
    Elizabeth Knoth, Appellant, v. Manhattan Railway Company, Respondent.
    First Department,
    December, 1905.
    Injunction — when permanent injunction to restrain unauthorized operation of elevated railroad track should he refused—when damages áre ' proper in lieu of injunction — laches of plaintiff.
    The plaintiff, an abutting property owner, brought an action for a mandatory injunction ánd damages for taking easements of' light, air and access by the erection without legislative authority of an elevated railroad track over and • above the center of Ninth avenue between two. other tracks.previously erected and rightfully operated and maintained by the defendant and its predecessors in front of plaintiff’s premises. Jhe defendant jiád no corporate capacity to/ . acquire such easements by proceedings in ihvitum for their condemnation. • The court below found that such third track was erected in good faith for the running of -express trains in relief -of the two tracks already lawfully in operation and-in reliance upon the apparent authority of an invalid statute, and had' been operated for the public convenience for ten years without objection of the plaintiff, who, during, said period, was the .owner of the abutting property. Further, that the injury to the plaintiff’s property was small compared with the injury and inconvenience which would result to the defendant and to the public by the removal of said track, and its removal would seriously impair defendant’s train service and increase the danger of accidents.
    Held, on said findings, that the power of a court of equity to mold its judgment in a case where both parties have submitted their rights to the.court is not to be affected by the consideration that the defendant haS no authority to condemn easements, and it. is proper to award plaintiff compensation in money for the injury, conditioned .upon a grant by the plaintiff to-the. defendant of an ' easement to maintain said third track on -the payment of- the award by the defendant. ■ ■
    
      Held, further, that a long delay by plaintiff-in bringing action, while not conclu- . si-ve against'the right to, an injunction, should be considered when there are other strong equities against granting such injunction. . .
    
