
    Edith Kane, Respondent, v. The New York Elevated Railroad Company, Impleaded, etc., Appellant.
    
      It seems that streets in a city, laid out and opened under charter provisions, may, under legislative and municipal authority, be used for any public use consistent with their preservation as public streets, although the use may be new, may impose an additional burden and may subject lot owners to injury, and the mere disturbance of rights of light, air and access occasioned thereby is damnum absque injuria.
    
    
      It seems also, the use of a city street for an ordinary horse or steam railway, unless it practically closes the street, is lawful, and abutting owners, whose lots are bounded by the side of the street, have no legal redress, in the absence of negligence in the construction or operation of the railroad, although it may seriously interfere with the value of their property.
    
      The owners of lots abutting on a city street, the fee of which is in the municipality, have, by virtue of proximity, special and peculiar rights, facilities and privileges therein in the nature of easements, which are not common to the citizens at large, and constitute property of which they cannot be deprived by the legislature or the municipality, or both, without compensation; and any use of such street inconsistent with its use as a public street, which interferes with those easements, is a taking of property, for which said owners are entitled to compensation to the extent of the damages occasioned thereby.
    'Conceding that, under the civil law, which was the law of Holland during its occupation of Manhattan island, the sovereign is vested with the absolute title to the soil of all streets and highways within his dominions, that no private rights or easements exist therein, and that an owner of land adjacent to a street acquires no right, by reason of adjacency or from the fact that he has built upon the street in reliance upon its continued existence, to have it kept open as a street or way; conceding also that the English crown succeeded to the rights and powers of the States General as to all streets laid out during the Dutch occupation, these rights have been so modified by grant, covenant and legislation as to vest in abutting owners rights in such streets in the nature of easements of which they may not be deprived without compensation.
    While the city of New York owns the fee _of the lands occupied by the streets of that city, whether laid out under the Dutch regime, during the colonial period, or after the organization°of the state government, its tenure is in trust for street uses.
    As to streets then existing, this trust is declared in the Dongan charter which vested the title in the municipality; the streets opened by the Dutch are included in the grant, and so, are impressed with and are held under the trust.
    If the trust declared by the act of 1813 (3 E. L. 49, § 177), as to streets opened under it, is in legal construction any broader than that declared by the Dongan charter, then under and by virtue of that act, the city thereafter was to and does hold the streets then in existence upon the same trust and tenure as the new streets opened under it.
    The trust so created "is not only for the benefit of the public at large, but for the special benefit of abutting owners, and it is to be presumed that upon the faith that the streets shall be forever kept open, such owners have acted in improving and building on their adjoining land.
    The legislature has no power to abrogate this trust or authorize its violation, by devoting a'street to other and inconsistent purposes, without making compensation to abutting owners.
    In an action brought by an owner of a lot abutting on a street in the city of New York, who held under a conveyance from the city which bounded the lot by the side of the street, to recover damages alleged to have been sustained by the maintenance and operation, by defendants,' of an elevated railroad on the said street in front of his lot, it appeared that said street was a highway prior to 1664, opened during the Dutch occupation of Manhattan island. The court charged the jury “that whether the street is an old Dutch street or one laid out since the American government obtained sway, the rule of damages is the same.” Held, no error,
    (Argued December 3, 1890;
    decided January 13, 1891.)
    it was admitted that the fee of that portion of the bed of the street opposite plaintiff’s lot had, prior to the grant under which plaintiff holds, been granted to owners of lots on the opposite side of the street. Held, that this did not affect plaintiff’s right to damages, as defendant does not claim under the grantees, and if the fee of the-street is in private persons, their title is nominal merely, and as against them plaintiff has a prescriptive right; that such title could not prevent the acquisition by plaintiff and his predecessors of rights against the public in the nature of easements.
    
      Gould v. H. B. B. B. Go. (6 M. Y. 522), questioned.
    
      Lansing v. Smith (4 Wend. 9), distinguished.
    The court allowed.the jury to consider the noise created by defendant’strains as an element of damage. Held, no error; that any consequential injury to plaintiff’s property from the acts of defendant, while engaged in an unauthorized occupation and use of the street, might be considered. (Eakl, J., dissenting.)
    Appeal, by defendant'^The New York Elevated ¡Railroad1 Company, from judgment of the General Term of the Court, of Common Pleas for tlie city and county of New York, made June 3, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict and also an order denying a-motion for a new trial as.to the said defendant, and reversed the same as to the defendant The ¡Metropolitan Elevated ¡Railway Company.
    This action was brought to recover damages to plaintiff’s, property on Pearl street in the city of New York, alleged to-, have been caused by the erection and operation, by defendants, of an elevated railroad therein.
    The facts, so far as material, are stated in the opinion.
    
