injured. But even in those cases a trial court may well hesitate, and require decided and clear proof, and refuse to be misled by deceptive comparisons. It is very rare that in any case or any locality, where the value of the property has largely increased from the date of the coming of the road, and is more or less coincident with it, that any damages ought to be awarded by the process of entangling one's common sense in a web of theory. There may be here and there some exceptional case. We thought the Storck* case was one, and affirmed it as such, though with much of doubt and hesitation. The property involved was in the same locality with that owned by Bohm, and a similar decision denying damages would have been inevitable but for the proof of some exceptional facts and circumstances. There was evidence of a diminution of rentals because of the erection of the road, and that the influx of population which usually and naturally tends to increase values was of such a character as to prejudice rather than benefit the values in question. We thought there was something to raise a question of fact, and, without approving the judgment, felt bound to affirm it. That case was not intended to overrule the Bohm case, and must be deemed exceptional and to stand on its own facts.

The present case comes clearly within the scope of the Bohm decision. It is specifically and explicitly found, and upon the evidence no other finding was possible, as to all the property except No. 261 Third avenue, that the locality was substantially vacant and unimproved, or at the most only partially built up, while soon after the construction of the elevated road it was compactly built up. It is found that the rental value of No. 261 was increased after such construction, and that the fee value rose from $22,500, in 1869, to $40,000, in 1890, and that the premises were worth more in 1890 than at any time prior to the coming of the new line. It is further found that the presence of the railroad, with its stations near by, has brought multitudes to the locality, increased business and benefited the fee and rental values, a benefit in which property on the adjacent side streets has also shared.

*131 N. Y. 514.

Opinion of the Court, per FINCH, J.

[Vol. 147.

As to No. 1028 it is found that its rental increased from $2,400, in 1875, to $5,500, in 1892, and the fee value from $36,000, in 1881, to $75,000, at the date of the trial. And the same facts as to the beneficial effect of the railroad upon values are again found.

As to Nos. 1240 to 1248 and 1255 a similar state of facts appeared. The rents of the former in 1877 were $9,136, and in 1892 had grown to $11,855, and in that year the rents were greater than ever before the construction of the road. The great change was in the rental of the stores. While the rental of the flats overhead diminished, evidently because of the new supply of better apartments, the business rentals increased from $3,440, in 1876, to $8,200, in 1893, showing a gain of 138 per cent. It must have been difficult to persuade the owner who took that gain that nevertheless he had been damaged. The value of the lots as distinguished from the buildings was, in 1872, about $66,000, and at the time of the trial about $120,000. The value of No. 1255 was $15,000, in 1873, and at the time of the trial about $20,000. It is further found that, in 1873, the streets and avenues in the vicinity were practically vacant and have all been built up since 1877; that the increased accessibility has induced the settlement and building; that the same improvement would not have occurred in the absence of rapid transit, and that the defendant's road has been one of the great and efficient factors in building up the locality.

same.

We have thus before us a state of facts corresponding to that disclosed in the case of Bohm. The result must be the That there may have been a greater increase in the side streets, due in part, at least, to the influence of the defendant's road, does not prove or even indicate damage in a situation like the present. For in every case where a vacant area is built up and gains an increase of value coincident with the coming of the railroad and obviously stimulated by it, the appreciation of property in the adjacent side streets is largely due to the same cause, and the case is one in which benefits only have accrued, and they do not become injury on the

N. Y. Rep.]

Dissenting opinion per GRAY, J.

avenue because they help more largely the residence lots near by. In such a case there is no normal city growth operating independently, or capable, by itself, of severance or measurement. It is, relatively to the unimproved locality, a secondary cause set in operation by a primary one, and the primary one originating the general benefits flowing from the secondary one, does not become hurtful to one lot because it helps to a greater degree some other. The railroad in the vacant locality cannot be said to hinder what it in fact produces.

The

It follows that the judgment rendered is erroneous. finding that plaintiff's property was injured by the railroad over and above all benefits conferred is wholly unsupported by proof and contradicted by the specific findings.

The judgment should be reversed and a new trial granted, costs to abide the event.

