
    Byam K. Stevens, Respondent, v. The New York Elevated Railroad Company et al., Appellants.
    In an action to recover damages for injuries to plaintiff’s premises caused by the construction and maintenance of an elevated railroad on a street in front thereof, it appeared that the premises in question extended from said street to another street in the rear and were covered by a single brick building. Formerly it consisted of two lots, having different owners; they were conveyed to one person in 1825, before defendants’ road was authorized to bo built, and since then have been conveyed and occupied as one lot. There was no evidence that portions of the premises fronting on each street were occupied separately. Held, that plaintiff was, as abutting owner, entitled to recover his damages for injuries to the whole premises considered as a single lot; that while the fact that the premises were accessible to persons, property, light and air from both streets was important as bearing on the extent of the injuries, it did not preclude the recovery of any damages for injuries to that portion on another street.
    
      Mooney v. N. Y. E. R. R. Co. (30 N. Y. S. R. 561), distinguished.
    
      Greenwood v. Met. E. R. Co. (26 J. & S. 482), distinguished and disapproved.
    (Argued October 19, 1891;
    decided October 30, 1891.)
    Appeal from judgment of the General Term of the Superior Court of the city of Yew York, entered upon an order made January 6, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      J. C. Thomson for appellants.
    The court erred in refusing to dismiss the complaint as to the premises Yo. 100 Water street, and in receiving evidence as to the depreciation in the rental and fee value of the same. (Greenwood v. M. E. R. Co., 26 J. & S. 482; C. B. U. P. R. Co. v. Andrews, 30 Kans. 290; Rude v. City of St. Louis, 93 Mo. 408; Gilbert v. G. S. L. & P. R. Co., 13 Col. 501; Paquet v. M. T. S. R. Co., 18 Ore. 233; Story v. N. Y. E. R. R. Co., 90 N. Y. 122; Clark v. Dillon, 97 id. 370; Coffin v. Reynolds, 37 id. 640; Code Civ. Pro. § 499; Pope v. T. H. C. & M. Co., 107 N. Y. 61, 66; Tooker v. Arnoux, 76 id. 397, 400; Southwick v. F. Nat. Bank, 84 id. 420; Jarvis v. Palmer, 11 Paige, 650; Gould v. Glass, 19 Barb. 179; Woodburn v. Chamberlin, 17 id. 446; McIntosh v. Ensign, 27 N. Y. 169, 175; Fielden v. Lahens, 6 Abb. Pr. [N. S.] 341; 2 Abb. Ct. App. Dec. 111; Summerlin v. F. S. M. & M. Co., 41 Fed. Rep. 249; Ahern v. McGeary, 79 Cal. 44; M. G. L. Co. v. M. & E. R. Co., 86 Ala. 372; Smith v. Cross, 90 N. Y. 549; Sanford v. Ellithorp, 95 id. 48; Carroll v. Deimel, Id. 252; Holcomb v. Holcomb, Id. 316; Marsh v. McNaier, 99 id. 174; Nugent v. Jacobs, 103 id. 125; Varnum v. Hart, 14 N. Y. S. R. 140, 147; Dotry v. Stanton, 18 id. 427; Palmer v. Davis, 28 N. Y. 242; Simar v. Canaday, 53 id. 298; Lammond v. Volans, 14 Hun. 263, 266; Simpson v. Blunt, 42 Mo. 542; Barthing v. Jamison, 44 id. 141; State ex rel. v. Adams, 84 id. 310; 12 Mo. App. 436; Wight v. M. P. R. Co., 20 id. 481; Doyle v. Jones, 8 Abb. Pr. [N. S.] 383; Ayrault v. Sackett, 17 How. Pr. 461; Packer v. French, Lalor’s Supp. 103; Dugied v. Ogilvie, 1 Abb. Pr. 145; Cleveland v. Hunter, 1 Wend. 104; Putnam v. Crombie, 34 Barb. 232.)
    
      G. Willett Yan Nest for respondent.
    The whole lot has been a single lot since 1829. The abutting owner of such a lot has easements in the street and a right to have it used only for street uses. (Kane v. N. Y. E. R. R. Co., 125 N. Y. 185; Abendroth v. M. E. R. Co., 122 id. 12; Tollman v. M. E. R. Co., 121 id. 119.) Plaintiff should recover for damage to the whole lot. ( Wiggins v. Gleary, 49 N. Y. 348; Richie v. Henlings, 38 N. J. Eq. 20.) The court must award damage to the whole parcel, for that is the only rule which gives compensation. (In re Utica, 56 Barb. 464; In re N. Y. Central R. R. Co., 15 Hun, 68; In re Poughkeepsie, 63 Barb. 151; Lahr v. M. R. Co., 104 N. Y. 295.)
   Foizlett, Ch. J.

