
    John C. Pegram et al., as Trustees, etc., App’lt, and Resp’ts, v. The New York Elevated Railroad Company et al., Resp’ts and App’lts, Impleaded, etc.
    
      (Court of Appeals,
    
    
      Filed October 8, 1895.)
    
    1. Injunction—Elevated railway—Equity.
    Where, in an action against an elevated railway, the main relief sought is an injunction, restraining the company from maintaining and operating its road to the prejudice of the abutting property, the including in the prayer for relief of a demand for past damages does not affect or change the equitable nature of the action.
    
      % Same—Conveyance of fee.
    Where, upon the trial of such an action, it appears, by proof of the plaintiff's conveyance of the fee of the premises to a third party, that the legal title is no longer in the plaintiff or in any one before the court, he is deprived of his right to insist upon any relief by way of injunction against the company. Such result is not prevented by a reservation in such conveyance of a right to the damages which had been, or might thereafter be, caused to the property, because of the construction, maintenance and operation of the road, with the right to use the grantee’s name, either in the release of the easement in the street to the company or in any suit against it.
    3. Same—Jury—Waiver.
    Where the company, with knowledge of the existence of the plaintiff’s conveyance for a period long before the trial, takes no step but suffers the plaintiff to proceed and give evidence upon the trial in equity without objection, it waives any right to a trial by jury of the question as to past damages.
    4. Same—Retaining jurisdiction.
    In such ca'-e, the trial court, having acquired jurisdiction both in law and equity, may settle the litigation between the parties, so far as it is entitled to do so, by an award of the rental damage sustained by the plaintiff while holding the legal title to the premises.
    5. Same—Damages.
    The determination of the trial court as to the amount of damages sustained by the abutting property, when sustained by the general term and made without a gross violation or abuse of principle, should be left undisturbed on appeal to the court of appeals.
    Cross-appeals from judgment of the general term of the superior court of the city of New York, entered upon "an order which affirmed a judgment entered upon a decision of the court on trial at an equity term.
    The plaintiffs brought this action in equity, to restrain the defendant railroad companies from maintaining and operating a railroad in front of the premises known as Nos. 202 and 204 Pearl street and No. 113 Maiden lane, in the city of New York; and they asked, also, for a judgment against the defendants for the damages sustained to the premises.
    When the cause first came on for trial, at an equity term of the superior court of the city of New York, it appears that the defendants put in evidence a-deed, made by the plaintiffs after the commencement of their action, by which the premises in question were conveyed to one Schortemeier and a motion was made to strike the case from the equity calendar. The trial judge so ordered and his order being affirmed at the general tern, the plaintiffs appealed to this court therefrom. Upon the consent of. the defendants, however, an order was made in this court reversing the order of the superior court. When the present trial came on at an equity term again, no objection was made by the defendants to its proceeding there and nothing had been done before the commencement of the trial to obtain a trial by jury of the issues in the case. Upon the present trial the plaintiffs put in evidence the conveyance of the premises described in the complaint which had been made to Schortemeier. It contained the following provision :
    “ Said parties of the first part reserving to themselves and their successors all damages and claims for damages now or hereafter caused said property or the present and future owners thereof against the Manhattan Railway Company and the New York Elevated Railroad Company and their successors on account uf the construction and the present, past and future maintenance and operation of the elevated railroad in Pearl street and Maiden lane, and the right to convey or release in the name of the said party of the second part or his assigns to said railway companies, or either of them, or their successors, the easements in said streets now occupied and invaded by said railway companies, or either of them, and also the right to use the name of the party of the second part and his assigns (upon indemnifying them against costs) in any suit now or hereafter commenced against said railway companies, on account of the maintenance and operation of said elevated railroad in said streets, as now constructed, which right to use his and their names in such release, conveyance or suit, the party of the second part hereby contracts- for himself and his assigns to allow to the parties'of the first part.”
    The trial proceeded and upon the conclusion of the plaintiff’s case, the defendants moved to dismiss the complaint upon the ground that the plaintiffs had no interest in invoking the action of the court, inasmuch as they had no estate or right in the land and would not be capable of taking any benefit by injunction, if granted. The motion was denied and then the defendants gave their evidence in defense of the action. A judgment was ordered which awarded the plaintiffs the sum of ¡¡¡>’736.00 a year for the period of six years before the commencement of the action and until July 11th, 1889, which was the date of the conveyance to Schortemeier, as the damage inflicted upon the rental value of the-premises. The injunction asked for in the complaint was denied as were any damages sustained to the premises subsequent to July 11th, 1889. Both parties appealed to the general term; where the judgment entered upon the order of the trial judge was affirmed and both parties now appeal to this court. The plaintiffs appeal because of the refusal of the trial court to grant their demand for an injunction against the maintenance and operation of the railroad, or any damages to the rental value of the premises from July 11, 1889. The defendants appeal from so much of the judgment as awarded any damages to the plaintiffs.
    
