Lansing v. Smith

Lansing v. Smith - { PAGE | 17 } LANSING v. SMITH ET AL....

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Unformatted text preview: { PAGE | 17 } LANSING v. SMITH ET AL. [NO NUMBER IN ORIGINAL] SUPREME COURT OF JUDICATURE OF NEW YORK 8 Cow. 146; 1828 N.Y. LEXIS 277 February, 1828, Decided PRIOR HISTORY: [**1] CASE against the acting commissioners under the Statute, sess. 46, ch. 111, for erecting the Albany Basin, by which the plaintiff alleged he was injured; tried at the Albany Circuit, Feb. 7, 1826, before Duer, Circuirt J. The plaintiff was nonsuited by the judge, who sealed a bill of exceptions presenting the grounds of the nonsuit, which, with the facts of the case, will be found stated in the opinion of the court. A motion was made upon this bill to set aside the nonsuit, and for a new trial. DISPOSITION: Motion denied. HEADNOTES: Constitutional Law--Statute Authorizing Construction of Basin in the Hudson River at Albany, whereby Docks, &c., Belonging to Individuals were Injured, does not Impair Obligation of Contracts, or Take Private Property without Just Compensation -- Parties--When Private Action Lies for Public Nuisance. The Statute, sess. 46, ch. 111, authorizing the construction of a Basin in the Hudson River, in the City of Albany, and erections, whereby the docks, &c., owned by individuals above, were rendered inaccessible, or less easily approached by vessels, &c., and, therefore, much depreciated in value, though it provided no compensation for such a consequence, is not unconstitutional, either as taking private property for public use without just compensation, or impairing the obligation of contracts. This not being a direct invasion of private property, but remote and consequential merely, and arising from a public improvement, the injury is one to which individuals must submit as the price of the social compact; and, in the eye of the law, the injury is damnum absque injuria. The erection of temporary bridges running from the main land, for the purpose of conveying dirt and other materials to be used in forming a pier for the basin and the sloop lock, were authorized by the statute. But if erections working a common injury to the owners of docks, &c., above, were unauthorized by the statute, yet no action would lie at the suit of an individual, though he should show his share of the common injury to be greater than that of others; for the Hudson, at the place, being a public highway, some injury from the erections peculiar and personal to the party is necessary to sustain the action. The injury being common to a large class of the community, it is the subject of indictment only as a common nuisance. The authorities distinguishing what is such an injury peculiar and personal to the party, as will sustain a private action for a public nuisance, cited, considered, and { PAGE | 17 } applied. Per Sutherland, J., delivering the opinion of the court. Citations--N. Y. Const., art. 7, sec. 7; Act, sess....
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Lansing v. Smith - { PAGE | 17 } LANSING v. SMITH ET AL....

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