
    AMERICAN BANK NOTE COMPANY, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.
    
      Elevated railroads, as to obtaining rights by prescription—Abutting owner's right of arising out of operations as well as construction of road—Purchasers of abutting property subsequent to construction and operation of road, as to rights of—Corporation, an abutting occupant owner, elements of recovery for damages.
    
    Where an elevated railroad company constructs, maintains and operates its road through a public street under lawful warrant from the public authorities, it can gain no right by prescription to maintain and operate the road as against an abutting owner.
    The right of an abutting owner to equitable relief against an elevated railroad arises not solely from an unlawful appropriation of the street to the construction and maintenance of its structure, but as well from any operation thereof which involves an abridgment of the abutting owner’s easement in the street.
    The fact that a party after the construction of an elevated railroad in a street, and while it is in operation, purchases abutting property and voluntarily erects a structure thereon which he deems most to his advantage, he acting reasonably and not wantonly or rashly, does not prevent him from at any and at all times until the railway company acquires as against him the right to maintain and operate the road, obtaining equitable relief against such maintenance and operation, nor from recovering the diminished rental value of his property caused by such maintenance and operation.
    Where the abutting owner is a corporation, and itself occupies the premises, it cannot recover as for loss of rental value but may recover for additional expense incurred caused by the construction, maintenance and operation of the road; such as in the ease at bar the cost of an electric light plant and running the same, the cost of reflectors, the injury and •expense in the use of the property and interest on certain items.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided March 3, 1891.
    Appeal by defendants from judgment in favor of the plaintiff, entered upon the decision of a judge at special term.
    The facts .sufficiently appear in the opinion.
    