      John F. Dillon and Julien T. Davies for appellant.
    Plaintiff cannot maintain this action unless she has proved title to rights-of private property in Pearl street, which are beyond legislative regulation or control. (Const. N. Y. art. 1, § 6; Story v. N. 
      Y. E. R. R. Co., 90 N. Y. 143; Dillon on Mun. Corp. §§ 587, 657, 658, 995, 998; P. R. Co. v. Miller, 131 U. S. 75; H. S. R. Co. v. Williamson, 136 id. 121; Lewis on Em. Domain, §§ 9, 10, 11; Cooley’s Const. Lim. 87, 88, 171; Hoffman on Title of New York City to Corporate Property, 335; Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505, 512, 516; Gould v. H. R. R. R. Co., 6 id. 522; Uline v. N. Y. C. R. R. Co., 101 id. 98, 109; Lansing v. Smith, 8 Cow. 146; 4 Wend. 9; Radcliffe v. City of Brooklyn, 4 N. Y. 195; T. Co. v. City of Chicago, 99 U. S. 635; Lahr v. M. E. R. Co., 104 N. Y. 258; Drucker v. M. E. R. Co., 106 id. 157; Laws of 1875, chap. 606, § 26; In re N. Y. E. R. Co., 70 N. Y. 327, 354; Philip v. Gallant, 62 id. 265; 106 id. 159, 162; Wager v. T. U. R. Co., 25 id. 529; P. R. R. Co. v. Miller, 132 U. S. 75; H. S. R. R. Co. v. Williamson, 136 id. 121; Bruce v. D. & H. C. Co., 19 Barb. 371; Francis v. Schoelkopf, 53 N. Y. 152.) In the time of the Dutch occupation of Manhattan island the fee or ownership of the whole bed of Pearl street was granted to the individual owners of the land on the side opposite from plaintiff’s. It is still owned by their successors, free from any private easement in favor of the plaintiff. (Sweetman v. Prince, 62 Barb. 256; Wangler v. Swift, 90 N. Y. 38, 44, 45; Elsey v. Metcalf, 1 Den. 323, 326; Rogers v. Murray, 3 Bosw. 357; 2 Black. Comm. 106; G. L. Co. v. Calkins, 62 N. Y. 388; Pearsall v. Post, 20 Wend. 126; People ex rel. v. Newton, 112 N. Y. 396, 399; Dermott v. State, 99 id. 101; Mayor v. B., etc., R. Co., 97 id. 275; C. R. B. Co. v. W. B. Co., 7 Pick. 344, 461, 462; 11 Pet. [U. S.] 420, 544-547; Blankley v. Wistanley, 3 T. R. 279; Langdon v. Mayor, etc., 93 N. Y. 129; Gould v. H. R. R. R. Co., 6 id. 522; King v. Mayor, etc., 102 id. 171; K. C. F. Ins. Co. v. Stevens, 101 id. 511.) Pearl street having been an open public highway during the Dutch occupation of Manhattan island, was, according to the law then ajDplicable, owned by the sovereignty, free from any private trusts or easements whatever, in favor of the owners of land abutting thereon. Ho such easements have since been acquired by the plaintiff, or any of lier predecessors, which could authorize her to interfere with the control of the street by the legislature and the city of Hew York. (Wadsworth v. B. H. Co., 15 Barb. 93; U. S. v. Perot, 8 Otto, 428; Fremont v. U. S., 17 How. [U. S.] 542; Wills v. Stout, 9 Cal. 480, 494; Howard v. Moot, 64 N. Y. 262, 271; People v. Snyder, 41 id. 397, 398; Dunham v. Williams, 37 id. 251; Mayor, etc., v. Hart, 95 id. 443, 450—452; Canal Comrs. v. People, 5 Wend. 423,446, 461, 462; Denton v. Jackson, 2 Johns. Ch. 320, 324; Hoffman’s Treatise [2d ed.] 98, 304-306, 311, 312, 330-333; Renthorp v. Bourg, 4 Martin [La.] 97, 137; Mitchell v. Bass, 33 Tex. 259; McClenachan v. Curwen, 6 Binn. 509; Smith v. City of Rochester, 92 N. Y. 463, 482, 483; Canal Appraisers v. People, 17 Wend. 609; Kempshall v. Canal Comrs., 26 id. 404; Gould v. H. R. R. R. Co., 6 N. Y. 522, 538, 543; People v. Canal Comrs., 33 id. 461, 469-472; People v. Ferry Co., 68 id. 71, 78; 4 Merlin, Repertoire de Jurisprudence, tit. “ Chemin,” 118; 1 Frederickian Code, 401, 402; Taylor’s Elements of Civil Law, 463-472; Code of Louisiana, art. 700-703; Sander’s Institutes of Justinian, 36; Tompkins & Jenkins’ Roman Law [1870], 57; Ames’ Civil Law of Rome, 124, 125; Mackensie’s Roman Law, 156; 1 Van Leuwen’s Roman-Dutch Law [1881], chap. 1, § 12; Maasdorp’s Dutch Jurisprudence [Grotius], 226; 1 Domat’s Civil Law [Cush. ed. 1850], 150, art. Il6; Savigny on Possession [Perry’s ed.], 85; Campbell’s Roman Civil Law [1878], 33; Xiques v. Bujac, 7 La. Ann. 505; DeAmes v. Mayor, etc., 5 id. 85; Hatch v. Amault, 3 id. 482; Harrison v. N. O. P. R. Co., 34 id. 462; Hill v. C., etc., R. R. Co., 38 id. 599; Lansing v. Smith, 8 Cow. 146, 160; 4 Wend. 9; People v. Tibbetts, 19 N. Y. 523, 527, 528; Langdon v. Mayor, etc., 93 id. 129, 144, 641; Dermott v. State, 99 id. 101, 107; People v. F. Co., 68 N. Y. 71, 78; McMurray v. City of Baltimore, 54 Md. 104; Dugan v. City of Baltimore, 5 G. & J. 375; Haight v. City of Keokuk, 4 Ia. 199; Barney v. City of Keokuk, 94 U. S. 324; Rowan v. City of Portland, 8 B. Mon. 700; Barney v. City of Baltimore, 1 Hughes, 118; Coffin v. City of Portland, 11 Saw. 600; 27 Fed. Rep. 412; Dillon on Mun. Corp. § 634; C. R. B. Co. v. W. B. Co., 14 Pet. 544; Smith v. Lansing, 4 Wend. 28; Wheeler v. Clark, 58 N. Y. 267, 270; Burbank v. Fay, 65 id. 65; B. P. Comrs. v. Armstrong, 45 id. 234; W. Cemetery v. R. R. Co., 68 id. 591, 592 ; K. C. F. I. Co. v. Stevens, 101 id. 411; City of Brooklyn v. Copeland, 106 id. 496-501; Kellinger v. F. S. S. R. R. Co., 50 id. 206; Laws of 1875, chap. 606, § 26; Heyward v. Mayor, etc., 7 N. Y. 314; McGee’s Appeal, 114 Penn. St. 470; Dillon on Mun. Corp. [4th ed.] §§ 651, 652, 666; Stockton v. City of Newark, 44 N. J. Eq. 791; Astor v. Mayor, etc., 5 J. & S. 539; In re Trustees, etc., 31 N. Y. 574; Howell v. City of Buffalo, 37 id. 267; Litchfield v. Vernon, 41 id. 123; Allen v. Drew, 44 Vt. 187; R. R. Co. v. Connelly, 10 Ohio [N. S.] 159; White v. People, 94 Ill. 64; Warren v. Henly, 31 Ia. 40; 2 Dillon on Mun. Corp. §§ 587, 738.) Defendants are not liable upon the theory that their railway is a nuisance. (Uline v. N.Y.C. & H. R. R. R. Co., 101 N. Y. 98, 107; Radcliffe v. Mayor, etc., 4 id. 195; Davis v. Mayor, etc., 14 id. 506; Bellinger v. R. R. Co., 23 id. 42; Kellinger v. R. R. Co., 50 id. 206; Rex v. Pease, 4 Barn. & Adol. 30; Vaughan v. T. V. R. Co., 5 H. & N. 679; H. R. Co. v. Brand, L. R. [4 Eng. & Ir. App.] 171; Laws of 1867, chap. 489; Laws of 1868, chap. 855; Laws of 1875, chap. 595; In re N. Y. E. R. Co., 70 N. Y. 327; P. R. Co. v. Lippincott, 116 Penn. St. 472; P. R. Co. v. Marchant, 119 id. 541; Dillon on Mun. Corp. §§ 987, 995.) The Dutch was as matter of fact, the sovereign government of Manhattan island prior to 1664, and the Dutch law then prevailed there. (Wager v. T. U. R. Co., 25 N. Y. 529; Mitchell v. U. S., 9 Pet. 712, 733; Wetmore v. Story, 22 Barb. 440; 37 N. Y. 253; Smith v. City of Rochester, 92 id. 482, 483; Dunham v. Williams, 37 id. 253, 254; Lansing v. Smith, 8 Cow. 146; 4 Wend. 9; Gould v. H. R. R. R. Co., 6 N. Y. 522.) Plaintiff could not recover any damages, since, during the whole period covered, she was out of possession of the premises. (Dean v. M. E. R. Co., 
      119 N. Y. 540; Webb v. Odell, 49 id. 583, 585; Cook v. Whipple, 55 id. 157; Winslow v. Bliss, 3 Lans. 223; A. B. & C. Co. v. Pratt, 10 Hun, 445.) The learned trial judge erred in refusing to allow the defendants to prove that other buildings similar to the one in suit, and not far from it, upon the same street, but not affected by the railway, had sustained the same, diminution in rental value as the premises in suit. (People v. Kemmler, 119 N. Y. 580; Rohrer on Railroads, 379; In re N. Y., L. E. & W. R. Co., 27 Hun, 151, 155; Laflin v. C., etc., R. Co., 33 Fed. Rep. 415, 423; Ham v. City of Salem, 100 Mass. 350, 352; Roberts v. City of Boston, 149 id. 346, 350; Paine v. City of Boston, 4 Allen, 168; A., etc., R. Co. v. Schneider, 127 Ill. 144, 151; Provision Co. v. City of Chicago, 111 id. 651; Town of Cherokee v. T. L. Co., 52 Ia. 279; Moal v. Mayor, etc., 5 Md. 314, 324; Watson v. M., etc., R. Co., 57 Wis. 332, 350; Washburn v. M., etc., R. Co., 59 id. 364, 377; March v. P. R. Co., 19 N. H. 372, 377; McGean v. M. R. Co., 117 N. Y. 219; Avery v. N. Y. C. & H. R. R. R. Co., 30 N. Y. S. R. 471; Coleman v. People, 58 N. Y. 555; Starbird v. Barrows, 43 id. 200, 204; Havemeyer v. Havemeyer, 11 J. & S. 506, 521; People v. Fernandez, 35 N. Y. 59; Tilton v. Miller, 65 Penn. St. 388; Folkes v. Chadd, 3 Doug. 157; Booth v. C. M. Co., 74 N. Y. 15.) The trial judge erred in instructing the jury that they might allow damages for injuries caused by the noise” due to the operation of the defendant’s railway. (Jackson v. Van Slyke, 52 N. Y. 648; H. Ins. Co. v. W. T. Co., 51 id. 93; Wangler v. Swift, 90 id. 38, 45; Stone v. Flint, 16 J. & S. 498.)
    
