#### Bertha R. Kenkele *et al.,*as surviving trustees, Resp’ts, *v.*The Manhattan Railway Co. *et al.,*App’lts.

*(Supreme Court, General Term, First Department,*

*Filed January 24,*1890.)

1. Railroads—Measure of damage for taking easement.

Where an elevated railroad has erected and maintained its road without acquiring or showing any disposition to acquire title to the easements necessary therefor until action is brought for such trespass, the measure of the permanent damage to the owner is the value of such easement at the time of the trial, and not at the time of the seizure.

2. Same.

The value of such easement is the difference between what the property appurtenant thereto would he worth with, and what it is worth without such easement at the time of the trial.

3. Easements—Trustee with power of sale can convey good title to.

A testamentary trustee holding the fee with a power of sale can convey a title to easements appurtenant to the fee which will he binding on the remainderman.

Appeal from judgment entered after trial at the special term.

*Henry B. Sedgwick, Jr.,*for app’lts; *E. W. Tyler,*for resp’ts.

Van Brunt, P. J.

Most of the questions presented upon this appeal have been considered in cases which have been heretofore argued and conclusions arrived at adverse to the claims made by the appellants.

It is claimed that the learned judge who presided at the trial adopted an erroneous measure of damages and admitted incompetent evidence upon the subject of damages. It seems to us that in the discussion of the rules applicable to the question of damages in these cases, the peculiar position of the defendant is too often lost sight of.

If the defendant before or immediately after the building of ' the road had taken the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of its structure and the operations of the road, undoubtedly the measure of damages would have been the value of those easements at that time. But, instead of pursuing this course, they have without authority seized upon these easements, maintained their unlawful structure, and operated their road utterly regardless of the right of those upon whose property they were trespassing and *without*showing any disposition to acquire the title to that which they had seized.

It became necessary for the owners of these easements to appeal to the courts for protection from this wanton invasion of their rights, and the courts would have been justified, under these circumstances, in compelling the absolute cessation of the operation of these roads until they had taken measures to condemn to their use the property which they had already seized upon. Instead of doing this, because of the great public inconvenience which such a course would entail, they have in these proceedings proceeded to determine what would be a fair compensation to be paid for these easements, upon the payment of which, and the *96actual damage already sustained, the operation of the road might continue.

Under these circumstances of what time is the value of these easements to be ascertained ? Clearly as of the time of the trial. The right to recover for the damage theretofore done rests upon a different basis. The permanent damage is to be determined as of the time of the trial. If proceedings under the statute were initiated now the present value of these easements would neces.sarily be allowed, not what their value was when the road was constructed. The defendants could have had this latter rule of damages if they had commenced their proceedings to acquire title when they began the construction of their road. They have not ■done this, but have refused to pay until compelled to do so by the strong arm of the law, and hence, as they only pay now, they must pay what the property taken is worth now.

The evidence as to the value of these easements is necessarily, from the very nature of the case, somewhat conjectural and stringent, and strict rules are not to be applied where they would deprive an owner of all proof of damage, as we are dealing with the damage done by a trespasser, and, while damages should .be proven vfith reasonable certainty, the rights and interests of the owner of these easements should not be sacrificed.

How are we to arrive at the value of these easements taken by the defendant ? To the plaintiffs they are of no value except because of the enhanced value which they give to the property they own fronting upon the street. By themselves they are worthless, have no intrinsic value. Then what more certain evidence of their value can be given than by proof of what the property to which they are appurtenant would now be worth with the easements, and what it is worth without these easements.

But it is said that this rule is contrary to that laid down by the court of appeals. If the court of appeals have held that such evidence in these cases is incompetent, then we know of no way in which the plaintiff can prove the damages to which the law says he is entitled, and the amount of such damages must be left to be guessed at by the court or jury.

As we have seen the easements have no value severed from ■the abutting land except to the defendants.

They have been severed by the defendants from the abutting land. What damage is the owner of this abutting land entitled to receive as a condition of allowing the trespasser to enjoy the funds of this trespass ? Clearly the amount by which his property is at the time of the trial injured by the trespass. The trial is the time at which the computation should be made and the damages fixed.

We do not think that the court of appeals has as yet condemned that rule, and until they do justice seems to require that it should be followed.

It is claimed that the plaintiffs only had a life estate, and could not recover beyond that. An examination of the will under which they hold, shows that they held the fee with a power of sale. They, therefore, can convey to the defendants a title to these ease-, ments which will be binding upon the remaindermen.

*97It does not seem necessary to consider the other points raised in the case as they have already been passed upon as has been stated in other cases. The judgment should be afmmed, with costs.

Brady and Daniels, JJ., concur.