      
      Davies & Rapallo, attorneys, and Edward C. James of counsel, for appellants,
    on the question of defendants’ rights by prescription, referred to and commented on Fobes v. The Rome, Watertown & Ogdensburg Railroad, 121 N. Y. 505 ; Wager v. Railroad Co., 25 Ib. 526; Carpenter v. Railroad Co., 24 Ib. 255 ; Tallman v. El. Ry. Co., 121 Ib. 119 ; Ward v. Warren, 82 Ib. 265 ; Hammond v. Zehner, 21 Ib. 117 ; Nichols v. Wentworth, 100 Ib. 455; Campbell v. Seaman, 93 Ib. 568 ; Wheeler v. Clark, 58 Ib. 270; Burbank v. Fay, 65 Ib. 69 ; Mills v. Hall, 9 Wend. 315; Matter of Niagara Reservation, 37 Hun, 537 ; Abendroth v. N. Y. El. Ry. Co., 33 N. Y. State Rep. 475; Palmis v. Heblethwaite, 2 Shower, 249.
    Upon the question of past damages they argued : That the maxim volenti non fit injuria applied, and that the rule, which, requires a party exposed to injury to do nothing to increase his damages, would be conclusive against the respondent; and on' these points involving the question of nuisance, referred to and commented on 3 Kent’s Com. M. P. 448 ; 2 Blackstone’s Com. 402-403; Brady v. Weeks, 3 Barb. 167; Campbell v. Seaman, 63 N. Y. 568; Abendroth v. N. Y. EL Ry. Co., 33 N. Y. State Reporter, 475-481; Taylor v. Met. El. Ry. Co., 50 Super. Ct. 311323-4; Fobes v. Railroad Co., 121 N. Y. 505; Cogswell v. Railroad Co., 103 Ib. 10 ; Heussuer v. Railroad Co., 114 Ib. 433; Pand v. El. Ry., 112 Ib. 186; Drucker v. El. Ry. Co., 106 Ib. 157-162-3 ; Baptist Church v. Railroad Co., 5 Barb. 79; Bank v. El Ry. Co., 53 Super. Ct. 412; Bank v. El. Ry. Co., 28 Fed. Rep. 231; Railroad Co. v. Baptist Church, 108 U. S. 317.
    Upon the question of errors in admitting evidence of damages they urged: 1st. It was error to admit evidence of the value of the machinery, standing in the Greenwich street side of plaintiff’s building. 2d. It was error to allow evidence as to the effect of the defendants’ railroad upon the machinery, steel plates, etc. 3d. It was error to allow the estimates or evidence of witnesses as to the time lost by plaintiff’s workmen in cleaning machinery, wax plates, etc., or in stopping work when trains passed by, etc., or the cost of such time to the plaintiff in wages. 4th. It was error to allow proof of the cost of reflectors. 5th. It was error to allow proof of the cost of an electric light plant, or of the cost of running it. 6th. It was error to allow the opinion of witnesses as to the percentage of electric light chargeable to the Greenwich street side of the building, and to make a finding on that opinion. An examination of these exceptions will show that the plaintiff was allowed to call its officers, or employees, to prove the effect of the operation of the railroad upon its machinery, processes and work people, and to take the estimate of the witness as to how much time was lost in cleaning the machinery or processes, or in stopping work when the trains passed, and then to charge for this time according to the wages paid to the employees whose time was thus lost. Notwithstanding defendants’ objections to this testimony as incompetent, irrelevant, immaterial, and calling for conclusions or opinions, it was all admitted, and forms the basis, of this finding of “ injury ” and “ expenses.” As to the electric light plant and reflectors we are charged with their entire cost. The plaintiff has them and the defendants pay for them. The errors in regard to this testimony and the findings based upon it are too palpable to require extended discussion.
    Upon further errors in rulings upon evidence, they urged ; 1st. It was error to allow the architect, Mr. Berg, to testify how many more square feet he included in the light wall of the plaintiff’s new building, because of the elevated railroad, and referred to, and commented on Tallman v. Met. El. Ry. Co., 121 N. 
      Y. 119. 2d. It was error to allow Mr. Myers to give opinion evidence as to the value of the 1,100 additional square feet per floor, or about 6,000 square feet in all, which Mr. Berg had certified was put into this light shaft on account of the railroad, and referred to and commented on Tallman case, supra, and the Sixth Avenue Railroad Co. case, 56 Hun, 182. 3d. It was error to allow Mr. Myers, a real estate expert, to testify to the value, before and since the railroad, of other property on Greenwich and Washington streets, near Cortlandt, Reade and Duane streets, not shown to have any relation to the property in question ; and as to the comparative ease of selling property on Greenwich and Washington streets, and referred to and commented on Sixth Ave. R. R. Co. v. Met. El. Ry. Co., supra.
    
    Upon the question of error in vexing compensation they urged: It has been a fixed question in these elevated railroad cases whether noise could be considered at all in fixing either past damages, or compensation for easements, and referred to and commented on Peyser v. Met. El. Ry. Co., 13 Daly, 122-6-7; Drucker v. Met. El. Ry. Co., 106 N. Y. 157-165. But this is the first time the court has fixed a specific price for the privilege of making a noise and .required the defendants to pay it to avoid an injunction.
    There is another matter of much moment to be. considered with regard to the $49,000. The court, finds “ that the interest and easement of the plaintiff, in the street in front of the plaintiff’s premises and the damages to the fee value, as far as the maintenance of the present structure, and the operation of the railroad as at present operated is concerned, as for. all future damages to said part of plaintiff’s easement, is of the value of $50,000, of which $49,000, are for the impairment of light, air and access, and $1,000, for damages from noise.” And on this point referred to and commented on Forbes v. Railroad Co., 121 N. Y. 503; Henderson v. Railroad Co., 78 Ib. 423-438. For the purposes of this question the defendants are not to be treated as a trespasser but as a purchaser, entitled to buy for the public use of its railroad what the plaintiff has to sell that is necessary for-such use. No element of wrong enters into this transaction. It is a judicial enquiry simply into the question of the just compensation to be paid for private property taken for public use. It differs wholly from the principles which govern the fixing of damages for past trespasses. For the past the defendant is to be treated as a wrong doer, for the future as a right doer.
    
