
    Nicholas Hoffman, Resp’t, v. The Manhattan Elevated Railway Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Railroad—Elevated—Damages—Injunction.
    The simple invasion and appropriation of a property owner’s easements in the street, without depreciation of the property to which they are appurtenant, is a mere technical wrong, entitling only to nominal damages, and is no ground for an injunction.
    
      2. Same.
    In an action for an injunction and damages, the court found damage to a specified amount, but also found that the selling value of plaintiff’s land was greater at the time of the trial than at any time preceding the construction of the road. Held, that in the absence of a finding, or of evidence to warrant a finding that a greater increase in value was prevented by the railroad, no damage by reason of the railroad was shown.
    Appeal from judgment in equity, awarding an injunction against the maintenance and operation of defendants’ elevated railroad in the avenue fronting plaintiff’s premises, and damages for past injury to said premises.
    The trial court allowed plaintiff $2,000 for fee damages and $1,318.17 for rental damages. Plaintiff’s only property in the street consists in the easements of an abutting owner. Defendants’ road went into operation in March, 1880. Date of trial, February 13th-16th, 1891.
    
      L. C. Dessar, for resp’t; J. T. Davies and R. L. Maynard, for app’lts.
   Pryor, J.

The solitary ground upon which appellants rely for reversal of the judgment is, that “ the evidence is not sufficient to prove any damage to the plaintiff’s property or to entitle him to an injunction.” If this contention be correct the judgment is untenable.

When a plaintiff establishes a title to equitable relief the court acquires jurisdiction to dispose of the entire controversy and to do complete justice between the parties. Lynch v. M. E. R. R. Co., 129 N. Y., 274; 41 St. Rep., 542. But, when the action proceeds exclusively upon a claim to equitable relief, and on the trial no ground for such relief is shown, judgment for the defendant is the inevitable legal conclusion. McGean v. M. E. R. Co., 133 N. Y., 9,13; 44 St. Rep., 75 ; Arnold v. Angell, 62 N. Y., 508; Brush v. Manhattan R. Co., 13 Supp., 908, affirmed at general term, 44 St. Rep., 111. “ The owner’s land must have received some injury, caused by the taking of the easements and the erection or operation of the road, in order to prevent a judgment in favor of the plaintiff.” Becker v. M. E. R. Co., 131 N. Y., 509, 511; 43 St. Rep., 726.

Here the action is purely in equity for injunctive relief, of which the right to past damage is only an accessory. Shepard v. Manhattan R. Co., 117 N. Y., 441, 448 ; 27 St. Rep., 705; 131 N. Y., 215; 43 St. Rep., 117; Lynch v. M. E. R. R. Co., 129 N. Y., 274 ; 41 St. Rep., 541.

The question then is, whether the plaintiff has vindicated his title to equitable relief by establishing a ground for an injunction against the maintenance and operatipn of the defendants’ railroad.

The simple invasion and appropriation of plaintiff’s easements in the street, without depreciation of the property to which they are appurtenant, is a mere technical wrong, entitling only to nominal damages. Newman v. Metropolitan R. Co., 118 N. Y., 618; 30 St. Rep., 36; Bohm v. Met. E. R. Co., 129 N. Y., 576; 42 St. Rep., 247. But, a mere technical injury, not of substantial detriment to the plaintiff, is no ground for an injunction that would afflict the defendant and the public with irreparable loss and immeasurable inconvenience. Gray v. M. R. Co., 128 N. Y., 499; 40 St. Rep., 478 ; Bohm v. M. E. R. Co., 129 N. Y., 576; 42 St. Rep., 247; Brush v. Manhattan, supra; Purdy v. Manhattan, 36 St. Rep., 43.

Does the record sustain appellants’ position that the evidence fails to show any damage to plaintiff’s property ?

Plaintiff’s easements in the street being in themselves only of nominal value, whether from the appropriation of them by the defendants he has sustained an appreciable injury depends upon the effect of such appropriation on the value of his remaining property. If there be no evidence which will fairly support an inference that the railroad has either depreciated that property, or has prevented or diminished an increase in its value, then it was error in law to find damage to the property. Becker v. M. E. R. Co., 131 N Y., 509, 511; 43 St. Rep., 726; Bohm v. M. E. R. Co., 129 N. Y., 576; 42 St. Rep., 247.

The learned trial judge found “ that the value of plaintiff’s interests and property in the aforesaid premises has been lessened in the sum of $2,000 by the acts of the defendants; ” and that consequently “ the value of the property and easements taken and appropriated by the defendants is $2,000.” But the learned judge also found that “ the selling value of the plaintiff’s land was greater at the time of the trial than at any time preceding the construction of the defendants’ road.” There' being, since the construction of the railroad, no decrease, but instead a positive increase in the 'value of plaintiff’s property, in the absence of a finding, or of evidence to warrant a finding, that a greater increase in the value of the property was prevented by the railroad, it results that the property has sustained no damage by reason of the railroad. Bohm's and Beckers cases, supra; Mattlage v. M. E. R., herewith decided, ante, 683.

Furthermore, since plaintiff gave no evidence of the present or past fee value of his property, no basis was afforded for an interference as to the effect of the railroad upon the value of the property. He did give evidence as to rental values; but without proof, of which there was none, of-a ratio between the fee and rental value, there was still no basis for an estimate of the effect of the railroad on the value of plaintiff’s property. Though unnecessary to exhibit the insufficiency of plaintiff’s case, we may add that defendants’ proof demonstrates a very material advancement in the value of the property since the construction of the railroad, and that upon all the evidence we are absolutely convinced of the fact.

The rule propounded in Starck v. M. E. R. Co., 131 N. Y., 514; 43 St. Rep., 730, is inapplicable to the facts of this case.

The conclusion being that the record exhibits no evidence to authorize injunctive relief against the appellants, it follows that the judgment must be reversed, and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.  