Opinion
Argued March 9, 1938
Decided April 12, 1938
Appeal from the Supreme Court, Appellate Division, First Department.
William D. Whitney, John F. Harding and Harold R. Medina, Jr., for appellant.
William C. Chanler, Corporation Counsel ( Paxton Blair, Arthur A. Segall and Alan M. Stroock of counsel), for respondent.
The question certified is whether the first cause of action of the third amended complaint states facts sufficient to constitute a cause of action. This cause of action alleges that prior to the year 1921, defendant, without obtaining the consent of plaintiff, constructed on Wave street in the borough of Richmond a spur track and siding connecting with its main line and that without right or authority continued until October 19, 1935, to operate this spur track. The law is settled that under such conditions a municipal corporation may not recover for use and occupation of public highways. ( City of New York v. Bee Line, Inc., 271 N.Y. 595; City of New York v. Tompkins Bus Corp., 271 N.Y. 597 .) The present action is based upon a trespass by defendant. We hold that no essential difference in principle exists on the facts as pleaded between a right to recover for use and occupation of a public highway and for damages for a trespass thereon. In each instance compensation is sought for an illegal act which, during the years, the municipal authorities made no effort to prevent.
The orders so far as appealed from should be reversed, with costs in all courts, and the certified question answered in the negative.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly.