
    William A. Wheelock, Resp’t, v. Michael Noonan, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Trespass—What constitutes—When equity action may be maintained.
    The defendant who was a total stranger to the plaintiff, obtained from the latter a license to place upon his unoccupied lots in the upper part of the city of New York, a few rocks for a short time. The defendant assured plaintiff that he would remove them in the spring. During the winter, and. in the absence and without the knowledge of plaintiff, the defendant covered six of the lots of plaintiff with huge quantities of rock, piled to the height of fourteen feet. In the spring the plaintiff discovering the abuse of his permission, ordered defendant to remove the rocks to some other locality. Held, that the original permission given, did not justify what was done. That after the withdrawal of the permission in the spring, and the demand for the removal of the rock, the defendant was a trespasser, and the trespass was a continuing one which entitled plaintiff to equitable relief.
    2. Same—License—How one must justify under.
    One who would justify under a license or permission, must bring his acts within the terms of the license. He exceeds them at his peril. There is no equity in allowing him to strain them beyond their fair and reasonable interpretation.
    3. Same—The continuance of an occupation begun under a license after its revocation becomes a trespass—License revocable.
    Drom the moment that the removal of the stone was demanded its presence upon plaintiffs lands became a continuing trespass. Such paroi license founded upon no consideration is revocable at pleasure, even though the licensee may have expended money on the faith of it.
    4. Same—Action at law—What damages recoverable.
    In an action at law only the damages to its date could be recovered, and for the subsequent continuance of the trespass, new actions following on in succession would have to be maintained.
    5. Same—Court of equity will interfere where trespass is a continuing TRESPASS.
    While ordinarily courts of equity will not wield their power merely to redress a trespass, yet they will interfere under peculiar circumstances, as-where the trespass is a continuing one and a multiplicity of suits at law are involved in the legal remedy.
    6. Same—When court of equity will act.
    It is a general rule that a "court of equity will act in such cases only-after the plaintiff's right has been established at law, but that rule has its exceptions and is a rule of discretion more than of jurisdiction.
    7. Same—Manner in which trespass began does not effect remedy.
    Whether the trespass was such from the beginning, or became one after a revocation of the license does not effect the adequacy of the legal remedy.
    8. Same—Owner of land not bound to remove the obstruction.
    The plaintiff was not bound to remove the stone and then sue the defendant for the expense incurred.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgnient in favor of plaintiff entered at special term.
    
      L. Lafiin Kellogg, for app’lt; George A. Strong, for resp’t.
    
      
      Affirming 53 N. Y. Supr, Ct., 286.
    
   Finch, J.

The findings of the trial court establish that the defendant, who was a total stranger to the plaintiff, obtained from the latter a license to place upon his. unoccupied lots in the upper part of the city of New York -a few rocks for a short time, the indefiniteness of the period having been rendered definite by the defendant’s assurance that he would remove them in the spring. Nothing was paid or asked for this permission, and it was not a contract in any just sense of the term, but merely a. license which, by its terms, expired in the next spring. During the winter, and in the absence and without the knowledge of plaintiff, the defendant covered six of the lots of plaintiff with huge quantities of rock,” some of them ten or fifteen feet long, and piled to the height of fourteen to eighteen feet. This conduct was a clear abuse of the license and in excess of its terms, and so much so that if permission had been sought upon a truthful statement of the intention it would undoubtedly have been refused. In the spring, the plaintiff discovering the abuse of his permission, complained bitterly of defendant’s conduct, and ordered him to remove the rocks to some other locality. The defendant promised to do so, but did not, and in the face of repeated demands has neglected and omitted to reniove the rocks from the land.

The court found, as matter of law, from these facts that the original permission given did not justify what was done, either as it restricted the quantity of rock or the time allowed; that after the withdrawal of the permission in the spring and the demand for the removal of the rock, the defendant was a trespasser and the trespass was a continuing one, which entitled plaintiff to equitable relief, and awarded judgment requiring defendant to remove the rocks before March 15, 1886, unless, for good cause shown, the time for such removal should be extended by the court.

The sole question upon this appeal is whether the relief granted was within the power of the court, and the contention of the defendant is mainly based upon the proposition that the equitable relief was improper since there was an adequate remedy at law.

The plaintiff objects that no such defense was pleaded. If it arises upon the facts stated in the complaint, it can scarcely be said to be new matter required to be stated in the answer, and I doubt whether, under the present system of pleading, the technical objection is good. ' It is better, therefore, to consider the defense which is interposed.

One who would justify under a license or permission must bring his acts within the terms of the license. He exceeds them at his peril. There is no equity in allowing him to strain them beyond their fair and reasonable interpretation. The finding shows permission asked for “a few stone,” described as “a portion” of what defendant was getting from the boulevard. The plaintiff was justified in inferring that for the bulk of his stone the defendant had a place of deposit and only wanted additional room for a small excess, for a few stone. -Under this permission the defendant was not justified in covering six lots with heavy boulders to a height of fourteen to eighteen feet. The thing done was gravely and substantially in excess of the thing granted, and the license averred does not cover or excuse the act. Beyond that the permission extended only to the spring of 1880 and expired at that date. The immediate removal of the stone was then demanded, and from that moment its presence upon plaintiff’s lands became a trespass, for which there was no longer a license or permission. Such paroi license, founded upon no consideration is revocable at pleasure, even though the licensee may have expended money on the faith of it. Murdock v. Prospect Park and Coney Island Railroad Company, 73 N. Y., 579. This was a continuing trespass. So long as. it lasted it encumbered the lots, prevented their use and occupation by the owner and interfered with the possibility of a sale.

