82 HARVARD LAW REVIEW. the whole matter would be merely guess-work, and the plaintiff left without any means of proving his damage. In the case of Newman v. Metropolitan Elevated Railway Co., decided by the second division of the Court of Appeals, March 4, 1890,^ it was ruled that the defendants were entitled to offset against the damage any special benefit conferred upon the prop- erty in question by the maintenance of the road, the location of its stations, etc. A reference to the General Railroad Act of the State 2 and to the " Rapid Transit Act " ^ will show that they con- tain this provision, that Commissioners of Appraisal in fixing compensation shall not "make any allowance or deduction on account of any real or supposed benefit which the party in interest may derive from the construction of the proposed railway.'* It is difficult to see how the decision in the Newman case is good law. The court rest their decision on the theory that it is for consequential damages that a recovery is permitted in most of these cases, and that it is only where property is actually taken that no offset of benefit is allowed. But the very idea at the bottom of all the elevated decisions in that court was that prop- erty had been taken. It is difficult to perceive why the second division have hot overruled the first, or else shifted the ground of liability. The Newman opinion also says that general benefits due to public improvements and the construction of railroads are not such as the companies are entitled to offset, and that the property Owner is entitled to them. The true rule of damages is certainly the difference between the value of the property without the road taking these easements and its value with them taken. If the rents have depreciated so much per year, and the court is of the conclusion that the decrease is attributable to the trespasses of the railroads, we have one method of reaching the fee damage by a proper capitalization. Suppose they have increased slightly, does it follow that there still may be no depreciation occasioned by the road t Perhaps the two parallel streets on the east and west have increased 25% more. May not the two increases be a direct benefit occasioned by the road itself, and can a property owner complain because his property has not 1 Probably 118 N. Y. 2 Chapter 140 of the Laws of 1850. ' Chapter 606 of the Laws of 1875.
