
    Catherine Taylor, Appellant, v. The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Respondents, Impleaded with Others.
    
      Action in equity by an abutting owner to restrain the New York and Harlem Railroad Oompany from operating its road in New York city—effect of successive changes made by legislative direction in a railroad embankment—adverse possession— adverse user— a change made solely■ by the city -^■liability of the rcdk'oad corporation for its use of a tempoi'cvry structure.
    
    The New York and Harlem Railroad Company, under authority from the city of ■New York, ¡constructed its road upon an embankment twenty-six feet wide at the base, but- before doing so took, in 1882, a deed of the land to the extent of twenty-four feet in width, on which its tracks were afterwards laid, from one Benson, who had previously, in 1825, by a recorded deed' conveyed it and other land having together a Width of one hundred feet'to the city of New York in fee. Subsequently the Legislature directed that Fourth avenue, in which this-lánd-was. . included, be increased to the width of one hundred and forty feet, which was done in 1853, subject to the right of the company to maintain its railroad. The Legislature in 1872. required-the railroad company to change its-grade and to build four tracks instead of two. This change was completed in 1875, the width of the embankment being increased from twenty-six to fifty-nine feet and its height diminished oné and a half feet, and the road was operated thereon until 1894. ■ Under the provisions of Chapter 339 of 1892 the height of the embankment was increased by four feet by a board of city officers, to whom the entire control of such change was given by that act, although the railroad company was compelled to. contribute to the expense. This change of grade it appeared was neither necessary nor beneficial to the railroad company, and was made for the ■ convenience of the city.
    In an action brought December 1, 1896, by an abutting property owner, who had acquired title to a lot on Fourth avenue through -a deed given by Benson in 1828, for an injunction and for damages because of injury occasioned to her property by the operation of the railroad, it was
    
      Held, that the plaintiff could not recover damages resulting to her easements from the original permanent embankment, as the railroad company had, by its occupation under the deed from Benson, established an adverse possession of the fee in the street from 1832 to 1853 when Fourth avenue was opened;
    That the railroad company, had sufficiently established' an adverse user Of the street for the enlarged permanent embankment constructed in 1875 under the legislation of 1872, by an occupation for more than twenty years under an exclusive and notorious claim of right;
    That, although the railroad company was forced by chapter 339 of the Laws of . 1892 to contribute to the change' in the embankment made by the city board thereby appointed, yet as it' was a public improvement, over which the railroad company had no control, it could not be made liable for the change of grade involved in the manner in which the board, acting under the direction of the Legislature, had performed the work;
    That the use by the railroad company of a temporary structure which had been built by the city board and was maintained for some three years on the street on each side of the embankment, and was not shown to have been necessary for the carrying out of the public improvement, but was only built to permit the railroad company to operate its railroad while the change was being made, Tendered the railroad company liable for the damages resulting therefrom to the plaintiff.
    Appeal by the plaintiff, Catherine Taylor, from a judgment of the Supreme Court in favor of the defendants, The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, entered in the office of the clerk of .the county of New York on the 3d day of May, 1897, upon the •decision of the court rendered after a trial at the New York Special ‘Term"dismissing the complaint upon the merits as to said defendants.
    
      Daniel J. Coughlan, for the appellant.
    
      Ira A. Place, for the respondents.
   Rumsey, J.:

The plaintiff is the owner of a lot on the southwest corner of One ' Hundred and Ninth street and Park avenue. She brings this action •against the New York Central and Hudson River Railroad Company and the other defendants to restrain that company from operating its railroad along Park avenue, in front of her premises, upon ••an elevated structure erected on that street, and to recover damages ¡she claims to have sustained because of the operation of its road "thereon. The New York Central Railroad Company is the lessee ■of the New York and Harlem railroad, and claims the right to operate its road under the authority which has, from time, to time, been given to the latter company. That company was- chartered by an ¡act of the Legislature in 1831 with authority to build a railroad from "the north side of Twenty-third street, at any point between Third and Eighth avenues, in the city of New York, to the Harlem river. In the plan for the laying out of streets on Manhattan island, adopted pursuant to the law of 1813 (2 R. L. 408), Fourth avenue was shown as -extending from Twenty-third street northerly to the Harlem river,, but for many years it remained a paper street and not opened, and at the time when the Harlem railroad was built the street had no actual existence north of Thirty-fifth street, although it was recognized-as a contemplated street to. be laid out in the course of time. The land upon which it was intended that the street should be laid out continued to belong to the original owners, and it does not seem' that any effort was made by the city to acquire title to it for the purposes of a street for some years after it was originally laid out. Before 1825 a considerable tract of the land about One Hundred and Eighth street, including the land of the plaintiff and the land upon which it was contemplated to lay out the avenue, belonged to one Benson, who had laid'out lots abutting upon what was intended to be Fourth avenue. On the 19th of November, 1825, Benson conveyed to the city the land within the boundaries of the proposed street, which was then 100 feet wide, and that deed was recorded very soon after it was delivered, so that from that time on the city had the title to the land in front of the premises which are now owned by the plaintiff, although it does not seem that it took possession of the property until the street was finally laid out many years later on. In 1828 Benson conveyed the property now owned by the plaintiff, with other property in that neighborhood abutting upon the lines of the contemplated street, to one Watt, from whom plaintiff claims title, and his deed was duly recorded, and after that Benson had no title either to the land within the lines of Fourth avenue, in front of these premises or to the premises themselves, which abutted upon the street as it was intended to be laid out. Such was the condition of the title of this property when the Harlem railroad was located along the center of Fourth avenue. As located in front'of these premises it was intended to be built, and was built, upon an embankment twenty-six feet wide at the bottom and twenty-four feet wide at the top, upon which were constructed two tracks. Before constructing this embankment, however, the railroad obtained from Benson and other landowners conveyances in fee of land along the center of Fourth avenue twenty-four feet wide for the purpose of constructing and operating a railroad thereon. ■ The deed of the land in front of plaintiff’s premises was made by Benson. This deed, however, -was made to the company after the deed- of the same premises had been made to the city by Benson,- and when Benson had no title whatever to any of the land within the bounds of Fourth avenue in front of the premises of the plaintiff. But the company before constructing its road made an. agreement with the proper authorities of the city by which was granted to it the right to build a road along the center of Fourth avenue as it finally was built, so that whether it acquired a title from Benson or , not it was undoubtedly lawfully in possession of the land whereon its tracks were laid. After the laying of the railroad tracks the Legislature enacted that the width of Fourth avenue should be increased from 100 feet to 140 feet, and for that purpose that 20 feet additional should be taken from the land, of the abutting owners on each side when the street should be opened. In 1852 proceedings were taken to lay out Fourth avenue to the width of 140 feet, and those proceedings were brought to an end by a final order for the opening of the avenue at that width in 1853. By those proceedings the city assumed to acquire title to the bed of the avenue for the width of 140 feet, “ subject, however, to all the rights then possessed by the defendant, The Hew York & Harlem Rail Road Company and its successors, to maintain and operate its railroad in Fourth avenue subject to all the provisions of the law relating thereto.” After the completion of those proceedings the avenue was laid out and became known as Park avenue, and as laid out it was located on each side of the defendant’s railroad, which occupied a space twenty-six feet wide along the center of the street for its whole length, thereby practically shutting up that portion of the street so that neither the abutters nor anybody else could use it. Such was the'condition of affairs until 1812, when the Legislature assumed to require the railroad company to change the grade of its railroad and authorized it to build four tracks instead of two. The width of the embankment upon which the road ran in front of the plaintiff’s premises was then changed from twenty-six feet to fifty-nine feet and its height was materially, diminished about one and a half feet. This change was completed in the fall of 1815, and the road continued to be operated upon the embankment thus constructed until the fall of 1894, but the embankment itself continued to exist in the condition in which it was then, and still exists in that condition, except that it has been made four feet higher under circumstances which will be considered later. Ho objection appears to have been made by anybody to that increased width as it was made in 1875, but the railroad continued to be operated upon it without any objection or interference. In 1890 the Congress required that the bridges over the Harlem river should be raised so that there should be a clear space of twenty-three feet between the bridge and high water; The owners of the bridges were required to do this, but they were permitted to delay the work until they should receive the necessary legislative authority for that purpose. To carry that work into effect the Legislature in 1892 passed an act establishing a new grade for the defendant’s railroad and providing for its construction. (Laws.of' 1892, chap. 339.) This construction was begun pursuant to that act, and .it is for the in jury which the plaintiff claims to have sustained by reason of the ■change of grade and of the manner in which it was done that this action is brought. The court below decided that the plaintiff had suffered no damage because of the performance of the work, and for that reason dismissed the complaint, and from the judgment thus entered, the plaintiff appeals.