      G. Willett Van Nest for respondent.
    The plaintiff has a cause of action. (Story v. N. Y. E. R. R. Co., 90 N. Y. 143, 149; Lahr v. M. E. R. Co., 104 id. 287; Pond v. M. E. R. Co., 112 id. 188; Hussner v. Brooklyn E. R. Co., 114 id. 437; Shepard v. M. R. Co., 117 id. 448; Abendroth v. N. Y. E. R. Co. 122 id. 1; Fobes v. R., W. & O. R. R. Co., 121 id. 503; Hine v. N. Y. E. R. Co., 7 N. Y. Supp. 464 
      Jewett v. U. E. R. Co., 15 N. Y. S. R. 878; Methodist v. Brooklyn, 46 Hun, 530; Millburn v. Forster, 27 id. 568; City of Oswego v. Oswego Canal, 6 N. Y. 257; In re 11 th Avenue, 81 id. 446; Taylor v. Hopper, 62 id. 649; Wiggins v. Cleary, 49 id. 348; Cox v. James, 45 id. 559; Livingston v. Mayor, etc., 8 Wend. 99; Laws of 1793, chap. 42; Laws of 1813, chap. 414; Thomp. on Trials, § 2402; Horton v. Bloom, 1 J. & S. 123.) The defendant is liable for all the damages which naturally result from the illegal maintenance and use of the structure, including noise. (Lahr v. M. E. R. Co., 104 id. 268, 295; Ireland v. M. R. Co., 20 J. & S. 460; Taylor v. M. R. Co., 23 id. 555; Ode v. M. R. Co., 9 N. Y. 338; Ehrgott v. Mayor, etc., 96 N. Y. 281; 1 Sedg. on Dam. 34; In re City of Poughkeepsie, 63 Barb. 151; In re City of Boston, 31 Hun, 461; In re City of Utica, 56 Barb. 464; Bangor v. McComb, 60 Me. 290.) The Statute of Limitations was properly applied. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Arnold v. N. Y. C. & H. R. R. R. Co., 55 id. 661; Wright v. Syracuse, 49 Hun, 445; Colrick v. Swinburne, 105 id. 503; Silsby v. State, 104 id. 569.) In an action of trespass the plaintiff should recover for all the consequences of the trespass, that is, the illegal-occupation of the street, for until compensation is made the occupation is without authority, that being a condition precedent. (Laws of 1850, chap. 140; S. A. R. R. Co. v. Kerr, 72 N. Y. 333; In re Comrs., 56 id. 153-157; Lahr v. M. E. R. Co., 104 id. 295; In re City of Utica, 56 Barb. 464; In re City of New York, 15 Hun, 63; In re N. Y., W. S. & B. R. R. Co., 29 id. 611; In re Prospect, 13 id. 346.) The-plaintiff was entitled to recover for the whole period of six years previous to the bringing ot the action. Her rights were not affected by the fact that there was an outstanding lease from May, 1882. (Francis v. Schoelkopf, 53 N. Y. 152; Taylor v. M. E. R. Co., 18 J. & S. 301; Pollit v. Long, 58 Barb. 20.) The plaintiff’s recovery is not confined to the damages caused by the structure. (Lahr v. M. E. R. Co., 104 N. Y. 268; House v. Metcalf, 27 Conn. 631; Cobb v. Smith, 38 Wis. 21; Addison on Torts, 159; Waterman on Trespass, § 822.) That abutting owners have such a special interest or property in the street on which their premises abut that they may restrain any use inconsistent with street uses to the injury of their premises, and that interest or property which abutting •owners have in streets on which their premises abut is a property right protected by the Constitution and cannot be taken without compensation. (Adams v. Rivers, 11 Barb. 390; Wood on Nuisances, 739; Wakeman v. Wilbur, 21 N. Y. S. R. 556; Fletcher v. Auburn, 25 Wend. 463; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; Law v. M. E. R. Co., 14 J. & S. 138; Mahady v. Bushwick, 91 N. Y. 153; Hussner v. Brooklyn, 114 id. 437; Story v. N. Y. E. R. Co., 90 id. 122; Lahr v. M. E. R. Co., 104 id. 268, 287; Pond v. M. E. R. Co., 112 id. 188; Shepard v. M. E. R. Co., 117 id. 448; Kane v. N. Y. E. R. Co., 25 N. Y. S. R. 587; Mortimer v. N. Y. E. R. Co., 6 N. Y. Supp. 898; Hine v. N. Y. E. R. Co., 7 id. 464; In re 11th Avenue, 81 N. Y. 436; S. A. R. R. Co. v. Kerr, 72 id. 330; Radcliffe v. Mayor, etc., 4 id. 20; Fobes v. R., W. & O. R. R. Co., 121 id. 550; Williams v. N. Y. C. & H. R. R. R. Co., 16 id. 197; Craig v. City of Rochester, 39 id. 404; Kellinger v. F S. S. R. Co., 50 id. 208; People v. Kerr, 27 id. 215.)
    
