
    Charles Welde, Plaintiff, v. The New York and Harlem Railroad Company et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1899.)
    1. Equitable action against railroad using a viaduct built by a city — Adverse possession of easements — Notice.
    Where an abutting owner, claiming under the same grantor as a railroad company but subsequent to it, purchases his lands after the company has imposed upon the easements in the street burdens additional to those contemplated by its original deed, and the owner buys with knowledge of the conditions and constructive notice of the company’s rights, and by himself and his grantors permits the company to exercise the additional rights for a period of more than twenty years, he cannot thereafter recover of the company any damages which have resulted to his fee and to his rentals from the additional burdens.
    
      2. Same — Abutter not entitled to damages during the period of construction.
    Where a viaduct is being constructed in a street by a city board! of improvement created by a statute, a railroad company, which has had no legal control of the work, does not, by its use of the viaduct, make itself liable to an abutting owner for damages which the viaduct has caused to his easements during the period of construction.
    3. Same — Right to construct an embankment does not justify a viaduct.
    A deed to a railroad company, which may properly be construed as justifying the construction in a street of an embankment whose base and slopes will occupy the whole street, does not justify the construction in the street of a viaduct having perpendicular sides and supporting columns placed on the curb line; and if a railroad company uses such a viaduct, after its construction by the city, it is liable to an abutting owner for damages which resulted to his easements of light and air.
    4. Same — Damages for noise, etc., in reducing size of viaduct and that of an illegal station.
    Where a railroad company authorized by statute to build a station and thereby required to reduce the size of an existing viaduct, thereafter builds a station which is extended beyond the limits fixed by statute, and the company subsequently removes so much thereof as is illegal, an abutting owner may recover damages from the company for the noise caused by cutting off and reriveting many bolts upon the station building and for the obstruction of the street by the deposit of materials necessary to reducing the size of the station and that of the viaduct.
    5. Same — Measure of damages.
    Elements of damage to fee and rental value, considered.
    
