N. Y. Rep.] Dissenting opinion, per BARTLETT, J. lants contend that the uncontradicted evidence shows that the rental value of the premises has increased, and that plaintiff has failed to prove any injury. A careful reading of the record satisfies me that this contention is erroneous, and that there is evidence to sustain the finding of rental injury to the extent of $400 a year. This court is not concerned with the weight of evidence, but has reached the limit of its jurisdiction when it finds sufficient evidence to warrant the action of the court below. As to whether the finding of injury to rental value can be sustained, notwithstanding the fee value has increased since the construction of the road, there is no rule of law prohibiting a recovery under such circumstances where the finding is supported by competent evidence. It is by no means improbable that the fee value of premises in certain localities may appreciate while the rental value of existing buildings devoted to residential and business purposes may decrease. Whether rentals are to keep pace with fee values in a certain locality depends entirely upon the character of the buildings erected and the purposes for which they are used. A manufacturing establishment may thrive where an apartment house would prove a ruinous investment. I will now consider the finding of injury to fee value, and in so doing will put aside for the moment the fact that the market value of the fee has increased since the construction of the elevated road. What evidence is there in this case on which to rest the finding that by reason of defendants' interference with the easements of light, air and access consequential damages resulted to the fee over and above all benefits? In the first place it appears that the central portion of the street is covered by the track structure, which is thirty-seven feet six inches wide; the tracks come about half way up to the second story, that is, above the stores; there are three tracks and two outside track walks; the structure is supported by iron pillars, which are placed in the bed of the street; Dissenting opinion, per BARTLETT, J. [Vol. 147. there is one iron pillar in front of No. 1213, the corner house, and one in front of No. 1217, two houses north. A watchmaker and jeweler, occupying one of the stores, testified he had noticed that whenever his door was open his show cases would be covered with dust very quickly, and that he had continually to wipe off the deposit; when, at his bench as a watch repairer, and there was a train passing, he would have to stop his work; that the work on watches required a pretty good light, a steady light. Another witness from the residential part of the house swore that when sitting in the parlor or front rooms and a train passed there was a shadow or cloud created while it was passing; a witness also testified to cinders and dust. This is sufficient to show the character of evidence introduced on this point. The plaintiff supplemented this class of proof by evidence as to values on Third, Lexington and Fifth avenues and a number of cross streets in the vicinity. There was a sharp conflict of evidence as to these values, but the question to be answered now is, what did plaintiff prove by his witnesses? It was shown that values on Third avenue had advanced since 1873 from twenty to twenty-two and a half per cent; on the side streets in the vicinity and on Lexington avenue about 100 per cent, and on Fifth avenue very much more. It is unnecessary to go further into the details of the evidence, as plaintiff's proof showed that Third avenue property had not experienced the same advance as other property in the neighborhood by a very large percentage, and it also established that the plaintiff's premises, involved in this controversy, were worth about $80,000, in 1873, and $90,000 at the time of the trial, which advance was less even than the average on Third avenue. I think the evidence of interference with the easements necessarily tends to show a damage to the fee value when taken in connection with these proofs as to neighborhood values. In the Bohm case (129 N. Y. at page 588) Judge PECK N. Y. Rep.] Dissenting opinion, per BARTLETT, J. HAM said: "It seems to me plain, from this review of the law, that the real injury (if any) suffered by the landowner in any particular case, lies in the effect produced upon his abutting land by the wrongful interference of defendants with these easements of light, air and access to such land. And when they are interfered with, and in legal effect taken to any extent, it is not possible to think of them as of any value in and of themselves separated from the adjoining land, but their value is to be measured by the injury which such taking inflicts upon the land which is left, and to which they were appurtenant." Can it reasonably be said that it was not proper for the learned trial judge to consider all the evidence in this case as to interference with easements and as to the failure of Third avenue property to keep pace with the general advance of real estate values in the neighborhood and decide that the fee value of this property had been damaged to the extent of $6,000? I think this question was properly considered