
    George H. Spring, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    Nuisance — Unauthorized structure.
    The authority conferred on a railroad company to construct and operate its road does not empower it to erect coal bins in using which smoke, dirt and cinders are thrown on the adjoining premises; the owner of such premises may sue the company to enjoin the nuisance and for damages, and it is no defense, in such action, that it was necessary for the company to have its coal bins located where they were, or that in the management thereof it exercised all practicable care.
    Appeal from a judgment, entered in favor of plaintiff.
    
      Robert C. Turner, for app’lt; Judson A. Gibson, for resp’t.
   Merwin, J.

— The plaintiff, in the year 1890, was, and still is, the owner and in possession of a lot, with three dwelling houses thereon, on the east side of Baldwin street, in the city of Elmira. About December 1, 1890, the defendant, who, as owner or lessee, operated a railroad that passes through the city of Elmira, erected upon premises owned or leased and occupied by it in the city of Elmira, and situate opposite to and about fifty-seven feet distant from the plaintiff’s premises, coal bins or pockets for the use of its road, and has ever since maintained and used them. It is found that the structure containiug the coal bins or pockets is of the largest kind used by trunk-line railroads in the state for such purposes, is 650 feet long, including the incline trestle leading thereto, and- contains nine pockety, and is in constant use by defendant for storing hard and soft coal in the bins and coaling its engines therefrom, to the number of sixty or seventy engines per day; that the structure is within 300 or 350 feet from a very closely populated portion of the city of Elmira, and the premises on which the structure is situated are immediately opposite a portion of the city which has been all laid out into city streets, blocks, and building lots suitable for dwelling houses; that for the purpose of supplying the coal bins with coal, locomotive engines of the defendant, using soft or bituminous coal, draw cars heavily loaded with soft and hard coal up the steep incline leading from the railroad tracks into the bins, into which bins or pockets the contents of the cars are thrown ; that now, and ever since the erection of the structure, there necessarily is being and has been emitted from defendant’s engines using the bins, hurtful and offensive gases, sparks, smoke, soot, and cinders, and from the coal taken from and put in the bins, coal dust and dirt; that the gases, sparks, smoke, soot, cinders, coal dust, and dirt have been and are being borne by the wind upon and settle down upon and into the dwelling houses of the plaintiff, injuring the furniture and clothing therein, rendering the same unwholesome, uncomfortable, and unsuitable as a habitation; that on account of such gases, sparks, smoke, soot, cinders, coal dust, and dirt coming upon and into the premises of-plaintiff, the plaintiff has suffered irreparable injury, and the rental value of the premises has been reduced from $31 per month to $20 per month ; that the injuries to plaintiff’s premises are of constant repetition, and will be necessarily continued so long as- the structure of defendant shall remain and" be used as at present; that, on account of the continuous character of such injuries, plaintiff has no adequate redress by actions at law, and that a resort to such actions would lead to a multiplicity of suits. As conclusions of law it was found: (1) That the structure of defendant mentioned in the complaint, consisting of coal bins or pockets and trestle, as at present used, is- a private nuisance to plaintiff. (2) That the defendant, its officers, agents, and servants, should be perpetually restrained and enjoined from depositing in and taking from said structure coal in such moaner as to set afloat in the air and cast or deposit upon or into the premises of the plaintiff smoke,' soot, cinders, sparks, dust, or dirt. Judgment was accordingly ordered, together with the damages for the loss of rental value of the premises from December 1, 1890, to September 1, 1894, to the amount of $500.

The referee, in effect, finds that the defendant -had erected and was maintaining a structure which, as used by it, constituted a private nuisance to the property of the plaintiff. The evidence is," we think, sufficient to sustain this conclusion. But the defendant claims that the right to erect and use this structure in coaling its engines is necessarily and materially incident to the operation of defendant’s railroad, and therefore embraced within its franchise, and is not a nuisance, although it may operate as such ; and that the plaintiff has no remedy. The case of Cogswell v. N. Y., N H. & H. Railroad Co., 103 N. Y. 10; 3 St. Rep. 56, seems to be somewhat in point against that proposition. In that case the defendant erected upon a lot adjoining a dwelling house owned by plaintiff an engine house and coal bins for its road, and used the same in operating it, with results to the adjoining property quite similar to those in the present case. It was held that the engine house as used was a 'nuisance; that legislative authority to run its trains over the railroad was not a legislative sanction to the committing of such a nuisance; that an action was maintainable to recover damages, "and to restrain the nuisance; and that in such action it was no defense that it was necessary for defendant to have its engine house located where it was, or that in the management thereof it exercised all practicable care. It is said that “the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injCiry.” “It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others.” The defendant in the present case is a foreign corporation, and operates and uses the road and structures in question as lessee of the New York, Lackawanna & Western Eailway Company, a corporation organized under the provisions of chapter 140 of the Laws of the state of New York, passed April 2, 1850, and the laws amendatory thereof. Ho special legislative sanction is .shown for the structure in question. Prior to its erection in 1890, the defendant used a similar structure, though not so large or convenient, that was located in a place a considerable distance from the plaintiff; and its use did not interfere with the use of plaintiff’s property. The defendant, or its lessor, had other lands where the new structure might have been placed, though not so convenient. The doctrine of the Cogswell Case was approved in Bohan v. Port Jervis Gaslight Co., 122 N. Y. 27; 33 St. Rep. 246 ; Hill v. Mayor, etc., 139 N. Y. 502; 54 St. Rep. 797; Morton v. Mayor, etc., 140 N. Y. 212; 55 St. Rep. 413. And so it - was in Booth v. R., W. & O. Railroad Co., 140 N. Y. 267, 272 ; 55 St. Rep. 656, cited on the part of the defendant. In the Booth Case a distinction is pointed out between acts and uses of property which are permanent and continuous, and temporary acts resorted to in adapting premises to some lawful use. The question there considered related to the latter class of acts. In Flinn v. N. Y. C. & H. R. Railroad Co., 142 N. Y. 11; 58 St. Rep. 431, the Cogswell Case was not questioned, and the issue was unlike the one there and here involved. In Pettit v. N. Y. C. & H. R. Railroad Co,, 80 Hun, 86 ; 61 St. Rep. 718, it seems to have been held that the evidence was not sufficient to show that the structure complained of and its use was a nuisance, so that the doctrine of the Morton Case, 140 N. Y. 207 ; 55 St. Rep. 413, and kindred cases, did not apply. The principle of the Cogswell Case should, we think, be applied to the present case. Ho point is made by the defendant as to the amount of the damages awarded.

Judgment affirmed, with costs.

All concur.  