
    Amos F. Eno, Plaintiff, v. Sebastian Christ et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1898.)
    1. Equity — Action for a mandatory injunction compelling trespassers to remove earth which they had dumped on excavated lots.
    A mandatory injunction may properly issue against trespassers to compel them to remove, from excavated vacant lots of the plaintiff, earth dumped there by them and which has raised the level of the lots from four feet below the street level to a point materially abóve it, as the plaintiff has no adequate remedy at law.
    8. Same — Plaintiff’s right of possession.
    A colorable title and entry into possession, followed by the continued control of the property by the plaintiff’s agent, show a sufficient right of possession.
    
      3. Same — Measure of damages — Expert testimony.
    Where excavated vacant lots are filled by trespassers to a point above grade, the measure of damages is the rental value of the property during the period of the continuing trespass; but a witness, who has had but one experience in renting such lots in the city of New York and who is not shown to have then rented lots which were similar in nature or locality, is not competent to testify to rental value.
    Action for mandatory injunction to require removal by defendants of earth placed by them without authority upon plaintiff’s lots, and for damages.
    Philbin & Beekman, for plaintiff.
    T. B. Chancellor, for defendants.
   Bischoff, J.

The fact of the defendants’ trespass is not disputed, and I think that there is no room for doubt as to the plaintiff’s right to the mandatory injunction which he seeks.

From the defendants’ acts of dumping earth upon the premises the condition has resulted that these lots, which were formerly excavated to a depth of four feet below the .street level, are now completely filled in to a point materially above that level, a condition in which their value has been greatly lessened.

Should the plaintiff undertake the work of removing this quantity of earth, he would be compelled to cart it for a distance of three miles, and also pay for the privilege of dumping it, an undertaking which is, obviously, of no inconsiderable nature, and, therefore, one which he is under no obligation to these trespassers to enter* upon.

The case falls clearly within the authority of Wheelock v. Noonan, 108 N. Y. 179, and following that decision, the conclusion must be that this plaintiff had no adequate remedy at law.

The prima facie proof of the plaintiff’s right of possession of the premises is apparently sufficient. A colorable title, at least, was shown, and an entering into possession, followed by the continued control of the property by the plaintiff’s agent, at his instance, to the time of the trial. The circumstances support the presumption of a continued possession, in the absence of any evidence to the contrary.

While the plaintiff has shown himself entitled to equitable relief, I do not find that the evidence justifies any award of substantial pecuniary damages.

The measure, in such a case as this, is the rental value of the property during the period of the continuing trespass (Wheelock v. Noonan, supra),— damages, upon any other basis being of a nature too uncertain and speculative to be allowed. Id.

Upon examination of the testimony of the plaintiff’s expert, Goldstiker, it appears that he could remember but one experience which he had had in the renting of vacant lots, and it cannot be gathered from the evidence that this one transaction had to do with property similar, in nature or locality, to the premises in suit. His experience, so far as he had charge of applications for the sale or renting of vacant lots, is not shown to have been gained with regard to lots in this part of the city, and I cannot overlook the fact that the matter of locality is at the basis of all real estate values where city property is concerned.

The testimony of this witness is the only evidence furnished as to the rental value of these lots, and cannot be accepted as sufficient.

There should be judgment for the plaintiff for an injunction, as prayed, with nominal damages and costs.

Ordered accordingly.  