
    Henry Herrlich, Kate Herrlich and William Lauter, Plaintiffs, v. New York Central and Hudson River Railroad Company, Defendant.
    (Supreme Court, New York Special Term,
    December, 1910.)
    Injunction—Who and what may be enjoined—Acts of private corporations or officers — Railroad companies — In general — Temporary inconvenience from construction.
    Railroads and railroad companies — Interest in lands and right of way — Mode of acquiring land and right of way — By prescription.
    Where a railroad and its yard have been operated continuously more than twenty years any loss suffered by a neighboring landowner is damnum absque injuria, and the increase of the burden upon neighboring property caused by increase in traffic does not change the rule.
    Every one has the right to make a reasonable use of his property for the accomplishment of the lawful purposes of his ownership, and such right will not be restrained unless it clearly appears that the exercise thereof is unreasonable, materially injurious to his neighbor and permanent.
    The owner of property over 1,000 feet from a railroad roundhouse and over 100 feet above its level may not maintain an action of nuisance to restrain the operations of the roundhouse and the railroad yard, where the principal source of annoyance is the roundhouse.
    Where it appears that temporary structures, made merely to enable a railroad company to make such changes and improvements in its system of passenger transportation as were required by statute, necessitated by public safety and demanded by public convenience, are not negligently operated and that they will be removed when the improvement, the work upon which is progressing with reasonable speed, is completed, such temporary structures do not constitute a nuisance as to neighboring property, in the absence of evidence that the railroad company has failed to use all reasonable means available to reduce to the minimum the annoyance and injury to adjoining owners.
    Action for an injunction.
    Emerich Kohn, for plaintiffs.
    
      A. L. Lyman (Robert A. Kutschbach of counsel), for defendant.
   Ford, J.

Plaintiffs own an apartment house on the west side of Summit avenue, near the corner of One Hundred and Sixty-fourth street, borough of the Bronx, the city of Hew York. To the west of this house are the railroad tracks and yards of the defendant, which is a railroad corporation owning and operating a line of railroad from Hew York city to Buffalo, and, as lessee of the Spuyten Duyvil and Port Morris [Railroad Company and of the Hew York and Putnam Railroad Company, operating and controlling those tracks and yards. The easterly line of the railroad property, i. that nearest to the property of the plaintiffs, is distant from the rear line of plaintiffs’ property, i. e., that nearest to the railroad yards, about 3-60 feet, -and the elevation of the apartment house is 108 feet above that of the railroad yards. There are no obstructions between the'house and the yards, nor between the latter and the Harlem river, which bounds the railroad property on the west. There are two yards, one that of the Hew York and Putnam, the other used by the main line or Hudson river division of the defendant, the Spuyten Duyvil and Port Morris railroad forming a link of that line -at this place. In the Putnam yard are an engine house, a repair- shop, a turn-table, some lesser buildings, the main tracks and a number of sidings. To the west of this yard, and between it -and the Harlem- river, is the yard of the main line, consisting of a large roundhouse, two turn-tables, some minor structures, the main tracks and a number of sidings. A short distance to the north is High Bridge station, at which outgoing and incoming trains on the main line change from electric to steam engines and from steam to electric engines, as necessitated by the statute forbidding the use of steam power in the tunnel through which all trains pass going southward- to the Grand Central station at Forty-second street, in the borough of Manhattan, as do those going northward from that station. To the east of the railroad property the surface of the ground rises abruptly, and the neighborhood in that direc•tion is residential in character. To the west is the Harlem river. Plaintiffs complain that the defendant’s use of its yards and tracks constitutes them a nuisance in that the engine houses, machine shops and the numerous engines which come and go, shift about and stand around coaling up, undergoing repairs and what not, emit volumes of smoke carrying cinders, soot and odors, which are borne by the wind to the premises of plaintiffs, into the windows when open and into the interstices when closed; that the cinders and soot settle upon the furniture, besmear the interior and even the food upon the table; that linen put out to dry or air is soiled; and that noxious odors and gases