
    PFOHL et al. v. INTERNATIONAL RY. CO.
    (Supreme Court, Special Term, Erie County.
    June, 1912.)
    Eminent Domain (§ 119*)—Street Railroad—Additional Burden—Rights of Abutting Owners.
    An abutting owner, who has no title to the fee of the street, may not complain of the construction and operation under a franchise of a street surface railroad operating by horse or electric power.
    [Ed. Note.—For other cases, see Eminent Domain, Gent Dig. §§ 304-314; Dee. Dig. § 119.*]
    *For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Action by Henry P. Pfohl and another against the International Railway Company. On motion by defendant to vacate a temporary injunction restraining it from operating a street railway in front of plaintiff’s premises and to dismiss the complaint.
    Granted.
    Alfred L. Becker and Dana L- Spring, for the motion.
    Mark P„ Kerr, opposed.
   BROWN, J.

The plaintiffs are the owners of lots 67 and 68 on the south side of Burnett Road; the north bounds of the lots being the south line of the highway. The plaintiffs do not own to the center of the highway. They are owners of lots abutting on the highway. The plaintiffs claim that as such owners they have an easement and vested right in the highway, and that the operation of the street surface railway by the trolley system will irreparably injure this easement and vested right, for which they have no adequate remedy at law, and that they are entitled to restrain such operation of the street surface railway until compensation is paid them for such injury.

The defendant has a franchise for such occupation of the highway. The authorities relied upon by the plaintiff are Falker v. N. Y. W. S. Ry. Co., 17 Abb. N. C. 279, Story v. N. Y. E. R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146, and Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357. In the Talker Case the plaintiff was an abutting owner, and the proposed railroad through the street was a steam railroad operated by locomotives. It was held that the occupation of the streét by a steam railroad was inconsistent with the use of the street as a public highway. In the Story Case the plaintiff owned to the center of the street, and it was held that the erection of columns and iron posts in front of plaintiff’s premises upon which to construct and operate an elevated steam railway interfering with plaintiff’s right to air, light, and access to the street, etc., was an infringement upon plaintiff’s rights. In the Peck Case the plaintiff was the owner of the fee of the street, subject to the public use thereof as a highway, and it was held that the operation of a street surface railroad by electric power imposed an additional burden upon the property rights of the owners of the fee, subject to the public easement for street purposes.

It is clearly the law that an abutting owner who has no title to the fee of the street cannot complain of the construction and operation of a street surface railway operated by horse or electric power through the street. As was Said by Judge Andrews in Reining v. N. Y., L. & W. Ry., 128 N. Y. 163, 28 N. E. 640, 14 L. R. A. 133, the distinction is made to rest on the location of the fee. When the abutting owner is also the owner of the fee of the highway, the taking of such fee for street railroad purposes imposes an additional burden upon such ownership of the street. Kennedy v. Mineola Traction Co., 77 App. Div. 484, 78 N. Y. Supp. 937; Reining v. N. Y., L. & W. R. R., 128 N. Y. 157, 28 N. E. 640, 14 E. R. A. 133; Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357.

The temporary injunction must be vacated. The defendant’s mo- 1 tion for judgment dismissing plaintiff’s complaint on the pleadings must be granted.  