
    In the Matter of the Petition of the Brooklyn Union Elevated Railroad Company, Respondent, Relative to Acquiring Title to Real Estate or a Right of Way on Fulton Street, in the Borough, of Brooklyn and County of Kings in the City of New York, Parcel No. 877-885 Fulton Street. James H. Ollif and Others, Appellants.
    Second Department,
    June 8, 1906.
    Eminent domain — easements in light and air taken by elevated railway — proper rule for assessing damage. .
    In determining the value of easements in light and air taken by eminent domain ' on tbe erection of an' elevated railway the commissioners are not bound by technical rules of evidence, and may seek information wherever it may be found, as by viewing the premises.1 .:
    
      In assessing the damage to landowners ‘it is proper for the commissioners first -to determine the difference in value of the property as it exists with the elevated railway.in operation and the value if the railway were wholly"removed, and from the value so found to deduct the damage caused hy noise, vibration, etc., and all elements other than the value of easements of light, air and access, 'and to award the residue then remaining.
    If (he actual soil were taken a different rule of damage would apply.
    Appeal by James H. Ollif and others from an order of the Supreme Court, made at the Kings County Special TJerm and entered in the office of the clerk of the county-of Kings on the 29th day of ¡November, 1903, confirming the report of the com- - missioners of appraisal herein appointed under a judgment of. condemnation.
    
      Cyrus V. Washburn [Fullerton Wells with him on the brief], for the appellants.
    •Charles L. Woody [George D. Yeoma/hs with him on the brief], •for the respondent.
   Woodward, J.:

The appellants contend upon this appeal that the award made by the commissioners for damages to the easements, upon their- several properties upon Eul-ton street, by reason of the construction and operation of the plaintiffs railroad, are inadequate, and that the commissioners committed errors of law which entitle them to a reversal of the order. Under'condemnation proceedings the commissioners are authorized to and do view the premises involved in their investigation into the damages sustained, and the rule is well established, requiring the citation of no authorities, that in the ' absence of obvious error in the application of the law, the award of commissioners, approved by the court at Special Term, will not be disturbed. They are not bound down by any narrow technical rules of evidence; they may seek information wherever it is to be found, and in the last analysis it is the judgment of the commissioners which is to prevail, provided they have acted within the law. • Practically the only question involved in this appeal which is of any importance, in view of the rules governing such matters, is whether the measure of damages adopted is the correct one.

In this case we are of opinion that the commissioners were justifieri in taking notice of the fact that there was no taking of, land. The petition on which the proceeding is based describes the premises affected as being bounded along the side of Fulton and other streets, and as the plaintiff could take no more than it described in its petition, and there was no attempt to show that the defendants owned the land in the highway, the commissioners, were bound to award damages only for the taking of the property rights in the - premises described. These premises are located on a triangle, bounded bystreets on three sides, the plaintiff operating its elevated railroad on one of these three sides, and the question here presented is whether the commissioners have adopted the correct measure of damages. The commissioners in their report say: “To James II. Ollif, James L. Ollif, Grcrald^Ollif and Sidney L. Ollif, the owners, and Mary A. Peebles, Mary E. Cowenhoven, Sarah J. Frasse and James T. Barrow, mortgagees, of the parcel of property designated in the petition and hereinafter described as Parcel No. 877 to 885 Fulton street; the sum "of Five hundred (500) dollars ; that we have ascertained the amount of said award by first determining the difference in value of the property as it is to-day with the elevated road in front of it and with trains operated thereon, and what the property would be worth if the elevated railroad was wholly removed from the street, and then from the sum so found we have deducted that part of the consequential damages which we ascribe to the annoyance caused by noise, vibration, unsightliness of structure and all other elements other than the-value of easepients of light, air and access, and the residue so remaining, after deducting the aforesaid elements, is the sum found above.” ,

It is claimed that this award is not in harmony with the judgment of condemnation, in that the latter directed that the award should cover all of the elements above mentioned, but we are of opinion that the commissioners were not bound by that judgment to include in their award that which the law does not recognize as an element of damage in cases of this character, and that the true rule is as stated in Matter of Brooklyn Union El. R. R. Co. (95 App. Div. 108, 110), that the basis of the appraisement “is generally the difference in value of the abutting premises actual and prospective before and after the construction of the road in so far as the same is due to such construction and to the operation of the road.”' That is,the commissioners, are to • take into'consider»-' tion al-Vof the elements and determine the value of the property without' the presence of the road, then to determine its value" with the road constructed and in operation, which necessarily invol ves all of the elements"of hioiséj 'vrblfatiotiúnéigíitlinesg,;éfo.,'and thhowner’’ is to be compensated for the loss, if any, due to the taking of his easements'of light,' áif and access. Of course,'-if the property" is. worth more with the'railroad in the highway than It' is without it/ then file excess of valuation is to he offset against the value' of the easements takeiij and' the qtiestidn involved being one of great conn plication, it is‘left to a very large extent to the "judgment of the commissioners,.having‘iti View'all'of the facts which they are able to gátlier from the evidence of frombtheir owil observations and general knowledge of the situation.

Of tíbúrse/wJiéfe the petitioners actually take a portion of the real estate', a different 'rule/ of damages is' "brought' iiito play. " In such a case there is the duty hot only of" paying just compensation , for the" part' which is physically taken, but justice"faquires that" , there shall.be ail awáf-d for the damages which -thé" remaining portion. of the premises shall suffer, and"tliis includes all of the elements incident to the ¿obstruction, and operation of the railroad in the vicinity-o.f the" rediáiítíihg1 jjdrtion of ; the "premises.:" But -the case" now before us is not's-ucli a ¿asé. ' Here the i'injuiry 'is simply 'as 'td the'value of the premisesj with unobstructed easements of light, ail" and access, and the value of; 'the' saíne" with' the road-"Constructed and in operation/ 'encroaching upon these easements, ill so far as such values are affected’ by such construction and. operation- of "the road. ", .' ' '' ' - . ’ '

Without attempting tb analyze the various authorities bearing upon this question, it is stifficierit to!say' that we do not think 'the commissioners have éfred iú tlie application of the rule of damages in this case, and we do not find any' eir'or of'importance under therulés recognized and applied in ‘proceedings' of this character. '

The order appealed fiom" should be affirmed, with costs.

Hirschberg, P. J., Jenks, Hooker and, Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  