#### Anna Maria Doyle, Respondent, *against*The Manhattan Railway Company *et al.,*Appellants.

(Decided January 5th, 1891.)

In an action to restrain defendants from maintaining and operating their elevated railway along the street in front of premises belonging to plaintiff, the judgment for plaintiff awarded an injunction, with a condition that it should be inoperative upon payment by defendants of a certain' sum as damages to the fee from the maintenance of the railroad, and also awarded damages for past injury. *Held,*that errors at the trial, in the admission and exclusion of evidence of the value of the fee, were not ground for reversal, as affecting the amount to be paid in avoidance of the injunction, since they did not invalidate plaintiff’s claim to relief by injunction; the amount to be paid not being so exorbitant as to authorize interference to redress an abuse of discretion.

The construction and operation of such a railway in violation of plaintiff’s easements in the highway is a continuing nuisance, for which the owner may recover damages accruing within the six years period of limitation, though the railroad was constructed and operated before that period.

Leases of plaintiff’s property, made after the construction of defendants’ railway, and terminated before the action, will not prevent a recovery therein by him, under section 1665 of the Code of Civil Procedure, providing that “a person seized of an estate in remainder or reversion may maintain an action founded upon an injury, done to the inheritance, notwithstanding any intervening estate for life or for years.”

Appeal from a judgment of this court entered upon the decision of the judge on a trial by the court without a jury.

The facts are stated in the opinion.

*Julien T. Davies*and *Brainerd*Tolies, for appellants.

*W. Gf.*PecJcham, for respondent.

*507Pryor, J.

Action for injunction to restrain the maintenance and operation of defendants’ railway and for damages for past injuries. Appeal from judgment awarding such injunction and damages.

The allegations upon which appellants mainly rely, are in the admission and exclusion of evidence as to the fee value of the property in question, and so they affect the amount defendants have the option of paying in avoidance of the injunction. But, such errors, unless they invalidate plaintiff’s claim to injunctive relief, are ineffectual to reverse the judgment *(Lawrence*v. *Metropolitan El. R. Co.,*now decided, *ante*p. 501) ; and we are of opinion, that upon the unchallenged and uncontroverted evidence, the right to an injunction is clear and incontestable.

It is equally plain that the sum, payment of which is offered defendants as an alternative of the injunction, is not so exorbitant as to call for revision by the General Term in the exercise of its power to redress an abuse of discretion below.

The question, then, is—does any error invalidate the judgment for damages ? The errors, if any, in the admission or exclusion of evidence as to past damages, are immaterial and harmless; for the reason that the unchallenged and uncontroverted proof clearly justifies the amount awarded for such damages.

But appellants contend that acts barred by the statute of limitations, are made the basis of recovery. Not so, however. The ground of the action is a taking of plaintiff’s property without compensation *(Story*v. *Railroad Co.,*90 N. Y. 122 ; *Lahr*v. *Railroad Co.,*104 N. Y. 268). The construction and operation of defendants’ railway in violation of plaintiff’s easements in the highway, is “ a continuing nuisance; ” and every continuance of a nuisance is a fresh nuisance, for which a new action may be brought ( *Uline*v. *Railroad Co.,*101 N. Y. 98, 109 *et seq.).*

The leases of plaintiff’s property were all made after the construction of defendants’ railway; and all terminated before the commencement of the action ; and so, at the time of the *508injury, possession was in plaintiff. But, by express provision of the Code (§ 1665), “a person seized of an estate in remainder or reversion, may maintain an action founded upon an injury done to the inheritance, notwithstanding any inter-' vening estate for life or for years.” The claim is for an injury to the inheritance—the depreciation of its value—but no recovery can be had of past damages for such injury beyond a period of six years. Here the trial judge expressly ruled that no damages should be allowed except as accruing within the six years.

The judgment should be affirmed, with costs.

J. F. Daly, Ch. J., and Bischofe, J., concurred.

Judgment, affirmed, with costs.