
    Knox et al. v. Metropolitan El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    December 31,1890.)
    1. Executors—Trust Property—Actions por Trespass.
    Executors who are also trustees under the will are ex offido invested with legal title for trust purposes, and may maintain an action for damages to the trust property in their capacity as executors.
    3. Same—Pleading—Complaint—Caption.
    Where the averments of a complaint are sufficient to affix to the plaintiffs their proper representative character, an erroneous description in the caption is immaterial.
    8. Same—Right to Maintain Action.
    Under a clause in a will whereby certain real estate is devised to executors in trust to receive the rents, issues, and profits thereof, and to apply the same to the use of certain beneficiaries during their respective natural lives, one share being held in trust for each beneficiary, the legal title to the estate passes as an entirety to the executors, and is not deferred until the actual division or partition of the property, and they may maintain an action for damages to such property as a whole. ‘
    4. Same—Death oe Cestui Que Trust.
    In an action for damages to property so devised, the plaintiffs’ rights are not affected by the death of one of the beneficiaries subsequent to the commencement of the action, the action being for such damages as accrued prior to the institution ‘ of suit.
    5. Limitation oe Actions—Continued Trespass—Elevated Railroad.
    The trespasses of an elevated railroad company in the daily use of its property are continuous, and a cause of action accrues daily, and hence there are no limitations to actions therefor short of the 20 years from which a grant is presumed.
    6. Estoppel—In Pais—Elevated Railroads—Trespass.
    Mere acquiescence by the party injured, in the erection of an elevated railroad, will not work an estoppel by which the former is deprived of his right to sue for damages thereby sustained; especially when it appears that the structure is one authorized by law, and one of which in itself the property owner cannot complain.
    
      7. Injunction— Continued Trespass—Elevated Railroad.
    The only remedy whereby just compensation for the invasion of the easements of light, air, etc., by an elevated railroad may be had, is an action in equity to restrain the continuous trespasses, in which an injunction nisi is awarded.
    8. Trial—By Court—Inconsistent Conclusions of Law.
    A judgment will not be reversed because of inconsistent conclusions of law, when the judgment directed to be entered is in accordance with the correct conclusion of law on the facts found.
    Appeal from special term, New York county.
    Action by John M. Knox and others as executors against the Metropolitan Elevated Railway Company and the Manhattan Railway Company, for past damages sustained by the construction and erection of defendants’ elevated railway, and for an injunction nisi against such operation. Judgment for plaintiffs, and defendants appeal.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      E. C. James, for appellants. J. E. Burrill, for respondents.
   Barrett, J.

It is contended that the plaintiffs cannot maintain this action because, in the caption of their complaint, they have styled themselves “as executors” and not “as trustees.” In the body of the complaint, however, they set forth the testator’s will; and allege the devise of the property in question (under the residuary clause) to his executors in trust to divide the same into eight equal parts, and to hold one of said parts for the benefit of each of eight grandchildren during his or her natural [life, and to receive the rents, issues, and profits thereof, and to apply the same to the use of such grandchild during his or her natural life. It was proper, under such circumstances, to describe the plaintiffs as “executors.” They are ex officio invested with the title for trust purposes, and, as such, they are entitled to maintain the action. Were it otherwise, the averments in the complaint are sufficient to affix to the plaintiffs their proper representative character, and, when that appears in the body of the complaint, an erroneous description in the caption is immaterial. Stilwell v. Carpenter, 2 Abb. N. C. 238; Beers v. Shannon, 73 N. Y. 297.

