tertained the view that the case as decided was in conflict with, and intended as a limitation upon, the doctrine of the Lewis case.

The doctrine laid down in this last case was followed in the case of Muhlker v. N. Y. & H. R. Co., 173 N. Y. 549, 66 N. E. 558, revg. s. c. 60 App. Div. (N. Y.) 621, 69 N. Y. Supp. 910, in which Parker, J., said:

"Although at the time of the decision of the Lewis case we accepted as sound the proposition that, when defendant commenced to use the steel viaduct, it started a new trespass upon the rights of abutting owners for which it could properly be held liable, subsequent reflection persuaded the majority of the court that this was error."

The court held the statute of 1892 constitutional, and distinguished this case from the elevated railroad cases on the ground that the improvement under this Act was for the public benefit and not for the exclusive use of the railroad, which the legislature had a right to authorize, while in the elevated railroad cases the state merely granted the right to a corporation to make an additional use of the street.

This case, however, was reversed in the Supreme Court of the United States, in 197 U. S. 544, 25 Sup. Ct. R. (U. S.) 522, where it was decided that the Story and Lahr cases were decisive of the questions then presented and it was held:

"That the permission or command of the State can give no power to invade private rights, even for a public purpose, without payment of compensation."

The distinctions which the Court of Appeals had attempted to make between this class of cases and the elevated railroad cases were rejected. However, the court based its decision on the ground that when the plaintiff acquired his title to the abutting property, the Story and Lahr cases were the law of the land and assured him that his easements were protected and could not be taken without compensation, and, therefore, he was entitled to recover. The court did not feel called upon to discuss the power of courts to limit or modify their decisions, but stated that such power could not be exercised to take away rights which had been acquired by contract and had come under the protection of the Federal Constitution.

The case of Dolan v. N. Y. R. Co., 175 N. Y. 504, 67 N. E. 612, revg. s. c. 74 App. Div. (N. Y.) 434, 77 N. Y. Supp. 815, while refusing damages resulting from the operation of the structure, allowed damages for the construction and maintenance of stations directed to be built by the Act of 1892, the distinction being that in the former case the statute directed a great public improvement, while in the latter case the state merely required the railroad to provide suitable and proper facilities to enable patrons to enter and alight from their trains. Followed in McCarthy v. N. Y. & H. R. Co., 175 N. Y. 504, 67 N. E. 1085, revg. s. c.

74 App. Div. (N. Y.) 629, 77 N. Y. Supp. 1132; Pape v. N. Y. & H. R. Co., 175 N. Y. 367, 67 N. E. 1086, revg. s. c. 74 App. Div. (N. Y.) 175, 77 N. Y. Supp. 725; Ketcham v. N. Y. & H. R. Co., 177 N. Y. 247, 69 N. E. 533, revg. s. c. 76 App. Div. (N. Y.) 619, 79 N. Y. Supp. 1135.

In order to make provision for the damages caused by the erection of the structure, L. 1901, ch. 729, was passed which authorized payment by the State of claims for damages arising out of the improvement, so far as the acts and operations were performed by or under the direction of the Park Avenue Board.

This Act was construed in Sander v. State, 182 N. Y. 400, 75 N. E. 234, in which it was held that the State was liable only up to the time the railroad company began to run its trains. The court recognized, in this case, the reversal of the Muhlker case, and stated that both that case and the Fries case had ceased to be authority, and in the case of Foster v. N. Y. C. & H. R. R. Co., 118 App. Div. 143, 103 N. Y. Supp. 531, the court followed the Lewis case.

In the case of Sauer v. City of New York, 180 N. Y. 27, 72 N. E. 579, 70 L. R. A. 717; affd. 206 U. S. 536, 27 Sup. Ct. R. (U. S.) 686, it appeared that an elevated viaduct had been erected for street purposes, and it was held that while abutting owners have easements of light and air as against the erection of an elevated roadway by or for a private corporation for its exclusive purposes, they have no such easements as against the erection and maintenance of any structure which may be erected upon the street to subserve the public use.

