
    BERNHEIMER v. MANHATTAN RAILWAY COMPANY.
    
      N. Y. Common Pleas, Special Term;
    
    
      December, 1890.
    1. Injunction; continuing trespass ; easementi\ The rule that to prevent multiplicity of litigation, a continuing trespass, though only of nominal damage, may be restrained, does not apply where the property infringed is an easement only.
    2. The same; nuisance; substantial damage.To justify the extraordinary remedy of an injunction against a nuisance, something more must be shown than nominal damage from a technical wrong.
    
    3. The same ; operation of elevated railroad in streets, In an action in equity by abutting owners to enjoin the operation of an elevated railroad in the street in front of their premises, the sum to be awarded as the alternative of the injunction is not the amount of loss the plaintiffs have already sustained, but all the loss they will thereafter sustain from the appropriation of their easements of light, air and access to the purposes of the railway; and it is therefore proper to consider the advantages of the locality of the plaintiff’s lots for residential purposes,' the effect of defendants’ railway structures in neutralizing these advantages, and the comparative value of the lots for any other practicable purpose.
    
    4. The same ; advance in value of plaintiff’s lotsi\ Where it appears that, although plaintiff’s property has advanced in value since the construction of the railroad, property in adjacent streets, not affected by the presence of the railroad, has advanced in value to a much larger extent since the construction of the railroad, this tends to prove that whatever may have been the benefit of the railroad to the plaintiff’s property, the injury therefrom preponderates, and that the railroad is a substantial injury to the plaintiff’s property,, justifying the issue of an injunction against its continued operation.
    Trial by the court.
    Action by Isaac Bernheimer and another against the Manhattan Railway Company, to enjoin the operation of defendant’s railway in the street fronting the plaintiff’s premises.
    The material facts appear in the opinion.
    
      Dessar & Reilly, for the plaintiffs.
    
      E. C. James, (Davies, Short & Townsend, attorneys,) for the defendant.
    
      
       Compare for the limits of this doctrine Gilford v. Babies’ Hospital, 21 Abb, N. C„ 159 ; Webb v. Portland Manuf. Co., 3 Sumn, 189; 3 L. Rep. 374.
    
    
      
       See note at the end of preceding case.
    
   Pryor, J.

The action is in equity, to enjoin the maintenance and operation of defendant’s railway in the street fronting plaintiff’s premises.

The issue to be determined is, whether the invasion of plaintiff’s property be so serious as to require redress by the extraordinary remedy of injunction. The rule that, to prevent multiplicity of litigation, a continuing trespass, though only of nominal damage, may be restrained (Wheeler v. Noonan, 108 N. Y. 179, 183), is inapplicable to this case ; because here the property infringed is an easement only, and an incorporeal interest is not the subject of trespass (7 Lawson’s Rights, Remedies and Practice, § 3659 ; Cooley on Torts, 440). The wrong inflicted upon plaintiffs by defendants is the maintenance of a nuisance (Uline v. R. R. Co. 101 N. Y. 98, 107); and it is settled law that to enjoin a nuisance complainant must show something more than nominal damage from a technical wrong (Campbell v. Seaman, 63 N. Y 568, 586). “A fanciful diminution of the value of property by a nuisance without irreparable mischief will not furnish any foundation for equitable relief” (Snell’s Principles of Equity, 562 [Eng. ed., 1878] ; A—G. v. Nicholl, 16 Vesey, 342, St. 925).

In this case I cannot resist the conclusion that the value of plaintiffs’ property is substantially diminished by the presence and operation of defendants’ structures.

The principle of injury applied in Tallman v. R. R. Co. (121 N. Y. 119), is here totally inapplicable. There the action was at law for damage to rental value ; and, of course, the court held that the estimate of damage must proceed upon the basis of the then condition of the property, and that, in the computation of the actual loss of rentals, evidence of potential loss was irrelevant and inadmissible. But, in this equity suit for injunctive relief, the question is of permanent injury to the inheritance, and the sum to be awarded as an alternative of the injunction is not the amount of loss plaintiffs have already sustained, but all the loss they will hereafter suffer from the appropriation of their easements to defendants’ purposes. In other words, this is an assessment of the value of private property taken for public use, and in such case the “just compensation ” of the constitution requires that, in determining the value of the property, “ due regard must be had to all the uses for which it is available and which tend to enhance its value ” (1 Hare’s American Constitutional Law, 349; Boom Co. v. Patterson, 98 U. S. 403).

It is legitimate, therefore, to consider the advantages of • the locality of plaintiffs’ lots for residential purposes ; the effect of defendants’ railway structures in neutralizing those advantages, and the comparative value of the lots for any other practicable purpose. I am of opinion that the utility of plaintiff’s lots as a site for residence is destroyed, and that their value for any other purpose is less than their value before the railroad.

Plaintiff’s evidence shows that before the railroad the lots were worth $50,000, and that now they are worth $55,000—an increase of $5,000. Defendant’s evidence shows that before the railroad the value of the lots was $26,000; and that now their value is $60,000—an increase of $34,000. Plaintiff’s witness testifies that the railroad depreciates their property twenty-five per cent.; defendants’ witness swears that it enhances the value of the property twenty-five per cent. Such an egregious discrepancy of estimate affords a striking illustration of the untrustworthiness of expert testimony. But, of the two witnesses, plaintiffs’ seems entitled to the greater confidence, because of his larger experience and his better opportunities of information.

From the evidence I deduce that property in adjacent streets not affected by the presence of defendants’ railroad has doubled in value since the construction of the railroad. This fact tends to prove that whatever be the benefit of the railroad to plaintiff’s property, the injury from the railroad still preponderates—a probable conclusion, indeed, from the nature and relation of the railroad to the property.

And, among others, this fact, namelj’-, the greater increase in the value of property in neighboring streets not affected by the presence of the railroad, essentially distinguishes the present from the Brush case.

I am of opinion that, upon the whole, the defendants’ railway is a substantial injury to plaintiff’s property, and that accordingly, an injunction should issue. But, 1 must avow the greatest perplexity in measuring that injury by a money standard. 
      
       Brush v. Manhattan Railway Co., ante, 73.
     