1 Misc. 339 | New York Court of Common Pleas | 1892
By appropriate exceptions appellants challenge the validity of the judgment in respect both of fee and rental damage, and we are constrained to the conclusion that in each particular the learned trial court committed error. At last the measure of compensation for the wrongful invasion and appropriation of private property in the streets by elevated railroad companies has been definitély determined by the court of appeals, and it is, this: For property actually taken by the companies they must pay the full market value without allowance or reduction on account of benefits; and as to property not taken, but injuriously affected, they must make good the depreciation caused by such wrongful invasion and appropriation. Bohm v. Railway Co., 129 N. Y. 576, 29 N. E. Rep. 802. As to the latter element of compensation, namely, damage to property not taken, the case cited conclusively establishes the proposition that, if the value of such property be not diminished by the presence and operation of the railroad, then no injury has-been sustained and no indemnity is due. For the mere taking of plaintiff’s-easements in the street, he is entitled only to nominal damages. Bohm v. Railway Co., supra; Newman v. Railway Co., 118 N. Y. 618, 23 N. E. Rep. 901. And, as to the injury inflicted upon him by the wrongful appropriation of his property in the soil of the street, we are not authorized to infer that it was substantial, since no evidence was adduced or finding made as-to the value of that property. It results, therefore, that the sum to which plaintiff is entitled on account of permanent injury to his premises depends upon and is proportioned to the amount of depreciation in their value. This amount the learned trial judge ascertained tó be $10,250. But the learned" trial judge finds as a fact, that “the fee value of said premises is greater today than at any time before the erection of said railway structure. ” He does not find, nor did the evidence authorize him to find, that this increase in the-value of plaintiff’s premises was due to any other cause than the agency of defendants’ railroad; neither does he find, nor did the evidence authorize him to find, that but for the presence of the railroad the increase of value would have been still greater. “There is not a shadow of evidence that if the defendants had not taken this property and built their railroad the property of the plaintiff would have been as valuable, or anything like as valuable, as it is.” 129 N. Y. 594, 29 N. E. Rep. 807. It is apparent, therefore, that the-