GRAY, J.

So much has been written in this court, in the course of the litigation which has grown out of the efforts of abutting property owners to obtain from the elevated railroad companies compensation for the deprivation of those easements of light, air and access, which were appurtenant to their property, that I deem it unnecessary in the present case to say more than what is needful in order to dispose of the questions which the cross-appeals have raised. The general principles underlying these equitable actions have been elaborately discussed in many opinions and the right of the court, after deciding the complainant to be entitled to relief by way of injunction, to proceed to assess the damages sustained in the past, is firmly settled. If the court, sitting in equity, has gained jurisdiction of an action, wherein the main relief sought by the complainant is an injunction against the defendant, it will retain its control of the cause, generally, and, if it has happened that the acts of the defendant, which have been complained of and which are sought to be restrained, have caused, and will continue to cause, damage, the court may proceed in its own way to assess the damages sustained and to award judgment for them, as incidental to its grant of equitable relief by way of injunction. The court having the parties before it and, in order to prevent a multiplicity of suits and to settle up the whole matter in dispute, will so decree as to finally settle the whole controversy between them. When, as in the litigation connected with these elevated railroads, the court proceeds further and fixes the amount of the damage sustained to the fee of the property, which the defendant companies may pay in order to obviate the injunction, it does that which is a matter, not of strict legal right, but of equitable procedure and remedy, and which is resorted to by the court, that the corporation may acquire that legal right to maintain and operate its railroad in front of the complainant's property, which it might have acquired, had it proceeded in the beginning to condemn the property owner's rights under the law of eminent domain. The controlling idea, in the assumption by a court of equity of the authority to make a complete decree in such cases, which shall finally settle the respective rights and obligations of the parties, is, plainly, that all the parties are before it and that its decree will be effectual because operating upon all the parties who have any interest in the subject-matter of the litigation.

In the present case, when the plaintiffs commenced this action their complaint set forth but a single cause of action, which was one purely for a court of equity; inasmuch as the main relief sought was an injunction against the defendants, restraining them from maintaining and operating their elevated railroad to the prejudice of the abutting property. Their demand for past damages, included in the prayer for judgment, did not affect or change the equitable nature of the action, for reasons which heretofore have been set forth in the Lynch case, ( 129 N.Y. 274), and in subsequent cases following in the line of that decision. The action, when it reached the stage of a trial, was one which, on the pleadings, was cognizable by a court of equity; but when it appeared, by the proof of the plaintiffs' conveyance of the fee of the premises to a third party, that the legal title was no longer in the plaintiffs, or in any one before the court, a condition of things arose which deprived the plaintiffs of the right to insist upon any relief by way of injunction against the defendants; because, in fact, they had no rights which the defendants could injure, or which an injunction could protect; unless, as the plaintiffs claim, the reservation in the deed to Schortemeier had the effect to reserve to them the easements appurtenant to the premises, or, in some way, to give to them an equitable standing in court with respect to them, which would entitle plaintiffs to continue their action and to insist upon their demand for equitable relief against the defendants.

The plaintiffs were not the owners of the fee of the land occupied by the street and, when they parted with the legal title to the property abutting upon the street, they parted with every legal estate or interest.

In the reservation in the conveyance to Schortemeier, I find merely a right reserved to the plaintiffs to have all the damages which had been, or might thereafter be, caused to the property, because of the construction, maintenance and operation of the elevated railroad; with the right to use the grantee's name, either in the release of the easement in the street to the railroad companies, or in any suit against them. If it could be assumed that the language of the reservation in the deed was sufficient to assign easements appurtenant to the property, such assignment would be absolutely ineffectual. The easements of an abutting owner in the street, which are invaded by the construction, maintenance and operation of an elevated railway, are appurtenant to his premises and, as it was said in the Kernochan case, (128 N.Y., at page 568), "in the nature of things they are indissolubly annexed thereto until extinguished by release or otherwise. They are incapable of a distinct and separate ownership." The right to enjoin the continuance of the trespass by the defendants upon those easements, could not be reserved upon the sale of the property. The right could only be possessed and enforced by its owner. ( Pappenheim v. Elevated R.R., 128 N.Y. 436.) He is the person solely interested in the preservation of the estate in the abutting property in all its integrity, with all the incorporeal easements, or rights and privileges appurtenant thereto and he is the only person whom the law could regard as injured by a continuance of acts on the part of the defendants, which affect property and prevent its full and fair enjoyment in those ways which would be possible, if the street were used as originally intended.

