(dissenting). This action was brought to recover the damages sustained by reason of the construction, maintenance and operation of the defendants’ elevated railroad in front of premises known as number 26 Front street, in the city of Eew York.
The judgment awards to the plaintiff, Woolsey, $1,900 past damages, together with interest and costs, and an injunction restraining the defendants from the further maintenance and operation of their railroad in front of the premises unless within thirty days from the entry of the judgment they pay the plaintiff Woolsey the sum of $5,500 as the fee damage.
*329The premises to which this action relates consists of a lot of land with a building thereon situated on the northerly side of Front street, between Broad street and Coenties Slip. The lot is twenty-three feet and five inches wide and sixty-five feet deep. The building is a brick warehouse, five stories high. The plaintiff’s, Woolsey’s, business is the storage, manipulation and sale of flour, and he has occupied the premises for that purpose since the year 1866.
One of the questions urged by the appellants upon this appeal was that the trial court had adopted an erroneous rule in awarding judgment for past damages. Upon our first examination of the case we reached the conclusion that this question was not raised for review by any exception taken upon the trial, but upon a re-examination of the case we have become satisfied that the question was raised and should be considered.
The court has found as facts:
“Twenty-seventh. The value of the property so taken from the time of the original taking to the date hereof is of the value of three hundred and fifty dollars for and during each year, and amounts to the date hereof to $1,900 in the aggregate.”
The property taken is defined and described in the twenty fourth finding in the following language:
“ The said unlawful taking consists, among other things, in the erection and maintenance of said structure itself, including a column embedded in the sidewalk and of the height above the street of about 1110-12ths feet in front of plaintiffs’ premises, and in drawing trains of cars on said structure by steam engines generating gas, steam and smoke, and distributing in the air cinders, dust and ashes and other noxious and deleterious, substances and interrupting the free passage of light and air to and from plaintiffs’ premises, and to and from adjoining premises.”
Exceptions were taken to these findings.
We are at a loss to understand why the trial court should *330have incorporated a finding that the free passage of light and air was interrupted “ to and from adjoining premises.”
If the damages awarded for the value of the property taken consisted of the interruption of light and air to and from adjoining premises an improper measure of damages was adopted. But we cannot believe that such was the intention of the trial court. No such claim was made by either party, and the concluding clause of the finding must have been inserted inadvertently.
It is also claimed that under the findings the money judgment is based on the annual value to the defendants of the use of the plaintiffs’ easements; that the finding of such annual value is the sole basis of the judgment, and that there is no finding that the plaintiffs have suffered any loss or damage'whatever by reason of the defendants’ acts.
The language used in the findings may be properly subject to criticism, but we hardly believe it was intended to be understood as claimed.
The easements of light, air and access are incorporeal hereditaments. They have no existence apart from the dominant tenement. They may in their relation to it be destroyed or their enjoyment impaired, but cannot be otherwise taken. The defendants therefore took none of the plaintiff’s property otherwise than in the sense that they interferred with the enjoyment of these easements by the plaintiff or destroyed them beneficial use to the extent of the injury sustained by him.
Upon the trial evidence was given as to what effect the construction and operation of the defendant’s road had upon the rental value of the premises. Objection was taken to this, upon the ground that “ it is not a proper measure of damages.”
In the case of Bank v. N. Y. El. R. R. Co. (21 J. & S. 412-418), it was said by Judge Ingbam that: “ The fact that its rental value in the market had been depreciated was no pecuniary loss to the plaintiff so long as it continued to use the property.for its own purposes.”
*331This rule, however, was not held applicable in case of an occupant of premises rendered disagreeable and uncomfortable. (Kearney v. M. E. R. Co., 14 N. Y. S. R. 854.)
In the case under consideration, the plaintiff Woolsey, as we have seen, suffered from the loss or impairment of his easement of light and air. This would render his premises disagreeable and uncomfortable and although he continued in the possession thereof using them for his own business he is still entitled to compensation for the damages he has sustained; and in order to determine the amount thereof we think that evidence showing depreciation in the rental value was competent.