Two grounds of damage are claimed : In the first place the plaintiff -insists that the increased height of the embankment upon which the railroad is permanently to run obstructs her easement, of light and air to an extent greater than the defendants were authorized to do, and she insists that she is entitled to restrain the additional structure, and also .to recover such damages as she may have sustained by reason of its existence at the increased height. It appears; too, that, for the purpose of enabling the railroad to run its trains while the height of the embankment was being increased, an additional structure was built upon each side of it,, coming close up to the plaintiff’s premises, which- materially obstructed her easements of light, air and access, and she claims that she is entitled to the damages which she suffered by reason of the existence of its temporary structure. These two claims will be examined iri their order..

It is well settled in this State that the abutter upon a public street is entitled to the unobstructed use of the street as it was accustomed-to be used, and to such easements of light and air as. would naturally come- to the premises which he owns from the street as it was originally opened and used. (Story v. The New York El. R. R. Co., 90 N. Y. 122; Lahr v. Metro. R. R. Co., 104 id. 278.) Whenever the facts are like those shown to exist in the cases just cited, the nature and extent of the defendant’s liability for an obstruction to the highway is established, and it is unnecessary to be further considered here. But while the principle of those cases applies here, as in all other cases where the highway has been obstructed by an elevated structure,, the extent of the liability is not necessarily the same in this case as in a case where the street was originally opened to its full width, and- where the whole surface was used-as a means of access by the abutting owners. In this case it appears that the railroad had been established by the authority of the Legislature upon what was afterwards Fourth avenue for many years before that avenue had been opened, and that when it was opened the embankment of the railroad company existed in front of these premises, and that the street was opened subject to the right of the railroad to maintain its tracks as they were then ; so that, while Fourth avenue was opened as a street, it was never opened in such a way that the abutting owners had the full benefit of access to all parts of the street as in those streets where no railroad had existed. If' the embankment as then constructed interfered with their easements of light and air, such an interference was an essential accompaniment of the street as then opened, and the abutters took the benefit of the street with the corresponding inconvenience and damage which accompanied the existence of the railroad along the center. While the principle of the Story and the Lahr cases, therefore, must apply, the application is qualified by the essential .difference in the manner of the opening of the street, and the purposes for which it was permitted to be used, and so far as the existence of the railroad at the time of opening the street diminished the value of the adjoining property that injury did not inflict any damage for which the railroad company, then being lawfully in the street, could be made liable. Before this street was opened, an'd before the railroad was erected, the company had received a conveyance in fee of the land of the necessary width upon which to construct its road. It is quite true that at the time it received the conveyance from Benson of the land in front of the plaintiff’s premises, Benson had already conveyed the property to other persons, but the railroad company went into possession under the deed which it then received, and, as it then took the exclusive possession of the property conveyed to it, it must be deemed to have claimed the right, to hold that property -under the deed adversely to any other person. From 1832, when the railroad was built, to 1853, when Fourth avenue was opened, the railroad company was in the exclusive possession of the land thus conveyed to it, operating a railroad upon it over land which might subsequently- be converted into a street upon proper proceedings, but which, up to that time, was owned and occupied exclusively by itself and other private owners. This occupation of the railroad company was recognized in the proceedings opening the street, and the naked fee of the railroad company in the land subject to the right to use it for a railroad was taken by them. It must be deemed, therefore, that the claim of the railroad company to the - ownership ■ of this land, which it assumed in 1832, after receiving the deed from Benson, had, in 1853, ripened to a title by adverse possession, . under which it had the right to hold this property as absolute owner, and in any construction that it made upon it up to that time, it was doing what any other owner might do in the use of his own property. By the proceedings taken in 1872 the railroad company took possession of a considerably greater portion of Fourth avenue than it had occupied before. . The embankment was more than doubled in width, the increase being from twenty-six feet to fifty-nine feet. That was done under the authority and by the direction of the Legislature, and while, therefore, it was not unlawful, so far as the entry upon the public street .was concerned, yet there is no doubt that, under the principles laid down in the Story and Lalir Gases {supra), any abutter had a remedy if it injuriously interfered with the right to access to his premises, which he had before enjoyed,' and to his easements of light and air. But it seems that no complaint was made of this increase in the width of this embankment, but the railroad company was permitted, without objection, to continue it from the fall of 1875 until the commencement of this action on the 1st day of December, -1896. The occupation of the railroad company for this period of more than twenty years Was under claim of right and was certainly notorious and exclusive of the right