
    In the Matter of the Petition of The Brooklyn Union Elevated Railroad Company, Respondent, Relative to Acquiring Title to Real Estate or a Right of Way on Crescent Street, Broadway, Fifth Avenue, Myrtle Avenue, Lexington Avenue, Grand Avenue, Hudson Avenue, York Street, Adams Street and High Street, in the Borough of Brooklyn and County of Kings, in the City of New York, Parcel No. 64, Premises No. 158 Myrtle Avenue. A. M. Stein and Others, Appellants.
    
      Condemnation of easements in a street by a street railway company—measure of damages—nominal damages—when insufficient.
    
    In the absence of exceptional conditions, the measure of the damages sustained by a property owner, in consequence of the construction of an elevated railroad in the street upon which his property abuts, is the difference in value of the abutting premises actual and prospective before and after the construction of the road, in so far as the same is due to such construction and to the operation of the road.
    When an award by commissioners of appraisal, appointed in a condemnation proceeding, of six cents damages to the abutting owner should pe set aside, considered.
    Woodward and Jenks, JJ., dissented.
    Appeal by A. M. Stein and others, property owners, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of June, 1903, confirming the.report of commissioners of appraisal' appointed to ascertain and appraise the compensation to be made to such property owners for certain easements or interests in their real estate taken by The Brooklyn Union Elevated Railroad Company.
    
      Cyrus V. Washburn [George W. Sickels with him on the brief], for the appellants.
    
      Charles L. Woody, for the respondent.
   Hirschberg, P. J.:

The appellants’ property is No. 158 Myrtle avenue in the borough of Brooklyn, the lot being twenty-two feet by one hundred, with a three-story frame building and extension, used chiefly for store and wareroom purposes. The easements and interests in the property sought to be condemned in this proceeding have been possessed and occupied by the owners of the elevated railroad a number of years. The evidence presented by the appellants tends clearly to establish that the fee and rental value of the property have been substantially diminished since the building of the elevated structure, and the expert' witnesses called on behalf of the respondent concede a diminution _during that period of the fee value. There is no claim of benefits arising from the' propinquity of the railroad, and the weight of evidence supports the claim of the appellants that the loss is due in a large degree, if not solely, to the construction and operation of the road. We think in these circumstances that the award made by the commissioners of the sum of six cents as the entire compensation to be paid for the property taken was palpably wrong, making every proper allowance for the advantage possessed by them in a view of the premises, and the information which may have been derived from such inspection.

It is unnecessary to refer to the evidence in detail. The award is necessarily based on the theory that there has been no actual or appreciable damage. As was • said by the Court of Appeals, however, in Powers v. Brooklyn El. R. R. Co. (157 N. Y. 105, 108), of even $, vacant lot, It needs no argument to show that the railroad structure, within a few feet of the property, and with its columns in the sidewalk, is a permanent damage and will impair the value, to some extent, of any building that may be erected thereon.” The remark applies with greater force to property which has been utilized for commercial purposes. There may be, of course, peculiar circumstances and surroundings which will render merely nominal the injury incident to the construction of an elevated road, but the record in this case does not disclose the existence of conditions of such a character. The basis of appraisement in the absence of such exceptional conditions is generally the difference in value of the abutting premis'es actual and prospective before and after the construction of the road in so far as the same is due to such construction and to the operation of the road. (Matter of Brooklyn Elevated R. R. Co., 55 Hun, 165; Pappenheim v. M. E. R. Co., 128 N. Y. 436 ; Becker v. M. E. R. Co., 131 id. 509.) While the courts are naturally reluctant in interfering with the exercise of judgment on the part of commissioners in this class of cases, yet as'was said in South Buffalo Ry. Co. v. Kirkover (176 N. Y. 301, 306), “it is reasonable that where the State, in the exercise of the right of eminent domain, sees fit to take the property of the citizen without his consent, paying therefor such damages as are the result of the taking, the commissioners in the condemnation proceedings should not only be permitted, but required to award the owner a sum that will fully indemnify him as to those proximate and consequential damages flowing from this act of sovereign power.”

The final order should be reversed and a new appraisal directed.

• All concurred,, except Woodward and Jenks, JJ., dissenting.

Final order of confirmation reversed and a new appraisal directed before commissioners to be appointed at Special Term.  