
    Charles F. Mattlage, Appellant, v. The New York Elevated Railroad Co. et al., Respondents.
    (New York Common Pleas
    General Term,
    November, 1895.)
    The covenant, in the conveyance from the corporation of the city of NeW York to the corporation of Trinity Church of lands under water, on the part of the grantee to leave a street sixty-six feet in breadth, to be known as Greenwich street, the same “ to remain a public street of said city,” operated as a reservation to the city of an easement only, and not of the fee of such street. ‘
    A deed which describes the’ premises conveyed as bounded by a street conveys to the center .of such street.
    In an action against an elevated railroad company for injunctive relief, where it appeared that the plaintiff was the owner in fee of the bed of the street to the center thereof, contiguous to and in front of the land in question, held, that his rights were prima facie of a substantial character, and that it would be presumed that a wrongful appropriation thereof worked substantial injury; and that, in order to defeat plaintiff’s claim to an injunction, it was incumbent upon defendant to show that the land taken was of no, or only of nominal, value:
    It cannot avail the wrongdoer for the purposes of immunity that the extent of his wrong is not susceptible of precise measurement in money.
    Appeal by the plaintiff from a judgment which denied him injunctive relief, yet awarded him nominal, damages and costs.
    Action by an . abutting owner to enjoin the defendants from maintaining and operating their elevated railway in the street in front of and contiguous to his premises, the fee of such street being claimed by him. It was conceded that the defendants had not acquired the right to maintain their railway either by purchase or in the exercise of their power of eminent domain.'
    
      O.fiarles R. Ridgway, for' appellant.
    
      Julien T. Ramies and Braim,ard Tolies, for respondents,
   Bischoff, J.

The premises involved are situated on the corner formed by the intersection of the westerly side of Greenwich street with the southerly side of Warren street, in "the city of New York, being twenty-six feet and six inches in front on Greenwich street; and the action was brought to enjoin the maintenance and operation of the defendants’ elevated* railway in Greenwich street in front of the premises, as well as the maintenance of their station extending partly on Greenwich street and partly on Warren street. Upon the trial, showever, the plaintiff disclaimed all contention, with regard to the station.

The plaintiff claimed, and the trial court adjudged him, to be the owner in fee of the premises above alluded to, as well as of the land contiguous thereto and forming the bed of Greenwich street,' to the center thereof, upon which the defendants’ railway Was constructed, subject’ to the perpetual use of the land last alluded to for the purposes of a public street. Such being the facts, it was error for the trial court to conclude that the damage which resulted to the plaintiff from the defendants’' appropriation of the land in Greenwich street was nominal only, and upon that ground to refuse him injunctive relief.

At the time of the conveyance hereinafter next to be alluded to, the premises in question, including the soil of Greenwich street, were a part of the land under the waters of the Hjidson ■ river, and were owned by the corporation of the city of New York, the upland contiguous to such land under water being at the time the property of the corporation of Trinity Church. Greenwich street, as such, does not appear, then to have existed in front of the premises involved. On November 18, 1773, the corporation of the city of New York conveyed to the corporation .of Trinity Church “ all the land, ground, soil and water lots extending two hundred feet beyond low-water mark,” situate, lying-and being “in fronf of” and “contiguous to ”• the land of the grantee, with all the “estate, right, title, possession, use, interest, property, claim and demand whatsoever of ” the grantor in and to the land under water and first above alluded to. By the deed of conveyance the grantee covenanted to “ leave a street of sixty-six feet, English measure, in breadth,” to be known as' Greenwich or First street, and to extend along high-water mark of the land conveyed, the same “ to remain a public street of said city.” The grantee furthermore covenanted to cause such street, with others, to be made and completed by the 25th day of September, 1780, to maintain the several streets at all times thereafter in good and sufficient repair, and that the same should continue forever “ for the free use- and common passage of, and public streets and ways for, the inhabitants of the city of New York, and all others passing or returning through or by the same, in such manner as the other public streets of the same city now are or lawfully ought to be.” No part of the tract of land described in the. premises to be the subject-matter of the conveyance was excepted; and throughout the conveyance of the premises in suit, from the deed by the corporation of Trinity Church down to and including the one to the plaintiff, the same were described as bounded “ easterly in front by Greenwich street.”

We are convinced of the accuracy of the conclusion that the plaintiff is the.owner in fee of so much of the bed of Greenwich street as is contiguous to, and in front of, his remaining land, to the center thereof. As we construe the conveyance to the corporation of Trinity Church, it operated to vest the fee of the entire tract of land under water in- the grantee. Giving effect to the grantee’s covenant to open and maintain Greenwich street as a reservation by the grantor, such reservation is fully satisfied if extended to an easement, a right of way only; and the reservation of the easement, because of obvious conflict, excludes intention to claim the continued ownership of the fee. Applying, next, familiar rules governing the construction of grants of land abutting upon streets or highways to the subsequent deeds, the plaintiff’s succession to the fee -of the soil of Greenwich street is apparent. These rules are that if the grantor of land which is described as bounded by a street or highway is at the time of the conveyance also seized in fee of the land over which such street or-highway extends, he will be presumed to have included the last-mentioned land to the center (Kings Co. Fire Ins. Co. v. Stevens, 87 N. Y. 287, 291); and that courses, distances and dimensions must yield to boundaries, unless an intention that the former shall be controlling clearly appears. Yates v. Van, De Bogert, 56 N. Y. 526; Dunham v. Williams, 37 id. 251; 2 Am. & Eng. Ency. of Law, 507.