are carried into the living rooms of the inmates. They further allege that their tenants are disturbed by the ringing of bells, the sounds of whistles, the escaping of steam and the noises incident to the various activities carried on in the yards of the defendant. In consequence,' they claim, the rental and usable value of their property have been reduced, and they demand judgment that the defendant be restrained from continuing the acts complained of, and for the damages they have suffered. S'o far as the annoyances and injuries complained of originate in the Putnam yard, I am of opinion that no relief can he granted. The railroad and its yard were operated continuously for upwards of twenty years before the commencement of the action, and are there by prescriptive right. Any loss suffered by plaintiffs in consequence of their operation is damnum absque injuria. Bly v. Edison El. I. Co., 172 N. Y. 1; Tuttle v. Church, 53 Fed. Rep. 22; City of Rochester v. Erickson, 46 Barb. 92. Nor does increase of the burden upon neighboring property, caused by increase in traffic, change the rule. Bennett v. Long Island R. R. Co., 181 N. Y. 43. But it appears that the injury and annoyance to plaintiffs and their tenants were materially aggravated by the location of the yard and roundhouse of the main line adjacent to the Putnam yard. Assuming that the entire volume of noises, smoke, soot, cinders and odors that emanate from the structures and engines of the two yards could be apportioned with reasonable accuracy between them — an attempt to do so on the evidence before me could result in nothing more than a mere guess — the plaintiffs must, nevertheless, remain remediless in this aetion. Every person has the right to make reasonable use of his own property for the accomplishment of the lawful purposes of his ownership. His right in this respect should not be restrained without clear proof that such use is unreasonable, materially 'injurious to Ms neighbor, and permanent. I think the principle laid down in Booth v. Rome, W. & O. R. R. Co., 140 N.Y. 267, is controlling. In that case the defendant railroad company undertook to blast a considerable portion of its roadbed through rook adjacent to the dwelling house of plaintiff. The jarring of the ground and the concussion of the atmosphere cracked the foundations of the house, pulled the beams and joists apart, loosened the plaster, and generally wrenched it and rendered it insecure. nevertheless, the Court of Appeals reversed a judgment for plaintiff upon the ground that the' operations complained of were temporary and reasonably necessary to fit the property of defendant for a lawful use. Plaintiffs cite numerous cases in which similar annoyances have been held to be nuisances, but they are, I think, distinguishable from this case. Thus, in Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10, the defendant had erected an engine house adjacent to plaintiff’s dwelling, the smoke and soot from which made it uninhabitable, caused illness in the family, and “practically deprived the plaintiff of the use of the house as a residence.” In Garvey v. Long Island R. Co., 159 N. Y. 323, the defendant moved a water tower and turn-table to a site directly in rear of plaintiff’s house, whose operation not only produced smoke, but cracked its wall by the vibration caused by them. In Baltimore & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, the engine house and repair shop complained' of immediately adjoined plaintiff’s property and sent their noxious smoke, cinders and gases directly into the windows of the church. These and other similar-cases are distinguishable from this in point of degree of the annoyance. Here plaintiffs’ property is over a thousand feet distant from the large roundhouse and over a hundred feet above its level. That roundhouse is the principal source of the annoyance complained of in respect of the yard of the main line. It is true that difference in degree, alone is usually an unreliable foundation upon which to rest a distinction, but every case of nuisance must stand upon its own bottom, and precedents drawn from other cases are usually of little value because of the differences in the facts and circumstances. I am convinced that the plaintiffs’ witnesses greatly magnified the annoyances and the loss occasioned by them. Aside from the degree of annoyance, however, there is a fundamental distinction which differentiates this case from those cited by the plaintiffs; the same, indeed, which was drawn by the court in the Booth case, supra, between that case and those cited by tire plaintiff-respondent. “ These and like cases,” says the court, are those where the property of the owner is appropriated to a permanent use which is of constant and serious interference with the enjoyment by other property owners of their property.” In brief, the distinction is between those annoyances which