
    Pascal P. Pratt, App’lt, v. New York Central and Hudson River Railroad Company et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Injunction—Abutting owners—Basements.
    A contemplated city improvement for lowering railroad grade crossings will not be enjoined- pending an action by an abutting owner for damages, unless he can establish that the market value of his premises will be decreased by the improvement, or that it will prevent his property from increasing in value.
    3. Same—When not issued.
    A court of equity is not bound to issue an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right.
    Appeal from an order, refusing to continue and vacate a temporary injunction.
    
      John G. Milburn, for app’lt; Frank O. Laughlin, for resp’t.
   Lewis, J.

A plan was inaugurated several years ago for the purpose of remedying what had come to be a serious evil in the city of Buffalo, caused by the steam railroads crossing the streets of the city at grade. After the expenditure of much time and labor, a general plan for a change of grade crossing was adopted. It involved a very large expenditure of money, amounting to four or five millions of dollars, part of which is to be paid by the railroads and the balance by the city. The New York Central & Hudson River Railroad Company has for many years had and maintained two tracks running along the surface of a street in Buffalo known.as the “Terrace.” A very large number of its passenger trains pass over these tracks daily. Plaintiff owns a valuable parcel of land abutting upon the southerly side of the Terrace, upon which are valuable business buildings. His lot is -several hundred feet westerly from Main street, which crosses the Terrace. Pearl street enters the Terrace nearly opposite the plaintiff’s premises. Terrace street has been one of the public streets of the city for many years, and is about 200 feet wide. The adopted plan contemplates depressing the tracks of the Central road through the Terrace, and to accomplish this a cut is to be made along the center of the street, which will be twenty-eight feet wide, and in front of the plaintiff’s premises twelve feet deep; and a stone wall is to be built upon either side of the cut, extending two feet above the surface of the street. The space between the cut and the plaintiff’s premises will vary from forty-four to seventy-five feet in width. Main street is to pass ■over the cut, and a bridge for pedestrains is to be built over it at the foot of Pearl street. Teams entering the Terrace from Pearl street will be compelled to go several hundred feet out of their way to reach plaintiff’s premises by the way of Main street. The city owns the fee of the street, but no proceedings have been taken to condemn the plaintiff’s interest as an abutting owner in the Terrace, or to determine the injury, if any, which would be occasioned to him by the proposed excavation. Proceedings had progressed so far that contracts had been entered into with the defendants McNaughton and Huntington, and they were about to commence excavating for the cut in the Terrace, and this action was brought by the plaaintiff to restrain the defendants from proceeding with the work. A temporary injunction was obtained, and, upon a motion being made to continue the injunction pending the trial, an order was made vacating the injunction, and from this order the plaintiff appealed.

