
    Pauline Wolf, Plaintiff, v. The Manhattan Railway Co., Defendant.
    (Supreme Court, New York Special Term,
    September, 1906.)
    Nuisance — Nature of public and private nuisances and liability therefor— Special damage.
    Street railways — Street railway companies, their franchises and right to use of streets — Extensions, additional tracks, etc. — Increasing speed and number of trains.
    Former adjudication—What matters are concluded — Matters necessarily involved — Interference with easements in abutting owner’s action.
    To entitle a person to maintain an action to abate a public nuisance he must show that he has thereby, sustained some special damage of a substantial nature.
    Where a railway company has acquired by release and conveyance the right to maintain an elevated structure with three tracks in front of plaintiff’s premises and operate trains thereon as the same was constructed, maintained and operated at the time of such conveyance, since it is the duty of the company to run trains as rapidly and frequently, consistently with public convenience and safety, as the construction of its road and rolling stock will allow, in the absence of proof that an increased speed is unusual, extraordinary and detrimental to public health and safety, no special injury nor damage to plaintiff may be predicated upon an improved service which comprehends an increase in the number and speed of its trains.
    Where, in an action brought by the plaintiff’s predecessor in title, in which he had recovered the usual abutting owner’s judgment against the defendant corporation, it was found, among other things, that the only interests or property rights of the plaintiffs in said street taken, appropriated or interfered with by the defendant were the easements of light, air and access in and over the street in front of their premises; an increase in the number and speed of the trains in front of plaintiff’s premises would not constitute a legitimate cause for grievance on her part for which she might assert an injury and consequent damage.
    Action, in equity, by the owner of premises on the westerly side of Ninth avenue, between Fifty and Fifty-first streets, in the city of New York, absolutely to enjoin the defendant in the operation of express trains upon the third or middle track on the elevated railway structure in front of said premises.
    J. Aspinwall Hodge, for plaintiff.
    C. A. Gardiner, for defendant.
   Greenbattm, J.

Plaintiff, as owner of premises situate on the westerly side of ¡Ninth' avenue, between Fiftieth and Fifty-first streets, in the city of Ffew York, brings this suit in equity, absolutely to enjoin the defendant in the operation of express trains upon the third or middle track on the elevated railway structure in front of said premises. The pertinent facts bearing upon the rights of the respective parties may be stated as follows: Plaintiff purchased her property in June, 1892. At that time defendant’s railroad in front of said property was constructed with three sets of tracks, the two outer ones being the customary north and south tracks used upon the elevated railway system, and the third an intermediate or middle track, the use of which it is here sought to enjoin. At the time of her purchase of said premises plaintiff’s predecessor in title, one Heinig, had recovered the usual abutting owner’s judgment against the defendant corporation, which thereafter and thereupon acquired by purchase the easements of said Heinig and plaintiff in and over ¡Ninth avenue in front of and appurtenant to the lot of land described in the complaint. The instrument of conveyance and release to the defendant, which was executed on February 15, 1893, however, contained the following words of limitation with respect to the easements intended to be relinquished by the grantors, to wit: “ For the construction, maintenance and operation of an elevated railroad on said street as the same is now constructed, maintained and operated.” For many years prior to 1892, and up to the year 1895, the middle track of defendant’s structure in front of plaintiff’s premises constituted part of a siding extending from Forty-ninth street to Fifty-third street. This was used by certain trains, which were switched upon it to permit certain other trains behind them to furnish a species of express service, by continuing their run upon the westerly track, under increased speed and without stopping at every station south of Fifty-ninth street. After the passage óf so-called express trains the local trains resumed their southerly course, regaining the westerly track at Forty-ninth street. From the somewhat unsatisfactory proofs upon this point it appears that in 1893 thirty-six express trains of the kind described passed daily in front of plaintiff’s premises, and it was a matter of not uncommon occurrence to have two trains stalled upon the siding awaiting the passage of a given express train. ¡During the year 189-4 the defendant extended the middle track south to Gansevoort street for a distance of about two miles, and since 1895 it has continuously used said middle track for the running of express trains. In 1902, when this action was commenced, seventy-two express trains daily used the middle track. Th 1892 the total number of daily trains, local and express, was 396, and in 1902, 637. The latest utterance of the Appellate Division of this department upon the right of the defendant to construct a middle track by an extension of the sidings, for the'special use of an express service, is found- in the recent decision in the case of Elizabeth Knoth against the Manhattan Railway Company, in which the court reaffirmed the illegality of such a construction. An absolute injunction forbidding the use of the said third track was, however, refused in that case, and plaintiff'was remitted to the alternative relief of an injunction only in case defendant failed to pay the plaintiff the damages fixed by the Special Term, upon a conveyance by plaintiff to defendant of the easements for the purposes of a middle track in and upon Kinth avenue in front of her premises. In the Knoth case the plaintiff commenced her suit against the defendant eight years after it began running express trains on the middle track, and in the present case about seven years elapsed since defendant’s first user for express service of the middle track, without any intimation on the part of plaintiff of any objection to such user. The attempted explanation of excuse for the delay in protesting against the defendant’s use of the third track or in bringing this suit, as embodied in the testimony of plaintiff’s counsel, is without the slightest probative force. This case may, however, be differentiated from the Iinoth case in that here the middle track was in existence in front of plaintiff’s property when she purchased it, and when she conveyed an;d released her easements in and upon Ninth avenue to defendant, whereas in the Knoth case the third or middle track was constructed during Knoth’s ownership of her premises, without her consent and without any compensation to her for the deprivation of light, air and access, of which she had been deprived by the defendant’s acts. The plaintiff in the case at bar coneededly is in no position to complain of the third or middle track construction in front of her premises, but only of its use for the running of express trains. To succeed in her contention it is incumbent upon