Hatch, J.:
The action is an attempt by abutting owners to enforce what they have from time to time been permitted to think were their legal rights in the public thoroughfare upon which their property fronted. Since the decision, however, in the case of Fries v. N. Y. & H. R. R. Co. (169 N. Y. 270), and the former decision of Lewis v. N. Y. & H. R. R. Co. (162 id. 202), it is quite difficult to understand just what the rule of law is which we are required to apply in the disposition of this case. I understand that the Court of Appeals in the first of these cases have denied the legal right of the plaintiff therein to recover damages for the maintenance of the structure which was therein the subject of complaint and the operation of the railroad thereon. As these plaintiffs are abutting owners upon the same street and are affected by the same structure it may be that their rights are concluded by the reasoning upon which the judgment proceeded in that case. But in the second case I understand that the court has authorized a recovery by an abutting owner for damages sustained arising from the same structure and its operation in the same street, and have in terms asserted that the abutting owner’s property rights of light, air and access were invaded thereby, for which injury his right to compensation was constitutionally guaranteed. It is needless for us to add that these decisions have bred somewhat of confusion.
The law governing this general subject, as I understand it, is found expressed in several decisions. In Fobes v. R. W. & O. R. R. Co. (121 N. Y. 505) it was decided that a duly incorporated railroad company, having the chartered power of the State to lay its tracks and operate and maintain its railroad when constructed through and upon the surface of a street the title to which was in the municipality, and having license from such local authority to lay its tracks upon the streets and operate its railroad thereon, takes no property of an abutting owner upon the street whose title only extends to the exterior line thereof. This doctrine has been applied to surface street railroads. But in all cases where the right of the railroad to use the street without making compensation to abutting owners has been exer[436]*436cised the courts have been careful to place limitations thereon which would in all cases practically protect the right of the public therein and give to an abutting owner suffering special damage his right of action to recover therefor. In De Grauw, v. Long Island Elec. R. Co. (43 App. Div. 502) it was said : “ But the law is, and the courts may be relied upon to enforce the law, that the right of use of the street by the public is first and primary ; the right of use by the street surface railroad is secondary and subordinate. * * * We have at all times been mindful of these conditions, and when upholding the rights of the railroad in a given case we have been careful to place a limitation thereon, and have uniformly asserted that, whatever be the character of operation by the railroad, and whatever use it sought to make of the street, such use is subject to the authority of the public therein, and the public authority may, whenever necessary for the preservation of the street for street purposes, regulate, and restrain the use thereof by the railroad.” This language received the sanction of the Court of Appeals, as that court affirmed the case on appeal upon the opinion of the court below (163 N. Y. 597). And prior to that time the Court of Appeals and the Supreme Court had in principle recognized and enforced the same rule. (Ingersoll v. Nassau Electric R. R. Co., 157 N. Y. 453; Roddy v. Brooklyn City & Newtown R. R. Co., 32 App. Div. 311.) It seems clear, therefore, that the law is settled that steam surface railroads and street surface railroads hold their chartered rights subject to the primary right of the public in the street and its use, and that an abutting owner who does not own the fee of the street suffering special damage by reason of an excessive and unreasonable use of such street has a, right of action to recover for the damage he sustains thereby. If, however, a railroad company with precisely similar authority, both State and local, erects an elevated structure in the street and operates its road thereon and such structure and its operation interfere with the easement of light, air and access of an abutting owner, a different and more stringent rule prevails-; such owner, even though he does not own the fee of the street, has the legal right to restrain the maintenance of the structure and the operation of the railroad thereon, or in the alternative may have a recovery of such damages as he has sustained as adjudged by the court. (Story v. N. Y. Elev. R. R. Co., 90 N. [437]*437Y. 123.) Throughout the immense volume of litigation which followed this decision the legal right announced therein has been sustained and irpheld. If the reasoning of the opinions upon which the judgments in the several cases were predicated have not at all times been consistent, yet they have never denied the right to equitable relief where damages have been sustained. This rule was applied in the case of a steam surface railroad, which was required by the State Engineer to carry the railroad over the Erie canal at a given height, where compliance therewith required the railroad to build a viaduct in the street for that purpose. Therein the Court of Appeals held that the doctrine of the Story ease applied and that abutting owners were entitled to recover damages for an invasion of their property rights in the easements affected thereby. (Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157.)
Four rules seem to be settled by these authorities, however conflicting they may seem to be. First. Surface railroads are not liable to abutting owners who do not own the fee of the streets in which they are operated and may not be proceeded against in any form unless the use be excessive and- unreasonable.
Second. If the railroad be first constructed and operated upon an elevated structure and the maintenance and operation invade the property rights of an abutting owner whereby he suffers damage, an action lies to restrain such use until in some form the property right be acquired and paid for.
Third. The last-mentioned rule obtains (Beining case) where the authority of the State is exercised through State officers acting in obedience to law, as in the case where the condition required was to cross the "Erie canal at a given height, compliance with which required the elevation of the tracks upon an embankment constructed in the street.
