Gorham v. Eastchester Electric Co. , 80 Hun 290 ( 1894 )

BROWN, P. J.

The plaintiffs recovered a verdict against the appellant for damages caused by cutting the limbs from a shade tree which stood on Valentine street, in the city of Mt. Vernon, immediately in front of premises which plaintiffs owned and occupied. The privilege of erecting poles and stringing wires along all the ■streets of the city had been granted to appellant by the municipal authorities; but this grant conferred upon it no authority to interfere with or destroy private property, and the main question presented for review is whether the plaintiffs’ title extended to the mid-file of Valentine street. The plaintiffs acquired title in 1883, prior to the incorporation of the city of Mt. Vernon, under a deed which described the land as being in the town of Eastchester, and known as lot “number four hundred on a- map entitled ‘Map of Central Mount Vernon,’ &c., filed in the office of the register of the county of Westchester, and bounded easterly by Fifth avenue and southerly by Valentine street.” This description, we think, conveyed title to the center of Valentine street. Bissell v. Railroad Co., 23 N. Y. 61; Wager v. Railroad Co., 25 N. Y. 526; Hennessy v. Murdock, 137 N. Y. 317, 33 N. E. 330. The rule is different when the description bounds the land on the side of the street, and such are the eases cited by the appellant. Insurance Co. v. Stevens, 87 N. Y. 287; Blackman v. Riley, 138 N. Y. 318, 34 N. E. 214; Holloway v. Southmayd, 139 N. Y. 390, 34 N. E. 1047, 1052. There is no evidence to show that plaintiffs’ grantors did not own to the center of the street, and as, at the date of the deed, the city of Mt. Vernon was not incorporated, the inference must be that the fee of the highway was in-the proprietors of the adjoining lands. Wager v. Railroad Co., supra. The city was incorporated in 1892, but we are not referred, to any proceedings under its charter by which the plaintiffs’ ownership in the street had been extinguished. Under these facts, the-plaintiffs’ right to maintain the action was established. The court charged the jury that the defendant, under its grant from the city,. had the right to trim away the limbs of the tree so as to free its wire from contact with them, but were bound, in exercising that right, to proceed with ordinary care, and submitted to them the question whether there was an unnecessary cutting away of the-limbs of the tree. This was certainly as favorable a view of the-case as defendant had a right to claim, and the evidence fully sustained the verdict of the jury upon that question.

Evidence was admitted, over the defendant’s objection and exception, to the effect that the destruction of the tree had diminished the market value of the plaintiffs’ premises. This was the correct rule applicable to the case, and the exception to the ruling of the court must be overruled. Dwight v. Railroad Co., 132 N. Y. 199, 30 N. E. 398. The judgment and order are affirmed, with costs.