
    William Sperb, Jr., App’lt, v. The Metropolitan Elevated Railway Co. et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 31, 1893.)
    
    1. Railroad—Elevated—Measure of damages—Running of trains.
    The passage of numerous trains at short intervals over an elevated railroad structure constitutes an inconsistent and excessive street use, and to that extent defendants have taken and will hereafter keep a part of plaintiffs easements of light and air, and this should he taken into account in fixing the amount of damages to be paid by defendant in order to obviate an injunction.
    2. Same.
    In computing the alternative damages, their extent and the elements should be the same as would be considered in the computation of the com-' pensation to be given in proceedings for the condemnation of lands for a railroad use, due regard being had to the different characteristics of the property to be taken; and so the compensation should he based upon the lessened value of the lot owner’s interest in the premises through the continued maintenance and operation of the elevated railway. To the extent that his street easements are appropriated and damaged and impaired, his adjoining property may be shown to be damaged.
    Appeal from an order of the New York superior court, general term, reversing a judgment entered upon the report of a referee in favor of the plaintiff, which awarded him damages sustained up to the commencement of the action, and enjoined the defendants from maintaining, or in any way using, the railway structure in front of the premises owned by plaintiff, and which abutted on the northerly side of West Fifty-third street, in the city of New York, unless within a certain time the defendants should pay to the plaintiff a sum of $6,000, and take a conveyance of the easements, in which case the injunction should be inoperative.
    
      Edwin M. Felt] for app’lt;
    
      Samuel Blythe Rogers, for resp’ts.
    
      
       Reversing 44 St. Rep., 216.
    
   Gray, J.

The only point which is presented to us upon this appeal is as to the correctness of the refusal by the referee 'to make the following findings when requested by the defendants :

Fifteenth: The sum fixed which the defendants may pay in order to obviate the injunction herein should not be greater than a sum necessary to compensate the plaintiff for the perpetual maintenance of the defendants' elevated railway structure and exclusive of the damages caused by the running of trains i h peYproY)

“Refused.—W. H. W., Ref

Sixteenth: The value of so much of the plaintiff’s easements as are taken by the perpetual maintenance of the defendant’s elevated railroad structure, and exclusive of all injuries in the future caused by the running of trains thereon, is the sum of-dollars.

“Refused.—W. H. W., Ref."

The referee’s rulings were excepted to and "these exceptions, alone, are relied upon by the respondents to sustain the reversal by the general term. The general term justices, in their opinion, took the quite unwarrantable view that the defendants, in acquiring the right to maintain their structure in the street, are not bound to make compensation for the incidental injuries produced by the running of trains upon the same, and that the future discharge of smoke, cinders and noxious gases are not items of damage which should be considered in the estimate of the compensation to be made.

The defendant’s counsel concisely states the proposition of the general term justices to be, that the plaintiff had no easement which can be taken by "the running of trains, and he earnestly and ingeniously seeks to sustain its correctness. The argument is that though such items may properly enter into the estimate of damages suffered in the past, the trespass itself consists only in the maintenance of a permanent structure in the street, and the lawful operation of the company’s franchises, in the running of trains upon the structure, whatever may be the incidents attendant, if necessarily so, cannot afford grounds for an award of compensation when the company seeks to acquire, or to condemn, the rights of the abutting property owner. The argument is rested, almost wholly, upon our decision in Fobes v. Rome, etc., R. R. Co., 121 N. Y., 505; 31 St. Rep., 828. That decision is very much misapprehended, when it is sought to make use of it as an authority for such a doctrine. In that case the question presented grew out of the operation of a steam surface railroad upon the bed of the street, and related to the right of an abutting owner, whose property was bounded by the exterior line of the street, to hold the railroad company liable for consequential injuries. We held, reversing a judgment recovered by the plaintiff, that no such liability existed, and that there was no legal distinction between the case of a surface railroad operated by horses and one operated by steam power. When the use of either becomes unreasonable, excessive or exclusive, then it might be proper to demand the interference of a court of equity ; but there is nothing in the mere change in the motive power, though constituting a different street use, which created any right in the adjoining landowner to recover damages. In reference to the Story case, 90 N. Y., 122, which had been cited, we held that it was not intended to overrule or change the law in regard to steam surface railroads, and the discussion of that case was conducted with respect to the effect claimed for it upon that law. Judge Peckham, who delivered the opinion in the Foies case, in speaking of the character of the street obstruction caused by the elevated railroad, was considering the structure itself and how it amounted to a permanent, exclusive and absolute appropriation of a portion of the street. He was not considering the question of incidental injuries caused by the interference with easements from the operation of the road by the running of trains; and his opinion, when read in connection with the subject under discussion, is not susceptible of the construction placed upon it by the court below.

In the Story case, the finding of the trial court was that the defendant proposed to construct an elevated railroad in the street and in front of the plaintiff’s premises, and the question for decision was whether the proposed structure was an appropriation of the street which invaded the complainant’s easements; and it was held that it was, and thereby took plaintiff’s property. In Judge Peckham’s consideration of the Story case, he had in mind the basis of fact for its decision, and that was the nature, and the lawfulness as to the adjoining owner, of the structure which the railroad company designed to maintain in the street. In the Fobes case we decided that there was no taking of the plaintiff’s property by the railroad company, in operating its road' under legislative authority in a public street, in the soil of which he possessed no interest; while in the Story case the question was altogether different, in the property owner’s right to restrain the maintenance of a structure in the street which, in its peculiar features of a permanent obstruction to access, and of a permanent exclusion of air and light, amounted to a deprivation or to an actual taking of the adjoining landowners’ property, in the lessened value of these appurtenant easements.

