
    Ephraim Drucker, Resp’t, v. Manhattan R. Co. and Metropolitan El. R. Co., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    1. Elevated railroads—Action against—Lack of title in plaintiff MUST BE RAISED ON TRIAL.
    Where, in an action against an elevated railroad, the point that the plaintiff did not own the fee to the middle of the street, was not taken upon the trial, it is too late to raise or discuss it in the court of appeals.
    2. Same—Damages—Proof of.
    The damages recoverable from an elevated railroad for trespassing upon abutting owners, by its use of the street, includes whatever of injury or inconvenience results from the structure itself, or is incidental to its use.
    3. Same—Elements of damage.
    Smoke and gasses, ashes and cinders, the drippings of oil and water and the frequent columns are elements of damage even though the necessary concomitants of the construction and operation of the road, and not the product of negligence.
    
      4. Same—Lessening op business.
    Proof was made that since the building of the railroad, trade and business in the street had fallen off and the current of custom lessened in volume and changed in character. Meld, admissible, that to ascertain how much the plaintiff was harmed by the impairment of his easement required a survey of the general facts, and a deduction from them of the particular and special damage to be estimated.
    Appeal from judgment of general term of superior court of the city of New York, affirming a judgment of the trial term in favor of plaintiff. The action was for the impairment of an easement of light, air and access, appurtenant to four buildings belonging to plaintiff, in Division street, in New York city, caused by the erection and operation of defendents railroad.
    
      Julien T. Davies, Edward S. Rapallo, and Charles A. Gardiner, for app’lts; Roger Foster, for resp’t.
    
      
       Affirming 19 J. & S , 49.
    
   Finch, J.

This case was tried upon the assumption that plaintiff owned the fee to the center of Division street; or if not, that he had in it, as abutting owner, an easement of light, air, and convenience of access. The point now made— that plaintiff did not own the fee because Division street was not shown to be identical with that laid out by Rutgers and De Lancey, and was not the owner of an easement, because the title to the street presumptively, from its age, came to the city from a Dutch ground brief, or an English grant, and was an absolute fee, unclouded by any trust—was not taken upon the trial either by objection to evidence, or a motion for a nonsuit, or by requests to charge or exceptions to charge as made. It seems to have been conceded all through the trial that plaintiff had either a fee or an easement in the street, and that for the purposes of the action it was immaterial which, and so the litigation was confined to the question of damages and its true measure. It is too late now to raise or discuss in the case the point suggested. If it had been raised on the trial, the identity of the street with that of Rutgers and De Lancey might have been clearly shown, or the facts of its origin accurately developed.

The further questions raised respected the proof of damages. The action shaped itself into one of trespass for the occupation and impairment of plaintiff’s easement for the period beginning with the construction of the road, and ending with the commencement of the suit. In the case of Lahr v. Metropolitan Elevated Ry. Co. (104 N. Y., 268; 4 N. Y. St. Rep., 340), three out of five members of the court, voting in the case, put the rule of damages upon the proposition that the road, and its operation, imposed upon the street an unauthorized use, and were illegal and wholly a trespass as against abutting owners not duly compensated. As a logical consequence, the majority held that the damages recoverable included whatever of injury or inconvenience resulted from the structure itself, or were incidental to its use. This rule- opened the door to proof of every injury traceable to the road or its operation, and was said to be that, “however the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass, rendering the wrong-doer liable for the consequences of his acts. Under that rule none of the evidence offered was inadmissible; for it all tended to show how far and in what manner the plaintiff had been injured by the trespass. But the then minority of the court favored a narrower rule of damages. Yielding, as in duty bound, to the. authority of the Story Case, they admitted that, as far as the road, by its construction or use, took or destroyed or impaired the abutter’s easement of light, air and access, it was a trespasser; but maintained that beyond that, and for consequential damages which did not touch the easement, or invade its enjoyment, it was not a trespasser, but stood under the protection of the general rule freeing it from liability for any incidental injury or annoyance resulting from its. careful and lawful operation. But even that restricted rule, which has not, as yet, received the sanction of the court, appears not to have been violated upon the trial of this action. The judge charged “that nothing is recoverable-except for interference with and occupation of plaintiff’s light, air and access;” that no damages could be recovered for negligence in the construction or operation of the road, since no such cause of action was pleaded; and that it made-no difference in the measure of damages that the defendant had not acquired title by condemnation proceedings. The appellant does not complain of this charge, or the measure of damages applied, but does complain that evidence was admitted going quite beyond its boundaries. We are of a. different opinion.

Objection was made to the proof that, since the building of the elevated road, the trade and business of Division street had fallen off, and the current of custom had largely lessened in volume, and changed in character; and upon the ground that injury to the plaintiff, and not to his neighbors, was alone material. But, to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was harmed by the impairment of his easement, required a survey of the general facts, and a deduction from them of the particular and special damage to be estimated. The evidence tended to show that, by reason of the falling off of business, rental values on the street had seriously diminished; but also established that this result was due, in part, to a tendency of business to move up town, with which the elevated roads had nothing to do. How much of the-diminution of rental values was due to the construction and. operation of the elevated roads, and what part of that por tion was caused by the impairment of plaintiff’s easement, was the problem of damages, and could only be solved by taking into view the general loss, and its nature and extent, and then estimating out of it the part or share suffered by the plaintiff from the taking or impairment of his easement. But that, it is said, could not be done with any certainty or precision, and left the jury to guess and speculate in reaching a result. It is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting and inadequate. That is notably true in many cases of personal injuries. Such evidence as can be .given should be given, and facts naturally tending to elucidate the extent of loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible, has been given, the good sense of a jury must provide the answer; and it is no defense that such judgment involves more or less of estimate and opinion having very little to guide it. That criticism has no force in the mouth of the wrong-doer when all reasonable data have been furnished for consideration.

If we inquire further into the details of the injury suffered, we shall find that no proof was obiected to which should have been rejected, even under the narrower and more restricted rule above suggested. Smoke and gases, ashes and cinders, affect and impair the easement of air. The structure itself, and the passage of cars, lessen the easement of light. The drippings of oil and water, and possibly the frequent columns, interfere with convenience of access. These are elements of damage, even though the necessary concomitants of the construction and operation of the road, and not the product of negligence; for they abridge the landowner’s easement, and to that extent, at least, are subjects for redress in an action for damages. There remains but the annoyance of noise and vibration of the buildings among the specific injuries mentioned on the trial. But no objection or exception selected these out as improper elements in the proof of damage, and the question which might involve the difference of opinion among us is not here presented.

The judgment should be affirmed, with costs.

All concur, except Rapallo, and Peckham, JJ., not voting.  