The plaintiff's properties in suit were, at the time of the trial, Nos. 261, 1028, 1240, 1242, 1244, 1246, 1248 and 1255 Third avenue. The judgment was in the form usual in this class of actions. It decreed an injunction, and as incidental relief awarded the plaintiff $8,200 as past damages to rental value, and provided for the avoidance of the injunction on payment of $9,800, which was found to be the damage to the fee value, over and above all benefits, by reason of the construction, maintenance and operation of the elevated road in front of the plaintiff's premises. The questions presented, and the facts relating thereto,. are stated in the opinion. Arthur O. Townsend for appellants. The question of law here involved is that the findings of the trial court are in irreconcilable conflict with each other, and those most favorable to appellants being taken as true, support the exceptions to the judgment and demand its reversal. (Bonnell v. Griswold, 89 N. Y. 122; Green v. Roworth, 113 N. Y. 462; Schwinger v. Raymond, 83 N. Y. 192; Conselyea v. Blanchard, 103 N. Y. 222; Redfield v. Redfield, 110 N. Y. 671; Kelly v. Leggett, 122 N. Y. 633.) The court below erred in making findings of fact essential to its decision without any foundation whatever in the evidence. The most cursory examination of the judgment roll is enough to show that this case is not one where any decline in rents or values has occurred, at least as to seven of the eight properties. (Sutro v. M. R. Co., 137 N. Y. 592; Hadden v. M. El. R. Co., 75 Hun, 63; Krumwiede v. M. R. Co., 9 Misc. Rep. 552.) The damages were, presumably, awarded on the theory that without the railway the actual increases would have been still greater. This was erroneous. (Code Civ. Pro. § 1023; Steubing v. N. Y. E. R. R. Co., 138 N. Y. 658; 137 N. Y. 302.) Benefits are a result. Damages are a result. Neither is a factor, and they cannot co-exist and be weighed against each other in any case. (Bohm v. M. E. R. Co., 129 N. Y. 576.) N. Y. Rep.] Opinion of the Court, per FINCH, J. E. W. Tyler for respondent. There is no "irreconcilable conflict" between the findings of the court as is claimed,by the appellants, and the judgment for the plaintiff is sustained by the facts found and proved. (Redfield v. Redfield, 110 N. Y. 671; Green v. Roworth, 113 N. Y. 467; Storck v. M. E. R. Co., 131 N. Y. 516; Williams v. B. E. R. R. Co., 126 N. Y. 100.) The assumption that if this property is worth more than it was before the elevated railroad was constructed, it conclusively follows that the railroad is not damaging the property and plaintiffs are not, therefore, entitled to a judg ment, is erroneous. (Hunter v. M. R. Co., 141 N. Y. 281; Bischoff v. N. Y. E. R. R. Co., 138 N. Y. 257.) The real question before the court in this case is not what is the value of the pure ground of the property, for, with the exception of the property at the corner of Twenty-first street, all these are finely improved pieces of real estate, but the question to determine is whether that piece of real estate would sell for more with the elevated railroad removed from it, not what the value of its lot as a vacant lot would be. (Becker v. M. E. R. Co., 131 N. Y. 512; Pappenheim v. M. E. R. Co., 128 N. Y. 449.) FINCH, J. It is impossible to decide this appeal correctly without a full and definite appreciation of the difference between the case of Bohm (129 N. Y. 576) and that of Becker (131 N. Y. 509). Both belonged to the class of actions in which the abutting property was shown to have seriously increased in value since the construction of the elevated road, so that, presumably and apparently, benefit instead of damage had resulted; and in each it was, therefore, necessary to show as ground of recovery two things; first, that when the road was built the locality was increasing in value from the tendency toward it of incoming population and normal city growth, and, second, that in the continuance of that progressive increase of value the plaintiff's property would have shared if the railroad had not been built, but was prevented from so sharing to its due extent by the presence of the road Opinion of the Court, per FINCH, J. [Vol. 147. operating more or less as a barrier to a normal advance. In the earlier case we held that there was no evidence of either essential fact, and reversed an award of damages; in the later case we decided that there was some evidence of the necessary facts and so a reversal was not possible, however just such a reversal might have been. Since the evidence in the two cases was very much alike the real difference in its effect was necessarily due to the wide difference of situation and surroundings existing when the new structure was built, and some consideration of that difference and of its results may prudently precede a reference to the facts now before us. Where an elevated street railroad enters a vacant and uninhabited locality, which normal growth has not effectively reached, which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expectation, and thereupon and thereby population and growth, tending elsewhere, are diverted to the new line of rapid transit, and build up the vacant locality, creating a demand for lots and a steady and persistent increase of values both directly on the line and in the side streets near by, the only reasonable and sensible inference is that the increased values are the sole and substantial product