“ It is clear that, under the law of New York, an owner of land abutting on the street has easements of access, light and air as against the erection of an elevated roadway by or for a private corporation for its own exclusive purposes, but that he has no such easements as against the public use of the streets, or any structures which may be erected upon the street to subserve and promote that pubic use. ”

“ In earlier and simpler times the surface of the streets was enough to accommodate all travel. But under the more complex conditions of modern urban life, with its high and populous buildings, and its rapid interurban transportation, the requirements of public travel are largely increased. Sometimes the increased demands may be met by subways and sometimes by viaducts. The construction of either solely for public travel may well be held by a state court to be a reasonable adaptation of the streets to the uses for which they were primarily designed. ”

“ The title of the street up the bluff had been acquired and recorded, but it had never been opened and worked as a street. The bluff was the natural contour of the surface, and, for the purpose of facilitating easy and safe travel of the public from St. Nicholas place to other portions of the city, the legislature authorized the construction of the viaduct in question. It is devoted to ordinary traffic by teams, vehicles, and pedestrians. It is prohibited for railroad purposes. It is one of the uses to which public highways are primarily opened and devoted. ”

“ In the city of New York the city owns the fee of the public streets (whether laid out under the civil law of the Dutch r egime, or as the result of conveyances between the city and the owners of land, or by condemnation proceedings under the statutory law of the state) upon a trust that they shall forever be kept open as public streets, which is regarded as a covenant running with the abutting land. ”

“ New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540, where a plaintiff in like situation with Muhlker had obtained damages for exactly the same structure. The theory upon which the Muhlker Case stands and upon which it was put in the opinion of the court, is that, in deciding against Muhlker, the state court had overruled its own decisions, and changed the interpretation of the contract upon which he had the right to rely. But the fundamental fact upon which the decision in the Muhlker Case rested, present there, is absent in the case at bar. ”

“ It may be said there was a qualification made in those cases and recognized in the Muhlker Case, that it was not alone the elevation of a structure above the surface, but the elevation of one 'useless for general street purposes.' I may accept the limitation. The structure in the case at bar comes within the characterization. It is useless for general street purposes. It obstructs the frontage of abutting lots and affords no access to or from them in any proper sense. There is a descent by stairs from it to the street below, but for pedestrians only-necessarily not for vehicles. ”

“ As such owners they are subject to the right of the public to grade and improve the streets, and they are presumed to have been compensated for any future improvement or change in the surface or grade rendered necessary for the convenience of public travel, especially in cities where the growth of population increases the use of the highways. ”

“ Jacksonville, 28 Fla. 558, 14 L.R.A. 370, 29 Am. St. Rep. 278, 10 So. 457; Willis v. Winona City, 59 Minn. 27, 26 L.R.A. 142, 60 N. W. 814; Colclough v. Milwaukee, 92 Wis. 182, 65 N. W. 1039; Walish v. Milwaukee, 95 Wis. 16, 69 N. W. 818 ”