
    SWETT against THE CITY OF TROY.
    
      Supreme Court, Third District;
    
    
      Special Term, February, 1872.
    Compensation. —Eminent Domain. —Injunction.
    One whose property is not actually and physically touched or taken, is not entitled to compensation for indirect or consequential injuries arising from the lawful and proper erection of a public work. *
    Under sanction of the legislature, a railroad bridge was built over a stream within city limits; and, on the destruction of the bridge by fire, the city proceeded to erect another bridge on substantially the same site, but built it so that it might be used not only for a railroad bridge but also for the accommodation of foot passengers and teams. Plaintiffs, who owned a foundry on the stream, and relied mainly on the stream for power to propel their machinery, sought to enjoin the construction of the bridge until compensation was awarded them for the loss to them, produced by building the piers for the bridge in the channel of the stream.—Held, that no action would lie, as plaintiff’s land was not touched, and the damage to them, if there were any at áll, would be merely indirect or consequential.
    An injunction should not be granted where the damages are capable of being estimated by a money standard and the defendant is able to respond.
    * As to the measure of damages respecting a part not taken, where another part is taken, see 10 Abb. Pr. N. S., 182, and cases cited.
    Motion to dissolve an injunction.
    George W. Swett and others obtained an injunction to restrain the construction by the city of Troy of a bridge over the Poestenkill, and within said city, in such manner as to obstruct the flow of the water from the plaintiff ’ s foundry, and to prevent the free passage of ice from their dam. About twenty years before the action was brought, a bridge was erected at substantially the same locality by the Union Railroad Company, under an act of the legislature, passed June SO, 1851; such bridge was constructed with the consent of the city, and was used by said company for the passage of its cars and for other purposes, until it was defrayed by fire. The city of Troy resolved to construct another bridge at the same place, of capacity sufficient to accommodate such railroad company, and also to furnish a suitable bridge for the passage of teams and persons on foot; such bridge was being built of stone, with two piers located within the stream. The plaintiffs were the owners of and conducted a foundry and other works, and mainly relied upon said stream for power to propel their machinery. Their dam was situated a few rods from where the bridge was located ; no portion of the plaintiff’s land was touched or taken by the defendants in erecting said bridge. The plaintiffs claimed, however, that the construction of snch piers in said stream would inevitably have the effect to prevent the water from flowing freely from their works, and would also obstruct the passage of the ice from their mill pond, thereby occasioning them serious injury and damage. They demanded that such bridge should not be constructed, in the manner proposed, until compensation was awarded to them. The affidavits read upon the motion were very conflicting upon the question whether or not the plaintiff’s property would be injured by such bridge, on account of any serious obstruction in the flow of the water, or passage of the ice. There was also a disagreement in regard to the extent the street, with which said bridge was to be connected, was then and had been used as a highway or thoroughfare.
    
      
      Martin I. Townsend and Irving Browne; for plaintiffs.
    
      R. A. Parmenter and John P. Albertson, for defendants.
   Ingalls, J.

The bridge in question is being constructed by the city of Troy, for public purposes, and within the limits of said city, upon one of the streets thereof) designated upon the map of said city, and no portion of the plaintiff’s land is touched or taken. I am unable to distinguish this case in principle, from Ely v. City of Rochester (26 Barb., 134). There is a striking similarity between the facts of the two cases, and the reasoning of the court in that case applies with force upon the case under consideration.

A distinction is sought to be drawn by the counsel of the plaintiffs upon the ground, that in the case referred to, the bridge had been used as a public highway or thoroughfare for many years. Whereas in frhip case the bridge had been used, previous to its destruction, for railroad purposes only. If the latter fact should be deemed established, although the affidavits upon that question are very conflicting, I do not think the plaintiffs have succeeded in so far distinguishing their case, as to avoid the force and effect of the decision in Ely v. City of Rochester. In the last mentioned case the bridge was erected in 1824, with two abutments, and two stone piers located within the channel of the river, and was so used for a period of about thirty years. The new structure was built of stone with five arches supported by four stone piers in the channel of the river, with a stone abutment at each end of the bridge. The bridge which was destroyed by fire, and which the city of Troy is attempting to replace, was built about twenty years since, pursuant to an act of the legislature, passed June 20, 1851 (Laws of 1851, ch. 255), and previous to its destruction had been used for such public purpose. As to the nature and legal effect of such use, see Bellinger v. New York Central R. R. Co. (23 N. Y., 42). The defendants now propose to construct two piers within said stream. I fail to see why the city of Rochester had acquired any greater right to obstruct the Genesee river by the erection therein of the additional piers) to the prejudice of the mill owners who were dependent upon said stream for propelling their machinery, than the city of Troy possesses to erect upon substantially the same site the bridge in question, after the former bridge had been used for so great a length of time for public purposes with the consent of said city and for its advantage. And especially so, when the city now propose to so construct the bridge in question as to accommodate not only the railroad company but also the public at large by making it a part of the highway of said city (See, also, Radcliff v. Mayor, &c., of Brooklyn, 4 N. Y., 195 ; People v. Kerr, 27 Id., 188; Chapman v. Albany & Schenectady R. R. Co., 10 Barb., 360; Arnold v. Hudson River R. R. Co., 49 Id., 108).