Since January 31, 1882, the plaintiff has been seized in fee of a lot of land in the city of Rew York extending from Pearl to Water street, which lot is 37 feet ■wide on Pearl and 34/^- feet wide on Water street. The westerly line of the lot is 105-^i feet in length and its easterly line is 101-j^- feet in length. At the time of the trial of this action and since 1865 this lot has been occupied by a single brick four-story building extending from street to street and is known as No. 134 Pearl street and No. 100 Water street. It is covered by a single roof, without a transverse partition wall and with but a single flight of stairs between the first and second stories.

During seventy-six years before 1825 this property consisted of two lots owned by different proprietors, the one on Pearl street being about fifty feet in depth and the one on Water street about fifth-one feet in depth. In 1825 these lots became the property of one proprietor, since which they have been described, conveyed and used as a single lot abutting on both streets.

When the defendants were incorporated and when the road was built and leased, the lot in question was owned by three tenants in common, who on the 31st day of January, 1882, conveyed it to the plaintiff, since which date he has been the owner in fee and in possession.

October 27, 1871, the New York Elevated Bailroad Company was incorporated under chapter 140 of the Laws of 1850, and pursuant to that chapter and chapter 606 of the Laws of 1866, chapter 489 of the Laws of 1867, chapters 595 and 606 of the Laws of 1875, and the consent of the city of New York, which owns the fee of the street, this corporation constructed in 1877 and 1878 its elevated road through Pearl street.

December 29, 1875, the Manhattan Bailway Company was incorporated pursuant to chapter 606 of the Laws of 1875, and on the 20th of May, 1878, became the lessee of the road and since that date has been in the exclusive possession and engaged in operating it.

The defendants have hot acquired the right to use the plaintiff’s private rights to light, air and access which are incidents to his lot abutting on Pearl street,

January 26, 1888, this action was begun to recover (1) the damages (alleged to be $3,000 annually) to the rental value of the property occasioned by the wrongful impairment by the defendants of these street rights, and (2) a judgment restraining the defendants from continuing to use those rights except on the payment of $20,000 damages for the past injuries and $50,000, the alleged value of the rights of which the plaintiff had been in part deprived by the construction and operation of the road.

On the decision made at Special Term it was adjudged that the plaintiff was an abutting owner and as such entitled to recover $17,000 with the costs of the action for the impairment of the rental value of the premises from January 31, 1882 (when he acquired title), to January 26, 1888 (when he began this action), and (2) that the defendants be restrained from operating the road after March 6, 1889, unless they should pay $20,000, adjudged to be the value of the rights impaired, upon the execution by the plaintiff of a proper conveyance of his street rights to the defendants. This judgment was affirmed at the General Term and the defendants appealed to this court.

The only ground urged as error by the appellants is based upon the assumption that the premises consisted of two indel pendent lots, one fronting on Pearl street and the other on Water street, and that the plaintiff recovered damages for injuries to both. This assumption is without foundation. The plaintiff did not, in his complaint, describe the property as two separate lots. He alleges : “I. That the plaintiff is now and has been since the 31st day of January, 1882, seized of an estate of inheritance in fee simple absolute in the premises known as Mo. 13d Pearl street and Mo. 100 Water street, in the city of Mew York.” * * *

“II. That the plaintiff is and has been since the 31st day of January, 1882, seized of an estate of inheritance in fee simple absolute in the premises described as follows, viz : All those two certain lots, pieces or parcels of land, situate, lying and being in the first ward of the city of Mew York, with a brick store thereon, which taken together extend from Pearl strreet to Water street.” * "x" *

“ XVI. That said structure and railroad occupy and greatly obstruct Pearl street,' adjoining the premises above described, and exclude the light and air from said premises and hinder access thereto.”

