§ 1191. Right to recover for noise, etc.-From what has already been said it is clear that the limits of the recovery are not yet well defined by these cases.. If the measure of damages is the depreciation of the property by the railroad, other elements enter into it than the mere taking of the easements of light, air, and access by the structure, or even by the structure and its incidents. The noise made by passing trains does not affect these easements, nor is the effect upon the privacy of houses by the passage of a constant stream of cars directly opposite to and within a few feet of the windows connected with them. Yet how can we exclude the effect of such causes as these from the.depreciation? In Drucker v. Manhattan Ry. Co.() it was held that it was proper for the jury to take into consideration as entering into the damages the effect of smoke, gases, ashes, and cinders, as impairing the easement of air; of the structure itself and the passage of the cars as affecting the easement of light; the drippings of oil and water and possibly the frequent columns as affecting the easement of access. The question as to the effect of the noise and vibration of buildings was not presented, there being no exception in the record to raise them, and it was intimated that there might be a difference of opinion among the judges on these points, probably because they could not be brought under the head of infringements of the easement of light, air, or access, and could hardly be held to impair the use of the street as such. But in Ode v. Manhattan El. R. R. Co.() noise was allowed for on the ground that it is "the aggregation of the discomforts suffered by the abutting owner for which compensation may be granted." It may be that noise, privacy, etc., should only be con

(*) 106 N. Y. 157.

() 31 St. Rep. 106 (S. C. G. T., 1890).

sidered in actions for past damages; and in estimating damages to the fee should be disregarded, on the ground that in the former case the defendants are mere wrongdoers; in the latter they are purchasers of the three easements, as in condemnation proceedings. In this view, in the latter case the injury to the easements would correspond to the value of land taken in the ordinary case, while the remaining injury would be the damnum absque injuria. This is somewhat difficult of application, as the value of the different elements of damage cannot be discriminated in practice with any accuracy. What, for instance, is the depreciation caused by noise? How much, more or less, is it according as we include or exclude noise? (*) But the difficulty of making an accurate estimate is no argument against a correct rule.

§ 1192. Exemplary damages not allowed.-In a subsequent action for damages, (b) the court below charged that "the failure of defendant to institute condemnation proceedings before taking possession of plaintiff's property, and before the trial of this action, entitled the jury to give exemplary damages against them should the jury so desire." The action was commenced in 1884. But it was held that, in view of the history of the litigation on the question of the right to maintain such actions, it was impossible to ascribe a wrong motive to the entry of defendant or its predecessor upon the street in question, and that the failure to institute condemnation proceedings within the two years following the decision of the Story case was not of itself such a wanton, malicious, or oppressive act as would justify an award of exemplary

(*) In Kane v. Metropolitan El. Ry. Co., 26 N. E. R. 278, the Court of Appeals has, since the above was written, allowed damages for noise, in an action at law for past damages.

() Powers v. Manhattan Ry. Co., 120 N. Y. 178.

damages, and that the charge was, therefore, erroneous. Brown, J., said on this point:

"The purpose of awarding such damages is to punish a wrong-doer, and unless a wrong motive exists there is no basis. for such award.

"The elevated road through Division Street, in front of plaintiff's property, was constructed in 1879, and trains commenced to run March 1, 1880. It was leased to the defendant by the Metropolitan Railway Co. May 1, 1879. The road was constructed under legislative authority, and the statutes authorizing the creation of elevated railway companies were declared constitutional.(*)

"Whether or not an owner of property abutting on the streets in which the elevated roads were constructed was entitled to damages caused by the construction and operation of the road was a question upon which there was a wide difference of opinion among lawyers and judges, and was not settled until the decision of this court in the case of Story v. N. Y. El. R.R. Co., in October, 1882.()

"It had been decided adversely to the property-owners by the `lower courts, and the Story case was twice argued in this court, and from the decision finally made three members of the court dissented.

