
    Theodorus B. Woolsey et al., Resp’ts, v. The New York Elevated R. R. Co., et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    1. Railroads—Elevated—Evidence.
    In an action to restrain the operation of an elevated railroad, evidence of impairment of rental value of the plaintiff's premises is not rendered improper because the plaintiff himself occupies them.
    2. Same.
    A finding that the railroad interrupted the light and air of adjoining premises is not ground for reversal, although erroneous, where no damages were allowed for such interruption.
    3. Same—Injunction—Conditions.
    A refusal to direct that the injunction be conditioned on the failure of defendants to acquire the easements, etc., in the manner provided by law, is not erroneous where defendants have had over ten years since the building of the road and two years since the commencement of the action in which to commence condemnation proceedings.
    •4. Same—Mortgages.
    The decree need not make provision for the protection of defendants from future loss by reason of an outstanding mortgage where the mortgagee is a party to the action.
    Appeal from judgment entered after trial at special term.
    
      Brainard Tolies, for app’lts; Mitchell & Mitchell, for resp’ts.
   Van Brunt, P. J.

This action was brought to restrain the defendants from operating their railway in front of certain premises situated on Front street in the city of Hew York, until they should pay for the value of certain easements which had been taken in the construction of the defendants’ railway as assessed in the action.

It appeared upon the trial of the action, which was commenced in May, 1887, that the railroad in question was constructed in 1877, and has been in operation ever since, and that by this construction and operation the light, air and access of the plaintiffs to and from their premises have been interfered with and their enjoyment of the same diminished.

It further appeared that in 1885 a mortgage had been given upon this property and that the mortgagee had become a party plaintiff in the action.

The court rendered judgment for §1,900, as damages sustained during the six years prior to the commencement of the action, and restrained the defendants from the operation of their road unless within thirty days from a service of the decree upon them they pay to the plaintiffs $5,500 and interest, adjudged to be the value •of the plaintiffs’ rights and easements which had been taken by the defendants in the erection and operation of their railroad, and upon such payment being made the plaintiffs were required to-give a deed of release to the defendants.

From this decree the defendants have appealed.

It is claimed that the learned justice who presided at the trial erred in the admission of evidence as to what the value of the premises in question would be on the assumption that the elevated railroad was not there.

The validity of this objection upon a record similar to the one at bar was "discussed by Mr Justice Barrett in the case of Mitchell v. The Metropolitan Elevated Railway Co., and decided herewith ante 80, and it is not necessary to repeat the suggestions contained in that opinion, and which dispose of the question. The next objection is that an erroneous measure of damages was adopted by the court below for the past interference with the plaintiffs’’ property.

This point, is based upon the proof and the request to find that since the elevated railroad was constructed the building in question had been occupied by the plaintiff, Theodoras B. Woolsey, for the purposes of his business as a dealer in flour and for the storage and manipulation of flour.

It is claimed that because the plaintiff himself occupied the premises, that therefore all evidence as to the impairment of their rental value was improper, and such evidence should not have been received or considered.

The ruling of the court upon this question is sustained by principle and authority. The owner of the premises upon which the trespass has been committed is entitled to be indemnified for the damages that he has sustained by reason of the trespass.

The discomforts arising from the trespass are to be compensated for, and simply because an owner does not choose to abandon his premises, but continues to occupy the same, in no way deprives him of this right to compensation, and there is no more accurate way in which the money value of such discomforts can be measured than by showing how the rental value of the premises has been affected by the erection and maintenance of the nuisance.

In the case of Francis v. Schoellkopf, 53 N. Y., 152, this measure of damages is expressly approved under such circumstances, as was also the case in Michel v. The Board of Supervisors, etc., 39 Hun, 47.

It is also urged as a ground for reversal that the court below erred in finding that the effect of the elevated railroad in interrupting the light and air of adjoining premises constituted an unlawful talcing of the plaintiffs’ property.

If damages had been awarded for the interruption of light and air of premises adjoining the plaintiffs, it would have been clearly error. The finding complained of is as follows:

“XXFV". The said unlawful taking consists, among other things, in the erection and maintenance of said structure itself, including a column imbedded in the sidewalk and of the height above the street of about 17 10-12 feet in front of plaintiff’s premises, and in drawing trains of cars on said structure by steam engines, generating gas, steam and smoke, and distributing in the air cinders, dust and ashes, and other noxious and deleterious substances, and interrupting the free passage of light and air to and from plaintiff’s premises, and to and from adjoining premises.”

It is to the last six words of the finding that objection is taken.

An examination, however, of the evidence and the findings show that no damages were allowed for the interruption of light and air to and from adjoining premises. It is .undoubtedly true that the structure in front of plaintiff’s premises interrupted the passage of light and air to adjoining premises, but when the damages are stated they are allowed solely because of depreciation of the plaintiff’s property caused by the maintenance and operation of the defendant’s structure and road, and nothing is allowed for damages to adjoining premises. The last few words to the finding, although improperly there, have done no harm to the defendants, as no improper element of damage has been taken into consideration.

A further claim of error is based upon the refusal of the court below to direct that the injunction provided for by the decree should be conditioned upon the failure of the defendants to acquire in the manner provided by law the easements or other property for the protection of which the injunction was granted.

There is no merit in this objection. The defendants had had over ten years in which to take the proceedings to acquire the title to the property taken. They had persistently neglected to do so. They were content .as long as they could retain possession of the property which they had seized without the shadow of right not to take any proceedings to acquire title thereto and when finally a long-suffering owner has brought his action and the day of judgment has come this trespasser asks that he may after his long delay be allowed further time to legally acquire the title. We see no merit in this further attempt at procrastination. Besides the defendants had nearly two years after this action was commenced and before its trial to take these proceedings and prosecute them to an issue, but even after the action was commenced they made not the slightest efforts for more than a year to take those proceedings which should have preceded the construction of their road.

The objection that no provision is made for the protection of the defendants from future loss by reason of the outstanding mortgage title would have been good had not the mortgagee been a party to this action.

He has by becoming such a party assented to the judgment in this action and cannot now impeach by virtue of his mortgage the title which the defendants will have acquired when they comply with this decree to the easements occupied by them.

The judgment appealed from should therefore be affirmed, with costs.

Barrett and Bartlett, JJ., concur, i  