Opinion
November Term, 1896.
Albert Reynaud, William F. O'Neill and Henry W. Wiggins, for the appellant.
George T. Clark, for the respondent.
The judgment appealed from perpetually enjoins the defendant from maintaining its tracks and operating its street railway in the city of Middletown in front of the plaintiff's premises, until such time as the defendant shall have paid to the plaintiff the sum of $750, being the amount of permanent loss and damage to such premises sustained by reason of the location of the defendant's track and the operation of its railway in front of such property. It is in the usual form of judgments in elevated railroad cases in New York and Brooklyn, where the easements of abutting owners have been injuriously affected by the structure in the street. The plaintiff is the owner of the fee of the street in front of her property, and under the authority of Craig v. Rochester, etc., R.R. Co. ( 39 N.Y. 404) the occupation and use of the street by the defendant for its trolley railroad clearly entitled her to compensation. The court at Special Term held, upon evidence sufficient to support the finding, that the plaintiff's property had been injured by the proximity of the rail to the curb, which prevented her premises from participating in the advantage which they would otherwise have received from the general enhancement of property values in Middletown. The learned counsel for the appellant, in their brief, assume that the trial judge, in what he said about the enhancement which comes from the construction of public improvements, referred to the appreciation of values occasioned by the construction and operation of the railroad itself; but we think it is plain that such was not his meaning, especially when reference is had to the testimony on the subject. That he meant a general increase, independent of the existence of the railroad, is shown by this extract from the testimony of a witness in respect to values: "The Court: Q. Suppose the railroad had not been built, I understand you to say that the property appreciated in value? A. Yes, sir. The property was enhancing in value before the railroad was built out that way. I think the railroad has depreciated the stores for renting purposes. It would be harder to rent now than it was before."
The judgment must be affirmed, with costs.
All concurred, except BROWN, P.J., not sitting.
Judgment affirmed, with costs.