
    Edward Mitchell et al., Resp’ts, v. The Metropolitan R. R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    
      ■ Trespass—Elevated railroad—Evidence.
    In an equity suit against an elevated railroad, by an adjoining property owner for an injunction visi, involving final and complete compensation, it is not reversible error to allow an expert witness to testify what the property would be worth if the railroad were not built, especially where it is received simply as “one of the-factors in the ascertainment of damages, reserving the question as to its application,” and the amount of the judgment shows that defendant was not prejudiced by any speculative considerations in respect to the growth of the street if "the road had not been constructed.
    
      (McGean v. Manhattan JR. Go., 37 N. Y. State Bep., 337, distinguished.)
    Appeal from a judgment rendered at special term after the trial of this action by the court without a jury.
    Action to restrain the operation of defendants’ railroad.
    The judgment awarded the sum of $1,265 damages and costs, and also an injunction against the further maintenance and operation of the defendants’ elevated railroad in South Fifth avenue, unless within thirty days the defendants pay the further sum of $3,000 as the price of so much of the plaintiffs’ easements appurtenant to the premises Ho. 104 South Fifth avenue as has been taken or interfered with by the defendants for the purposes of their elevated railway.
    
      M S. Rapallo and Samuel Blythe Rogers, for app’lts; Mitchell & Mitchell, for resp’ts.
   Barrett, J.

The only point presented in this case by the appellants’ brief is that the evidence fails to support the finding of the special term as to the value of the respondents’ easements. We Lave consequently gone over the evidence with care and the result is adverse to the appellants. There is, in truth, ample evidence of such value; indeed, evidence sufficient to sustain a much larger award than was actually made. The appellants do not, in fact, claim that there is an entire absence of evidence on this head. What they really attack is the supposed basis upon which that evidence rests.

Mr. Mitchell testified to both fee and rental value upon the assumption that the appellants’ railroad was not in front of his premises. He then put the depreciation at from one-quarter to one-third of such estimated value. The appellants treat the-assumption as referring solely to the possibility of a speculative rise in South Fifth Avenue property, had the elevated railroad not been built. In estimating the present value of his premises, upon the basis of a clear highway, Mr. Mitchell was dreaming, they contend, of realized hopes that this street would become a “ second Broadway.” A careful review of the testimony will show that neither the estimates of the witnesses nor the findings, of the learned court were based upon any such hypothesis. Mr. Mitchell, it is true, said that the railroad had injured the street, had suspended its improvement and practically paralyzed its development. He also spoke of the property owners’ former expectations with regard to the character of the coming business and the style of the coming houses. But it is entirely apparent, that these expectations had no appreciable bearing upon his previous estimate of values. The testimony thus exclusively dwelt upon by the appellants was elicited at the close of the cross-examination by the following question : “You said that the building would be worth $40,000 or $45,000 without the road. That, I take it, requires some imaginary picture of what the situation would have to be, in your mind, in order to enable you to give such an estimate. 1¥ hat would you imagine would be the condition of affairs there if this road had not been built; what kind of occupancy of the street is this estimate based upon ? ”

Mr. Mitchell’s answer covers as much ground as the question. He treats the latter in the disjunctive and answers what we have italicized by a somewhat discursive account of the rise and fall of the street, and by a variety of facts showing its upward and advancing tendencies prior to the construction of the road. But the value of the invaded easement is not materially affected by these considerations. Such considerations have a place apart by themselves, for he declares in his re-direct examination that if the expectations to which he has just testified had been fully realized, a lot twenty-five feet by seventy-five on the westerly side of the avenue would have been Avorth very nearly $50,000 without any building at all.

It is plain, therefore, that when he testified that “ everything taken together malces up the depreciation which I mentioned, that is, one-quarter to one-third of $40,000 or $45,000,” he did not include speculative possibilities. This becomes still clearer A?hen we consider that this $40,000 (or $45,000) covered the building as well as the lot. If, when he spoke of taking everything together, he had included or contemplated the “ second Broadway ” idea, he Avould naturally have referred to a depreciation of one-quarter to one-third of $66,000; for he had previously testified that the building cost $16,000. This conclusion is in entire harmony with the rest of Mr. Mitchell’s testimony. He stated distinctly in the earlier part of his cross-examination that “A large portion of the depreciation of the present premises is owing to the fact that there is property taken from each lot by this railroad. That I think is the reason why the 'property is worth less. The property that is "taken is what may be seen by everybody and which I have already described, the structure itself. The presence of the structure alone in any street is something which anybody would be glad to pay to get rid of it, if the owners of the structure had a right to maintain it.

“ If you had a right to maintain this structure in this street in front of 104 South Fifth avenue, I should be very glad to give you a check for $5,000 to take it away from there.”

And again:

“ Q. The mere fact of the presence of the road there, aside from all these incidental consequences, would - account for their whole depreciation, or would produce this whole depreciation, in your opinion? A. The structure itself and the moving of the trains upon it. The value of the property at the present time without the road would be $40,000 to $45,000."

