17 N.Y.S. 804 | N.Y. Sup. Ct. | 1892
On the argument of this appeal, the appellants’ counsel waived the objection that error had been committed by the referees in awarding damages on account of injuries inliicted upon the premises in suit, for a period of time subsequent to the commencement of the action, and be rested his appeal solely upon the ground that it was error on the part of the referees to grant an injunction against the future running of trains, and to include damages for any injuries incidental thereto, in fixing the sum to be paid as the value of the easement. It is now perfectly well settled that, although an elevated railroad is liable in an action at law for the wrong done abutting owners by the noise of passing trains, such noise should not be taken into account as an element of fee damage in actions of this nature. American Bank-Note Co. v. New York El. R. Co. (N. Y. App.) 29 N. E. Rep. 302. We fail, however, to discover, from the admission of the evidence in this case as to noise, smoke, and cinders, that the referees, in estimating the amount which the plaintiff should receive as damage to the fee, included such damages as arose from the incidental use and operation of the road. The exceptions upon which the appellants rely are based upon the refusal to find the sixteenth proposed conclusion of law of the defendants, taken in connection with the twelfth and fourteenth findings of the referees. Those findings, in our opinion, do not show that the referees allowed, as a part of the damage to the fee value of the plaintiff’s property, the injuries incidental to the running of trains. The use of the words “permanent maintenance and operation of such road” does not necessarily include such incidental damages, and it seems to us hypercritical to say that the referees, by their findings and their refusal to find, have indicated that such damages were included in the conclusion which they reached, or in the judgment entered thereon. There is no other question in the case, and we are of opinion, therefore, that the judgment rendered below should be affirmed, with costs and disbursements to the respondent. All concur.
