
    Thomas Donahue, Respondent, v. Keystone Gas Company, Appellant.
    
      Negligence—destruction of shade trees in a street by gas—liability of the gas company to an abutting owner who does not own the fee of the street—-a reference in a deed to a map whose lines do not conform to street lines as actually laid out— the title passes to the street line as actually laid out and used.
    
    An owner of premises abutting upon a street, who does not own the fee of the street, is entitled to recover damages for the destruction of ornamental shade trees standing in the street in front of his premises caused by gas leaking from mains laid by a gas company in the street.
    It is not material who planted the shade trees, provided they have .been sanctioned by the authorities.
    The measure of the abutting owner’s damages is the difference between the value of the property with the growing trees and its value with the trees removed.
    In an action in which the plaintiff’s right to recover depended upon whether he was an owner of property abutting upon Union street in the former village of Olean, it appeared that the plaintiff’s conveyance described the premises as bounded by the westerly line of the street and as being in block 125, according to a map of the village made by one Gosseline. Union street, as laid out upon the Gosseline map, was one hundred and sixteen feet wide, while, as actually laid out and as used for more than fifty years, it was about ninety feet wide, thirteen feet apparently having been taken from each side and included in the abutting lot.
    The Gosseline map appeared to be a theoretical map and streets afterwards laid out did- not conform to the theoretical lines delineated on the map.
    
      Held, that the plaintiff was an abutting owner;
    That the description used in the conveyances made since the street was actually located referred to the visible and actual located line of the street and not to the theoretical line shown upon the Gosseline map;
    
      That it could not be contended, because the plaintiff's grantor had received a conveyance of the disputed thirteen-foot strip bounded by the street, that the title to such strip -was still in the plaintiff’s grantor;
    That such grant was evidently intended to operate as a release to the plaintiff’s grantor of whatever interest his grantor had in the disputed strip, and that, as the plaintiff’s conveyance bounded the premises by the westerly line of the .street, his grantor would be estopped from denying that the land contiguous to the front of the plaintiff’s premises was a street.
    Appeal by the defendant, the Keystone Gas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 21st day of May, 1903, upon the verdict of a jury for $150, and also from an order bearing date the 18th day of February, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. H. Waring, for the appellant.
    
      Parker & Cobb, for the respondent.
   Stover, J.:

This is an action brought to recover damages for injury to premises of plaintiff through the destruction of ornamental shade trees in front of his premises on the west side of Union street in the city of Clean, by reason of leakage of gas from the mains of defendant, which were laid in the street in front of plaintiff’s premises, and near the trees which were destroyed.

The facts upon which the rights of the plaintiff in the street depended, and the negligence of the defendant, were litgated upon the trial, and as the questions of fact were settled by the verdict, we see no reason for interference with them.

The questions of law, however, are contested. The plaintiff takes his title by a description which bounds him by the westerly line of the street, and the premises are described as being in block 125, according to a map of the village made by one Gosseline.

From some of the exhibits used upon the trial, it would appear that Union street, as laid out by the Gosseline map, was one hundred and sixteen feet wide. The Gosseline map does not appear among the exhibits, but it does sufficiently appear that the" map was made a great many, and more than fifty, years ago. This map seems to have been a theoretical one, and streets, when after-. wards laid out, did not conform to the theoretical lines in the map, as it appears that Union street, as actually laid out, and used for more than fifty years, was about ninety feet wide, making a difference of twenty-six feet; and it would appear that this* space had been equally divided, thirteen feet taken from the westerly side of the street, and thirteen feet from the easterly side, or, at least, that the thirteen feet from the westerly side had been included in the adjacent lots.

The deeds locate a starting point at the corner of block 134, but the actual location would show that' line at present to be in or upon a street laid out since the Gosseline map was prepared.

It is qiiite evident that whatever confusion has arisen from the location of the easterly line of plaintiff’s premises grows out of the narrowing of the street; but whatever there may be of the defendant’s contention with reference1 to this, we think it must be held that the description used in the conveyances of the premises since the street was actually located and used refers to the boundary line as located; that the plaintiff obtained title to the visible and actually located line of the street, and is not bound by the theoretical line upon the Gosseline map.

It will be observed that the reference to the Gosseline map is not for the purpose of locating the boundary lines, but is a general description, showing that the property is in a certain block, and the references to the conveyances to the street line must, in view of the fact of user and location, as proven in this case, be construed to refer to the line as actually located.

