
    Charlotte Y. Ackerman, Respondent, v. Clarence F. True, Appellant.
    First Department,
    June 14, 1907.
    Nuisance — encroachment on .street by adjoining owner — mandatory . injunction for removal not authorized.after defendant haS conveyed — ■ effect of waiver of money damages at trial — decree.
    The measure of damages to real property caused by a nuisance which consists of an encroachment upon, the street by an adjoining building, is the difference between the /value of the premises, .with the encroachment and without it; alleged benefits conferred by the encroachment should not be considered.
    When during the trial of an action for a mandatory injunction to compel an adjoining landowner to .remove a structure encroaching upon the street the defendant conveys, the premise's, the. court is without power to decree that the defendant abate the nuisance for that would require him to enter upon another man’s property and .destroy the building.
    The grantee is not bound by the decree under the common-law doctrine of Us pendens, nor can he be brought in oh motion after the decree and Compelled to execute it. The doctrine of common-law Us pendens applies only to actions in rem, which is not the nature of -an action to abate a nuisance.
    
      It seems, that when in such action the trial court discovers that, the defendant is . no longer the owner of the property upon which the nuisance exists, the trial should be suspended and the plaintiff directed to bring in the new owner.
    When, in such action, the plaintiff at trial waives all right to money dama'ges . and seeks only a mandatory injunction, and.it is discovered that the property ' has been, conveyed, the Appellate Division cannot modify a decree granting an injunction so as to-award damages, for. the plaintiff has waived the same, and in any event is only entitled tó damages for the period the nuisance was , & • maintained by the former owner.
    Patterson, P. J.; dissented; Latjghlin, J., dissented, with memorandum.
    Appeal by the defendant, Clarence F. Trne, from a judgment of the Supreme Court in favor of the plaintiff,-entered in the office of the clerk of the county of New York oil the 2-lst day of January, 1905, upon the-decisión of .the court, rendered after a trial at the New York Special Term, directing a mandatory injunction, for the removal.of a nuisance.
    
      Alfred B. Cruikshank, for the appellant.
    
      James W. Treadwell, for the respondent.
   Houghton, J.:

The action is brought to compel the removal of a nuisance, consisting of projections into the street of a building standing upon land owned by defendant at the time of bringing the action, with damages for its continuance on the ground that plaintiff suffers special damage to her adjoining premises thereby.

All the material facts appearing in the case are stated in the opinions on the appeals to this court (56 App. Div. 54; 71 id. 143) and in the opinion rendered in the Court of Appeals where all the main questions involved were settled in plaintiff’s favor. (175 N. Y. 353.) .

The appellant urges, however, that the trial court erred in finding ■ that plaintiff suffered substantial special damages to her adjacent property by the maintenance of the nuisance, because he adopted the rule of value with the encroachment and without it, instead of following the rule laid down in the elevated railway cases of talcing ■ into consideration the benefits of the structure which, as a whole, was claimed to have materially benefited plaintiff’s property.

We think the court adopted the proper rule as to damages, and that the rule invoked by appellant is not applicable to controversies such as are involved in this action between private individuals.

The appellant also insists that plaintiff cannot maintain her action and especially cannot have a mandatory injunction for removal of the nuisance, because she herself has encroached upon the same street by a coping and iron fence around her lot, and relies upon Wormser v. Brown (149 N. Y. 163) to sustain this contention.

The same encroachment by plaintiff appeared on the former trial and was discussed by the Court of Appeals and deemed insufficient to bar her rights, and hence the question is not open for our consideration even if we entertained any different view. The encroachment of plaintiff’s house on Eighty-second street could have no' such effect in any event.

It appeal's by the present record, and the fact is specially found by the court, that at the time of the trial this defendant was not the owner of the premises, the buildings on which projected into the street and thus constituted a nuisance, but that he had conveyed them to one Applegate, notwithstanding this fact, a judgment was rendered commanding him to enter upon the premises and remove that part of the building which encroached upon the street, which necessitated . tearing down its entire front. . '

■ At the opening of the trial the plaintiff waived all damages against the defendant for the maintenance of the nuisance, and the only judgment which was rendered was one for its removal. ■

In view of the finding of the court, it must be assumed that the conveyance by the defendant of the premises upon1 which the building stood, to Applegate, was real and operated to transfer the title to the grantee. The judgment rendered, therefore, directs the defendant to enter upon another man’s property and destroy the building thereon. This, in law, is an impossible thing for him to do. Only the owner can be so compelled. Courts do not and should not render fruitless judgments (Osterhoudt v. Board of Supervisors, etc., 98 N. Y. 239; Mahr v. N. U. F. Ins. Society, 127 id. 452), and the court should not have decreed that the defendant' do a thing which it affirmatively appeared he could not do. The question which presented itself to the court before it rendered its judgment was not one of pleading, but^a distinct and independent fact which showed the futility of the only judgment which plaintiff asked against the only defendant to the action.

