159 N.Y.S. 473 | N.Y. App. Div. | 1916
The petitioner began a condemnation proceeding against Catherine Cabot to acquire an easement in the bed of Union street in the borough of Brooklyn, a portion of which was owned in fee by Catherine Cabot. A notice of lis pendens was filed on March 31, 1914. At that time the petitioner was in actual possession of Mrs. Cabot’s property, as it maintained and operated its street railroad over and upon it. Mrs. Cabot did not own the abutting property. An order was made in the proceeding allowing the petitioner to remain in possession of the land pending the termination of the proceeding upon condition that it gave a bond in the sum of $500 in favor of Mrs. Cabot. As the matter then stood, as Mrs. Cabot did not own the abutting property, she could not recover an award for damages to the abutting property arising from the maintenance and operation of the street railroad. At most, she might recover nominal damages for the imposition of the new easement upon her land already subject to a street easement. (Matter of City of New York, 196 N. Y. 286.) As the abutting owner did not own the fee of the roadbed, he could not recover more than nominal damages. (Kennedy v. Mineola, H. & F. Traction Co., 178 N. Y. 508.) In the matter at bar, one Boylan, the present appellant, was the abutting
The order of the Special Term should be reversed, without costs, and the motion granted, without costs.
Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.
Order reversed, without costs, and motion granted, without costs.