      Roger Foster, for pl’ffs; Brainard Tolies and Julien T. Davies, for def’ts.
    
      
       Affirming 59 St. Rep. 576.
    
   Gray, J.

So much has been written in this court, in the course of the litigation which has grown out of the efforts of abutting property owners to obtain from the elevated railroad companies compensation for the deprivation of those easements of light, air and access, which were appurtenant to their property, that I deem it unnecessary in the present case to say more than what is needful in order to dispose of the questions which the cross-appeals have raised. The general principles underlying these equitable-actions have been elaborately discussed in many opinions and the right of the court, after deciding the complainant to be entitled to relief by way of injunction, to proceed to assess the damages sustained in the past, is firmly settled. If the court, sitting in equity, has gained jurisdiction of an action, wherein the main relief sought by the complainant is an injunction against the defendant, it will retain its control of the cause, generally, and, if it has happened that the acts of the defendant, which have been complained of and which are sought to be restrained, have caused, and will continue to cause, damage, the court may proceed in its own way to assess the damages sustained and to award judgment for them, as incidental to its grant of equitable relief by way of injunction. The court having the parties before it and, in order to ^prevent a multiplicity of suits and to settle up the whole matters in dispute, will so decree as to finally settle the whole controversy between them. When, as in the litigation connected with these elevated railroads, the court proceeds further and fixes the amount of the damage sustained to the fee of the property, which the defendant companies may pay in order to obviate the injunction, it does that which is a matter, not of strict legal right, but of equitable procedure and remedy, and which is resorted to by the court, that the corporation may acquire that legal right to maintain and operate its railroad in front of the complainant’s property, which' it might h.ave acquired, had it proceeded in the beginning to condemn the property owner’s rights under the law of eminent domain. The controlling idea, in the assumption by a court of equity of the authority to make a complete decree in such cases, which shall finally settle the respective rights and obligations of the parties, is, plainly, that all the parties are before it and that its decree will be effectual because operating upon all the parties who have any interest in the subject-matter of the litigation.

In the present case, when the plaintiffs commenced this action their complaint set forth but a single cause of action, which was. one purely for a court of equity ; inasmuch as the main relief ■sought was an injunction against the defendants, restraining them, from maintaining and operating their elevated railroad to the prejudice of the abutting property. Their demand for past damages, included in the prayer for judgment, did not affect or change the equitable nature of the action, for reasons which heretofore have been set forth in Lynch v. Met. E. R. Co., 129 N. Y. 274: 41 St. Rep. 541, and in subsequent cases following in the line of that decision. The action, when it reached the stage of a trial, was one which, on the pleadings, was cognizable by a court -of equity; but when it appeared, by the proof of the plaintiff’s conveyance of the fee of the premises to a third party, that the legal title was no longer in the plaintiffs, or in any one before the court, a condition of things arose which deprived the plaintiffs of the right to insist upon any relief by way of injunction against the defendants; because, in fact, they had no rights which the defendants could injure, or which an injunction could protect; unless, as the ■ plaintiffs claim, the reservation in the deed to Schortmeier had the effect to reserve to them the easements appurtenant to the premises, or, in some way, to give to them an equitable standing in court with respect to them, which would entitle plaintiffs to continue their action and to insist upon their demand for equitable relief against the defendants.

The plaintiffs were not the owners of the fee of the land occupied by the street and, when they parted with the legal title to the property abutting upon the street, they parted with every legal estáte or interest

In the reservation in the conveyance to Schortemeir, I find merely a right reserved to the plaintiffs to have all the damages which had been, or might thereafter be, caused to the property, because of the construction, maintenance and operation of the elevated railroad; with the right to use the grantee’s name, either in the release of the easement in the street to the railroad companies, or in any suit against them. If it could be assumed that the language of the reservation in the deed was sufficient to assign •easements appurtenant to the property, such assignment would be absolutely ineffectual. The easements of an abutting owner in the street, which are invaded by the construction, maintenance and operation of an elevated railway, are appurtenant to his premises and, as it was said in Kernochan v. N. Y. E. R. R. Co., 128 N. Y., at page 568; 41 St Rep. 110, “in the nature of things they are indissolubly annexed thereto until extinguished by release or otherwise. They are incapable of a distinct and separate ownership.” The right to enjoin the continuance of the trespass by the defendants upon those easements, could not be reserved upon the sale of the property. The right could only be possessed and enforced by its owner. Pappenheim v. Met. Elevated R. R. Co., 128 N. Y. 486; 40 St. Rep. 445. He is the person solely interested in the preservation of the estate in the abutting property in all its integrity, with all the incorporeal easements, or rights and privileges appurtenant thereto and he is the only person whom the law could regard as injured by a continuance of acts on the part of the defendants, which affect property and prevent its full and fair enjoyment in those ways which would be possible, if the .street were used as originally intended.