“ XVII. On information and belief that the trains darken the offices facing on Pearl street and render what light there is fitful and uncertain.” * * *

“ XVIII. On information and belief that the erection of said structure and the running of said trains thereon have created an additional burden on the premises above described and have interfered with the plaintiff’s rights and easements in Pearl street and that his rights to have the whole of Pearl street in front of said premises a free and open passageway and have light and air enter the building thereon free from any obstruction in said street.” * * *

On the trial the plaintiff showed that the entire lot was then and for many years had been occupied by a single brick building extending from street to street, but gave no evidence that the premises were occupied as independent parcels, one fronting on each street, nor does the decision of the trial court or the judgment following it proceed upon the theory that the plaintiff was entitled to recover for injuries occasioned to two independent lots. The decision and the judgment are to the effect that the property consisted of a single lot, which had been injured, by the defendants. This property having been occupied as an entirety anterior to the time when the road was built or authorized to be built, the defendants were not entitled to have the damages limited to that part of the property owned and occupied before 1825 as a single lot abutting on Pearl street.

The fact that the building and lot were accessible to persons, property, light and air from two streets was important as bearing on the extent of the injuries occasioned by the occupation of one of the streets by the defendants, but it does not appear that this fact did not have due weight with the trial court.

In Mooney v. N. Y. Elevated R. R. Co. (30 N. Y. St. Repr. 651), there were two independent and wholly unconnected buildings on the plaintiff’s lot, one fronting on Greenwich street, in which the railroad is, and the other on Beach street, in which there is no railroad. • The building on Beach street fronts on and is entered and receives its light and air from that street. The trial court received evidence of, and gave judgment for the diminished rental value of the Beach street building, which was held to be error. In that case the light, air and access to the building on Beach street was in no wise interfered with by the railroad.

In Greenwood v. Metr. Elevated Ry. Co. (26 J. & S. 482), the plaintiff’s property fronted on Vesey street and was 64 feet deep on Church street in which ^he railroad was built. This property was known as Hos. 31 and 33 Yesey street and was occupied by one building. Formerly, these lots were owned by different proprietors and occupied by distinct buildings, Whether these lots became the property of a single proprietor before or after the railroad was built, or whether the building which now covers them was built before or after- the construction of the railroad does not appear. In the case last cited, lots 31 and 33 were, with other land, formerly owned by a single proprietor who laid it out into lots and conveyed Ho. 31 to one purchaser, and afterwards conveyed Ho. 33 to another. It appears to have been conceded by the argument of the learned counsel for the railroad, as reported, that before the conveyance of Ho. 31 both it and Ho. 33 had appurtenant rights in Church street, but it was urged that when Ho. 31 was conveyed the right of Ho. 33 in that street was abandoned, cut off and destroyed. Undoubtedly these conveyances had that effect. But it was urged that the reunion of these lots in the hands of a single proprietor did not restore to Ho. 33 the rights in Church street which it had before it was separated from Ho. 31 by the conveyance. This proposition was rested on the rule that in case an easement — the right which the dominant estate has over the servient one—is abandoned or destroyed by the act of the owner of the dominant estate, that it cannot he restored or brought into existence without a new grant from the owner of the servient estate. It was also urged in support of the proposition that a reunion of the lots conferred no rights in Church street in favor of Ho. 33, because the owner of a dominant estate does not, by the acquisition of adjacent land, acquire the right to use the easement over the servient estate for the benefit of the newly acquired property. The illustration might have been carried farther. A. owning a lot 25 by 100 feet covered with a building has a right of way to and from it over the land of B. Subsequently, A. buys an adjacent lot and covers both with a single building. He cannot use his right of way over the land •of B. for his enlarged lot and new building because it would increase the burden of the servient estate. Would it be argued that the owner of Ho. 31, having rights in Church street, by adding Ho. 33 and covering it with a building lost all of his rights in that street? We think not.

The characterization of these street rights as easements and implying that they are governed by the rules, and are subject to the limitations of common-law easements, tends to obscure the rights of abutting owners on the one hand and of the corporations on the other. They may be easements in "the sense that the owner of land is sometimes said to have an easement for lateral support in adjacent land, or that the owner of land bordering on navigable waters having certain private rights to the shore is sometimes said to have an easement, but in neither case are the rights common-law easements. There is no dominant nor servient estate, and the rules applicable to easements have not generally been applied to such rights. (Goddard on Easements, et seq.) The judgment in the Greenwood case was rested on the ground that the street rights once appurtenant to both lots, having been destroyed as to 33 by the prior conveyances of 31, they could not be restored by the subsequent reunion of both lots. This conclusion, as applied to such rights as are under consideration, we think cannot be supported.

The defendants are liable for the damage done to the property in the condition in which it was when injured by them, and there is no rule of law or equity which entitles them to have the lot and building divided transversely by an arbitrary-line or by the line of division which existed prior to 1825 so as to limit their liability for damages to the half of the property abutting on Pearl street.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  