I cannot concur in the opinion of my associates.
The learned corporation counsel states in his brief, and stated orally on the argument, that the existence of the nuisance was admitted, but contended that an erroneous rule was adopted at Special Term as the measure of damages and that the amount of damages was excessive. The measure of damages adopted by the court was “the depreciation of the rental value of' the plaintiffs’ property occasioned by the nuisance.” Two cases ale cited, Francis v. Schoellkopf (53 N. Y. 152) and Colrick v. Swinburne (105 id. 503).
Apparently the corporation counsel does not attack the correctness of this rule in cases where there has been an actual loss of rentals, but contends that the plaintiff Abraham Van Siclen is- not entitled to any damages because he was not in possession of the property and did not have the beneficial enjoyment thereof and because he has suffered no loss of rental value. Assuming the correctness of his premises, which are derived from the testimony of Abraham that his son occupied and cultivated the farm, paying only a nominal rent, we aré brought to the question whether in such a case the measure of damages is changed.
In Francis v. Schoellkopf (supra), cited in the opinion of Mr. Justice Gabbetson, there was evidence to show inability to rent one of the two houses Which were the subject of the litigation, and a *441diminished rent of the other by reason of the nuisance created by the defendant.
In Colrick v. Swinburne (supra), also cited in the opinion of Hr. Justice Gaeretson, the plaintiff’s own use of the property was impaired by the diversion of water from its natural channel, and the court said (pp. 506, 507): “ The proper rule of damages under the circumstances was the diminished rental value of the tannery premises for the purposes of that business during the period of diversion. The rental value of land is a fact ascertainable with reasonable certainty, and .is the basis upon which damages are frequently awarded.”
Woolsey v. N. Y. E. R. R. Co. (134 N. Y. 323) announced the principle that an owner in possession, who did not offer his premises for rent, but used them in his own business and did not prove any damages to his business by the railroad structure, was still entitled to recover for any depreciation in the rental value of the premises occasioned-by the elevated structure.
. In Kernochan v. N. Y. E. R. R. Co. (128 N. Y. 559) it is said (p. 563): “ It is a fundamental proposition that only the party injured by a wrongful act can maintain an action for damages. There may be difficulty in some cases in ascertaining the proper party. The same wrong may occasion injury to several persons, or to separate and distinct interests in the same property. But he only is entitled to maintain an action who can show that his right has been invaded, and to such person or persons only is the wrongdoer bound to make compensation. The owner of real property, so long as he is in possession and has not leased or created any subordinate interest in the land, plainly is the only person injured 'by the construction and maintenance of the elevated railway. * * * A reversioner1, however, who by his lease has vested the immediate right of possession of the property in the lessee, sustains no legal injury from mere temporary or casual trespasses on the land. - Such wrongs affect the possession merely and are to be redressed at the suit of the tenant. * * * It is obvious, we think, within the authorities that the lessor in a lease, made after the construction of the elevated railroad, of premises abutting thereon, can maintain an action for damages for the loss of rents occasioned thereby. The principle that diminished rental value is a basis for awarding damages has been frequently recognized * *
*442This brings us to the question whether the plaintiff Abraham Van Siclen or his tenants are the persons who have suffered damage., Abraham’s property consists of three parcels containing 148 acres on the east side of Lincoln avenue. He produced his deeds and testified that he was in possession of the property described in each deed, and had been since the delivery of the deeds. He also testified : “ I occupy these various pieces of property with the various members of my family and employees; I have five dwellings on that property and a number of barns, outbuildings and hot-liouses there; my hot-houses and all my frames probably cover an acre of ground or more; I raise crops in them all winter long.”
It appeared that one of the parcels, called a farm and containing thirty-seven acres,, was occupied by Abraham’s son. The father says: “ When I speak of my son’s farm I mean tiie farm that is owned by me and occupied by my son; he pays me rent; he pays me the same rent now that he did two years ago>; the rent never has been changedhe pays me a nominal rent; he has paid me the same rent all along; they hire all my land; I gave up farming; four years ago I gave up the farm; * * * I am not doing any business myself at all; my son is doing it; * * * my sons do not work my farm on shares for me, they hire it of me. * * * It was nominal rent;. I don’t get any rént for my property comparatively to what it was; nominal rent I get; I let them work the farm and make out of it what they can.”
It is evident that Abraham is really in control of the entire property. He is seventy-five years of age, and while lie permits his sons_ to occupy and cultivate portions of it, he resides in and cultivates the other parts of the premises. No lease for any definite term of any part of the premises is shown, and I think there is no such severance of a term from the ownership as is contemplated in the above-quoted language of the court in the Kernoohan case. It seems evident that the sons, who occupy a part of the premises on a nominal rent, and make what they can out of thfe cultivation, are not in a position to recover any damages.
In the Kernochan Case (supra) a lease for a term of years was executed after the building of the elevated railroad, and the tenant was in exclusive possession of the premises. The court said (p. 565): “ It would be an unnatural and violent presumption that the lessor *443intended to exact or that the lessee intended to pay rent measured by the value of the use of the premises without the railroad, on the supposition that it would be removed during the term. On the contrary, it is undoubtedly true that the rent reserved in leases like this, represents in the minds of the parties the value of the use of the premises incumbered by the. railroad.”
In the case at bar there was no leasing for a term of years. The utmost that can be said, so far as the record shows, is that the sons were holding the portions of the premises at a nominal rent without any definite term, and indeed without any actual lease, and it is a fair inference that' their occupancy was practically gratuitous and growing out of their family relationship. They had been holding under the same conditions before the construction of the sewer was commenced, and there is nothing to show that Abraham could not resume possession at will and without notice. Such a holding does not seem to fall within the rule laid down in the Kernochan Case (supra), where the court said (p. 565): “ In determining whether the lessee acquired by his lease the right to recover damages inflicted upon the property by the road during the term, the situation at the time the lease was executed, the terms of the instrument and the intention of the parties thereto are to be considered.” Certainly, there is no evidence to show that Abraham intended to divest himself of anything other than the bare permission to his sons to occupy a part of the premises for their support.
Under such circumstances, the father, and not the sons, is entitled to recover whatever damages have been occasioned by the nuisance in question.
The corporation counsel argues that the expert evidence as to damages is unreliable and speculative. It is difficult to see any other method by which the damages could have been established. This evidence was based on the difference in rental value occasioned by leaving the highway in a dangerous condition, and this is in accordance with the method prescribed in Jamieson v. Elevated Railway (147 N. Y. 322).
As to the damages sustained by Abraham, the testimony is sufficient to sustain the amount found by the court, even though he did not actually use the whole of the premises.
The damages sustained by James, the other plaintiff, who owned *444a farm on the other side of the road from his father’s farm, are sufficiently proved to justify the finding as to him.
I think that the judgment should be affirmed.
Judgment modified by striking out the award of damages to Abraham Van Siclen, and the award of additional allowance thereon, and as modified affirmed, without costs to either party.