of any other person in that portion of the highway which it thén occupied, and was authorized by law. As to that embankment, it has acquired by adverse possession the right to maintain it to' the extent to which it was used during that time, but it is linn ited in this user to the right as exercised for that period of time. It cannot enlarge the user and claim, by virtue of the adverse possession, the right to the user as increased after the expiration of the twenty years. (Prentice v. Geiger, 74 N. Y. 341; Am. Bank Note Co. v. N. Y. El. R. R. Co., 129 id. 252.) Therefore, the fact that the railroad company has acquired the right to operate its road upon an embankment such as it used from 1875 to 1895, is not necessarily an answer to the claim now made that the plaintiff has suffered an increased injury because of the elevation of the new embankment to a height greater than that at which it had been maintained before. The defendant can acquire from the deed of Benson no right as against the plaintiff to operate and maintain its railroad along the center of the street, because when it received its conveyance from Benson he was not the owner either of the street, a portion of which he attempted to convey, or of the plaintiff’s land which abutted upon the street, and the case, therefore, is not within the case of Conabeer v. New York Central & H. R. R. R. Co. (84 Hun, 34). The deed from Benson, if useful to the railroad company at all, can only be available as the foundation of an adverse possession which seems to have been taken under it, and so far as that possession was actually taken, but it is of no avail as a grant of an easement in the land of an abutter who at that time was an owner of his property claiming under Berison, by a deed which had been actually recorded before the deed to the company. It appears and is practically undisputed that, at the time this action was begun, and even down to the time of the trial, the defendant was not in occupation of the embankment as rebuilt under the law of 1892. Indeed it does not appear clearly how long a viaduct thus built had been in existence. The defendants insist that as they were not in possession of the embankment they are not liable for the inconveniences, if any, which have, resulted to the plaintiff because of its existence. It was erected under the authority óf chapter 339 of the Laws of 1892, which provided generally for changing the grade of the New York and Harlem railroad, for building an embankment along Park avenue at the height of the grade thus established and which contains full directions and regulations whereby this improvement may be carried out. But the statute does not give the railroad companies, or either of them, any authority to do this work. Section 13 creates a board to be appointed by the mayor whose duty it shall be to execute, direct and superintend the construction of the improvement. That board is authorized and directed to take the entire charge of that improvement, and to carry it on in conformity with the provisions of the act. The board is to prepare plans of the improvement to be approved by the commissioner of public works. All work is to be done, so far as possible, by contract. The contracts-are to be made by the board, and the work after being contracted for is to be done under the supervision of the .department of public works, and the commissioner of public works is to appoint inspectors.and engineers to supervise it. The railroad companies are to have no control of the work and no supervision of it and no right to interfere with it in any way whatever. It was made to appear, without dispute, that this board of improvement having organized, took charge of this work, and that it caused plans to- be prepared by its engineers and made contracts for. the doing of the work, which were entirely independent of the railroad companies.

This embankment, when finally finished, -was to be used by the Hew York Central Railroad Company upon which to run its trains, but while that company was to have the exclusive use of the embankment when finished, the work was not by any means exclusively for its benefit. It was of great moment to the people of the city .that Park avenue should be opened so that the communication along the lateral streets might be re-established and those streets and Park avenue itself become more available for the public use. So far as this was the carrying out of a public work for the benefit of the city, it was within the power of the Legislature to direct, and the city doing it was engaged in a public work for a public purpose. (Tocci v. The Mayor, 73 Hun, 46.) That work thus done for a .public purpose was exclusively under the control of the board .of improvement created by the statute. The change of grade was not the act of the appellants, but of the Legislature, which imposed it and prescribed the manner in which it should be done. ■ This, too, was done by the board created by the act and was an essential part of their duty. That board acted in no way under the direction of the ■railroad companies nor in conference with them. It was not at all responsible to them nor were they in a situation to give any directions, either as to the work which should be done or as to .the manner of doing it. To that board alone was intrusted the entire control, «abject to the supervision of the department of public works. It was to let the contract, and it did let the contract for that work. Therefore, while the work was in process of construction the railroad companies could not be in any manner responsible for it, and if the work itself was illegal, or if the manner of doing it was unlawful, no injunction addressed to them could prevent it, nor did they become responsible for damages which occurred. Their responsibility only began when they undertook a part in the doing of the work, or when they began to use it. There is no pretense that the railroad companies undertook any portion of this work. So far, therefore, as the work was done by the board of improvement, or ' by its contractor, the railroad company cannot be liable for any damages resulting from it.