    
      Peckham & Tyler, attorneys, and W. G. Peckham of counsel, for respondent,
    on the question of defendants’ right by prescription, referred to and commented on Kenkele v. Man. Ry., Gen. Term Supreme Ct.; Sofa el, et al. v. N. Y. El. R. R., Supreme Ct. 1889; affirmed 1890; Tallman v. El. Ry. Co., 121 N. Y. 119; Glover v. El. Ry. Co., 51 Super. Ct. 12, 13; 1 Revised Statutes, § 147, p. 739 ; Broiestedt case, 55 N. Y. 222; Application of Mayor New York, 17 Barb. 617; Brady v. Weeks, 3 Ib. 157-9; Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Murdock v. Prospect, 73 Ib. 580; Campbell v. Seaman, 63 Ib. 570 ; Mattlage v. El. Ry. Co., Supreme Ct. G. T. Nov. 1890; Arnold v. Hudson R. R. R., 55 N. Y. 661; Menendez v. Holt, 128 U. S. 523 ; Ode v. El. Ry. Co., General Term, Supreme Ct. 1890; Coming v. Troy Iron & Nail Factory, 40 N. Y. 203-7; Eggleston v. The N. Y. & H. R. R. Co., 35 Barb. 162; Christianson v. Linford, 3 Robt. 230 ; Werfelman v. Man. Ry., 32 N. Y. 682 ; Brant v. Virginia C. & I. Co., 93 U. S. 929, book 23, Lawyers' Co. Op. Pub. Co. Ed.
    
    Upon the question of measure of damages they referred to and commented on 2 Wait's Actions and Defences, 321; Kearney v. Met. El. R. Co., 14 N. Y. State 
      
      Rep. 854 ; First Baptist Ch. v. R. R. Co., 5 Barb. 79; Seventh Ward Natl. Bk. v. El. R. R., 53 Super. Ct. 412 ; Shoe & Leather Bk. v. Thompson, 18 Abb. 413; Fifth Nat. Bk. v. N. Y. El. R. R. Co., 28 Fed. Rep. 231; Baltimore & P. R. Co. v. Fifth Bapt. Church, 108 U. S. 317 ; S. C. 2 Sup. Ct. Rep. 719 ; Lahr case, 104 N. Y.; Kenkele v. El. R. R. Co., General Term Sup. Ct. 1890; Third Ave. R. R. Co. v. El. R. R., 19 Abb. N. C. 251; Driver v. West. Un. R. R., 32 Wis. 569-580; Schile v. Brokhahus, 80 N. Y. 619 ; Francis v. Schoellkopf, 53 Ib. 154; Jutte v. Hughes, 67 Ib. 271; Colrick v. Swinburne, 105 Ib. 507 ; Hexter v. Knox, 63 Ib. 565 ; Irving Nat. Bk. v. The El. R. R., Supr. Ct.; Union El. R. R., N. Y. Supr. Ct., Jan. 1890, p. 854; Werfelman amended decision, 32 N. Y. State Rep. 683; 29 Ib. 190; 104 N. Y. 295.
   By the Court.—Freedman, J.

This is an appeal from a judgment of the special term for injunctive relief, damages and costs. The action was brought for equitable relief against the maintenance and operation of an elevated railroad in front of plaintiff’s premises consisting of Nos. 115 to 123 Greenwich street.

The defendants insist that, prior to the commencement of the action in 1888, they had gained a right by prescription to maintain and operate their elevated railroad in front of plaintiff’s premises.