of the newly opened line which has brought prosperity to a neglected locality. So far as normal growth or incoming population has had anything to do with the increase of value they are themselves as operating causes due to the new mode of access, and in no respect separate from or independent of it. In and of themselves they would have done the locality no good; would have spent their force elsewhere; would have built up homes even in other states whence steam would give rapid and easy passage, and left the locality to its normal solitude. Of course, in such a case, it is little short of an absurdity to say that the coming of the road prevented the abutter from having his share of the normal city growth, since it is the coming of the road that enables him to participate in that growth at all; that brings it to his vacant and unmarketable lots; that sets it in operation as a cause of X. Y. Rep.] Opinion of the Court, per FINCH, J. increasing values. It is the obvious truth of such a situation that the removal of the road to some other locality would at once diminish the value of the abutting property by taking away the adequate cause of its advancement, and diverting the growth which had begun to the new line adopted. It is further true of such a case that no ingenuity and no proof can separate what is called the normal city growth as a cause of increasing value from the chief and principal cause, which is the rapid transit system. The two are not only interwoven. and inextricably mingled, but the former has no existence in the supposed locality separate from and independent of the latter. It follows that in the supposed situation neither proposition essential to a recovery is or can be proved, for it is not true that the local values were seriously increasing when the road was built, nor that the increase when it came was due to any cause independent of the stimulating effect of the road. Such was the Bohm case, and we were justified in refusing an award of damages, in disregarding the guess of experts, and in denying any force to a greater increase in the side streets. But the situation changes materially when the elevated road enters an area already substantially built up and improved. In such a locality normal growth has come, and built the blocks up solidly, or nearly so, and caused an increment of value due to itself alone, and with which the rapid transit line had nothing whatever to do. Such normal growth it is evident had its own independent existence and operation because it had already worked and was continuing to work its result of an increase of values when the railroad did not exist. The average rate of that observed increase in such locality can be approximately ascertained, and if the rate continued after the construction of the elevated road in the side streets, but a less rate of increase is found on the avenue occupied by the cars, and facts are shown explaining such loss by evil effects of the new line, it is possible to infer that the avenue property has not shared as it should in the normal and independent increase of value to the extent to which it was entitled. That I understand to be the substantial basis of the Becker case. The dis Opinion of the Court, per FINCH, J. [Vol. 147. tinction I have sketched was plainly drawn in the opinion. It was there said, "that although certain of the side streets were not all built upon when the road was erected and put in operation, yet it does appear that the locality where this property is situated was fairly built up before the road was operated, although to some extent the adjacent side streets have been more compactly built upon since that time. There has been no such change from absolute vacancy within large and extensive portions of the city limits as has occurred in the vicinity of Harlem, where it has appeared in evidence the side streets and the avenues have been practically brought into existence and peopled since the building and operation of the elevated roads. It was in regard to such a locality that we said in the Bohm case there was no proof whatever of damages." I have thus repeated the language of Judge PECKHAM's opinion, pointing out the difference between the Becker case and that of Bohm, to show that I have strictly followed it and merely further explained and discussed it, and that no new doctrine is in any manner asserted. The distinction is not narrow or argumentative, but radical and real. It will enable the courts below to put an end to any such injustice as awarding damages where benefits have instead accrued, and upon speculative theories destitute of actual foundation. If the proof shows that before the coming of the elevated road in the particular locality that locality was substantially or mainly vacant and not built up. and that after the road came the building and improvement swiftly followed, accompanied by steady and serious increases of value, it will be the duty of judge or jury to award no damages and dismiss the complaint, even though experts may guess, or side streets appreciate more rapidly. But if the proof shows that the elevated road has occupied a locality already substantially built up, in which normal city growth is operating and seriously increasing values, but as a consequence of the road the natural advance has halted or palpably lessened, while in the adjacent side streets it continues, there is possible an inference of fact that the abutter has been |