Page:Harvard Law Review Volume 4.djvu/94

fS HARVARD LAW REVIEW, The structure here and the intended use cannot be separated and dissected, and it must be regarded in its entirety in considering the effect which it produces upon the property of the abutter. However the damages may be inflicted, provided it be effected by an unlawful use of the street, it constitutes a trespass rendering the wrong-doer liable for the consequences of his acts. The Drucker case ^ illustrated the application of this rule : — Smoke and gases, ashes and cinders affect and impair the easement of air. The structure itself and the passage of cars lessen the easement of light. The drippings of oil and water, and possibly the frequent columns, interfere with convenience of access. These are elements of damage even though the necessary concomitants of the construction and operation of the road and not the product of negligence, for they abridge the land-owners' easements and to that extent, at least, are sub- jects for redress in an action for damages. Whether noise from the operation of the road is a proper element of damage is still a question not passed upon definitely by the Court of Appeals. In Taylor v. Met. ^ and in Kane v. Met- ropolitan ^ noise has been held a proper element of damage. The argument against recovery for noise is that an abutting ovvrner has no easement of quiet in the street. The argument in favor of allowing it has been the language in the Lahr opinion and the general argument that such a noise is not an ordinary street use. Similarly, v^^hether ** loss of privacy " is an element of damage is still an open question. It is argued on the one side that a property owner certainly has no easement of seclusion on the street, or, as one eminent counsel for the road expressed it, persons might walk on tall stilts past one's premises, yet they would not be held liable ; on the other side it is argued that any use of a street which ex- poses the occupants of property to unusual gaze and inspection from the public is not an ordinary street use, and hence is a use to which the street cannot be subjected without compensation. We pass now to the question as to whom the past damages belong in the case of a leased estate. As we have seen, at law a property owner can recover the damages for the past trespasses committed within six years prior to the commencement of the ■»^io6N. Y. 157 2 55 N. Y. Superior Ct. 555. ' N. Y. Weekly Supplement, 526.