(91 Hun, 201.)

#### PORTER v. BROOKLYN EL. R. CO. et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Elevated Railroads—Injuries to Abutters.

In an action against an elevated railway company for damages and an ■ injunction, a judgment for six cents as damages from the operation of the road for eight years renders unreasonable a finding that the damages are $1,500.

Appeal from special term, Kings county.

Action by August D. Porter against the Brooklyn Elevated Railroad Company and the Seaside & Brooklyn Bridge Railroad Company to recover damages to plaintiff’s premises caused by the construction and operation of defendants’ road, and for an injunction. From a judgment awarding plaintiff six cents damages and costs, and perpetually enjoining defendants from maintaining and operating their railroad in front of plaintiff’s premises unless within 30' days they pay plaintiff the sum of $1,500 and costs, defendants appeal.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ-

Henry L. Scheuerman, for appellants.

Francis R. Whitney, for respondent.

*334BROWN, P. J.

The plaintiff is, and has been since 1854, the owner of a lot of land in the city of Brooklyn, about 34 feet wide and 206 feet deep, extending from Sands street, on the north, to High street, on the south. On the Sands street side there is a two-story and attic frame dwelling house, standing some distance back from the street line; and on the High street side there are two two-story buildings, one a frame building, and the other built of brick, one used as a dwelling, and the other in part as a barber shop. The Brooklyn Elevated Railroad is built and has been operated in .Sands street since 1887. The Seaside & Brooklyn Bridge Elevated Railroad is in process of construction in High street.

The court awarded for past damages the sum of 6 cents, and for damages to the fee the sum of $1,500. A similar award in the case of Sutro v. Railway Co., 137 N. Y. 592, 33 N. E. 334, was characterized by the court of appeals as a “singular result”; and I am unable to see how there is any basis for the conclusion that there will be injury to the property in the future, as a result of the maintenance and operation of an elevated road, if there has been no injury from the maintenance and operation of a road for the past eight years. The rule is now well settled that the easements of light, air, and access taken or impaired by the elevated railroad structures are of no value to the property owners separated from the land, and that the damages to the landowner are consequential merely. If the fact be as the learned trial judge has determined it, that there has b,een no diminution in the rental or useable value of the property as a result of the construction, maintenance, or operation of the Brooklyn Elevated Railroad during the eight years it has been in operation, that fact is strong evidence that the fee value of the property has not been diminished in the past, and there is no testimony in the case from which it can be inferred that there will be any material change in the future. The award of fee damages rests upon the testimony of a single witness, who gave his opinion that the property had depreciated in value from $50,000, in 1886, to $25,000, at the time of the trial, and that the annual rental value had fallen from $1,200. to $600. This witness, however, and the witness called by defendants, agreed that Sands street had, in the period since 1886, changed from a residential to a business street, and that the rental value of property in that street, which had been changed and altered for .business purposes, had not fallen. The plaintiff’s expert also testified on cross-examination that property on Sands street had held its own since 1886, and that plaintiff’s property, for residence purposes, never was worth as much as $40,000. It is impossible to harmonize the different opinions expressed by the plaintiff’s witness; and in view of. the fact that it was undisputed that there had been great depreciation of real-estate values in many parts of the city within the past few years, and that the court determined that the rental value of the plaintiff’s property had not been depreciated by the operation and maintenance of the Brooklyn Elevated Railroad, we are of the opinion that the evidence was wholly insufficient to sustain the award of fee damages. If the property had depreciated in value, there were many causes to which that depreciation could be attributed. The *335■court substantially found that it was not to be attributed to the elevated railroad, and there was no evidence that the future would produce a result different from that already existing.

The judgment must be reversed, and a new trial granted; costs to abide the event. All concur.