The contention that the plaintiff’s grantor, Higgins, is still the owner of the thirteen feet, is also, we think, not well founded, as the deed to Higgins, conveying the thirteen feet bounded by the street, was evidently intended to operate as a release of whatever interest Higgins’ grantor had in the disputed strip. As Higgins by his deed bounded the plaintiff by the westerly line of the street, he conveyed the strip in question. It is not to be presumed that he intended to reserve rights in a strip in the street so as to prevent access to the premises. He would be bound.by his own deed, and having conveyed to the street, could not be heard to dispute the right of the plaintiff to treat the premises contiguous to his in front as a street, and subject to his rights and that of the public in and to the street. So it may be assumed that plaintiff was an abutting owner upon Union street in question.

The trial judge charged the jury as matter of law: “That the, plaintiff had a property right in those trees (although they were not' planted upon lands that he had the title to) sufficient to permit him as a matter of law to maintain an action against any person who might wrongfully injure or destroy the same.”

This brings up the proposition that the plaintiff could recover for injury to his premises by reason of the destruction of the trees, although he was not the owner in fee of the land in the street. This is the main legal proposition litigated upon the trial.

The contention of the defendant is that the plaintiff, having no title to the street, but only such general rights as the public and an abutting owner would have in the street, cannot complain of injury of the character which he alleges he has sustained in this action.

We do not think this contention sound. Assuming the facts to be as the jury have found, that by reason of the destruction of the trees the value of plaintiff’s premises has been lessened, it would be, we think, not in line with modern jurisprudence to say that, although liis property has been injured in this way, and although, the interference was an illegal one by a wrongdoer, and through an act amounting to a public nuisance, he is without remedy and must submit to the loss.

We think it more consistent with the trend of recent adjudications to hold that an abutting owner whose property is injured by a wrongdoer, and, as in this case, by negligence and carelessness resulting in a nuisance, is entitled to recover the damages sustained.

The general rule of law governing nuisances might be applied in this case, namely, that anything which is calculated to interfere with the comfortable enjoyment of .a man’s house or premises, any wrongful act which destroys or deteriorates his property, or interferes with the lawful use or enjoyment thereof^ or hinders him in the enjoyment of a common or public right, and thereby causes him special injury, is a nuisance. In the case under discussion the jury have found, under a fair instruction in that particular, that the plaintiff’s premises were injured and his enjoyment thereof injured by the unlawful act of the defendant.

The defendant’s right to the street was limited to a proper use. and the escaping of gas so as to destroy vegetation in the ground above was not an incident to such' use or a result ordinarily to be expected from the enjoyment of the defendant’s rights,' but it would be clearly wrong, and we do not understand that any claim of justification to the extent of permitting gas to escape is insisted on.

■ The general rule of law has been applied in the elevated railroad cases, and in those cases it has been stated that the injury arose by interference with light, air and access; but the cases nowhere place these as the only particulars in which enjoyment of premises may be interfered with.

In cities where shade trees may be obstructions to the streets a different rule might apply and the authorities might .lawfully remove them, perhaps, as obstructions, but this question does not arise in this case. There is no attempt on the part of the authorities to remove, nor any claim on the part of any one of a right to interfere with the trees.

We think the principle discussed in Lane v. Lamke (53 App. Div. 395) applicable to this case, namely, The abutter who sets out ornamental shade trees in the street opposite his premises, at his own expense and with the sanction of the municipal authorities, is entitled to have such trees protected against negligent or willful destruction at the hands of third parties.” >

The fact -that the trees were planted by the abutter is immaterial; for, by whomever planted, the abutter has the right to the enjoyment thereof so long as they are there with the sanction of the authorities.

■ Some question has \been made as to the rule of damages which was adopted in this case, but we think the correct rule was stated by the trial judge, viz., the difference between the value of the property with the growing trees' and its value with the trees removed. It is the value of the right of which the plaintiff has been deprived, namely, the enjoyment of the premises with the trees, and to the extent that he has been deprived he is entitled to recover. If the value of his property has been depreciated by the wrongful act of the defendant he is entitled'to recover to the extent that it has been depreciated.

The rule of damages has been laid down in many adjudicated cases that where property has been interfered with and has depreciated in value and' without the destruction of the fee, the owner is entitled to recover the difference in the value of the premises before and after the interference. .

Reference has been made to "the case of Halleran v. Bell Telephone Co. (64 App. Div. 41), but we do not deem the doctrine of that case inconsistent with the views above expressed. The basis of that decision was the failure of. evidence showing any interference with the enjoyment of the abutter’s premises, and the opinion being based upon the fact that his right was not, to any extent, interfered with, the finding of fact there being “ That the telephone poles do not interfere in any degree with any right which the plaintiff has as an abutting owner.”

We find no error and the judgment and order should be affirmed.

All concurred; Hiscock, J., in result only.

Judgment and order affirmed, with Qosts.  