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Glover v. Manhattan Railway Co.

51 N.Y. Super. Ct. 1 19 Jones & S. 1 Court N.Y. Super. Ct. Decision date 1884-11-14 English

Contents

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JOHN H. GLOVER, Respondent, v. THE MANHATTAN RAILWAY Co., and THE NEW YORK ELEVATED R. R. Co., Appellants.

Headnote

Easements in streets.—Abutting owner's right of access, light and air.— Right of owner subsequent to the erection of an obstruction to restrain its continuance and to damages.—Measure of damages and evidence as to.— Statute against granting lands held adversely.-—-Injunction.
AVhen strips of land are dedicated, or conveyed in trust, as public streets,, an owner of land abutting thereon, if he does not own the fee of the bed of the strip, has an easement therein which gives him a right to have the street kept open, so that from it access may be had to his lot, and light and' air furnished across the open way. Above the surface there can be no, lawful obstruction to the access of light and air to his detriment. A fortiori, he has similar right if he is the owner of the fee of the bed, subject only to an easement in favor of the public of a right of way.
Such rights constitute property which cannot he interfered with, without the consent of him entitled thereto, except by condemnatory proceedings upon due compensation made.
An injunction will issue in favor of one to whom such rights have passed1 subsequent to the commission and completion of the acts constituting-such interference,—e. g., the building of a structure,—to restrain the-continuance of such interference, and to recover such damages as he-may have sustained from such interference subsequent to his becoming possessed of such rights.
Evidence of experts as to the depreciation in the rental, of premises in,
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consequence of the interference is admissible ; and such depreciation will iii the absence of other evidence constitute the measure of damages. Direct evidence of the rental value of the easement of light, .air and right of access is not essential.
Decided November 14, 1884.
The statute against grant of lands in possession of a person claiming adversely to grantor (1 R. S. p. 739 and 147, part 2, chap. 1, title 2, art. 4) does not apply to such rights.
In a case where the injunction against such interference would operate to put the public to great inconvenience,—e. g., the stopping the running of a railroad,—and the party to be enjoined can by agreement or condemnatory proceedings, obtain the right to maintain and continue such interference, a reasonable time within which to obtain such right will be given, before an injunction will be issued.
Before Sedgwick, Ch. J., and Truax, J.
Appeal by defendants from a judgment entered upon the decision of a judge at a special term upon a trial before him without a jury.
The facts sufficiently appear in the special term opinion.
Deyo, Duer & Bauersdorf, attorneys ; Henry H. Anderson and R. E. Deyo,
of counsel for appellants, argued :— I. The railroad tracks and stations, and the operation of the railroad upon the tracks are no nuisance, because authorized by law. It was at the utmost an infringement upon the rights of the owner at the time of the erection of the Structure of the lot abutting upon the street so far forth, and so far forth only as it encroached upon light, air and access to that lot (Patten v. N. Y. Elevated R. R. Co., 3 Abb. N. C. 106 ). It was an infringement on his right, which could be compensated for in damages. Damages could measure and atone for all the injury done him. The structure having been completed and the easement destroyed without interference by the then owner, he had a right of action against the railroad company. This was a personal right and would pass by assignment, but did not pass under the words of a conveyance. If the then owner had died, it would have passed to his personal
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representatives as a chose in action, and not to his heirs at law or to the devisees of the lot (Van Zandt v. Mayor, 8 Bosw. 375 ). The plaintiff has no claim against the defendants. His right to maintain this action and to an injunction therein rests upon pecuniary damages sustained by him. He has sustained none. When he bought the lot the burden imposed upon the street had depreciated the value of the lot, and the then owner of the lot held a claim for damages sustained by Mm to the full value of the depreciation then caused by the structures wMch had been erected. A smt was then pending for such damages, brought by a previous owner (Green v. N. Y. Central R. R. Co., 12 Abb. N. C. 124 ; Henderson v. N. Y. Central & H. R. R. R. Co., 78 N. Y. 435 ). This case is the case of Williams v. N. Y. Central R. R. Co. (16 Id. 97), continued by the plaintiff’s executors. See also Van Zandt v. Mayor ( 8 Bosw. 375 ); Green v. N. Y. Central, etc. (supra); Powers v. City of Council Bluffs ( 45 Iowa, 652 ); Whitlock v. Cook ( 15 Johns. 400 ). But one person or owner is entitled to damages for the part of the easement destroyed by the permanent structure, and that person is the one who was owner when the damage was done. All subsequent purchasers are entitled to whatever losses they may sustain by reason of dimimshed rental value for a contmmng nuisance, if such there be, arising, not from the structure itself, but from any unlawful addition thereto; or if a railroad, as m this case, from an unlawful manner of operatmg the road (Neal v. K. & I. R. R. Co., 61 Me. 298 ; Rand v. Townshend, 26 Vt. 670 ; Allyn v. P. W. & B. R. R., 4 R. I. 461 ; Turnpike Rd. v. Brosi, 22 Pa. 32 ; Tenbrooke v. Jahke, 77 Id. [1875] 397; Zimmerman v. Union Canal Co., 1 Watts & S. 346 ; Schuylkill Nav. Co. v. Thoburn, 7 Sergt. & Rawle, 421; Case v. N. Y. Central R. R., 24 Barb. 273 ; Schuylkill & Susq. Nav. Co. v. Decker, 2 Watts, 343 ; McLendon v. Atlantic & W. P. R. R., 54 Ga. 293 ; Pomeroy Exr. v. Chic. & Mil. R. R. [1870], 25 Wis. 643 ).
