
    Jane C. Jewett, Resp’t, v. The Union Elevated Railroad Company, App’lt. The Atlantic Avenue Railroad Company, Resp’t, v. The Union Elevated Railroad Company, App’lt. Mary J. Hussey, Resp’t, v. The Union Elevated Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Elevated railroads—Injunction—Rights of abutting owners—Proper REMEDY.
    A bill in equity to restrain the taking of a street for the purpose of an elevated railroad under an act of the legislature, giving permission therefor, is a proper remedy in cases where compensation for such taking is not made to an abutting owner.
    2. Streets and highways—Rights of abutting owners.
    An elevated railroad constructed and opened in a street is an employment of the street for other than street purposes, and a perversion of its use. Abutting owners stand upon the same principle as private owners of the fee of land taken for public use. They own an easement in the street, the taking of which entitles them to compensation.
    Appeal from a judgment of the Kings county special term, enjoining and restraining the defendant from entering upon the plaintiff’s premises.
    
      B. F. Macy, for resp’t; Wingate & Cullen, for app’lt.
   Barnard, P. J.

—The court of appeals in the case of Story v. N. Y. Elevated R. R. Co. (90 N. Y., 122), decided that a bill in equity to restrain the taking of a street for the purpose of an elevated railroad, under an act of the legislature giving permission therefor, was a proper remedy in cases where compensation for such taking was not made to an abutting owner on the street.

The same decision was made in Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y., 268; 4 N. Y. State Rep., 340.

Under these cases there is no doubt but that the defendant road as proposed to be constructed and opened, is to be an employment of the street for other than street purposes and a perversion of its use. The plaintiffs are entitled to an easement in the street, and the mere taking of the street entitles them to compensation. The rejection of the evidence offered to show that the premises of the several plaintiffs was not depreciated, was not therefor erroneous. The abutting owners stand upon the same principle as a private owner of the fee of land taken for public use. Compensation must be first made for what is taken, to be determined by commissioners appointed for the purpose of estimating and fixing the damages.

The judgment should, therefore, be affirmed with costs.

Dykman, J., concurs. Pratt, J., dissenting.  