Seebach v. Metropolitan El. R. , 18 N.Y.S. 208 ( 1892 )

Per Curiam.

This is an action for an injunction against the defendants’

maintenance and operation of their elevated road in front of the premises of plaintiff. The referee refused'to find, at the request of defendant’s attorney, that the sum fixed, if any, to be paid as an alternative for avoiding the injunction, shall not include damages to be caused in the future by the running of trains, i. e., include the damages to be caused in the future by noise, dirt, cinders, steam, smoke, and odors incidental to the operation of the trains in the future. The learned referee was correct in his action. The running of trains in the future would be a taking of plaintiff’s easement. As to the damages to be caused in the future, the request was at least partly invalid. For, conceding that the effect of noise would not be a lessening of the easement, certain of the other particulars would be. “Smoke and gas, ashes and cinders, affect and impair the easement of air. The structure itself and the passage of cars lessen the easement of light, ” etc. Drucker Case, 106 N. Y. 157, 12 N. E. Rep. 568; American Bank-Note Co. v. New York El. Ry. Co., 29 N. E. Rep. 302, (Dec. 15, 1891.) The referee did not include the effect of noise in his estimation of the value of plaintiff’s easement. Judgment affirmed, with costs. All concur.