n. The defendants do not claim here that they are not
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bound to compensate the owners of property taken,for such property. The question raised here is who is entitled to such compensation. Is he who was the owner when the injury was done, and who sustained the loss, to be paid, or is he who purchased the abutting lot after the easement had been destroyed, and after the loss had been sustained, the man who only paid the value of the lot without the easement, entitled to compensation for what he did not buy ?
III. The plaintiff claims for damages the diminution of the rental value of the premises, from the time the plaintiff bought, up to the time of the trial. But there was no diminution in rental value during that time. The diminution all occurred before plaintiff’s purchase, and the rental value is proved by all the witnesses, even by the plaintiff himself, to have increased, and the rent actually received by the plaintiff to have been more, during the year preceding the trial, than it was when the plaintiff purchased. So that the claim of the plaintiff as stated falls to the ground. The case of Corning v. Troy Iron and Nail Factory ( 40 N. Y. 192 ), cited by plaintiff, is very different. In that case the defendants entered into possession and occupied premises ■under a lease for thirty-four years and upwards, and the court held that they were bound to restore the land with the water running in in its natural channel at the expiration of the lease, unless relieved from such obligation by some immediate act of the lessors or of those holding their title. It was while holding under this lease that the defendants interfered with the easement. During their lease they had the right to interfere, and the plaintiffs had no right, because the defendant’s acts worked no injury to the reversioner, and as the right of the reversioner existed during the continuance of the lease, it was not cut off by any of the defendants during the lease.
IV. It is a principle recognized by adjudged cases, and resting upon sound reason and policy, that purchasers of property obviously and notoriously subjected to some right
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or easement, or burden or servitude, affecting its physical condition, take it subject to such right or burden without any express exceptions in the conveyance (Rawle on Covenants, 141, et seq. ; Stemborer v. Holmes, 16 Ind. 142 ; Kurtz v. McCune, 22 Wis. 628 ; Marston v. Hobbs, 2 Mass. 439 ). The principle here stated is applicable to the burden which had been imposed upon the street before the plaintiff purchased. Unlawfully imposed, it may be said, as to the plaintiff’s predecessors, but actually existing as an incumbrance or burden at the time the plaintiff purchased the lots and the injury which had been done by the permanent structure deducted from the price paid by the plaintiff for his property.
V. The complaint should be dismissed, because the injury complained of was done to the property before it was acquired by the plaintiff; the original damage was sustained by the plaintiff’s predecessors and not by him ; because the plaintiff when he purchased the premises was fully apprised that the easement had been substantially, or to the extent of the occupation by the railroad structures, pro tanto, destroyed, and upon the plaintiff’s purchase of the premises he purchased them at a price reduced to correspond with the injury done. In fact he has sustained no injury—no personal pecuniary loss whatever—by the construction of the railroad and depot as constructed. The burden resting upon his lot was, as to him, paid for in the reduction of the price of the lot, and he has no ground of complaint against the defendant. No change has been made since his purchase in the road or station in front of plaintiff’s property. The bridge between the station and Church street is not in front of the plaintiff’s property, and the injury complained of as to that, is not as to light, air, or access to his property.
VI. If the court should be of opinion that the complaint ought not to have been dismissed, then the rule laid down by Judge Freedman in the case of Greene against the New York Central Eailroad Company should be applied, under which only nominal damages can be re
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covered. Such award should have been confined to damages for improper management of the road, and not for original damages, of which the plaintiff has sustained none. No proofs have been given of any amount of damages for improper management of the road.
VII. The court erred in admitting a series of questions, of which an example is furnished : “ Q. To what extent do' you consider that the rents have been depreciated by the presence of the railroad ?” Aside from the objection that this is a case of original damage, this question is addressed to the injury caused by the entire structure, and is not confined to the injury caused by preventing light, air and access, the only elements entering properly into the claim of an abutting owner. This evidence could not fail to have influenced the mind of the court in the decision rendered.
