
    Charles Laue, Respondent, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants.
    
      Eminent domain—elevated railroad— what justifies a finding that it will continue to be operated by steam power — damages based thereon — resolution to issue stock to pay for an electrical equipment—speculative opinion of an engineer.
    
    Where an action is brought to enjoin the maintenance and operation of an elevated railroad, operated by locomotive steam power, and it appears upon the trial that the railroad company is then engaged in constructing a plant which will enable the railroad to be operated by electricity, but no evidence is given as to when this plant will be in operation or as to its character or the method in which it is to be operated, a finding that the road will still continue to be operated by locomotive steam power does not constitute reversible error.
    A resolution of the stockholders of the railroad company approving an issue of stock and providing that the proceeds of such stock shall be used to change the motive power of the railroad to electricity; and to provide a new plant and equipment, is not competent to prove that the company was actually engaged in changing the motive power to electricity.
    An electrical engineer employed by the railroad company should not be permitted to answer the following question : “Applying that experience to the existing condition of affairs, what would be the result in speaking of the alleged physical annoyances coming from the operation of a railroad by steam as at present, to the establishment of the electric power and the operation of the railroad by electricity,” as, in the absence of any evidence as to the nature of the plans adopted by the railroad company, the evidence called for by the question would be speculative.
    
      Semble, that if prior to the' trial the road was operated by electricity the award of permanent damages should be based upon the injury occasioned to the property by the operation of the road by electricity; if operated by steam, the award should be based upon such use.
    Appeal by the defendants, The Metropolitan Elevated Railway 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 19th day of June, Í901, upon the decision of the court rendered after a trial at the New York Special Term,
    
      Arthur 0. Townsend, for the appellants.
    
      William P. Page, for the respondent.
   Ingraham, J.:

The question upon which the defendants rely to reverse the judgment is one that has not been passed on by this court nor the Court of Appeals. The action is brought to restrain a continuing trespass, the trespass as alleged in the complaint consisting of'the maintenance of the elevated.railroad and thé running of trains drawn by locomotive steam engines as they have heretofore, done for an indefinite period, the complaint alleging that the said structure and the operation of the said railroad are intended by the defendants to be permanent; that.the engines and cars operated over said structure eject smoke, cinders, ashes, soot, steam and gas into and upon said avenue and street and plaintiff’s premises, and ■ drop grease, oil, water, cinders, ashes and' other objects upon said avenue and street, and the premises of the plaintiff, and make a loud and disagreeable noise and , shake the buildings on plaintiff’s premises so as to weaken them, and that such trespass will continue indefinitely in the future unless restrained by the order, of the court. The plaintiff also alleges that the defendants intend to greatly increase the burden imposed upon the plaintiff’s premises and asks for an injunction perpetually enjoining and restraining the defendants, and each of them, from further maintaining or operating the above-described railroad in front of- the plaintiff’s premises, or maintaining or operating any additions to or enlargements of their present structure.

The defendants deny.these allegations of the complaint and allege that the railroad in front. of the plaintiff’s premises was erected-under legislative authority, and asks that if the court determine that an injunction should issue herein restraining the defendants from continuing to maintain their structure and operate their road in front of the plaintiff’s premises,-such injunction be granted subject to a condition that it shall not become operative if, within a reasonable time to be fixed,, the defendants pay to the plaintiff the value of the right to maintain and operate their railroad, to be determined by commissioners of appraisal appointed in proceedings taken under, the Condemnation Law.

The action came on for trial at Special Term and the plaintiff offered evidence tending to show the method of operation of the defendants’ railroad ; that cinders and dust were constantly thrown. upon the plaintiff’s premises by the passage of the trains; and that the steam from the defendants’ locomotives came upon the plaintiff’s premises. On behalf of the defendants it was proved that steps had been taken some time prior to the trial for the equipment of the elevated railroad with electricity, and that they are now engaged in accomplishing that object; that the first electric train was operated on the Second avenue line the day before the witness was examined. The defendants then offered in evidence a resolution of the stockholders of the railroad company approving of the issue of stock of the par value of $18,000,000, and which provided that the proceeds of this stock were to be expended and used to substitute electricity in place of steam as the motive power of the railroad, and to provide new plant and equipment. This was objected to by the plaintiff, the objection sustained and the defendants excepted. Further evidence was then offered as to the progress that had been made in regard to the electrical equipment of the road, and the witness, who was an engineer employed by the defendants, after being asked as to his experience with roads operated with electricity, was asked : Applying that experience to the existing condition of affairs, what would be the result in speaking of the alleged physical annoyances coming from the operation of a railroad by steam as at present, to the establishment of the electric power and the operation of the railroad by electricity ? ” That was objected to and the objection sustained, to which the defendants excepted;

