#### Ella H. Leffmann, Plaintiff, *v.*The Long Island Railway Company, Defendant.

(Supreme Court, Kings Special Term for Trials,

May, 1905.)

Railroad — Prescriptive right to use surface of street — Elevated structure erected by legislative direction — Direct injury to abutting property is *“*taking ” within meaning of Constitution — Injunction — Payment of fee damage.

A prescriptive right to use the surface of a street for a steam railroad being measured by the user does not justify the use ot an elevated railroad structure therein.

A direct injury to property is a “taking” of property within the constitutional prohibition against taking private property for public use without just compensation.

Where an elevated railroad structure is erected by the city of ¡New York and a steam railroad company at their joint expense by legislative direction (L. 1897, eh. 499; L. 1901, eh. 297; L. 1902, ch. 452) to be used by the railroad company in lieu of its prescriptive right to use the surface of a street, an abutting owner is entitled to an injunction restraining the railroad company from maintaining and using such elevated structure in front of her premises, unless paid the amount found by the court to be her fee damage for injuries to her easements of light, air and access, although the statute, under which the erection was directed to be made, did not provide that compensation should be paid for any private property taken or directly injured by such elevated structure.

Suit to restrain the defendant from maintaining and using an elevated railroad structure 30 feet wide in the middle of Atlantic avenue^ Brooklyn, in front of the plaintiff’s land and building at the southeast corner of Atlantic and Balph avenues, being about 45 feet on Balph avenue and 232 feet on Atlantic avenue.

*170The structure is first of solid masonry, 30' feet wide and running from 4 feet to 10 feet 6 inches in height from the east end of plaintiff’s property west to a point 80 feet east of Ralph avenue; and from thence west to Ralph avenue and beyond it is a steel structure of columns and longitudinal and transverse girders, the height along the plaintiff’s property running from 10 feet 6 inches at the said end of the stone structure to 19 feet at the east line of Ralph avenue.

Many steam passenger and freight trains are run over the said structure day and night.

Alfred E. Sander and Charles S. Taber for plaintiff.

Joseph F. Keany and James W. Treadwell for defendant.

Gaynor, J.:

The defendant has a prescriptive right to use a strip 30 feet wide through the center of Atlantic avenue on the surface for a double track steam railroad, acquired by long user. A prescriptive right is measured by the user, and! the user here was on the surface only. It therefore does not justify a structure above the surface.

The structure complained of, however, was erected by the defendant and the city of ¡New York at joint expense by legislative direction (ch. 499, Laws of 1897; ch. 297, Laws of 1901; ch. 452, Laws of 1902), to be used by the defendant in lieu of the surface for its railroad; and from this it is argued that any direct injury done thereby to the plaintiff’s abutting property is *damnum absque injuria.*

I have recently considered this question in *Sadlier*v. *City of New York*(40 Misc. R. 78), and do not need to add anything here. The notion that your property could be taken or directly injured by express legislative direction, any more than by the executive or judicial branches of government, without your being entitled to' obtain redress therefor in court by way of damages or injunction or both, which had grown to such large proportions in this state, has finally been dispelled by the decision of the Supreme Oourt of the United States in the case of *Muhlker*v. *N. Y. & H. R. Co.*197 U. S. 544.

*171The common law allows no damages for what we call *u*consequential ” injuries, and therefore as no statute is necessary to exempt from such damages, it is idle and meaningless to talk of a statute as effecting, or being necessary to effect, that result. And as a “ direct ” injury to property is a “ taking *”*of property within the constitutional meaning' of that word, it is just as idle to talk of a statute exempting from damages for such an injury. No statute can do it. Both the Federal and State constitutional prohibitions against taking private property for public use without just compensation stand in the way.

Though the statutes in question direct the work to be done, their meaning was and is that the defendant should make compensation for any private property taken or directly injured in doing it, to he fixed by agreement or else by condemnation proceedings. They are not unconstitutional for not providing that compensation he paid1. The defendant and the city of New York already had the power of acquiring private property by condemnation proceedings, and it was not necessary to confer it on them again.

An injunction must therefore issue1; hut the defendant may avoid it by paying the plaintiff the sum of $1,200, which I find to be her fee damage for injuries to her easements of light, air and access.

Judgment accordingly.