191 N.Y. 333 | NY | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *337 This action is brought by an abutter to recover damages to his property occasioned by the construction and maintenance of an elevated railroad on West Broadway, in the city of New York. In addition to the usual features of such an action it seeks to compel the removal of a portion of the defendants' station which extends into Franklin street beyond the line of West Broadway. The trial court awarded the plaintiffs a judgment for rental damages and an injunction against the maintenance of the railroad unless the defendants paid the plaintiffs the damages assessed for the fee, and also a mandatory injunction compelling the defendants to remove so much of the station as lay beyond the lines of West Broadway. The court found the damage caused to the plaintiffs' property by the station extension to be the sum of $1,500, but it gave the defendants no option to retain the structure on payment of said sum. The judgment having been affirmed unanimously by the Appellate Division an appeal is brought to this court.
The defendants pleaded title by prescription, and it is undisputed on the evidence and found by the trial court that more than twenty years prior to the commencement of the action the defendants entered upon West Broadway under the charter from the rapid transit commission and the acts of the legislature, constructed their road and have ever since maintained and operated it. To defeat the defendants' claim of title by prescription, and to show that defendants' entry was not in hostility to the rights of the plaintiffs to easements of light, air and access, the plaintiffs proved, over objection and exception, the defendants' payment of damages to and settlements with other abutters and also the returns made by them to the tax commissioners. The evidence was substantially the same *338
as that offered in Hindley v. Manhattan Railway Company
(
It is next urged that the failure of the defendants to have their requests to find, so far as they were granted by the trial court, incorporated in the findings deprives the defendants of the benefit of such requests on this appeal. We do not thoroughly appreciate the relevancy of this point if well taken, which, in our opinion, it is not. We cannot approve the doctrine of the Appellate Division in Elterman v. Hyman (
It is not necessary, however, to reverse the judgment before us in entirety. The causes of action created by the defendants' entry upon West Broadway and that created by the extension of the structure into Franklin street beyond West Broadway, are entirely separate and distinct. Therefore, under the decision of this court in City of Buffalo v. Delaware, Lackawanna WesternR.R. Co. (
So much of the judgment of the courts below as awards the plaintiffs rental and fee damages for the construction and operation of the railroad on West Broadway must be reversed and a new trial ordered, costs to abide the event. The remaining portions of the judgment should be affirmed, without costs in this court to either party.
GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment accordingly.