VIII. The measure of damages allowed by the court was erroneous. It should have been circumscribed by the difference in value of the lot, with and without the amount of fight, air and access (if any) prevented by the plaintiff’s structure. But even that does not belong to plaintiff, for reasons given above (In re Munson, 29 Hun, 335 ; In re N. Y., W. S. & B. R. Co., 29 Ib. 646 ; In re Lacka. & West., 29 Ib. 1; Matter of Prospect Park, &c., 13 Ib. 345).
Glover, Sweezey & Glover and Richard L. Siveezey,
of counsel for respondent, argued :—I. The objection made by the defendants that the plaintiff’s deed is void as to the interest or estate of his grantors in Greenwich and in Sector streets, is not well founded, (a.) The defendants are not in adverse possession. They are not in possession under any claim of title. A claim of title is something more than a claim of right. A mistaken construction of a conveyance which does not in fact upon its face include the premises cannot be the foundation of a claim of title (Crary v. Goodman, 22 N. Y. 170 ; Higinbotham v. Stoddart, 72 Ib. 94 ; Dawley v. Brown, 79 Ib. 390). (b.) The
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court of appeals has held that the statute of adverse possession does not apply to such an estate as the plaintiff has in Greenwich and in Rector streets—to an interest or estate which passes as an appurtenance (Corning v. Troy Iron & Nail Factory, 40 N. Y. 192 ; Broistedt v. South Side R. R. Co., 55 Ib. 220). (c.) The constitutionality of the acts authorizing the construction of the elevated railroads was only sustained by construing them to authorize the building the roads upon condition that the property taken must first be compensated for (Matter of N. Y. E. R. R. Co., 70 N. Y. 327 ; and Story case, at p. 148). Claims founded upon such acts of the legislature are, therefore, not adverse, but are subordinate to the rights of the owner (Broistedt v. S. S. R. R. Co., supra).
II. Plaintiff did not purchase the premises in suit, subject to any burden thereon in defendants’ favor. Defendants were in the position of mere trespassers, and had acquired by their wrongful trespass no right in the property as against plaintiff’s grantors. Plaintiff became vested by his deed with all the estate of his grantors in the streets, and has the same right which they had to remove unauthorized obstructions from the same. The defendants were not parties to the conveyance to plaintiff ; the change of title could not give them. any rights in the property that they did not previously possess. They were trespassers before and they continued to be trespassers afterwards, with no better right to continue their trespass against the new owner than against the owner at the time their wrongful occupation commenced. Plaintiff purchased the property and he is entitled to have defendants removed therefrom, unless they had acquired, at the time of his purchase, a right to the possession thereof, and it is not pretended on their behalf that they had acquired any such right.
III. The argument of defendants proceeds throughout, upon an erroneous assumption, and is misleading. Their contention is that this is an attempt by plaintiff to recover damages for the taking of property by the defendants
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prior to plaintiff’s purchase. It is nothing of the kind. This is not an action for damages; it is substantially equitable ejectment. We ask to have a trespasser restrained from further using the premises that we have purchased. We make no claim for past damages, except in so far as they are accrued since we purchased, and the damages awarded to us are simply difference in rental value since plaintiff became the owner.
IV. What plaintiff paid for the property does not concern the defendants. They can found no title upon the fact that the former owner chose, rather than to incur the burden and expense of a lawsuit to remove them, to sell the property for less than its actual value.
V. It is quite immaterial what liability to the plaintiff’s predecessors in title may have resulted from the wrongful acts of the defendants. That does not impair the legal rights of the plaintiff.
VI. The argument of defendants, that, by the erection of what they call their permanent structure, the easement was, pro tanto, destroyed, leaving nothing but a claim for damages to the then owner, comes down to this: a man makes entry upon your premises, a mere trespasser, and vi et arnvis erects upon your land a permanent structure ; immediately, upon the completion of the structure he ceases to be a trespasser and becomes a purchaser of your property, against your will; your ownership of the fee is destroyed; your right to remove him is gone; your interest is reduced to a simple chose in action. As against yourself and your heirs and assigns, this mere trespasser, by the act of erecting a permanent structure, has acquired a title to your premises in fee simple absolute. Ho such principle can be maintained. That is, the damages are awarded as the natural and necessary consequences of the original entry, of the act of erecting the structure, and not upon the theory that they are to be compensation for the subsequent use and occupation of the premises by the trespasser. By the payment of such damages the trespasser does not purchase the right to maintain the struc
