
    Alice I. Birrell, Respondent, v. The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Appellants.
    
      Railroad — it may erect its trades at any grade on land acquired by it — effect of the land being taTeen for a city street — erection of the railroad structure on part of the street outside of the land acquired by it — damage recoverable by abutting owners.
    
    A railroad company which acquires title in fee simple to a strip of land, by condemnation proceedings instituted against the owner, may construct its railroad upon the strip at any grade authorized by the Legislature, whether above or below the surface, and is not liable to the owner or his grantees for any consequential damages resulting to such owner’s remaining property from the proper-use and operation of the railroad.
    The fact that a municipality subsequently takes the fee of the strip owned by the railroad in a street opening proceeding, making a merely nominal award to the railroad company therefor, does not affect the railroad company’s right to maintain and operate its road where it is evident that that right was not intended to be affected; nor does such taking confer any new right upon a grantee of the original owner with regard to his remaining property abutting upon the street as opened.
    The erection by the railroad company of a structure extending over the street upon each side of the strip to which it acquired title, and the operation of the railroad thereon, imposes an additional burden upon the street and entitles the abutting owner to compensation for the impairment of the easements appurtenant to her property resulting therefrom.
    Appeal by the defendants, The New York and Harlem Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of 'the clerk of the county of New York on the 15th day of March, 1899, upon the decision of the court rendered after a trial at the New York Special Term.
    This action was brought for an injunction against the maintenance and operation of the defendants’ railroad structure on Park avenue in the city of New York, in front of the plaintiff’s premises, and to-recover damages for such maintenance and operation. Park avenue was laid out as Fourth avenue upon the map filed in 1811 by the commissioners appointed under chapter 115 of the Laws of 1807. The defendant The New York and Harlem Railroad Company was incorporated under chapter 263 of the Laws of 1831, with power to construct tracks on Park avenue, subject to the approval of the common council of the city of New York. By an ordinance of said city, approved by the mayor in December, 1831, the company was permitted to construct its tracks on Park avenue, not exceeding twenty-four feet in width. The'title to the land abutting on the premises in suit — on the northeast corner of Park avenue and One Hundred and Twenty-third street — was vested in one Samson Adolphus Benson, an infant. After the passage of the resolution referred to, proceedings were duly taken by the company to acquire title from said Benson to a strip of land twenty-four feet in width in the center of said avenue, and extending for a considerable distance north and south of the premises in suit. These proceedings resulted in a final order, entered in December, 1832, granting to the company full title to the land in question, with the right to “ enter upon, take and use the same for the purposes of said road.” The plaintiff also acquired her title to the premises in suit from Benson. In 1850 the city of Hew York began a proceeding to open Park avenue from Thirty-eighth to One Hundred and Thirty-fifth street. By this proceeding the city assumed to acquire, for street purposes, title to a strip of land one hundred and forty feet in width in the bed of Park avenue, including the strip of twenty-four feet in question, and paid to the company the sum of one dollar for a strip of this width extending nearly from One Hundred and Twenty-third to One Hundred and Twenty-fourth street, and in front of the plaintiff’s premises.
    By chapter 702 of the Laws of 1872 the Harlem Company was authorized to lay two additional tracks, and was directed to sink its tracks in certain places. In pursuance thereof it constructed the additional tracks and operated its road in a cut in front of the plaintiff’s premises. In 1873 it leased its road to the defendant The Hew York Central and Hudson River Railroad Company. By chapter 339 of the Laws of 1892 the defendants were required to raise these tracks, and thereupon built the viaduct structure which is complained of in this action. The trial judge found that the defendants acquired the right to operate their trains in the depressed cut constructed under the act of 1872 ; but that they had not acquired, as against the plaintiff, the right to maintain the present structure, or any part thereof, or to operate trains thereon.
    
      Ira A. Place, for the appellants.
    
