Page:Harvard Law Review Volume 4.djvu/93

77 ELEVATED ROAD LITIGATION. 77 suffered to the date of the trial accruing within six years prior to the commencement of the action. But an optional clause is invariably inserted in the decree of injunction somewhat in this form : — That upon tender to plaintiff within thirty days from the date of this judgment of the sum of ^10,000 for the easements in South Fifth Avenue, appurtenant to the premises described in the complaint, plain- tiff deliver or cause to be delivered to the defendant a conveyance and release from himself conveying and releasing to the defendant the right to use the street for the defendant's present structure and the operation of defendant's railroad as at present operated and maintained, and in the event that said money is so tendered to the plaintiff no injunction shall issue herein. In this neat method a court of equity has been able to dispose of the whole litigation at once, and as matter of fact to award full damage. But this alternative clause has always been regarded as a favor to the defendants to enable them to avoid the injunc- tion. Should they see fit to submit to the injunction they could do so. ^ Hence, when property is conveyed absolutely, the purchaser taking all the right attaching to property is not to be prevented from enforcing his rights simply because he paid no more than the property was worth with the road there. The seller having parted with the fee, of course cannot enjoin trespasses on property he has ceased to own, and as the Pond case shuts him out from maintain- ing an action at law to recover the permanent damage, he can only recover for the trespasses during his ownership accruing within six years prior to the commencement of his law action. Although the law is not quite so definitely settled in the first case where he has reserved all cause of action the same rule doubtless will prevail. One cannot reserve a cause of action to accrue in the future. And a reservation of the easements would be in derogation of his deed, as they are of no value detached from the land to which they are incident. So that practically such a reservation is of no avail to benefit the seller. We pass now to the question of damages. In the Lahr case^ the court said : — 1 Eno V. Metropolitan, 56 Superior, 313.
 * -« 104 N. Y. 268.