In re The New York Elevated Railroad — 35 N.Y. St. Rep. 947

Majority

p. 947

In the Matter of The New York Elevated R. R. Co. In re Clarkson.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

1. Eminent domain—Award.

The fact that the court on an examination of the evidence as it appears

p. 948

in the printed record might be oí opinion that the award is larger than it should have been does not authorize it to interfere with the award, as the commissioners are entitled to act on an inspection of the premises, which often affords stronger proof than any oral testimony which can be adduced.

2. Same—Evidence.

A general objection that the testimony offered is incompetent, irrelevant and immaterial, is not sufficient to raise the question of error in admitting such testimony on the ground that the witness was not an expert. The specific ground, in such case, should, 'be stated.

3. Same—Bights oe abutting owner in vault under street.

In the absence of proof as to the origin or opening of the street, the presumption is that the abutting owner owns the fee to the center and has the right to use it for his private purposes so far as such use does not interfere with the public easement, and therefore has the right to maintain a vault under it and recover damages for any interference by the railroad therewith.

Appeal by the bí. Y. Elevated. Railway Company from an award made by commissioners appointed by this court to ascertain and appraise the compensation to be made to the owners of 286 Greenwich street and from the order affirming such award.

Brainard Tolles, for app’lt; J. M. Hunt, for resp’t.

This appeal seems to be largely founded upon the fact, which does not appear upon the record as far as we have been able to discover, that a jury has determined that the elevated railroad inflicted no rental damage upon the premises in question. But this fact, even if it exists, does not entitle the appellant to a reversal of the order appealed from. •

An examination of the evidence in this case seems to show that a very large quantity of irrelevant testimony was taken and that but little was offered before the commissioners tending to elucidate the problem which they were appointed to solve.

It may be true that the court upon an examination of the evidence as it appears upon the printed record might be of the opinion that the award of the commissioners is larger than should have been made under the circumstances. But this fact does not authorize the court to interfere with the award, because the commissioners are entitled to act upon evidence which does not appear upon the record; namely, an inspection of the premises themselves, which often affords stronger proof than any oral testimony which can be adduced.

It is no doubt the fact that in consequence of the removal of the farmers from this locality property in this vicinity was temporarily injured in its rental value. But it is by no means certain that this was a permanent injury. On the contrary, it would appear to have been but temporary, during the period that the property in this neighborhood'was in process of suiting itself to the changes of business which the removal of the farmers necessitated, and the question which was before the commission to be determined was not simply whether or not property had increased or diminished in value since the construction of the railroad, butwhat was the value of the easements taken by the elevated railroad, and to determine the value of which they had initiated this proceeding, which value must necessarily be as of the time when they took the legal steps to acquire the title.

p. 949

It is also claimed that the commissioners erred in admitting the opinion of a witness not an expert as to what the effect of the elevated railroad was upon values.

It is a familiar principle that in these proceedings the strict rules of law in regard to evidence are not to be applied; and that unless manifest injury has been done by reason of the admission and consideration by the commissioners of improper proof such admission forms no ground for interference with their award.

But when an appellant seeks to invoke a strict rule in reference to the admission of evidence, it is important that in the making of his objection he should observe the rules which are applicable under the circumstances.

The objection now presented is exceedingly technical, and one which, to be effectual, required the grounds of the objection to be specifically stated. Upon the trial of a cause, if a party desired to rely upon an objection to the admission of evidence upon the ground here stated it would be necessary for him to base his objection-upon that ground. In this case no such objection was taken.

It was. simply that the testimony was incompetent, irrelevant and immaterial.

It is also urged that the commissioners erred in awarding damages for injuries to the owner’s vault, and this objection seems to be based upon the claim that there was not a particle of evidence given as to the origin or opening of Greenwich street, by either side. If that was the case then the presumption would be that the abutting owner owned the fee to the middle of the street, subject to the public easement, and that he had a right to use the street for his private purposes in so far as such use did not interfere with the public easement.

Applying this presumption to the case at bar, it is clear that the owner of the premises in question would be presumed to have the right to maintain his vault so long as it did not interfere with the public easement, and to recover damages for the interference therewith by the railroad in case it did so interfere.

The award and order appealed from should be affirmed, with costs.

Daniels and Brady, JJ., concur.