plaintiff not only to show that the use of the middle track in front of her land was not within the fair contemplation of the terms of the release and conveyance by her to the defendant and of the rights of the defendant under its charter and the franchises acquired by it, but also that such user has produced substantial special injury or damage to her. The only testimony proffered by plaintiff bearing upon the element of special damages was to the effect that the express trains make more noise than the ordinary ones which stop at every station, and that the increased noise interferes with conversations and business carried on in plaintiff’s building. There was no proof from which a definite or even an approximate loss of rental or fee value of plaintiff’s premises may be deduced. It was not attempted to be shown that the express trains on the middle track produced greater noise than bad been occasioned by the passage of express trains on the westerly track under the former express service. It may, therefore, be inferred that the noise of passing express trains on the westerly track, which is nearer to plaintiff’s premises than the middle track, was at least as loud as that of the present express trains on the middle track. The defendant, as a public carrier of passengers, by its charter and franchises, assumed obligations to the pub- ‘ lie to transport its passengers as comfortably and safely and with as much speed as its facilities will permit. I am unaware of any limitations or restrictions imposed upon the defendant forbidding the running of its trains at the speed employed in its express service. Obviously, it would be the duty of defendant to run trains as rapidly and frequently, consistent with public convenience and safety, as the construction of its road and rolling stock would allow, and, in the absence of proof that the increased speed was unusual, extraordinary and. detrimental to the public health and safety, no special injury nor damage to an abutting owner may be predicated upon an improved sendee, which comprehended an increase in the number and speed of its trains. The fee of Ninth avenue is in the city of New York, and the plaintiff, under the rule applied in the Story case, 90 • N. Y. 122, had an easement in and upon the public avenue in front of her premises, which would be injuriously affected by the exclusive occupancy of a portion of the street hy the elevated railway structure contrary to the general use for street purposes to which the highway had originally been dedicated. But the defendant acquired from the plaintiff and her predecessor in title the right to maintain an elevated railway structure with three tracks in front of her premises, with the right to operate trains upon these tracks. It was not stipulated at what rate of' speed or to what extent the trains were to be run. It was stipulated that the easement released and conveyed by plaintiff to defendant was to be limited to the railroad “ as the same is now constructed, maintained' and operated,” and the plaintiff contends that the user of the middle track for express trains is outside of and not contemplated hy the terms of the release and conveyance. The effect to he given to the words of limitation just quoted must be determined by all the attendant circumstances surround: ing the execution of the instrument. A reference to the findings in the Heinig case which led to the execution and delivery of the conveyance and release in question shows that “the only interests or property rights of the plaintiff in said street, taken, appropriated or interfered with by the defendants are the easements of light, air. and access in and over the street in front of and appurtenant to the lot of land' described in the complaint herein;” that “ each of s.aid defendants was and is authorized to erect, maintain and operate the elevated railroad mentioned in the complaint herein, in ISTinth avenue, in front of and abutting upon the premises described in the complaint, as the same has been erected and is now maintained and operated;” that neither said railroad structure nor the trains running thereon have been a public or private nuisance;” that “ the defendants do noi make any undue or excessive noise in the operation of said railroad beyond what is necessary in the maintenance and operation of the same;” that “ the structure and operation of defendant’s railway have continued to be and are substantially the same at the present time as they were at the time of the actual acquisition by the plaintiff of the title to the premises in suit.” The traffic tables introduced in evidence show a considerable increase in the number of trains, both ordinary and express, from 1893 to 1902. The plaintiff has made no complaint against the increase in the number of trains. Her grievance is limited to the running of express trains on the middle track by reason of the noise made by these express trains. It has already been shown that it does not appear that the express trains on the middle track are noisier than those which had been previously operated on the westerly track, and it affirmatively appears from the findings in the Heinig case that the operation of defendant’s trains was not attended with undue or excessive noise.” It would seem from all the foregoing considerations that a reasonable inference would "flow that any annoyance to plaintiff by reason of the increase in the number and speed of the trains in front of her premises would not constitute a legitimate cause of grievance on plaintiff’s part, for which she may assert an injury and consequent damage based upon any wrongdoing on defendant’s part. I am also of opinion that the only easements of plaintiff having been specifically found to be those of light, air and access,” she is concluded, from asserting any damage due merely to noise in the operation of defendant’s trains, I am further of opinion that the words in the release, “ as the same is now constructed, maintained and operated,” had no reference to any such increase in the speed of trains as is shown in this case, but that they were designed not to reléase to defendant any unlimited use of the highway, but to restrict the easement to a railway of substantially the character of that in existence and operation at the time of the execution of the conveyance. Assuming, also, as I do, that the extension of the middle track for a distance of two miles beyond the length of the original siding and the use of said extended middle track for express trains to be an unlawful and unwarranted use of the highway so as to constitute them a ■ public nuisance, I nevertheless find that so far as the plaintiff is concerned she has failed to maintain the burden of proving that she has sustained any special damages to her property by the unlawful occupation by the defendant of the highway below her premises. To entitle plaintiff to maintain an action to abate a public nuisance, she must show that she has thereby sustained some special injury of a substantial nature. Adler v. Metropolitan Elevated R. Co., 138 N. Y. 173. Without considering any other points, I am of opinion that plaintiff has failed to establish a cause of action, and her complaint is dismissed on the merits, with costs to the defendant. The objections' to the admission in evidence of the Heinig judgment roll 'and the release and conveyance of plaintiff to defendant are overruled, with appropriate exceptions to plaintiff.

Ordered accordingly.  