
    Charlotte Y. Ackerman, Appellant, v. Clarence F. True, Respondent.
    
      Action by the owner of a meant lot to compel the removal of the fronts of adjacent houses projecting into the street, and for damages —she is not estopped by her failure to object to the erection of the houses — a dismissal for want of proof of damages shouldbe without prejudice to another suit — relative damage to the respective owners.
    
    Where the owner of a number of lots abutting upon a public highway erects thereon dwelling houses, the fronts of which illegally extend three or four feet beyond the building line into the street, the fact that the owner of a vacant lot adjoining such dwellings raises no objection thereto while they are being erected, does not estop her from invoking the power of a court of equity to compel the removal of the illegal obstruction, unless it appears that at the time the dwellings were being erected the owner of the vacant lot knew that her rights were being interfered with, and that by her failure to object the owner of the dwellings was misled to his prejudice.
    
      Where the complaint in an action brought by the owner of the vacant lot to compel the removal of the unlawful obstruction together with damages is dismissed oh the ground that it does not appear that she has sustained any special damages by reason of the illegal obstruction of the highway, the dismissal of the complaint should be without prejudice to the right of the plaintiff, or those claiming under her, to bring a similar action against the defendant, or those claiming under him, whenever the vacant lot shall be built upon.
    The fact that the damages sustained by the owner of the vacant lot will be trivial in comparison with the damages suffered by the owner of the dwellings if the latter is compelled to cut off the fronts of the dwellings, does not. affect the right of the owner of the vacant lot to equitable relief.
    Yan Brunt, P.' J., dissented. .
    Appeal . by the plaintiff, Charlotte Y. Ackerman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      William J. Kelly, for the appellant.
    
      Alfred B. Cruikshank, for the respondent.
   McLaughlin, J.:

This action was brought to obtain a judgment establishing that a portion of the walls of six houses belonging to the defendant, situated upon the east side of Riverside drive, between Eighty-second and Eighty-third streets, in the city of New York, unlawfuly obstructs the public highway, and constitutes as such, an interference with the plaintiff’s easements of light, air and access, and for a mandatory injunction against the maintenance of the same, together with damages. There have been two trials of the action. Upon the first trial'the plaintiff obtained a judgment awarding her damages, with the privileges of applying in the future to the court for leave to reopen the case and prove additional damages in the event of the erection of a building upon her lot, but on appeal: this judgment was reversed and a new trial ordered (Ackerman v. True, 56 App. Div. 54) on the ground that the award of damages being the only relief granted, the defendant was entitled to have the assessment of damages made by a jury, and could not be deprived of such right by the act of the plaintiff in bringing her action in equity. Upon the second trial, the complaint was dismissed upon the merits, the court holding that the plaintiff had not suffered any special damage to her lot by reason of the alleged illegal encroachments of the defendant’s buildings in the street; that she had been guilty of laches in not objecting to their erection; and that she had acquiesced in them, and, as a conclusion from these facts, that she was estopped from asking for a mandatory injunction to compel the taking down of the structures.”

