
    Morton H. C. Foster, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    March 15, 1907.
    Eminent domain — injury to easements by Park avenue viaduct in city of New York — limitation of action— prior action discontinued insufficient to interrupt acquisition of easement by adverse user — measure of damages for enlargement of viaduct — constitutional law — statute authorizing viaduct not unconstitutional.
    The running of the period of twenty years whereby a railroad may acquire the right to maintain its structures in front of adjoining property by adverse user is not stopped by the bringing of a prior action for an injunction if the action was discontinued.
    The rule that the bringing of an action which is subsequently discontinued does not interrupt the running of the Statute of Limitations applies equally to cases of prescriptive rights obtained by adverse user.
    But although a right to damages caused by reason of structures maintained for twenty years may he lost, yet, when new structures are added to those already in existence, the owner may recover the net difference in money between the effect of new and old structure while in actual use less the benefit conferred by the latter and also the damage inflicted by the temporary work during the period of user.
    A defendant railroad, however, is not liable for the acts of the board of Park avenue improvement in the city of New York while the viaduct on that avenue was in the possession of the board for the purposes of construction.
    The statutes requiring change in the viaduct structure in Park avenue are not unconstitutional, and in an action against the railroad by a private owner for damages caused by such structure, it is error to exclude evidence of said statutes and the contracts between the Park avenue board and the contractors for work done in pursuance thereof.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New-York on the 12th day of October, 1906, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.
    
      Alexander S. Lyman of counsel (Ira A. Place, attorney], for the appellant.
    
      James C. Bushby of counsel (Bushby ds Berkeley, attorneys], for the respondent.
   Clarke, J.:

This. action was commenced April 30, 1900, to recover damages for diminution of rental value alleged to have been caused by a trespass upon the easements appurtenant to plaintiff’s premises situated at the southeast corner of Park avenue and One Hundred and Eighth street, by reason of various railroad structures erected at different times in front of said property. .The premises are known as Ho. 1475 Park avenue. The lot has a frontage of fifty ■feet on the avenue of the uniform width of twenty-five feet six inches. The building is four-story brick with two stores on the ground floor and two apartments of four rooms each on thé upper floors..

The history of Park avenue and the occupation of a portion thereof by railroad structures has been stated so often in recent cases in this court and in the Court of Appeals as not to require repetition here. Pursuant to chapter 702 of the Laws of 1872, the railroad viaduct structure of the Hew York and Harlem Bailroad Company opposite the plaintiff’s premises was increased in-width so as to be about fifty-nine feet wide at the bottom and was modified so that the base of rail was twenty-four feet • two and three-quarters inches above the grade of Park avenue at the south, line, of plaintiff’s premises and twenty-three feet eleven and one-quarter inches at the north line of plaintiff’s premises and four tracks were laid thereon, said structure being surmounted by parapet walls about three feet above the base of rail, upon which structure trains were continuously operated from the date of completion of said structure, in or about the year-1875, down to September, 1894. Pursuant to the provisions of chapter 339 of the Laws of 1892, as amended by chapter 548 of the Laws of 1894, the board for the Park avenue improvement above One Hundred and Sixth street, appointed pursuant to said first-mentioned act, by its contractors erected along the easterly and westerly roadways of - Park avenue, between the respective curb lines and the permanent viaduct structure, wooden trestles, each of which supported two tracks, and pursuant to the direction of said board trains were operated on said temporary trestles from. September, 1894, to February, 1897. During said period the roadbed of the stone embankment in front of plaintiff’s premises was increased in height by said board so that the base of rail was about five feet higher after the improvement than it was prior thereto, although the parapet walls of the former stone structure were not changed nor added to.

It was decided in Lewis v. New York & Harlem R. R. Co. (162 N. Y. 202), plaintiff’s property in that case being situated between One Hundred and Fourteenth and One Hundred and Fifteenth streets, that while the defendants had acquired no right by adverse possession as against the city, they had acquired certain rights by prescription as against the abutting owner; that the old structure had stood in the street so long that the railroads had acquired a prescriptive right to have it stand there forever so far as the plaintiff was concerned; that she could claim no damages'on account of the old structure so long as it stood there; that she could claim no damages for a new structure which was erected in the same place and for the same purpose, which inflicted no more injury upon her property than the old; that had the new structure been no higher than the old in front of her property, none of her rights would have been invaded and she would have been entitled to no relief, but that she had the right to recover the net difference measured in money between the effect upon her property of the old and the new structure while in actual use, less the benefits conferred by the latter.