It is also claimed that the plaintiffs did not take title under Mr. Clark’s will, or rather that their title was deferred until the actual partition of the estate into eight parts, and that, until such division, the fee passed to the heirs at law subject to the execution of the power to divide, etc. This is an inaccurate view of the legal effect of the will. Under the sixth clause the residue of the estate, real and personal, was devised to these executors, “in trust to receive the rents, issues, and profits thereof, and to apply the same to the use of Mr. Clark’s grandchildren during their respective natural lives, one share being held in trust for each grandchild.” Under this clause the executors took the whole estate, in law and in equity, subject only to the execution of the trust. This is entirely consistent with the creation of eight separate trust-estates. In law the separation of the trust-estates is effected by the provisions of the will, and this is not dependent upon an actual division or partition in specie. Prior to such actual division or partition, the executors in their trust capacity are vested witli each of the undivided eight shares in trust for each of the eight grandchildren; and thus they are vested witli the whole. The absolute power of alienation is not unlawfully suspended by the consolidation of an estate into one trust, so long as it is a “trust for distribution and payment to each beneficiary, or class of beneficiaries, upon the events specified in the will. ” Wells v. Wells, 88 N. Y. 332, 333; Monarque v. Monarque, 80 N. Y. 324; Stevenson v. Lesley, 70 N. Y. 515. In such a case the trustees are vested with the whole estate, just as all the tenants in common of a piece of real estate are so vested, but the legal rights of each cestui que trust are separate and distinct. The plaintiffs’ rights are not affected by the death of one of these eight grandchildren (Mary C. Le Roy) subsequent to the commencement of this action. Damages were not awarded to the plaintiffs for trespasses committed after Mary 0. Le Roy’s death. Such damages were limited to the time of the commencement of the action. The plaintiffs were clearly entitled to all these damages. As executors, they were entitled such as resulted from loss of rental values in the testator’s life-time. As trustees, in their executorial capacity vested with the fee, they were entitled to such as resulted from loss of rental values after the testator’s death, and, in such an action as the present, they could recover in both capacities. Shepard v. Railroad Co., 117 N. Y. 442, 23 N. E. Rep. 30. Upon the issues as they stood at the time of the trial, they were also entitled to an injunction. There was no plea of a defect of parties, and no injustice was done by a refusal to permit the cause to stand over to enable the defendants to raise this technical point. Upon the death of Mary O. Le Roy, the undivided share held in trust' for her passed under Mr. Clark’s will to the other seven grandchildren. The court provided that the injunction, to which the plaintiffs were absolutely entitled under the pleadings as they stood, should not go into effect, unless, upon the defendants’ tender of the adjudged value of the easements, there was delivered to them a proper conveyance duly executed by all of these seven grandchildren, as well as by the executors and trustees. The court thus made ample and even superfluous provision against any possible prejudice to the defendants resulting from the failure to make these seven grandchildren parties. We say “superfluous” because the plaintiffs, even after the vesting of Mary C. Le Roy’s share in these seven grandchildren, had a power of sale entirely sufficient to confer upon the defendants a perfect title these easements.

There is nothing in the point as to the statute of limitations. The trespasses are continuous, and a cause of action accrues daily. The equitable cause of action which accrued 10 years ago resulted from the continuous trespasses then committed. The present cause of action is based upon the continuous trespasses of to-day. There can be no limitation to such actions, whether legal or equitable, short of the 20 years from which a grant is presumed.

There is no greater force in the claim of acquiescence, and the cases cited by the appellants on that head (including specially Hentz v. Railroad Co., 13 Barb. 655.; McAulay v. Railroad Co., 33 Vt. 311; Goodin v. Canal Co., 18 Ohio St. 169) are entirely inapplicable. They proceed either upon the doctrine of estoppel or upon the principle that an injunction should not be granted until all the ordinary means for obtaining indemnity have failed. The rule governing estoppels is clearly inapplicable. To constitute an equitable estoppel there must have been some-act or admission by the party sought to be estopped inconsistent with the claim he now makes, and done or made with the intention of influencing the conduct of another, which he had reason to believe would, and which did in fact, have that effect. Silence will not estop, unless there is not only a right, but a duty, to speak. Rubber Co. v. Rothery, 107 N. Y. 310, 14 N. E. Rep. 269. In Campbell v. Seaman, 63 N. Y. 568, it was held that no acquiescence short of ,20 years will' bar one from complaining of a nuisance, unless by some act or omission he has induced the party causing the nuisance to incur large expenditure, or to take some action upon which an estoppel may be based. See, also, Haight v. Price, 21 N. Y. 246. In Chapman v. City of Rochester, 110 N. Y. 277,18 N. E: Rep. 88, the question of estoppel by acquiescence was also considered. The city had there constructed sewers in such a manner as to render the water in a creek above the plaintiff’s land unfit for use. Danforth, J., speaking for the court, said that the plaintiff was not estopped by acquiescence in the proceedings of the city i.n devising and carrying out its system of sewerage. “It does not appear, ” he observed, “that the plaintiff in any way encouraged the adoption of that system, or by any act or word induced the city authorities to so direct the sewers that the flow from them should reach his premises.”