Hor can we, as the plaintiffs urge, for the purposes of the suit, hold that equity will consider the transaction as if no conveyance had been made and as though the title to the property still stood in the plaintiffs’ name. The grant of the fee to Schortemeier was complete and the reservation did not operate to lessen that grant, while purporting to reserve to the vendors rights against the defendants as trespassers upon the easements which were appurtenant to the property sold. The situation brought about by the plaintiffs’ conveyance of the fee of their property to Schortemeier was that the legal title was not represented before the court and could not be bound by any decree which the court might make. There was a third person not a party to the suit, in whom were vested that legal title and the right to enforce or protect the easements appurtenant to the property. Those easements had never been conveyed, as the effect of the reservation in the conveyance. Hor had they been, in any sense, extinguished thereby. They remained, in all their integrity, still appurtenant to the property. But, as between the plaintiffs and Schortemeier, the reservation in the conveyance would, upon its face, operate to retain in, or confer upon, the plaintiffs certain rights which Schortemeier could not, or ought not to disregard. However strong the language of the reservation, or however effective might be deemed Schortemeier’s testimony upon the trial to preclude him from thereafter claiming in derogation of the rights reserved to the plaintiffs in their conveyance to him, nevertheless, it is certainly apparent that a decree in an action to which he was not a party would not be conclusive upon him. There need be no question as to the right of the parties to agree to make such a reservation as this; but the effect of it, while certain in so far as it could not sever the easements from the laud, was a question between them, in the disposition of which the concern of the defendants was that in any action relating to a damage to the property for invasion of its easements the legal owner should be bound by the result. The defendants, clearly, are entitled to have the holder of the legal title to the abutting property bound by a decree, which permits them, as a condition of being relieved from the injunction, to acquire the legal right of maintenance and operation by the payment of the sum of money fixed by the court as the due compensation to be made. If the plaintiffs had brought in Schortemeier as a party defendant in the action, the court would have been in a position to adjust the equities and rights of all the parties and to render a complete decree, which would have been binding upon each. The equities created or arising between the plaintiffs and Schortemeier, through the reservation in the deed, can only be effectively adjusted by his presence as a party to an action which had that as one of its objects. Standing, as the holder of the legal title, outside of the action, if the reservation in the plaintiffs’ conveyance to him is operative to any extent, it may be deemed to make him, as the holder of the legal' title, a trustee for the plaintiffs with respect to any damages which might, •be recovered of the defendants, for the injury occasioned to the rental and fee value of the property, through an action brought in his name, or wherein he was joined as a party. The trial court, therefore, in my judgment, committed no error, in denying to the plaintiffs relief by way of injunction and in refusing to award damages from the date of their conveyance to Schortemeier. The-result in the trial court did not necessarily deprive the plaintiffs of whatever legal or equitable rights were conferred by the reservation in their deed and, in a proper action, they remain to be enforced, unimpaired so far as the result of this action is concerned.

Witli respect to the appeal taken by the defendants, little need be said. In my judgment they waived any right to the trial by jury of the question as to past damages. Had they deemed such a trial necessary, or their legal right, they should have taken steps in that direction, either by way of supplemental pleadings, or by way of some timely objection to proceeding with the trial in equity. Although knowing of the existence of the plaintiffs’ conveyance for a period long before the present trial, they took no-step and they suffered the plaintiffs to proceed and to give evidence upon the trial without objection. Thereby they must be deemed to have waived the right to a jury trial; and it was too late to obviate the effect of that waiver by the motion to dismiss the complaint, or by the request for rulings of law at the conclusion of the trial. The superior court had jurisdiction, both in law and equity, and it was competent for the trial judge, sitting in equity and without-objection being made to the trial in that, part of the court, to retain control of the action and, within the rules of law and according to the proofs, to give the plaintiffs a judgment for the damages sustained in the past. Had the objection been raised in a proper way, or at the proper time, I think the defendants could have insisted upon a trial upon the law side of the court, as to the damage which the plaintiffs bad sustained up to the time of the conveyance of the property. But not having done so, it was not error for the court to settle the litigation between the parties as far as it was entitled to do so, by the award of the rental damages sustained by the plaintiffs while holding the legal title to the premises.

With respect to the amount of damages which the trial court awarded to the plaintiffs, I think there is no occasion to interfere with the judgment below. There was evidence showing that the occupation of the street by the defendants had injured the fee and rental values of property, and there was evidence respecting the property in question, which justified the award made to the plaintiffs. It cannot be said that the facts and figures shown by the evidence furnished no ground for the inferences upon the question of damages sustained to the fee which the trial court drew and which the general term has sustained.

The determination of these questions is not without difficulty and that it should be left undisturbed, when made without a gross violation or abuse of principle, is the wise and settled rule. The judgment appealed from should be affirmed; but, under ■ the circumstances, without costs to either party.

All q on cur.

Judgment affirmed.  