In the last case, Gilbert, J., remarks: “The cases establish the principle that the legislature may rightfully authorize the construction of railroads or other works of a public nature, without requiring compensation to be made to persons yrhose property has not actually been tafeen or appropriated for the use thereof, but who may nevertheless suffer indirect or consequential damages by the construction of such works. The case is clearly within the principle stated. What property of the plaintiffs has been taken or appropriated? None whatever. They may suffer an injury by having the easement or servitude with which the estate of their grantor, and the roadway of the defendants are burdened, impaired. But this is an injury which the property of the plaintiffs suffers in consequence of the construction of a public work under legal authority, and not the taking of their property. Such loss has always been regarded as damnum, absque injuria, except in cases when by the statute compensation, is required to be made.” In Sedgw. on Slat. & Const. L., p. 519, under the title Taking Private Property for Public Use—When deemed taken,— the author remarks, “It seems to be settled, to entitle the owner to protection under this clause, the property must be actually taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damage, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain. This rule has been expressly declared in many of the States of the Union.” The author cites quite a number of decisions in the courts of this State and elsewhere in support of his position.

It has been before remarked that no portion of the plaintiffs’ land has been taken or touched by the defendants. And the injury which the plaintiffs appre hend is indirect and consequential. There is no rule by which it can be ascertained or estimated, before the effect of the proposed structure upon the stream is observed, after its completion. Until then all conclusions in this respect must, at best, be only conjectural and uncertain.

We have been referred to a series of decisions bearing upon the rights of riparian owners and defining the nature of such rights. But the rule which obtains in such cases is hot necessarily applicable, where, as in this case, the apprehended injury must be occasioned by an interference with a stream by the construction of a public work by public authority, and where the land of the party complaining is not actually taken. I am satisfied that within the principle settled by adjudged cases that the plaintiffs have failed to establish such an interest in real property to be affected in such manner by the structure in question, as to entitle them to demand compensation before the work is completed, or which justifies the continuance of the injunction.

Reference has been made to the case of George W. Swett against the Mayor, &c., of Troy, in which an injunction was granted and sustained. But in that case there was a direct physical injury to the plaintiffs’ land, as the city undertook to fill up the plaintiffs’ mill pond, and in part upon the land of the plaintiffs, which last mentioned fact creates the distinction in this respect between that case and this. It does not seem to be contended by the plaintiffs that the bridge is not being constructed with skill and in a proper manner to answer the purposes intended, and in this respect it is not objectionable.

The affidavits read upon this motion are numerous and very conflicting in regard to the probable effect which the structure will have, when completed, upon the flow of water from the plaintiffs’ works, and also, in regard to the effect of ice in its passage from the plaintiffs’ dam. Each party has advanced a theory in respect to the probable effect of the work in question, and endeavored to support it by facts and scientific investigations and speculations. In order to authorize the continuance of this injunction the plaintiffs are bound to establish a clear legal right to such injunction, and that they have no other adequate remedy. In Sixth-avenue R. R. Co. v. Kerr (28 How. Pr., 283 ; affg. 45 Barb., 138), Sutherland, J., remarks: “The threatened injury or grievance must be irreparable, or such as cannot be compensated in damages at law, to authorize a court of equity to interfere.” In the same case another member of the court says : “The injunction should be refused till the final hearing, when the subject of compensation can be considered, and if necessary, can then be enjoined, unless payment shall be made” (Thomp son on Provisional Remedies, 207-208, and cases there cited). In this case there is no question as to the responsibility of the defendants to respond, in case the plaintiffs establish a legal claim' to damages. Again, if the structure is completed, and it should be adjudged that it materially and permanently affects the plaintiffs’ property to such an extent that it cannot be compensated by an award of damages, and that the plaintiffs are legally entitled to relief, it will be in the power of the court to compel a change or removal of the structure in question.

I conclude that the case does not authorize the continuance of the injunction, and the same must therefore be dissolved, with costs of this motion.  