But it is said that the defendants were liable because the work was done for their benefit and they contributed a certain portion of the money necessary to pay for it. It is quite clear in our judgment that the fact that they contributed under compulsion a certain portion of the expense of this work cannot in any way operate to render them liable for what was done by the board of improvement by way of building the embankment for the reasons just before stated. But it is said that the work was done for their benefit. If. by that is meant that they Were to have the exclusive possession and exclusive use of it after it was finished, there can be no doubt that such was the case. But if it be meant that it was a work which was necessary, or even convenient, to enable them to operate their road on Fourth avenue, the evidence conclusively disproves any such assumption. It appears from the terms of the act of 1892 that the grade of the road from One Hundred and Sixth street ascends to One Hundred and Sixteenth street, and from that point to One Hundred and Twenty-ninth street it descends. The object of changing the grade was to raise it over the Harlem river, so that it is quite clear from the- provisions of the act itself that the increased height of the grade up to One Hundred and Sixteenth street, followed as it was by a descending grade to One Hundred and Twenty-ninth street, could be of no benefit to the railroad companies to enable them to raise ■ the grade of the road at the Harlem river, so as to cross the’bridge at an increased height, because' at One Hundred and Twenty-ninth street the grade is the same as the present grade, and the railroad might have reached that point at its present grade before it was necessary to commence to ascend'to get over the Harlem bridge. . The-evidence of the engineers Upon that subject corroborates this inference, for it is made to appear by them that the original intention of the railroad company in raising the grade was to begin at One Hundred and Twenty-fifth street, and that it was not necessary to begin lower down than that point, and it is conclusively established in this ease that the change in grade from One Hundred and Twenty-fifth street south, was for the convenience of the people of the city living along the avenue, to give them conveniences for getting across it, so that it cannot be said in- any way that this change of grade in front of the plaintiff’s premises was at all for the benefit, either actually or legally, of the defendant railroad. It was found by the court below that no damage had resulted to the plaintiff for which defendant was liable from the Change in the viaduct during the time that this work was going on, and, so far as the embankment was concerned, we think this finding in that regard was correct.