      This action was commenced on the 10th day of October, 1895,. and was brought to obtain an injunction to restrain the defendant,, the New York & Harlem Railroad Company, and its lessee, the New York Central & Hudson River Railroad Company, from constructing and maintaining their elevated railroad structure on Fourth (now Park) avenue, in the city of New York, in front of the plaintiff’s premises, which are situate on the northwesterly comer of Park avenue and One Hundred and Twenty-fourth street, and from operating their railroads thereon, and to recover-damages for loss in the rental and fee value of plaintiff’s said premises, on account of the erection and maintenance of said structure and the operation of said railroad thereon.
    The history of the class of cases to which this action belongs is now familiar to the courts, and needs to be referred to only for the purpose of clearly pointing out the specific difference between this action and others of the same class. In 1807 commissioners were appointed to lay out streets and avenues in that portion of Manhattan Island now familiarly known as Harlem. In April, 1811, said commissioners filed a map, upon which Fourth avenue-was shown to be of the width of 100 feet. Many of the streets and avenues shown upon said map remained unopened for a number of years after the filing thereof. In 1831 the New York & Harlem Railroad Company was incorporated by a special act of' the Legislature (Chap. 263), and was authorized to construct a railroad from any point on the northern boundary of Twenty-third street to the Harlem river, between the eastern boundary of Third avenue and the western boundary of Eighth avenue, with the right to operate it by steam or by any mechanical or other power that the company might desire to use. By said act it was given the right to locate its railroad and to file a map thereof in the office of the register of New York, but it was not to be filed until it should have been submitted to, and approved by, the common council. It was then 'authorized to build its road, to take all lands necessary for its construction, and to take all voluntary grants of land for that purpose.
    Said act further provided that land thus taken which was not donated should, if the parties could agree, be purchased of the owners, at a price to be agreed upon between them, and provided for condemnation in cases where no agreement could be reached. Said corporation was authorized to use double or single tracks, and the act also provided that, in case its railroad was located along any public street or avenue then laid out upon the map or plan of the •city of Hew York, it should have sufficient space in the street on •each side of the railroad for a public highway for carriages and a sidewalk for foot passengers. It was further provided that the •corporation should not be deemed to be authorized to construct a railway across or along any of the streets thus designated, whether open or not, without the consent of the mayor and aldermen, who were authorized to grant permission to the corporation to construct its railroad across or along the streets or avenues of the city. The provisions of this act were complied with by the Hew York & Harlem Eailroad Company, and it located its route along the ■center line .of Fourth avenue, from Twenty-third street to the Harlem river. A map was filed in the register’s office on the 22d of October, 1831, together with a resolution of the common council, approved by the mayor, authorizing the company to construct its road over Fourth avenue, and the consent of the municipal authorities to such location was obtained through an ordinance approved by the mayor December 22, 1831.
    On the 18th day of January, 1832, one Isaac Adriance, then the owner of considerable land in Fourth avenue and the intersecting streets from One Hundred and Twenty-fourth street to' One Hundred and Twenty-seventh street, executed and delivered to the Hew York & Harlem Eailroad Company a deed of a strip of land twenty-four feet in width along the center line of Fourth avenue, from the southerly side of One Hundred and Twenty-fourth street to One Hundred and Twenty-seventh street, “ together with the power of sloping their embankments or excavations so much further beyond the lines of said premises hereinbefore granted as may be necessary to support their work, not, however, extending beyond the width of the avenue.” The Hew York & Harlem Eailroad Company thereupon proceeded to construct its road. It was completed up to and beyond One Hundred and Twenty-fourth street in 1836 or 1837. At this point in the line there were laid two tracks upon the surface of Fourth avenue. In 1837 a law (Chap. 274) was passed providing for the widening of Fourth avenue to a width of one hundred and forty feet from Thirty-fourth street to the Harlem river. A strip of land twenty feet in width was to be taken from the adjacent lots on each side and added to the street. In or about the year 1850 the city of Hew York instituted proceedings, pursuant to chapter 86, Laws of 1813 (Revised), and its amendments, to acquire title to Fourth (now Park) avenue, being a strip of land one hundred and forty feet wide and extending from, Thirty-eighth street to the northerly side of One Hundred and Thirty-fifth street. The strip of land twenty-four feet in width, in the center of Fourth avenue, owned and occupied by the Hew York & Harlem Railroad Company, was conveyed to the city for a nominal consideration. This conveyance was not intended to affect, and did not affect, the rights of the railroad company in the use and occupation of said street. The railroad company continued to use Fourth avenue as before until 1872. In that year the Legislature passed an act (Chap. 702) providing for the removal of grade crossings on said railroad, and requiring them to be constructed either below or above grade, as the plans to be made and adopted for that purpose should provide; and authorizing the railroad company to construct and use four tracks instead of two tracks, and to take such additional space in Fourth avenue as might be needful for that purpose. This work was completed in or about the fall of 1874. At One Hundred and Twenty-fourth street, and for a distance of several blocks both north and south thereof, the tracks of the railroad were depressed in a cut which was about fifteen feet in depth, about fifty feet in width at the bottom, with a slope of wall which increased the width of the cut to sixty-one feet eight inches at the top. The side walls were surmounted by parapets and railings, which served "to effectually conceal passing trains and locomotives from the view of persons in the street. The distance from the side of the cut to the building line was about forty feet, of which about twenty-five feet was used as a roadway for vehicles and the remainder was used as a sidewalk. At One Hundred and Twenty-fourth street, and at a number of streets both north and south thereof, the railroad cut in Fourth avenue was crossed by means of bridges, which furnished the only means of communication between the two sides of Fourth avenue and the intersecting streets. The trains of the Hew York & Harlem Railroad Company and its lessees ran in this cut without interruption from 1874 to February 16, 1897, and it is not disputed that, with the growth of traffic upon said line, the number of trains was steadily increasing.
    In 1890 Congress passed an act (Chap. 907) directing the Secretary of War to cause the bridges then crossing the Harlem river to be replaced by other bridges to be placed at a clear height of twenty-four feet above the high water of spring tides. The changes were to be made by the owners of said bridges at their own expense, and as soon as any legislation which might be necessary to effect changes in the grade of approaches thereto could be enacted. It was obviously necessary to change the grade of the railroad, at least ás far south as One Hundred and Twenty-fifth street, to meet the requirements of this act, and a bill embodying provisions for such change was prepared, presented to the Legislature and passed. At this juncture changes were agreed upon between the railroad company and others interested in the matter, which resulted in the plan provided for in chapter 339 of the Laws of 1892. This act was amended by chapter 548, Laws of 1894, and again by chapter 594, Laws of 1896. Under the act of 1893, the railroad company, or its lessee, could elect to build a station at One Hundred and Twenty-fifth street, with platforms extending from the north line of One Hundred and Twenty-fourth street to the south line of One Hundred and Twenty-sixth street. The iron or steel viaduct upon which this station and .platforms wete to rest was to extend from curb to curb on Park avenue, its extreme width being one hundred and fourteen feet and four inches. The railroad commenced the erection of a station-house at One Hundred and Twenty-fifth street. It consisted of four buildings or sheds, running longitudinally with the tracks, and on either side of' and between the same. The platforms thereof extended southerly beyond the north line of One Hundred and Twenty-fourth street. That was a violation of section 7 of the act of 1892. A preliminary injunction was asked for herein, on the ground that the building of such a station was unlawful. This part of the work was thereupon abandoned, and chapter 594, Laws of 1896, amended section 7 of the original act, by directing the railroad company to erect and maintain a station at One Hundred and Twenty-fifth street, and directed the narrowing of the viaduct structures to a maximum width of eighty1 two feet. The plans adopted- by the railroad company under this act provided for two buildings or sheds, with their adjacent platforms, with stairways at One Hundred and Twenty-fifth street, instead of four buildings, with stairways at One Hundred and Twenty-fourth street.
    
