
    Peter W. Schmitz, Respondent, v. The Brooklyn Union Elevated Railroad Company and The Brooklyn Heights Railroad Company, Appellants.
    Second Department,
    March 2, 1906.
    Beal property — action for damages for injury to value thereof by elevated railway — measure' of damages.
    Although a plaintiff cannot recover damages in an action for injury to the rental value of land’s caused by the erection of an elevated railway when it is shown that the erection of the railway increased the value of the property, yet a recovery is proper when it is shown that the increased value of the premises resulted from other causes, as the building of a bridge, a subway, improvement' of the locality, etc. . .
    Under such circumstances an award of damages is not inconsistent with the finding that the property has been benefited by the elevated railway, if in other respects the value of the premises has .been decreased. The .damage is the excess of the injury caused over the benefits received.
    However, as the value-of the easements of such owner in light and air, if any, is nominal, it is reversible error for the court to malee an award taking the same as of substantial value, and such.an erroneous valuation is shown by a refusal, to find that such easements, if any, and the damage thereto are of nominal value.
    
      Appeal by the defendants, The Brooklyn Union Elevated Bail-road Company and another, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of Kings on the 9th day of February, 1905, upon the decision of the court - rendered after a trial at the Kings County Special Term.
    
      Charles L. Woody [John L. Wells and George D. Yeomans with him on the brief], for the appellants.
    
      Alexander S. Lyman, for the respondent.
   Rich, J.:

The defendants appeal from a judgment in favor of the plaintiff for $3,339.40 damages to the rental-value of the premises described in the complaint, together with $346.65 costs, and enjoining and restraining defendants from maintaining or operating their elevated roads in front of plaintiff’s premises, after the expiration of thirty days from service of a copy of the judgment with notice of entry thereof, unless within that time the defendants should pay or tender the plaintiff or his attorneys the sum of $7,500 with ■ interest thereon from January 23, 1905.

The action is the usual one for an injunction, and damages alleged to have been sustained by an abutting owner upon a-public street, by the maintenance and operation of an elevated railroad in front of his property. The premises are situate at the northwesterly corner of Flatbush avenue and Fulton street, with a frontage on the two streets of about 216 feet, all of which is affected by the railroad structures.; it was purchased by the plaintiff in 1886 for $150,000, which the evidence of all the experts called shows was its then value; its lowest present value, as proven upon the trial, was $225,000, and ii;s highest value $275,000. It is occupied by one tenant, entirely for business purposes, under a ten years’ lease from January 1, 1900, at a yearly rental of $12,000 for the first five years and $15,000 yearly thereafter, the increased rental being payable at" the time of the trial. After plaintiff purchased the property and before the building of the railroad, the evidence shows it to have produced a gross rental-of from $10,000 to $13,000 yearly, largely dependent upon the extent to which a public music hall, to which use a' portion of the premises was then devoted, was used1. From this gross re'ntal' there was payable ■ yearly- for the compensation of a manager, janitor, heat and light $1,980 and the cost of insurance, then largely in- excess of present rates o,n account of the scenery and drop curtains used in the‘music hall. ■

The trial'court found, 'upon defendants’ request, among other things: , ‘ :■

- “ Twelfth. That the existence and operation of defendants’ railroads in Fulton street and Flatbush avenue, together with the maintenance of two stations of said elevated railroad structure in the immediate locality thereof, has • greatly increased the traffic of business in the locality of plaintiff’s"' property and lias brought people and traffic into said streets. , .
Thirteenth. That the plaintiff’s property has- thereby incidentally been benefited.”
“Eighteenth. That in the immediate vicinity of plaintiff’s premises defendants maintain -two stations where people depart from- and take said elevated railroad, and thereby daily brings*'.into the immediate vicinity a large number of people which, is beneficial to both tlie rental and fee value of plaintiff’s premises. ” ; .
“ Twentieth. That on all cross1 .streets and side streets in the locality of' plaintiff’s premises where there is no elevated railroad, real estate has not increased either in fee- or rental values as fast, nor in the same proportion or to the same amount since 1888 down to the present time as the plaintiff’s premises has.
“ Twenty-first. That the course of fee and rental values on. Fulton street and Flatbush avenue in the vicinity of plaintiff’s .premises, since 1888 to the present time has. increased faster and to a greater extent than the course of fee and rental values have on the cross and side streets where there are no elevated railroads in that locality.” . - ..
Twenty-seventh. That the presence,-of defendants’ elevated railroad and of their stations at or near the intersections of Fulton street and Flatbush avenue, brings a large number of persons daily into Flatbush avenue and Fulton street in the immediate neighborhood of plaintiff’s premises ..and increases the traffic in and Upon said streets at said points- in the neighborhood of said properties} respectively.” -

