Opinion
June Term, 1899.
Ira A. Place, for the appellants.
Henry G. Atwater, for the respondent.
This case differs from Conabeer v. N.Y. Central Hudson River R.R. Co. ( 156 N.Y. 474) only in the fact that the defendants' title to the strip of twenty-four feet through the center of Fourth avenue was acquired by proceedings in invitum. In the Conabeer case there was a grant. Here the strip was acquired by condemnation proceedings. By these proceedings the Harlem Railroad Company acquired this strip in fee simple, with the right to enter upon, take and use the same for the purposes of its road. There is no substantial difference in the rights thus acquired and those acquired by a direct grant. So far as the strip of twenty-four feet is concerned, we think it clear that the company acquired the right to construct its railroad thereon at any grade authorized by the Legislature, whether below or above the surface of the land, without incurring any liability to Benson or his grantees for consequential damages to Benson's remaining property occasioned by the proper use and operation of the road. For the whole fee, with the railroad rights thus acquired, Benson received due compensation; and thereupon he was divested of all reversionary or other interest in the land. ( Heath v. Barmore, 50 N.Y. 302.) Neither he nor his grantees can complain of the authorized use of the lands thus acquired. The structure erected by the Harlem Railroad Company upon this strip in 1833 was a lawful one. So was the depression of the tracks thereon under legislative direction in 1872 (Chap. 702 of the Laws of that year); and so was the elevation of these tracks thereon under similar direction in 1892 (Chap. 339).
It is contended that the defendants lost these broad, general rights by the street opening proceedings instituted by the city in 1850 and consummated in 1853. We think the Conabeer case is an answer to this contention as well. It was there held that while under these street opening proceedings the city obtained the naked fee to the strip of twenty-four feet there in question, yet the defendant's right to maintain and operate its road was not intended to be affected. The award to the company for this naked fee was but nominal. "At that time, however," said Judge MARTIN, "the municipal authorities and the Legislature recognized the right of the railroad company to continue its road in the street and in no way disturbed its possession or the exercise of that right." It is true that stress was also laid upon the company's acquisition of the property by grant, Judge MARTIN observing that "Whatever rights the city may have acquired, it is quite evident that, so far as Mrs. McGown was concerned, the right which she had granted to the railroad company never revested in her, and consequently neither she nor her grantees can assert the right thus released." As we have already pointed out, there is no distinction in principle upon this head between the acquisition of the land and the railroad right by grant and their acquisition by condemnation proceedings. The effect of the grant in the Conabeer case was not placed upon any covenant contained in the conveyance, but upon the naked act of transfer. These street opening proceedings took from the railroad company none of its railroad rights. They took from it the bare fee of the land, which thereby became vested in the city in trust for use as a public street, subject to those railroad rights; and these latter have ever since been fully recognized both by the municipality and the Legislature. It follows that the defendants, by the street opening proceedings in question, have lost none of their railroad rights flowing from the original acquisition of the fee, nor have Benson's grantees thereby acquired any new rights as against the railroad company with regard to his remaining property. The action cannot, therefore, be maintained so far as it relates to the alleged deprivation of light, air and access caused by the operation of the defendants' road upon the viaduct erected upon the strip of twenty-four feet.
We think, however, that the structure which the defendants have erected upon each side of this strip, and the operation of their road thereon, is an additional burden upon the street; and that they unlawfully deprive the plaintiff of her easements of light and air — if not of access — appurtenant to her abutting property. The difficulty at this point is that the learned trial judge awarded rental damages, and estimated the impairment of the fee value, upon the basis of the illegality of the entire structure, including that part of it erected upon the strip of twenty-four feet. He should have confined his award and estimate to the impairment of the plaintiff's easements caused by the maintenance and operation of the defendants' road upon that part of the viaduct which extends beyond this strip of twenty-four feet.
It may be difficult to furnish the necessary proof to justify an award of rental damage and an estimate of the impairment of fee value upon this basis. But with that we have nothing to do. If there has been no substantial impairment of the easements of light and air — there certainly has been none of the easement of access — apart from the maintenance and operation of the road upon the twenty-four feet, the plaintiff must fail. To maintain her action she is bound to show some additional burden caused by the maintenance and operation of the road upon the exterior lines, and her rental damages and estimated impairment of fee value must be based upon proof relating exclusively to the operation of the road upon those exterior lines.
The judgment must, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event.
RUMSEY and McLAUGHLIN, JJ., concurred.
I concur in result, as controlled by Welde v. New York Harlem R.R. Co. ( 28 App. Div. 379).
Judgment reversed, new trial granted, costs to appellants to abide event.