Nor can we, as the plaintiffs urge, for the purposes of the suit, hold that equity will consider the transaction as if no conveyance had been made and as though the title to the property still stood in the plaintiffs' name. The grant of the fee to Schortemeier was complete and the reservation did not operate to lessen that grant, while purporting to reserve to the vendors rights against the defendants as trespassers upon the easements which were appurtenant to the property sold. The situation brought about by the plaintiffs' conveyance of the fee of their property to Schortemeier was that the legal title was not represented before the court and could not be bound by any decree which the court might make. There was a third person not a party to the suit, in whom were vested that legal title and the right to enforce or protect the easements appurtenant to the property. Those easements had never been conveyed, as the effect of the reservation in the conveyance. Nor had they been, in any sense, extinguished thereby. They remained, in all their integrity, still appurtenant to the property. But, as between the plaintiffs and Schortemeier, the reservation in the conveyance would, upon its face, operate to retain in, or confer upon, the plaintiffs certain rights which Schortemeier could not, or ought not to disregard. However strong the language of the reservation, or however effective might be deemed Schortemeier's testimony upon the trial to preclude him from thereafter claiming in derogation of the rights reserved to the plaintiffs in their conveyance to him, nevertheless, it is certainly apparent that a decree in an action to which he was not a party would not be conclusive upon him. There need be no question as to the right of the parties to agree to make such a reservation as this; but the effect of it, while certain in so far as it could not sever the easements from the land, was a question between them, in the disposition of which the concern of the defendants was that in any action relating to a damage to the property for invasion of its easements the legal owner should be bound by the result. The defendants, clearly, are entitled to have the holder of the legal title to the abutting property bound by a decree, which permits them, as a condition of being relieved from the injunction, to acquire the legal right of maintenance and operation by the payment of the sum of money fixed by the court as the due compensation to be made. If the plaintiffs had brought in Schortemeier as a party defendant in the action, the court would have been in a position to adjust the equities and rights of all the parties and to render a complete decree, which would have been binding upon each. The equities created or arising between the plaintiffs and Schortemeier, through the reservation in the deed, can only be effectively adjusted by his presence as a party to an action which had that as one of its objects. Standing, as the holder of the legal title, outside of the action, if the reservation in the plaintiffs' conveyance to him is operative to any extent, it may be deemed to make him, as the holder of the legal title, a trustee for the plaintiffs with respect to any damages which might be recovered of the defendants, for the injury occasioned to the rental and fee value of the property, through an action brought in his name, or wherein he was joined as a party. The trial court, therefore, in my judgment, committed no error in denying to the plaintiffs relief by way of injunction and in refusing to award damages from the date of their conveyance to Schortemeier. The result in the trial court did not necessarily deprive the plaintiffs of whatever legal or equitable rights were conferred by the reservation in their deed and, in a proper action, they remain to be enforced, unimpaired so far as the result of this action is concerned.

With respect to the appeal taken by the defendants, little need be said. In my judgment they waived any right to the trial by jury of the question as to past damages. Had they deemed such a trial necessary, or their legal right, they should have taken steps in that direction, either by way of supplemental pleadings, or by way of some timely objection to proceeding with the trial in equity. Although knowing of the existence of the plaintiffs' conveyance for a period long before the present trial, they took no step and they suffered the plaintiffs to proceed and to give evidence upon the trial without objection. Thereby they must be deemed to have waived the right to a jury trial; and it was too late to obviate the effect of that waiver by the motion to dismiss the complaint, or by the request for rulings of law at the conclusion of the trial. The Superior Court had jurisdiction, both in law and equity, and it was competent for the trial judge, sitting in equity and without objection being made to the trial in that part of the court, to retain control of the action and, within the rules of law and according to the proofs, to give the plaintiffs a judgment for the damages sustained in the past. Had the objection been raised in a proper way, or at the proper time, I think the defendants could have insisted upon a trial upon the law side of the court, as to the damage which the plaintiffs had sustained up to the time of the conveyance of the property. But not having done so, it was not error for the court to settle the litigation between the parties as far as it was entitled to do so, by the award of the rental damage sustained by the plaintiffs while holding the legal title to the premises.

With respect to the amount of damages which the trial court awarded to the plaintiffs, I think there is no occasion to interfere with the judgment below. There was evidence showing that the occupation of the street by the defendants had injured the fee and rental values of property, and there was evidence respecting the property in question, which justified the award made to the plaintiffs. It cannot be said that the facts and figures shown by the evidence furnished no ground for the inferences upon the question of damage sustained to the fee which the trial court drew and which the General Term has sustained.

The determination of these questions is not without difficulty and that it should be left undisturbed, when made without a gross violation or abuse of principle, is the wise and settled rule.

The judgment appealed from should be affirmed; but, under the circumstances, without costs to either party.

All concur.

Judgment affirmed.