
    Alexandrina Jordan, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed March 14, 1892.)
    
    Railroad—Elevated—Damages—Passage of trains.
    In fixing the fee damage caused by the erection and maintenance of an elevated road, the court may consider the future passage of trains and the incidental injuries thereby -occasioned to plaintiff’s easements, such as dust, cinders, steam, smoke or odors.
    
      (Sperb v. Metropolitan FI. B. Co., 41 St. Rep., 155, disapproved.)
    Appeal from judgment in favor of plaintiff.
    
      Sackett & Bennett, for resp’t; Davies a; Rapallo, for app’lts.
   Dugro, J.

This is an appeal from a judgment in favor of the. plaintiff for past damages, and an injunction with alternative relief.

Assuming the appellants’ point to be in the case, the main question in this appeal is presented by his claim that an error was committed by the learned trial judge in including as a part of the subjects to be compensated for by the amount which was" fixed as the fee damage the future passage of the trains, with the dust, cinders, steam, smoke or odors incidental to the operation of trains in the future upon the structure of the defendants.

The appellants’ contention is, in substance, that the injury to plaintiff’s easement of light, air and access in the street adjacent to her lot for which she can recover, is merely that done by the existence of the structure in the street, as distinguished from that incident to this existence and the running of trains, with the incidental injuries thereby occasioned to the easements referred to. ■

In support of their contention they rely mainly upon the case of Sperb v. The Metropolitan Elevated Railway Co., 41 St. Rep., 155.

This case is recent and supports their position. It seems, how•ever, in conflict with the following cases : Story v. The New York Elevated Railroad Co., 90 N. Y., 122; Drucker v. The Manhattan Elevated Railway Co. et al., 106 id., 157; 8 St. Rep., 599; American Bank Note Co. v. The N. Y. Elevated Railroad Co. et al., 41 id., 531; Messenger v. The Manhattan Railway Co. et al., 42 id., 96. With, '.the first, wherein it holds that “ the street occupies the surface .and to its uses the rights of the adjacent lots are subordinate, but .above the surface there can be no lawful obstruction to the access of light and air to the detriment of the abutting owner.”

With the second, wherein it holds that “ smoke, gases, ashes, cinders affect and impair the easement of air,” and proclaims these as elements of damage, even though the necessary concomitants of the construction and operation of the road and roads; “ there remains but the annoyance of noise and vibration of the buildings * * * but no objection or exception selected these out as improper elements in proof of damage, and the question which might involve the difference of opinion among us is not here presented.” ‘The difference referred to I take to be that later found in American Bank Note Co. v. The N. Y Elevated R. R. Co. et al., 41 St. Rep., 531, where it was held that “the noise of operation should not be taken into account as an element of fee damage ”

With the third : because the question here presented was there not passed upon in the appellants’ favor, although presented upon '■the hearing of the appeal in the court of appeals, and because the Sperb case and nearly all of those now upon appellants’ brief were upon the brief and supplemental brief presented to the •court of appeals by the present defendants, then the appellants.

With the Messenger case, wherein it, adverting to evidence of noise, reads : “ It does not appear that this evidence was received as bearing upon the fee damage * * *. According to our decision in the case last cited, it was not competent in relation to the fee damage. In estimating that, evidence must be confined to what the railroad company is authorized to take, or interfere with, to wit: the easements of light, air and access.”

Subtle refinement may possibly discover the Sperb case as in. harmony with the cases referred to. If so, the defendants are right in their position upon the question presented; for the Sperb case has the merit of being explicit.

Some provision should have been made for the protection of the defendants against such right as the mortgagee may have in •■the premises.

As no other error appears in the case the judgment should be modified by inserting therein between the words, taken by the defendants,” and, “ and providing further that the defendants at .any time,” the following: and "also such a release for the purposes of execution by the mortgagee, Frederick Van Keuren, as will relieve from his mortgage lien the said easements,” and conforming in other respects the judgment thereto.

If the respondent so desires, the judgment will be further modified by the insertion of'appropriate provisions in case she should-be unable to obtain the release.

Modified as stated, the judgment is affirmed, without costs.

Sedgwick, Oh. J., and Gtldersleeve, J., concur.  