
    John Reining et al., Resp’ts, v. The New York, Lackawanna & Western Railway Co., App'lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed November 19, 1889.)
    
    Railroads—Injury to property by its operation—Damages.
    In a common law action for injury to property caused by the operation of a railroad, the permanent depreciation of the plaintiff’s property cannot be recovered, but the recovery is limited to such temporary damages as accrued to the commencement of the action.
    Appeal from judgment in favor of plaintiffs.
    
      Day & Parker, for resp’ts; Pagers, Locke & Milburn, for app’lt.
   Titus, J.

This case comes before us presenting but a single question. On the trial the court held that if the jury should determine that the structure erected by the defendant in and along Water street in front of the plaintiffs’ lands abutting on that street was permanent in character, the measure of damages would be the depreciation in value of the plaintiffs’ property by reason of such structure.

This was in accord with the decision of the general term of this court, when the case was before us the first time. 1 N. Y. State Rep., 733.

We then endeavored to show that the facts of the case did not bring it within the rule laid down by the court of appeals in Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98. That inasmuch as the defendant in that case had only raised the grade of the street, and had not appropriated it to purposes inconsistent with its use by the public as a thoroughfare, the rule did not apply. But in a case like the one now under consideration when the street is occupied by an embankment permanent in its character, and devoted wholly to railroad purposes to the exclusion of the public, it was thought that all the damages which the plaintiff had sustained had accrued, and were capable of being ascertained and determined, and could be recovered in a single action. Since that decision was made, the precise question has been passed upon by the court of appeals, so as to leave no doubt of the intention of our highest court to apply the rule in the TJline case to all cases of this character whether the obstruction is permanent or temporary. Pond v. The M. El. R. Co., 112 N. Y., 186 ; 20 N. Y. State Rep., 479 ; Hussner v. The Brooklyn City R. Co., 114 N. Y, 433 ; 23 N. Y. State Rep., 856.

We are therefore constrained to hold that permanent depreciation in the value of the plaintiff’s property cannot be recovered in a common law action, but he must be limited to a recovery of such temporary damages as have accrued up to the time of the commencement of the action.

The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

Hatch, J., concurs; Beckwith, CL J., not sitting.  