
    The Emigrant Mission Committee of the German Evangelical Lutheran Synod of Missouri, Ohio, and Other States, at the City of New York, Respondent, v. The Brooklyn Elevated Railroad Company, Appellant.
    
      Elevated railroads — basis for injunctive relief—damages to easements from ashes . and cinders which fly from a dumping ground into the windows of a house are recoverable- as past or rental and not as fee damages.
    
    Where an elevated railroad is constructed upon a public street, an abutting owner is only entitled to relief by injunction for the invasion of his easements of light, air and access to the premises from the street.
    Injury resulting from this fact that the elevated railroad owns land adjoining the premises in question on both sides and in the rear, and although given no specific legislative authority to do so, locates its yard and dumping ground thereon, from which ashes and cinders fly into the abutting owner’s windows when they are opened, is allowable as past or rental damages only, but not as fee damage.
    
      Appeal by the defendant, The Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of December, 1896, upon the decision of the court rendered after a trial at the-Kings County Special Term.
    
      R. Percy Chittenden, for the appellant.
    
      Stephen M. Hoye, for the respondent.
   Bradley, J.:

The purpose of the action was to. restrain the defendant from operating its elevated railroad in Broadway, in front of the plaintiffs premises, and to recover damages. The plaintiff’s premises are situated on the northerly side of that street, have a frontage on the street of 50 feet and a depth of 264 feet. The property was purchased in 1863 by one Birkner, who in 1869 erected a two-story mansard-roof house on it 40x40 feet, with an extension added, and the lot was otherwise improved.

The defendant’s elevated railroad was constructed in Broadway, and the operation of it commenced in front of the property in June, 1885. In that month Birkner conveyed the property to Jacob Morch, who took the conveyance for the benefit of the plaintiff, and afterwards, in the year 1890, conveyed it to the plaintiff, and later made to the jffaintiff an assignment, etc. The situation presented by the defendant’s railroad is that there are four tracks, resting on posts, in front of the plaintiff’s premises, and tracks extending along the easterly and westerly sides of the plaintiff’s premises from the main tracks on Broadway. In fact the defendant occupies and uses as a yard lands on the easterly, northerly and westerly sides of, and adjacent to, the plaintiff’s property, in which yard are tracks, shops, etc., for the purposes incidental to the operation of such a railroad, and it is the only yard the company has for such purposes. On the easterly side of the plaintiff’s premises the defendant’s engines are run in to dump ashes and cinders, and on the westerly side are .the defendant’s coal dumps. It is evident that not only the elevated road in front of the premises but the dumping of ashes and coal on the easterly and westerly sides of them render the property less desirable for occupation as a dwelling place. Erorn what occurred at the trial it may be assumed that the effect which the evidence tended to prove resulted from the dumping of ashes and cinders before referred to, was the subject of consideration there, since the motion, made by the defendant’s counsel at the close of the evidence, that the court either strike out or disregard the evidence relating to the dropping of ashes and cinders near the property,

■ inasmuch as they were dropped upon the ground of the. defendant, was denied by the court. This motion was supplemental to exception taken on the trial to the same effect.

It ajjpears that the defendant’s railroad was constructed and operated in Broad'way pursuant to legislative and municipal authority. In such a case, and to the extent of the grant of authority, the defendant did not become liable • for merely consequential damages unjess they were occasioned, by its misconduct or negligence.. (Atwater v. Trustees, etc., 124 N. Y. 602; Fobes v. R., W. & O. R. R. Co., 121 id. 505; Talbot v. N. Y. & H. R. R. Co., 151 id. 155.) Whatever may have been the view on the subject before the Story Case (90 N. Y. 122), since then .the interference with the benéficial enjoyment of light, air and access of an abutting owner on a street by the occupants in the use of it has been deemed the invasion of his property, although he have no property right in the .street other than in such easement; and the struggle made in Lahr v. Metropolitan E. R. Co. (104 N. Y. 268) to obtain from the judgment of the court a particular limitation of that doctrine was ineffectual. The right to injunctive relief of the character of that sought in this action rests upon the invasion of the property of the plaintiff. (Kane v. N. Y. E. R. R. Co., 125 N. Y. 164; American Bank Note Co. v. N . Y. E. R. R. Co., 129 id. 252.) And so far as relates to the easements of light, air and access appurtenant to the premises in question, the plaintiff is entitled to recover such damages as have resulted from the occupation of the street in front of such premises. Such damages which go to depreciate the value of the property give support to injunctive relief.

