I dissent from so much of the decision of this court as eliminates from the recovery by the plaintiff the award for damages to the rental value of the property between the date of the conveyance • and the date of the decree. If, prior to the conveyance, rental damages had been sustained, against which the Statute of Limitations had not run, a cause of action therefor at law was vested in the grantor which remained in him for the trespass upon his easements down to the date of the conveyance. (Pegram v. Elevated, *531R. R. Co., 147 N. Y. 135.) This canse of action, if any, was not assigned to the grantee. As I view the reservation of damages contained in the deed, the grantor, in effect, conveyed the premises for the consideration specified precisely the same, so far as the rights of the grantee were concerned, as if immediately prior to executing the deed he had released to the railroad company all claims for damages to the easements. It was evidently the intention of the parties that all right to damages should be reserved by the grantor precisely the same as if those damages should ultimately be fixed as of the date of the conveyance. The fee and rental damages recovered together in effect constitute the damages to the fee on the date of the conveyance. Owing to the fact that it was necessary to bring the action and that time elapsed between the date of the conveyance and the date of the decree, the damages were not all awarded in form as fee damages, but as rental and fee damages, the former being for the trespass to the date of the decree, and the latter being the damages for all future time after the date of the decree, which are ascertained by determining the value of the land with and without the injury to the easements.
The Court of Appeals, in the opinion of Regram v. Elevated R. R. Co. (supra), expressly say, in refusing to award rental and fee damages to the grantor for the period subsequent to the date of the conveyance, on account of the fact that the right of action therefor had passed to the grantee who was not a party to the suit, that if the reservation was to be operative at all, the grantee became, as the holder of the legal title, “ a trustee for the plaintiffs with respect to any damages which might be recovered of the defendants, for the injury occasioned to the rental and fee value of the property through an action brought in his name, or wherein he was joined as a party.” In Western Union Telegraph Company v. Shepard (169 N. Y. 170), Avliere it was assumed that the grantor assigned to the grantee the right to bring the action for past damages in reserving both past and future damages, it was held that the grantee became a trustee for the grantor as to all such damages, both past rental damages, future rental damages and fee damages. This court, in Freund v. Biel (114 App. Div. 400), in reversing the trial court in holding that the grantor was not entitled to recover the amount received by the grantee in settlement for both rental and fee dam*532ages, held in effect that as to all of the damages the grantee became a trustee -for the grantor. There was the same authority for awarding to the plaintiff the damages to the rental value or for the trespass between the date of the conveyance and the date of the decree, as for the damages awarded in form as fee damages. If, as is about to be held by this court, the grantor cannot reserve the damages that may be recovered for the trespass which are awarded as for loss of rental value, then the grantee by bringing actions at law for trespass from time to time and not praying for an injunction and for a permanent award for damages to the fee in lieu thereof, may wholly defeat the rights of the grantor.
Ingraham, J., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.