
    In the Matter of the Petition of The Brooklyn Elevated Railroad Co., Resp’t, to acquire title to real estate of Edgar J. Phillips et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Eminent domain—Measure of damage—Evidence.
    In determining the damages caused by the erection of an elevated railroad to abutting premises whose owners did not own the fee of the street, the effect of the railroad in its evil or beneficial result must be considered, and testimony to show that its construction had increased the value of property in that vicinity is admissible
    Appeal from order confirming report of commissioners of appraisal.
    Proceeding to condemn certain interests in real estate situated on Lexington avenue, in the city of Brooklyn. Two of the commissioners reported in favor of allowing the appellants six cents damages for each house, while the other reported in favor of substantial damages. The majority report was confirmed.
    Appellants excepted to testimony received on the hearing to the effect that the increased facilities of transit brought by said road had benefited the property affected by these proceedings.
    
      Phillips & Avery, for app’lts ; F. R. Minrath, for resp’t,
   Barnard, P. J.

The section of the general railroad act, in respect to damages to be paid by companies for lands taken for railroad purposes, does not give a plain rule in respect to the basis upon which the assessment is to be made.

By this section it is provided that a commission “ shall ascertain and determine the compensation which ought justly to be made by the commissioners to the party or parties owning or interested in the real estate appraised by them, and in determining the amount of such compensation they shall not make any allowance or deduction on account of any real or supposed benefit which the parties in interest may derive from the construction of the proposed railroad.” The courts have construed the section to mean that the inquiry is to embrace the market value of the premises before the taking and what it will be worth after the railroad is built, and this in a sense involves a probable benefit from the railroad. This inquiry necessarily takes in the advantages from the railroad when the extent of the injury is to be based upon the diminution of value by reason of its construction.

The true rule seems to be after the examination of any case to appraise the value of the land taken, and, in addition, to give the difference which results from the diminution of value to the whole tract from which the railroad strip is taken. Henderson v. N. Y. Central R. R. Co., 78 N. Y., 428.

In this case no land of the appellants was taken. The fee of the street is not in them so far as shown by the case. The basis of appraisement must then be the difference in value between the abutting house before the construction of the railroad and after-wards. Under this rule of assessment the testimony objected to was proper.

In determining the value of the property after the construction of the elevated road, its effect upon such value could not be excluded. The inquiry into the difference of value before and after the taking could not be conducted without including the effect of the constructed road upon it. The role followed does not conflict with the statutes. The land taken is to be paid for and also the damage to land not taken. On this question the effect of the railroad in its evil and beneficial results must be considered. The value of the land taken is not to be dismissed, but the resulting-damages to land not taken must involve all things which enter* into the subject of value.

The order should therefore be affirmed, with costs.

Pratt, J., concurs.  