Per Curiam.
Judgment appealed from affirmed with costs on the opinion of the court at special term.
Opinion at Special Term.
Ingraham, J.
The complaint in this action alleges in substance that plaintiff is the owner and possessor of certain property in the city of New York on the southeast corner of Greenwich and Sector streets, and of portions of Greenwich and Sector streets, immediately in front of and adjoining the same, to the center of said streets respectively; that the defendants the New York Elevated Eailroad Company are the owners of a railroad running through said Greenwich street past and in front of said premises owned by plaintiff, and that said railroad is now operated by the defendants the Manhattan Elevated Eailway Company as the lessees and agents of the New York [12]*12Elevated Eailroad Company; that in Eector street the defendants have constructed a depot from the said railroad in Greenwich street, and extending through Eector street beyond the rear line of the plaintiff’s property ; that the said railroad and other structures erected by the defendants occupies and greatly obstructs the streets and passage-way to and from plaintiff’s property and occupies and uses plaintiff’s property in the said streets without the consent of the plaintiff or without having paid any compensation therefor, and prays that "defendants may be enjoined from maintaining, continuing or operating said railroad and structures now existing in said streets in front of plaintiff’s said property ; that they be compelled to take down and remove the same, and plaintiff have judgment for the damages sustained by virtue of the continuance of such structure and railroad.
The action, therefore, is one brought on the equity side of the court to restrain the defendants from the unauthorized use of the plaintiff’s property, and to recover such damages as plaintiff has sustained by reason of such unauthorized use.
The learned counsel for the defendants insists that as at the time such damages were sustained and the road was built, plaintiff was not the owner of the property, and defendants did not build the road, plaintiff cannot recover, but it seems to me that this position mistakes the theory on which the action is brought. It is not that the defendants are hable to plaintiff for building the road, but that they are hable for the use by them of plaintiff’s property.
Plaintiff claims that he has certain property in the streets which defendants use, and use without plaintiff’s consent, and without paying him compensation therefor ; and plaintiff asks the court to enjoin the further use of the property, and the damages asked are only such as plaintiff has sustained by the unauthorized use of such property by defendants since plaintiff became its owner. The building of the road is not complained of, the use of the road before plaintiff purchased' is not complained of, but the [13]*13occupation and use of plaintiff’s property in the future, is what the plaintiff asks the court to restrain, and for the use of such property, since he purchased it, plaintiff asks compensation.
That such an action can be maintained is well settled in this state (Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Henderson v. N. Y. Central R. R. Co., 78 Ib. 423; Story v. N. Y. Elevated R. R. Co., 90 Ib. 122).
The court of appeals in the Story case, has decided that plaintiff in that case had an easement in the streets in front of his premises, and that he was entitled to an injunction restraining the use by the railroad company of such property. It can make no difference at what time he became the owner of the property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendants appropriated it, or the day before the commencement of the action.
The principal question to be determined is, what property, if any, plaintiff has in Greenwich and Rector streets, in front of and adjoining his lot, that has been appropriated by the railroad company.
The lot in question was included in a lage tract of land which was granted in the year 1705 to “The Rector and Inhabitants of the City of New York in Communion of the Chinch of England as by law established,” a corporation created by Royal Charters. The name of such corporation was by law changed to “The Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York.” The corporation caused the property to be surveyed, and laid out into lots by Francis Maerschalk, about the year 1761. On that map appears a street, without name, running from Broadway to Lumber (now Church) street, twenty feet wide, which corresponds with a portion of the present Rector street, and .a street called First street, forty feet wide, which corresponds with the easterly portion of Greenwich street. By a conveyance dated April 9, 1761, the church corporation remised, released and quit-[14]*14claimed to the mayor, aldermen and commonalty of the city of Hew York, the said streets as they are particularly laid out, described and named in said map : “To have and to hold all and singular the said several and respective streets unto the said mayor, etc., and their successors, to be, remain and continue forever hereafter for the free and common passage of, and public streets and ways for the inhabitants of the said city of Hew York, and all others passing and returning through or by the same, in like manner in the other public streets of the said city now are or lawfully ought to be ” and this conveyance was accepted by the city of Hew York. It appears that subsequently Rector street was extended to - the river, and First street was widened and called Greenwich street. The exact date of such extensions does not appear, but on a map dated 1815 both streets appear substantially as they now exist. The fee of Greenwich street in front of plaintiff’s property passed to the city of Hew York by the deed from the church corporation dated 1161, but by the conveyance, the property conveyed was to be held by the city as a public street forever; the city accepted the conveyance subject to this condition, and this, I think, gave the owner of the adjoining property the right and privilege of having the street kept open forever as such, and the court of appeals in the case of Story v. The New York Elevated Railroad Co. (90 N. Y. 145), has decided that such a right was “an incorporeal hereditament. That it became at once, appurtenant to the lot and formed an integral part of the estate in it,” and constituted a perpetual incumbrance upon the land burdened with it. The lot became the dominant, and the open way or street the servient tenement.
