72 HARVARD LAW REVIEW. in like manner as the other streets of the same city now are, or lawfully ought to be." Having come to the conclusion that there was this covenant on the part of the city, they had next to determine whether the pro- posed elevated railroad and the operation of trains thereon was a usage of the street contrary to this covenant, or whether it was a use which the municipality could lawfully appropriate public streets for, from which usage any damages the plaintiff might suffer were but incidental damages such as property owners often suffer with- out entitling them to legal relief. They came to the conclusion that an elevated structure such as the one proposed was not a usage of the street which could be granted without making com- pensation. There were two lines of their own decisions before them when the Story case was determined which, if not inconsistent, at least presented a sharp divergence as to what changes in the use of a street took away property from an abutter so as to entitle him to compensation. On the one side were their own decisions in the surface railroad cases holding a street railway a legitimate street use;^ on the other side were their decisions that such easements as the defend- ant sought to appropriate were property.^ The decision was rendered by a vote of four to three. The opinions of Danforth and Tracy, JJ., held in effect that light, air, and access to one's property from the street on which it abuts were property, and property that had been paid for presumably when the abutter purchased his property, and that because this court had held that a street surface railway was a legitimate use of the street, it was no way inconsistent to hold that a radically differently operated railway was not an ordinary and legitimate street use. The opinion of Earl, J., for the minority was in substance that an elevated railroad duly authorized for the necessities of the people of the city of New York was just as much a use of the street that was now proper as was a street surface railway at the time the prior decisions were rendered, and that an elevated railroad could not be held an unlawful street use without overruling their own prior decision in the surface railway cases. ' People z/. Kerr, 27 N.Y. 188; Kellinger z'. Forty-second Street Railway, 50 N.Y. 206.
- Arnold v. Hudson River Railroad Company, 55 N. Y. 661 ; Doyle v. Lord, 64 N. Y.
432.
