
    Peter Santoz Suarez, Resp’t, v. The Manhattan Railway Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 26, 1891.)
    
    1. Injunction—Elevated railroad—Eights of abutters—What PROPER TO INCLUDE.
    In an action for damages caused by the construction of defendants’ elevated railroad in the street on which plaintiff’s property abuts, without compensation for the easements of light, air and access, and for an injunction restraining the maintenance of the road, Held, that it was proper to enjoin the running of trains on defendants’ road, as it is one of the incidents to the maintenance of the road.
    2. Damages to abutting property.
    In such case a finding that the value of the plaintiff’s interest in the premises was lessened by the taking of the easements in the sum of $12,000, was not a commutation of future trespasses, but simply a finding as to the present value of the easements, upon payment of which defendants might relieve themselves from the operation of the injunction.
    3. Damages—Acts subsequent to commencement of action.
    In such case defendants requested a finding of the damages suffered down to the time of the trial, which damages were found and allowed. Held, that defendants could not afterwards object that damages were allowed for acts committed after the action was brought.
    Appeal from a judgment of the special term granting the plaintiff an injunction nisi and an award for past damages.
    
      Julien T. Davies and Samuel Blythe Rogers, for app’lts; Henry A. Foster and John A. Weeks, Jr., for resp’t.
   Barrett, J.

—There is but little in this case which has not already been passed upon in numerous decisions of the court of appeals and of this court.

Upon the merits we think the money awards made at the special term were moderate, and we find no errors in the admission or rejection of evidence. Novelty is claimed for the point that it was error to grant an injunction against the running of trains, but judgments in this form have been repeatedly granted and sustained. The operation of the road has been invariably treated as ■ an incident to the maintenance and use of the structure. In the Lahr Case, 104 N. Y., 268; 4 N. Y. State Rep., 340, it was expressly held that the defendant was liable for the operation of its trains and the consequences flowing therefrom as incidents to the permanent structure which necessarily increase and aggravate the plaintiff’s injury.

“The structure here and its intended use,” said Ruger, Ch. J., “ cannot be separated and dissected, and it must be regarded in its entirety in considering the effect which it produces upon the property of the abutter.” The learned counsel for the defendants have submitted an elaborate brief in which they seek to distinguish this case from the Lahr case, but we think unsuccessfully. They concede that as to past trespasses the law holds the defendants liable for all the incidents of such trespasses; but they insist that in estimating the fee value such incidents should be disregarded. What the court at special term did was to ascertain the value of the plaintiff’s easements at the time of the trial These were the easements of light, air and access, and such were the easements “taken" by the defendants. It was found that the value of the plaintiff’s interest in the premises was lessened by that “taking in the sum of $12,000. This was not, as the defendants contend, a commutation of future trespasses, nor was it an indirect way of requiring the defendants “ to pay for the incidental results of future imaginary trespasses.” It was simply a finding as to 'the present value of the easements, upon payment of which the defendants might relieve themselves from the operation of the injunction.

The Lahr case, although an action at law, affords a complete justification for the finding. The plaintiff there was permitted to recover all the damages occasioned to his property by the taking of the easements. That case was taken out of the operation of the Uline case, 101 N. Y., 98, by the consent of the parties, and the rule with regard to the abutter’s entire damage was laid down with distinctness. That rule, even within the limitations suggested by Earl and Finch, JJ., covered the damages sustained by abutting owners by reason of the construction and operation of the railway so far as such damages resulted from the taking or destruction of their street easements of light, air and access. The defendants' argument on this head is refined and subtle, but its fallacy lies mainly in the postulate that the court has required the defendants, as the sole condition upon which they may legalize their structure, to pay also for the right to run trains. The court has done nothing of the kind. It has given the defendants an opportunity even at this late day to pay for the easements taken, and the price of those easements is their lessened value to-day resulting from the unlawful maintenance of the structure and operation of the road thereon.

We do not think any of the other points deserving of special consideration except the complaint that the court below awarded damages for acts of the defendants subsequently to the commencement of the action. There might be some difficulty with regard to this finding in view of the decision of this court in Cornell v. Manhattan Railway Company, decided March 13, 1891, 37 N. Y. State Rep., 624. But we think the defendants cannot avail themselves of the objection, because of their own request to the learned judge to find the damages down to the time of the trial. Their fifth conclusion of law specifically embraces this very proposition, and although it is preceded by a statement that they do not consent to the finding, it is evident that thereby they simply intend to guard against any possibility of assent to the amount to be specified by the learned judge in the finding. We need not, therefore, consider the main question, nor the subsidiary one, as to whether the findings would justify a modification of the judgment by the deduction of what might otherwise be deemed in excess of what is authorized.

Upon the whole, and without adverting to several^ other points taken by the appellants, which we deem unsubstantial, we think the judgments should be affirmed, with costs.  