The West Side and Yonkers Patent Railway Company, to whose rights the defendants have succeeded, constructed its elevated railroad in Greenwich street and in front of the premises in question prior to July 1, 1868. The said railroad was a single track road, consisting of an iron superstructure and cross-ties supported upon iron columns set on the curbstone line on the east side of Greenwich street, and operated by a cable. The said railroad was put in operation July 2, 1868, and its operation since that time underwent the following changes, viz.: April 20, 1871, steam dummies were substituted for cable power to draw the trains. April 20, 1871, to April 5, 1877, turn-outs were built at different periods. October, 1877 to June, 1878, the west side track was built. June 2, 1878, the west side track was put in operation. Fall of 1879 to May 2, 1880, the east track was reconstructed. Since June 2, 1878, the railroad has been operated by means of trains drawn by steam engines down one track and. up the other, with the exception of the use of temporary turn-outs during the period of reconstructing the east track.

These facts being clearly insufficient to establish a user of the entire system for more than twenty years, the defendants have confined their claim of right by prescription to the east track and the structure upon which it rests. As to those it is claimed that, notwithstanding the changes they have undergone, they have been maintained substantially and sufficiently continuously for more than twenty years before the commencement of the action; that thereby the defendants acquired the right to maintain them by prescription against the plaintiff; that the right to maintain the structure and the track having been acquired, they can operate the road in any manner or by any method authorized by the legislature; and that, therefore, it can make no difference that the road was operated by a cable until 1871, and that then steam engines were substituted.

A thorough analysis of the details of this claim, if it were necessary that it should be made, would give rise to quite a number of interesting questions upon which much has been said and written. But I do not deem it necessary. The answer to the entire claim is, that the defendants could not acquire a right by prescription as claimed.

Originally the theory of prescription was that the right claimed must have been enjoyed beyond the period ox the memory of man, which, for a long time in England, went back to the time of Richard I. But, to obviate the necessity of such an impossible proof, it became customary to rely upon the presumption of a deed having been given and of its having been lost, after showing an enjoyment for a sufficient length of time. The matter is regulated in England now by statute. In the United States grants' of incorporeal hereditaments are presumed, upon proof of an adverse enjoyment which has been exclusive and uninterrupted for twenty years, or the period of time fixed by the respective statutes of the several states as the limitation in respect to lands themselves. In the state of New York the limitation is twenty years. But to authorize the presumption of a grant, the enjoyment must not only have been uninterrupted for the period of twenty years, but it must have been adverse, not by leave or favor, but under a claim and assertion of right, and with the knowledge and acquiescence of the owner. Parker v. Foote, 19 Wend. 309.

The defendants had lawful warrant from the public authorities to construct, and they have lawful warrant from the public authorities to maintain and operate their elevated railroad in and through Greem wich street, but only on condition that compensation be made to abutting owners. This proposition has been affirmed so many times that its verification by the citation of authorities would be a work of supererogation. The enjoyment by the defendants of so much of the street in question as they did take in front of plaintiff’s premises, was therefore not adverse to the plaintiff and its predecessors in title, but under a license ' from the public authorities on condition that compensation be made, and the entry under this license must therefore be presumed to have been in subordination to the rights of the abutting owners. Upon this branch of the case the decisión in Broiesfcedt v. The South Side R. R. Co., of Long Island, 55 N. Y. 220, is directly in point. The defendants, therefore, can no more sustain their claim of adverse enjoyment, than a purchaser under a municipal tax lease can sustain a claim of adverse possession. As to the latter it is well settled that possession and claim under a municipal tax lease for over twenty years is not adverse to the claim of the owner in fee. Bedell v. Shaw, 59 N. Y. 46. The claim of the defendants to a right by prescription is, therefore, untenable, and that being so, no acquiescence by the plaintiff and its predecessors in title not constituting an equitable estoppel as defined by the general term of -the Supreme Court in the recent case of Knox v. The Metropolitan Elevated Railway Co., will bar the action. The evidence in this case wholly fails to establish such an estoppel.

