
    Struthers v. N. Y. Elevated R. R. Co. and Manhattan Railway Co.
    (New York Common Pleas—General Term,
    October, 1893.)
    In an action to restrain the maintenance and operation of defendants’ elevated railroad in the street in front of plaintiffs 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, it did not appear that the referee assumed the easements appropriated to be of any value apart from the land, but it did appear that the award made exclusively represented 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. Held, that any error in refusing to find that the easements considered, apart from the land had only a nominal value should be disregarded.
    On the question of benefits special and peculiar to the premises, the referee, upon conflicting evidence, not only refused to find that such existed, but expressly found that there were none. Held, that his determination was conclusive, the evidence not justifying the assumption that there was a palpable miscarriage of justice.
    A judgment for plaintiff was assailed on the ground that the referee erroneously excluded elements of special and general benefits from his consideration of the amount of damages to be awarded for injury to the fee. The evidence demonstrated that plaintiff’s premises had 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. Held, that 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.
    The referee found, upon conflicting 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 on the railroad by the latter’s presence and operation. Held, that his finding should not be disturbed.
    Appeal by defendants from a judgment for plaintiff which was entered on the report of a referee.
    
      J. Aspinwall Hodge, Jr., for plaintiff (respondent).
    
      R. L. Maynard, for defendants (appellants).
   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. R. Co., 118 N. Y. 618; Bohm v. Met. E. R. R. Co., 129 id. 576. 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; Sutro v. Manhattan R’way Co., Id. 592. 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., 138 N. Y. 257; Sixth Ave. R. R. Co. v. Met. El. R. R. Co., Id. 548; Steubing v. N. Y. El. R. R. Co., Id. 658. 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 judgment 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 plaintifi’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 evideuce, 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., 1 Misc. Rep. 138; Cohn v. Met. El. R. R. Co., 136 N. Y. 646 ; Adler v. Met. Elev. R. R. Co., 138 id. 173.

With reference to general benefits concomitant with the injury caused by the advent and operation of defendant’s railroad, it is to he 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 he any, would naturally manifest their presence and prove their pecuniary worth cither 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 snch cases intended and provided and permitting of a result to he 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 aj>pears 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 defendant’s 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 béen not less than $15,000, accepting their rental value at the same time at what it was in 1873. Ourtiss, however, fixes their fee value at the time of the trial at $10,(100, defendants’ expert at $11,000, and their rental value at the same time, Ourtiss 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 overestimate the worth of expert testimony of the class adduced on the trial of this action. It is concededly 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 v. M. El. R. R. Co., Somers v. Same, 129 N. Y. 576.

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. El. R. R. Co., 131 N. Y. 509 ; Storck v. Same, Id. 514. 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. R. Co., 131 N. Y. 509; Storck v. Same, Id. 514.

The judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Judgment affirmed.  