Ingraham, J.:
This action was brought to restrain the defendants from maintaining and operating a railroad upon a structure in Fourth avenue opposite the plaintiffs’ premises on the southwest corner of One Hundred and Twénty-ninth street and Fourth avenue, in the city of Hew York.
Prior to the year 1828 one Charles Henry Hall was the owner of the premises in question, and on the 16th day of September, 1828, Hall conveyed the premises to one Bussel by a conveyance which would include the fee of the easterly half of Fourth avenue in front of the plaintiffs’ premises. Subsequently, on the 1st day of May, 1834, Bussel reconveyed this property to said Charles Henry Hall by the same description by which he had received title to the property. On the 10th day of October, 1839, Charles Henry Hall conveyed the premises to David P. Hall by a description which would convey the fee of the westerly half of the said avenue. By a resolution of the common council, approved by the mayor February 1, 1832, the Hew York and Harlem Bailroad Company was permitted to construct and lay down, in pursuance of its' act of incorporation (Laws of 1831, chap. 263), a double or single-track rail*166road along Fourth, 'avenue from. Twenty-tim’d street to the Harlem' river, provided that the width of such double -or single track.should not exceed twenty-four feet, with yarious conditions and provisos, which ordinance was -accepted by the railroad company, who, by 'special agreement, promised, covenanted and agreed te and with the city óf New York, “ to stand, abide by and perform all the conditions and requirements in the saiA ordinance contained.”- Under this per- , niit the railroad company-constructed its road, and two tracks .upon the surface of the ground were com pletéd within tlietwenty-foü-r-feet strip in thé yeár 1837.' -By chapter. 274 óf the Laws-of 1837 Fourth avenue- was widened to a width of one hundred and forty feet. ' By deed dated January 18,1832, recorded in the office of the register of the county of New York on August 18, 1835, Charles Henry Hall, although nbt then the owner of the fee of Fourth avenue in front of plaintiffs’ property, executed a deed which conveyed to the Harlem Bailroad Company a certain strip or parcel of land, being one of the , avenues laid out-On the map of the city of New York as Fourth avenue, and as included within a space of twenty-four feet wide running through the center of said avenue, between One Hundred and Twenty-seventh and One Hundred and Thirty-fifth streets.. This • . strip of land is bounded .northerly by the'channel, of the Harlem river, southerly by land belonging lately'to the heirs of John F. Siokels, deceased, and east and west by lines drawn parallél to the center o.f . Fourth avenue and each side thereof, a distance of twelve -feet there- • from, with the power of sloping their embankments-or excavations so much further than the lines of said premises thereinbefore granted as may be necessary to support their work, not, however, extending beyoiid the width of the avenue. ■ No consideration was expressed and there is no evidence that the Harlem Bailroad Company paid Hall any consideration. This conveyance of Hall to the Harlem ' Bailroad Company did not convey this property, as, at the time of •■'the conveyance, the westerly half of Fourth avenue, in-front of plaintiffs’ property, was owned by Basse], the deed conveying it to . him having been duly'recorded. It further appeared that in the year I860'proceedings were taken by., the mayor, aldermen and . commonalty of the city of New York to open Fourth avenue as-a street o'ne hundred and forty feet wide from Thirty-eighth street to the northerly side of One Hundred and Thirty-fifth street, and -that *167by such proceedings the city acquired title to this land one hundred and forty feet wide for the purpose of Fourth avenue. Whatever interest in this strip of twenty-four feet had been.acqtiired;by the railroad company from Hall 'was, under this proceeding, acquired by the city of New York. The railroad company, however, continued to use the surface of the street for its road with a double track. Under an act of the Legislature (Laws of 1872, chap. 702) the railroad company was required to construct its railroad either above or beloV grade as therein prescribed, and it was authorized to use four tracks instead of two, and to take such additional space in Fourth avenue as might be needed for that purpose. Under this statute the railroad company excavated a cut in front of these premises about fifteen feet in depth and fifty feet in width at the bottom, with a slope of wall which increased the width of the cut to about sixtv-one feet eight inches at the top. The distance from the side of the cut to the building line was about forty feet, of which' about twenty-five feet were used as a highway and about fifteen feet for a sidewalk. This cut was crossed at One Hundred and Twenty-ninth and One Hundred and Thirtieth streets by bridges upon the'snrface of the streets, and the New York and' Harlem Railroad Company and its lessees ran trains in this cut- without interruption down to February 16, 1897. By chapter 339 of the Laws of 1892 the grade of said railroad was authorized and required to be changed, and the tracks were required to be carried past the premises on a viaduct of iron or steel, or of both, so that all streets from and inclusive of One Hundred and Twelfth street to the Harlem river should be passed over with a clear height of not less than fourteen feet above the surface of the pavement. This viaduct was completed and trains ran on it in the year 1897, since which time it has been in the exclusive possession of the New York Central and Hudson River Railroad Company as lessee of the New York and Harlem Railroad Company, and upon this viaduct the trains of this company are how operated.
