it was held that the abutting landowner had the right to
compensation for the construction of a viaduct in the street for
the practically exclusive occupation of a railroad. In the second
case, it was held that the abutting owner had no right of
compensation for the erection of a public bridge with inclined
approaches and a guard wall to carry travel over a railroad,
although the structure impaired the access to his land. We are not
concerned with the question whether the distinction between an
elevated structure for the exclusive use of a corporation and the
same structure for the purposes of public travel is, so far as an
abutting landowner is concerned, a just or harsh one, provided it
is a clear distinction based upon real differences. We think that,
before the plaintiff had acquired his title, the law of New York
had plainly drawn this distinction. The highest court of the state
had held that the contract of the owner of land abutting on streets
entitled him to the right of unimpaired access and uninterrupted
circulation of light and air as against an elevated structure
erected for the exclusive use of a private corporation; had, with
scrupulous care, refrained from holding that he had the same right
as against an elevated structure of the same kind erected for the
purpose of public travel, and had pointed out plainly the essential
distinction between the two cases. This distinction, as we have
already seen, has been made or approved by the courts of other
states wherever the occasion to consider it arose, and it is a real
and substantial distinction which arises out of the trust upon
which the public owns the public highways.
The trust upon which streets are held is that they shall be
devoted to the uses of public travel. When they, or a substantial
part of them, are turned over to the exclusive use of a single
person or corporation, we see no reason why a state court may not
hold that it is a perversion of their legitimate uses, a violation
of the trust, and the imposition of a new servitude. But the same
court may consistently hold that, with the acquisition of the fee,
and in accordance with the trust,
Page 206 U. S. 555
the city obtained the right to use the surface, the soil below,
and the space above the surface in any manner which is plainly
designed to promote the ease, facility, and safety of all those who
may desire to travel upon the streets, and that the rights attached
to the adjoining land, or held by contract by its owner, are
subordinate to such uses, whether they were foreseen or not when
the street was laid out. In earlier and simpler times, the surface
of the streets was enough to accommodate all travel. But, under the
more complex conditions of modern urban life, with its high and
populous buildings, and its rapid interurban transportation, the
requirements of public travel are largely increased. Sometimes the
increased demands may be met by subways and sometimes by viaducts.
The construction of either solely for public travel may well be
held by a state court to be a reasonable adaptation of the streets
to the uses for which they were primarily designed. What we might
hold on these questions where we had full jurisdiction of the
subject it is not necessary here even to consider.
In basing its judgment on the broad, plain, and approved
distinction between the abandonment of the street to private uses
and its further devotion to public uses, the court below overruled
none of its decisions, but, on the contrary, acted upon the
principles which they clearly declared. The plaintiff therefore has
not shown that in his case the state court has changed, to his
injury, the interpretation of his contract with the city, which it
had previously made, and upon which he had the right to rely. The
case at bar is not within the authority of the
Muhlker
case. When Muhlker acquired his title, the elevated railroad cases
had declared the law of New York, and it was here held that he had
the right to rely upon his contract as in them it had been
interpreted. The structure complained of was, in the
Muhlker case as in the elevated railroad case, one devoted
to the exclusive use of a private corporation. This Court, in order
to obtain jurisdiction and to declare that a federal right was
violated, was obliged to hold, and did hold, that the two cases
were identical, and that,
Page 206 U. S. 556
in deciding the
Muhlker case, the Court of Appeals had
in effect overruled the
Elevated Railroad cases, and this
view was supported by the Court of Appeals itself in
Lewis v.
Railroad, 162 N.Y. 202, where a plaintiff in like situation
with Muhlker had obtained damages for exactly the same structure.
The theory upon which the
Muhlker case stands and upon
which it was put in the opinion of the court, is that, in deciding
against Muhlker, the state court had overruled its own decisions
and changed the interpretation of the contract upon which he had
the right to rely. But the fundamental fact upon which the decision
in the
Muhlker case rested, present there, is absent in
the case at bar. Here, there was no overruling of decisions and no
change in the interpretation of the contract. There was therefore
no impairment of the obligation of a contract, and the decision was
merely on a question of local law with the soundness of which we
have no concern.
The judgment is
Affirmed.
MR. JUSTICE McKENNA, dissenting:
I am unable to agree with the opinion and judgment of the Court.
I think this case cannot be distinguished in principle from
Muhlker v. Harlem Railroad Co., 197 U.
S. 544;
Burrell v. New York & Harlem Railroad
Co., and
Kierns v. New York & Harlem Railroad
Co., 198 U. S. 390. On
the authority of those cases, the judgment in this case should be
reversed. Those cases were determined by
Story v. Elevated
Railroad, 90 N.Y. 122, and
Lahr v. Metropolitan Elevated
R. Co., 104 N.Y. 268, known as the
Elevated Railroad
cases. The structures there described are what are known as
elevated railroads, and may be presumed to be familiar, and a
structure of substantially similar character was the subject of the
controversy in
Muhlker v. Harlem Railroad Co., Burrell v.
Same, and
Kierns v. Same. Its characteristic was
elevation above the surface of the street, and this was the point
of the decisions. Let me quote from the
Story case: "But
what," said the court,
Page 206 U. S. 557
"is the extent of this casement? What rights or privileges are
secured thereby? Generally, it may be said, it is to have the
street kept open, so that from it access may be had to the lot, and
light and air furnished across the
open way. The street
occupies the
surface, and to its uses the rights of the
adjacent lots are subordinate, but
above the surface there
can be no lawful obstruction to the access of light and air to the
detriment of the abutting owner."
