
    William Struthers, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed October 2, 1893.)
    
    1. Railroad—Elevated—Findings.
    Where it does not appear that the referee assumed the easements appropriated by defendants to be of any value whatever independently of the land, and it does appear that the award made exclusively represents the diminution in the market value of the land itself after it was deprived of its appurtenant easements, any error in refusing to find that the easements considered apart from the land have only a nominal value should be disregarded.
    3. Same—Benefits.
    Where elevated railroad companies contend that, notwithstanding the injury caused by the road, its presence has increased the fee and rental value of the premises abutting on it above what such values would have been without the railroad, and that after due allowance for the injury there remains an excess of benefits although the values remain diminished, the burden is upon them to establish the pecuniary extent to which such benefits have advantageously influenced the val
    3. Same.
    The question whether plaintiffs premises were prevented from rising in fee and rental values equally with other property in the same locality, and not abutting on the railroad, by the latter's presence and operation, is one of fact, and if the evidence is reasonably open to conflicting inferences the finding of the trial court should not be disturbed.
    Appeal by defendants from a judgment for plaintiff which was entered on the report Of a referee.
    Action to restrain the maintenance and operation of defendants’ elevated railroad in the street in front of plaintiff’s premises and to recover past damages sustained from the unlawful appropriation of easements appurtenant to said premises by means of the construction and operation of the railroad.
    
      J. Aspinwall Hodge, Jr., for resp’t; R. L. Maynard, for app’lts.
   Bischoff, J.

The easements appurtenant to land abutting upon defendants’ elevated railroad being without more than nominal value, abstractly considered, compensation for injury to the fee caused by the presence and operation of the railroad must be measured by the effect which the taking 'of the easements has produced upon the land itself; or in other words, the proper measure of compensation is the difference in the market value of the land with, and without the easements. Newman v. Met. El. R. Co., 118 N. Y., 618; 30 St. Rep., 36; Bohm et al. v. Met. E. Co. et al., 129 N. Y., 576 ; 42 St. Rep., 247. A refusal, therefore, to find that the easements appropriated by defendants, considered separate and apart from the land, have a nominal value only, presents error which requires reversal in the absence of every intimation in the decision or report from which the appellate court may conclude that the award was for consequential damages only and that it was not in whole or in part predicated of a supposed substantial value of the easements. Bookman v. N. Y. Elev. R. R. Co., 137 N. Y., 302; 50 St. Rep., 703; Sutro v. Manhattan R’way Co., 137 N. Y., 592; 50 St. Rep., 701. If, however, it affirmatively appears that, notwithstanding the refusal to find as requested, the proper measure of damages was applied and that in determining the amount of damages the court or referee excluded from consideration any value of the easements apart from the land, the error of the refusal is rendered harmless and of no avail. Bischoff v. N. Y. El. R. R. Co., 52 St. Rep., 374; Sixth Ave. R. R. Co. v. Met. El. R. Co., 53 id., 181; Steubing v. N. Y. El. R. R. Co., id., 187. ¡Now, turning to the report in the case at bar, it does not appear that the referee has assumed the easements appropriated by defendants to be of any value whatever independently of the land; and referring to the first and second conclusions of law, it does appear that the award made exclusively represents the diminution in the market value of the land itself after it was deprived in part of its appurtenant easements by the advent'and operation of the railroad. Upon the authority, therefore, of the Bischoff, Sixth.Ave. R. R. Co. and Steubing cases, above referred to, any error in refusing to find that the easements considered apart from the land have only a nominal value should be disregarded.

Appellants further assail the judgmem on the ground that the referee erroneously excluded the elements of special and general benefits from his consideration of the amount of damages to be awarded for injury to the fee value of plaintiff’s premises. Newman and Bohm cases, supra. So far as any benefits which are special and peculiar to the premises, and arise from the presence of defendants’ railroad, are concerned, the referee, upon a conflict of evidence and upon conflicting inferences to be legitimately drawn from the evidence, not only refused to find that such existed, but explicitly found that there were none, and except in the case of a palpable miscarriage of justice, which the evidence in the present case does not authorize us to assume, the referee’s determination of the facts should be accepted as conclusive. Betjeman v. N. Y. El. R. R. Co., 20 N. Y. Suppl., 628; 48 St. Rep., 721; Cohn v. Met. El. R. Co., 136 N. Y., 646 ; 49 St. Rep., 339; Adler v. Met. El. R. Co., 52 id., 160.