It seems quite unnecessary to refer to the various cases decided by the Court of Appeals prior to the reversal by the Supreme Court of the United States of the cases of Muhlker v. Harlem Railroad Co. (197 U. S. 544) and Birrell v.New York & Harlem R. R. Co. (198 id. 390), for in the case of Sander v. State of New York (182 N. Y. 400) the Court of Appeals, referring to these various cases, *168said : “ Bat on appeal to the Supreme Court of the'.United States the Muhlker case, with several others which followed that decision, was ■ reversed, the Supreme Court holding that under the decisions of this court in. the elevated railroad cases abutting owners had special easements in a street, an invasion of which by the erection of a viaduct, without compensation for such invasion, was taking property without due process of law in contravention of the Federal Constitution. Of course, with the decision of the Supreme Court in the Muhlker case our own decisions in the cases cited have ceased to be aiithorities.” Upon this record we think that any Interest that the New York and Harlem Railroad Company acquired under the deed from Hall in 1832 was acquired by the city of New York under the condemnation proceedings under which the city'acquired the title to the whole .of Fourth avenue from Thirty-eighth street to the Harlem river and 140'feet in width. The Harlem railroad ' was a party to that proceeding. The fee of .the whole avenue was acquired in that proceeding, and an award w.as 'made to the Harlem • Eailroad Company for its property taken. There can be, I think, no question but that by that proceeding the fee of the avenue vested in the city under chapter 86 of the Eevised Laws of 1813, to be held -by the city in trust for a public street. This ownership of fee was not at all inconsistent with the right that the New York and Harlem Eailroad Company had acquired under its contract with the. city of ‘ New York to maintain tracks upon the surface of the avenue and operate its road upon those tracks; but after the fee of the avenue was acquired by the city under these proceedings, the sole right of the defendant, the New York and Harlem Eailroad Company, in and to Fourth avenue was the right that'it had acquired under, the ordinance of the city of 1832 and its contract with the city based upon that ordinance. Any interest in Fourth avenue that the railroad company had acquired under the Hall deed,.or any title to the avenue having been thus d-ivested, Fourth avenue became one of the public streets of the city of New York, and the abutting -owners acquired the same right to Fourth avenue as a public street as the abutting owners upon other streets in the city of New York which had been opened under the act of 1813 had acquired. Eussel, the grantee of Hall in 1828, acquired the fee of that street an,d his grantees continued the owners of the fee of the street until that fee was taken *169from them under the condemnation proceedings instituted in 1850, by which the city of Hew York acquired the fee of Fourth avenue. When Hall attempted to make this conveyance to the Harlem Bailroad Company he had already conveyed the westerly half of Fourth avenue to Bussel. There was no warranty of title in Hall’s deed to the railroad company and consequently the title to the street that Hall subsequently acquired by the conveyance from Bussel did not by way of estoppel vest in the Hew York and Harlem Bailroad Company, but passed by a subsequent conveyance to his grantees from whom it was divested by .the condemnation proceedings. So it seems to me that in whatever way we may look at this case the Harlem Bailroad Company never acquired any title to the fee of Fourth avenue in-front of.the plaintiffs’ premises, and never acquired any right to use any portion of this avenue, except the right that it acquired to use the surface under the ordinance of the city of Hew York. Under the act of 1872 the track was depressed below the surface. This, presumably, was with the consent of the municipality and under the direction of the Legislature, but it imposed no burden upon the abutting property, as the trains were run below the surface of the ground and the rights of abutting property to air, light and access were not interfered with. When, however, in 1897 this viaduct was completed and taken possession of by .the defendants there was appropriated by the railroad company in constructing and maintaining this viaduct the right of the abutting owners in this street, and the taking of that property without compensation, by either the State or a railroad company under the direction of the State, was a violation of subdivision 1 of section 10 of article 1 and section 1 of the 14tk amendment of the Federal Constitution as well as section 6 of article 1 of the Constitution of this State, and so the Supreme Court of the United ■States expressly decided in the Muhlker Case (supra).
The only question, therefore, that seems to us to be open is whether .the awards made by the court for this property were sustained by the evidence and whether error was committed upon the trial which requires a reversal of the judgment.
There are no exceptions to rulings upon evidence which require examination, as'they have all been disposed of by other cases. The court awarded to the plaintiffs $6,200 damages caused to the rental *170value of the property by reason of the trespass. This was a period from February 16, 1897, to June 12, 1901, four years and four months, Which was at the rate of- about $1,430 a year. The evidence shows that the rents actually collected for the year 1892 were $4,098.50, and that the total rent collected for the years 1897,1898, 1899 and 1900 aggregated $10,236.50. If the plaintiffs had been able to collect the rentals that they received in the year 1892 or 1893 for these four years, the amount would.be at the 1892 rate, $16,384, and at the 1893 rate, $15,790. There is no cause suggested in the record for the decrease of the rent, except this structure on Fourth avenue, and if the decrease of rental .for these four years is attributed to the existence of the defendants’ road, the amount is in excess of that allowed' by the trial court. I think, therefore, that the award made for rental damage was justified by the evidence. The court awarded as the depreciation in the fee value of the property the,sum of $11,720. The testimony of the expert is that this property was in-1892 about $69,000; that in the year 1897 the. value was $57,542, and in 1901, $44,356. This shows a depreciation in value between 1892 and 1901 of over $24,000.
I think this testimony justified the award for fee damage, and my conclusion is that the judgment appealed from was right and should be affirmed, with costs. ' .
O’Brien, P. J., Laughlin, Clarke and Houghton, JJ., concurred.
Judgment affirmed, with costs.