Fourth. But if the railroad be first constructed upon the surface of the street or in a cut depressed below the surface (Fries case), and by the command of the State such railroad be required to construct a viaduct in the street and operate its trains thereon, it is relieved from all liability to the abutting owners or the public, even though property rights be invaded on account of the structure or its method of use.
It is said in the Fries case that the corporation was bound to [438]*438comply with the mandate of the State or forfeit its life, and in yielding obedience to such mandate it was not at fault if it committed a trespass or invaded the property right of an individual, and as it was commanded to do the act by supreme authority the property right of the citizen must yield thereto.
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Hatch, J.:
The action is an attempt by abutting owners to enforce what they have from time to time been permitted to think were their legal rights in the public thoroughfare upon which their property fronted. Since the decision, however, in the case of Fries v. N. Y. & H. R. R. Co. (169 N. Y. 270), and the former decision of Lewis v. N. Y. & H. R. R. Co. (162 id. 202), it is quite difficult to understand just what the rule of law is which we are required to apply in the disposition of this case. I understand that the Court of Appeals in the first of these cases have denied the legal right of the plaintiff therein to recover damages for the maintenance of the structure which was therein the subject of complaint and the operation of the railroad thereon. As these plaintiffs are abutting owners upon the same street and are affected by the same structure it may be that their rights are concluded by the reasoning upon which the judgment proceeded in that case. But in the second case I understand that the court has authorized a recovery by an abutting owner for damages sustained arising from the same structure and its operation in the same street, and have in terms asserted that the abutting owner’s property rights of light, air and access were invaded thereby, for which injury his right to compensation was constitutionally guaranteed. It is needless for us to add that these decisions have bred somewhat of confusion.
The law governing this general subject, as I understand it, is found expressed in several decisions. In Fobes v. R. W. & O. R. R. Co. (121 N. Y. 505) it was decided that a duly incorporated railroad company, having the chartered power of the State to lay its tracks and operate and maintain its railroad when constructed through and upon the surface of a street the title to which was in the municipality, and having license from such local authority to lay its tracks upon the streets and operate its railroad thereon, takes no property of an abutting owner upon the street whose title only extends to the exterior line thereof. This doctrine has been applied to surface street railroads. But in all cases where the right of the railroad to use the street without making compensation to abutting owners has been exer[436]*436cised the courts have been careful to place limitations thereon which would in all cases practically protect the right of the public therein and give to an abutting owner suffering special damage his right of action to recover therefor. In De Grauw, v. Long Island Elec. R. Co. (43 App. Div. 502) it was said : “ But the law is, and the courts may be relied upon to enforce the law, that the right of use of the street by the public is first and primary ; the right of use by the street surface railroad is secondary and subordinate. * * * We have at all times been mindful of these conditions, and when upholding the rights of the railroad in a given case we have been careful to place a limitation thereon, and have uniformly asserted that, whatever be the character of operation by the railroad, and whatever use it sought to make of the street, such use is subject to the authority of the public therein, and the public authority may, whenever necessary for the preservation of the street for street purposes, regulate, and restrain the use thereof by the railroad.” This language received the sanction of the Court of Appeals, as that court affirmed the case on appeal upon the opinion of the court below (163 N. Y. 597). And prior to that time the Court of Appeals and the Supreme Court had in principle recognized and enforced the same rule. (Ingersoll v. Nassau Electric R. R. Co., 157 N. Y. 453; Roddy v. Brooklyn City & Newtown R. R. Co., 32 App. Div. 311.) It seems clear, therefore, that the law is settled that steam surface railroads and street surface railroads hold their chartered rights subject to the primary right of the public in the street and its use, and that an abutting owner who does not own the fee of the street suffering special damage by reason of an excessive and unreasonable use of such street has a, right of action to recover for the damage he sustains thereby. If, however, a railroad company with precisely similar authority, both State and local, erects an elevated structure in the street and operates its road thereon and such structure and its operation interfere with the easement of light, air and access of an abutting owner, a different and more stringent rule prevails-; such owner, even though he does not own the fee of the street, has the legal right to restrain the maintenance of the structure and the operation of the railroad thereon, or in the alternative may have a recovery of such damages as he has sustained as adjudged by the court. (Story v. N. Y. Elev. R. R. Co., 90 N. [437]*437Y. 123.) Throughout the immense volume of litigation which followed this decision the legal right announced therein has been sustained and irpheld. If the reasoning of the opinions upon which the judgments in the several cases were predicated have not at all times been consistent, yet they have never denied the right to equitable relief where damages have been sustained. This rule was applied in the case of a steam surface railroad, which was required by the State Engineer to carry the railroad over the Erie canal at a given height, where compliance therewith required the railroad to build a viaduct in the street for that purpose. Therein the Court of Appeals held that the doctrine of the Story ease applied and that abutting owners were entitled to recover damages for an invasion of their property rights in the easements affected thereby. (Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157.)
Four rules seem to be settled by these authorities, however conflicting they may seem to be. First. Surface railroads are not liable to abutting owners who do not own the fee of the streets in which they are operated and may not be proceeded against in any form unless the use be excessive and- unreasonable.
