Page:Harvard Law Review Volume 4.djvu/97

ELEVATED ROAD LITIGATION, 8i trial, that the roads being trespasses could not invoke the rule of damages they might have had the benefit of had they acquired the property when they built their road. If this Kenkele case be affirmed at the Court of Appeals, it must result in compelling the railroads to pay an increased compensation for all the lots recently built on along their hne in the upper part of Manhattan island. In the Kenkele case the court say that the sole question is what enhanced value these easements would give to the property to-day, for apart from the property to which they attach they are worth- less. In Tallman v. Metropolitan, decided by the Court of Appeals, April 15, 1890, it was held that a property owner has the right to make any reasonable use of his land, when not acting "wantonly," and can recover the damage done to his land in the use to which it is put y but that he cannot recover past damages to vacant lots, assessed on the theory that but for the road having come there he would have built upon them. We have considered for what kind of damages a recovery may be had, who is entitled to the damages, and of what date they are to be assessed. There remains the single question, how to prove them. The building of the elevated roads in New York City shifted somewhat real-estate values. Add to the uncertainty in our problem the natural increase in values in some portions of the city from extraneous causes, and we find it a complicated problem to attain justice to all parties. Two late decisions of the Court of Appeals have introduced another disturbing feature. In McGean v. Manhattan Railway Company ^ there is a dictum that testimony as to what the property would be worth to-day without the elevated road is incompetent if properly objected to, although in that particular case the judgment was not reversed, because it was held that there was abundant competent testimony to sustain the verdict of the jury. And yet that question was the very one the court or jury had to decide. Where property has had a rental value for years, it may be possible to get at the per- manent damage to the fee without such testimony ; but how are we to get any testimony that is not open to this objection when property has been improved since the road came } As the Kenkele opinion {supra) says, unless such testimony is competent 1 27 N. Y. State Reporter, 337.