APPEAL by the defendants, The New York Central and Hudson River Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1910, upon the decision of the court rendered after a trial at the Westchester Special Term.
George H. Walker [Alexander S. Lyman with him on the brief], for the appellants.
Thomas A. McKennell [George C. Appell and Alfred H. Appell with him on the brief], for the respondents.
JENKS, P. J.:
The judgment for the plaintiffs is for damages to their private easements of access. They assert these rights in that their property was laid out originally into lots upon certain
streets on a map made by Kurth and filed in the register's office of Westchester county in 1854 and 1859 respectively, and in that their conveyances were made with reference to such map. Pursuant to law the Public Service Commission of the second district have approved and have adopted a plan which required the defendant to eliminate certain grade crossings. This plan required the building of a solid embankment to support the defendants' tracks. The construction of this embankment is the alleged offending of the defendant.
The plan also required the extension and reconstruction of a road called the Bronx Place road. The embankment is to be built upon a way known as West Railroad avenue, extending northerly and southerly, whereon are now laid the tracks of the defendant. Certain streets which appear as Bronx, Howard and Putnam streets on the Kurth map, run easterly up to West Railroad avenue and also, to the west, cross or run into the streets upon such map upon which the lots of the plaintiffs face. The sides of some of the plaintiffs' lots adjoin such streets.
The Special Term found that prior to the building of the embankment plaintiffs' access to the business part of the city of Mount Vernon was by way of Putnam, Bronx and Howard streets to and through West Railroad avenue to Oak street and Mount Vernon avenue. That is, the plaintiffs could travel easterly by a block or two blocks by either of these streets and thence would proceed along West Railroad avenue to the south. The court further decided that the said Bronx Place road when constructed will provide an 'outlet' to the plaintiffs to the west and south, but the result of the substitution 'will be to make the distance from the plaintiffs' premises to Mount Vernon Avenue and the business part of the City of Mount Vernon greater by several hundred feet than is the distance by way of West Railroad Avenue and Bronx, Howard and Putnam Streets.' The court also considered the corollary that the plaintiffs would be deprived of access from West Railroad avenue through those said streets, also certain difficulties in the laying of sewers, gas or water pipes, and also interference with police and fire protection of the territory. The conclusion of the court is that the 'damage done to the
plaintiffs' property by the building of the railroad embankment, and the shutting off of Bronx, Howard and Putnam Streets, is the sum of fifteen thousand dollars.' Thereupon an injunction was awarded with alternative of the payment of that sum and the defendants appeal.
Aside from the question of main or pipe construction and of police and fire protection, the judgment seems to rest upon the determination that the substituted route is longer by several hundred feet. I think that this fact is not sufficient to support the judgment, for the substitution of a longer route or of one that would make the plaintiffs' premises less accessible did not deprive the plaintiffs of any vested right or cause them any injury which must be compensated. ( Matter of Grade Crossing Commissioners, 166 N.Y. 69, citing Coster v. Mayor, etc., of Albany, 43 id. 399, 414; Kings County Fire Ins. Co. v. Stevens, 101 id. 411; Egerer v. N.Y. C. & H. R. R. R. Co., 130 id. 108. See, too, Fearing v. Irwin, 55 N.Y. 486; Reis v. City of New York, 188 id. 58, 68; Pearson v. Allen, 151 Mass. 79; Putnam v. B. & P. R. R. Co., 182 id. 351; Dantzer v. Indianapolis Union R. Co., 141 Ind. 604; Dodge v. Penn. R. R. Co., 43 N. J. Eq. 351, 363; affd. on opinion below, 45 id. 366; Heller v. Atchison, T. & S. F. R. R., 28 Kans. 625.)
I do not lose sight of the fact that the plaintiffs assert the property right of a private easement of access, but, nevertheless, I think that this principle is applicable to the case at bar. (Decker v. Evansville, Suburban & Newburgh Railway Company,133 Ind. 493; Dantzer v. Indianapolis Union R. Co., supra; Pearson v. Allen, supra; Reis v. City of New York, supra; Egerer v. N.Y. C. & H. R. R. R. Co., supra; Heller v. Atchison, T. & S. F. R. R., supra.) InDecker's Case (supra) the court, per COFFEY, Ch. J., say: 'It is settled law in this State that the owner of a lot abutting upon a street may have a peculiar and distinct interest in the easement in the street in front of his lot. This interest includes the right to have the street kept open and free from any obstruction which prevents or materially interferes with the ...