      This work was to be done at the expense of the railroad company. On the 20th day of June, 1896, the latter entered into a contrae! with the Elmira Bridge Company, Limited, to take down so much of the viaduct structure as was necessary to make it conform to the plans adopted under chapter 594, Laws of 1896.
    On the 18th day of August, 1896, the railroad company also entered into a contract with Levering & Garrigues, which was to supersede the contract of June 4, 1895, for the building of a station at One Hundred and Twenty-fifth street. The station as it now exists was thereupon erected. It is practically conceded that in the work done towards the erection of the first and unlawful station, and in the subsequent cutting down of the same, and of a portion of the viaduct structure, much additional noise was created beyond what would have been caused in the mere erection of the viaduct.
    During the period in which this viaduct was being constructed the railroad trains were run in the depressed cut. A temporary structure was erected over the cut and oh each side thereof which, together with such portions of the permanent structure as had been built, served to increase the smoke, gas, soot and cinders which •were blown into the stores and dwellings in plaintiff’s buildings. The sidewalk was tom up, and the street adjacent to plaintiff’-s building was occupied with various building materials which .materially interfered with the usual avenue of access thereto. The traffic upon said railroad has steadily increased since 1-892, and the number of trains which now daily pass by the plaintiff’s -premises number between 450 and 475. This is ndt taking into account the cars which are taken from the Grand Central Station to Mott Haven for cleaning, and returned again to the station for use in trains.
    The record of this trial differs in several features from that of the former trial. Ho evidence was offered on this trial as to alleged damages to the plaintiff’s own residence, which is on One Hundred and Twenty-fourth street, in the rear of the -building which fronts on Park avenue.
    The viaduct structure is now completed, and trains have been running thereon since February 16, 1897. The depressed cut in the center of Park avenue has been filled up, and the street is now aved and open for use from side to side. The viaduct structure as been reduced from a Avidth of 114 feet to a width-of 82 feet.
    
      Eurther facts appear in the opinion.
    Thomas P. Wiclces, for plaintiff.
    Ira A. Place and A. S. Lyman, for defendants.
   Webster, J.

