#### Diedrich Werfelman et *al.,*Respondents, *against*The Manhattan Railway Company *et al.,*Appellants.

(Decided July 18th, 1890.)

One who acquires title to land abutting on a public street, after an elevated railroad is built and in full operation on such street, may maintain an action to restrain the maintenance and operation of the railroad and for damages for injuries therefrom to easements in the street, appurtenant to the land. It is not necessary, in such action, that plaintiff should connect himself, by a continuous chain of deeds, with the persons seized of the premises at the time of the building of the railroad. Evidence that he is in- possession of the land under a recorded deed, claiming the fee, establishes a presumptive title to the easements in the street as well as to the land, especially where defendants are proceeding to acquire title to such easements by condemnation.

A refusal, in such an action, to make a finding of the abstract proposition that any benefits accruing to the property from the elevated railroad are to be set off against any damages sustained, is not error, where evidence of such benefits was admitted and presumably had its due weight in the decision.

A recovery may be allowed, in such a case, for loss of rental value during the term of a lease of the premises, unexpired when plaintiff purchased them, which had been made after the building of the railroad.

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

The facts are stated in the opinion.

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

*Henry Gr. Atwater,*for respondents.

Labbemobe, Ch. J.

When this case was before us on the former argument, certain authorities were not brought to our attention. After carefully considering not only what these adjudications directly hold, but the necessary inferences from some of the positions taken in them, we hav.e concluded that the points for which appellants contend are no.lpnger *356open questions,, so far as the courts of original jurisdiction are concerned.

The point principally, urged by the learned counsel for appellants is, that as plaintiffs acquired title after the elevated road was built and in full operation, they took subject to its notorious and continuous invasion of the easements in the streets; that they therefore presumably paid, less for the property than they otherwise would have done; and consequently that the plaintiffs have sustained no damage, but that any loss that has occurred was borne by the owner at the time the road was built, in whose hands said property depreciated.

The remarks of Judge Beach in *Foote*v. *Manhattan Elevated R. Co.,*are expressive of the natural attitude of a judicial officer and fair-minded man towards actions of this character. “ The case is here presented of a man who goes and buys a piece of - property......after the elevated road was built, and pays a less price for it because the elevated road is there, and then turns around and sues the elevated road, and in my opinion, he does not occupy* a position very commendable in equity.”

It does not appear, however, that the learned judge, under the law as it stands, felt authorized to refuse jurisdiction.

On the former argument the case of *Pappenheim*v. *Metropolitan Elevated R. Co.*(7 N. Y. Supp. 679, 28 N. Y. St. Rep.), was brought to our attention, in which there are some remarks indicating that the General Term of the New York Superior Court believed that a serious question was presented of a plaintiff’s right to recover, under circumstances very, similar to those here involved. But certainly it cannot be presumed that the Superior Court intended by these *obiter dieta*(the decision was expressly placed on another ground) to overrule "their former decision directly on the point, in *Glover*v. *Manhattan R. Co.*(51 Super. Ct. Rep. 1). In the Glover case it was squarely decided that, whether or not the fee of the street was held by the abutting owners, the latter were entitled to an easement of light, air, and access which constituted property, and ran with the land, passing, by iin*357plication and without express words, to, any subsequent grantee of realty fronting the street, in like manner as any appurtenant easement. It was further said that the building of the road did not give the right of action, but the continue^ appropriation of plaintiff’s rights iri the street. “ It can make no difference at what time he [plaintiff] became owner of the property, but he is entitled to be protected against unjust appropriation, whether it was acquired by him before the defendants appropriated it, or the day before the commencement of the action.” (Page 13).

The decision in the Glover case embodied a deliberate . interpretation and application of principles thought to be laid down by the Court of Appeals in the Story case ; it was made after elaborate argument by distinguished counsel, and, though involving a most important point, was not appealed from.