Counsel for the appellants bases his contention largely upon the proposition that the quoted findings of ’ the trial justice establish that the plaintiff has not sustained damage and that his complaint should have been dismissed. He directs our attention to several authorities from which he deduces the general rule that where the evidence establishes that the plaintiff’s property has increased in fee and rental values since the construction of the road, a judgment for damages cannot be sustained. This proposition is. undoubtedly sound in cases where the increase is traceable directly to the presence of the road and the evidence does not disclose any other adequate cause for the increased value, but in the case at bar the evidence is amply sufficient to sustain a finding that the increase in value of plaintiff’s property, both fee and rental, was attributable to causes entirely outside of and disconnected from the construction' and operation of defendants’ roads. Immediately after their construction and operation, and for several years thereafter, there was not only no advance but a decline in values, both fee and rental. After the completion of the road, on different occasions and as late as 1899, the plaintiff made extensive alterations and improvements in the buildings upon his property at an expense of upwards of $40,000: The defendants’ witness Bustin testified that in 1901 the premises were worth $170,000, an amount only $20,000 in excess of their valúe when plaintiff purchased in 1886, and this notwithstanding the' expenditure of upwards of $40,000 in alterations and improvements,' necessarily increasing value. In 1902, according to this witness, the value increased $30,000, and since then has continued to advance, but he testifies : “ The jump of $30,000 in one year was caused by sales in the neighborhood and the demand for that kind of property. The location created the sales in that neighborhood and the demand for that kiúd of property all along Fulton street from Smith street up to Flatbush avenue and Flatbush up to Lafayette. 1 know the location of bridge number 3 has been determined in the last three or four years, that was one of the elements in causing the increase in value, and the subway under actual construction now in Fulton street and Flatbush avenue, that is an important element. And the Long Island Bailroad is making extensive improvements for depot purposes just above Flatbush at Atlantic avenue. That is another improvement, and the contemplated extension of Flatbush ayenue to the bridge number 3. -That is practically settled. * * * I account for the jump from $240,000 to $300,000 from last year to this year to the new bridge, to the tunnel, to the' extension of Flatbush avenue and the Long Island improvement and the number of sales of Fulton street and Flatbush avenue property-since 1903.”

It w.as proven without contradiction that the effort to locate and mass department stores .in Fulton street- and Flatbush avenue was started before defendants’ roads Were projected or constructed- and about the time of the opening of the Brooklyn bridge in 1884 -or 1885. This evidence (with other testimony to which -1 do not deem it necessary to specifically refer) would; if believed, furnish á proper' and satisfactory foundation upon which to base -a finding that the increase in values of' plaintiff’s property (fee and rental) was due to causes wholly, disconnected from and excluding the construction, and operation of defendants’ roads. The record discloses that the elevated structures surround and close up the entire frontage, on .both streets, of plaintiff’s property (which is- situated in the heart of the department store shopping district of Brooklyn) to an extraordinary extent; on each side of the-plaintiff’s building ‘is an elevated railroad, and in front are two, one crossing under the other; the property is 'so located as to be unusually dependent for light and air* upon the streets upon which it abuts, inclosing it upon three sides; the appurtenant easements of light, air and access are unusually extensive and have been abridged in such an extraordinary degree ás to justify a finding that there was an excess of injury-over benefits demanding substantial compensation. These views lead me to the belief that the findings quoted .are consistent with the conclusion arrived at by the learned trial justice; that after offsetting benefits received by plaintiff’s property from the construction and. operation of defendants’ roads, there yet remained some damage to its fee and rental value.

The determination of -whether the trial court was guided by erroneous rules in arriving at .the amount of such damage presents the only remaining question necessary to consider. ■ CJounsél for the appellants contends; that the exception'to the-refusal of the trial' court to find, as requested: “ Twenty-sixth. That the easements, if any, appurtenant to the several lots of land interfered with by the defendants’ railway, besides any consequential damages, if' any, to said premises from the taking of the same, have in themselves only a nominal value,” presents reversible error, and in this contention I think he is clearly right. 1 am unable to distinguish this case from Bookman v. New York Elevated R. R. Co. (137 N. Y. 302); Sperb v. Metropolitan Elevated R. Co. (Id. 596); Saxton v. New York Elevated R. R. Co. (139 id. 320), and other cases which he cites; in which the refusal.to find, practically as requested in the case at bar, was held error requiring the reversal' of the judgments appealed from. The proposition embraced in the request has long been the settled law of this .State. The court having first found that the only property rights of the plaintiff taken or interfered with by the defendants were the easements of air, light and access, and then refúsing to find that such easements have in themselves only a nominal value, seems to me to establish necessarily and conclusively that the learned trial justice determined that the easements had a substantial value which is included in the judgment under review, constituting reversible error.

The record does not satisfactorily show that in arriving at the amount of damages sustained by plaintiff through the 'abridgment of his easements of air, light and access to his property by defendants’ structures, the court did' not include a substantial sum as the value of such easements instead of the nominal value to which the rules of law laid down by the Court of Appeals in' the cases cited limited damages of that character. His refusal to find as requested constrains-me to believe that he did. Heither of' the cases cited by the learned counsel for the respondent (Sixth Avenue R. R. Co. v. Metropolitan Elevated R. Co., 138 N. Y. 548; Cook v. New York Elevated R. R. Co., 144 id. 115) meets this objection. In the first case the findings clearly show that the benefits found were offset against the consequential damages (which excluded substantial easefnent values), and in the second case the trial court found that there were no actual, substantial or peculiar benefits" to the property in suit arising from the construction or maintenance of the defendant’s railroad in front of the plaintiff’s premises, while in the case at bar it is expressly found that plaintiff’s property has' been actually and substantially benefited by the construction and maintenance of the defendants’ roads.

The 12th and 13th findings of fact in the case at bar are substantially and in effect the same as • the findings in the Bookman and Saxton cases and subject to the same criticism, viz., .that they do not limit the damages allowed to the "difference between the, benefits received and the consequential damages sustained, but appear to include a substantial sum as, and representing -the value of, the, easements interfered with. The request to find is in the identical language-used in these cases,' and the principles -there determined-govern the disposition of the appeal in the case at bar. It appearing that the trial court was guided by an erroneous rule, founded upon a refusal to fipd,. the judgment-must be- reversed: (Cook v. New York Elevated R. R. Co., 144 N. Y. 115, 119.)

The judgment should be reversed and a. new trial granted, costs - to .abide the event. -

Hirsoh-berg, P. J., Jenks, Hooker and Miller, Jj., concurred.

Judgment reversed and new trial granted, costs to abide the event. 
      
      
        Sic.
      
     