But when we corns !to consider the manner in which the defendant’s premises adjacent to those of the plaintiff were used and the-effect of such use upon the enjoyment of the latter, a different question arises. The, defendant had the right, as essentially incidental to the operation of its railroad, to acquire land for the accommodation of its business. It must have a place to deposit its coal for. fuel, for discharging ashes and cinders, for shops, for storage of cars, etc. The defendant,' however, had no specific legislative grant to locate its yard at that place ; and the question may arise whether the right to do what the defendant did in that respect came within the power implied from that expressly conferred. That may be dependent upon the further question whether it was reasonably exercised with a view to the rights of others. The question arose in Cogswell v. N. Y., N. H. & H. R. R. Co. (103 N. Y. 10), where the company located an engine house so near the premises of Cogswell that smoke, soot, cinders and coal dust came from it into his house. In delivering the opinion of the court, Judge Andrews said that “the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury.” This principle and case have been recognized and adopted by other cases. (Bohan v. P. J. G. L. Co., 122 N. Y. 18; Morton v. The Mayor, etc., of New York, 140 id. 207; Spring v. D., L. & W. R. R. Co., 88 Hun, 385.)

On the part of the plaintiff, evidence was given to the effect that ashes and cinders, when dumped from the ashpan of the engines, flew into the house when the windows were open, rendering the occupation of the premises uncomfortable. The application of the doctrine of the Cogswell case and kindred cases permitted such a view of the use made of the adjacent premises by the defendant in the dumping of ashes and cinders where, and as they were discharged from the ashpans of the engines, as might enable the court to take that into consideration as an- element of damage.. But this could be treated as past damage only. It could not properly be included in the fee damages. (Americcm Bank Note Co. v. N. Y. E. R. R. Co., 129 N. Y. 262, 269; Bischoff v. N. Y. E. R. R. Co., 138 id. 257, 262.)

It is only the invasion by the defendant of the plaintiff’s easements of light, air and access as an abutting owner on the street, and damage resulting therefrom, which permit injunctive relief. When the equitable jurisdiction is supported, the court, as incidental to the main relief, may assess and award past damages. (Lynch v. M. E. R. Co., 129 N. Y. 274; McGean v. M. E. R. Co., 133 id. 9; Hunter v. M. R. Co., 141 id. 281.)

It cannot be ascertained, from the findings of the court, whether anything was allowed by way of damages for the infliction of injury upon the plaintiff’s premises by the ashes and cinders blown upon them from the defendant’s dumping ■ place on the adjacent land; or, if allowed, whether it was not included in the past or rental damages only. Nor could this be shown by the. decision of tlie court, because it does not appear that this element of damage was a _ factor in the evidénee on the subject, otherwise than inferentially from the fact that such condition existed.

' The learned counsel for the defendant did - not, upon the trial, raise the question relating to the ashes and cinders founded upon the distinction hereinbefore mentioned as between the fee and past damages, for the reason, perhaps, that it made no difference to his client in which clasd of damages it was included, if any damages should be awarded for that cause of injury. But the objection was taken, from time to time, on the trial, that no damage was allowable for the consequence to the plaintiff’s premises resulting from the dumping of ashes and cinders by the defendant on - its own land, and, therefore, exception was taken to the reception of any evidence tending to prove such! dumping of ashes and cinders, and the consequences to the plaintiff’s premises.

If we are correct in the view taken, there was no error in the reception of the evidence, nor in the refusal of the court to strike it out or disregard it.

Some other exceptions were taken to evidence received, but there was no error to the prejudice - of the defendant in any of tlie rulings of the court in that respect.

Much attention is given in the argument of the defendant’s counsel to the asserted proposition that the damages awarded by the judgment are excessive, and this question is discussed by him -with much force and ability. There is a marked conflict in the evidence introduced in behalf of the respective parties on this subject. The sum allowed for rental damages is fully up to the amount which the evidence permitted; but the amount allowed for the'permanent, or fee, damages is between, and some ways from, the two extremes of the conflicting evidence.

It is deemed unnecessary to expressly refer here to the evidence in detail. From a careful examination of the evidence it appears that there was a question of fact presented by it upon which the court was warranted in assessing, and did assess, the amounts of both classes of damages, and, in the view which the trial court was permitted to take of the evidence, it is not seen that the conclusion there reached was against the weight of it.

The judgment should be affirmed.

All concurred, except Cullen, J., not sitting.

Judgment affirmed, with costs.  