
    In the Matter of the Petition of The Nassau Electric Railroad Company, Respondent, Relating to Acquiring Title to the Real Estate for the Right of Way in Union Street between Ninth and Hamilton Avenues, in the Borough of Brooklyn, City and State of New York. Catherine Cabot, Defendant; John J. Boylan, Intervenor, Appellant.
    Second Department,
    June 9, 1916.
    Eminent domain — condemnation of right of way for street railroad — award —nominal damages recoverable where owner of fee of roadway does not own abutting land — effect of conveyance of fee to abutting owner — parties—right of abutting owner to intervene after having acquired fee.
    Where an electric railroad company condemns an easement in the bed of a public street, a person owning the fee of the street but not owning the abutting property, is not entitled to an award of substantial damages. At most she may recover nominal damages for the imposition of the new easement upon her land already subject to a street easement.
    So, too, where the abutting owner does not own the fee of the roadbed, he can recover only nominal damages.
    But where the abutting owner, not originally owning the fee of the roadway, acquired subsequent title thereto by a separate conveyance, the union in him of the two titles may justify a recovery of substantial damages in an action in equity to enjoin a continuous trespass.
    
      Hence, where after the filing of a notice of lis pendens in a condemnation proceeding, and after an order permitting the petitioner to remain in possession of the fee of the street, an abutting owner "who acquires title to the roadbed by a quitclaim deed made in consideration of his agreement to share any recovery with his grantor, having gained both titles, is entitled to intervene and be made a party defendant in the condemnation proceedings.
    Appeal by John J. Boylan, intervener, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of December, 1914, denying his motion to be made a party defendant herein.
    
      H. E. J. MacDermott, for the appellant.
    
      Charles L. Woody [S. B. Olney and George D. Yeomans with him on the brief], for the respondent.
   Carr, J.:

The petitioner began a condemnation proceeding against Catherine Cabot to acquire an easement in the bed of Union street in the borough of Brooklyn, a portion of which was owned in fee by Catherine Cabot. A notice of lis pendens was filed on March 31, 1914. At that time the petitioner was in actual possession of Mrs. Cabot’s property, as it maintained and operated its street railroad over and upon it. Mrs. Cabot did not own the abutting property. An order was made in the proceeding allowing the petitioner to remain in possession of the land pending the termination of the proceeding upon condition that it gave a bond in the sum of $500 in favor of Mrs. Cabot. As the matter then stood, as Mrs. Cabot did not own the abutting property, she could not recover an award for damages to the abutting property arising from the maintenance and operation of the street railroad. At most, she might recover nominal damages for the imposition of the new easement upon her land already subject to a street easement. (Matter of City of New York, 196 N. Y. 286.) As the abutting owner did not own the fee of the roadbed, he could not recover more than nominal damages. (Kennedy v. Mineola, H. & F. Traction Co., 178 N. Y. 508.) In the matter at bar, one Boylan, the present appellant, was the abutting owner. It had been held in Mayne v. Nassau Electric Railroad Co. (151 App. Div. 75; affd., 210 N. Y. 607) that where the abutting owner acquired the fee to the roadbed of the street, even by a conveyance separate and subsequent to that by which he had acquired the ownership of the abutting property, the union in him of the two titles would justify a recovery by him of substantial damages in an action in equity to enjoin a continuous trespass. Some months after the filing of the notice of lis pendens in this proceeding, and the entry of the order permitting the petitioner to enter and remain in possession of Mrs. Cabot’s property, and also of the order appointing commissioners of appraisal, Mrs. Cabot released by a quitclaim deed to Boylan, the abutting owner, for the consideration of One Dollar and other valuable consideration,” all her interest in the property in question. It appears in this record, undisputed, that the “ other valuable consideration ” consisted of an agreement between Cabot and Boylan that the latter would divide with Mrs. Cabot all the damages that he might recover by reason of the union of titles in him. Thereafter Boylan, the abutting owner, applied to this court at Special Term for an order making him a party to this proceeding. His motion was denied, hence this appeal by him. He took title under Mrs. Cabot’s quitclaim deed, subject to the notice of Us pendens and the order allowing the petitioner to remain in possession. The legal effect of that order was analogous to an appropriation ” of the land under provisions of a statute. In the latter case, the damages recoverable would be estimated as of the date of the appropriation. (Matter of Mayor, 40 App. Div. 281.) We think this situation is not changed by the subsequent union of titles in Boylan, under the circumstances of this case. . The respondent contends that the quitclaim deed of Mrs. Cabot to Boylan did not operate to transfer to the latter any right of Mrs. Cabot to an award of damages in this proceeding, and cites Matter of Mayor (Trinity Avenue) (116 App. Div. 252) and numerous later cases in support of its contention. In all of these cases, so cited, title had vested in the city in street opening proceedings before the conveyance was made, and it was held that, under such circumstances, the right to an award was a personal chose in action and would not pass to the grantee in a conveyance unless language evidencing such an intent appeared in the deed itself. In the case at har, title is not divested from the owner until the confirmation of the report of the commissioners of appraisal, and the cases so cited do not control. We think that Boylan by the deed in question became vested with Mrs. Oabot’s right to an award, and, though her right and his may be only for nominal damages, that he is entitled to be made a party to this proceeding, subject to the legal effect of the earlier steps herein as to Mrs. Oabot’s title.

The order of the Special Term should be reversed, without costs, and the motion granted, without costs.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Order reversed, without costs, and motion granted, without costs.  