Upon the question of the title to the land of the parties respectively, the only feature which distinguishes this case from many of the former cases (see Birrell v. N. Y. & H. R. R. Co., 41 App. Div. 506; Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 474) is that here the deed to the defendants with respect to the twenty-four feet in the center of the avenue antedates the deed to the plaintiff, t-he common source of title of both parties being one Charles Henry Hall. It is unnecessary to discuss the legal effect of this difference, no serious complaint arising but that it was duly considered by the learned trial judge. And equally upon the question of the amount awarded for damages, which was moderate and amply supported by evidence, nothing is required but a consideration of the appellants’ contention that the rule which was applied deprived them of the benefit of certain deductions to which, upon the decision as made, they claim they were entitled.
The learned trial judge found that the defendants- could rights fully maintain their railroad structure as it was maintained and used *294prior to February 16, 1897, and at any height within the lines of the central twenty-four feet of the avenue. Assuming as we must, without deciding, that this finding is right, we have to consider the contention that the judge “ erred in that instead of finding and awarding as rental and fee damages the depreciation of rental and fee values, respectively, below what they would have been"if defendants had maintained and operated trains upon such structure or structures, as they had acquired the right to thus maintain and use, he found and awarded as rental and fee damages the depreciation of rental arid - fee values, respectively, below what they would have been ‘if there had been no change in defendants’ said railroad in Park avenue in front of said premises, pursuant to chapter 339 of the Laws of 1892.’ ” The contention, differently stated, is, that as the court found, first, that the defendants having acquired the right, could build their structure at any height on the twenty-four" feet in the center of the avenue; and, secondly, that the defendants acquired the right prior to 1897 to maintain the railroad as it then existed in the depressed cut in the avenue (which "was greater in width than tlie twenty-four feet), it follows" that they had the right to construct and maintain the present viaduct structure without responding to plaintiff in damages at least for that part of the avenue used by them which was within the twenty-four feet.
The error which we think lies at the basis of this argument is, that the damages sought by the plaintiff were not for structure so placed, but were for the new viaduct of iron and steel about twenty feet above the surface. of Park avenue and about fifty-nine feet wide, which structure the learned trial judge found was illegal and caused fee and rental damage to the plaintiff in the sums awarded, for which judgment was directed with the provision that unless the amounts were paid the illegal structure should be removed. The defendants, as stated, insist that this judgment is illogicál and erroneous, because, as they claim, the extent to which the judgment could go affects only so much of the structure as projects on both sides beyond the twenty-four feet, or all the damages that could be awarded result therefrom. In other words, in every computation of the amounts to be. awarded, the twenty-four feet should be excluded.
This contention, we think, is unsound. The structure is an .entire one; and it would be difficult, if not impossible, to separate the legal *295from the illegal part. Instances may be imagined where this could be done, as where a third track is added to an elevated railroad structure, which could be removed if unauthorized, just as it was added, without destroying the rest of the structure which the owners had the right legally to maintain; or, if allowed to remain, the difference in damage between the structure as it existed with the two tracks and with the third track added, could be determined. In the present case, however, we have an entirely different structure, at a different elevation, affecting the abutting property differently, and one in which the legal and illegal portions are integral parts, and that which is illegal could not be removed without destroying the viaduct as an entirety. Moreover, considering the injury inflicted upon abutting owners, it might well be in regard to such a structure, that had it been limited to twenty-four feet in width, no appreciable damage might have resulted. Here the evidence shows that damage was caused by the placing of this particular structure in the avenue, and the fact that part of it was erected without warrant makes the structure, as a whole, illegal.
It may not be difficult, in the abstract, to theorize as to how much less the plaintiff is damaged by the entire structure because of the defendants’ right to use twenty-four feet thereof in the center of the avenue. Thus, if the injury to her property were in exact ratio to the number of feet in the width of the viaduct, the arithmetical computation of damages would be simply one of proportion, and for twenty-four fifty-ninths of the whole damage she could not recover. The injustice of any such method, however, we have already alluded to in suggesting that a viaduct twenty-four feet wide might not have done any damage whatever to the abutting property, but that all the injury to the plaintiff’s easements resulted from the structure as an entirety occupying, with the portions added without authority, a large part of the avenue. If, instead of taking up fifty-nine feet,. the defendants had appropriated the entire avenue so as to practically destroy all of plaintiff’s easements and property, then more apparently would it be difficult, if not impossible, to compute to what extent the damage inflicted would be lessened if, instead of such a structure, there were one occupying but twenty-four feet in the center of the avenue.
In our opinion there is little practical advantage in discussing *296what would or might be the effect on plaintiff’s property of a viaduct twenty-four feet wide —■ for none such has been built — nor in endeavoring to imagine how much of the damage resulting from the-present structure is caused by the part placed within the .twenty-four feet. 'We say there is little practical advantage in view of the permanent structure which has been built, which is. being used and which as a whole affects abutting property; for in considering the-subject, even from the standpoint that the defendants, without liability to any one, might or could have built a viaduct of any kind, twenty-four feet wide in the center of the avenue, we must recognize that here it is an actual situation, a present permanent structure and not a theory as to what might or could be done that claims our atteiition. Dealing, therefore, with this subject in the concrete and bearing in mind the character of actual structure which now exists, we can find no legal support for the contention that the defendants are entitled to a deduction either from the fee or the rental damage because of their alleged right to maintain some structure within the line of the twenty-four-foot strip. What has been held to be illegal is the structure as it now exists in its entirety, and it is that which has injured the plaintiff’s easements and property, and there is no rule of law to which our attention has been called that requires a court to apportion damages for the benefit of a trespasser. On the contrary, the tendency has been in the opposite direction. (Lahr v. Met. El. R. Co., 104 N. Y. 268; American Bank Note Co. v. N. Y. El. R. R. Co., 129 id. 267.)
In the Lahr Case (supra) the court said : “ No partial justification of the damages inflicted by an unlawful structure and its. unlawful use can be predicated upon the circumstance that, under other conditions and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable for damages. The structure here and its intended use cannot be separated and dissected, and it must be regarded in its entirety in considering the effect which it produces, .upon the property of the abutter. However the damage may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass, rendering the wrongdoer liable for the consequences of his acts.”
We think, therefore, as. in effect did the learned trial judge, that *297where there is but one entire structure, part of which is illegal and not separable, this latter to those whose property is injured, makes the whole illegal. The plaintiff’s evidence was directed (as defendants contend improperly, but, as we think, properly) to showing the difference in effect between the former cut as it existed with its tracks and the trains operated thereon, which the defendants had the right to maintain and use, and the present permanent structure, which, in its entirety and as used, constitutes a continuous trespass upon the plaintiff’s easements of light, air and access, and which structure it was in the power of the court to enjoin, unless the reasonable award made should, in compensation for the damages suffered, be paid.
We think the judgment was right and should be affirmed, with costs.
Ingraham, Hatch and Laughlin, JJ., concurred; McLaughlin, J., dissented.