
    
      In re Brooklyn El. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    Eminent Domain—Compensation—Abetting Owners.
    In proceedings by a railroad company for the condemnation of a right of way in a street in which the abutting owners have a mere easement, the measure of compensation is the difference in the value of the property before and after the construction of the railroad; and, in ascertaining the latter, the admission of evidence of the benefits conferred by the construction of the railroad is not in conflict with Laws N. Y. 1850, c. 140, § 16, which provides that, in determining the amount of compensation for lands taken, no allowance shall be made of the benefits conferred by the construction of the railroad.
    Appeal from special term, Kings county.
    Petition of the Brooklyn Elevated Railroad Company for the condemnation of a right of way on Lexington avenue, Brooklyn, in front of the property of Edgar J. Phillips and Prank M. Avery. Evidence of the benefit derived by the property, through the increased facilities for transit, was admitted, over the objections of the property owners, who now appeal from the decree of the special term confirming the commissioners’ report.
    Argued before Barnard, P. J„ and Pratt and Dykman, JJ.
    
      Phillips & Avery, pro sese. Hoadly, Lauterbach & Johnson, for respondent.
   Barnard, P. J.

The section of the general railroad act in respect to damages to be paid by companies for lands taken for railroad purposes does not give a plain rule in respect to the basis upon which the assessment is to be made. By this section it is provided that a commission “shall ascertain and determine the compensation which ought justly to be made by the company to the party or parties owning or interested in the real estate appraised by them; and in determining the amount of such compensation they shall not make an allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the construction of the proposed railroad.” Laws N. Y. 1850, c. 140, § 16. The courts have construed the section to mean that the inquiry is to embrace the market value of the premises before the taking, and what it will be worth after the railroad is built, and this, in a sense, involves a probable benefit from the railroad. This inquiry necessarily takes in the advantages from the railroad, when the extent of the injury is to be based upon the diminution of value by reason of its construction. The true rule seems to be, after the examination of any case, to appraise the value of the land taken, and in addition to give the difference which results from the diminution of value to the whole tract from which the railroad strip is taken. Henderson v. Railroad, Co., 78 N. Y. 423. In this case no land of the appellants was taken. The fee of the street is not in them, so far as shown by the case. The basis of appraisement must then be the difference in value between the abutting house before the construction of the railroad and afterwards. Under this rule of assessment the testimony objected to was proper. In determining the value of the property after the construction of the elevated road, its effect upon such value could not be excluded. The inquiry into the difference of value before and after the taking could not be conducted without including the effect of the constructed road upon it. The rule followed does not conflict with the statutes. The land taken is to be paid for, and also the damage to land not taken. On this question the effect of the railroad in its evil and beneficial results must be considered. The value of the land taken is not to be dismissed, but the resulting damages to land not taken must involve all things which enter into the subject of value. The order should therefore be affirmed, with costs. All concur.  