
    Robert F. Shepard et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed December 3, 1889.)
    
    1. Parties—Action against elevated railroad—Widow of tenant.
    The widow of a deceased tenant in common may be joined as a plaintiff in an action to restrain the continuance of an obstruction to real property in which she has an estate of dower.
    2. Same—Administrator op deceased tenant.
    Where in such an action incidental damages for the maintenance of such obstruction are sought, the administratrix of the deceased tenant in common may be properly joined as plaintiff.
    3. Same—Rule op damages.
    The administratrix is entitled to the compensation for temporary damages suffi red by intestate up to the time of his death and his heirs-at-law for all damages subsequently suffered.
    Appeal from judgment of New York superior court, general term, affirming judgment for plaintiff entered on order overruling demurrer of defendants.
    The plaintiffs by their complaint ask for damages sustained by reason of the existence of the Metropolitan Elevated railroad structure in front of certain premises in New York city and for an injunction against the continuance of the obstruction in the street and the operation of the road. The defendant demurred on various grounds; but the demurrer insisted upon was that causes of action were improperly united in the complaint; in that causes of action have been united which do not affect all the parties to the action. Prior to April, 1887, the premises were owned in fee by the plaintiffs, Robert F. Shepard and Mary N. Shepard and by Francis N. Shepard, as tenants in common. In that month Francis N. Shepard died, intestate, leaving him surviving the plaintiffs, Frances S. Shepard, his widow, and Francis B. Shepard, Jr., Dene F. Shepard and Dorothy B. Shepard, his only children and heirs-at-law. His widow became administratrix of his estate. The plaintiffs, Bobert F. Shepard, Mary N. Shepard, and the three children of Francis N. Shepard, deceased, are seized in fee of the premises, as tenants in common, and in bringing this action the widow of Francis R. Shepard was joined as a party-plaintiff in two capacities, viz., as administratrix, to recover thg past damages which accrued to the estate of the deceased tenant in common, and individually, with respect to her dower interest in the portion of the premises now owned by the children of the deceased. The demurrer was overruled at the special term of the superior court of the city of New York and an interlocutory judgment entered to that effect. That judgment was affirmed at general term and the defendants, having obtained a certificate of the court, have appealed to this court.
    
      Edward S. Rapallo, for app’lts; E. W. Tyler, for resp’ts.
   Gray, J.

I think the appellants must fail in their appeal. The action is one in equity, and the complainants named include all the parties who have an interest in the equitable relief which is sought, and in the damages which may be awarded as incidental to that relief. The plaintiffs, other than Frances S. Shepard, as tenants in common, are the owners of the fee of the premises alleged by the bill of complaint to be affected by the construction and operation of the defendant’s railroad, and their joinder was not only proper, hut necessary. In them, collectively, is vested the whole title, and the failure to join them as parties would be a defect available to defendants by demurrer. Code Civ. Pro., §§ 446, 488; De Puy v. Strong, 37 N. Y., 372 ; Crippen v. Morss, 49 id., 63. Frances S. Shepard, the other person named as a plaintiff, joins in the capacity of an administratrix of the deceased tenant in common, and, also, in her individual capacity, as his widow and claimant in dower. In the latter, her individual capacity, I do not see any difficulty in recognizing the propriety of her becoming a party plaintiff. The lands which descended to the children of Francis N. Shepard, her deceased husband, were charged with her dower right, and that is an interest which the law not only recognizes but protects, by giving the right to the claimant to maintain an action to recover it. The right,, which was inchoate in her, became, by her husband’s death, a vested interest, and until, by assignment or satisfaction, that right is extinguished, she is entitled to stand with the present owners of the realty, and to unite with them in asserting the right to-restrain the continuance of the defendant’s acts, by which the realty is said to be injured and its value impaired. In her capacity as administratrix, she would be entitled to receiv e the compensation which would he awarded by the court, if it granted the main relief asked, for the temporary damages sustained by her intestate, as a part owner of the premises, up to the time of his death. Subsequent to that time such damages would be apportionable to his children, as his heirs and successors in the title.

Row I concede that, in her capacity as administratrix, Mrs.. Shepard may not he a necessary party; but, nevertheless, I am of the opinion that she may properly be joined with the plaintiffs in the action. Her right to sue, as such administratrix, does not arise out of Has present maintenance and operation of the railroad,. it is true, for it is based on her right to recover the temporary damages which her intestate sustained in his life-time in the impaired enjoyment of his property rights. While, therefore, as an individual, she is entitled to maintain an equitable suit to restrain the defendants from maintaining them railroad, in protection of her dower interest, as administratrix she could not maintain such an action, but is entitled to share in any damages which the court may award under its decree granting the equitable relief. In both capacities she may be interested in the incidental award of compensation for injuries sustained to the property; but the fact that she, as administratrix, has only a claim upon the damages which may be awarded as incidental to the decree is not a sufficient reason for holding that she is improperly joined with the complainants. That is a feature of the action and does not constitute a defect, nor an inconsistency in the causes of action set forth in the complaint. The action is based upon the averment of an intrusion upon, and an appropriation of, property rights by the defendants, and upon the right to the interposition of a court of equity to prevent, by injunction, the continuance of the defendants’ injurious acts.

As a proposition plainly deducible from the authorities and based on established principles of equity jurisprudence, I think that in such an action the presence of all the parties who are interested in the subject of the suit, and whom the provisions of a decree would or might affect, is proper, if not actually necessary.