Where a railroad has, as against an owner of property adjoining a highway, a merely prescriptive right in the street, it cannot change its tracks from the surface to an elevated structure without compensating such land owner for the additional interference with the easements of light, air and access.- Leffman v. L. I. R. Co., 120 App. Div. 528.

The measure of damage for interference with the easements of an abutting owner is the amount of difference between the actual market value of the property and what it would have been worth had there been no interference with the easements.- Bohm v. Metropolitan Elevated R. Co., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344.

In estimating the value of an easement of light, air or access, it is impossible to consider it as a piece of property separate from the land to which it is appurtenant, and the right to compensation is measured by the damages which the abutting property sustains in consequence of the loss of the easement, taking into consideration the advantages derived from the existence of the structure.- Newman v. Metropolitan El. R. Co., 118 N. Y. 618, 23 N. E. 901, 7 L. R. A. 289n.

The interference with the easements of light, air and access is a continuing wrong. A lapse of six years after the first interference, bars an action founded upon such act, but new causes of action, founded upon the continuing act, arise, which are enforcible at any time within six years

thereafter.

Galway v. Metropolitan El. R. Co., 128 N. Y. 132, 28 N. E. 479, 13 L. R. A. 788.

A taxpayer of a city has no standing to bring a suit to restrain the erection of an elevated railroad structure in a street where he does not claim to be the owner of property abutting on that street.— Gallagher v. Keating, 40 App. Div. (N. Y.) 81, 57 N. Y. Supp. 632, 1123.

Upon the erection of an elevated railroad in a public highway in front of leased property, there is a trespass upon the interest of the landlord in the street affecting his reversion, and a trespass upon the tenant's interest in the street which affects his right to the use and occupation of the premises, giving to each a separate and distinct cause of action against the trespasser. Burke v. Manhattan R. Co., 120 App. Div. (N. Y.) 684. On the question of title by prescription, the two latest cases are Hindley v. Manahattan R. Co., 185 N. Y. 335, 78 N. E. 276, revg. s. c. 103 App. Div. (N. Y.) 504, 93 N. Y. Supp. 53; and Scallon v. Manhattan R. Co., 185 N. Y. 359, 78 N. E. 284, revg. s. c. 112 App. Div. (N. Y.) 262, 98 N. Y. Supp. 272.

§ 54. Transfer of franchises or stocks; *[consent of commission required; holding companies].- No franchise nor any right to or under any franchise, to own or operate a railroad or street railroad shall be assigned, transferred or leased, nor shall any contract or agreement with reference to or affecting any such franchise or right be valid or of any force or effect whatsoever, unless the assignment, transfer, lease, contract or agreement shall have been approved by the proper commission. The permission and approval of the commission, to the exercise of a franchise under section fifty-three, or to the assignment, transfer or lease of a franchise under this section shall not be construed to revive or validate any lapsed or invalid franchise, or to enlarge or add to the powers and privileges contained in the grant of any franchise, or to waive any forfeiture.

No railroad corporation, or street railroad corporation, domestic or foreign, shall hereafter purchase or acquire, take or hold, any part of the capital stock of any railroad corporation or street railroad corporation or other common carrier organized or existing under or by virtue of the laws of this state, unless authorized so to do by the commission empowered by this act to give such consent; and save where stock shall be transferred or held for the purpose of collateral security only with the consent of the commission empowered by this act to give such consent, no stock corporation of any description, domestic or foreign, other than a railroad corporation *Words in brackets not a part of section heading as enacted.-Ed.

or street railroad corporation, shall purchase or acquire, take or hold, more than ten per centum of the total capital stock issued by any railroad corporation or street railroad corporation or other common carrier organized or existing under or by vitue* of the laws of this state. Nothing herein contained shall be construed to prevent the holding of stock heretofore lawfully acquired. Every contract, assignment, transfer or agreement for transfer of any stock by or through any person or corporation to any corporation, in violation of any provision of this act, shall be void and of no effect, and no such transfer or assignment shall be made upon the books of any such railroad corporation or street railroad corporation, or shall be recognized as effective for any purpose. The power conferred by this section to approve or disapprove a transaction relating to franchises, rights or stock of any railroad corporation or street railroad corporation, or other common carrier, shall be exercised by the commission which is authorized by this act to approve the issue of stock by such railroad corporation or street railroad corporation.