GRAY, J. (dissenting). I feel constrained to dissent from the opinion in this case, not because I am unwilling to agree to the particular rule therein adverted to; but because I think there was some evidence upon which the decision of the trial court could rest. It may be considered unsatisfactory and it may be vague; but that consideration is no ground for reversing the judgment, as we held in the Becker case, (131 N. Y. 509). I do not object to the rule which prohibits an award of damages where there has been no proof of damage, or where it must rest upon theoretical inferences. That rule was laid down in the Bohm case, (129 N. Y. 576), and must be regarded as established by that decision; but I do object to the application of the rule to the facts as developed in the present case, which disclose a different condition of things from what was found to exist in the Bohm case. It cannot be said with respect to the entry of the elevated railroad into the neighborhood of the properties described in the complaint, that that part of the city was brought into existence and peopled through the agency of the defendants, unaided by a normal city growth which was operating to increase city values. It

seems to me that consistency with our prior decisions, which have affirmed recoveries based upon comparisons of property values in the neighborhood in connection with other facts relating to the railroad, as the only practicable proof within the reach of the complainant, requires us to affirm the recovery here. The Becker case, (supra), is an authority which we cannot well overlook in the consideration of the disposition of the present case.

ANDREWS, Ch. J., PECKHAM and HAIGHT, JJ., concur with FINCH, J., for reversal; O'BRIEN and BARTLETT, JJ., concur with GRAY, J., for affirmance.

Judgment reversed.

JAMES F. MALCOLM, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY and THE MANHATTAN RAILWAY COMPANY, Appellants.

INCREASE

OF

ELEVATED RAILROADS UNIMPROVED LOCALITY VALUES. In an action brought by an abutting owner to restrain the operation of an elevated railroad in front of his premises on an avenue in New York city and to recover damages, the trial judge refused the defendants' request to find that prior to the coming of the road the land in the vicinity of the premises in suit, was largely unimproved and unutilized, and, while finding that the fee value of the premises had increased since the building of the road, refused to find that it had become greater than at any time prior to the construction of the road, and refused to find that the rental value had increased since the same date. A judg ment was rendered in favor of the plaintiff, which awarded him damages for injury to rental value, together with a sum found to be the amount of injury to the fee value of his premises over and above the benefit resulting from the road. Held (BARTLETT, O'BRIEN, and GRAY, JJ., dissenting). that the requests to find were in accordance with the undisputed evidence; that if the facts had been found accordingly the legal conclusion that no damages had been proved would have followed inevitably; and, hence, that the refusals so to find constituted material and reversible error.

Bohm v. Met. Elevated Ry. Co. (129 N. Y. 576), and Bookman v. N. Y. Elevated R. R. Co. (ante, p. 298), followed.

Malcolm v. N. Y. El. R. R. Co. (78 Hun, 616), reversed.

(Argued June 5, 1895; decided October 29, 1895.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18, 1894, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

This action was brought to restrain the operation and maintenance of defendants' elevated railroad in front of plaintiff's premises and to recover the damages caused thereby.

The defendants' elevated railroad was constructed in Third avenue, on which the premises in suit abut, during the years 1877 and 1878, and trains began running in the latter year. Among the defendants' requests to find, which were refused by the trial judge, was one to the effect that the fee value of the premises in suit was, at the time of the trial, greater than at any time prior to the construction of the defendants'

road. .

Other facts, material to the questions discussed, are stated in the opinions.

Brainard Tolles for appellants. There is no evidence to justify the finding that plaintiff's premises have been damaged. (131 N. Y. 520; Storck v. M. El. R. Co., 131 N. Y. 521; Becker v. El. R. Co., 131 N. Y. 511; Bohm v. M. El. R. Co., 129 N. Y. 576; Somers v. M. El. R. Co., 129 N. Y. 576; Sutro v. M. R. Co., 137 N. Y. 592; Adler v. M. El. R. Co., 138 N. Y. 177; Bischoff v. N. Y. El. R. R. Co., 138 N. Y. 261; Sperb v. M. El. R. Co., 137 N. Y. 598; S. A. R. Co. v. M. El. R. Co., 138 N. Y. 548; Cook v. N. Y. El. R. Co., 144 N. Y. 115; Benson v. M. R. Co., 27 J. & S. 578; Blum v. M. R. Co., 1 Misc. Rep. 110; Brush v. M. R. Co., 26 Abb. [N. C.] 73; Cunningham v. M. R. Co., 27 J. & S. 578; Gray v. M. R. Co., 16 Daly, 510; 128 N. Y. 499; Hadden v. M. El. R. Co., 75 Hun, 63; Halsted v. M. R. Co., 2 Misc. Rep. 498; Israel v. M. El. R. Co., 10 Misc. Rep. 722; Johnston v. N. Y. El. R. Co., 10 Misc. Rep. 136; Krumwiede v. M. R. Co., 9 Misc. Rep. 552; McCready v. M. R.Co., 76 Hun, 531; Mattlage v. N. Y. El. R. Co., 1