The plaintiff’s lot is bounded on the north by the south line of One Hundred and Fourth street, and on the east by the west line of Fourth avenue, she having no title or estate in the bed or soil of either street, and she claims no private rights or interests in either street, except such as are incidental to lots abutting on streets. The title to these streets is in the city of New York, in trust. By the deed of January IS, 1832, Mrs. McGown, the former owner of the fee of the plaintiff’s lot, conveyed to the New York & Harlem Railroad Company a strip of land 24 feet wide, in the center of the avenue, and extending from Ninety-Seventh street to One Hundred and Sixth street. By the terms of this deed, the grantee was authorized to construct a railroad on the land conveyed, with the right of extending the embankment on which the rails were to be laid to the exterior lines of the avenue. At the date of this conveyance, the avenue was 100 feet wide; and on each side of the land conveyed, and within the avenue, there was a strip of land 38 feet wide, the title to which was not conveyed, but the right to cover these strips with an embankment was expressly granted. The embankment as now constructed is 56 feet wide, covering the land conveyed by Mrs. McGown, and a strip 16 feet wide on each side of the strip granted by her, which is 22 feet less on each side of the strip conveyed than the defendants by the grant were authorized to use. By the conveyance the grantee was authorized to construct a railroad on the subject of the grant, and, if necessary, to occupy the whole width of the avenue adjacent to the grantor’s remaining land. The grant of the right to construct a railroad carried with it the right to operate it when constructed, and the defendants could not have been held liable to Mrs. McGown for incidental damages caused to her remaining property by operating the road, without showing that the road was improperly constructed or negligently operated. The plaintiff stands in- the shoes of her predecessor in title, and has no greater rights than she had. There is no assertion that the road was improperly constructed. On the contrary, the proof is that it was built in accordance with the statute of 1872 and the requirements of the city authorities; and it is *9not alleged or proved that the defendants have been negligent in the operation of the road.
But the plaintiff insists that when the city, in 1853, increased the width of the avenue from 100 feet to 140 feet, and acquired the title to all lands within its exterior lines, including the strip granted to the railroad, Mrs. McGown’s grant was annulled, and the successors to her title were from that date vested with all the rights in the avenue that they would have had in case no such conveyance had been made by her. In support of this contention, it is urged that, this avenue having been laid out pursuant to chapter 86 of the Revised Laws'of 1813, section 176 of which provides (2 Rev. Laws 1813, p. 414) that the city shall become seised in fee of lands taken for streets, subject to the trust that lands so acquired shall be kept open and used as streets, the title of the railroad to the strip of land in this street was not only acquired, but from that time its right to use the street for railroad purposes became subject to the right of the abutting owners to recover damages for injuries to their street easements, occasioned by the subsequent use of the street by the railroad. In support of this position it is asserted that the city could not acquire the fee of the street, subject to the right of the railroad to use a portion of it for its purposes. Incumbrances and easements burden many estates, the title to which is held in fee, and such burdens are not necessarily inconsistent with a title in fee. When the city acquired the title to this avenue, the New York & Harlem Railroad Company was, and for more than 20 years had been, occupying the central part of the street, under legislative and municipal authority, for railroad purposes, and had erected therein, pursuant to such authority, an expensive and valuable structure; and it cannot be assumed, in the absence of proof, that, for an award of one dollar, the city intended to acquire, or the corporation to surrender, its title to the structure, or that the railroad intended to surrender its long-enjoyed right to operate its road in the avenue. The practical construction by the city and by the railroad of the effect of the acquisition of the title to this street is opposed to such a contention. The city never claimed to be the owner of the structure, and the corporation was not compelled to remove it, nor was its right to use it abridged, and it has been held that the structure is not the property of the city but of the railroad. People v. Commissioners of Taxes, 101 N. Y. 322, 4 N. E. 127. By chapter 702, Laws 1872, the title of the railroad to its structure in the avenue, and the right to continue to operate its road therein, are expressly recognized. We are referred to Hill v. Railroad Co., 5 Denio, 206, affirmed 7 N. Y. 152, as an authority for the position that, when land is acquired for public use by condemnation, an easement therein cannot be reserved in favor of the person from whom acquired. This case is not an authority for this position, as it simply holds that an easement in lieu of or in diminution of the owner’s damages cannot be reserved without the consent of the owner of the property taken. With the consent of the owner an easement may be reserved and considered upon the question of damages. Mills, Em. Dom. 112, and cases cited.
*10In the case at bar it is apparent that the railroad assented to an award of one dollar as compensation for its land taken, in consideration that its easement in the street was not to be disturbed, but was to be continued. We think the judgment is right, and that it should be affirmed, with costs. All concur.