Crampton v. Brooklyn Elevated Railroad (3 A.D. 263, 1896)

Per Curiam :

This is. the usual action for the recovery of past damages, and'to restrain the operation and maintenance by defendants of its elevated railroad in the street upon which plaintiff is an abutting property .owner. The court found that the damage to the rental value and occupancy of the premises since the construction of the road was the sum of $300, for which sum it ordered judgment. The court also found that the permanent maintenance of the railroad depreciates the fee value of the premises in the sum of $1,700, which sum it adjudged that defendants pay within thirty days or be enjoined and restrained from continuing their railroad. It is'claimed that the ■ amount awarded as fee damages is excessive, and is not based upon any fair construction of the proof. This contention presents the only substantial question raised by this appeal.

The property affected is now used and always has been as a dwelling house. The lot is twenty feet front by one hundred feet .in depth,■ arid the building a three^story brick with á basement. ■The owners do not occupy the property, but rent the same, and the present lessee uses the house by leasing furnished rooms. Prior to the construction and operation of the railroad the premises rented for fifty dollars per month; they have rented for forty-five dollars a month since. The decline is, therefore, sixty dollars a year. There was evidence tending to show that such depreciation was due in part to other causes than the condition produced by the railroad, and this view seems to have been adopted by the court, as the award for rental damage is at the rate of fifty dollars a year. This being accepted as the basis for past damage, it is at once seen that there is large and marked disparity between it and the sum awarded as fee damage. The record does not disclose any proof of actual sales or transactions with this property, and no satisfactory knowledge, on the part of the witnesses, of actual transactions with any property in that vicinity appears. The case, therefore, rested respecting values mainly -upon its rental value, which was satisfactorily established, and upon the opinions of witnesses acquainted with the property and values generally. Two expert witnesses, Thorne and Cook, called by plaintiff, fixed the depreciation in fe