But it is insisted that Applegate took title from defendant with notice, and that the doctrine of common-law Ms pendens applies to him, and that he is bound by the judgment rendered against this defendant, and can’ be brought in on motion and compelled to •v execute it. The dobtrine of common-law Ms pendens applies only to actions in rem. (Hailey v. Ano, 136 N. Y. 569; Lamont v. Cheshire, 65 id. 30,36; Cleveland v. Boerum, 24 id. 613, 617.) The plaintiffs action does not concern the title of the premises which defendant formerly owned. . The only controversy is whether there is attached •to the building on the land something'which constitutes a nuisance ■in the.public street, injurious to the plaintiff. The relief which the plaintiff asks is, that something which is in the street, and a nuisance and detrimental to her own property, be removed. That this nuisance chances to be attached to a building on certain land does not bring the title to the land itself into controversy, but only, affects the thing which constitutes the nuisance.

■ The . theory upon which a nuisance may be abated by an indi vidual is that it is a continuous invasion of such individual’s rights It is like a continuous trespass. In Hailey v. Ano (supra) it was distinctly held that neither under the Code nor at common law did the doctrine of Us pendens apply in an action for trespass, and hence that a purchaser of land, pending such an action, was not concluded by the subsequent judgment therein. In- our view, it could not be held that Applegate was bound by the judgment against this defendant and hence he could not be compelled, on motion, to carry out the decree.

When it appeared to the trial court that the present defendant was no longer the owner of the property upon which the nuisance existed, he could have suspended the trial and directed the plaintiff to bring in the then owner (Code Civ. Proc. § 452; Mahr v. N. U. F. Ins. Society, supra), or, except for the fact that the plaintiff had waived her damages against the defendant, render judgment against him for such damages.

Each owner of the premises is liable to the plaintiff for the damages which she suffers to her property from the nuisance during the time he maintains it. There is no plea in defendant’s answer that he is not still the owner, and it is possible that he would be lia: hie for the whole of such damage up to the time of the trial of the action.

.'The difficulty with suspending the trial of the action and directing the plaintiff to bring in the present owner of the property, is that the ownership may continually change to l)ona fide grantees, and hence that the court would never be able to render a judgment of abatement of the nuisance. Of course, irrespective of the court on its own motion directing a person interested to he brought in as a party, the plaintiff has the right to bring in the present owner and make him a party to the litigation and attempt to obtain judgment while he is still such owner. .

The plaintiff having a right of action for damages against each owner for the period for which he may maintain the nuisance," her most practical remedy would seem to be to bring such several actions and recover her damages, until such time as she shall be fortunate enough to find a defendant who still retains title to the property and upon whom'a judgment of abatement can operate. It may be said that this is a hardship and puts her to much litigation to maintain her rights, but that is her misfortune, and it is better that .she should be put to this hardship than that the court should be compelled "to hold the action continually and retry it against new parties and never be able to render an effectual judgment. . ■

If it shall transpire on the new trial which we are constrained to . Order that Applegate is not a Hona fide granted' and1 that the present defendant is the real owner, a full judgment can then be rendered. If, however,' the present defendant 'is not the owner, damages may - be awarded against him. -

"We cannot modify the present judgment, although the damages are found, by reversing the injunction and awarding damages, for two reasons, one of which is that damages were waived by plaintiff on the trial, and the other is that the amount found was'for permanent damages and not for those suffered from year to year. In Oiir view there is no alternative other than to order a new trial • generally.

The judgment should be reversed and a new trial granted,, with costs- to -the appellant, to- abide the event. ■ ■’

■ McLaughlin and Soott, JJ., concurred; Patterson, P. J., and Laughlin, J., dissented.

Laughlin, J. (dissenting):

I am of opinion that, since this action affected the right to the possession, of the building of the adjacent premises, which unlawfully projected into the street,- the common-law. doctrine of Us pendens .applies,, and the purchaser took title subject-’to the right of the plaintiff to-have-the nuisance abated, and that either he is . obliged to- suffer defendant to abate it or he may be compelled' to. abate it himself.

Judgment reversed, new trial ordered, costs to appellant to. abide -event. " ■ " '  