
    Eliza M. Sloane, Resp’t, v. The New York Elevated Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Railroad—Elevated—Damages.
    Although no diminution of rental value in the past is shown, the court may determine the value of the easements taken in view of the fact of the permanency of the railroad structure and of any purposes to which the premises in question might be applied.
    2. Same.
    In determining file damages the court may take into consideration the incidental annoyances from the running of trains in the future in relation to the effect upon the light, air and access, smoke, dust, cinders and the like.-
    3. Same—Benefits—Stations.
    The proximity of a railroad station, which may be removed at any time, should not be considered as a permanent element of benefit.
    
      Appeal from judgment of the special term.
    
      A. 0. Townsend, for app’lts; G. A. B. Pratt, Jr., for resp’t.
   Van Brunt, P. J.

This action was brought for an injunction restraining the defendants from maintaining and operating their elevated railroad in Ninth avenue in front of the plaintiff’s premises. The court held that there had been no diminution in the rental value of the premises in suit shown to have been caused bv the acts of the defendant up to the time of the trial, and consequently that the plaintiff had sustained no damage to the rental value of the premises; but that the easements* taken by thesti ucture of the defendants were of the válue of $3,500, upon. the payment of which amount the defendants might acquire the-easements in question.

The principal ground upon which this appeal is based arises-from the fact that the court found that the plaintiff had not sustained any rental damage up to the time of the trial, and that, therefore there was no basis for the finding as to the value of the-easements.

There is no question that the court will not grant an injunction merely for the purpose of protecting a technical or unsubstantial right; and therefore unless it was shown that the easements taken by the defendants were of some value as connected with the plaintiff’s property the .complaint should have been dismissed.

But we think that the fact that there had been no diminution in-"the rental value for the past was by no means conclusive proof that the premises in question were as valuable with the easements-severed therefrom as they would be with the easements attached.

It is true that it is claimed that the improvements upon the 'property are of a permanent character and not likely to be changed. " But it is also equally true that the question as to the impairment of value is to be considered in view of the fact of the permanency of the structure of the defendants and of any purposes to which the premises in question might be applied. The market value of premises is determined by the uses to which they may possibly be put, not necessarily by the uses to which they are put; because changes may occur, from which it might be more profitable to apply the premises to other uses ; and these considerations always have an effect upon value.

It is alleged that the court erred in taking into consideration the incidental annoyances from the running of trains in the future. But these all related to the effect upon the light, air and access to the plaintiff’s premises, smoke, dust, cinders and the like. They were elements which the court was justified in taking into consideration, and have been recognized as proper in. numerous cases which have been heretofore decided. It is: claimed however that if no. error was committed in considering the incidental facts and estimating the future damage to be paid for the land not taken, then it was error not to consider all such facts, including those which were beneficial -to the property. And our attention in this connection is called to the refusal to find certain requests to the effect that the proximity of the defendant’s station to the premises in suit is advantageous to the business portion of said premises, etc.

Upon this question of the advantageous proximity to stations being a subject to be taken into consideration, it seems to me we are very liable to fall into an error. The station may be there today, and it may be removed to-morrow, as has been done in respect to at least one of the stations of these elevated railroads, leaving only the damages of the structure without the advantageous proximity of the station. The railroad company is under no obligation to maintain the station in the position in which it is placed, and as this is a question which is to settle the rights of these parties as to all the future, the proximity of a station which may be removed at any time does not seem to be a very permanent element of benefit.

There was evidence which supported the finding of the court in reference to the damage to these premises and we see no reason ior interfering with the conclusion arrived at by the court.

The judgment should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.  