The extent of this easement in Greenwich street has, I think, also been settled by the court of appeals in the Story case (90 N. Y. 122). Judge Danforth, at page 146, says : “ Generally it may be said it (the easement) is to have the streets kept open, so that from it access may be had to the lot, and light and air furnished across the open way. . . . That above the surface there can be no lawful [15]*15obstruction to the access of light and air to the detriment of the abutting owner.”
In regard to Rector street, it does not appear that the fee of the'street was ever acquired by the city; but I think that from the evidence it may be assumed that prior to the year 1815, the church opened the street from Broadway to the river, and had dedicated it for a public street.
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Per Curiam.
Judgment appealed from affirmed with costs on the opinion of the court at special term.
Opinion at Special Term.
Ingraham, J.
The complaint in this action alleges in substance that plaintiff is the owner and possessor of certain property in the city of New York on the southeast corner of Greenwich and Sector streets, and of portions of Greenwich and Sector streets, immediately in front of and adjoining the same, to the center of said streets respectively; that the defendants the New York Elevated Eailroad Company are the owners of a railroad running through said Greenwich street past and in front of said premises owned by plaintiff, and that said railroad is now operated by the defendants the Manhattan Elevated Eailway Company as the lessees and agents of the New York [12]*12Elevated Eailroad Company; that in Eector street the defendants have constructed a depot from the said railroad in Greenwich street, and extending through Eector street beyond the rear line of the plaintiff’s property ; that the said railroad and other structures erected by the defendants occupies and greatly obstructs the streets and passage-way to and from plaintiff’s property and occupies and uses plaintiff’s property in the said streets without the consent of the plaintiff or without having paid any compensation therefor, and prays that "defendants may be enjoined from maintaining, continuing or operating said railroad and structures now existing in said streets in front of plaintiff’s said property ; that they be compelled to take down and remove the same, and plaintiff have judgment for the damages sustained by virtue of the continuance of such structure and railroad.
The action, therefore, is one brought on the equity side of the court to restrain the defendants from the unauthorized use of the plaintiff’s property, and to recover such damages as plaintiff has sustained by reason of such unauthorized use.
The learned counsel for the defendants insists that as at the time such damages were sustained and the road was built, plaintiff was not the owner of the property, and defendants did not build the road, plaintiff cannot recover, but it seems to me that this position mistakes the theory on which the action is brought. It is not that the defendants are hable to plaintiff for building the road, but that they are hable for the use by them of plaintiff’s property.
Plaintiff claims that he has certain property in the streets which defendants use, and use without plaintiff’s consent, and without paying him compensation therefor ; and plaintiff asks the court to enjoin the further use of the property, and the damages asked are only such as plaintiff has sustained by the unauthorized use of such property by defendants since plaintiff became its owner. The building of the road is not complained of, the use of the road before plaintiff purchased' is not complained of, but the [13]*13occupation and use of plaintiff’s property in the future, is what the plaintiff asks the court to restrain, and for the use of such property, since he purchased it, plaintiff asks compensation.
That such an action can be maintained is well settled in this state (Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Henderson v. N. Y. Central R. R. Co., 78 Ib. 423; Story v. N. Y. Elevated R. R. Co., 90 Ib. 122).