In 'the case at bar, the action having been begun on April 30, 1900, plaintiff has been allowed to recover from September, 1894; that is for six years prior to the commencement of the action, damages for the injury caused to his premises by the existence of the stone viaduct in front of said premises, upon the theory that the whole structure, as erected pursuant to the authority of the act of 1872, constituted a trespass upon his easements. The plaintiff claims that as to him the defendant had acquired no prescriptive rights. This claim, which has been supported by the trial court, is based upon the fact that in 1892 he commenced an action against this defendant and the Hew York and Harlem Eailroad Company for an injunction and damages by reason of said structure erected and operated by trains under chapter 702 of the Laws of 1872. The claim is that as prescription rests upon the presumption of a lost deed after adverse use and enjoyment for twenty years, that this presumption as to a lost deed may be rebutted, and that so far as the plaintiff is concerned it was rebutted by the bringing of the action referred to. But the said action was discontinued on the 27th day of February, 1900, prior to the commencement of the action at bar. By the discontinuance of an'action the further proceedings in the action are arrested not only, but what has been done therein is also annulled so that the action is as if it never had been.” (Loeb v. Willis, 100 N. Y. 231.)

This precise question was before Mr. Justice Bussell in this Park avenue viaduct litigation in Campbell v. New York & Harlem R. R. Co. (35 Misc. Rep. 497), who said: “ I cannot hold that tli'é abandoned suit of 1891 is such a disturbance of that user as to justify the claim that the -use- was broken. The discontinuance is-as forceful as'the commencement of the action. It was an admission that that action was not maintainable, and such inference cannot be rebutted by the commencement of a later action.”

It has been many times held that the beginning of a suit which is subsequently discontinued does not interrupt the running of the Statute of Limitations, and in all the cases dealing with prescriptive rights, based upon the presumption of a lost deed, the period of time of adverse user has been put at twenty years, which ■ has been adopted by the courts as the prescriptive period from analogy to the Statute of Limitations. (Lewis v. New York & Harlem R. Co., supra, and cases therein cited.)

It- seems to me that the claim, the. assertion of which was evidenced by the beginning of-the suit -of 1892, was abandoned and rendered of no effect by the voluntary discontinuance', and, therefore, constituted no-interruption of the running of the prescriptive period. If the court liad-not held that the plaintiff was entitled to-recover for the whole structure, as erected pursuant to the act of 1872, it might well have followed that it would have held that the slight addition of about five feet in the height- of the base of rail, without any elevation of the parapet and without any widening of-the. structure, would have caused no material injury to the plaintiff’s premises. It must be borne in mind that under the rule as laid down in the Lewis case, which case is now a leading and controlling authority by reason of the decision in Muhlker v. Harlem R. R. Co. (197 U. S. 544), the plaintiff has the right to recover the net difference measured in money between the effect of the new and the old structure while in, actual use, less the benefits conferred by the latter, and also for the damages inflicted by the temporary work during the period of user. The defendant is not liable, however, for the acts of the board for the Park avenue improvement while either structure was in its possession for purposes of construction.

It follows, therefore, that the judgment in the case at bar, based upon structures and during periods for which the defendant was not liable, cannot be sustained.

As. the case must go back for a .new trial, it becomes necessary to allude to certain exceptions to the exclusion of evidence offered by the defendant.

The court excluded chapter 702 of the Laws of 1872, chapter 339 of the Laws of 1892, chapter 548 of the Laws of 1894, chapter 613 of the Laws of 1898, the plans and profile of the structure pro.vided to be built by chapter 702 of the Laws of 1872, the plans of the work required to be done by chapter 339 of the Laws of 1892, and certain contracts between the Park avenue board and the contractors for work to be done under said plans and in • pursuance of said laws; in other words, the legislative requirement for the changes in the structure theretofore existing and the plans and acts done thereunder, the ground for the exclusion being that, said acts were unconstitutional. The acts were not unconstitutional and never have been so held. The Supreme Court of the United States, referring to the previous decisions of the courts of this State in the elevated railroad litigations, commencing with Story v. New York Elev. R. R. Co. (90 N. Y. 122), said in the Muhlker Case (supra) : “When the plaintiff acquired his title, those cases were the law of New York and assured to him that his easements of light and air were secured by contract as expressed in those cases and could not be taken from him without payment of compensation.” This was not a holding that the acts requiring the change in the viaduct structure were unconstitutional, but in the absence of any provision in said acts as to the payment of due compensation for any easement to be taken thereby the Supreme Court read into the acts the constitutional provision affecting ail legislation, that private property could not be taken for public use without due compensation. It was error, therefore, to exclude the evidence offered.

The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Patterson, P. J._, Ingraham and McLaughlin, JJ., concurred.

• Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.  