It is now said that the remedy was at law, that the owner could have removed the stone and then recovered of the defendant for the expense incurred. But to what locality could the owner remove them ? He could not put them in the street; the defendant presumably had no vacant lands of his own on which to throw the burden; and it would follow that the owner would be obliged to hire some vacant lot or place of deposit, become responsible for the rent, and advance the cost of men and machinery to effect the removal. If any adjudication can be found throwing such burden upon the owner, compelling him to do in advance for the trespasser what the latter is bound to do, I should very much doubt its authority. On the contrary the law is the other way. Beach v. Crain, 2 N. Y., 97. And all the cases which give to the injured party successive actions for the continuance of the wrong are inconsistent with the idea that the injured party must once for all remove it. Such is neither an adequate remedy nor one which the plaintiff was bound to adopt.

But it is further said that he could sue at law for the trespass. That is undoubtedly true. The case of Uline v. N. Y. C. and H. R. R. R. Co. (101 N. Y., 98), demonstrates upon abundant authority that in such action only the damages to its date could be recovered, and for the subsequent ■continuance of the trespass, new actions following on in succession would have to be maintained. But in a case like the present would that be an adequate remedy? In each action the damages could not easily be anything more than the fair rental value of the lot. It is difficult to see what other ■damages could be. allowed, not because they would not exist, but because they would be quite uncertain in amount and possibly somewhat speculative in their character. The defendant, therefore, might pay those damages and continue his occupation, and if there were no other adequate remedy defiantly continue such occupation, and in spite of his wrong, make of himself, in effect, a tenant who could not be dispossessed. The wrong in every such case is a continued unlawful occupation, and any remedy which does not or may not end it, is not adequate to redress the injury, or restore the injured party to- his rights. On the other hand, such remedy in a case like the present, might result to the wrong-doer in something nearly akin to persecution. He is hable to be sued every day de die in diem, for the renewed damages following from the continuance of the trespass, and while ordinarily there is no sympathy to be wasted on a trespasser, yet such multiplicity of suits should be avoided and especially under circumstances like those before us. The rocks could not be immediately removed. The court have observed that peculiarity of the case, and shaped their judgment to give time. It may take a long time and during the whole of it the defendant would be liable to daily actions.

For reasons of this character it has very often been held that while ordinarily courts will not wield their power merely to redress a trespass, yet they will interfere under and have often done where trespass was a continuing one, and a multiplicity of suits at law was involved in the legal remedy. The doctrine was recognized and the authorites cited in the Murdoch Case (supra), and the rule deemed perfectly settled.

That case, and those referred to, it is true, were cases of intrusion where no consent had been given for the entry of the intruder, but whether the trespass was such from the beginning or became one after a revocation of the license, can make no difference as it respects the adequacy of the legal remedy. That is the same in either event. Two cases of the former character were cited in the Uline Case. Bowyer v. Cook, 4 M., G. & S., 236; Holmes v. Wilson, 10 A. & E., 503. In one, stumps and stakes had been left on plaintiff’s land and in the other buttresses to support a road; in each, an action of trespass had been brought and damages recovered and paid; and in each, after a new notice to remove the obstruction, a further action of trespass was brought and sustained. So that as I have said the legal remedy is identical however the trespass originated.

It is a general rule that a court of equity will act in such cases only after the plaintiff’s right has been established at law, but that rule has its exceptions. T. and B. R. R. Co. v. B. H. T. R. R. Co., 86 N. Y., 128. Where the facts are in doubt and the right not clear, such undoubtedly would be a just basis of decision, though the modern system of trying equity cases makes the rule less important. Where, as in an intrusion by railroad companies whose occupation threatens to be continuous, the injury partakes of that character, an action at law to establish the right has not been required. Indeed I am inclined to deem it more a rule of discretion than of jurisdiction.

In Avery v. N. Y. C. and H. R. R. R. Co. (106 N. Y., 142; 8 N. Y. State Rep., 612), to which we have been referred since the argument, we were disposed to sustain a mandatory injunction requiring defendant to remove so much of a fence as obstructed plaintiff’s right of way, although the obstruction was not a nuisance but an invasion of a private right. In that case the equitable remedy was not challenged by either counsel or the court, and evidently stood upon the grounds here invoked; those of a continuing trespassvthe remedy for which at law would be inadequate, and involve repeated actions by the injured party for damages daily occurring.

These views of the case enable us to support the judgment rendered. It should be affirmed, with costs.

All concur except Rtoeb, Oh. J., not voting.  