But a different question is presented by the temporary structure which was used by the defendants for the operation of its road during the building of the permanent viaduct. It appears that the contract for erecting this structure was awarded on the 15th of March, 1894. The temporary structure was begun on the 1st of April, 1894, was completed in August of that year, and the trains of the defendants commenced to run upon it in September, 1894, and continued until January or February, 1891. It is established that this structure was built on each side of the permanent embankment; that it occupied the street at about the height of the second-story windows of the plaintiff, from the embankment to the sidewalk, and that,' it interfered to a very considerable extent with the access to the plaintiff’s premises and with her easements of light and air. There can be no doubt upon the evidence that, during the existence of this temporary structure, the plaintiff and her tenants suffered considerable inconvenience from the operation of the defendant’s trains upon it, and that the rental value of her premises was diminished during .that time. It appears that this temporary structure was erected by the board of improvement upon contracts made by them and under their direction, and that the defendants had no control whatever over it until they commenced to use it in September, 1894. It does appear, however, that from that time until January or February, 1897, it was used by them for the operation of their trains and that many trains daily ran over over it. The defendants seek to escape liability for this use of this structure, for the reason that it was a temporary structure necessary to be built for the purpose of doing the work upon the embankment, and, therefore, that it comes within the rule established in the case of Atwater v. The Trustees of Canandaigua (124 N. Y. 602), that, where persons lawfully engaged in the construction of a public improvement are compelled temporarily to inflict consequential damages-upon the property of an adjoining owner, without actually trespassing upon it, such injuries are damnum absque inju/ria, and no action lies to restrain them or to recover for the injuries thus inflicted. This rule itself is well established, and is essential in the construction of public works by municipal corporations or by public authority, but we think that this case is not brought within that rule. It does not appear here that this temporary structure was necessary for the construction of the work. So far as it appears it was not used for that purpose. It was built, and was used by the defendants for running their trains, at a time when, in the construction of the work, they were excluded from the occupation of the embankment over which they had been accustomed to run them. This occupation was for their own private purposes and their private benefit. There is no pretense that the work itself might not have gone on if the temporary structure had not been built. But it was said that while the work was going on the trains could not be run. Undoubtedly that is so; but the running of the trains, so far as the plaintiff was concerned, was not a public purpose inseparably connected with the building of this structure. It was convenient for the defendants to run their trains; it was of great importance to those persons who had occasion to use their road that the trains should be run, but the necessity of operating a railroad is not the necessity which is intended in the case of Atwater and like cases, which authorize the infliction of damage upon an adjoining owner in the construction of a public work. That necessity must be one which is inseparable from the construction itself, and but for which the construction either could not be made or could be made only at a vastly increased expense- and considerably more inconvenience. If the temporary construction is simply to enable a person to carry on his private business without inconvenience the jirinciple does not apply,, because there is no reason why one person should be subjected to inconvenience and damage during- the construction of a public work in order that some other person may more conveniently carry on his own private business and use his own property. The use of this; temporary structure for the purpose of running trains upon it was an obstruction of the street, greatly in excess of anything which the company had previously done and was beyond its power (Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505), and for the obstruction thus caused the defendants are liable (Sperb v. M. E. Ry. Co., 137 id. 155) because of their adoption of it by using it. For this reason we think that the court erred in the conclusion which it reached as to the right to recover damages for the operation, of the temporary structure, and for this error the judgment should be reversed and a new trial ordered, with costs to-the appellant to abide ■the event.

Van Brunt, P. J., Babbett and McLaughlin, JJ., concurred.

Ingraham, J.:

There are two separate structures described in the complaint; one, a temporary structure erected over the avenue between the sidewalk and the old structure operated by the railroad company in the :middle of the avenue, and the other is the permanent structure of the defendant road erected in the middle of the street. The question differs as to these two.structures, and as to' whether or not the erection or maintenance thereof was an appropriation of the plaintiff’s property which consisted of an easement of light, air and access in the avenue. It is first, however, proper to say that I do .not think that the defendants could acquire a title to this property or right to use this avenue or-any portion thereof by virtue of the conveyance from Benson to the defendant. After Fourth avenue had been laid out as a street in pursuance of chapter 115 of the Laws of 1807, Benson caused a map to be made of his tract of land, which included the plaintiff’s premises and the avenue in front thereof, and upon which map Fourth avenue was shown then to be of the width of 100 feet as laid out by the commissioners under the act of 1807, and on November 19, 1825, Benson conveyed to the mayor, aldermen and commonalty of the city of New York the parcel of land situate within the limits of the streets which were owned by him, including Fourth avenue, opposite the premises in question; This deed was recorded on the 6th day of December, 1825, and vested in the city the fee of the land included within the avenue. It was not the mere dedication of a street or highway that would require an acceptance by the city before it became effectual, but a conveyance of the fee of the property to the city which appears from the record to have been absolute upon its face. On November 12,1828, Benson conveyed to Archibald Watt, the plaintiff’s grantor, a plot of land bounded upon Fourth avenue, between One Hundred and Eighth and One Hundred and Ninth streets. By the description of the property conveyed, whatever right Benson had to the fee of Fourth avenue passed by that deed to the grantee. Benson, therefore, had no' title to this land constituting the fee of Fourth avenue when he executed and delivered' his deed to the New-York and Harlem Railroad Company, and that deed was ineffectual to convey to the company any title to that property, or right to use Fourth avenue. The right of the railroad company to use Fourth avenue for the purpose of its-road was acquired under the resolution of the board of aldermen, dated February 1, 1832. That resolution provided that “ the New York & Harlem Railroad Company be and are hereby authorized to take possession of the ground owned by the common council over which the line of said railroad is ordered to be constructed, and that they be permitted to use the same during the continuance of the present charter for the purposes of a railroad, and that only, and when they cease so to use it, it shall revert to the corporation.” The situation of the property at the time of the original construction of the railroad, therefore, was as follows : The city owned the fee of Fourth avenue as grantee of Benson, and it had authorized the defendant railroad company to take possession of the ground over which the line of the said railroad is ordered to-be constructed, and permitted, it to use the same during the continuance of its then charter. This was a mere ea’sement or license, vesting the. railroad company with no title to the land, and certainly ineffectual to convey to the railroad company any right that the plaintiff had to the avenue. Under this permission of the common council the railroad company built its road, and for upwards of fifty years have maintained and operated it. At the time, however, of this permission to the railroad company to use this land the city owned-it in fee, free from any easement or right of the owners of the abutting property: The grant from Benson to Watt was, of course, subject to the right that the city had acquired to the fee of Fourth avenue, but by that grant the city had been vested with the unqualified fee of the land in the bed of Fourth avenue, and I know of no rule that, would prevent the city from using that property for any purpose that it saw fit. When it authorized the New York and Harlem Railroad Company to use it for its railroad it appropriated no property of the plaintiff’s grantor, and I do not think that either the city or the railroad company were liable then in any action, either in equity or at law, by the plaintiff’s grantor for the use that they made of this strip of land which had been conveyed by Benson to the city. Under this authority from the city the railroad company built its structure in the middle of what was laid out as Fourth avenue. Its right to build that structure was not then challenged by the plaintiff’s grantor. Nor has the right of the railroad company to use that structure been challenged at. any time down to the commencement of this action.

