Statement of the Case.

by reason of the construction and operation of the defendant's road.

The property is situated at the corner of the Bowery and Division street in the city of New York.

On the trial evidence was given to the effect that, prior to the erection of the elevated railroad structure, the building on the premises was very prominent in approaching it from different quarters, as much so as any in the city; that the structure had cut it off entirely from sight, from any point of view; that the building could not be seen at all; that the building can be reached from the Bowery or Division street or Chatham square or Catherine street or the New Bowery and from other smaller streets; that it was a prominent object from all those streets; that after the structure it could not be seen; that, previous to the elevated railroad, the carpet business carried on in the building was advertised by hanging out carpets from the windows like banners, so that they could be seen at a long distance in almost every direction and attract people; that the building was on a corner and could be seen a long distance in almost every direction; that the opportunity of hanging of carpets out of the windows was of great value to the building, and made an actual difference in the value of the building, because it attracted attention from afar; that previous to the obstruction of the elevated railroad, people could see these carpets from a long distance, and if they were in need of anything of the sort they would go to the building; that brought trade to the building; that opportunity to tenants in the building has been taken away from the building by this road; that they can still hang their goods out, but they are not seen; that advantage has been destroyed by the road in a great measure; that is one of the things that has made a difference in the rental value of the building.

The trial judge charged the jury, among other

66

Respondents' points.

things: So that, in substance, you have to recompense this plaintiff for the loss of the light, the air, the means of access, and the means of the exhibition of the building, in its use for signs or for the giving notice of any kind in any way that the wares therein were to be sold, of giving notice of that at a distance. For the evidence in this case is that the structure of this road, as it goes up, hides the building to an extent. Now, for all those things, according to the testimony, "you must give a compensation so far as those things have lessened the rental value." To which defendants' counsel excepted.

Defendants' counsel requested the trial judge to charge, among other things: "The defendants are not liable to plaintiffs for damages occasioned to the premises by interference with or destruction of the facility to exhibit goods, wares, &c., from this building in such manner that they could be seen from a distance, and from other streets." The judge refused so to charge, and defendants' counsel excepted.

The other facts sufficiently appear in the opinion.

John W. Pirsson, attorney, and John E. Parsons and Jno. Alex. Beall, of counsel, for respondents, on the questions considered in the opinions, argued :

I. The plaintiffs have a good cause of action. (a.) In the Story case it was held that an elevated railroad is inconsistent with the ordinary and general use of a street as a public street, and that an abutting property owner may maintain an action for damages by reason of the construction and operation of such railroad, although he has no other estate or interest therein than an easement for light, air and access. 90 N. Y. 122; Re-affirmed Lahr v. Met. E. R. Co., 104 N. Y. 268. The public streets or highways of a city are held by it in trust for the use of a street, and such an easement or right is property which may not be taken without compensation. 90

Respondents' points.

N. Y. 156 to 161, 170 to 177; Glover v. New York Elevated Railroad Company, 66 How. 77; Ireland v. The Metropolitan Elevated Railway Company, 52 N. Y. Super. Ct. 455; Abendroth v. M. R'way Co., 54 Ib. 47; Lahr v. M. E. R'way Co., supra. (b.) Under the decisions of the courts of this state, the Elevated Railroad Company is liable for all the damages allowed here, even when the fee title is not in the abutter. He has an easement in the use of the city street, and this cannot be taken without compensation. Story v. R. R. Co., supra; Lahr v. Same, supra; Drucker v. M. E. R'way Co., 106 N. Y. 157; Mortimer v. Same.

