Response or Comment
The case of Flynn v. New York &c Railway Co., decided by the Court of Appeals of New York in April last, involves the right of an owner of land to which is appurtenant a so-called equitable easement, arising under a covenant restricting the use of other land, to compensation upon the taking of the servient land for a public use inconsistent with the restriction. A tract of land was laid out in accordance with a plan, and all, lots therein were sold and conveyed by deeds containing covenants, inter alia, that, "No building or structure for any business purpose whatsoever shall be erected on said premises." The appellant railway company purchased thirty-eight of these lots from the grantees of the original owner, subject to the restrictions, and built its railway across them, partly on an embankment and partly in a cut. Respondents owned lots in this tract, some adjacent to appellant's lots, some across the street from them. The maintenance and operation of the railway rendered respondents' property less valuable than it would be if the appellant's property were used exclusively for residence purposes. The respondents sued to enjoin the construction and operation of the railway across appellant's lots. The judgment appealed from restrains the maintenance of appellant's structures (the railway was completed and in operation before the trial), and the operation of the road, unless appellant pays respondents the certain sums which are assessed as damages, measured by the depreciation in value which their lands sustain, not only by reason of the existence of the appellant's structures but also by reason of the use to which they are put. (As to the assessment of compensation in the injunction suit, see LEWIS, EMINENT DOMAIN (3d. Ed.) § 892). This judgment is affirmed by a unanimous court. POUND, J., delivering the opinion,-says, "These restrictive covenants create a property right and make direct and compensational the damages which otherwise would be consequential and non-compensational: No matter how unpleasant a neighbor the railroad may prove, if it takes no property by physical appropriation it is not chargeable with damages for impaired values due only to proximity. But something in the nature of an easement of privacy over another's land may be acquired by covenant in order that one may live apart from the disagreeable sights and sounds of business, if one desires, and if that right has a value and the railroad subtracts a portion thereof by building on the restricted land, it is difficult to conceive why compensation should not follow."
Durfee, Edgar N. (1911-1958)."Taking of Equitable Easements for Public Use." Mich. L. Rev. 14 (1916): 659–61.