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ture for Ms own benefit. In reference to the same matter the court m the Henderson case ( 78 N. Y. 423 ), says : u No doubt an action might have been brought for the origmal trespass m entering and placmg the railroad structures upon the land, and other successive actions for contmmng it, for in such a case it is said that recovery of damages in the first action by way of satisfaction for the wrong would not operate as a purchase of the right to contmue the injury.” (See also Mills Eminent Domain, § 90 ; Addison Torts [Dudley & Baylies’ Ed.], Vol. 1, 332.)
YII. The plaintiff’s claim for damages in tMs smt is for the wrongful use of his mterest in the streets since he acquired title. The measure of tMs damage is the difference between what the property has actually rented for srnce Ms purchase, and what it would have rented for if the railroad had been out of the streets. The liability for that wrongful use prior to plaintiff’s deed is not vested m him. Agamst that liability the defendants have protected themselves by their $400 release. The only elements of damage considered by the courts were, the obstruction to light, air and access of plamtiff’s premises, by reason of the existence of the structures.
YTTT- The cases of Corning v. Troy Iron and N. Factory and Broistedt v. South Side R. R., above cited, are in all respects identical with tMs case, and must be overruled if defendant’s contention is to be sustamed. The Cornrng case was an action in eqMty, brought by a subsequent purchaser to restrain the contmuance of a permanent structure, i. e., a dam further up the stream, which diverted the water from plamtiff’s premises, and the defendants set up this same claim, that the diversion bemg made in a permanent manner, and bemg held by them under claim of right at the time of the conveyances to plamtiff, the right to the flow of water had ceased to be appurtenant to the premises, and that the right to compel a restoration of the same did not pass to the plaintiff under Ms deeds. It is true that at the time the structure was erected defendants were lessees of the premises, but their lease had ex
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pired before plaintiff purchased (lease expired February 1, 1852; first conveyance the plaintiff July 23, 1852. See case at general term ( 39 Barb. 311 ), and the defendants expressly repudiated claiming under any lease, and alleged that plaintiff’s deed was void for the reason that they held the water privilege adversely to the grantor at the time of the conveyance. In the Broistedt case the defendant, a railroad company, entered under an act of the legislature, built a permanent structure, and were occupying and . using same under claim of right when plaintiff bought. The court of appeals sustained plaintiff’s right to precisely the same judgment that has been awarded to us in this action.
IX. The cases cited by the defendants are misleading. They were all either actions for damages, or controversies respecting damages awarded, under statutes which permit railroads to take lands prehminarily, and give the then owner a right to a subsequent assessment of the damages resulting from such taking, (a.) In Sargent v. Machias ( 65 Me. 591 ), and Neal v. K. & I. R. R. Co. ( 61 Me. 298 ), there had been a legal taking of the lands, and the question arose upon appeals from the awards made by the county commissioners. The Maine statutes, under which the proceedings were had, authorized a taking of the lands, and a subsequent assessment in favor of the then owner. (See Webb’s R. R. Laws, Maine, 579, 580, 598, 599 ; Davis v. Russell, 47 Me. 443 .) (b.) The same observations apply to Allyn v. P. W. & B. R. R. Co. ( 4 R. I. 461 . See Charter, R. I. Laws, Oct. Session, 1850, p. 7, and June Session, 1852, p. 128.) (c.) In Rand v. Townshend ( 26 Vt. 670 ), and the several Pennsylvania cases cited, there had been a legal taking of the lands, and the question arose upon appeals from or claims to the damages awarded under the statutes, (d.) McLendon v. Atlantic & W. P. R. R. (54 Get. 293), was an action on contract brought on the theory that the defendant had, with the owner’s consent, taken a right of way under an implied promise to pay its value. The court simply held
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that “if the taking was under such circumstances as to raise an implied promise to pay its value,” the action upon this promise could only be brought by the person to whom it was made, that is, the owner at the time, (e.) Pomeroy v. Chic. & Mil. R. R. ( 25 Wis. 643 ), was an action for damages brought by the person who was owner at the time the road was built, and who had expressly reserved out of his sales the fee of the strip used by the railroad company, and all claims for damages to the property sold caused by the construction of the road. (/.) In Van Zandt v. Mayor (8 Bosw.), the question involved was the measure of damages for a breach of covenant caused by the erection of a permanent structure outside of the premises, which structure had the effect of destroying an easement which plaintiff’s ancestor had been enjoying, but to which he had no legal title, (g.) Green v. N. Y. Central & H. R. R. R. (Superior Ct. Spec. Term), was an action for damages. The structure complained of was the freight depot erected in St. John’s Square. Plaintiff was not an abutting owner, nor did he own on the opposite side of the street, his premises being diagonally across upon the opposite corner.