As an extreme though not illogical application of the doctrine of the Glover case, our attention has recently also been called to *Mitchell*v. *Metropolitan Elevated R. Co.*(9 N. Y. Supp. 829), where it was held, by the General Term of the Supreme Court of this department, that a person purchasing property after the erection of the road might maintain an action for an injunction, notwithstanding the fact that the executors of a former owner had obtained and been paid a judgment for the entire permanent damage, it appearing that the said executors never had, as was erroneously supposed, the legal title to such property.

In a former case in this court *(Sanders*v. *New York Elevated R. Co.,*15 Daly 388), we held that, in the event of the death of a plaintiff in one of these equity actions, it might be revived in the joint names of his executor and his "devisee or heir, the executor representing the cause of action for past damages, the heir or devisee the claim for permanent damage to the fee. If the present contention of appellants is correct, that the whole right of action arising from the operation of the road is a claim for damages accruing to the original owner for the depreciation in the value of his land, there would never be anything to pass to an heir or devisee. Such entire *358claim for. damages' would pass to the executor or administrator.

There are other decisions bearing either directly or by implication on the point, but enough has been said to show that the question cannot be treated at this stage as a new one. The lower courts have now been engaged for several years in applying and interpreting the. principles which they conceive to be laid down by the Court of Appeals in the Story case and the Lahr case. There has been a substantial concurrence in essential points. Many cases have been decided in all the courts of this county which necessarily assume, even where they do not expressly hold, that the easement of light, air, and access is one running with the land, and passing as an incident of the fee to successive grantees of the realty ; and if this principle is now to be overturned, it must be done only by the court of last resort.

' Several'other points are raised by appellants, all of which, however, we consider already substantially settled. It is insisted that the plaintiffs do not connect themselves, by a continuous chain of deeds, with the persons seized of the premises at the time of the building of the road. But under the doctrine of the Glover case, we do not regard this omission as serious. Plaintiffs are in possession of the abutting land under a recorded deed, claiming afee. This establishes presumptively their legal title to such fee. The right to the easements in the street follows and is appurtenant to ■ such fee. The same proof which establishes plaintiffs’ presumptive title to the land itself, establishes also a right to the easements. Moreover it appears, by a supplemental pleading put in by defendants, that they have commenced proceedings to acquire title to the easements in the streets by condemnation pioceedings. This we think is an admission of record that plaintiffs do own such easements, which in itself would dispense with formal proof on the subject *(Watso*n v. *Metropolitan R. Co.,*8 N. Y. Supp. 533, 29 N. Y. St. Rep. 513).

It was not error for the; trial judge to refuse to make a finding of the abstract proposition, that any benefits accruing to the property from the elevated road are to be set off against *359any damages which may have been sustained. Much evidence was admitted tending to show that such benefit had arisen, and presumably the court gave it due weight in the decision of the case. This was in accordance with the rule laid down in *Newman*v. *Metropolitan Elevated R. Co.*(30 N. Y. St. Rep. 36), and *Doyle*v. *Metropolitan Elevated R. Co.*(8 N. Y. Supp. 323, 29 N. Y. St. Rep. 139). But there is nothing in the opinions in those cases, or in the general rules of procedure, which requires a judge to find, in the form of abstract propositions, the successive steps of reasoning by which he reaches the result.

The question of the admissibility of the opinions of experts, as to what would be the value of the property if the road had not been built, has been determined in favor of the respondents, by *Thompson*v. *Manhattan JR. Co.*(8 N. Y. Supp. 641, 29 N. Y. St. Rep. 720), and *Mitchell*v. *Manhattan R. Co.*(9 N. Y. Supp. 130).

It was not error to allow a recovery for the loss of rental value, during the term of the unexpired lease of the premises when plaintiffs purchased. This lease had been made after the building of the road, and presumably the rent stipulated for it was lower than it would have been if the road had not been there. This point has also in effect been passed upon favorably to respondents. See *Mortimer*v. *New York El. R. Co.*(29 N. Y. St. Rep. 262).

The judgment should be affirmed, with costs.

Bookstaveb, J., concurred.

Judgment affirmed, with costs.