The plaintiff seeks to enjoin- the operation of the deféndants’ road in front of her premises on Park avenue, and also to obtain damages resulting from the operation of the road. The claim 'she presents on this appeal is that the damages awarded are inadequate.. On the part of the defendants questions are presented bearing upon, their liability for any damages.
The facts connected with the placing of the railroad in the avenue,, and most of the questions in issue on this appeal, will be found in two decisions of this c-otirt made in similar actions brought by abutting property owners on the same avenue. (Taylor v. N. Y. & Harlem R. R. Co., 27 App. Div. 190; Welde v. N. Y. & Harlem R. R. Co., 28 id. 379.)
The defendants desire to reopen a subject which was involved, upon the former appeals, claiming that it was overlooked, and. that, if considered, it would ■ preclude a recovery in this or any similar case. This is with reference to the distinction to be observed between taking possession under a deed and possession without a deed; and the defendants assert that in' the former -appeals most of the argument was based upon the theory that their rights were= acquired.by adverse possession. With respect to this question 'all that need be stated is, that although the railroad had originally entered into possession under a deed of a portion of the avenue, it *345subsequently made encroachments beyond the limits fixed in the deed, and to that extent obtained as to such portion title by adverse possession. Or, differently expressed, the claim of the defendants is that by virtue of the deed by Benson, and more than twenty years’ adverse possession thereunder, the railroad has acquired the right, as against the plaintiff, to maintain and operate the railroad structure under chapter 339 of the Laws of 1892 and the amending act (Chap. 548 of the Laws of 1894).
Referring to the stone viaduct upon which the defendants had operated their road for twenty years, it was said in the Taylor Case (supra): “ As to that embankment it has acquired by adverse possession the right to maintain it to the extent to which it was used during that time, but it is limited in this user to the right as exercised for that period of time. It cannot enlarge the user and claim, by virtue of the adverse possession, the right to the user as increased after the expiration of the twenty years.”
It is insisted by the defendants, that the cases cited in support of the portion of the opinion quoted show that questions of rights by prescription alone were involved ; that is, the right claimed by prescription,. and not under a written instrument of any kind. We fail, however, to see how the defendants are to derive any comfort from the circumstance that the cases cited were upon the rights by prescription alone, because beyond the property originally acquired under the Benson deed,- the rest of the property used and occupied by the railroad was obtained by adverse possession; wherefore, in the change that was made to a new structure under the act of 1892, the right of the railroad was limited by the extent of its former-user of the avenue held partly under the Benson deed and partly by adverse possession.
While, therefore, it was entirely lawful for the railroad to use the original property obtained under the Benson deed, so that no right to damage would accrue to abutting owners if the height of the structure was increased within the lines of such original grant, the same rule does not hold with regard to the portion of the structure outside the terms of the deed; because, having been obtained by adverse possession, the rights of the railroad therein are limited by the extent of its user, and where it undertakes to operate the road’ *346upon a structure that is greater in height and may be in other ways-more injurious to the abutting owner, to that extent such owner is entitled to recompense. We think, therefore, that the learned trial judge did right in awarding damages. Whether the same were excessive as claimed by defendants or inadequate as claimed by plaintiff, may be briefly considered.
The original structure erected under chapter 702 of the Laws of 1872 was only seven feet above the level of the avenue, the tracks being only three feet above it. ■ The new permanent structure is, measured to the top of the railings, thirty-six fleet above the bed of-the avenue, and comes up to the fourth floor windows of the premises in suit. Thus the present structure is five times higher than the. old, It is, however, not a solid mound, like the old embankment, and great stress is laid upon this fact. But that a structure set- on -girders may cause serious injury has been repeatedly shown in the elevated road cases. This structure, however, seems much more objectionable than the.elevated structure. Above the girders, which measure seven feet and two' inches vertically, is a solid flooring fifty-four feet broad and thirty-five feet from the ground. It is quite apparent that all the light that can reach the premises under and through this solid roadbed does not amount to much. Witnesses for the plaintiff testify that the new permanent structure i§ more objectionable than the old, in that it keeps out more light and the vibration from passing trains is much greater, making the windows rattle, knocking off the plaster and cracking the ceilings.
On the other hand, as a result of the Park avenue improvement," One' Hundred and Fourteenth and One Hundred and Fifteenth streets have been opened for the first time at this point, and the" property has been improved to that extent. The trial judge allowed for such benefit, and except for this allowance, the plaintiff might fairly have received much more for fee damages. The award of" $750 for fee damage seems, on the whole, justified..
As to the rental damage, for the period during which the temporary structure was used for the passage of trains, from February 1, 1895, to February 16, 1897, the sum of $600 was awarded, being-at the.rate of about $294 "a year. This temporary structure was-built on both sides of the old embankment, and came close up to-the plaintiff’s premises. It was surrounded by a fence, which was *347only nine and a half feet from the plaintiff’s curb line. The street was entirely blocked, so that wagons could not pass through it. There was evidence that the light was obstructed much more seriously, and that there was much more dirt, smoke, noise and vibration than formerly. The amount of vacancies during this time amounted, at the rates charged, to over $1,000,' and there was evidence that tenants moved on account of the temporary structure, and would not stay although offered reductions in rent. Premises, how-over, are seldom entirely full, and the plaintiff’s expert claims only' $919 of rental damage during this period. The trial court seems to have chosen a fair medium in. awarding $600.
There is an award, also, .of $100 for the period from February 16, 1897, when trains began to run on the new permanent structure, to May 9,1898, the date of the trial. This award is the one most open to criticism, because of the damaging nature of the permanent structure. The improvement, however, in opening the side streets should still be kept in mind. In estimating the award an intricate question of fact was thus presented, it being necessary to determine the excess of damage caused by the new structure, deducting the benefit derived from improvements, and with the conclusion reached as to the amount we do not think we should interfere.
The record shows that the court below approached the- consideration of these questions of damages having in mind the correct legal theory upon which they should be disposed of, and the amounts awarded being on the evidence fair and just, we think the judgment should be affirmed, and, as these were cross-appeals, without costs.
.Barrett, Rumsey and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.