Rasch v. Nassau Elec. R. Co.

• Decision Date: 26 April 1910
• Citation: 198 N.Y. 385,91 N.E. 785
• Parties: RASCH v. NASSAU ELECTRIC R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 385

91 N.E. 785

RASCH

v.NASSAU ELECTRIC R. CO. et al.

Court of Appeals of New York.

April 26, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Caroline E. Rasch against the Nassau Electric Railroad Company and another. A judgment for plaintiff was affirmed by the Appellate Division (129 App. Div. 897,113 N. Y. Supp. 1143), and defendants appeal. Affirmed.

James C. Church, for appellants.

Charles H. Strong, for respondent.

CULLEN, C. J.

The action is brought in equity by the owner of a residence on Union street in the borough of Brooklyn, who also owns the fee in the adjacent street, to recover rental and fee damages for the construction and operation of a trolley railroad in front of her house. There is no question as to the liability of the appellants, but it is complained that improper elements of injury were considered in estimating the plaintiff's damages. The trial court, as appears by its findings, awarded damages not only for the injury to the plaintiff's easements of light, air, and access, but also for that due to the noise and vibration as a result of the operation of the cars on plaintiff's property in the street.

It is contended by the learned counsel for the appellants that the recovery should have been confined to damages resulting from the injury to the easements of light, air, and access to the plaintiff's adjoining residence, and reliance is principally based on our decisions in the elevated railroad cases, of which American Bank Note Company v. New York Elevated Railroad Company, 129 N. Y. 252 29 N. E. 302, is the leading authority. Undoubtedly such is the rule in that class of cases, but the basis of the rule is that in those cases (without a single exception that I can find, or to which our attention has been called) the plaintiff did not own the fee of the street. His right to any compensation rested on the fact that he had easements in the street of light, air, and access, and as these were his only easements, necessarily it was only for an invasion of those easements for which he was entitled to compensation, except where the defendants were trespassers. In the case of Matter of the Brooklyn Union Elevated Railroad Company v. Oliff, 113 App. Div. 817,99 N. Y. Supp. 222, affirmed by this court 188 N. Y. 553, 80 N. E. 1105, to which the appellants refer, the plaintiff was merely an abutter. But the rights of the plaintiff in this case rest on a different foundation. She is the owner of the fee subject to the public easement. It was held by this court over 40 years ago in Craig v. Rochester City & B. Railroad Company, 39 N. Y. 404, and reiterated 7 years ago in Peck v. Schenectady Railway Company, 170 N. Y. 298, 63 N. E. 357, that a street railroad is not a street use, but an additional burden placed on the land for which the owner of the fee is entitled to compensation. What should be the proper measure of compensation to a landowner, part of whose lands are taken by eminent domain, was for a long time a mooted question, the decisions being those of the Supreme Court. In one set of cases it was held that the owner was entitled to the value of the land taken and compensation for the injury caused the remaining land by the severance, but not for injuries occasioned by the particular use to which the land taken was to be put. In another set of cases a contrary doctrine was maintained, and it was held that the landowner was entitled to compensation for damage caused by the use to which the land was appropriated. In the case of American Bank Note Company, supra, Judge Finch intimated doubt as to the propriety of the rule allowing compensation for the particular use which was to be made of the land acquired. In Bohm v. Metropolitan Elevated Railway Company, 129 N. Y. 576, 585,29 N. E. 802, 804 (14 L. R. A. 344), Judge Peckham said: ‘As to the land remaining, the question has been to some extent mooted, whether the company should pay for the injury caused to such land by the mere taking of the other property, or whether, in case the proposed use of the property taken would depreciate the value of that which was not taken, such proposed use could be regarded and the depreciation arising therefrom be awarded as part of the consequential damages suffered from the taking. I...