Equally untenable is the claim of the defendants that the right of a plaintiff as an abutting owner to equitable relief against an elevated railroad, arises not from its operation, but solely from its unlawful appropriation of the street tp the construction and maintenance of its structure. It is difficult to perceive how a legal right can exist to use an illegal structure to its utmost capacity. Even a steam surface railroad, lawfully in existence and operation, may, in fact, be operated to an extent going so much beyond the ordinary and legitimate uses of the street, as to involve an abridgment of the abutting. owner’s easement in the street, and to entitle him to a corresponding compensation. Green v. N. Y. C. & H. R. R. R. Co., 65 How. 154. It is only when a steam surface railroad, having lawful public authority for the purpose, makes a reasonable use of a street for railroad purposes, without substantially changing its grade, so that the use is not exclusive in its nature, but leaves the passage across and through the street substantially free and unobstructed for the public use, that an abutting owner has no cause of action, and that is all that was decided in Fobes v. The Rome, Watertown & Ogdensburg R. R. Co., 121 N. Y. 505. As to the effects produced by the operation of an elevated railroad upon abutting property, the following is the latest position taken by the Court of Appeals. The precise question under consideration was the question of noise, but the remarks of Andrews, J., who delivered the opinion of the Court on that occasion, and in which all concurred, except Earl, J., apply with equal force to every element of damage caused by an inconsistent and illegal street use. Judge Andrews says, in Kane v. The Metropolitan Elevated R. R. Co., 34 N. Y. State Rep. 876 (*885). " The court allowed the jury to consider the noise created by the trains of the defendant as an element of damage. If the defendant had the lawful right to operate its trains in the street, such inconvenience as might result to the plaintiff in the enjoyment of his property from the ordinary and usual operation of the defendant’s road would not, in the absence of negligence on its part, furnish a ground of action. But we held' in the Lahr case, that' as to abutting owners having easements in the street through which the road was constructed, whose rights had not been acquired by condemnation, the defendant was a trespasser. Upon general principles, therefore, it wrould seem that any consequential injury to the plaintiff’s property from the acts of the defendant while engaged in the unauthorized occupation and use of the street, was proper to be considered by the jury.” In the Lahr case, Chief Judge Ruder, referring to this point, said: “ No partial justification of the damage inflicted by an unlawful structure and its unlawful use can be predicated upon the circumstance that under other conditions, and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable for damages.” See also opinion of Finch, J., Drucker’s case, 106 N. Y. 158 ; 8 N. Y. State Rep. 599.

The next point raised by the defendants is that the plaintiff should not have any equitable relief because it voluntarily erected the building upon the premises in suit in the manner it did after the construction and the commencement of the operation of the elevated railroad. The plaintiff has been for many years engaged in the business of bank note engraving and other engraving and printing in the city of New York. Up to the year 1884 the plaintiff conducted its business at No. 120 Broadway. In the year 1883 the plaintiff purchased ten lots lying between the two lines of the defendants’ railway in Trinity Place and Greenwich street, paying for them $360,000. At this time the lots were covered with warehouse buildings three and four stories high, which had been used as a packing house, and afterwards as United States appraisers’ stores. The defendants’ elevated railroad had been in full operation on both sides of this property for some years prior to 1883, and the said operation has been continued since that time. The plaintiff’s president and its four vice-presidents had charge of the matter of selecting a site and erecting a building for the company’s business. They were all familiar with its business and they were likewise familiar with the character and operation of the elevated railroad. They selected this place between the two railroads, erected a building thereon at a cost of about $500,000, and brought into it all the machinery, apparatus and processes used in their business. But in doing so they, and the architect employed by them, took precautionary measures to avoid, as far as possible, any annoyance from the existence and operation of the railroad. This the evidence fully establishes. The case, therefore, falls within the principle laid down in Tallman v. The Metropolitan Elevated Railway Co., 121 N. Y. 119, where it was held that, while a plaintiff cannot be permitted to prove, or allowed to recover, damages which he might have sustained if he had put his lots to other uses than they were put to, or placed upon them other structures than were placed upon them because such damages would be purely speculative and contingent, he is in no way prevented from putting his lots to any use to which he may wish to put them ; that he has the right, acting reasonably and not wantonly or rashly, to put upon them any structures which he may deem most to his advantage; and that, at any and all times, until the railway company acquires as against him the right to maintain and operate its road, he has the right to recover the diminished rental value of his lots, just as they were occasioned by the maintenance and operation of the road.

