
    In the Matter of the Proceeding by the Seaside and Brooklyn Bridge Elevated Railway Company, Resp’t, to Acquire Title to Lands. South Reformed Dutch Church, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    Damages—Elevated railway.
    A church, in front of which an elevated railroad is constructed, cannot recover damages for noise made in its operation.
    Appeal from an order confirming an award.
    
      
      Robert H. McGrath (John D. Pray, of counsel), for app’lt; Wingate, Cullen & Miller (Geo. W. Wingate, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order confirming an award of commissioners to appraise the compensation to be paid to the South Beformed Dutch. Church for the property and easements taken therefrom. The commissioners awarded the sum of $1,500 as the compensation which ought justly to be made to the church for the privileges, easements, and property in Third avenue in front of and adjacent to the property of the church, or which are appurtenant thereto, which will be taken and affected by the construction and operation of the elevated railroad in Third avenue. In making such award the commissioners recognized the right of the church in Third avenue to the center thereof, but made no allowance on account of the noise produced by the operation of the elevated railroad. The church raises serious objections to the award on account of its size, but it is by no means so palpably insufficient as to justify our interference upon that ground. The reluctance of appellate courts to interfere with the awards of commissioners upon mere questions of damage has been so often stated, and the reasons for such hesitation, have been so fully explained, that a repetition of them has ceased to be profitable or necessary. Our views are expressed in Re Staten Island R. T. Co., 47 Hun, 396; 14 St. Rep. 924. The commissioners have violated no legal principle in making their award, unless their failure to make an allowance for the noise was erroneous, and we must therefore proceed to the examination of that question.

It is unquestionably true that the noise and confusion produced by the passing trains on the elevated railroad interfere seriously with the preaching and other religious services in the church, but the difficulty seems to be radical and without remedy. Noise is incident to all public streets, and is not a diversion of them from the purposes for which they are opened. This church had an easement in Third avenue of light, air, and access, but had no easement for quietude. Such an easement would be inconsistent with the rights of the public in the street The constitutional right to compensation extends only to property or proprietary rights taken for public use, and does not include compensation for disturbance by noise or annoyance of any kind which is incidental to the construction and operation of the railroad. A property owner is entitled to pay for what is taken from him, and to remuneration for incidental damages. In re New York El. R. Co., 36 Hun, 434, and cases there cited. The measure of the right is this : Compensation for the property actually taken, and for the reduction in value of the residue bv reason of such appropriation. Henderson v. Railroad Co., 78 N. Y. 423. Depreciation of the property by the construction of the road is to be included, of course, but not the disturbance from noise. Briesen v. Railroad Co., 31 Hun, 112; Railroad Co. v. Dayton, 10 Abb. Pr. (N. S.) 183; In re New York El. R. Co., supra. The case of In re Utica, G. & S. Y. R. Go., 56 Barb. 456, which laid down a rule somewhat different from the current authorities, is now disapproved. In re New York El. R, Co., supra. This view of the rule of damages gives cogency to-the conclusion we reached in the examination of the question upon principle. It has been said that the elevated railroad companies are liable for the noise of their trains in actions for the recovery of damages only, upon the ground that they are trespassers,, and responsible for all the injuries resulting from their wrongful act. That rule, however, has no application in condemnation proceedings, where no wrong is involved, and the sole inquiry has respect to the compensation to be awarded to an owner w hose-property is to be rightfully appropriated under the right of eminent domain. Bischoff v. Railroad Co., 138 N. Y. 262 ; 52 St.. Rep. 374; American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 258; 41 St. Rep. 531. The rule is well stated by Judge Andrews in the opinion in Bischoff's Case, as follows:

“ The principles governing the award of damages in cases like this have come to be quite.well understood. The property,rights of an abutting owner consist of easements of light, air and access. There are no easements of privacy or quiet, or other easements than those mentioned, for which compensation can be claimed. In ascertaining past damages,, the question of noise may enter as an element into the award, but not in ascertaining the compensation to be paid for the future appropriation of the street for railroad uses.”

It is contended by the appellant that this case is beyond the control of these authorities, because the title of the church extends to the center of the avenue; but we have found no authority for any such distinction. It has been steadily held since the decision of the Story Case, 90 N. Y. 122, that an abutting owner, by reason of his location, has an easement for the purposes of air, light, and access from such street, and that such rights are “property,” within the meaning of the constitution. Such rights are independent of any ownership in the streets, and they exist to the same extent whether the title of the owner extends to the center or the side of the street. The abutting owner whose title terminates at the side of a street, has a right to the use and enjoyment of all the light and air supplied by the street, and the owner whose title extends to the center can have no more, because there is no more to be had. Both sorts of owners are entitled to all the air and light which comes to their premises over the street, and neither can receive any more from that quarter. Neither is there any difference between the two kinds of owners in respect to their rights of access. The abutting owner is entitled to the use of the street, where his title extends only to-the side of the street, in as full and ample a manner as he would have if he owned the middle. The right of access and the right to light and air from public streets and thoroughfares are rights which pertain to real property, and they can neither be enlarged nor diminished by any legal rights in the soil of the streets, nor by the want of such rights. Light and air come from the heavens above, and they are both free. There can be no property rights in either, except in connection with real property, and such rights are independent of any rights in the land over which they are received. Riparian proprietors on the banks of navigable waters have a right of access to the water, and yet they have no ownership in the land under water.

In our view, the order should be affirmed, with $10 costs and disbursements. All concur.  