
    Anna C. Larney, Respondent, v. The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Appellants.
    
      Elevated railroad in Pande avenue, New York city — extent of the right of the New York and Han'lem Bail/road Company to use Park avenue — measure of damages — scope of an injunction.
    
    The Harlem Railroad Company, by the condemnation proceedings instituted against one Benson, in 1833, acquired a strip twenty-four feet wide in the center of Park avenue, in the city of New York, with the right (so far as that strip was concerned) to place its railroad tracks upon the surface of the street, or to depress them or to place them upon the present viaduct. Per McLaughlin, J,
    The railroad company also acquired a prescriptive right to occupy so much of the avenue as it used and occupied for railroad purposes from 1873 until February 16, 1897, when the construction of the present viaduct was commenced. Per McLaughlin, J.
    The damages which an owner of property abutting on Park avenue sustained by the erection of the present viaduct are the value of the easements of light, air and access, which have been impaired by that part of the structure placed or erected upon that portion of the avenue lying outside of the twenty-four-foot strip, and this only to the extent that the use to which this portion of the avenue has been put, is in excess of or different from that to which it was subjected and used from 1873 to 1897. Per McLaughlin, J.
    The injunction granted in the action to recover such damages should not restrain the defendants from maintaining that part of the viaduct which is located on the twenty-four-foot strip. Per McLaughlin, J.
    Appeal by the defendants, The New York and Harlem Railroad Company and another, 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 22d day of August, 1900, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Ira A. Place, for the appellants.
    
      Joseph A. Flanvnery, for the respondent.
   McLaughlin, J. :

This action was brought for an injunction against the maintenance and operation of defendants’ railroad structure on Park avenue in the city of New York in front of the plaintiff’s premises and to recover damages for such maintenance and operation. It is unnecessary to state the facts, inasmuch as they are substantially the same, so far as the legal rights of the parties are concerned, as those in Birrell v. N. Y. & H. R. R. Co. (41 App. Div. 506); Conabeer v. N. Y. C. & H. R. R. R. Co. (156 N. Y. 474) and Lewis v. N. Y. & H. R. R. Co. (162 id. 202).

The defendants claim title to the strip of twenty-four feet through, the center of Park avenue by condemnation proceedings taken against Benson in 1832, and the plaintiff by mesne conveyances from one Bruce, to whom Benson conveyed the premises now owned by the plaintiff, by deed bearing date January 27, 1851. The defendants also claim title to the additional portion of the avenue occupied by them from 1873 to 1897, by prescription, they having used the same for railroad purposes. By the condemnation proceedings the Harlem Railroad Company, under the Birrell Case (supra), which follows the rule laid down in the Conabeer Case (supra), acquired a strip twenty-four feet wide in the center of Park avenue, in front of the plaintiff’s premises, with the right to enter upon, take and use the same for all proper purposes incident to or connected with the operation of its railroad, and, as we held in that case, defendants could, for that purpose, place their tracks upon the surface of the street, depress them, as they did by legislative direction in 1872 (Chap. 702), or place them upon a viaduct as directed by Legislature in 1892 (Chap. 339). And under the Lewis case it was held that the defendants acquired a prescriptive right to occupy so much of the avenue as they used and occupied for railroad purposes from 1873 until February 16, 1897, when the construction of the present viaduct was commenced. To the extent of this user by the defendants, says Judge Vann, the plaintiff, through the acquiescence of herself and her grantors, had parted with her rights, when the present structure was erected. She could claim no damages on account of the old structure so long as it stood there. She could claim no damages on account of any new structure erected in the same place, within the same lines and for the same purpose, which inflicted no more injury upon her property than the old. She could raise no question except such as she could have raised had she given a deed expressly assenting to the erection of the old structure. (Conabeer Case, supra.). 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.” (Lewis Case, supra, 224, 225.)

The damages which the plaintiff has sustained by reason of the erection of the structure of which she now complains, and for which the defendants are liable, is the value of her easements of light, air and access which have been impaired, or of which she has been deprived by that part.of the structure placed or erected upon the portion of the avenue lying outside of the twenty-four-foot strip, and this onl/y to the extent that the use to which it has been put by the erection of the steel viaduct thereon is in excess of or different from that to which it was subjected and used by defendants for railroad purposes from 1873 to 1897. This, as we understand it, is precisely the rule applied by the learned trial court in awarding the damages which he did. He found, as a fact, that said defendant railroad companies, * * * acquired the right without liability to the plaintiff, to have, maintain and use their railroad and railroad structures as the same were maintained and used prior to February 16th, 1897, and also to have, maintain and use their railroad structure at any height which they might be authorized by the Legislature of the State of New York, within the centre 24 feet of Park avenue.”- And that the steel viaduct erected by the defendants “ and the operation of trains thereon are and since February 16th, 1897, have been a continuous trespass upon the plaintiff’s easements of light and air appurtenant to her said premises, and solely in consequence of said trespass, and aside from any other causes, the rentable or usable value of said premises was depreciated from said date down to May 22d, 1900, in the sum of $300 below what said rental value would have been during said period, if the defendant’s railroad structure had been erected only within the centre 24 feet of Park avenue in front of plaintiff’s premises and the fee value * * * has been * * ■ * depreciated in the sum of $1,000 below what said fee value would have been on said date if the defendant’s railroad structure had been erected within the centre 24 feet of Park avenue in front of the plaintiff’s premises. * * * That the said sums awarded as damages are exclusive of any damages that would have been occasioned to plaintiff’s premises by the maintenance and use of the defendant’s railroad and structures had there been no change in the same, or had the said viaduct structure been confined within the centre 24 feet, at its present height, in said Park avenue, for which damages so resulting from the maintenance and operation of said railroad structure as aforesaid, the defendants are not liable by reason of the proceedings taken by the defendant, The New York and Harlem Railroad Company, terminating in a final order dated on or about January 8th, 1832.”

The judgment entered provided, among other things, that the defendants “be enjoined from maintaining or in anyway using that part of their elevated railroad structure and its appurtenances within the centre 24 feet of Park avenue in front of the plaintiff’s premises * * * and be further enjoined to take down and remove that part of the same standing outside Of said 24 foot strip, from in front of said premises.”

The rule of damages is the correct one under the cases cited and the findings made. The injunction, however, is too broad. The defendants having the right to erect, maintain and use a structure for the purposes of their railroad, at any height they see fit, upon -the twenty-four-foot strip, cannot be enjoined from exercising their legal rights in this respect, and therefore, that portion of the judgment which enjoins them from using that portion of their structure should be stricken out. "W e have examined the other questions raised by the appellants, but find no error in any of them which would justify a reversal of the judgment.

The judgment appealed, from, therefore, must be modified as indicated, and as thus modified it is affirmed, without .costs to either party.

O’Brien, Ingraham, Hatch and Laughlin, JJ., concurred in result.

Judgment modified as - directed in opinion, and as modified affirmed,, without costs to either party.  