It is conceded that Isaac Adriance is the common source of title herein. The New York & Harlem Railroad Company took its title directly from him on the 18th of January, 1832. The plaintiff acquired his title January 29, 1883. The lands described in his deed are situated on the northwesterly comer of Park avenue and One Hundred and Twenty-fourth street, fronting one hundred feet and eleven inches on said avenue and eighty-nine feet and seven inches on said street. The whole of the frontage on Park avenue and about seventy feet in depth on One Hundred and Twenty-fourth street is occupied by two four-story brick and stone store and apartment-houses, numbered 1800, 1802, 1804 and 1806 Park avenue, respectively. There are four' stores with apartments above them. « Nos. 1800 and 1802 are sixty feet in depth apd Nos. 1804 and 1806 are seventy feet in depth. The price paid by the plaintiff for the land was $28,000, and the cost ®f the buildings was $76,000. The plaintiff’s own residence, which is excluded from consideration upon this trial, occupies a frontage ef twenty feet on One Hundred and Twenty-fourth street in the rear of said land, and, according to the testimony of the expert, Bierhoff, $4,800 should be deducted from the total purchase price of the land, to ascertain the purchase price of that part which fronts! on Park avenue. The total original cost of the land and buildings I in suit was, therefore, $99,200. At the time these buildings were I erected they were among the best in that section, and they havel always been kept in good repair. Since that time there has beenl a remarkable growth of population in that section, which has re-1 suited in the rapid and large increase of apartment-houses equippecll with more modern conveniences, and in consequence thereof therel has been greater competition and a natural reduction in rents. I™ is upon such a state of facts that the plaintiff seeks relief by injunc-l tion and damages for the alleged injury to his property, by reasom of the maintenance and operation of the defendant railroad in iron* of his premises under the conditions above described. The firsB question to be determined is to what extent the plaintiff is fore! close'd from seeking such relief, either by his own acts or by th* decisions 'of the higher courts in cases involving the same question* It seems clear that, under the rule laid down in the Conabeer, Birr ell, Taylor and Wclde cases against these railroad defendants, the plaintiff cannot recover for any use of Park avenue for railroad purposes which was contemplated in the deed from Adriance to the New York & Harlem. Railroad Company. It must be deemed settled, therefore, that as to the twenty-four feet in the center of Park avenue, originally granted to the railroad company, the latter acquired the right to construct, maintain and operate its railroad at any grade fixed by the Legislature.

Under the act of 1872, however, the railroad company assumed to take lands for the construction and maintenance of two additional tracks, which increased the width of the strip occupied by it, in front of the plaintiff’s premises, from twenty-six to sixty-one feet. This was after the city had acquired the naked legal title to all the lands in Park avenue. The title of the city was, however, subordinate, not only to the then existing rights of the railroad company, but to the easements in said street of the abutting owners. To the extent that the occupation and use by the railroad company, of the additional lands in Park avenue, created a burden upon the abutting lands, in excess of that which was contemplated by the original grant, it created a right of action in favor of the abutting owners. But the plaintiff purchased his land after the changes of 1872 had been made, and, as stated in the Conabeer case, with knowledge of the conditions, and with constructive notice of defendants’ rights he made a purchase which, presumably, included all proper deductions from the value of his land by reason of the presence of the defendants’ railroad. The plaintiff, and his predecessors in title, moreover, permitted the defendants to continue in their use and occupation of Park avenue, under the act of 1872, without complaint or interference until the commencement of this action.

Under the doctrine of the Taylor Case, 27 App. Div. 197, this protects the defendant railroads in their claim of adverse possession to the extent of their user for a period of more than twenty years. The plaintiff contends, however, that, admitting all this, the construction, maintenance and use of the present viaduct structure is not within the contemplated use provided for in the original grant, and is clearly an enlargement of the user which has ripened into adverse possession. This is undoubtedly true. Mr. Justice Rumsey’s language, in the opinion in this case upon appeal, leaves no room for doubt upon that point. But it is equally clear from said opinion that there is no liability on the part of the defendant railroad companies for the loss and inconvenience which the plaintiff may have suffered during the period of construction of said viaduct by reason thereof. It was a public work performed by a duly sonstituted public body, in which the defendants had only such an interest as the nature of their subsequent use of the contemplated structure, and their compulsory liability to pay for the same, in part at least, would render proper and necessary. The attempt of plaintiff’s learned counsel to change the record of this case by allowing that the defendants’ engineers and agents made claims and did acts which are apparently inconsistent with the present attitude of the defendants was not successful.

It was quite natural, and to some extent, perhaps, necessary, that the defendants should, in self-protection, make claims during the progress of the work which might indicate an intention to interfere with or direct the conduct of the “ board of improvement.” but for all legal purposes the latter and the railroads were separate and distinct legal entities, the latter having no legal control or direction of the work except as to certain portions thereof which we shall consider further on. We must follow the Welde Case, 28 App. Div. 386, upon the proposition that, for the loss which the plaintiff may have sustained, by reason of noise, loss of light, air and access -consequent upon the building of the viaduct and the temporary structures used in the erection thereof, the defendants are not liable.