      Henry A. Forster and John A. Weekes, Jr., for respondent.
    As the defendant did not prove what the law of Holland was as to the ownership of streets at the time that this street was laid out, but merely obtained a concession from the plaintiff that Pearl street was opened under the Dutch regime, the presumption is that the Dutch law is the same as-the law of this .state. (Monroe v. Douglass, 5 N. Y. 447; Church v. Hubbart, 2 Cranch, 187, 236; L. & G. W. S. Co. v. P. Ins. Co., 129 U. S. 397, 445; Ennes v. Smith, 14 How. [U. S.] 400; Dainese v. Hale, 91 U. S. 14; People v. Brady, 56 N. Y. 183, 191; Stearns v. R. R. Co., 4 N. Y. S. R. 715; F. N. Bank v. F. N. Bank, 77 N. Y. 321; Chapin v. Dobson, 78 id. 79; Debevoise v. N. Y., L. E. & W. R. R. Co., 98 id. 377, 379; McDonald v. Mallory, 77 id. 550.) A mere abutter,, even where the city owns the bed of the street, has an easement therein of light, air and access which cannot be diverted or impaired by an elevated railroad without compensation to the abutter. (Livingston v. Mayor, etc., 8 Wend. 85, 99; Beckett v. M. R. Co., L. R. [3 C. P.] 83; Pond v. M. E. R. Co., 112 N. Y. 186; Radenhurst v. Coate, 6 Grant Ch. 139; Leonard v. Spencer, 108 N. Y. 347, 348; Fonda v. Borst, 2 Keyes, 50; Fritz v. Hobson, L. R. [14 Ch. Div.] 542; In re 17th Street, 1 Wend. 262; In re Lewis Street, 2 id. 472, 475; In re 32d Street, 19 id. 128; Stell v. Trustees, etc., 16 Barb. 107, 109; Eagle v. C. C. R. Co., L. R. [21 Ch. Div.] 638; Tremain v. C. Co., 2 N. Y. 164; Doyle v. Lord, 64 id. 432, 439; Mahady v. Bushwick, 91 id. 148, 153; Fanning v. Osborne, 34 Hun, 121; 102 N. Y. 450; Hussner v. B. C. R. R. Co., 114 id. 433, 437; Callanan v. Gilman, 107 id. 360; Fletcher v. Auburn, 25 Wend. 402; Crooke v. Anderson, 23 Hun, 260; Pierce v. Dart, 7 Cow. 609; Van Brunt v. Ahearn, 13 Hun, 388; Corning v. Lowerre, 6 Johns. Ch. 439; B. & P. R. R. Co. v. F. B. Church, 108 U. S. 317, 329; F. B. Church v. S. & T. R. R. Co., 5 Barb. 79; P. R. R. Co. v. Angel, 41 N. J. Eq. 316; Brand v. Hammersmith, L. R. [2 Q. B.] 223; Fish v. Dodge, 4 Den. 311; Elliottson v. Feetham, 2 Bing. [N. C.] 134; Crump v. Lambert, L. R. [4 Eq. Cas.] 409, 413; Walker v. Brewster, L. R. [5 Eq. Cas.] 25; City of Denver v. Bayer, 7 Col. 113; City of Denver v. Bowne, 11 id. 59; Mollenden v. U. P. R. Co., 14 Fed. Rep. 394; S. C. R. R. Co. v. Steiner, 44 Ga. 546; Rensselaer v. Leopold, 106 Ind. 29; C. B. U. R. R. Co. v. Twine, 23 Kan. 585; C. B. U. P. R. R. Co. v. Andrews, 30 id. 590; M. I. R. R. Co. v. Esterle, 13 Bush, 668, 674; Elizabethtown v. Coombs, 10 id. 382; Theobald v. L. N. O. &.T. R. R. Co., 66 Miss. 279; Lackland v. N. M. Co., 31 Mo. 180,187, 188; B. & U. R. R. Co. v. Reinhackle, 15 Neb. 279; Grafton v. B. & O. R. R. Co., 21 Fed. Rep. 309; R. Co. v. Lawrence, 38 Ohio St. 41; Story v. N. Y. E. R. Co., 90 N. Y. 123,179; Lahr v. M. E. R. Co., 104 id. 269, 288.) Even if the Dutch owned the entire fee in Pearl street, free from any easement or servitude in favor of an abutting owner, and such unqualified title to the streets passed to the English crown and was ■granted by Charles II to the Duke of York, the case is cov■ered by the statute on which the lahr case was decided, and under that decision the city’s title to the streets is subject to an ■easement in the abutting owner of light, air and access in and to the adjacent street for the benefit of his abutting lands. (Laws of 1793, chap. 42, § 3; 3 Greenl. Laws, 54, § 3; 2 R. L. of 1813, 414, § 178; People v. Newton, 112 N. Y. 396; Story v. N. Y. E. R. Co., 90 id. 179; Lahr v. M. E. R. Co., 104 id. 288; 25 J. & S. 276 ; R. R. Co. v. Schurmeir, 7 Wall. 372.) As the English title to Hew York rested upon discovery, which was prior to that of any other nation, and not upon conquest, the mere fact that subsequently to the acquiring of the English title the Dutch occupied the country, did not cause their law to prevail here-dejti/re. Therefore, the foundations of the rights of abutting owners on a street laid out during the Dutch occupation rest upon the common law of England. (Mortimer Case, 25 J. & S. 244, 260; Hine Case, 54 Hun, 425-433; Johnson v. McIntosh, 8 Wheat. 576; Story on Const. Lim. §§ 2, 11; Town of Southamton v. M. B. O. Co., 116 N. Y. 1, 7; Martin v. Waddell, 16 Pet. 367,409.) The ■annoyance to the, occupants of premises abutting on an elevated railroad caused by loud and disagreeable noises resulting from the operation of the road, which prevent such occupants from sleeping, is an element of damage for which compensation is to be made to the abutting owner. (Ode v. M. R. Co., 56 Hun, 119, 203; Taylor v. E. R. Co., 23 J. & S. 555; Ireland v. M. E. R. Co., 20 id. 451; Moore v. N. Y. E. R. R. Co., 29 N. Y. S. R. 432, 433; Cohen v. Cleveland, 43 Ohio St. 191; In re N. Y. C. & H. R. R. R. Co., 15 Hun, 64; Abendroth v. M. R. Co. 122 N. Y. 1; B. & P. R. R. Co. v. F. B. Church, 108 U. S. 317; F. B. Church v. S. R. R. Co., 5 Barb. 79; P. R. R. Co. v. Angel, 41 N. J. Eq. 316; Brand v. H. & C. R. Co., L. R. [2 Q. B.] 223; Fish v. Dodge, 4 Den. 311; Elliottson v. Feelham, 2 Bing. [N. C.] 134; Crump v. 
      Lambert, L. R. [4 Eq. Cas.] 409, 413; Inchbald v. Robinson, L. R. [4 Ch. App.] 388; Walker v. Brewster, L. R. [5 Eq. Cas.] 25, 34; Dargan v. Waddell, 9 Iredell [N. C.] Law, 244; Soltau v. DeHeld, 2 Simons [N. C.], 133; Drucker v. M. E. R. Co., 106 N. Y. 157; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 id. 10; Hay v. C. Co., 2 id. 161; Semayn's Case, 5 Coke, 91.)
   Andrews, J.