at the trial and at the General Term, and as the case stands it is a finding upon conflicting evidence with which we interfere. cannot In the Bohm case (129 N. Y. at page 592) Judge PECKHAM further said: "The question is, what, in fact, has been the actual result upon the land remaining? Has its actual market value been decreased by the taking, or has the taking prevented an enhancement in value greater than has actually occurred, and if so, to what extent?" * * (P. 593.) * "Where it appears that the property left has actually advanced in value, unless it can be shown that but for the act of the defendant in taking these easements it would have grown still more in value, the fact is plain that it has not been damaged." I come then to the effect on this case of the increase in fee value of the property since the elevated road was built. The Bohm case distinctly recognizes that even though such an increase in value has taken place, yet if it can be made to appear that the premises would have grown still more in Dissenting opinion, per BARTLETT, J. [Vol. 147. value had the railroad not been built, then damage has been proved. In the Bohm case it was said to be abundantly clear on the evidence that plaintiff's property had not suffered injury, and the question of neighborhood values was of no importance. It has, however, been repeatedly held that the fee and rental values of neighboring property are competent evidence in this class of cases. If competent evidence, it is for the reason it is material and likely to be of assistance to the court in reaching a just conclusion. The practical question is, how was the plaintiff to prove his case? Had there been marked depreciation in the fee and rental values since the completion of the railroad there would be little difficulty in making out a cause of action, but there is the other class of cases, referred to in the Bohm case, where there has been an advance in fee value and the owner desires to show that it would have increased even more if the easements had not been interfered with by the defendants and the road operated in front of his property. I think a plaintiff in such a position may prove the effect of the road upon the fee and rental value of other property situated on the same avenue upon which the railroad is operated; also as to property situated on adjacent avenues and side streets; he may show the condition and growth of the neighborhood before and after the road was constructed; he may prove the direct effects upon the property of interference with the easements of light, air and access. What more could he do? This court has said that in such a case the opinion of an expert as to what would have been the value of plaintiff's property had defendants' road not been built and operated is incompetent evidence. (Roberts case, 128 N. Y. 455.) The question of damage is one of legal deduction by the trial judge or jury when the facts referred to are duly proved. The decision in the Roberts case was placed upon the pre N. Y. Rep.] Dissenting opinion, per BARTLETT, J. cise ground that the expert was asked to determine the very question that ought to be answered by the court or jury. It cannot be expected that a plaintiff would be able to show to a dollar the amount of damage his property has suffered by reason of the construction of the elevated road; nor can it be said because accurate proof in this class of cases is difficult that damages cannot be proved by showing all the surrounding facts and allowing the trial judge or jury, in the exercise of a sound, honest judgment, to fix the amount. Such a result is not guessing or speculation, but is a judicial estimate based upon all the known facts involved in the problem submitted for solution. It would be a new doctrine to hold that the recovery of damages is limited to those cases where absolute proof of a sum certain can be made; if such were the case a large number of plaintiffs would be remediless in courts of justice. There would seem to be nothing unreasonable in the proposition that residential property along the line of the elevated railroad may experience only a slight advance in fee value after the construction of the road, while property off the line, but in the immediate vicinity, may appreciate in value very largely for the reason that it has enjoyed all the benefits conferred by the presence of the road in the locality, and the natural growth of the city due to increase of population and business, without suffering from those injuries necessarily inflicted on property in immediate contact with the road. The elevated railway companies are entitled to receive from the courts ample protection in view of the numerous actions they are called upon to defend and the vast amounts involved in their determination, and judgments against them ought not to be upheld resting upon mere speculation unsupported by evidence, but, on the other hand, plaintiffs whose property may have experienced a small advance in fee and rental values since the completion of the elevated railroad ought not be remediless when all the facts render it clear that property along the line of the road has been damaged by the interference with the easements of light, air and access, and |