
    Kenkele et al. v. Manhattan Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 24, 1890.)
    Elevated Railroads—Abutters—Measure of Damages.
    In an action to enjoin the maintenance of an elevated railroad in a street in front of plaintiff's premises, and for damages caused by its operation, the measure of damages recoverable by plaintiff for the permanent depreciation in the value of his property by the taking of his easements of light, air, and access is the value of those easements at the time of the trial, which may be shown by proof of what the property would then be worth with and without the easements.
    Appeal from special term, New York county.
    Action by Bertha R. Kenkele and. John P. Kinkel, as surviving trustees under the will of Philip A. Kenkele, against the Manhattan Railway Company and the Metropolitan Elevated Railway Company, to restrain them from operating their railroad in front of No. 94 South Fifth avenue, New York city, and to recover damages for its maintenance. Plaintiff recovered judgment, from which defendants appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      
      Davies & Rapallo, (Edward S. Rapallo and Henry D. Sedgwick, Jr., of counsel,) for appellants. Peckham & Tyler, (E. W. Tyler, of counsel,) for respondents.
   Van Brunt, P. J.

Most of the questions presented upon this appeal have been considered in cases which have been heretofore argued and conclusions arrived at .adverse to the claims made by the appellants. It is claimed that the learned judge who presided at the trial adopted an erroneous measure of damages, and admitted incompetent evidence upon the subject of damages. It seems to us that in the discussion of the rules applicable to the question of damages in these cases the peculiar position of the defendant is too often lost sight of. If the defendant, before or immediately after the building of the road, had taken the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of its structure and the operations of the road, undoubtedly the measure of damages would have been the value of those easements at that time. But instead of pursuing this course they have, without authority, seized upon these easements, maintained their unlawful structure, and operated their road, utterly regardless of the right o£ those upon whose property they were trespassing, and without showing any disposition to acquire the "title to that wiiich they had seized. It became necessary for the owners of these easements to appeal to the courts for protection from this wanton measure of their rights, and the courts would have been justified, under these circumstances, in compelling the absolute cessation of the operation of these roads until they had taken measures to condemn to their use the property which they had already seized upon. Instead of doing this, because of the great public'inconvenience which such a course would entail, they have in these proceedings proceeded to determine what would be a fair compensation to be paid for these easements, upon the payment of which, and the annual damage already sustained, the operation of the road might continue. Under these circumstances, of what time is the value of these easements to be ascertained? Clearly, as of the time of the trial. The right to recover for the damage theretofore done rests upon a different basis. The permanent damage is to be determined as of the time of the trial. If proceedings under the statute were initiated now, the present value of these easements would necessarily be allowed, not what their value was when the road was constructed. The defendant could have had this latter rule of damages if they had commenced their proceedings to acquire title when they began the construction of-their road. They have not done this, but have refused to pay until compelled to do so by the strong arm of the law, and hence, as they only pay now, they must pay what the property taken is worth now. The evidence . as to the value of these easements is necessarily, from the very nature of the case, somewhat conjectural and stringent, and strict rules are not to be applied where they would deprive an owner of all proof of damage, as we are dealing with the damage done by a trespasser; and, while damages should be proven with reasonable certainty, the rights and interests of the owner of these easements should not be sacrificed. How are we to arrive at the value of these easements taken by the defendant? To the plaintiffs they are of no value, except because of the enhanced value which they give to the property they own fronting upon the street. By themselves they are worthless,—have no intrinsic value. Then what more certain evidence of their value can be given than by proof of what the property to which they are appurtenant would now be worth with the easements, and what it is worth without these easements? But it is said that this rule is contrary to that laid down by the court of appeals. If the court of appeals have held that such evidence in these cases is incompetent, then we know of no way in which the plaintiff can prove the damages to which the law says he is entitled, and the amount o£ such damages must be left to be guessedat by the court or jury. As we have seen, the easements have no value, severed from the abutting land, except to the defendants. They have been severed by the defendants from the abutting land. What damage is the owner of this abutting land entitled to receive as a condition of allowing the trespasser to enjoy the funds of this trespass? Clearly, the amount by which his property is at the time of the trial injured by the trespass. The trial is the time at which the computation is made and the damages fixed. We do not think that the court of appeals has as yet condemned that rule, and until they do, justice seems to require that it should be followed. It is claimed that the plaintiffs only had a life-estate, and could not recover beyond that. An examination of the will under which they hold, shows that they held the fee with a power of sale. They therefore can convey to the defendants a title to these easements which will be binding upon the remainder-men. It does not seem necessary to consider the other points raised in the case, as they have already been passed upon, as has been stated, in other cases. The judgment should be affirmed, with costs. All concur. 
      
       McGrean v. Railway Co., 22 N. E. Rep. 957.
     