In the case of Francis v. Schoellkopf (53 N. Y. 152), the plaintiff had two houses; one was rented, and she resided in the other. They were rendered disagreeable and uncomfortable by reason of a nuisance maintained by the defendant. In an action to recover damages it was held that she was entitled to recover the depreciation of the rental'value occasioned by the nuisance.
In Kernochan v. N. Y. El. R. Co. (128 N. Y. 559-566), Andrews, J., says that: “ The principle that diminished rental value is a basis of awarding damages has been frequently recognized in these and similar cases.” (See also Hussner v. Brooklyn City Railroad Company, 114 N. Y. 433; Tallman v. M. E. R. Co., 121 id. 119.)
The damages which the plaintiff was entitled to recover were those which he had sustained in the use of his premises by reason of the construction and operation of the defendant’s road. How much has the rental or usable value of the premises been diminished? As a basis for estimating the damages the premises must be taken as they are used during the time embraced in the action, and the recovery must be confined to the diminished rental or usable value as they were. (Tallman v. M. E. R. Co., supra: Rumsey v. N. Y. & N. E. R. Co., 133 N. Y. 79.)
Was this measure of damages adopted ? As we have seen, the question is not satisfactorily answered from the findings referred to.
*332Upon, reference tnthe defendants’ seventeenth request, it appears that the court was asked to find that, “ Since the time the said elevated railroad was constructed, and for many years prior thereto, said building has been occupied by the plaintiff, Theodoras B. Woolsey, for the purposes of his business, as a dealer in flour, and for the storage and manipulation of flour.” The court refused" to find as requested otherwise than as he had determined in the findings signed by him in the action. The defendants excepted to such refusal. The findings signed by the court contain no reference to the subject embraced in the request. The request is in accordance with the undisputed evidence and the conceded facts as disclosed by the plaintiff Woolsey’s testimony and should have been found. The fact was material in its relation to the basis for the estimate of the damages which he was entitled to recover. Having occupied the premises himself in his business as a dealer in flour, and for the storage and manipulation thereof, he was entitled to recover such damages as he had suffered by reason of the maintenance and operation of the defendant’s railwav in the use which he had made of the premises.
The ruling of the court upon the request to find was m effect that it was irrelevant. In other words, that it had no bearing upon the question of the measure of damages, thus indicating that the rule adopted was other than that of the use made of the premises by the plaintiffs.
But it is said that the attention of the court was not called to this rule. The finding, as we have shown, was material and necessary in order to determine the true measure of damages. Were it not for the request, we possibly might assume, in aid of the judgment, that the court had found these facts, but the request to so find was refused.
In the case of Meyer v. Amidon (45 N. Y. 169), it was held that where a fact necessary to sustain the conclusion of law does not appear in the findings of fact and the case shows that upon a request to find as to such fact there was a refusal to find otherwise than as already found, and the conclusion of law is based upon the facts found, this court will not presume or infer in aid of the judgment a finding of the fact.
*333But, again, the defendant requested the court to find:
“Nmsteenth. That there is no evidence from which the court can determine how much the value of the said building to the plaintiff, Theodoras B. Woolsey, for the purposes for which it has been used, has been diminished, if at all, by reason of the construction, maintenance and operation of the elevated railroad of the defendants in Front street.”
This finding was refused, and properly; because, we think, there was some evidence upon which the court might determine the value. But the request pointedly calls the attention of the court to the true rule of damage as being that of the diminished value of the building of the plaintiff, “ for the purposes for ivhich it has been used.” It consequently appears to me that the attention of the court was sufficiently called to the true rule of damages, and that the exception to the refusal to find the defendants’ seventeenth request was well taken.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur with Landón, J., except ITaight, J., dissenting.
Judgment modified as stated in opinion of Follett, Oh. J., and as modified affirmed.