The court of appeals in the Story case, has decided that plaintiff in that case had an easement in the streets in front of his premises, and that he was entitled to an injunction restraining the use by the railroad company of such property. It can make no difference at what time he became the owner of the property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendants appropriated it, or the day before the commencement of the action.
The principal question to be determined is, what property, if any, plaintiff has in Greenwich and Rector streets, in front of and adjoining his lot, that has been appropriated by the railroad company.
The lot in question was included in a lage tract of land which was granted in the year 1705 to “The Rector and Inhabitants of the City of New York in Communion of the Chinch of England as by law established,” a corporation created by Royal Charters. The name of such corporation was by law changed to “The Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York.” The corporation caused the property to be surveyed, and laid out into lots by Francis Maerschalk, about the year 1761. On that map appears a street, without name, running from Broadway to Lumber (now Church) street, twenty feet wide, which corresponds with a portion of the present Rector street, and .a street called First street, forty feet wide, which corresponds with the easterly portion of Greenwich street. By a conveyance dated April 9, 1761, the church corporation remised, released and quit-[14]*14claimed to the mayor, aldermen and commonalty of the city of Hew York, the said streets as they are particularly laid out, described and named in said map : “To have and to hold all and singular the said several and respective streets unto the said mayor, etc., and their successors, to be, remain and continue forever hereafter for the free and common passage of, and public streets and ways for the inhabitants of the said city of Hew York, and all others passing and returning through or by the same, in like manner in the other public streets of the said city now are or lawfully ought to be ” and this conveyance was accepted by the city of Hew York. It appears that subsequently Rector street was extended to - the river, and First street was widened and called Greenwich street. The exact date of such extensions does not appear, but on a map dated 1815 both streets appear substantially as they now exist. The fee of Greenwich street in front of plaintiff’s property passed to the city of Hew York by the deed from the church corporation dated 1161, but by the conveyance, the property conveyed was to be held by the city as a public street forever; the city accepted the conveyance subject to this condition, and this, I think, gave the owner of the adjoining property the right and privilege of having the street kept open forever as such, and the court of appeals in the case of Story v. The New York Elevated Railroad Co. (90 N. Y. 145), has decided that such a right was “an incorporeal hereditament. That it became at once, appurtenant to the lot and formed an integral part of the estate in it,” and constituted a perpetual incumbrance upon the land burdened with it. The lot became the dominant, and the open way or street the servient tenement.
The extent of this easement in Greenwich street has, I think, also been settled by the court of appeals in the Story case (90 N. Y. 122). Judge Danforth, at page 146, says : “ Generally it may be said it (the easement) is to have the streets kept open, so that from it access may be had to the lot, and light and air furnished across the open way. . . . That above the surface there can be no lawful [15]*15obstruction to the access of light and air to the detriment of the abutting owner.”
In regard to Rector street, it does not appear that the fee of the'street was ever acquired by the city; but I think that from the evidence it may be assumed that prior to the year 1815, the church opened the street from Broadway to the river, and had dedicated it for a public street. By a deed dated July 13, 1843, Trinity Church Corporation conveys to Jacob Fash a piece of land known as lot 47, bound westwardly in front by Greenwich street, northwardly on one side by Rector street, and which, by several conveyances, became vested in the plaintiff. The fee of half the streets in front of plaintiff’s property, that had not been conveyed or released by the Trinity Church Corporation to the city, passed by the deed to Fash, and through the various conveyances to the plaintiff (Sherman v. McKeon, 38 N. Y. 266 ; Story case, opinion of Tracy, J., 90 N. Y p. 163).
So that it appeared that the fee of Greenwich street was in the city, subject to the easement appurtenant to plaintiff’s lot, and that the fee of one-half of Rector street in front of plaintiff’s property was vested in plaintiff, subject to the easement that it should be kept a public street.
It was held in the dase of Williams v. The New York Central Railroad Co. (16 N. Y. 97), that in such a case, “the public acquired nothing beyond the mere right of passing and repassing upon the highway, and that in all other respects the rights of the original owner remained unimpaired. ” And again: It “ cannot be successfully contended, either that the dedication of land for a highway gives to the public an unlimited use, or that the legislature has the power to encroach upon the reserved rights of the owner by materially enlarging or changing the nature of public easement,” and held, that to allow a railway track to be constructed on a highway is a material change in, or enlargement of the uses to which the highway was originally dedicated, and that the legislature had had no power [16]*16to give a railroad the right to build upon the highway without compensation to the owner of the fee.