To the same effect is the testimony of the plaintiffs’ other witnesses. Mr. Ireland also said that the depreciation depended very much upon the light which Avas cut off, and that the property does not now rent for as much as before the railroad was put there, not even for as much as it did twelve or fifteen years ago. Mr. Cotter further illustrated the depreciation in the rental value by the statement that “ where a building rented for $1,500, since the elevated railroad has been built there we have had to let it for $1,000.” This was a practical confirmation of Mr. Mitchell’s estimate of the percentage of depreciation, and an additional support for the conclusion that mere expectations speciously drawn from him on cross-examination were not in his mind and did not color his judgment when upon the direct examination he gave such percentage of depreciation.

The case was thus brought within the principles enunciated in Lahr v. Met. E. R. R. Co., 104 N. Y., 268; 4 N. Y. State Rep., 340, and Drucker v. Manhattan R. Co., 106 N. Y., 157; 8 N. Y. State Rep., 599. Within those principles, the plaintiffs established their damages by competent evidence of depreciation resulting directly from the additional burden put upon the street. Because of their unlawful use of the street, that is their use of it without just compensation, the defendants were trespassers ; and the measure of damage in that class of action is a proper guide for the court at special term where the equity to restrain the running of the road results from the continuing trespass. The plaintiffs did not themselves inject into the case even what Finch, J., in Drucker v. Manhattan R. Co., supra, terms “ a survey of the general facts.” They rested upon evidence of depreciation caused by the structure and by the taking thereby of property from each lot. It served the defendants’ purposes to follow this up by going into generalities and seeking to impress legal evidence with speculative considerations. In this, however, we think they failed. And we are strengthened in this conclusion by the very meagre sum awarded to the plaintiffs by the special term.

If, however, they had succeeded in thus bringing in an element of partial uncertainty, the judgment would not necessarily, and for that reason alone, be disturbed. Even that contingency is met by the opinion of Finch, J., in the Drucker case, and the following quotation from that opinion is exceedingly apt: “ It is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting and inadequate, * "x" * such evidence as can be given should be given, and facts naturally tending to elucidate the extent of the loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible has been given, the good sense of a jury must provide the answer, and it is no defense that such judgment involves more or less of estimate and opinion, having very little to guide it. That criticism has no force in the mouth of the torongdoer when all reasonable data have been furnished for consideration.”

In the case at bar, the good sense of the court has provided the answer. And it is impossible to believe, in view of the small sum awarded for the easement, that the defendants were prejudiced by any speculative considerations as to the growth and improvement ef the street in case the railroad had not been constructed.

Since writing the above my attention has been called to an opinion of the court of appeals in McGean v. The Manhattan Railway Company, 27 N. Y. State Rep., 337. It seems that the defendants in that case asked the appellate court for a new trial upon a point not deemed sufficiently important in the case at bar to be presented as a distinct ground of reversal. I refer to the question (noticed but incidentally in the appellants’ brief) put to expert witnesses as to the value of the property upon the assumption that the elevated railroad was not now in front of such property.

The court seems to have been of opinion that the question, if properly objected to, was inadmissible, citing Teerpenning v. Corn Exch. Ins. Co., 43 N. Y., 279, and Marcly v. Shults, 29 id., 346, but the judgment was nevertheless affirmed, substantially upon the ground that the defendants were not prejudiced- The same reasoning is, a fortiori> sufficient to support the present judgment, for this cause was tried as an equity case by the court at special term, while the McGean case was a common law action tried by a jury.

The learned judge who tried the case at bar was certainly not mislead by the testimony thus elicited; and this is especially clear from the manner in which he received it, namely, to quote his language, “ as one of the factors in the ascertainment of damages, reserving the question as to its application.” But for this opinion of the court above I should not have doubted the propriety of receiving such evidence. It is almost a necessity in this class of cases; and frequently better evidence cannot be had, thus seemingly bringing it within the exception referred to by Allen, J., in Teerpenning v. Corn Ex. Ins. Co., supra. And I should have supposed that it was also admissible under rules laid down and upon principles enunciated in a great number of cases in this and other states. See in this state Clark v. Baird, 9 N. Y., 196; The People v. McCarthy, 102 N. Y., 639 ; 2 N. Y. State Rep., 546; Matter of Rochester, 40 Hun, 588; 2 N. Y. State Rep., 264; citing 3 Hun, 523 and 10 How., 290; Reed v. R. R., 48 Hun, 231; 16 N. Y. State Rep., 58 ; Beir v. Cooke, 37 Hun, 38. Indeed, I am informed that the trial justices to whom' very many of these cases have fallen at special term, have acted upon the understanding that the precise question had been put in N. Y. National Exch. Bk. v. Met. El. R. R. Co., and that such question had been approved by the affirmance of the judgment in that case, 108 N. Y. 660 ; 13 N. Y. State Rep., 903. It may be, however, that the appellate court deemed a stricter rule to be applicable in a common law action for damages, such as the McGean case, than inequity suits for an injunction nisi involving final and complete compensation, such as the N. Y. Natl. Exchange Bank Case, and such as the present. At all events,! see nothing in the opinion in the Me Gean case to require any change in the conclusion already arrived at here.

The judgment appealed from should therefore be affirmed, with ■costs.

Van Brunt, P. J., and Bartlett, J., concur.  