"The facts of the Story case were not broad enough to necessarily cover the case of an abutting owner whose only property in the street was an easement for light, air, and access, and hence the right of such owners to maintain actions for damages was not finally set at rest until the decision in Lahr v. Metropolitan El. Ry. Co. in January, 1887.(c) This action was commenced in August, 1884.

"In view of these facts, thus briefly referred to, and which now form one of the most important and interesting chapters in the history of litigation in this State, it is impossible to find a wrong motive in the entry of the defendant or its predecessor, the Metropolitan Railway Company, upon the street in front of plaintiff's property. It had legislative and judicial authority to support its acts. And assuming that plaintiff owned the fee in the bed of the street in front of his property, we do not think (*) In re Gilbert El. Ry. Co., 70 N. Y. 361; In re N. Y. El. R.R. Co., Id. 327.

() 90 N. Y. 122.

() 104 N. Y. 268; 4 N. Y. State Rep. 340.

that a failure to institute condemnation proceedings within the two years following the decision of the Story case, along the whole line of its railway through the city, could be held to be of itself such a wanton and oppressive act as to justify an award of punitive damages." (")

§ 1193. Scope of the decisions finally announced.—In Fobes v. Rome, Watertown & Ogdensburgh R.R. Co.(*) the decisions were once more reviewed by the Court of Appeals. The action was brought to recover damages for the operation of an ordinary steam railroad in a city street, the abutter having no estate in the soil. It was held that there could be no recovery. Peckham, J., said in the course of his opinion that the claim put forward that the Story case and the cases following it so far altered the law as to permit a recovery in all cases where the easement of the adjoining lot-owner is injuriously affected by any deprivation or diminution of light, air, or access, or that in all such cases there was a "taking" of property, was unfounded; that the Story case merely embodied the application of well-established principles of law to a new combination of facts, such facts amounting "to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant"; that such facts amounted to a taking of property. This obstruction, the court goes on to say, was due to the structure. "But this taking, it cannot be too frequently or strongly asserted, resulted from the absolute, exclusive, and permanent character of the appropriation of the street by the structure of the defendant. There is no hint in either of the prevailing opinions in the Story case of any intention to interfere with or overrule the prior adjudications in this State upon the subject now under discussion, as to the steam surface railroads." After showing (*) Powers v. Manhattan Ry. Co., 120 N. Y. 178, 182. () 121 N. Y. 505.

conclusively that the decision in the Story case is based wholly upon the effect of the structure, the court refers to the Lahr case, and says that "it is difficult to see that any enlarged rule as to awarding damages in that class of cases has been definitely announced. . . . . The particular damage which the defendant was liable for, growing out of the existence of the defendant's structure, was held by three of the five members of the court then voting to embrace such an injury or inconvenience as was incidental to the use thereof." The Drucker case, the court says, decided that it was a fair result from holding the structure an illegal one that the plaintiff should recover for the impairment of his easement of light caused by the road itself, and passage of trains, and the interference with the convenience of access caused by drippings of oil and water. The court distinguished Hussner v. Brooklyn City R.R. Co.,(1) because in that case the use of steam on the road was illegal. This case seems to confine the damages to the structure, and whatever is fairly incidental to it, including the running of trains. Noise is not spoken of, but would seem by the principles laid down to be excluded.

§ 1194. Ownership in the street.-In Stewart v. Metropolitan El. R.R. Co.() it was held by the general term of the Superior Court that the abutter on a public street was presumed, in absence of evidence to the contrary, to own to the middle of the street, and that the erection of defendant's structure was an encroachment upon the freehold and a trespass, and that a motion to direct a verdict for nominal damages only was improper. Other cases in the courts below treated the fact that plaintiffs did not own to the middle of the street as immaterial.() And

(114 N. Y. 433.

56 Super. Ct. 377.

() Thompson

v. Manhattan R. Co., 29 St. R. 720 (C. P. G. T. 1890); VOL. III.-31