II. The plaintiffs' rights to the use and enjoyment of the Bowery as a public street is in no way affected by the question whether that street was originally laid out by the Dutch or English. The right of discovery was in the English, and the civil law never prevailed in this state de jure, but only for a time, de facto. Martin v. Waddell, 16 Peters, 367; Commissioners v. People, 5 Wend. 445; Appraisers v. People, 17 Ib. 571. Even if the Bowery, as at present existing, was a Dutch road-the right of the abutting owners to their lands so used and taken was not divested; the Dutch law never obtained de jure but only de facto during their occupation-and the common law of England evicted for a time by force, reentered with the English arms, and controlled the rights and estates of the people, and, except as modified by statute, continues to do so to this day. Again, if we concede all that is claimed for the effect of the laying out of a Dutch road by the appellants, we have established our right as abutting owners to the unimpaired enjoyment of the street for all the purposes of a street. In 1838 the property was assessed for paving the Bowery, and such assessment was paid (see Appendix, pp. 99 to 102, and fols. 250 and 251). Abendroth v. R. R. Co., supra. The case of

Respondents' points.

Lahr 104, N. Y. supra, seems, however, to render much of this argument unnecessary, and disposes of the question.

III. The construction and operation of the railroad upon the Bowery in front of and adjacent to the property, without the consent of the testator, or making compensation therefor, was a trespass, and the defendants are liable for all the damages sustained by a testator by reason thereof, and are not protected by legislative or municipal license. Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Wager v. Troy Union R. R. Co., 25 Ib. 526; Henderson v. N. Y. Cent. R. R. Co., 78 Ib. 423; Craig v. Rochester & B. R. R. Co., 39 Ib. 404; Mahady v. B'klyn R. R. Co., 91 Ib. 148; Cogswell v. N. Y. Cent. R. R. Co., 103 Ib. 10; Mortimer v. Met. E. R. Co. The damages may embrace all of the natural and proximate effects which ensue. 3 Sutherland on Damages, 364; Damron v. Roach, 4 Hump. 194; Sherman v. M. L. S. & W. R. R. Co., 40 Wisc. 645; Balto., &c., R. R. v. Baptist Ch., 108 U. S. 317; Lahr v. Manhattan R'way Co., supra. As already shown, the damages allowed are strictly within the rule as declared by the courts of this state.

IV. The rule as to the measure of damages was correctly laid down by the trial judge. Drucker v. The Manhattan Railway Co., 106 N. Y. 157; Mortimer v. Metropolitan Elevated Railway Co. That the proper measure of damages is loss of rental value is held by the cases just cited; and to the same effect are Jutte v. Hughes, 67 N. Y. 267; Francis v. Schulhoff, 53 Ib. 152; 3 Sutherland on Damages, 369; Blesch v. Chicago, &c., R. R. Co., 43 Wisc. 183. There would seem to be no longer any question that deprivation of or interference with light, and the construction and mainteance of the structure in the near proximity of the premises, were proper elements of damage to be considered. Lahr. v. M.

Appellants' points.

R. Co., supra; Drucker v. M. R. Co., supra; Mortimer v. Met. Elevated Railway Co., supra.

V. The defendants' exceptions to the admission of evidence were not well taken. The decision of this court in Mortimer v. Metropolitan Railway Co., recently affirmed by the court of appeals, directly disposes of many of them. The evidence of the assessment for paving and its payment were properly admitted. Abendroth v. M. Railway Co., 54 N. Y. Sup. Ct. 47. The remaining objections are all to the testimony as to the history, location and dimensions of the Bowery. The defendants attempted to show from maps, histories and documents that the present Bowery is identical with a road which is claimed to have existed during the Dutch occupation. The testimony objected to was in rebuttal of that offered by the defendants and of historical facts relating to boundaries, as to which reputation or tradition is, from necessity, admissible, and the tradition testified to existed ante litem motem. Wood's Trial Evidence, 262 and 3. There can be no question. that the witness was in a situation to acquire and possess the information. Ib. pp. 310 and 311; Boardman v. Reed, 6 Peters, 328. It is submitted that the evidence was properly admitted.

Daries & Rapallo, attorneys, and Edward S. Rapallo and Brainard Tolles, of counsel for appellants, on the questions considered in the opinions, argued:

I. Prior to 1664 the land included in the Bowery was owned absolutely in fee by the Dutch government of this island. All the title of the Dutch government to the said land subsequently became vested in the king of England, and was by him granted to the Duke of York. By the Dongan charter of 1686 the said land was granted to the mayor, aldermen and commonalty of the city of New York in trust for the public use. No power has ever been