The court found that the defendants had constructed in front of the plaintiff’s premises an elevated railroad about the years 1879 and 1880, since which time the said structure has been operated by the defendant, the Manhattan Railway Company, by means of trains of cars drawn by locomotive steam engines, and is so operated now; that the maintenance of the defendants’ railroad structure has obstructed and will continue to obstruct the access to and diminish the light of the plaintiff’s said premises^ and the running of trains on said structure, with the escape of steam, dust, cinders and gasses from the locomotives drawing such trains, has obstructed and will continue to obstruct the air which would otherwise enter said premises, and has diminished and will continue to diminish the light of the plaintiff’s said premises. The court further found that by the taking of the easements aforesaid the plaintiff from May 1, 1895, to the date of the trial, suffered a loss in rental value of said premises of $600 per year, or in all $3,333; that there has been an actual and substantial damage to the fee value and a depreciation in the value of said premises of the plaintiff by the taking of so much-of the said easements belonging to the said premises as have been taken by the defendants, over and above any and all general and special benefits to'said premises arising from the construction maintenance and operation of said railroad structure in the sum of $7,500, and directed a judgment for the plaintiff for the recovery of the damages sustained as found, and ordered an injunction ■ restraining the defendants from maintaining or operating the said railroad in front of the premises described in the complaint upon condition that the injunction shall not be operative in the event that the defendants pay to the plaintiff the sum of $7,500, with interest to the date of trial.

The defendants contend that it was error to exclude the testimony to which attention has been called. The witness was allowed to testify as to what had been done by the railroad company towards changing its motive power from steam to electricity. All the testimony that the court excluded was the resolution of the stockholders of the company authorizing the issue of additional stock and directing the proceeds to be applied to changing the motive power to electricity. . It is a little difficult to see upon what principle this resolution was admissible. The passage of the resolution by the stockholders of the company was not competent to show the fact that the company was actually engaged in changing the motive power which in the future operation of the road would obviate some of the injurious effects. All the evidence offered to prove that fact was admitted. There were no plans submitted by the defendants showing the method to be adopted by which the road was to be operated by electricity, and nothing from which the trial court could find the effect that the changed conditions would have upon the adjacent property. ••

I agree with counsel for the defendants that, in determining the value of the easement appropriated by the defendants, the court should take into ■ consideration the nature of the operation of the road as proposed by the defendants. As I understand this proceeding, the court acts as it would if the defendants had commenced. proceedings to condemn the interest in the street occupied and to be occupied by them in the construction, maintenance and operation of the road; and the amount to be paid to the plaintiff as a condition for allowing this elevated railroad company to continue to operate the road is to be ascertained upon the same principle that the court would ascertain the value of the property to' be taken by the proposed road, where the application was made prior to the actual construction and operation. In such case, where a portion of the property is taken by a railroad, the value of the property taken is estimated by determining what the property as a whole was worth before that portion to be appropriated by the railroad was taken and what it is worth subject to the operation of the railroad, and the difference between those two values is the value of the property that the road takes, and that value is to be determined as of the time of the .trial. It seems evident that if prior to the trial the road was operated by electricity, and not by steam power, it would be error for the court to base its award of permanent damages upon the injury occasioned to the property by the operation of the road in the old method, which had been discontinued, rather than by the new method which the road proposed to _adopt; and in fixing the form of the conveyance to be made by the plaintiff to the defendants the right acquired by the defendants could be limited to the operation of the road as proposed by it. But I do not see that the question is fairly raised in this case. There was proof before the court that the defendants, were engaged in constructing a plant which would enable the road to run by electricity, but there was no evidence as to when this plant would be in operation, no evidence to show just what the proposed plant was, how it was to be operated, or that it would cause any materially different operation from that proved to have been in existence prior to the time of the trial. There was certainly nothing to prevent the defendants from continuing to operate the railroad, and nothing was shown to the court to justify a finding that the operation would be essentially different from that before adopted. There was no competent evidence excluded which would indicate the particular method that the defendants had intended to adopt, from which the court could ascertain that any of the causes that contributed to the present injury to the plaintiff’s premises would be discontinued.

The question that was asked the defendants’ engineer as ’to what would be the effect upon the alleged physical annoyance coming from the operation of the railroad by steam, as at present, by the establishment of the electric power and the operation of the railroad by electricity, was, I think, properly excluded as entirely too speculative and not justified by any competent evidence as to the nature of the appliances which the defendants had intended to introduce ; and in view of the fact that all the evidence that the defendants offered as to the method of operation' that it was introducing and intended to adopt was admitted, I do not think that an error was committed in refusing to receive the evidence offered.

The remaining question is whether, in the face of this testimony, the finding of the court that the running of trains on the structure, with the escape of steam, dust, cinders and gasses from the locomotives drawing such trains will continue to obstruct the air which would otherwise enter such premises, was sustained by the evidence; but in view of the failure of the defendants to prove the particular .method of operation that was contemplated, or at what time the new method would be in operation, we do not see that error was committed that would justify a reversal of the judgment. We think, however, that the amount allowed both for fee and rental damage was larger than was justified by tlie evidence.

The judgment should be modified by allowing for the fee value of the property appropriated by the defendants $4,000, and for the rental damage $150 per year; and as so modified, affirmed without costs.

Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., and Patterson, J., concurred in result.

Judgment modified by allowing $4,000 for fee damage, and for the rental damage $150 per year; and as so modified affirmed, without costs.  