It is evident that the plaintiff’s property will derive, in common with other property in the city, some advantages from the contemplated change in the grade crossings. Those seeking to reach his premises will be relieved from the danger incident,to crossing the railroad tracks now upon the surface of the street. The real foundation of his complaint is that access to certain other streets will be by a circuitous instead of a direct approach. The primary purpose of this great improvement is not for the benefit of the railroad company or its patrons, or the traveling public, but is an exercise of the police power of the state for the protection of the lives and limbs of its inhabitants. The moving party in this undertaking is not the railroad company, but the. people of the state. The purpose is not to observe the railroad use or convenience. In this respect the circumstances of the case are unlike the numerous cases that have arisen and been determined in this state in respect to the liability of railroad companies to damages and injunctions by reason of the construction of railroad embankments or elevated railroads in streets. From the nature and extent of this improvement, and in respect to its alleged injurious effects upon abutting property, there is a substantial difference in the facts and circumstances of this case and those that existed in the cases of Reining v. N.Y., L.& W. Railway Co., 128 N.Y. 157; 40 St. Rep. 392, and Egerer v. N.Y. C. & H. R. Railroad Co., 130 N. Y. 108; 41 St. Rep. 488. In the former case the portion of the street in front of the plaintiff’s premises was practically and substantially closed for ordinary street uses by reason of the railroad embankment. So in the latter case the “ obstruction (embankment) practically destroyed the only access to plaintiff’s premises with a team and wagon.” The proposed cut will be an exclusive appropriation and occupation of twenty-eight feet in width of the surface of the street, and the abutting owners will be excluded from the part of the street so occupied; but there will remain open and unobstructed a sufficient portion of the street for traffic. There will be left substantially sufficient surface of the street for unobstructed ordinary travel, arid it may be a question whether this will amount to a taking of plaintiff’s easement of access to his, premises, or will merely constitute consequential damage which the abutting owner must bear without compensation as in case of surface roads; in other words, whether' the consequential damages flowing from such a lawful corporate use of the street have been transformed by the decision of the court from consequential injuries in invasions of property rights within the constitutional prohibition. American Bank Note Co. v. New York El. R. Co., 129 N. Y. 271 ; 41 St. Rep. 531; Sperb v. Met. E. Railway Co., 137 N. Y. 155, 159; 50 St. Rep. 204. But if it be assumed that the city cannot, for the purpose of altering the grade of the streets, appropriate a part of a street to the exclusive use of a railroad company so far as to prevent abutting owners from the use of any part of the street in the accustomed way without making compensation for the injury sustained, it'does not follow that the plaintiff is entitled to injunction pendente lite, nor that he will eventually show himself entitled to a final injunction, or even to substantial damages. The improvement -may result in the invasion of a technical right, and cause a technical wrong, and yet substantial damage may not be awarded, and the plaintiff may not be entitled .to injunctive relief. Unless the plaintiff can establish that the market value of his premises will be decreased by the improvement, or that it will prevent his property from increasing in value, he may not be entitled to anything more than nominal damages. In determining that question, the benefits and advantages resulting from the construction may be weighéd and considered. The removal of the danger paused by the railroad tracks at grade, and the substitution of an entirely safe, though circuitous, route or approach, may be considered. The doctrine on this subject is well stated in Bohm v. Met. E. Railway Co., 129 N. Y. 576, 587; 42 St. Rep. 247, from which we quote"in substance as follows: An abutting owner has certain rights and privileges in the city streets, termed ‘‘ easements,” which are appurtenant to his .land, and are a species of property. The beneficial enjoyment of these easements may be interfered with by the erection of an elevated railroad or a railroad embankment, etc., in the streets. This interference is a taking pro tanto, and entitles the owner to compensation, and, in addition, the damage done his adjoining land. As, however, these easements are of no value in and of themselves separate from the land, the real and only damage, if any, suffered by the owner in any particular case, is a consequential one,—i. e. the effect produced upon his abutting land. The question is simply as to the actual. result upon the land remaining Has its actual market value been decreased by the taking,,or has it prevented an enhancement in value greater than has actually occurred; and, if so, to what extent? The damage defendant may be required to pay is the difference between the actual fnarket value of plaintiff’s land and what it would have been worth if the, railroad had not taken the other property,—i. e. the easements. When, therefore, it appears that there has been neither a decrease in value nor any prevention of' an increase caused by the railroad, plaintiff is entitled only to nominal damages. The benefits from the construction may be taken into account, and weighed, and an injunction will not be issued without proof of substantial damages, notwithstanding a.technical or legal injury may have been caused to the abutting owners’ easement in a street. Newman v. Mel E. Railway Co., 118 N. Y. 618; 30 St. Rep. 36; Becker v. Met. E. Railway Co., 131 N. Y. 509; 43 St. Rep. 726; Purdy v. Man. Railway Co., 36 St. Rep. 43. In Gray v. Man. Railway Co., 128 N. Y. 509; 40 St. Rep. 478, the court, in speaking of a final injunction, observed that, unless the court below found the damage to be substantial, it could, in the exercise of his discretion, have withheld the injunction, and left the plaintiff to his remedy at" law; that an equity court is not bound to issue an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reversed, unless there has been an abuse of that discretion. City of Gloversville v. Johnstown, G. & K. H. R. Co., 49 St. Rep. 315; Hessler v. Shafer, 82 Hun, 199; 63 St. Rep. 756; Grill v. Wiswall, 82 Hun, 281; 64 St. Rep. 70. Again, the plaintiff may, by claiming it in his complaint, be awarded damages to the same extent, and for the same elements, as the compensation given in a special proceeding for the condemnation of land under the law of eminent domain.- If the damages awarded are not paid, an injunction may be granted restraining the work until the damages are paid. Hughes v. Met. E. Railway Co., 130 N. Y. 15; 40 St. Rep. 587; Pappenheim v. Met. E. Railway Co., 128 N. Y. 444 ; 40 St. Rep. 445. Upon the payment of damages thus ascertained, the plaintiff may be required to give a deed, or to convey the right to the defendant, and an injunction will be refused"if the defendant be willing to pay the damages upon receipt of a conveyance. This being the well-settled rule of law, there does not seem to be any propriety in arresting by injunction the progress of this great work of remedying the grade-crossing evil upon the facts presented. We have examined the authorities referred to in the appellant’s brief, and do not find them in conflict with our views of this case.

The order appealed from should be affirmed, with $10 costs an.d disbursements of the appeal

All concur.  