137 N.Y. 155 | NY | 1893
The only point, which is presented to us upon this appeal, is as to the correctness of the refusal by the referee to make the following findings when requested by the defendants:
"Fifteenth: The sum fixed which the defendants may pay in order to obviate the injunction herein should not be greater than a sum necessary to compensate the plaintiff for the perpetual maintenance of the defendants' elevated railway structure andexclusive of the damages caused by the running of trainsthereon.
"Refused. — W.H.W., Ref.
"Sixteenth: The value of so much of the plaintiff's easements as are taken by the perpetual maintenance of the defendants' elevated railroad structure, and exclusive of all injuries inthe future caused by the running of trains thereon, is the sum of dollars.
"Refused. — W.H.W., Ref."
The referee's rulings were excepted to and these exceptions, alone, are relied upon by the respondents to sustain the reversal by the General Term. The General Term justices, in their opinion, took the quite unwarrantable view that the defendants, in acquiring the right to maintain their structure in the street, are not bound to make compensation for the incidental injuries produced by the running of trains upon the same, and that the future discharge of smoke, cinders and noxious gases are not items of damage which should be considered in the estimate of the compensation to be made.
The defendants' counsel concisely states the proposition of the General Term justices to be, that the plaintiff had no easement which can be taken by the running of trains, and he earnestly and ingeniously seeks to sustain its correctness. The argument is that though such items may properly enter into the estimate of damages suffered in the past, the trespass itself *158
consists only in the maintenance of a permanent structure in the street, and the lawful operation of the company's franchises, in the running of trains upon the structure, whatever may be the incidents attendant, if necessarily so, cannot afford grounds for an award of compensation, when the company seeks to acquire, or to condemn, the rights of the abutting property owner. The argument is rested, almost wholly, upon our decision in Fobes
v. Rome, etc., R.R. Co. (
In holding as he did that the passage of the numerous trains, at short intervals, over the railway structure constituted an inconsistent and excessive street use and that, to that extent, the defendants have taken, and will hereafter keep, a part of the plaintiff's easements of light and air, the referee was clearly right and he was perfectly justified, in fixing the amount of damages to be paid by the defendant in order to obviate the injunction, in refusing to exclude the damages caused by the running of trains.
The doctrine of the elevated railway cases has been of steady and consistent growth, since its rise in the decision of theStory case; which converted many of what, under previous circumstances of street railway uses, were mere consequential injuries into invasions of the property rights of adjoining property owners. The theory of awarding damages *160
in actions against the elevated railway companies has been that they are trespassers as to abutting lot owners and are responsible to them for such injuries as may be proved to result from their wrongful acts. In their occupation and use of the street, they take from the abutting lot owners a portion of their easements in the street, without making compensation and, hence, they are, as to them, illegally there. (See Kane v. N.Y. El.R.R. Co.,
The principle, which should guide an award of damages to be paid by the railroad company in order to obviate the injunction, is the same as in proceedings under the statute to condemn property for the railroad use. The injunction of the court and the alternative damages are deemed to be a *162
substitute for those proceedings. In computing the alternative damages, their extent and the elements should be the same as would be considered in the computation of the compensation to be given in proceedings for the condemnation of lands for a railroad use; due regard being had to the different characteristics of the property to be taken. (American Bank Note Co. v. N.Y. El. R.R.Co.,
It is needless to further discuss the question. I think the decision below was the result of a total misapprehension of the decision in the Fobes case and is opposed to the principle of all of our decisions in this class of litigation.
The order of the General Term should be reversed and the judgment entered upon the report of the referee should be affirmed, with costs in both courts to the appellant.
All concur.
Order reversed and judgment affirmed. *163