The next step in the logical investigation of this case is to consider to what extent, if any, the defendant railroad companies are liable for the injuries, if any, sustained by the plaintiff’s property in consequence of the defendants’ use of said viaduct structure since its completion. In this connection the terms of the deed from Adriance to the Hew York & Harlem Railroad Company play an important part. This deed clearly contemplated the possible use of an embankment upon which to .base the right of way twenty-four feet in width. Such an embankment might at its bases occupy the whole of the width of the avenue if necessary.. But the right of way itself was only twenty-four feet in width, and this fact implies a slope of such character as to make the interference therefrom, with the easements of light and air of the abutting owners, a totally different thing from the interference with these same easements caused by a viaduct structure eighty-two feet in width with perpendicular sides. After the widening of Park avenue, the occupation of the whole of the original street by the base of an embankment would still have left a greater area of light and air for the abutting lands than is left by the present structure. This is equally true, although not in the same degree, whether the defendants’ right of way be limited to twenty-four feet or extended to sixty-one feet. It seems obvious, therefore, that, in the use of this viaduct structure, the defendant railroad companies to some extent invaded the plaintiff’s right to the easements appurtenant to his freehold, and which were not affected by defendants’ rights or use prior to 1897. The precise extent of this invasion it may be impossible to measure. But that is no reason why the plaintiff should be sent out of court remediless. If it clearly appears that, by reason of defendants’ use of said street, in excess of the right which they have established, the plaintiff has sustained damages, the court should not be turned aside in its pursuit of justice by the mere difficulty of admeasuring the loss or injury. Being satisfied, therefore, that the use of the viaduct structure, as it now exists, is an invasion of the plaintiff’s rights, to the extent that said structure and its use interfere in greater degree with the profitable use and enjoyment of the plaintiff’s premises than did the defendants’ railroad as they existed prior to 1892, it remains to make the attempt to admeasure such injury in dollars and cents. This will be done further on in connection with another branch of the case which is yet to be considered. This second branch of the case has to do with questions which arise out of work done directly by the Hew York Central & Hudson Eiver Eailroad Company, or pursuant to contract with it, as lessee of the New York & Harlem Railroad Company. Under the act of 1892 (§ 7) said railroad company had tliQ option to locate and maintain station-houses on both sides of the railroad at One Hundred and Twenty-fifth street, with platforms extending from the north line of One Hundred and Twenty-fourth street to the south line of One Hundred and Twenty-sixth street, with stairways at One Hundred and Twenty-fourth street and at One Hundred and Twenty-fifth street. Under the plans adopted, pursuant to said act, the viaduct was to be one hundred and fourteen feet in width, with supporting columns at the curb line in front of the plaintiff’s premises. The railroad company exercised its option to locate and maintain, a station at One. Hundred and Twenty-fifth street, and the viaduct was constructed of the width aforesaid with that purpose in view. It subsequently transpired that the platforms extended southerly beyond the south line of One Hundred and Twenty-fourth street, and it is conceded that to that extent the structure was unauthorized and illegal. The only work done in the construction of a stairway on One Hundred and Twenty-fourth street was in placing a foundation stone on the sidewalk adjacent to plaintiffs premises. Hpon the issuance of a preliminary injunction herein, further work upon the stations and approaches was discontinued. To meet the difficulties presented by this situation, chapter 594 of the Laws of 1896 was enacted, amending section 7 of the act of 1892, and directing the railroad company to erect and maintain a station at One Hundred and Twenty-fifth street, and for that purpose to erect and maintain a station building in Park avenue, extending from the north line of One Hundred and Twenty-fifth street to the south line of One Hundred and Twenty-sixth street, forty feet in width, with suitable stairways at the easterly and westerly ends thereof. The viaduct structure was to be of sufficient width for the construction and maintenance of suitable platforms and station buildings between the tracks, and for the necessary approaches thereto, but not to exceed eighty-two feet in width, except that the cross girders to sustain such platforms, station buildings and approaches maybe supported on columns erected on the curb lines of Park avenue, between One Hundred and Twenty-third street and One Hundred and Twenty-seventh street.