The facts, so far as they are material to the question involved, are substantially as follows: The plaintiff purchased from the defendant and is now the owner and in possession of a vacant lot of land situate at the northeast corner of Riverside drive and Eighty-second street. It had a frontage of thirteen feet four and three-fourths inches on Eighty-second street and sixty feet four and three-fourths inches on Riverside drive. In 1898, after the plaintiff had purchased her lot, the defendant began and has since completed the erection of six dwellings north of and immediately adjoining the plaintiff’s lot. Each of these dwellings has a swell front,” extending from the ground to the roof — five stories — and each projection being of different shape, extending between three and four feet beyond the building line into the street. The walls of the house next to and adjoining the plaintiff’s lot extend beyond the building line three feet and six inches into Riverside drive, which is a public highway. The defendant contends that the structures of which the plaintiff complains are not illegal, inasmuch as they were constructed according to plans filed with the building department and approved by the park commissioners of the city. The trial court, in view of the conclusions reached, deemed it unnecessary to and did not pass upon this question, but assumed, for the purposes of the decision made, that such structures are illegal. Therefore, that question is not now before us, and, in view of the finding made by the trial court to the effect that the plaintiff had not sustained any damage by reason of the alleged illegal structures, we should affirm the judgment were it not for the further finding made to the effect that the plaintiff acquiesced in their construction, and by reason thereof is estopped from invoking the exercise of the equitable powers of the court to compel their removal. This finding is clearly against, the weight of evidence: Acquiescence in an act, sufficient in law to create an estoppel, implies full knowledge as well as the legal effect of the acts acquiesced in, and where the facts are known to both parties, or where both parties have the same means of ascertaining the truth, in the absence of fraud or bad ■ faith, there can be no estoppel. Nor'can there be an estoppel unless something is done, or omitted to be done, which- has the effect of misleading the opposite party or inducing him to act in a different way than he otherwise Would. Here there- is no claim made that the defendant located a portion of his buildings in the public street by reason of any act of . the plaintiff, or that the plaintiff, by any act either of omission or commission, misled him in any. respect. How then can it be claimed if these structures do deprive her of her property rights, that she is estopped from asserting them because she did not, prior to the erection of the buildings, apply to the court to restrain the defendánt.from doing what he had no legal right to do? One cannot be deprived, in law, of his property in this way. There was no obligation resting upon her to interfere with the defendant unless she knew that her own lights were by his acts, being interfered with and that he was misled by reason of her non-interference -to his injury. There is no such proof. Nor can the fact that she remained silent, in the absence of such knowledge, operate as an estoppel to assert her-rights, inasmuch as she was at the time in possession- of her lot and that possession was sufficient notice that he could not-, without her consent, deprive her of any interest therein. But it is said the plaintiff has not sustained any special damage by reason of the alleged illegal structures in the public street. At the present time this is undoubtedly true, but it does not need expert' evidence to inform the court that these structures, whenever the plaintiff or those claiming through her, shall erect a building upon the lot, will materially, depreciate the value of the lot. and then cause her special damage. (Crocker v. Manhattan Life. Ins. Co., 61 App. Div. 226; Rudolph v. Ackerman, 58 id. 596.) When that time shall arrive, she or the owner of the lot will have been deprived of the easements of light, air and access appurtenant to the lot to the extent that these structures, are placed in the public street. These are easements appurtenant to the lot. They add value to it, and equity will not permit the owner of the lot to be deprived of them in the manner here sought. Nor is it any answer to these suggestions to say that the damages sustained by the owner of that lot will be trivial in comparison with the great damage suffered by the defendant, if he is compelled to cut off the front of all his buildings. No invasion of the property rights of another is, in law, deemed trivial. (Robert v. Sadler, 104 N. Y. 231.) The rights of one, no matter how small, are equal to the rights of another, no matter how great, and whenever it is made to appear that the rights of one have been encroached upon by the illegal act of another, that moment equity interferes and insists that the illegal act shall be remedied or else due compensation made therefor.

The judgment appealed from, therefore, must be modified by providing that it shall be without prejudice to the right of the plaintiff or those claiming title through or from her, either by grant, inheritance or otherwise, whenever they shall build upon the lot in question, to maintain an action against the defendant or those claiming title to or through him, either by grant, inheritance or otherwise, to compel the removal of the illegal structures, if such they shall be found to be, together with such damages as the owners of the lot may establish, and as thus modified, the judgment must be affirmed, without costs to either party.

O’Brien, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J.

(dissenting):

1 dissent. I think that the plaintiff is entitled now to have that part of the wall removed which projects into the street and which is a palpable obstruction of the light, air and access to the adjoining lot.

Judgment modified as directed in opinion, and as modified affirmed, without costs to either party.  