The plaintiff is the owner of a lot on the easterly side of Pearl street in the city of Bew York, which, on the 1st day of December, 1768, was granted by the Mayor, Aldermen and Commonalty of the city to the plaintiff’s predecessor in title, by a description which bounded the westerly side of the lot on Queen (now Pearl) street. When the grant was made, the tidal waters of the East river washed the easterly side of the street, udiicli was coincident with the water line, and the lot granted was then under w'ater. It was subsequently filled in and reclaimed, and has been built upon, and Pearl street has become one of the important business streets of the city of Bew York. The road of the defendant has been con•structed in the street, in front of plaintiff’s lot, and this action is brought for damages thereto, caused by its construction and operation.

Few questions have come before the courts in this generation of greater practical importance or involving larger pecuniary interests than those growing out of the construction of railways in city streets. Whether such streets may, under legislative and municipal authority, be occupied by railroad tracks, to the inconvenience of abutting owners, without making compensation, and what limitation, if any, there is to the legislative power over streets which cannot be transgressed without violating the legal and constitutional rights of lot owners are-questions which have excited the gravest debate and have been the subject of the most careful judicial consideration. Under the decisions made there seems to be no longer any doubt in this state that streets in a city laid out and opened uuder charter provisions may, under legislative and municipal authority, be used for any public use consistent with their preservation as public streets, and this, although the use may be new, and may seem to impose an additional burden, and may subject lot - owners to injury. The mere disturbance of their rights of light, air and access, by the imposition of a new street use, must be borne and gives no right of action. It is also the law of this state that the use of a city street for an ordinary horse or steam railway, unless it practically closes the street, is a street use which may be permitted, and that abutting owners, whose lots are bounded" by the side of the street, have no legal redress in the absence of negligence in the construction or operation of the railroad, although it interferes with the enjoyment of their premises or seriously impairs their value. (Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505.)

