The premises claimed to have been damaged by the defendant's road were numbers 1213, 1215 and 1217 on Third avenue. They stood in an area, substantially vacant and mainly unimproved, for while there was some improvement on the west toward Fourth avenue, and possibly some further north, there was none or very little to the east and south. The first witness on the subject called for the plaintiff was Burchell, who bought the land in 1866, and put up the buildings in 1869. He remained owner until 1887. When he bought and when he improved he describes the locality as substantially vacant. He tells us that the side streets east of Third avenue have been almost wholly constructed since the coming of the elevated road: that he is positive that none of the four or five blocks up and down 70th street were paved before 1878, and that there were no buildings on any of those streets. In answer to quite a leading question by plaintiff's counsel, which almost begs for an affirmative answer *Page 311 and reads in the record thus: "Take the period from 1873 to 1878, isn't it a fact that the city was greatly built up on the side streets there, lower down, up toward this region 59th to 70th streets," he said quite decidedly: "Not where my houses were." Freund, a real estate expert, called for the plaintiff, said: "In that immediate vicinity Third avenue was not very much improved; less from 70th street down to 66th street. On the east side property was entirely vacant, and on the west side. The northwest corner of 70th street was improved and 71st street. Some frame buildings on the block between 71st and 72d streets; 73d street was just about cut through at that time." On cross-examination, with his attention drawn to 1878, he said: "In fact almost all improvement has been made in that time in this immediate vicinity." So far there is no doubt about the facts.
But it is claimed that they are contradicted by Curtiss, another real estate expert called for the plaintiff, whose testimony the trial court was at liberty to believe. Where the experts on the same side neutralize each other the prudent course may be to disregard both. The witness did make some very broad assertions which he afterwards corrected, but in the main I think he did not change the situation, or raise a contradiction. Beginning with 1873 he said that the streets on the east side were vacant from 65th to 70th streets. In 1878 he declares that even on the west the streets were broken; that 72d street, east of the avenue, was only partially built upon, and the same was true of 71st street. He added: "If I said on my direct examination that there has been more development east of Third avenue before the elevated road, that is not true. It was west of Third avenue where the largest amount of building was. Most of the building that had taken place on Third avenue and in the side streets prior to 1877 was south of 60th street." He was asked to specify the building prior to 1878, and we find this answer in the record: "Towards building up Third avenue between 1873 and 1878 the beginning of 72d street, four houses on the southwest corner of 72d street and on Third avenue, one on *Page 312 the northwest corner of 72d street and Third avenue, two flats on the west side of Third avenue, between 76th and 78th streets, on the west side, and a flat and a half front from 70th to 78th street on the east side, that is a 100 foot flat; that is about all the new buildings I recollect in that section." If he gave some loose and vague answers, his statements of detailed facts leave it clear that from 70th street south to 60th street Third avenue was substantially unimproved; that on the west, toward Fourth avenue, there was some building, and a little to the north, but the east was almost utterly vacant.
On this state of the proof the learned trial judge was asked to find as a fact that prior to 1877 the land in the vicinity of the premises in suit was largely unimproved and unutilized. There was a refusal and exception. That the request was material is settled by the doctrine of the Bohm* case, which we have just followed in the case of Bookman.8224 The request should have been granted since the uncontradicted evidence clearly proved the fact.
The trial court also found that the fee value of the premises had increased since the building of the road, but refused to find to the extent of increase requested, and also refused to find that the rental value had increased since the same date. The proof shows a rental of almost $7,000 in 1873, which was a speculative point of inflated values, and then a descent in consequence of the panic which followed to about $3,600 in the years 1878 and 1879, but promptly thereafter, and coincident with the construction and operation of the road, a steady and persistent rise up to $6,500 in 1886. Mr. Kyle, who collected the rents during the year of the trial, stated that the rent per month, not including the janitor's apartments, was $601.50, which gives for the year $7,217, an amount larger than in any year preceding the building of the road. That fact also the trial judge refused to find as requested.
The plaintiff's expert, Freund, put the fee value in 1873, the period of inflation, at $70,000, and the present value at *Page 313 $90,000. He stated the fee value in 1877 at $60,000, showing an appreciation since the construction of the road of about one-third. Curtiss agrees as to the last two values, and yet, with no evidence to the contrary, the trial judge refused to find the facts as requested. He does find, however, the obvious truths that the station at 67th street is used by a great number of people, and makes the premises more accessible and more desirable for many business purposes.
If, therefore, the trial judge had found the facts requested, as he should have done, the legal conclusion that no damages had been proved would have followed inevitably under the doctrine of the Bohm case. The railroad comes into an area substantially vacant and unimproved. It finds values and rents at the lowest ebb following the panic. It brings in population, stimulates improvement, and causes values to rise until they exceed the highest limit of the speculative period which preceded the panic. The side streets grew, and their values increased largely from the same cause, and comparison with them only indicates a more or less unequal increment of benefit flowing from the same operative cause. The authority of the Bohm and Bookman cases requires us to hold that there was no proof of damage.
The judgment should be reversed and a new trial granted, costs to abide the event.
* 129 N.Y. 576.
8224 Ante, p. 298.