The next important question is as to the effect of the condemnation proceedings instituted on behalf of the city to open this avenue, then, under legislative authority, of the width of 140 feet. To that proceeding the New York and Harlem Railroad Company was a party, and it would appear that an award of one dollar was made to it. That proceeding did not affect the right of the railroad company to operate its road upon the part of Fourth avenue then occupied by it. By these proceedings, however, this strip of land known as Fourth avenue, from One Hundred and Eighth to One Hundred and Ninth streets, became opened as a public street, the fee of which was held by the city of New York in trust, to keep the same as a public street, except so far as the same was then in actual use and occupation by the railroad for the purpose for which it was incorporated. The structure then existing, and which was continued down to the year 1872, was a little over twenty-two feet in height .above the grade of Fourth avenue, and was about twenty-six feet in width,, and upon this structure were placed two tracks. Subsequent' to the year 1872, under an act of the Legislature, the. railroad company increased that structure to a width of about fifty-nine feet; but the height of the . structure above the grade of Fourth avenue was decreased about eighteen inches, so that the grade of the railroad, subsequent to the reconstruction of the road under the act of 1872, was about eighteen inches lower than the grade as it existed prior to that change. No complaint was made by the plaintiff as to this change of structure under the act of 1872, and it is quite apparent that that structure appropriated no property of the plaintiff, or that was appurtenant to the plaintiff’s abutting property. As it was lower than the previous structure, it excluded no more of the light and air than the previous structure; and the mere fact that it occupied a greater portion of the street was not an appropriation of the plaintiff’s property, as the plaintiff had no property in the street, except an easement, of light, air and access, and neither the light, air nor access to the plaintiff’s property was interfered with by this enlargement in the width of the defendant’s roadbed.

We now come to the addition to this structure made under the provisions of the act of 1892. So far as the permanent structure built under that act of 1892 is concerned, I fail to see any evidence that it was a substantial injury to the plaintiff’s property, or to the easement of light, air and access appurtenant to her abutting property. Under the right acquired originally by the defendant, it was entitled to use an embankment or structure eighteen inches higher than, its structure erected under' the act of 1872. The structure that was actually erected under the act of 1892 was about four feet and three inches higher than that constructed and in use under the act of' 1872, thus building it higher than the original structure which the railroad was authorized to use under its agreement with the city by something less than three feet; and I do not think that this áddition of three feet to the height of this structure had any appreciable influence upon the light or air appurtenant to the plaintiff’s property, or can be said to cause it any injury. There is certainly no evidence in the case to show that.it did interfere with plaintiff’s easement.

