8o HARVARD LAW REVIEW. Court in a second Mortimer case ^ have allowed a recovery of past damages by the landlord on the ingenious theory that the tenant is not in possession of these easements, because the landlord only leased to him what he himself was in possession of. A truer ground, if it could be reached without violating^established princi- ples, would be to award the damages to the landlord, because he, not the tenant, suffered them. We come now to the question, of what date shall the damage be assessed, — a very important inquiry in view of the policy pursued by the management of the roads in New York City. If lots were vacant in 1878, when the elevated roads were put in operation, but now support costly structures, it is obvious the damage to-day may be much greater than it was in 1878. Of which date is it to be assessed } Can a person deliberately erect a building on a vacant lot, with an elevated road running by the lot, and then compel the court to include in the estimate of damages the injury to the build- ing as well as to the lot } In many cases this difficulty is a more apparent than real one, for the real damage is the injury to the use of the lot, which perhaps would only be evidenced by the in- jury to the lot with a building upon it. In other words, the estimate of damages would be the same in either event. Still, there might be and are some cases where, as a vacant lot, the land was worth, say, ^50,000 before the road, and would be worth ^40,000 as a vacant lot to-day. Assuming there would have been no change in selling value but for the railroad, the damage to a vacant lot would be ;^ 10,000. We now take the same lot and put a building upon it ; to-day it is worth ;^ 75, 000. We prove that an identical building, on a parallel street, where lots were just as valuable as in the street in question before the road was built, is now selling for 1^95,000 ; that our building, were no road there, would presumably be worth $95,000 also. Is not the damage to our lot and building $20,000 now } In other words, can a property owner improve his land and then charge the trespasser with it ? The case of Campbell v. Seaman ^ was the chief authority relied on by the property owner's counsel in the case of Kenkele v. Manhattan Railway Company.^ The Kenkele case laid down the law to be that the damages must be assessed as of the time of the 1 29 N. Y. St. R. 262. 2 ^T, N. Y. 568. 8 29 N. Y. State Reporter, 95. i