Pursuant to the provisions of this act and the amended plans adopted thereunder, the railroad company, on the 20th day of June, 1896, entered into a contract with the Elmira Bridge Company, Limited, to take down so much of said viaduct structure as was necessary to make it conform to the amended plans. This involved the cutting of thousands of bolts riveted upon the first structure, and the riveting of thousands more upon the structure as changed. It also required the use of the street for the deposit of materials to be removed and to be used. The railroad company also, on the 18th day of August, 1896, entered into a contract with Levering & Garrigues to erect the station and platforms which are now uséd by the defendants. The work done under this contract occasioned additional noise and interfered with the usual use of the street, through the deposit and handling of building materials thereon. The work illegally done upon the first station and its appurtenances and approaches, as well as the work of taking down a part of the original viaduct, and of rebuilding it in its present form, and the work of erecting the present station, with its buildings, platforms and approaches, was the work of the railroad’ company.

We see no reason why the different railroad companies are not liable for the injuries, if any, sustained by the plaintiff’s property as a result of that work. To what extent then, if any, has the freehold of plaintiff’s property been permanently injured? That is a question which it is infinitely more difficult to answer than to propound. The perplexity which meets us on the threshold of this inquiry arises out of the impossibility of admeasuring, even to a reasonable certainty, the difference between the burden cast upon the plaintiff’s land by the use contemplated in the Adriance deed; and incidentally by the difference between the present use and that upon which a claim of adverse possession is founded. The perplexity is augmented by the conflicting proof upon the course of fee values in that locality, as well as by the numerous considerations which need to be weighed in determining the effect of the present structure and its use upon the adjacent lands. It is as clear that plaintiff’s easements of light and air have been permanently reduced as that his easement of access has been increased by the building of the present railroad structure. Before its erection the only means of communication between the two sides of Park avenue was over bridges at intersecting streets. Hbw the street is open across the entire width, and connects with the lateral streets at convenient grades. The light and air have, however, been seriously affected. The present structure is substantially on a level with the second floor of the buildings on Park avenue. The locomotives and cars of passing trains are as much higher. Trains to the number of between 450 and 500 pass daily. The structure itself, as well as these frequent trains, materially darken the stores and the second-story apartments. The smoke, cinders and gases, although presumably the same in kind and volume as those emitted while the trains were operated in the depressed cut, must necessarily produce a different effect when discharged at an altitude thirty feet above the level of the street. The differing degrees of humidity, and the constantly changing currents of wind, make this an ever-varying quantity, but common sense is in accord with the evidence which asserts that the plaintiff’s easements of light and air have been permanently injured. The figures of the experts upon the question of fee value vary so widely as to make them practically useless, except for the purpose of comparison. Thus we have, on the part of the plaintiff, testimony to the effect that, beginning with an investment of $99,200 in 1883, the value of plaintiff’s property had increased to $120,000 in 1884, to $165,000 in 1892, and decreased to $99,000 in 1898; a total decrease from the highest valuation of $66,000..