That the structure as erected and used by the defendants in Greenwich street is, to some extent, inconsistent with the use of such street under the conditions of the grant to the city of New York, is, I think, established by the evidence. It prevents, to some extent, the free access to plaintiff’s lot; it obscures the light, and to some extent, the free circulation of air.
This point was directly involved in the Story case (supra). Judge Tracy says, on page 170, “We think such a structure closes the street pro tanto, and this directly invades the plaintiff’s easement in the streets as secured by the grant to the city. . . . The defendant’s railroad, as authorized by the legislature, directly encroaches upon plaintiff’s easement and appropriated his property to the uses and purposes of the corporation; this constitutes a taking of property for public use. It follows that such a taking cannot be authorized except upon condition that defendant make compensation to the plaintiff for the property taken.”
The cases cited by defendant have all been examined, but so far as any of them are in conflict with the rule laid down, they must be held to he overruled by the cases above cited.
It follows, therefore, that if plaintiff is the owner of the easement in Greenwich street, and the fee of Rector street, that he is entitled to judgment restraiiiing the defendants from contmuing. to use his property.
It was argued, on the motion for a non-suit, and again on summing up, that as at the time of the conveyance to plaintiff, defendants were in possession of the property claimed by plaintiff, that no title to the easement or property passed by the deed, under 1 Revised Statutes, § 147, page 739.
The court of appeals in the case of Corning v. Troy I. & W. Factory (40 N. Y. 192), decided that the statute does not apply to the holding of a right appurtenant to land, but [17]*17only to the land itself. The statute does not prevent the title to the half of Rector street from passing by the deed to plaintiff, as the possession of the railroad company must be presumed to be in subordination to the rights of the owner. The evidence would not justify me in finding that it was adverse to him (Broistedt v. South Side R. R. Co., 55 N. Y. 220).
I have carefully considered the arguments and authorities to which my attention has been called by the learned counsel for the defendant, and I am of the opinion that the defendants have appropriated, and are using the property of the plaintiff -without his consent and without compensation, and that plaintiff is entitled to judgment.
The remaining question is, to what damages, if any, is the plaintiff entitled for the use of the premises since he acquired title to the property on January 7, 1882.
The evidence of the rental value of the property belonging to plaintiff appropriated and used by defendants is. extremely unsatisfactory. The only evidence is the opinions of experts of the depreciation in the rental of the premises in consequence of the existence of the railroad station, and there is no direct evidence of the rental value of plaintiff’s easement of light, air and right of access.
From all the evidence, however, I think that plaintiff should recover $500 per year for the use of his property appropriated and used by the defendants.
It was my intention on the trial of the case to follow the rule laid down in Henderson v. New York Central R. R. Co., and which was affirmed in 78 N. Y. 423, and find the value of the plaintiff’s easement and provide in the judgment that if defendants pay to plaintiff the sum so found as the value of the premises appropriated by defendants, the injunction asked for should be denied. The defendants, however, have not asked for such a finding, and as such a finding would be for their benefit, and the evidence is so unsatisfactory as to the value of such easement used by the defendants, I have concluded simply to order judgment for the plaintiff that the defendants be [18]*18enjoined and restrained from using the property of the plaintiff in Greenwich and Rector streets, and that plaintiff recover from the defendants the sum of $500 for each year from the time plaintiff became the owner of the said property to the entry of judgment as damages for the use of such property by defendants, allowing defendants to take such proceedings to acquire the property as they may be advised.
In consequence of this view of the case, it will not be necessary to determine the question of the right of defendants to use Rector street for the stations.
I think, however, I should follow the suggestion of Judge Tracy in the Story case, and direct that the injunction should not issue until the defendant has had a reasonable time after the entry of judgment to acquire plaintiff’s property, either by agreement or by proceedings to condemn the same and I think such reasonable time would be six months after the entry of judgment.
Judgment is therefore ordered for the plaintiff, in accordance with the views contained in this opinion, -with costs.