The defendants had a right to erect a steel viaduct twenty-four feet wide in the center of Park avenue at any height they saw fit. That they had such right was settled and determined by this court in Birrell v. N. Y. & H. R. R. Co. (41 App. Div. 506). They also had acquired by prescription the right to occupy so much of the avenue outside of the twenty-four-foot strip, for railroad purposes, as they had used for that purpose, from 1873 to February 16, 1897. This was settled and determined by the Court of Appeals in Conabeer v. N. Y. C. & H. R. R. R. Co. (156 N. Y. 474) and in Lewis v. N. Y. & H. R. R. Co. (162 id. 202). The learned trial court also found as a fact that the defendants had such right as appears from the following findings:
“ Third.. * * * Said railroad, prior to February 16th, 1897, was operated along the center of said Park Avenue in front of the plaintiff’s premises in a depressed cut about 14 feet below the surface of said Park Avenue and 61 feet and 8 inches wide, which said railroad cut was bounded on each side by parapet walls of about two feet six inches above the surface of said avenue, which said embankment or viaduct cut off access from one side of the said avenue to the other. * * *.
*298“Fourth. That said defendant railroad companies * * * acquired the right without liability to the plaintiff to have, maintain and use their railroad and railroad structures as the same were maintained and used prior to February 16th, 1897, as hereinbefore described; and at any height within the central 24 feet of said Park Avenue.”
But notwithstanding these findings and the authorities referred to, the learned trial court held that the structure and the operation of trains thereon since February 16,1897, have been “ continuous trespass upon plaintiff’s easements of light and air appurtenant to her said premises,” and for which fee and rental damages were awarded. This court is about to affirm the judgment, upon the theory that “ the structure is an entire one, and it would be difficult, if not impossible, to separate the legal from the illegal part,” and that .inasmuch as a portion of it is illegal, the entire structure. becomes "illegal and must be removed,
I am unable to agree to this conclusion. It is a novel proposition to me that a party who has a legal right to build or maintain a structure upon his own land or in a given locality must tear down the entire building or remove the entire structure if a portion of the building or a part of the structure happens to be constructed upon his neighbor’s land, or in such a way as to impair his neighbor’s - easements of light, air and access. I do not see how such a principle can be applied, if justice is to be meted out to parties according to their respective legal rights. It is no answer to the suggestion ' to say that “ it would be difficult, if not impossible, to separate the legal from the illegal; part.” Difficulties and impossibilities are unknown to the law. Those terms are only applicable when legal principles are sought to be applied, but the principle is not destroyed even if the application and the enforcement of it be difficult or : impossible. Here it does not appear but that that portion of the steel viaduct outside of the twenty-four feet can be removed and leave the balance standing, and if it did it would not make the slightest difference in determining or enforcing the rights of the parties. If A constructed a building partly on his land and partly on the land of B, no one would seriously contend that in ordering A to remove that portion of it which encroached upon B’s land, the court should order A to tear down the entire building, on the *299theory that “ the structure is an entire one.” I can see no difference in principle between a building thus constructed and the structure of the defendants. The defendants had the legal right to build a part of the structure in precisely the way they built it. This we have decided, and having that right I do not see how they can be directed to take that part of it down, or to pay damages in lieu thereof.
I think the damages to which the plaintiff is entitled by reason of the erection of the structure of which she now complains, is the value of her easements of light, air and access, which have been impaired, or of which she has been deprived by that part of the structure placed or erected upon the portion of the avenue lying outside of the twenty-four-foot strip, and this only, to the extent that the use to which the avenue has been put by the erection of the steel viaduct thereon is in excess of, or different from that to which it was subjected and used by defendants for railroad purposes from 1873 to 1897. This is not the rule adopted by the trial court. The trial court directed that the entire structure be taken down, or in lieu thereof a specified sum in damages he paid.
For the foregoing reasons I am unable to concur with the other members of the court. I think the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.
Judgment affirmed, with costs.