Judgment appealed from affirmed with costs on the opinion of the court at special term.

Opinion at Special Term.

The complaint in this action alleges in substance that plaintiff is the owner and possessor of certain property in the city of New York on the southeast corner of Greenwich and Sector streets, and of portions of Greenwich and Sector streets, immediately in front of and adjoining the same, to the center of said streets respectively; that the defendants the New York Elevated Eailroad Company are the owners of a railroad running through said Greenwich street past and in front of said premises owned by plaintiff, and that said railroad is now operated by the defendants the Manhattan Elevated Eailway Company as the lessees and agents of the New York

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Elevated Eailroad Company; that in Eector street the defendants have constructed a depot from the said railroad in Greenwich street, and extending through Eector street beyond the rear line of the plaintiff’s property ; that the said railroad and other structures erected by the defendants occupies and greatly obstructs the streets and passage-way to and from plaintiff’s property and occupies and uses plaintiff’s property in the said streets without the consent of the plaintiff or without having paid any compensation therefor, and prays that "defendants may be enjoined from maintaining, continuing or operating said railroad and structures now existing in said streets in front of plaintiff’s said property ; that they be compelled to take down and remove the same, and plaintiff have judgment for the damages sustained by virtue of the continuance of such structure and railroad.

The action, therefore, is one brought on the equity side of the court to restrain the defendants from the unauthorized use of the plaintiff’s property, and to recover such damages as plaintiff has sustained by reason of such unauthorized use.

The learned counsel for the defendants insists that as at the time such damages were sustained and the road was built, plaintiff was not the owner of the property, and defendants did not build the road, plaintiff cannot recover, but it seems to me that this position mistakes the theory on which the action is brought. It is not that the defendants are hable to plaintiff for building the road, but that they are hable for the use by them of plaintiff’s property.

Plaintiff claims that he has certain property in the streets which defendants use, and use without plaintiff’s consent, and without paying him compensation therefor ; and plaintiff asks the court to enjoin the further use of the property, and the damages asked are only such as plaintiff has sustained by the unauthorized use of such property by defendants since plaintiff became its owner. The building of the road is not complained of, the use of the road before plaintiff purchased' is not complained of, but the

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occupation and use of plaintiff’s property in the future, is what the plaintiff asks the court to restrain, and for the use of such property, since he purchased it, plaintiff asks compensation.

That such an action can be maintained is well settled in this state (Williams v. N. Y. Central R. R. Co., 16 N. Y. 97 ; Henderson v. N. Y. Central R. R. Co., 78 Ib. 423; Story v. N. Y. Elevated R. R. Co., 90 Ib. 122).