With reference to general benefits concomitant with the injury-caused by the advent and operation of defendants’ railroad, it is. to be observed that the evidence sufficiently demonstrates that plaintiff’s premises have suffered a diminution in both fee and rental value from the presence of the railroad, and justified the awards made both for past and fee damages. General benefits, if there be any, would naturally manifest their presence and prove their pecuniary worth either by preventing a decline of fee and: rental values or by enhancing them. In either case, therefore,, a consideration of the evidence adduced to show the course of values of the premises abutting on the railroad and others in the-same locality necessarily included concomitant general benefits. If, however, defendants are to be permitted successfully to contend that notwithstanding any injury caused by the railroad its presence "has increased the fee and rental value of premises abutting upon it above what such values would have been without the railroad, and that after due allowance for the injury there yet remains an excess of benefits although the values remain diminished, then they must assume the burden of proving the pecuniary extent to which such benefits have advantageously influenced the values. Without such proof any finding that the benefits exceed the injury would be wholly arbitrary, and if attempted observance of this rule implies an invasion of the realms of speculation, increases the perplexity of arriving at a precise solution of the question of damages which is presented in this class of actions, and renders competent evidence difficult of attainment, defendants yet have a means of escape if they will avail themselves of the exercise of their right of eminent domain in the manner for such cases intended and provided and permitting of a result to be reached untrammeled by technical rules of evidence.

It was conceded by defendants that their railroad was first operated on July 1, 1880. The testimony of Curtiss, plaintiff’s expert, appears to be intrinsically of greater worth than that of defendants’ expert, and therefrom it appears that, in 1873, before the panic, the ratio of rental to fee value was ten per cent and that the fee value of plaintiff’s premises was then $13,500. From this the deduction is that the rental value at the same time was-$1,350. It further appears from the same testimony that property generally, except such as abutted upon defendants’ railroad, had more than recovered from the effects of the panic and that both their fee and rental values had gone above the values of 1873, but that the ratio of rental to fee value had declined to nine per cent. Had, therefore, plaintiff’s premises shared in the general rise their fee value at the time of the trial would have been not less than $15,000, accepting their rental value at the same time at what it was in 1873. Curtiss, however, fixes their fee value at the time of the trial at $10,000, defendants’ expert at $11,000, and their rental value at the same time, Curtiss at $900, defendants’ expert at $1,000. The referee awarded $2,400 for fee damages and at the rate of $240 per annum for rental damages, both awards being less than the evidence warranted. We by no means over-estimate the worth of expert testimony of the class adduced on the trial of this action. It is coucededly competent and has been repeatedly so declared by our highest appellate court. We should therefore consider it, and if our conclusion that the referee was authorized to find the damages at the amounts fixed by him proceeds mainly from the opinions of the experts examined, it is because neither party has afforded us a sufficiently accurate basis for computation by comparison with actual rentals and fee values on adjacent streets.

Lastly, we think that the referee justly inferred from the evidence that plaintiff’s premises were prevented from rising in fee and rental values equally with other property in the same locality, and not abutting upon the railroad, by the latter’s presence and operation. Bohm et al. v. M. E. R. Co.; Somers v. Same, 129 N. Y., 576; 42 St. Rep., 247. _ _

_ _ This question is one of fact, and if the evidence is reasonably open to conflicting inferences, the finding of the trial court should not be disturbed. Becker v. M. E. R. Co., 131 N. Y., 509; 43 St. Rep., 726; Storck v. Same, 131 N. Y., 514; 43 St. Rep., 730. Diminution of light, obstruction of the means of access, corruption of the air, accompanied by constant intrusion of smoke, steam and cinders, inflict self-evident injury, and render, the premises affected less desirable; hence less valuable. The locality of plaintiff’s premises was, prior to the advent of the railroad, in a central and populous part of the city. Instead of augmenting the populousness of the locality and increasing the demand for tenements and dwellings, it is in evidence that the railroad induced residents to leave for remoter parts of the city, thus occasioning frequent vacancies, and inflicting loss of rental upon owners whose premises formerly abounded with desirable tenants, compelling them, as a means of avoiding greater sacrifice, to accept the substitution of a less desirable class. That the railroad was a detriment, therefore, to property elsewhere in the same locality, as well as to abutting property, is apparent, and if, notwithstanding, the property has recovered from the temporary depression caused by the panic of 1873, it seems but a reasonable inference from the facts that the recovery was due wholly to adventitious causes upon which the presence of the railroad exerted no control. Becker v. Met. El. R. Co. ; Storck v. Same, supra.

The judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.  