are permanent and those which are temporary and incident' to the operations necessary to" conform and adapt one’s property to the lawful and natural use for which it was intended. Again, in the Garvey case, supra, Judge Vann, writing for the court says: “ The use by -the defendant of its property to the injury of the plaintiff was not temporary for the purpose of adapting it to its business, but regular, continuous, and in the nature of a partial but permanent appropriation. The distinction between a permanent invasion of land and a temporary .annoyance, as by blasting, was carefully pointed out in Booth v. Rome, W. & O. R. R. Co., 140 N. Y., 267, 279.” True, the Booth case had to do with blasting, but the principle laid down is broad enough to apply to the state of facts now before the court. The defendant acquired its property to be used for .a railroad and its appurtenances. -It operates a trunk line between Eew York and Buffalo. Eor many years it had run its passenger trains by steam power in a tunnel through the crowded section of the city to its southern terminus. It was required by statute to abandon that mode of traction south of the Harlem river and within a fixed time to substitute some other whereby steam and smoke would he eliminated. Laws of l'D'OS, chap. 424. Trains from its Harlem division were subject to the new statute. Electric power was chosen, which necessitated the selection of a suitable point above the river where the change from steam power to electricity could conveniently be made. High Bridge was selected, and that in turn required the establishment of a temporary steam power terminal in proximity to that station. Just southward was already the Putnam yard, with an admirably suitable tract of land between it and the Harlem river for such a terminal. These are the undisputed facts-. The temporary roundhouse was erected there for the use of the main line trains and the temporary yard was there located. 'Similar provision for Harlem division trains was made at Wakefield -on that line. More comprehensive plans than the change of motor power south of the Harlem river were in contemplation. It was determined to use electric power as far as White Plains on the Harlem division and to Crofcon-on-Huds'on on the main line, many miles beyond Wakefield and Highbridge, respectively. The work was obviously of great magnitude -and beset by peculiar difficulties because it had to he done while the railroads were in operation. The change below Harlem, river was accomplished within the -statutory period. The change on the Harlem division has been completely effected; a permanent terminal with appurtenances has been established at Horth White Plains, and the temporary terminal and structures at Wakefield have been removed. Work on the main line has so far progressed that a suitable site has been secured at Harmon (one mile -south of Oroton-on-Hudson), and the construction of a permanent yard and terminal there is progressing toward -completion. Presumably it will be ready by the time the necessary changes in the tracks and roadbed from High Bridge thither have been made. There is no evidence that this work is not being pushed to completion with reasonable energy and speed, .and when finished the yard and structure of which plaintiffs complain will he removed. It -appears, therefore, that they are there ternporarily only, and merely for the purpose of enabling the defendant to make such changes and improvements in its system of passenger transportation as were required by statute, necessitated by public safety and demanded by public convenience. True, the annoyance will have continued several years, hut the length of time is not disproportionate to the magnitude and difficulty of the work, no more so than in casé of the far graver annoyance .and damage inflicted' upon householders during the construction of the municipal subway railroad and the Grand Central and Pennsylvania terminals in Eew York city. While such enterprises are under way, designed as they are to serve public convenience, promote commerce and industry and add to the sum of human happiness and social well-being, those who suffer temporary hardship by reason of their proximity to the operations must look for recompense to ■the future advantages to be secured to themselves and to the general public. Campbell v. Seaman, 63 N. Y. 568; McCarty v. Natural Carbonic Gas Co., 189 id. 40; Tuttle v. Church, 53 Fed. Rep. 422; Booth v. R., W. & O. R. R. Co., 140 N. Y. 267. There is no satisfactory evidence in the case that the defendant has conducted its operations in the yards complained of negligently, or that it failed to use all reasonable means available to reduce the annoyance and injury to the plaintiffs to the minimum. There is abundant evidence to the contrary. If .there were satisfactory proof of negligent use a different rule might apply.

Judgment for the defendant.  