The court of appeals in the Story case, has decided that plaintiff in that case had an easement in the streets in front of his premises, and that he was entitled to an injunction restraining the use by the railroad company of such property. It can make no difference at what time he became the owner of the property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendants appropriated it, or the day before the commencement of the action.

The principal question to be determined is, what property, if any, plaintiff has in Greenwich and Rector streets, in front of and adjoining his lot, that has been appropriated by the railroad company.

The lot in question was included in a lage tract of land which was granted in the year 1705 to “The Rector and Inhabitants of the City of New York in Communion of the Chinch of England as by law established,” a corporation created by Royal Charters. The name of such corporation was by law changed to “The Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York.” The corporation caused the property to be surveyed, and laid out into lots by Francis Maerschalk, about the year 1761. On that map appears a street, without name, running from Broadway to Lumber (now Church) street, twenty feet wide, which corresponds with a portion of the present Rector street, and .a street called First street, forty feet wide, which corresponds with the easterly portion of Greenwich street. By a conveyance dated April 9, 1761, the church corporation remised, released and quit-

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claimed to the mayor, aldermen and commonalty of the city of Hew York, the said streets as they are particularly laid out, described and named in said map : “To have and to hold all and singular the said several and respective streets unto the said mayor, etc., and their successors, to be, remain and continue forever hereafter for the free and common passage of, and public streets and ways for the inhabitants of the said city of Hew York, and all others passing and returning through or by the same, in like manner in the other public streets of the said city now are or lawfully ought to be ” and this conveyance was accepted by the city of Hew York. It appears that subsequently Rector street was extended to - the river, and First street was widened and called Greenwich street. The exact date of such extensions does not appear, but on a map dated 1815 both streets appear substantially as they now exist. The fee of Greenwich street in front of plaintiff’s property passed to the city of Hew York by the deed from the church corporation dated 1161, but by the conveyance, the property conveyed was to be held by the city as a public street forever; the city accepted the conveyance subject to this condition, and this, I think, gave the owner of the adjoining property the right and privilege of having the street kept open forever as such, and the court of appeals in the case of Story v. The New York Elevated Railroad Co. ( 90 N. Y. 145 ), has decided that such a right was “an incorporeal hereditament. That it became at once, appurtenant to the lot and formed an integral part of the estate in it,” and constituted a perpetual incumbrance upon the land burdened with it. The lot became the dominant, and the open way or street the servient tenement.

The extent of this easement in Greenwich street has, I think, also been settled by the court of appeals in the Story case ( 90 N. Y. 122 ). Judge Danforth, at page 146, says : “ Generally it may be said it (the easement) is to have the streets kept open, so that from it access may be had to the lot, and light and air furnished across the open way. . . . That above the surface there can be no lawful

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obstruction to the access of light and air to the detriment of the abutting owner.”

In regard to Rector street, it does not appear that the fee of the'street was ever acquired by the city; but I think that from the evidence it may be assumed that prior to the year 1815, the church opened the street from Broadway to the river, and had dedicated it for a public street. By a deed dated July 13, 1843, Trinity Church Corporation conveys to Jacob Fash a piece of land known as lot 47, bound westwardly in front by Greenwich street, northwardly on one side by Rector street, and which, by several conveyances, became vested in the plaintiff. The fee of half the streets in front of plaintiff’s property, that had not been conveyed or released by the Trinity Church Corporation to the city, passed by the deed to Fash, and through the various conveyances to the plaintiff (Sherman v. McKeon, 38 N. Y. 266 ; Story case, opinion of Tracy, J., 90 N. Y p. 163).

So that it appeared that the fee of Greenwich street was in the city, subject to the easement appurtenant to plaintiff’s lot, and that the fee of one-half of Rector street in front of plaintiff’s property was vested in plaintiff, subject to the easement that it should be kept a public street.

It was held in the dase of Williams v. The New York Central Railroad Co. ( 16 N. Y. 97 ), that in such a case, “the public acquired nothing beyond the mere right of passing and repassing upon the highway, and that in all other respects the rights of the original owner remained unimpaired. ” And again: It “ cannot be successfully contended, either that the dedication of land for a highway gives to the public an unlimited use, or that the legislature has the power to encroach upon the reserved rights of the owner by materially enlarging or changing the nature of public easement,” and held, that to allow a railway track to be constructed on a highway is a material change in, or enlargement of the uses to which the highway was originally dedicated, and that the legislature had had no power

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to give a railroad the right to build upon the highway without compensation to the owner of the fee.