In the Story case (90 N. Y. 122), three principal questions were considered, (1) whether the appropriation of Front street for the use of the elevated railroad, was consistent with the use of the street as an open public street; (2) whether Story, an abutting owner on the street, the fee of which was (as was assumed) in the city, had any property rights in the nature of easements of light, air and access, in and from the street, for the benefit of his adjacent property, which were invaded by the construction of the road; (3) whether such rights, if they existed, were property within the constitutional provision prohibiting the taking of private property for public use without due compensation. The decision of the court on the first point, while recognizing the rule that the legislature may authorize the construction and operation of an ordinary surface railroad' in a city street, placed its decision against the defendant on the character of thestructure, and held that it was destructive of the street uses for which streets are established. Upon the second point it was held that the plaintiff had easements in the street of light, air and access, appurtenant to his lot, which were affected by the structure of the defendant, impairing the value of his lot. The court, in tracing the origin of his property rights in the -nature of easements in the street, placed stress upon two facts, viz.: The original grant from the city,, then the owner both of the land granted and of that which, subsequently became Front street, describing the lot granted by reference to a survey and map .on which Front street was-delineated, and second, the express covenant of the city, contained in the grant, that the streets referred to therein, should forever thereafter continue to be public streets. It-was decided in respect to the third point that incorporeal, rights annexed to property were property within the protection of the Constitution, and could not be taken or impaired, without compensation.

In the Lahr case (104 N. Y. 268), the street upon which, the plaintiff’s lot was situated had been opened under the-statute of 1813.' The decision in the Story case left open but one point for discussion, viz.: Whether lot owners upon, streets opened under that statute had similar easements of light, air and access as those which Story had, although the-plaintiff and those under whom he claimed did not derive their title from the city, and had no express covenant such as-existed in the case of Story. The court decided that the plaintiff, notwithstanding this difference in the circumstances in the two cases, had easements of the same character as Story. The -court regarded the statute of 1813, which permitted the. taking by the city of lands for streets, and the assessing of the cost of improvement upon the property benefited, taken in connection with the trust declared therein, as equivalent to a contract or covenant by the city with the adjacent lot owners-that the street opened under the statute should forever remain open and public streets, and the consequence was held to-follow that they could not be appropriated to other than street uses, to the injury of abutting owners, except upon the condition of making compensation.

The present case presents still another phase of the general question. Pearl street, on which the plaintiff’s lot is situated, was a street prior to 1664, and was opened under the Dutch regime during the. Dutch occupation of Manhattan island. It passed with all the other territory occupied by the Dutch, under the control of the crown of Great Britain, upon the capitulation in 1664. There is no evidence in the case of the circumstances attending the opening of Pearl street, or whether the soil forming the bed of the' street was, when it was laid •out, private or public property. The contention of the defendant upon this state of facts in brief is, that under the civil law, which was the law of Holland, the sovereign was vested with the absolute title to the soil of all streets and highways within his dominions, and that no jwivate rights or easements existed therein, and that an owner of land adjacent to a street acquired no rights by reason of adjacency, or from the fact that he had built upon the street in reliance upon its continued existence, to have it kept.open as. a street or way, but that it was competent for the sovereign to close the street, or to convert it to any different public use at any time without making any compensation to owners of adjacent lands, although by so doing the value of the property might be diminished or even substantially destroyed. The argument following from this premise is, that the English crown succeeded to the rights and power of the States General as to all streets laid out under the Dutch occupation, and that whatever rule may prevail as to streets in the city of Hew York laid out since 1664, the -owners of lands abutting on Pearl street have no private rights in the street, and that the legislature has absolute and uncontrollable po\ver to close such street or to convert it to any use, however inconsistent with its use as a street, and that abutting owners would have no remedy whatever.

In the very learned and able brief of the counsel for the defendants many authorities are cited, and quotations made from the writings of the civilians, in support of their statement of the rule of the civil law. But assuming the powers of the sovereign under the civil law to be as broad as claimed, and that the English crown succeeded to the same powers as to streets in the city of Hew York opened prior to 1664, as existed in the sovereign under the civil law, it still remains to be considered whether these powers have since been modified as to these ancient streets by grant or covenant, or legislation or otherwise, so as to vest in abutting owners rights in such streets, in the nature of easements, which before they could not have claimed.

In this case the only open question is whether the plaintiff, as abutting owner, has the right to have Pearl street kept open as a public street and to advantages of light, air and access in and from the same for the benefit of his abutting property. By the Dongan charter, the colonial government granted to the Mayor, Aldermen and Commonalty of the city of Kew York all the streets in the city for public use. This was in 1686, nearly a century before the .grant by the city to the plaintiff’s predecessor in title of the lot now owned by him. In its grant the city bounded the lot on Pearl street. The city was then the owner both of the soil of the street and of the land granted. If it was necessary to decide the question, it would be worthy of serious consideration whether under these circumstances there was not a grant by implication, by the city to its grantee of a right to have Pearl street kept open as a public street for the benefit of the lot granted, within the principle of many of the cases referred to in the Story case, that where an owner of land conveys a lot bounding it on a street laid out by him on his own land, he thereby establishes it as a way for the benefit of his grantee and his successors in title, which the grantor cannot thereafter close or obstruct to their prejudice. But as we place our decision on a broader ground than is suggested by these special circumstances, we pass the point without consideration, and shall assume that no covenant was implied, in respect of Pearl street, in the grant by the city of the lot in question.

