
135 U.S. 432 (1890)
NEW YORK ELEVATED RAILROAD COMPANY
v.
FIFTH NATIONAL BANK.
No. 106.
Supreme Court of United States.
Argued November 13, 1889.
Decided May 5, 1890.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*437 Mr. Julien T. Davies and Mr. Edward S. Rapallo for plaintiff in error.
Mr. W.F. McRae for defendant in error.
*440 MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.
The law of the State of New York, as declared by the Court of Appeals, appears to be as follows: An elevated railroad erected in and over a street pursuant to the statutes of the State, and with due compensation to the owners of property taken for the purpose, is a lawful structure. The owners of lands abutting on a street in the city of New York have an easement of way, and of light and air, over it; and, through a bill in equity for an injunction, may recover of the elevated railroad company full compensation for the permanent injury to this easement; but, in an action at law, cannot, without the defendant's acquiescence, recover permanent damages, measured by the diminution in value of their property, but can recover such temporary damages only as they have sustained to the time of commencing the action. In re New York Elevated Railroad, 70 N.Y. 327; In re Gilbert Elevated Railway, *441 70 N.Y. 361; Story v. New York Elevated Railroad, 90 N.Y. 122; Lahr v. Metropolitan Elevated Railway, 104 N.Y. 268; Pond v. Metropolitan Elevated Railway, 112 N.Y. 186. This rule of damages at law has not prevailed in analogous cases decided in other jurisdictions, and collected in the briefs of counsel; and in the case last above cited the court observed that "it might be productive of less inconvenience on the whole, if an opposite rule could be adopted." 112 N.Y. 190.
But we are relieved from the necessity of laying down a general rule on the subject, because in this case it clearly appears that the defendant procured or acquiesced in the rulings under which the trial was conducted, and thereby waived the right to object to them. Lahr v. Metropolitan Elevated Railway, 104 N.Y. 268, 294; Drucker v. Manhattan Railway, 106 N.Y. 157; Hussner v. Brooklyn Railroad, 114 N.Y. 433; Shaw v. Stone, 1 Cush. 228, 243.
The complaint was framed in the double aspect of claiming damages for the injury accruing to the use and enjoyment of the plaintiff's property by the obstruction of light and air and the diminution of rents, as well as damages for the permanent injury to the market and rental value of the property.
The plaintiff began by introducing evidence, to the admission of which the defendant took no objection or exception, of the injury to the use and enjoyment of the property by obstructing the access of light and air, and by diminishing the rents, down to the time of trial.
When the plaintiff afterwards offered evidence of the value of the building, before and after the erection of the defendant's structure, the defendant objected to this evidence, and it was excluded by the court.
The defendant's counsel thereupon suggested that the plaintiff's damages should come down to the commencement of the action only; and the plaintiff's counsel replied that they claimed damages for the permanent injury. The court declined to adopt either of these views, and refused to allow damages to be recovered for the permanent injury, but ruled that damages might be recovered to the time of trial. Neither *442 party having excepted to this ruling at the time, both parties must be presumed to have assented to it.
In accordance with that ruling, the trial proceeded upon the theory that damages were not to be awarded for permanent injury, but were to be assessed down to the time of trial; and in accordance with that theory further evidence was introduced by both parties, without any objection or exception by either party to the admission of the evidence or to the rulings under which it came in.
The defendant having, by his objection sustained by the court, prevented the plaintiff from introducing evidence of permanent injury to the building, and having permitted the trial to proceed in accordance with the ruling of the court admitting evidence of injury to the time of the trial, without excepting either to that ruling or to the evidence admitted in accordance with it, could not afterwards be permitted to change front, and to insist either that the damages must be assessed for the permanent injury, or that the damages must be limited to the time of the commencement of the action.
The court therefore rightly declined to permit the defendant to introduce evidence (competent only upon the issue of injury to the permanent value of the property, which by the defendant's procurement had been excluded from the consideration of the jury) that the value of the property had been increased by the erection of the defendant's structure; and rightly refused the instruction, requested by the defendant after the charge, that the recovery could be only for the permanent injury to the plaintiff's property. For the same reason, the defendant's exception to so much of the charge as allowed damages to be recovered to the time of the trial cannot be sustained.
There can be no doubt that the court rightly declined to order a verdict for the defendant, or a verdict for the plaintiff with nominal damages; and that the instruction which allowed the jury to award a fair compensation for the discomforts and inconveniences in the occupation of the plaintiff's building, caused by the existence of the defendant's structure in front of it, independently of the running of trains thereon, was sufficiently *443 favorable to the defendant. Baltimore & Potomac Railroad v. Fifth Baptist Church, 108 U.S. 317; Buccleuch v. Metropolitan Board of Works, L.R. 5 H.L. 418.
As the damages recovered appear by the bill of exceptions, made part of the record, to have been assessed to the time of trial, the judgment in this case may be a bar to any subsequent action, at least for damages suffered before that time. Hussner v. Brooklyn Railroad, 114 N.Y. 433, 438; Warner v. Bacon, 8 Gray, 397, 402; Goslin v. Corry, 7 Man. & Gr. 342, 345; S.C. 8 Scott N.R. 21, 24. But that point is not now presented for adjudication.
Judgment affirmed.
MR. JUSTICE BREWER, not having been a member of the court when this case was argued, took no part in the decision.