That the structure as erected and used by the defendants in Greenwich street is, to some extent, inconsistent with the use of such street under the conditions of the grant to the city of New York, is, I think, established by the evidence. It prevents, to some extent, the free access to plaintiff’s lot; it obscures the light, and to some extent, the free circulation of air.

This point was directly involved in the Story case (supra). Judge Tracy says, on page 170, “We think such a structure closes the street pro tanto, and this directly invades the plaintiff’s easement in the streets as secured by the grant to the city. . . . The defendant’s railroad, as authorized by the legislature, directly encroaches upon plaintiff’s easement and appropriated his property to the uses and purposes of the corporation; this constitutes a taking of property for public use. It follows that such a taking cannot be authorized except upon condition that defendant make compensation to the plaintiff for the property taken.”

The cases cited by defendant have all been examined, but so far as any of them are in conflict with the rule laid down, they must be held to he overruled by the cases above cited.

It follows, therefore, that if plaintiff is the owner of the easement in Greenwich street, and the fee of Rector street, that he is entitled to judgment restraiiiing the defendants from contmuing. to use his property.

It was argued, on the motion for a non-suit, and again on summing up, that as at the time of the conveyance to plaintiff, defendants were in possession of the property claimed by plaintiff, that no title to the easement or property passed by the deed, under 1 Revised Statutes, § 147, page 739.

The court of appeals in the case of Corning v. Troy I. & W. Factory ( 40 N. Y. 192 ), decided that the statute does not apply to the holding of a right appurtenant to land, but

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only to the land itself. The statute does not prevent the title to the half of Rector street from passing by the deed to plaintiff, as the possession of the railroad company must be presumed to be in subordination to the rights of the owner. The evidence would not justify me in finding that it was adverse to him (Broistedt v. South Side R. R. Co., 55 N. Y. 220 ).

I have carefully considered the arguments and authorities to which my attention has been called by the learned counsel for the defendant, and I am of the opinion that the defendants have appropriated, and are using the property of the plaintiff -without his consent and without compensation, and that plaintiff is entitled to judgment.

The remaining question is, to what damages, if any, is the plaintiff entitled for the use of the premises since he acquired title to the property on January 7, 1882.

The evidence of the rental value of the property belonging to plaintiff appropriated and used by defendants is. extremely unsatisfactory. The only evidence is the opinions of experts of the depreciation in the rental of the premises in consequence of the existence of the railroad station, and there is no direct evidence of the rental value of plaintiff’s easement of light, air and right of access.

From all the evidence, however, I think that plaintiff should recover $500 per year for the use of his property appropriated and used by the defendants.

It was my intention on the trial of the case to follow the rule laid down in Henderson v. New York Central R. R. Co., and which was affirmed in 78 N. Y. 423 , and find the value of the plaintiff’s easement and provide in the judgment that if defendants pay to plaintiff the sum so found as the value of the premises appropriated by defendants, the injunction asked for should be denied. The defendants, however, have not asked for such a finding, and as such a finding would be for their benefit, and the evidence is so unsatisfactory as to the value of such easement used by the defendants, I have concluded simply to order judgment for the plaintiff that the defendants be

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enjoined and restrained from using the property of the plaintiff in Greenwich and Rector streets, and that plaintiff recover from the defendants the sum of $500 for each year from the time plaintiff became the owner of the said property to the entry of judgment as damages for the use of such property by defendants, allowing defendants to take such proceedings to acquire the property as they may be advised.

In consequence of this view of the case, it will not be necessary to determine the question of the right of defendants to use Rector street for the stations.

I think, however, I should follow the suggestion of Judge Tracy in the Story case, and direct that the injunction should not issue until the defendant has had a reasonable time after the entry of judgment to acquire plaintiff’s property, either by agreement or by proceedings to condemn the same and I think such reasonable time would be six months after the entry of judgment.

Judgment is therefore ordered for the plaintiff, in accordance with the views contained in this opinion, -with costs.

Cases cited