So in Campbell v. Seaman, 63 N. Y. 568, it was held that it did not affect plaintiffs’ right to an injunction that the brick-yard complained of was used before plaintiffs purchased their land, and that the plaintiffs, in the immediate vicinity thereof, had built a costly mansion and had laid out their grounds and planted them with ornamental and useful trees and vines for their comfort and enjoyment. The court said: “The fact that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak.”

It is true that it was formerly the law that one who came voluntarily into a known and existing nuisance, could not abate it or recover damages on account of it. But this has been modified to. the extent that one who creates a nuisance, cannot continue it even as against a new-comer, unless he has gained by prescription the right to do so. This is because a continuation of the nuisance, or a repetition of it, is a new nuisance for which the new-comer has his remedy. Campbell v. Seaman, 63 N. Y. 568. This principle is applicable to the elevated railroads in the city of New York, for, although the consent of the public authorities obtained by them conditionally as hereinbefore stated, prevents their being dealt with as a public nuisance, they are nevertheless a private nuisance to abutting property injured by them as long as compensation is withheld, and no promiscuous citation of authorities will ever make it otherwise. The acts of the defendants, in so far as they constitute an inconsistent and excessive street use, when considered in reference to abutting property, involved, in a certain aspect, a trespass from day to day upon such property; in another aspect they involved a taking of private property within the meaning of the constitutional provision requiring compensation to be made; and, in still another aspect, and especially when their combined effects are considered, they constitute a private or special nuisance to the abutting property injured. For the reasons stated the defendants can derive no benefit from the fact that the plaintiff erected the building upon the premises in suit after the construction and the commencement of the operation of the road. In Kenkele v. The Manhattan Railway Co., 55 Hun, 398, it was squarely held that the compensation to be made is to be determined as of the time of the trial and that this is but a just result of the persistent neglect of the defendants to' take the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of their structure and the operation of their road.

Another point upon which the defendants laid great stress is, that the trial judge allowed, as. elements of damage, the cost of an electric light plant and running the same, the" cost of reflectors on the Greenwich street front of the building, and for injury and expense in the use of plaintiff’s property, and interest on certain specific items. This raises a question as to the right rule of past damages in the case of a corporation in possession. In the case of an individual owner who himself was the occupant of the premises, the true measure of damages is the loss of the rental value, provided it appears that the premises were rendered disagreeable and uncomfortable, but the recovery must be confined to the six years preceding the commencement of the action, together with the added damage to the time of the trial. This rule is inapplicable to a corporation in possession, because a corporation cannot be subjected to personal inconvenience and discomfort. Such a corporation, therefore, cannot recover as for loss of rental value, but only for additional expense incurred. Such a recovery is in lieu,of and falls short of the amount recoverable by an individual owner, and is sanctioned by the decisions of Seventh Ward National Bank v. N. Y. Elevated R. R. Co., 53 N. Y. Super. Ct. 412; Fifth National Bank v. N. Y. Elevated R R Co., 28 Fed. Rep. 231; Irving National Bank v. Manhattan Railway Co.; N. Y. National Exchange Bank v. Metropolitan Elevated R. R. Co., 53 N. Y. Super. CCt. 511 and others. The items objected to in this case can be justified under the rule as laid down and as sanctioned by the cases cited.

All the remaining questions raised by the appellants have been determined either expressly or in principle by former decisions in similar cases and it is therefore not necessary to particularize concerning them or any of them.

There being no merit in any of the exceptions disclosed by the record, the judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., concurred.

Ingraham, J., concurred in the result.  