Smith, J.
Defendant’s insistence that plaintiff is estopped from questioning the defendant’s right to cross this highway by reason of the silence and acquiescence of his grantors is not sustained by any proof. The railroad company did not get its title from the plaintiff’s ancestor or grantors, nor is there a word of evidence that the road was built without objection upon the part of those who then owned. the land- in question. It is conceded that no action was brought until about 1894, while the bridge was built in 1884; but the plaintiff was in 1884 an infant. An estoppel is an affirmative defense, and he who would rest upon it must prove the facts upon which it can stand.
We do not agree with appellant’s contention that the wrongful act of the defendant in placing this bridge over the land with the iron supports resting thereupon gave title thereto so that plaintiff may charge for the use' thereof by the defendant company as for rental. The rule of law as stated in De Camp v. Bullard (159 N. Y. 450) is not applicable in this case. The occupation of this land as to plaintiff has been called by Judge Gbay in the Court of Appeals that of a q%Msi trespass. (O’Reilly v. New York Elevated R. R. Co., 148 N. Y. 353.) The defendant is there, however, by permission of the municipality, which municipality, it would seem, - would have the legal right to any compensation, or at least to a part thereof, for the use and occupation of the. land if the. defendants be liable therefor. The plaintiff at least has not such an interest in the street as to entitle him in case of this quasi trespass to charge the defendant with the damages sought as a penalty for the trespass.
The ownership of this fee in the highway, however, is a substantial property right, as an appurtenant to the block of laud just south of this highway. In case of the abandonment of Alabama street the plaintiff, by his ownership of the fee of this highway, would still have the -right of-way to Scott street to the north, which might be a most valuable right in connection with the use of this parcel of land to which it is appurtenant.
The present beneficial use of the plaintiff in the fee of this liigh- , way over which defendant’s bridge runs can be little more than that of a right of way. If the street be abandoned we cannot see how it can even then be more. In case of its abandonment the defend*10ant, as the grantee of land upon both sides: of this, highway, would have a private, easement of access and egress therein as in a highway. (Holloway v. Southmayd, 139 N. Y. 390; Lord v. Atkins, 138 id. 184.) The plaintiff has been injured by the acts of the defendant, therefore, practically to the extent that his right of.way lias been impaired by the obstructions placed therein. With a headway of twelve feet under the tracks we cannot conceive that there can be, even with the placing of the iron pillars in the street, such' an obstruction to the plaintiff’s right of way as can be very substantial. If the damage to the plaintiff be nominal it would seem, under the case of O'Reilly v. New York Elevated R. R. Co. (148 N. Y. 347), that the plaintiff should be denied relief. It cannot be said, however, as matter of law that the plaintiff’s damages are merely nominal. Upon the trial of the action the plaintiff showed the rental value of this bridge upon the theory that he had become the owner of the bridge and was entitled to collect its rental value from the defendant under the De Camp Case (supra). The court overruled defendant’s objection that such was not the proper rule of damages and allowed the evidence. After the decision was informally announced plaintiff made application to the court to be allowed to prove substantial damages, that is, the difference in the value of this parcel of land owned by him with his highway obstructed and unobstructed. The plaintiff was not allowed to prove these damages and the court held that the damages suffered were merely nominal.' Having ruled with the plaintiff that the measure of damage-upon which he offered evidence was the proper measure of damage, the plaintiff had the right to rely thereupon, and when the trial court afterwards held that it was not the proper measure of damage the plaintiff should have been allowed to make proof of his damage under the proper rule. It seems to have been held that, the plaintiff in this case has no legal action of ejectment. (Coatsworth v. Lehigh Valley Railway Co., 29 App. Div. 627.) If his damage .be substantial- this then is his only remedy except successive legal actions for damages, the necessity for which it is the endeavor of the court to avoid. In the O'Reilly case cited, Judge Gray (at p. 357) says: “A court of equity has a certain latitude in the' exercise of its great power and under no. authority or rule, with which I am acquainted, is it compelled to grant an in june*11tion in a case like the present one, which belongs to a peculiar class and is governed by a doctrine of recent growth in the courts. The court recognizes the fact that the defendants had the right to appro priate the street easements by condemnation proceedings and, hence, when appealed to, to enjoin them from operating their franchises, it looks into the question of the substantial nature of the damage alleged to have been done to the property, or of the loss suffered by the owner. If it is found to be such, then the court proceeds in the matter as though the proceeding was one to condemn to the defendants’ uses the property appropriated, and, having ascertained the value of the property, it suspends the decree, which it finds the plaintiff is entitled to to restrain the continuance of the defendants’ acts, for a sufficient period within which to permit the defendants to acquire the right to appropriate the easements through a conveyance, as a condition of avoiding the enforcement of the decree. The proceedings, by which the court ascertains and fixes the damages done to the abutting property in the deprivation of easements, are, in fact, but a substitute for condemnation proceedings. If the plaintiffs fail to establish that substantial injury has been inflicted upon their property, a decree enjoining the operation of the rail-^ road would be unwarranted. One of the very grounds, and a main one, upon which equity proceeds in granting relief, by way of injunction against the unlawful acts of the defendants, would have been wanting if no actual and irreparable damage were shown.” We conclude, therefore, that the plaintiff should have been allowed to make proof of what actual damage was caused to his.property by this partial obstruction of his right of way. If after the proof is in the court should be of opinion that the damage was nominal then under the authorities cited the injunction should not be granted. If, however, upon the proof it should appear that substantial damage is caused ■ by this obstruction the plaintiff is entitled to sonie relief, the extent of which is for the trial court first to consider and determine. The judgment should, therefore, be reversed anda new trial granted, with costs to abide the event.
All concurred.
Judgment reversed on law and -facts and new trial granted, with costs to abide event.