The main argument pressed upon our attention, in opposition to the claim that the plaintiff has an easement or property right in Pearl street by virtue of his being an abutting owner merely, is founded on the principle of the common law, that an easement in another’s land must have its origin in grant, or in prescription which presupposes a grant, and upon the fact that not only is there no evidence of such a grant in this case, but that it having been shown that the street was opened by the Dutch, and presumably governed by the rules of the civil law, the existence of any private right or easement in the street in favor of abutting owners is conclusively disproved: It is undoubtedly true that there is inseparably associated with the idea of a common-law easement, the- existence of a grant whereby one tenement is made subject to a burden or servitude for the benefit of another, and it must be admitted (upon the assumption we have made as to the construction of the grant of 1768) that the plaintiffs case is destitute of any proof that the easements or rights which he seeks to enforce originated in a grant or in any covenant which operated as a grant between himself or his predecessors in title and the city of New York. The defendant is also entitled to the further admission that if the rights asserted by the plaintiff in Pearl street could only be created in the mode prescribed by the common law for the creation of easements in land, the plaintiff must fail in his action. But, however difficult it is to trace its origin or to refer it to any exact legal principle, it is undoubtedly the prevailing doctrine of American jurisprudence that the owner of a lot abutting on a city street, the fee of which is in the muncipality, has, by virtue of proximity, special and peculiar rights, facilities and franchises in the street, not common to citizens at large, in the nature of easements therein, constituting property, of which' he cannot be deprived by the legislature or municipality, or by both combined, without compensation. (Crawford v. Village of Delaware, 7 Ohio St. 460; Street Railway v. Cumminsville, 14 id. 524; Railroad Co. v. Esterle, 13 Bush. [Ky.] 668; Lackland v. Railroad Co., 31 Mo. 180; South Carolina R. R. Co. v. Stemer, 14 Geo. 546; C. B., etc., R. R. Co. v. Twine, 23 Kas. 415; Same v. Andrews, 30 id. 590; Theobold v. Railroad Co., 66 Miss. 279; B. & M. R. R. R. Co. v. Reinhackle, 15 Neb. 279; Haynes v. Thomas, 7 Ind. 38; Rensselaer v. Leopold, 106 id. 29.) In several of the cases cited it was held that the laying of a railroad track in a town or city street, and the operation thereon of a steam railroad, was inconsistent with the uses for which streets are established, and in this respect the decisions are more favorable to the abutting owners than those in this state, but this does not weaken their force as adjudications of the principle that abutting owners have, as such, a property right in the street in front of their premises, which entitles them to restrain its appropriation to other and inconsistent uses. The opposite view has been maintained in Pennsylvania. The courts of that state have strenuously asserted the supreme power of the legislature to appropriate streets to public uses destructive of their ordinary use as public ways, and have denied the right of abutting owners to compensation, however serious the injury to their property occasioned by such appropriation. The injustice of this rule led to the insertion in the new Constitution of Pennsylvania adopted in 1874, of a provision declaring that municipal and other corporations invested with the privilege of taking private property for public use should make compensation for property “taken, injured or destroyed ” by the construction of their works, etc. Subsequently, in the case of Duncan v. Pennsylvania R. R. Co. (111 Pa. St. 352) the court sustained, under this constitutional provision, an action in favor of an abutting owner on Filbert street in the city of Philadelphia, for damages to his premises, caused by the construction by the defendant of an elevated track for its road, in the street in front of his premises, which obstructed access thereto and impared the value of his property. The Story case decided that Story was entitled to relief against a similar structure, on the ground that the injury complained of by him was a taking of his property under the provisions of our State Constitution in reference to the taking of private property for public use, vyhich does not contain the words “ injured or destroyed,” as does the similar provision in the Pennsylvania Constitution of 1874.

The city of Hew York has a proprietary interest in the streets of that city. It owns the fee of the land occupied by the streets, whether such streets were laid out under the Dutch regime, or during the colonial period, or subsequently, after the organization of the state government. But its tenure is in trust for street uses, declared or recognized in the original charters and in the state statutes. .The Dongan- charter expressly vested the title to the streets in the mayor, aldermen and commonality of the city, and the trust was declared in the following words: For the public.use and service of the mayor, aldermen and commonality of the said city and of the inhabitants of Manhattan’s island and travellers therein.” The Dutch streets as well as all other streets in the city then existing, were included in this grant, and were all impressed with, and were to be held under the trust so declared. Under the act of 1813, the title to streets laid out and opened under that act also vested in the city, but the statute declared the trust In trust nevertheless, that the same be appropriated and kept open as part of a public street, avenue, square or place forever, in like manner as the other public streets, avenues, squares and places in the city are and of right ought to be.” This statute is in precise harmony with the policy indicated by the Dongan charter to vest the proprietary interest in the streets in the corporation- as the donee of a trust for those for whose benefit it was created. The legislature by the acts of 1779 and 1793 (Green. L. 31; 3 id. 54), confirmed and emphasized this policy by a formal investiture of the city with all the rights of the state (if any) in the public streets.

It is to be observed that the declaration of trust in the act of 1813, expressly recognized that all of the streets of the city then existing were held under the game trust as was declared in respect of the streets to be laid out under that act. The words are, in like manner as the other streets, etc., in the said city are and of right ought to be.” If the trust declared as to streets to be opened under that act was. in legal construction any broader than the trust declared in the Dongan charter, then manifestly there was an express legislative declaration in the act of 1813, that the city thereafter was to. hold the streets in existence when that act was passed, upon the same trust and tenure as the new streets to be opened thereunder. The question then arises, for whose benefit was this trust created. There can be no doubt, of course, that the public at large were beneficiaries. The streets were to> be kept open as -public streets forever, and it has always been recognized as one of the primary duties and functions of the state.to open and maintain: streets and ways as channels for transit, traffic and commerce, But streets, as is well understood, especially in centers of population, subserve the interests of the state in other ways than by affording passage to the public from one point to another-They afford opportunities for' erecting wharves and warehouses,, stores and dwellings, and public buildings, by public and private enterprise, which contribute to the convenience of the public, and enhance the .wealth and prosperity of the state. They encourage the improvement of private property located upon the streets, and, as is well known, real property in cities derives its chief value from such location. We tliink it would be limiting the scope of the trust declared in the charter and: statutes to which we have referred, quite unwarrantably, to-confine it to the aggregate public, and deny its application for the special benefit and protection of property abutting on the-streets. This qirestion was referred to by Judge Tkacy in his-opinion in the Story case. He says (pg. 176): That the trust created by the act of 1813, was intended to be for the benefit of the abutting owner as well as for the public, we cannot doubt,” and we concur in this view. We have, then, an. express and deliberate legislative declaration of a trust in respect to all the streets owned by the city, however or whenever acquired, that they shall forever be kept open as public-streets, upon faith of which owners of abutting property have, or are presumed to have, acted in improving and building thereon. Can the legislature abrogate this trust, or authorize-its violation without making compensation for any injury sustained by abutting owners? Justice requires a negative-answer, and we think it may be properly said that the acceptance and acting upon this trust by owners óf abutting property,, creates in them a right which the law will enforce to have and-en joy the advantages and incidents of a public street, in connection with their property, of which the legislature cannot deprive them without compensation. The statutes for laying out streets proceed on the theory that special advantages are thereby conferred upon, and will be enjoyed by the owners of abutting property. In 1193, the legislature, by chapter 42 of the laws of that year, authorized the widening of John street and directed that the expense should be apportioned by commissioners who should determine the part to be borne by the city and the part which ought to be borne “ by individual citizens whose estates' in the said street and vicinity will become Advanced and increased in value by such improvements.” In 1184 the legislature provided for the alteration of certain streets in the city, and provided for damages to individuals whose property should be injured by such alteration (Oh. 56). The system of maintaining, paving and repairing streets and ■assessing the expense on the adjacent property, recognizes the existence in abutting owners of a special and peculiar ■interest in the streets, other than that of the public at large.

