Opinion
May 15, 1914.
Charles J. Nehrbas [ Frank L. Polk with him on the brief], for the appellant.
Royal E.T. Riggs [ J. Gardner Stevenson with him on the brief], for the respondent.
In 1905 the city changed the grade of Meserole avenue in the borough of Brooklyn, and the work was completed on September thirtieth in that year. This grade was changed without lawful authority, and defendant is liable for damages resulting therefrom to an abutting owner whose property had been improved with relation to a former legally established grade. ( Friel v. City of New York, 150 App. Div. 317; affd. on opinion below, 208 N.Y. 555.)
Plaintiff's intestate was the owner of certain premises situated on the southwest corner of Meserole avenue and Diamond street. It does not appear that she was the owner of any of the land in the bed of the street. The description in the deed, considered by itself, would exclude the land in the street. It begins at a point formed "by the intersection of the Southerly line of Meserole Street (now called Meserole Avenue) and the Westerly line of * * * Diamond Street; * * * thence running Westerly along the Southerly line of said Meserole Avenue," etc. (See White's Bank of Buffalo v. Nichols, 64 N.Y. 65; Van Winkle v. Van Winkle, 184 id. 193; Trowbridge v. Ehrich, 191 id. 361; Fulton Light, H. P. Co. v. State of N Y, 200 id. 400, 417.) In Van Winkle v. Van Winkle ( supra) the court say (on p. 203): "The general rule, both in England and in this State, is that the fee of the soil of the highway is presumed to belong to the adjoining owners, * * * but that such presumption can be rebutted by an express provision in the deed to the effect that the fee to the highway was not intended to be conveyed, * * * as where the description of the premises * * * commences at a point upon one side thereof and thence runs along the side to a point specified." In Trowbridge v. Ehrich ( supra, on p. 366) it was conceded that such a description would exclude the street but for the fact that grantor by a subsequent clause in the deed conveyed all the land "lying in front of and adjacent to said lots to the center of said avenue and place." In Fulton Light, H. P. Co. v. State of N.Y. ( supra) the court points out the distinction between descriptions which run along the bank of a stream, or along the side of a street, and those which run to the stream or street, and thence along the stream or street. There is nothing in this case to qualify these words of description. Plaintiff's rights, therefore, are those of an abutting owner only.
This action, which is an action at law, was commenced November 1, 1911. The sole defense is the Statute of Limitations. "The following actions must be commenced within the following periods, after the cause of action has accrued. * * * Within six years: * * * An action to recover damages for an injury to property, * * * except in a case where a different period is expressly prescribed in this chapter." (Code Civ. Proc. §§ 380, 382.) It is not contended that either of the specified exceptions applied. When did this cause of action accrue? It scarcely admits of debate that plaintiff's intestate could have commenced an action upon the 1st day of October, 1905, to recover for the damages done to the property in question by reason of such change of grade; that her cause of action therefor was then complete and that the measure of damages would have been precisely that applied in this case, namely, the difference between the market value of the premises in 1905 "before the change of grade on Meserole avenue" and the market value of the premises "in 1905, immediately after" such change. Specific questions as to the value at each period were submitted to the jury, and it was upon their findings thereon that the general verdict in favor of plaintiff was based.
In the absence of statutory authority therefor no action would lie if the grade had been lawfully changed. The wrong is deemed " damnum absque injuria." ( Radcliff's Executors v. Mayor, etc., of Brooklyn, 4 N.Y. 195.) But if such change were unlawful, the wrong is the same, and this wrong was completed on September 30, 1905. It was a single act and not a succession of acts. If the change of grade had been lawfully made, but some statute had afforded the abutting property owner consequential damages therefor which otherwise he would not have had, the statute would have commenced to run when the physical change was complete. ( Matter of Grade Crossing Commissioners, 201 N.Y. 32; People ex rel. Brisbane v. Zoll, 97 id. 203.) The fact that the origin of plaintiff's recovery is an unlawful act instead of a lawful act, coupled with a statute allowing damages therefor, cannot alter the date when the wrong was complete.
In Cass v. Pennsylvania Co. (159 Penn. St. 273) defendant, pursuant to a decree in equity in a suit against the city of Allegheny, constructed bridges and viaducts across its road, upon which streets were carried over its tracks, and this involved a change of grade of the street. In an action for damages in which the Statute of Limitations was pleaded the court said: "The right of action, to whomsoever it accrued, was complete not later than the time when the work commenced had progressed to such an extent as to obstruct ingress and egress to and from the property to the streets; and the jury expressly found `that the work was begun, so as to obstruct the streets, more than six years prior to the bringing of this suit.' The statute was, therefore, a flat bar."
In Powers v. St. Louis, Iron Mountain Southern Ry. Co. ( 158 Mo. 87) defendant had constructed an embankment and canal, the result of which was to cause a change in the bed of a river or creek, so that resulting injury to plaintiff's abutting property followed. In an action for damages for an alleged nuisance the court held that the claim was entirely barred by limitation." The original construction of the canal was unworkmanlike, defective and negligent and necessarily produced the results complained of, but the time has long since passed when an action therefor could be maintained. The structure was permanent, the damage apparent and measurable, and could only be recovered in a single action. It is in no proper sense a continuing nuisance, where the damages are apportionable."
Respondent contends that the wrong here inflicted is similar to that caused by the construction of the elevated railroads through the streets of the city of New York, and, in analogy to the principle established in those cases, asserts that the embankment caused by changing the grade is a continuing nuisance. We think that there is a clear distinction. In the elevated railroad cases, which were in equity, the property rights of the plaintiffs, to wit, easements of light, air and access, to which the land in the street was servient in favor of the land of the abutting owners, were invaded, and it was for injury to these rights, which amounted to a taking of property without just compensation, that damages were allowed. ( Galway v. Metropolitan Elevated Railway Co., 128 N.Y. 132.) But in the case at bar the abutting property owner had no easement in the street which was taken away by such change of grade, nor were her property rights therein invaded. ( Matter of Grade Crossing Commissioners, supra; People ex rel. Brisbane v. Zoll, supra.) In Grade Crossing Commissioners Case, the court said: "It may be conceded that in the elevated railroad cases the right of access has been treated as an easement coupled with that of light and air, for which a recovery may be had at common law. But the right of access or ingress and egress of abutting owners to and from a public street, standing alone, has always at common law been considered damnum absque injuria, and consequently no action would lie for the impairment of the right. * * * The approach to the railroad crossing was constructed by the grade crossing commissioners for the benefit of the traveling public through the highway, in the exercise of governmental powers, and did not directly encroach upon the private property of the respondents, although the structure may have impaired, to some extent, their access to their premises, from which damages resulted; still, it was not the taking of property within the meaning of the Constitution." In the opinions in that case, attention is called to Matter of Torge v. Village of Salamanca ( 176 N.Y. 324), and it was said that if there was anything in the language of the opinion in that case which might indicate that property had been taken where the grade of a street had been changed, such was not the actual decision of the court therein. As was said by the chief judge, it was intended to decide by that case "only that, so far as the rule of compensation was involved, the right granted by the statute was analogous to the case of the invasion of an easement."
We think that the judgment and order in this case must be reversed, and inasmuch as the action cannot be maintained, judgment should be directed dismissing plaintiff's complaint, with costs of the action and of this appeal.
JENKS, P.J., THOMAS, CARR and RICH, JJ., concurred.
Judgment and order reversed, and judgment directed dismissing plaintiff's complaint, with costs of the action and of this appeal.