Opinion
May Term, 1899.
Henry G. Atwater, for the appellants.
Alex. S. Lyman, for the respondents.
The plaintiffs are owners of certain premises on Crescent avenue in the borough of Brooklyn, such premises being occupied by a three-story building used for business purposes on the ground floor, and as an apartment house above. In 1893 the Seaside and Brooklyn Bridge Elevated Railroad Company (the defendant the Brooklyn Elevated Railroad Company being the lessee) constructed a line of railroad terminating at or near these premises, without having secured the consent of the plaintiffs, and subsequently erected a station, with a house for the accommodation of trainmen, and other appurtenances, directly in front of the property of the plaintiffs, thus appropriating the property of these plaintiffs to its own use, without having made provision for their compensation. In addition, the defendant used the platform so established opposite plaintiffs' premises for the storage of cars, and the house for the accommodation of the trainmen was for the purpose of use in connection with such storage at this point. It also appeared that the defendant washed the windows of the cars at this place, and otherwise cleansed them. By this action the plaintiff seeks to restrain the defendant from operating its railroad until it has made compensation, and also from using the side track which has been constructed for the purpose of storing cars. We should have little difficulty in supporting the judgment rendered in this case, were it not for the fact that the court has found that the construction of the trainmen's house, and the storage of the cars upon the track constructed for that purpose, were in all respects lawful, and subject only to liability to make compensation for the property rights taken. So far as we can find from the record, there is nothing which justifies such finding or which tends to its support. The chartered rights of the defendant, so far as they are set forth in the record, embrace no provision authorizing the use of the streets, either above or below the surface, as a yard or station for the purpose of storing therein or thereon its cars, or for the erection of other structures as appurtenances thereto.
It was stated by ANDREWS, Ch. J., in Mahady v. Bushwick Railroad Company ( 91 N.Y. 148): "It cannot, however, be questioned that a street cannot be converted into a yard for the storing or deposit of cars, to the injury of adjoining owners;" and in Black v. Brooklyn Heights Railroad Company ( 32 App. Div. 468) this court supported a judgment which restrained the railroad company from standing cars in the street for the purpose of loading and unloading the same of mail matter, as constituting an unlawful use of the street. In principle there can be no difference between converting a structure elevated above the street into a yard for the storage of cars, and using the surface of the street for the same purpose. Such was the view taken by the court in Re Metropolitan Elevated Railway Co. (12 N Y Supp. 506, 515).
By the provisions of the charter of the company, it is required that "no car or engine shall be washed on or over any public street or place." The washing and cleaning was a clear violation of this provision, and should be enjoined. The defendants having shown no right or authority to use this street for the storage of its cars and the maintenance of its train house in connection therewith, there exists no support for the judgment in this respect.
Nothing which appears in Adler v. M.E.R. Co. ( 138 N.Y. 173) conflicts with this view. That case rests upon peculiar facts, and its doctrine is not to be extended. It is clear that it furnishes no authority in support of the defendants' contention in this case.
It follows that the judgment should be reversed and a new trial granted.
All concurred, except CULLEN, J., not sitting.
Judgment reversed and new trial granted, costs to abide the final award of costs.