Second. If the railroad be first constructed and operated upon an elevated structure and the maintenance and operation invade the property rights of an abutting owner whereby he suffers damage, an action lies to restrain such use until in some form the property right be acquired and paid for.
Third. The last-mentioned rule obtains (Beining case) where the authority of the State is exercised through State officers acting in obedience to law, as in the case where the condition required was to cross the "Erie canal at a given height, compliance with which required the elevation of the tracks upon an embankment constructed in the street.
Fourth. But if the railroad be first constructed upon the surface of the street or in a cut depressed below the surface (Fries case), and by the command of the State such railroad be required to construct a viaduct in the street and operate its trains thereon, it is relieved from all liability to the abutting owners or the public, even though property rights be invaded on account of the structure or its method of use.
It is said in the Fries case that the corporation was bound to [438]*438comply with the mandate of the State or forfeit its life, and in yielding obedience to such mandate it was not at fault if it committed a trespass or invaded the property right of an individual, and as it was commanded to do the act by supreme authority the property right of the citizen must yield thereto. If this be the law, then the State can command these railroads to construct an elevated structure to be' built in this street which will take the whole from door to door of the abutting owners upon either side and the latter be left remediless so long as no land of the abutters is taken. It must follow that if a part may bo thus taken without compensation then the whole may be ; there can be no middle ground in such a case. We had supposed that when the State laid, the command upon the railroads, to do the specified act it did not thereby authorize the property right. of a citizen to be appropriated without compensation, but that as it had invested such companies with the power of eminent domain it thereby assumed that the railroad companies would obey its mandate and at the same time respect the rights of the owners of private property by making compensation in the manner provided by law for such property and rights as might be taken in complying with the command of the statute. Ordinary rules of construction would seem to indicate that such legislation should put the burden on the railroad companies and not on the private citizen; that the requirement was made subject to the legal duties of the corporations, and that the Legislature did not intend to grant to the corporations by such act a charter to confiscate the property of the abutting owners.
In the Reining- case the State authority required that the defendant’s road should be constructed in á particular manner, but it was not thought that this authorized an invasion of private property even though the railroad obeyed the command of the State in what it did. If such is to be the construction of the act under which this work was performed I am unable to see why it does not infringe the provisions of. the Constitution (Art. 1, § 6) which provide that private property shall not be taken for a public purpose without compensation.
In the Fries case it was said that as the constitutional point was not raised below it could not be considered in that court, and that in fact the respondent stood squarely upon the statute (Laws of [439]*4391892, chap. 339), as he pleaded it. as apart of his cause of action. In the present case there is no such plea and the point is raised in this court. Whether the respondents raised the question upon the trial does not, and would not, appear as judgment passed in their favor. They raise the point here in answer to the claim that the appellants are entitled to the protection of the statute. It is, therefore, properly presented. If' the judgment had been for the appellants at the trial it would have been essential for the plaintiffs to have presented such question in order that it might be available. Such was the case in Dodge v. Cornelius (168 N. Y. 242), as therein the defendant was defeated at the trial and sought to present the constitutional ■question for the first time in the Court of Appeals. It would seem, however, that the statute, the subject of construction" in the Fries ■case, was constitutional, as it does not in terms assume to authorize the taking of private property for a public purpose without compensation and, therefore, it can easily be construed as commanding that the act be done pursuant to law, and the organic law protects the property right of the individual in such a case. The present record presents an essentially different question from that which appeared in the Fries case. The damages in this case flow from the station houses and the operation of trains thereat, which the .-appellants have erected opposite the plaintiffs’ premises. There was no command in the statute which compelled the erection of the station houses, for by section 7 of chapter 339 of the Laws of 1892 the erection of the station houses was optional with the appellants. It is evident that special damage was suffered by the plaintiffs on account of this erection, as a large number of trains stopped thereat, and in stopping and starting, emitted increased volumes of smoke, ■steam, cinders and gases. The statute can only be invoked as a protection for those things which it commands shall be done, and if the railroads do other things not commanded, and thereby property rights are invaded, a right of action accrues, no matter what the construction of the statute be as to those things which the statute commands. Certainly the rule which condemns private property for a public use without compensation ought hot to receive a very liberal construction, nor should the rule be extended beyond the strict letter of the statute. No matter in which way we view these cases, it is evident that satisfactory disposition has not yet [440]*440been made of the questions which the cases in várious fonns present. It cannot be said that the Fries case has settled a hard and fast, rule, in View' Of the fact that the Lewis case and the Reining case=' are yet regarded -as law, and the court declined expressly to overrule them. Until the rule of law to be applied in the disposition of these cases shall'be decisively determined upon all of the questions-, involved in this class of actions, I am not willing by my vote to-announce a rule, the result of which I am convinced is to authorize the taking of private - property for a public use without compensation being made therefor. I concur in the opinion written by Mr. Justice O’Breen in Pape v. New York & Harlem R. R. Co. (74 App. Div. 175),and with the reasons which he assigns in support of the right of the plaintiffs- therein to recover.
It follows that the judgment should be affirmed, with costs.
, O’Bbien and Lngbaham, JJ., concurred; Yan Brunt, P. J.,, dissented.