In Mitford’s Pleadings the author (afterwards Lord Redesdale) says (p. 163), “It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation.” And Lord Hardwicke said in Poore v. Clark, 2 Atk., 515, that “if you draw the jurisdiction out of a court of law you must have all the persons before this court who will be necessary to make the determination complete and to quiet the question.” In Hawley v. Cramer, 4 Cow., 728, Walworth, V. C., held that the rule in equity for the joinder of all persons having an interest in the distribution of the fund or the subject matter of the suit was well settled, and that “ although there were exceptions to this rule, those exceptions are by way of excuse for not bringing all the parties in interest before the court.” * * * The general rule, as sanctioned by the authorities, is, unquestionably, that all persons materially interested in the subject of the action and in the relief sought, ought to be made parties. The Code of Civil Procedure, by its provisions, manifestly recognizes this principle, which, from so early a day in the history of equity jurisprudence, has been so essential a feature in equity procedure. Section 446 provides for the joinder of “ all persons having an interest in the subject of the action and in obtaining the judgment demanded.”

The present action was necessarily one on the equity side of the court; as the main relief sought was the injunction against the defendants. The decisions of this court have settled the rights of abutting property owners to an easement in the street, occupied by the defendant’s structure, for free egress and ingress and for the free admission of light and circulation of air. That easement is property and constitutes an interest in real estate, and because the defendant’s railroad was a use of the street not originally designed and was an appropriation to themselves of property rights, it cannot be maintained without compensation being made to the abutting owners for the injury inflicted upon their property and rights; and for the annoyance, caused through the operation of the road, to the abutting owners, in their enjoyment of the use of their property, they are entitled to recover such damages as may be shown to be the result of the defendant’s acts. Story v. Elevated R. R. Co., 90 N. Y., 122; Lahr v. Elevated R. R. Co., 104 id., 268; 4 N. Y. State Rep., 340.

Although property owners have a remedy at law for the intrusion upon their rights, yet as the trespass is continuous in its nature, they can invoke the restraining power of a court of equity in their behalf, in order to prevent a multiplicity of suits, and they can recover the damages they have sustained as incidental to the granting of the equitable relief. Williams v. N. Y. C. R. R. Co., 16 N. Y., 97; Henderson v. The Same Company, 78 id., 423. The violation of the property rights of abutting owners being adjudged in such an action, the awarding of damages sustained in the past from the defendants follows: they being, on equitable principles, deemed incidental to the main relief sought. Story Eq. Jur., 794, 795, 799. With the object of doing complete justice to all persons interested, if the incidental relief to be granted by way of damages for the past injuries affects other parties than the present owners of the fee, is there any reason why those other parties should not be brought into the action ? I see none, where the parties so joined derive their right of action from the same source, in the injury to the same property rights and have a common interest in their enforcement;. The equitable principle in the administration of justice demands the presence of all persons whom the decree of the court can affect and bind; and these defendants cannot be prejudiced by the application of this principle. If the decree grants the injunction demanded, against the maintenance and operation of the road of the defendants, and awards damages for the injuries and losses sustained by the owners of the property, in the past, these damages must be awarded by the court as the several rights of persons to the same shall be ascertained and they will be apportioned to and among those persons accordingly. In this case, if the intestate, Francis N. Shepard, liad been living when the action was commenced, he, with his brother and sister, the plaintiffs, Robert F. and Mary N. Shepard, would have completely represented the right of assertion of an injury to the realty. In himself he would have resumed all the rights pertaining to or growing out of his undivided ownership of the fee and upon which the court would administer, in and following the decree.

As a consequence of his decease the realty descended to his children, and with it, the right to maintain such an action for the protection of property rights and for compensation for past injuries to those rights. But his decease operated to vest the right to those past damages, partly in his administratrix and partly in his heirs at law. They could only recover the damages suffered since the devolution of the title upon them by the intestate’s death; while as to those accruing up to the time of his death, the administratrix alone was entitled to receive them, as part of the estate to be administered upon by her.

But I think that while the administratrix might have a separate right of action at law for the damages sustained by her intestate during his life time, that fact does not render her presence in the action improper, or legally objectionable. The subject of the action is the construction and operation of the railroad and the appropriation and intrusion by the defendants of and upon property rights and the damages occasioned thereby. The cause of action is the right to assert the injury to these property rights and to demand relief against its continuance and the damages theretofore sustained. It seems to me perfectly clear that a cause of action for the maintenance and operation of the railroad and a cause of action for the temporary damages sustained both arise out of the same transaction; namely, the intrusion by the defendants upon the property rights of abutting owners. They are clearly not inconsistent in a legal sense and as to the requirements of § 484 of the Code, I think they are fully met. As the administratrix is interested in the damages which would be awarded upon the granting of the main relief, she may be said to be interested in, or affected by the decree prayed for, and she would be bound as to her rights by the proceedings subsequent to the decree, in the award and distribution of the damages. The other plaintiffs are of course interested in the award and distribution of damages as to the intestate’s interests; either as co-tenants with him, or as his representatives in various legal capacities.

The object of the Code is, as it is the aim of equity, to avoid a multiplicity of actions and useless expense, and to effect a complete determination of all matters which may come into controversy and litigation between the same parties,, by one action. If this intestate had been living he could only have maintained one action, and neither the authorities nor principle suggest a reason why upon his death those upon whom his property interests have thereby devolved, and who in their combined personalities represent him, and who have a common interest in holding the defendants liable for their acts, should be obliged to bring separate suits.

I think that the court below was right in overruling the demurrer of the defendants and that the order and judgment of affirmance at the general term should be affirmed here,, with costs, with leave to the defendants to answer within twenty days upon payment of the costs in all the courts since the demurrer.

All concur, except Earl, J., not voting. 
      
       Affirming 24 N. Y. State Rep., 185.
     