The defendants’ real estate experts testified that the total value of plaintiff’s property was, in 1884,’$86,600; in 1892, $89,500; in 1898, $84,460. This wide divergence is explained, pro and con, by a variety of arguments, which we cannot discuss in detail. It is enough to say that it is obvious that the truth is probably to be found somewhere between the'se two extremes. There is no reason to doubt the plaintiff’s statement that the buildings cost him $76,000. The buildings as such did not increase in value with lapse of time. The increase in the value of the whole would, therefore, be represented by the increase in the value of the land. We think the evidence warrants the conclusion that there was an average increase in the value of the'land of $5,000 per year from 1883 to 1892. Placing the building up to 1892 at its original cost of $76,000, this would make a total value of $144,200 in 1892. In seeking to ascertain the depreciation in value, if any, after 1892, we must keep in mind not only the general' depreciation in real estate which ensued at that time, as the result of business depression, but also the natural depreciation in value of these particular buildings in consequence of competition with more modern and desirable apartment buildings, which multiplied in- great number in that section after 1892. There is quite as much divergence in the testimony of the experts as to the value of the buildings at the periods above stated. Plaintiff’s experts place the value of the buildings in 1883 at $80,000; in 1892, at $85,000; in 1898, at $48,000. Defendants’ experts give the values for the same periods as $5.6,000, $50,000 and $45,360, respectively. We think that, after making due allowance for the vested rights of the defendants under the Adriance deed, and under their user of the additional space in Park avenue under legislative and municipal sanction, and after taking into account both the natural rise and fall in real estate values during the periods above mentioned, the evidence supports the conclusion that the additional burden placed upon the plaintiff’s land by the defendants’ use, since February 16, 1897, of the present viaduct structure, has caused a permanent injury to plaintiff’s freehold to the extent of $15,000. Much of what has been said applies with equal force to the question of rental value. The same considerations which have influenced the course of fee values have affected, in greater or lesser degree, the course of rental values. The plaintiff’s evidence tends to show that from 1884 to 1892 the rents amounted, annually, to $9,628. In considering this evidence we must not lose sight of the fact that the books in which the rental accounts were kept were destroyed in 1891, and that the statements from which the plaintiff’s agents testified were made up from memory. It is worthy of notice, also, that there is no statement of rents for the year 1893. In 1894 the plaintiff collected rent to the amount of $6,250; in 1895, $5,087; in 1896, $4,038; in 1897, $3,415; in 1898, $3,417. These figures present a total loss in rentals from 1894 to 1898, both inclusive, of $25,932, or average yearly loss of $5,180.40. In the effort to ascertain how far, if at all, the railroad companies are responsible for this shrinkage, we are again confronted with the vested rights of said defendants and with the history of real estate in that section. The railroad companies had the right to use sixty-one feet in the center of Park avenue for the operation of their railroad at any grade that might be fixed by the Legislature and sanctioned by the municipal authorities. This contemplated use did not, however, give the railroad companies the right to use such a structure as the present one, nor, in any event, a structure eighty-two feet in width, with perpendicular sides, and supporting columns on the curb line of the street. Nor can the railroad companies plead their vested rights and user in defense of injury to the rental value caused by work done under contracts made directly with them. That the present structure renders the front apartments and stores somewhat less desirable than they were before the erection of the present structure is a self-evident fact. That the work done by the defendants in the erection of their station, and in the changing of the viaduct, created much additional noise and inconvenience is clearly established. But it is probably equally true that the plaintiff’s buildings did not escape the general depression of 1893 to 1898. Neither can we assume that plaintiff’s tenants were so much better than the average tenant that no allowance need be made for losses in rents not paid. Nor is there any doubt that the plaintiff has suffered somewhat in rental returns because of the increase in competition with other apartment houses and stores. There is in this regard, as we have said, the same speculative uncertainty as to the precise cause or causes which have operated to reduce rental values, and there is the.same difficulty' in ascertaining the extent to which any particular cause may have been operative, as there is trying to measure the damage to the fee value.

Upon the whole evidence relating to this branch of the case, we think that an allowance of $7,200 for rental damage will be sufficient, and yet not excessive. This is an average of $1,200 per year from 1893 to the time of the trial. But this allowance is not made upon the theory that there has been an average loss of $1,200 per year" on the contrary, we think that the loss must have been much less in 1893, 1897 and 1898 than it was in 1894, 1895 and 1896. ■ It was in the last-named years that the work of erecting that part of the structure which was to be devoted to the station was done, and it was also in that period that the taking down of the original work and the building of the second station was commenced and completed. After taking into account the extent to which the railroad companies had the right to use Park avenue for their purposes, and the degree to which they were not responsible for the work which was done in the construction of the viaduct, and after having given the fullest consideration to the various agencies not in anywise connected with the railroad companies which may have affected the rental value of plaintiff’s premises, we think that the sum stated is fair compensation for the loss of rentals sustained by the plaintiff by reason of the defendants’ acts.

We consider, therefore, by holding that the plaintiff is entitled to a decree giving the plaintiff an injunction as prayed for in the complaint, unless the defendant, The New York & Harlem Railroad Company, or its lessee, the New York Central & Hudson River Railroad Company, within sixty days from the entry of judgment herein, pay to the plaintiff the sum of $22,200, upon the delivery of a release from the plaintiff conveying to said defendants the right to occupy and use Park avenue as against the plaintiff.

Said sum is made up as follows: Rental damage, $7,200; fee damage, $15,000; total, $22,200.

Let judgment be entered accordingly.

Judgment accordingly.  