16 N.Y.S. 392 | N.Y. Sup. Ct. | 1891
The plaintiff became the owner of premises situated upon the northerly side of Fifty-Third street, 300 feet easterly from the north-easterly
Whether these items should enter into the amount to be paid by the railway company for the easements in this manner interfered with and obstructed has not been decided or determined by any finally controlling authority. But it has been held in the case of Fobes v. Railroad Co., 121 N. Y. 505, 24 N. E. Rep. 919, upon a full consideration of the decisions affecting these elevated railway structures and their use in the city of Hew York, that the adjacent owner of property fronting upon a street, who has no title to the land appropriated to the street, has no right of action against a railway company whose railway has been legally authorized and operated over the surface of the street itself. The effect of the decision substantially is that, where the adjacent owner has no title to the land over which the railway is constructed, he can recover no damages for the effect produced upon the light or air, in the operation of the trains passing along the railway structure on the surface of the street, or for its contamination by means of the smoke, cinders, or gases discharged by the locomotive. This subject was also considered by this court in Re New York El. R. Co., 36 Hun, 427; and it was.there held that, inasmuch as a railway through a public street was a lawful structure when it was constructed, maintained,