The sun. [volume] (New York [N.Y.]) 1833-1916, 1892-01-24
IN FAVOR OFTHE ELEVATED.
IHkA COURT OF APPEALS REIRRsES
FORTER JUDGMEN1&

He Damages May Ss Consstea IN Cases
Where the Property Has Been Increased
N vaius ~ the Building or che Rood.
ALBANY. Jan 2s.--Ths Court Of Appeals. BY
unanimous opinion Of the Judges Of the First
Division. except one not sitting In the case.
has decided that no property holder can re-
cover damages against the elevated railroads
OF New York city II his property has been in
creased In value BY tho building Of the road.
aud the holding Of most Of the Judges In the
courts below. that the benefits to property
arising from the construction Of The elevated
railroads could not be considered In fixing the
damages. has been reversed.
The decision was rendered In tho cases Of
Nathan Bohn and others and Peter Somers and
others aet. the Metropolitan Elevated hallway
Company. both cnses involving the same oues-
tione The decisions OF tho lower court In
favor Of plaintiffs are reversed and new trials
granted. In his opinion. Judge Peckham says:
not the light the air that 10 valuable separated
from the land adjoining With regard to the subject
under discussion. there IL and be no value in
given quantity Of air or space Light in the public
street. except ~ may be used In connection with and
~ appurtenant to the abuttinE land when person
interiors; With such light air access and takes II
nothing which 10 alone and intrinsicay vslus
bie but only A. It's loss Affects the adjoining land This
loss. while purely consequential 10 nevertheless La
Ss.Ass P0kson PhUPoshab NAV Wv pESPeAS
u bound TO DISCHARGE
The rule which the counsel for the planu contends
for 10 pure abstraction liable in many instances
10 cause injustice In i application. because would
dy In the face Of the actual facta Easements he says
are worth exactly the amount which they add to the
value OF the premises to which they appurtenant
and no reference to the particular agency by which
the taking or interference with such easements has
been accomplished should be permitted. even for the
purpose Of determining the damage that has been
thereby cAuaNd The Abstraction 4 curtAilmont
OF destruction OF the easement must Be ndugsd in and
NO eject other than such curtaiimsnt destruction
upon the property left to be regarded Carrying out
this principle. IL might appear that lot Second
avenue with Its easements Of light. air. and
unimpAired- would DO worth 5000 70 deprive II In
some underlined way other than BY defendants. of
portion Of such easements equal 70 the amount taken
& Is &. FROM Ses ss' Of Is IL. Of s
.Ss . ss1a sas mGs %
ss'y "a, ~ n!ss.s: Unnamed s,sss
ia5osS might Is ms.sy dsfsndsns; win proof Of Il:
on the eontrry. BY reason Of erection road
@ a IL
to h :af had n
nothng but nominal. They must b Joined to the land
osur,s rse..nips ,: saop.sa hy
TIA Sss y:iss tssss s &
w to N % value 81
"a :ie.ti '?s s.: '.sss r.;
sHs
contrary to harpen TO permit recovery OF this con.
ss' sa
The value the easements taken. We have seen VA.
merely nomr ana the sole question Tnca
Whatever which has caused By tn: .sk,ns
sove.y
% a" s. S .
%,..sd inquiry %ss,n.! .hs land would have ben
When only prevented such injury. Su, enhanced is
f.s .n xhn
Has actual market decreased by the tax.
snee y.ius aud VIA. YOU'D
Pfssssy; ~ saou%s y =. as%.ss saeS i. az:
5s lie
Io rs !. an & S she Ia.
!nred to the extent Of arthns The absence Of injury
grown in vaue with the rest orth city It Is the fact
not the cause. which In material Where II appears
that the Property left has actually advanced in value
ants in taking these easements it would grown
still more in value the fact plain that It has
damaged
said the lot owner is himself entitled to the bene
hts accruirg to him from the OF property
caused BY general growth Of the city that vicinity
ana that the causes OF snch growth are too indefinite
g take advantage OF It upon tho question Of damages
or course tho lot owner entitled to the BENEFITS
arising from these sonrces Ipopose to take
which shall rob him OF them None other ought or
in fact havo them 1t question Of permit.
ting the lot owner to have these benefits How is no
he has sustained damage from the conduct Of the
appear that he would have sustained damage but
the fact that the general growth of tho that
direction prevented 1t and Ia value.
What lies tho fact that this growth was
marked tho fact that there has been damage tho
material fact and not the reasons which m truth pre-
vented the injury from occurrng II II did occur
then clearly the lot owner has suffered nothing He
receives all tho benefits aching the general growth
Of the city which causes the enhancement in value OF
his lots but he 10 not permitted from