The defendants’ counsel, in support of the claim that the legislature may deprive abutting owners of the use of the streets in front of their premises, or convert them to other and inconsistent uses, urge the analogy of cases which have arisen in respect of the rights of riparian owners on navigable waters, by which, as they allege, it is settled that one whose grant is bounded by high water mark of a navigable stream, may, under legislative authority, be cut off from access to the water, without receiving any compensation. The cases of Gould v. Hudson River R. R. Co. (6 N. Y. 522), and Lansing v. Smith (8 Cow. 146; 4 Wend. 9), are cited in support of the proposition. It is sufficient to say in respect to the case of Gould v. Hudson River R. Co., that it has been frequently criticised and cannot be regarded as a decisive authority upon the point adjudged therein. The case of Lansing v. Smith was the case of a public improvement to promote the navigation of the Hudson river and afford greater facilities for commerce. The improvement was consistent with the use of the river as a highway. In the regulation of this public right the use of the plaintiff’s dock was rendered less convenient, but was not prevented. The court held that the act was constitutional; but the chancellor in his opinion, expressly reserved the question whether the legislature could grant a right to build a wharf in front of the plaintiffs so as to destroy it entirely, saying “ that is a question which it is not necessary now to discuss.”

The main question presented on this appeal is difficult of solution. There must be a property right in the street to authorize the maintenance of the action. The plaintiffs easements or rights in the nature of easements, are not created by grant or covenant. It is easier to realize the existence of these rights than to trace their origin. They arise, we think, from the situation, the course of legislation, the trust created by the statute, the acting upon the faith of public pledges and upon a contract between the public and the property owner, implied from all the circumstances, that the street shall be kept open as a public street and shall not be diverted to other and inconsistent uses. There is some analogy, we think, between the rights of abutting owners as against the public, and those acquired by the public against private persons in streets or highways by dedication. The public acquires upon acceptance of a dedication by the owner of land of a highway over the same, a perpetual easement therein for a highway, although there may' be no deed, or wilting, or covenant, and no formalities attending the transaction, such as is required for the creation of an easement at common law. The state has dedicated the streets in the city of Hew York to be public streets. The abutting owners have acted upon the dedication and upon the pledge of the public faith that they shall continue to be open public streets forever. It would be gross injustice to deprive them of the advantages intended, without compensation. The dedication ought to be, and is, we think, irrevocable.

We conclude this part ■ of the case with the remark that neither the Story nor the Lahr case imposes any limitation upon the legislative power over' streets for street uses. They simply hold that the trust upon which streets are held cannot be subverted by devoting them to other and inconsistent uses.

We have so far assumed that the fee to the bed of Pearl street was in the Dutch government at the time of the capitulation in 1664. But there is an admission in the case that the fee of a portion of the bed of Pearl street, including that part opposite the plaintiff’s lot, had been granted to individual owners of lots on the opposite side of the street,'and that the-fee is in their successors in title, of which the plaintiff is not one. ' The original grants are not in evidence. There are-some confirmatory grants referred to, made by Gov. Uicholl,, which contain a condition that the grantees shall not rear any building fabric thereupon, nor debar it (Pearl street) from being a public highway.” . We do not perceive that these grants either weaken the plaintiff’s case or strengthen that of the defendant. The defendant does not claim under the grantees, and if the fee of the street is in private persons, their title-is nominal merely, and as against them the plaintiff has clearly a prescriptive right, nor could such title prevent the acquisition by the plaintiff and his predecessors, of rights against the-public in the nature of easements under the views heretofore-stated.

The court allowed the jury to consider the noise created by the trains of the defendant as an element of damage. If the defendant1 had the lawful right to operate its trains in the street, such inconvenience as might result to the plaintiff in the enjoyment of his property from the ordinary and usual operation of the defendant’s road would not, in the absence of negligence on its part, furnish a ground of action. But we held in the Lafvr case, that as to abutting owners having easements in the streets through which the road was constructed, whose rights had not been acquired by condemnation, the defendant was a trespasser. Upon general principles,, therefore, it would seem that any consequential injury, to the-plaintiff’s property from the' acts of the defendant while-engaged in the unauthorized occupation and use of the street was proper to be considered by the jury. In the Lahr case, Chief Judge Bug-eb, referring to this point, said: “ No partial justification of the damage inflicted by ah unlawful structure, and its unlawful use can be predicated upon the circumstances: that, undér other conditions and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable for damages.” (See also Op. of Finch, J., Drucker’s case, 106 N. Y. 158.)

The point sought to be raised as to the rule of damages, where the premises have been leased by the owner and were in the occupation of a tenant during the period for which damages are claimed, is not, we think, raised by any specific and proper exception, and ought not, therefore, to be now-determined.

The rejection of evidence as to the diminution of rental-value of other buildings near to that of the plaintiff, but not on the fine of defendant’s road, if technically erroneous, ought not, we think, to lead to a reversal of the judgment. In the early part of the trial the parties seem to have assented to a rule excluding evidence of this character. It is not at all probable, moreover, that the defendant was harmed by the ruling upon this point.

These views lead to an affirmance of the judgment.

"We should have been satisfied, to have rested our judgment upon that in the case of Abendroth, recently decided in the second division of this court. But the present case was originally moved for argument before the Abendroth case was finally disposed of in the other branch of the court, and in view of the circumstances and the great importance of the main question involved we have thought it not inappropriate to express in a supplemental opinion our concurrence in the judgment in that case.

The judgment below should be affirmed, with costs.

All concur; Earl,' J., concurs except as to the rule in reference to the noise, and that he thinks erroneous.

Judgment affirmed.  