• The defendant’s structure, being authorized by law, is not a nuisance, but for that very reason the rule enunciated in Campbell v. Seaman and Chapman v. City of Rochester should be applied, and applied even more stringently than in the case of a nuisance. Where the structure is authorized by law the property owner cannot complain of it per se. His only complaint is of the failure to offer him due compensation, or to condemn his property under the right of eminent domain. In the present instance, it cannot truly be said that the property owners stood by and permitted large or any sums to be expended on the faith of their apparent acquiescence. Acquiescence in what? In the building of the road? Tes; but, even as to that, the word “resignation” would better express the property owners’ condition. Hot, however, in the taking of their property without compensation. 1 ,.e elevated railroad was constructed with the clear understanding that there was no such acquiescence. It was constructed as already suggested under legislative authority,.—authority claimed to be sufficient to entitle the promoters of the enterprise to appropriate these easements without compensation. The property owners saw the road built regardless of their wishes, and in defiance of their rights. ' It has been repeatedly held, and it is sound doctrine, that failure to assert their rights while the road was in process of construction did not, under the circumstances, work an estoppel. The promoters of the railroad proceeded in reliance upon what they supposed to be the law, (see Powers v. Railroad Co., 120 N. Y. 178, 24 N. E. Rep. 295,) not at all in reliance upon the property owners’ inaction, and the latter’s acquiescence was, as we have seen, only in the construction of the road under legislative authority, not in the appropriation of their easements without just compensation. The road was built in the year 1878, and it was not until the year 1882 that the court of appeals finally decided that compensation was a right. Story v. Railroad Co., 90 N. Y. 122. Even after this decision, the property owner had no direct means of compelling compensation. He cannot apply under the act with regard to condemnation proceedings, nor can he compel the corporation to apply. He certainly cannot maintain ejectment for thceasements of light, air, and access; nor can he secure the value of his easements in actions of trespass for the damages sustained day by day. Pond v. Railway Co., 112 N. Y. 186, 19 N. E. Rep. 487, “A recovery of judgment for damages for a trespass or the invasion of an easement,” said Andrews, J., in the Pond Case, “does not operate to transfer the title of the property to the defendant, either before or after satisfaction, nor does it extinguish the easement.” The only remedy, then, whereby just compensation for the property taken can be compelled is an action in equity to restrain the continuous trespasses. To deprive the plaintiff of an injunction nisi would therefore be to leave them remediless in that regard. It would be to admit the existence of a distinct wrong without a specific remedy, and it- would also be to permit the possibility of the wrong ripening by presumption into a right. It was held in Campbell v. Seaman, supra, that, under our present system, the right to an injunction in a proper case is just as fixed and certain as the right to any other provisional remedy. It is no longer a matter of grace, “except,” as Earl, J., observed, “that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. It can rightfully be demanded to prevent irreparable injury, interminable litigation, and multiplication of suits.” We think, therefore, that the remedy by injunction was properly granted in the present case.

The only other point calling for special consideration is that based upon the seeming inconsistency in the conclusions of law, found by "the learned judge at special term. In the fifteenth and sixteenth findings of fact, the learned judge finds the diminution of the rental value of the plaintiffs’ premises, caused by the erection, maintenance, and use of the defendants’ railroad, from the 14th day of June, 1883, to the 14th day of June, 1889. In the first conclusion of law he finds that the plaintiffs are entitled to recover from the defendants the damages awarded by these findings of fact. At the request of the defendants, however, he found in the fourth conclusion of law that the plaintiffs are not entitled to recover any damages in this action which occurred prior to the death of their testator the 11th of July, 1884. This was plainly an inadvertence. The learned judge had already found, and correctly, that the plaintiffs were entitled to recover these very damages. If the inconsistency had been in the findings of fact, the appellants might have invoiced the rule that, where such findings are irreconcilable, those most favorable to them should be taken. Redfleld v. Redfleld, 110 N. Y. 673, 18 N. E. Rep. 373. There is, however, no inconsistency in the facts found, and upon these there can be no doubt as to the proper conclusion of law. It is that the plaintiffs are entitled, as found in the first conclusion of law, to recover the sums specified in the fifteenth and sixteenth findings of fact. We agree with the superior court in Welsh v. Railway Co., 8 N. Y. Supp. 492, Ingraham, J. writing the opinion, that “no principle requires us to reverse a judgment because of inconsistent conclusions of law, when the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.” The sums awarded for past damages, and allowed for the value of the easements, were reasonable. We have examined the evidence on this head, and see no reason for disturbing the findings of the learned judge at special term. And we are at a loss to understand what the appellants mean by the assertion in their brief that these sums have been awarded arbitrarily, and without evidence to sustain them. Such assertions are gratuitous, and without justification in the record. The judgment should be affirmed, with costs. All concur.  