A court of equity will not interfere with its mandatory process to restrain such a use of a street unless it is apparent that a substantial injury has been occasioned to.the abutting property, and this addition made to a structure, then lawfully existing, and to which the plaintiff’s abutting property is subject, seems to me too trivial to justify a court of equity in.issuing an injunction, leaving a party who claims to be injured by such structure to his action at law.

The right of the railroad company to erect its temporary structure, however, presents a different question, and ! am inclined to think that the plaintiff had a cause of action to enjoin the erection or maim tenance of that structure so far. as it interfered with her property rights in the street. ' The street on each side of this structure used by the defendant railroad was an open public avenue, laid out under the act of 1807,' before cited, and upon the completion -of the proceeding to open Fourth avenue that part of the avenue was held in fee by'the city-of New York, in trust for a public street. As to that part of the avenue not occupied by the permanent structure of the railroad company,, the plaintiff had an easement as appurtenant to her abutting property of light, air and access, and such an easement being her property,, she could not be 'deprived óf it by either the public or a railroad company acting under public authority, except upon payment to her of compensation, and I-see no reason why a structure, which is temporary in its character, but which would last for years, and which appropriates a person’s property for the period that it is used, is not as much an appropriation of property as where the structure is permanent. This erection of structure was an appropriation of the plaintiff’s'easement in the'avenue, and if the railroad company wished to use the plaintiff’s property in this avenue for a railroad, whether such use was a permanent or temporary use, it was bound to pay her for such use, or in the absence of such payment the plaintiff was entitled to apply to a court of equity to enjoin such an appropriation of her property. Upon the trial it was shown that the temporary use' for which this structure had been erected was at an end, and while the structure itself had not then been removed, it was'stated ón the argument before us,, without.contradiction, that at the time of the argument it has been removed and the appropriation of the plaintiff’s property upon this portion of Fourth avenue, not covered by the permanent structure^ has ceased. That the defendant is responsible for the construction and operation of this temporary structure seems to me to be clear. By section 12 of chapter 339 of the Laws of 1892 f The Few York and Harlem Railroad Company, or its lessee, The Few York Central and Hudson River Railroad Company, during the making of the change in the elevation of the aforesaid structure and bridge, is authorized to construct a temporary bridge over the Harlem river, and to maintain such temporary structure as may be found necessary for the operation of' its road, and to occupy any part or parts of any public streets or avenues in the city of Few York necessary for such purposes.” It was under this authority that this temporary structure was built, and whether it was built by the railroad company itself, or by the commissioners appointed by the act for the benefit of the railroad, and used by the railroad during the change in the permanent structure, the railroad company was a joint trespasser with the commissioners in maintaining such structure, the structure being for its benefit, and it was, therefore, liable to any action to abate the trespass or to recover damage for it. It may be that the commissioners, under whose contract the'structure was erected, or the city of Few York who appointed the commissioners, would be proper parties to an action brought against .the railroad companies ;• but the objection that neither the commissioners nor the city of Few York were parties to the action was not taken by the defendants, either by demurrer or answer, and it was, therefore, waived.

The facts alleged and proved showed that the plaintiff was entitled to damages for the maintenance of this temporary structure, and- although the removal of the temporary structure would eliminate the equity cause of action, the plaintiff is, I think, entitled to' have her action tried now as an action for damages against the railroad company for the injuries sustained by the erection and maintenance of this temporary structure. The court below denied the plaintiff equitable relief, but it should have either proceeded to assess the damage for that temporary structure, or, if either party demand a trial by jury, should have sent the action to be tried at the Trial Term.

I do not think that' the railroad company can claim to hold this land under the Benson deed by adverse possession. It went into .possession' under this license from .the city.; the holding under such a license from the city could not be adverse to the city.

I do not think it necessary to discuss, in this casé, the liability of' the city for the structure erected under chapter 339 of the Laws of 1892. So far as a temporary structure was concerned, as before stated, the railroad company Was authorized by-the act to maintain, such a structure. It was erected under such .authority granted, not to the commissioners, but to the railroad company, and it is clear that, they are liable for any damage .that it caused; ■.

I concur, therefore, with Mr. Justice Rumséy in'the reversal of the judgment.

Judgment reversed, new trial ordered, costs to ¡appellant to abide event.  