Provisions of the New York Railroad Law relative to the consolidation, lease, sale and reorganization of corporations,- see N. Y. R. R. L., §§ 70-84.

Provisions of New York Rapid Transit Act relative to the transfer of stock, and to increases or reductions in the capital stock of corporations, see N. Y. Rap. Tr. Act, §§ 19, 20, post, Appendix A.

Jurisdiction of Commissions to approve the issue of stocks, bonds, etc., by railroad corporations,- see post, § 55.

Approval by Commission of transfer of franchises by gas and electrical corporations.- see post, § 70.

General power of the state to regulate property devoted to public see ai.te, § 1, notes [1]-[22].

use,

--

Franchises as property,- see ante, § 1, note [8].

Effect of reservation of power to amend charters on power to regulate franchises,- see ante, § 1, note [12].

Exemptions from public control,- see ante, § 1, notes [16]-[21]. General rules of statutory construction,- see ante, § 1, notes [23][40].

Effect of receivership on power to regulate,- see ante, § 2, note [15]. Effect of vacancies on power of commission,- see ante, § 4, note [5]. Validity of commission plan of regulation,- see ante, § 4, note [14]. Distinction between franchises to be a corporation and franchises to operate a railroad,- see post, § 55, note [2].

So in original.

[1] What constitutes "control.”

A railroad company contracted to haul the cars of the Pullman Co. on its own lines and "on all roads which it now controls or may hereafter control, by ownership, lease, or otherwise." Said railroad company afterward acquired and became the owner of a majority of the stock of another company.- Held, that in view of the fact that the latter company still maintained its separate corporate organization and operated its own road, it was not controlled by the former within the meaning of the contract.- Pullman Car Co. v. Mo. Pac. R. Co., 115 U. S. 587, 6 Sup. Ct. R. (U. S.) 194.

Ownership of a majority of the stock of one street railroad by another does not constitute "control" thereof, under N. Y. R. R. L., § 101.- Senior v. N. Y. City R. Co., 111 App. Div. 39, 97 N. Y. Supp, 645; affd 187 N. Y. 559, 80 N. E. 1120.

[2] "Consolidation” and “merger."

Distinction between consolidation and merger of railroad companies. - Lee v. Atlantic C. L. R. Co., 150 Fed. 775.

[3] Public control and validity of statutes.

Whether corporations shall remain separate or be permitted to consolidate is a matter of state regulation and provision.- Mobile, J. & K. C. R. R. Co. v. Mississippi, 210 U. S. 187, 28 Sup. Ct. R. (U. S.) 650.

Section 201 of the Kentucky constitution, forbidding consolidation of stock, franchises, or property, of public utility corporations, the pooling of earnings, or the purchasing, leasing or other control of a competing line, upheld as within the police power of the state.- Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. R. (U. S.) 714, affg. s. c. 97 Ky. 675, 17 Ky. L. R. 427, 31 S. W. 476.

A legislative declaration that upon publication of notice a negotiable security shall no longer be transferable, is not due process of law.People v. Otis, 90 N. Y. 48.

In the absence of congressional action on the subject, the states may regulate the consolidation of interstate railway corporations.- Boardman v. L. S. & M. S. R. Co., 84 N. Y. 157.

An act authorizing railroad corporations of this state to subscribe to the capital stock of the Great Western Railroad of Canada is valid. White v. Syracuse & U. R. Co., 14 Barb. (N. Y.) 559.

[4] Power to lease or consolidate and validity of leases or consolidations.

Power of railroads to acquire and dispose of grants, franchises, privileges and property,-see N. Y. R. R. L., § 18, subd. 3.