And again, it was said that the agreement -- grant from the city
-- was
"that if the grantee would buy the lot abutting on the street,
he might have the use of light and air
over the open space
[italics mine] designated as a street."
And yet again (and the passage was quoted in the
Muhlker case, page
197 U. S.
566):
"Before any interest passed to the city, the owner of the land
had from it the benefit of air and light.
The public purpose of
a street requires of the soil the surface only."
The
Lahr case repeated the principle. And it was said
in the
Muhlker case, in effect, that the disregard of the
distinction between the surface of a street and the space above the
surface would leave "remaining no vital element of the
Elevated
Railroad cases."
It may be said there was a qualification made in those cases and
recognized in the
Muhlker case, that it was not alone the
elevation of a structure above the surface, but the elevation of
one "useless for general street purposes." I may accept the
limitation. The structure in the case at bar comes within the
characterization. It is useless for general street purposes. It
obstructs the frontage of abutting lots, and affords no access to
or from them in any proper sense. There is a descent by stairs from
it to the street below, but for pedestrians only -- necessarily not
for vehicles. But there is a like descent by stairs from elevated
railroads to streets below, but this did not save the roads from
liability for abutting property.
It must be borne in mind that this case is not disposed of by
making a contrast between the passage of a railroad and the traffic
on a street. The contrast is catching, and only seems important. In
New York, a railroad is a street use, and can be
Page 206 U. S. 558
imposed on the surface of a street without liability for
consequential damages, and this even if it be a steam railroad.
Fobes v. R., W. & O. R. Co., 121 N.Y. 505. The
distinction, therefore, was necessary to be made between the
surface and the open space over the surface. And we have seen that
this distinction was noted in the cases and determined their
judgment. In other words, the use of a street by a railroad was
decided to be a proper street use, and therefore, whether put upon
the surface or above the surface, retained that character. In
either place, it was a proper street use, and damages could only
have been consequent to the elevation of the road above the
surface, to which, to quote again the
Story case, the
"public purpose of a street" attached only.
The
Elevated Railroad cases get significance from the
arguments of counsel. Such arguments, of course, are not
necessarily a test of the decision. But they may be. The opinion
may respond accurately to them. We find from the report of the
Story case that the argument of Mr. Evarts for the
plaintiff was that
"a permanent structure above the street surface, and an
encroachment thereby and by its use upon the appurtenant easement
of the open frontage held by the abutting proprietors, was not
covered by the original condemnation for the public easement, which
was limited to a maintenance of such open streets and perpetual
frontage.
People v. Kerr, 27 N.Y. 188;
Craig v.
Rochester R. Co., 39 N.Y. 404."
Mr. Choate, also for the property owners, submitted the
following:
"The abutting owners on the streets have an interest in the
nature of property for all time in the streets above their surface,
and in having them kept open and unobstructed forever, of which
they cannot be deprived without being compensated."
The contentions express the invocation of the property owner of
the court, and the court responded to and sustained it. Is not that
response rejected in the case at bar? The structure in the case
towers as high as a house of five stories and is planted on columns
the size and strength and number of which can easily be imagined.
Does it need any
Page 206 U. S. 559
comment to describe its effect? The plaintiffs have really no
access to it from their land or from any building that may be put
upon their land, because they may not bridge the intervening gap.
They have no other access to it but that which I have described.
The public has no access from it to plaintiffs' property but that
which I have described.
The buildings that stood upon the land when the structure was
built were practically under its shadow.
* Any buildings
that may be erected will be equally so. "To get above it,"
plaintiffs' counsel asserts, "the abutter must build up five
stories," and it is only from such elevation that he may
contemplate the traffic that passes his premises. And even then,
counsel also asserts, light can only reach the abutter "through a
slit ten feet wide between his eaves and the edge of the
structure." And to this measure his right to an unobstructed
frontage, his right to unobstructed light and air, has been
reduced. Is it possible that the law can see no legal detriment in
this, no impairment of the abutter's grant from the city, no right
to compensation?
I am not insensible of the strength of the reasoning by which
this Court sustains that conclusion, but certainly all lawyers
would not assent to it. Indeed, one must be a lawyer to assent to
it. At times, there seems to be a legal result which takes no
account of the obviously practical result. At times, there seems to
come an antithesis between legal sense and common sense.
I say this in no reproach of the law and its judgments. I say it
in no reproach to the opinion of the Court. I recognize it proceeds
upon distinctions which are intelligible, although
Page 206 U. S. 560
I do not assent to them. My purpose is only to express the view
that the legal opinion which I hold has justification in the
serious practical consequences that the plaintiffs in error have
sustained by the violation of a right which this Court said, in the
Muhlker case, citing
Barnett v. Johnson, 15
N.J.Eq. 481, was founded in the "common practice and sense of the
world."
From my standpoint, what the courts of states other than New
York have decided is of no consequence to the pending controversy,
and I take no time therefore to dispute the pertinence of their
citation to justify the structure of which plaintiffs complain.
I am authorized to say that MR. JUSTICE DAY concurs in this
dissent.
* When the original plaintiff, George Sauer, became the owner of
the property, there were standing upon it certain frame buildings
which had been used as a pleasure resort. In 1890, he enlarged and
improved the buildings at great expense and occupied them at the
time of the erection of the structure in controversy. These
buildings were destroyed in 1897 by fire, and the land is now
vacant. And it may be noted that, Sauer having died pending this
writ of error, his administratrix and heirs have been substituted
as parties plaintiff.