Opinion
June Term, 1896.
R. Percy Chittenden, for the appellant.
Sidney V. Lowell, for the respondent.
We are constrained to reverse the order confirming the award of the commissioners, for the reason that a palpably erroneous item of damage entered into the basis upon which the commissioners made their award. The charter of the petitioner gave it the right to maintain and operate a road in and upon the street where the property, the subject of this proceeding is situate, and it is only to be made liable for damage in so far as it invades, destroys or impairs the owners' property right therein. The rule of damage is the same whether the proceedings be in invitum, or to recover for damage for the trespass and invasion of the property owners' right. ( Crampton v. Brooklyn E.R.R. Co., 3 App. Div. 263.)
The damages which are to be considered are such as arise from the destruction of light, air and access. In Drucker v. M.R. Co. ( 106 N.Y. 157) it was said: "Smoke and gases, ashes and cinders affect and impair the easement of air. The structure itself and the passage of cars lessen the easement of light. The drippings of oil and water, and possibly the frequent columns interfere with convenience of access. These are elements of damage, even though the necessary concomitants of the construction and operation of the road, and not the product of negligence, for they abridge the land owner's easement, and to that extent, at least, are subjects for redress in an action for damages." In commenting upon this case and the elements which were to be considered in awarding damages, Judge FINCH said: "But there is no hint of any allowable recovery beyond what pro tanto constituted some element of the taking." ( A.B.N. Co. v. N.Y.E.R.R. Co., 129 N.Y. 271.) In none of the elevated railroad cases has the consideration of damages been sustained that excluded these elements. In the present proceeding the commissioners permitted proof, and considered as a subject of damage the hazard from fire in the maintenance and operation of the road. It is quite clear, therefore, that to this extent they injected an element not warranted by any of the cases, and which is entirely disconnected from the invasion or taking of any property right. For whatever incidental injury and annoyance arise from the proper and lawful operation of the road, the petitioner would not be liable. For such damage as is sustained by its careless and negligent operation the property owner has his right of action for the damage sustained, which is perfect whenever the injury is inflicted. So there is at no time the element of damage by fire to be considered in proceedings in invitum, for whatever is lawfully done in the operation of the road, it has the guaranty of the State for its protection found in its chartered rights. For whatever is negligent and wrong in the maintenance and operation the owner has his remedy by action, and in no view can it be considered in this proceeding. This conclusion finds support in Mundorf v. N.Y. Elevated R.R. Co. (62 Hun, 465).
The order appealed from should be reversed and new commissioners should be appointed.
All concurred.
Order reversed and report set aside, without costs, and a rehearing ordered before new commissioners to be appointed at Special Term.