In holding, as be did, that the passage of the numerous trains, at short intervals, over the railway structure constituted an inconsistent and excessive street use, and that, to that extent, the defendants have taken, and will hereafter keep, a part of the plaintiff’s easements of light and air, the referee was clearly right, and he was perfectly justified, in fixing the amount of damages to be paid by the defendant in order to obviate the injunction, in refusing to exclude the damages caused by the running of trains.

The doctrine of the elevated railway cases has been of steady and consistent growth since its rise in the decision of the Story case, which converted many of what, under previous circumstances of street railway uses, were mere consequential injuries, into invasions of the property rights of adjoining property owners. The theory of awarding damages in actions against the elevated railway companies lias been that they are trespassers as to abutting lot owners, and are responsible to them for such injuries as may be proved to result from their wrongful acts. In their occupation and use of the street they take from the abutting lot owners a portion of their easements in the street, without making compensation, and hence they are, as to them, illegally there. See Kane v. N. Y. El. R. R. Co., 125 N. Y., 164; 34 St. Rep., 876; Amer. Bank Note Co. v. Same, 129 N. Y., 252; 41 St. Rep., 531.

The illegality is not in their making use of the street for their corporate purposes, for that right has been competently granted to them; but the illegality of their acts consists in their appropriating a portion of the adjoining owner’s property rights of easements without first acquiring them by negotiation, or by condemnation proceedings. In all of the cases the trespass has been regarded as consisting in the presence of the elevated railway structure and in the passage of cars upon it; and in none is there a suggestion that the structure and its use can be separated, in considering the effect upon the complaining property owner. In Drucker v. El. R. R. Co., 106 N. Y., 157; 8 St. Rep., 599, it was held that the structure and the passage of trains lessened the easement of light; the smoke, cinders, gases, etc., affect and impair the easement of air, and the drippings and frequent columns interfere with the convenience of access, and as abridging these easements of the landowner they were elements of damage. In the American Bank Note Co.'s case, 129 N. Y., 252; 41 St. Rep., 531, Judge Finch, who wrote in the Drucker case, referred to what it had decided as to liability for damages, and defined the limitation upon the right to recover to be found when the acts did not, “pro tanto, constitute some element of the taking.” In Kernochan v. N. Y. El. R. R. Co., 128 N. Y., 559; 41 St. Rep., 110, it was said by Judge Andrews that, under circumstances showing an intention to permanently operate the road, in the character and purpose of the structure, the powers, obligations and expenditures of the company, and the right of condemnation given by the statutes, “ the construction and operation of the road, before any consummated right has been acquired by the defendants, whereby the owner of abutting property is deprived of the full enjoyment of his property, constitutes an injury to the inheritance.” There is no authority to be found in our decisions to support the proposition contended for, that the elevated railroad structure is alone to be considered in fixing the amount to be paid by the company in order to acquire the right to continue to operate its franchises in the street. In all of them the operation of the road is deemed an element of damage as impairing and lessening the landowner’s easement, and it is to be considered as incidental to the maintenance and use of the structure.

In a decision by a general term of the same department, differently constituted, however, this same question was rightly decided, and according to the views we entertain. We are informed that this decision, which was in the case of Suarez v. The Manhattan Railway Co., was made shortly before the decision in this case; but was not known to the justices below, and in that way the conflict in opinions is accounted for. In the Suarez case it was held, on the authority of the Lahr case, 104 N. Y., 269; 4 St. Rep., 340, that the defendant was liable for the operation of its trains, and that, in giving the defendant an opportunity to pay for the easements taken, the court does not require the defendant to pay for the right to run trains, but that it required them to pay for the easements taken of light, air and access, at a price measured by their lessened value, resulting from the unlawful maintenance of the structure and operation of the road thereon. The brief opinion which was delivered by Justice Barrett is reported in vol. 15 of N. Y. Supp., at page 222, and 39 St. Rep., 549, and was concurred in by Justices Van Brunt and Patterson.

The principle which should guide an award of damages to be paid by the railroad company in order to obviate the injunction is the same as in proceedings under the statute to condemn property for the railroad use. The injunction of the court and the alternative damages are deemed to be a substitute for those proceedings. In computing the alternative damages, their extent and the elements should be the same as would be considered in the computation of the compensation to be given in proceedings for the condemnation of lands for- a railroad use, due regard being had to the different characteristics of the property to be taken. American Bank Note Co. v. N. Y. El. R. R. Co., 129 N. Y., 253; 41 St. Rep., 531. If the defendants had instituted such a proceeding in invitum the lot owner, there can be no doubt but that they would be obliged to pay for the easements of light, air and access taken and appropriated by them, a compensation based upon the lessened value of the lot owner’s interest in the premises through the continued maintenance and operation of the elevated railway. To the extent that his stréet easements are appropriated and impaired, his adjoining property may be shown to be damaged.

It is needless to further discuss the question. I think the decision below was the result of a total misapprehension of the decision in the Fobes case, and is opposed to the principle of all of our decisions in this class of litigation.

The order of the general term should be reversed and the judgment entered upon the report of the referee should be affirmed, with costs in both courts to the appellant.

All concur.  