For so much of the property as is actually taken for a public use the measure of just compensation, provided for by the Constitution is its value without deduction for benefits to-the remainder. Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, 433 ; Bohm v. Met. El. R. R. Co., 129 id. 576 : Mattlage v. N. Y. El. R. R. Co., 1 Misc. Rep. 339. Obviously, there-, fore, the case at bar is distinguishable in that regard from the . case of the taking only of the basements of light, air, and means of access appurtenant to abutting land, Those easements, being incapable of enjoyment except in connection with the land abutting upon the servient land, have no actual value apart therefrom. Bohm v. Met. El. R. R. Co., supra. Hence, when they constitute the only property taken, the inquiry with regard to the compensation, to be made is pointed to ascertain the effect of such taking ujDon the dominant, land, in which case resultant benefits are tó be considered in arriving at the extent of the owner’s loss. Newman, v. Met. El. R. R. Co., 118 N. Y. 618.

But the owner of land which is subject to use as a public street or highway has substantial rights therein. He may excavate the soil under the surface and use the space (McCarthy v. City of Syracuse, 46 N. Y. 194), or authorize others so to do., He possesses absolute dominion over the land for all purposes not inconsistent with the public easement and the proper exercise of the police power of the state. If the street or highway is abandoned the land reverts to him. 24 Am. & Eng. Ency. of Law, 122. His- rights can be taken from him. only in the exercise of the power of eminent domain, and upon payment of just compensation (Williams v. N. Y. C. R. R. Co., 16 N. Y. 97, 108), and just compensation in such a case implies that it should be of a substantial character. City of Buffalo v. Pratt, 39 N. Y. St. Repr. 270; 131 N. Y. 293. A further distinction is here, to be noted between the present case and one involving the conversion of an existing right of way in favor of abutting owners into a public easement for the same uses, in which latter case no actual damage is held to result. Matter of Adams, 141 N. Y. 297.

In determining for the purposes of just compensation the value of the property which is to be taken for a public use the inquiry is, what is the property “ worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth :from its availability for valuable uses?” Boom Co. v. Patterson, 98 U. S. 403 ; Lewis Em. Dom. §479; Suth. Dam. §1074. Measured by this rule the testimony .of the plaintiff’s expert's^ called to show a substantial value of the land in Greenwich street, is in part worthless because- of its extremely speculative' character (Lewis Em. Dom. § 480); but it sufficiently appears from' the testimony of Plass, one of such experts, which in that regard was competent and uncontradicted, that the land was available for particular uses and as to such uses was of substantial value." True, expert testimony, as mere opinion evidence, is not to be regarded as' conclusive. Head v. Hargrave, 105 U. S. 45; Forsyth v. Doolittle, 120 id. 73,77; Bogers Expert Testimony,- § 207, p. 486. Such testimony, however, is competent ex necessitate. Clark v. Baird, 9 N. Y. 183, 196. It is, therefore, to be considered, and if corroborated by probability, and the circumstances of the particular" case in which such testimony must needs be resorted to, it should be given due weight. Expert testimony regarding value when the property, as here, is in some respects, at least, sui generis, may not afford more than a vague and unsatisfactory basis for the award of adequate compensation; but, even so, relief is not. upon that account to be withheld if it clearly appears that substantial damage was inflicted by the taking of the property. It cannot avail the wrongdoer for the purposes of. immunity that the extent of his wrong is not capable of precise measurement in money. Drucker v. Man. R. Co., 106 N. Y. 157,164.

. If all the expert .testimony above alluded to be rejected it follows, notwithstanding,, that the 'plaintiff should have prevailed in the action. Injunctive relief is not to be extended ■ except where the act sought to • be restrained inflicts substantial injury (Gray v. Man. R. Co., 128. N. Y. 499; Brush v. Man. R. Co., .26 Abb. N. C. 73, 80); but the rule obtains only when it appears- affirmatively that the injury is technical only,/ and trivial. Such were the cases last- above cited, and those referred to in the - opinions therein. Spelling Extr. Relief, § 286. Here, however,, the rights of the plaintiff as the owner' of the land- subject to an easement for street or highway uses areprima, facie of a substantial character. Hence, a wrong-' ■ ful appropriation thereof, works .substantial injury to him. City of Buffalo v. Pratt, supra. In order to defeat thé' .plaintiff’s: claim to injunctive relief it was incumbent, thereforeyupon the defendants to’ show that the land taken was of no',- or only of nominal, value. Ho . such'-evidence was adduced. . - . •

That the construction and operation of an elevated railway thereon imposes upon the land an additional burden, one not .'.within the contemplation of' ordinary street- or highway uses, and is to that extent an appropriation of the owner’s rights of property :was definitely settled by the Story, Lahr, Drucker, Abendroth and Kane cases, 90 N. Y. 122; 104 id. 268;. 106 id. 157; 122 id. 1; 125 id. 164; and for the'continuing tres-, pass which results from the maintenance -.and operation of- the. railway the owner is entitled to injunctive relief {-Williams- and Henderson cases, supra), lest the wrong should ripen into-' a right by adverse possession or the owner be forced into a multiplicity'of. • actions to prevent such .a result. Corning v. Troy, etc., Factory, 34 Barb. 486.

The judgment should be reversed and a new. trial had, with costs to the plaintiff to abide the event, . .

Daly,- Ch. J., and Pbyoe, J., concur;

Judgment reversed- and new trial-' ordered, with costs to appellant to abide event.  