      Henry G. Atwater, for the respondent.
   Barrett, J.:

This case differs from Conabeer v. N. Y. Central & Hudson River R. R. Co. (156 N. Y. 474) only in the fact that the defendants’ title to the strip of twenty-four feet through the center of Fourth avenue was acquired by proceedings in inritum. In the Conabeer case there was a grant. Here the strip was acquired by condemnation proceedings. By these proceedings the Harlem Railroad Company acquired this strip in fee simple, with the right to enter upon, take and use the same for the purposes of its road. There is no substantial difference in the rights thus acquired and those acquired by a direct grant. So far as the strip of twenty-four feet is concerned, we think it clear that the company acquired the right to construct its railroad thereon at any grade authorized by the Legislature, whether below or above the surface of the land, without incurring any liability to Benson or his grantees for consequential , damages to Benson’s remaining property occasioned by the proper use and operation of the road. For the whole fee, with the railroad rights thus acquired, Benson received due compensation; and thereupon he was divested of all reversionary or other interest in the land. (Heath v. Barmore, 50 N. Y. 302.) Neither he nor his grantees can complain of the authorized use of the lands thus acquired. The structure erected by the Harlem Railroad Company upon this strip in 1833 was a lawful one. So was the depression of' the tracks thereon under legislative direction in 1872 (Chap. 702 of the Laws of that year); and so was the elevation of these tracks, thereon under similar direction in 1892 (Chap. 339).

It is contended that the defendants lost these broad, general rights by the street opening proceedings instituted by the city in 1850 and consummated in 1853. We think the (Jonabeer case is an answer to this contention as well. It was there held that while under these street opening proceedings the city obtained" the naked fee to the strip of twenty-four feet there in question, yet the defendant’s right to maintain and operate its road was not intended to be affected. The award to the company for this naked fee was but nominal. At that time, however,” said Judge Martin, “ the . municipal authorities and the Legislature recognized the right of the railroad company to continue its road in the street and in no way disturbed its possession or the exercise of that right.” It is true that stress was also laid upon the company’s acquisition of the property by grant, Judge Martin observing that “ Whatever rights the city may have acquired, it is quite evident that, so far as Mrs. McG-own was concerned, the right which she had granted to the railroad company never revested in her, and consequently neither she nor her grantees can assert the ’right thus released.” As we have already pointed out, there is no distinction in principle upon this, head between the acquisition of the land and the railroad right by grant and their acquisition .by condemnation proceedings. The effect of the grant in the Oonctbeer case was not placed upon any covenant contained in the conveyance, hut upon the naked act of transfer. These street opening proceedings took from the railroad company none of its railroad rights. They took from it the bare fee of the land, which thereby became vested in the city in trust for use as a public street, subject to those railroad rights ; and these latter have ever since been fully recognized both by the municipality and the Legislature. It follows that the defendants, by the street opening proceedings in question, have lost none of their railroad rights flowing from the original acquisition of the fee, nor have Benson’s grantees thereby acquired any new rights as against the railroad company with regard to his remaining property. The action cannot, therefore, be maintained so far as it relates to the alleged deprivation of light, air and access caused by the operation of the defendants’ road upon' the viaduct erected upon the strip of twenty-four feet.

We think, however, that the structure which the defendants have erected upon each side of this strip, and the operation of their road thereon, is an additional burden upon the street; and that they unlawfully deprive the plaintiff of her easements of light and air — if not of access — appurtenant to her abutting property. The difficulty at this point is that the learned trial judge awarded rental damages, and estimated the impairment of the fee value, upon the basis of the illegality of the entire structure, including that part of it erected upon the strip of twenty-four feet. He should have confined his award and estimate to the impairment of the plaintiff’s easements caused by the maintenance and operation of the defendants’ road upon that part of the viaduct which extends beyond this strip of twenty-four feet.

It may be difficult to furnish the necessary proof to justify an award of rental damage and an estimate of the impairment of fee value upon this basis. But with that we have nothing to do. If there has been no substantial impairment of the easements of light and air — thpre certainly has been none of the easement of access — apart from the maintenance and operation of the road upon the twenty-four feet, the plaintiff must fail. To maintain her action she is bound to show some additional burden caused by the maintenance and operation of the road upon the exterior' lines, and her rental- damages and estimated impairment of fee value must be based upon proof relating exclusively to the operation of the road upon those exterior lines.

The judgment must, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event.

Rumsey and McLaughlin, JJ., concurred.

Ingraham, J.:

I concur in result, as controlled by Welde v. New York & Harlem R. R. Co. (28 App. Div. 379).

Judgment reversed, new trial granted, costs to appellants to abide event.  