      Appeal by the plaintiff, Elizabeth Knoth, from certain portions of a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1904, upon the decision of the court rendered after a trial at the New York Special Term.
    The facts found by the trial court, and which are important in the consideration of the questions of law involved, are that the defendant, a domestic corporation, operates a railway in front of' the plaintiff’s premises under rights acquired from its predecessor,, the New York Elevated Railroad Company, secured by a lease made by the last-named company in the year 1879; that Ninth avenue is a public highway and thoroughfare; that the plaintiff became the purchaser of 461 Ninth avenue, between Thirty-fifth and Thirty-sixth streets, in 1889, and since that time has been the owner in fee and in possession thereof; that the defendant constructed a center or third track partly in front of plaintiff’s premises, which track has been operated by the defendant since the year 1894, by running express trains thereon carrying passengers; that the track and the structure supporting it are permanent and the defendant intends indefinitely to continue the operation of trains thereon ; that this track was constructed, maintained and operated without the consent of the plaintiff; that the express trains operated thereon do not stop anywhere within a mile óf the plaintiff’s premises; that no benefit is conferred on such' premises by reason of the third track and the trains operated thereon; that prior to the construction and operation of such track there was an open space in front of plaintiff’s premises, between two' existing tracks, about eighteen feet wide, and extending on a line parallel to and along said avenue, and through this open space light and air passed to the surface of the avenue beneath the structure; that the third track and the structure supporting it are of so extensive and substantial a character as to almost close the said space, and by .its maintenance and the operation of trains thereon, the injurious effects of the railway upon abutting premises, including those of the plaintiff, are substantially increased ; that the erection and operation of the third track involve a further taking of plaintiff’s easements,and trains operated on it run past the plaintiff’s premises at great speed and increase the obstruction of light and air to such premises, and the trains make a loud and disagreeable noise and cause dust and cinders to be thrown into and upon said premises; that by the erection and operation of the center or third track in front of the premises actual and substantial diminution in the rental value and in the fee value has been caused ; that among the rights,, privileges and franchises granted to the New York Elevated Railroad Company was that of making alterations and improvements in the structure, rolling stock, motor power and its application, and in the position, grade, elevation and depression of the tracks, and the inode of securing and strengthening its railroads, sideways, crossings, stations and turnouts as might be authorized and approved by commissioners appointed pursuant to chapter 489 of the Laws of 1867, and' the acts amendatory thereof and" supplemental thereto; that on November 10, 1877, the commissioners approved a plan of proposed additional tracks of the New York Elevated Railroad Company, 'which plan provided for four tracks in front of the plaintiff’s premises, oke qf which was a switch, ■ crossover or connecting track and three of said tracks were actually constructed and used prior to the year 1880. There is a finding with reference to various changes of tracks in front of the plaintiff’s-premises, but they, are not material,, except that it is found that by reason of these changes no' right was given to build this third track. It is, however, found that in the month of July, 1894, the switch, siding or third track was constructed over a portion of Ninth avenue in front of the premises in question, in addition to the structure as it existed prior thereto,, the construction of which switch-, siding or track had been, in -the month of December, 1893, duly authorized by the commissioners before mentioned, in so far as-they had power so to do, and was constructed under color of such authority / that the plaintiff had knowledge of the fact that said switch,.siding or third track was being constructed, and has, ever since its construction, been familiar with its use and effect. It is then found that the defendant has spent over $800,-000 in acquiring the easements of abutting owners along the line of said' third track, turnout or siding which constitutes a great public benefit; that the injury, if any, suffered ■ by the plaintiff from the mainter nance and operation of said switch, turnout, siding or third track, is small compared with -the injury and inconvenience which would result to the defendant and to the public if the defendant should be compelled to discontinue the use of and remove the same; that if the third track were removed, the defendant’s train service would be seriously impaired and its ability to perform the purposes of a rapid transit railway would thereby be greatly lessened, and the danger incident to the operation of trains would be increased. It is then found that for any and all damages suffered by the plaintiff by reason of the1 construction, maintenance and operation of the third track, the plaintiff can be adequately compensated by the payment of such sum of money as shall be found by the court to be the amount of damages so suffered, and that the payment to the plaintiff of just compensation would be a remedy for her injuries as adequate as would be the removal of the switch, turnout or so-called “ third track ” in front of her premises.
    The court then found as matter of law that by the construction of the third track the defendant took some portion of the easements of light, air and access from the plaintiff’s premise's; that the defendant, did not have authority to construct or operate trains upon that track, and that the defendant has no right to condemn . the easements taken for the construction and operation of the center or third track; that the plaintiff is not entitled to injunctive relief unless she proves that the, maintenance and operation of the defendant’s railway has resulted in pecuniary damage; that the plaintiff is entitled to a judgment against the defendant for the amount of damage sustained by her in consequence of the diminution of rental value of her premises, and that ’ she is entitled to an injunction restraining the defendant from maintaining, operating or using the third track, unless the defendant pay her within sixty days from the entry of the judgment the sum of $1,200, the value of her property used and appropriated by it in the construction and operation of the third track, and that the injunction should not be operative for a period of sixty days from the time of the entry of the same; that the judgment should provide that the plaintiff, on payment of the $1,200, make conveyance of the easements taken by the construction and operation of the third track,, and also procure releases of all persons having an interest in or lien upon the premises of so much of the easements as were thus taken. Judgment was entered accordingly. The plaintiff does not appeal from the whole judgment, but from that part of it only which provides as follows:
    
      “ Ordered, adjudged and decreed that in Case the defendant shall, Within sixty days, after the service of a copy of this judgment, -deliver to the plaintiff or her-.attorney, a written' offer, to' pay to the plaintiff the sum of $1,200, with interest from the date of the trial hereof, to wit, December 16, 1903, then upon the plaintiff’s tender to the defendant of a duly executed conveyance or grant of so much of the property of the plaintiff in Ninth avenue in front of No. 461 and of the easements appurtenant thereto ás has been taken ánd appropriated by the defendant for the purpose of its said centre -or third .track, with the.reléase of the lien of all mortgages upon such property granted, and all other incumbrances thereon, and said ■defendant pay said sum of $1,200, with interest, to .the plaintiff "therefor on the delivery thereof, or if said plaintiff omits or refuses to accept said offer or to deliver said- Conveyance, executed as aforesaid with such discharge' or release within said time, then and in either of said events the, said injunction shall not be operative so far ás it affects the maintenance and operation of the said centre or third track at said locality until ten «lays .after the plaintiff may thereafter deliver or tender for delivery, such conveyance or grant and release ■ from the lien of the mortgages aforesaid. And if during said ten days the defendant pays said stun.' for said conveyance, said injunction shall/remain wholly inoperative. And it is further
    
      “ Ordered, that the payments and tenders herein provided for shall be made to and by the attorneys for the respective parties herein.”
    
      J. Aspinwall Hodge, for the appellant.
    
      Julien T. Davies, for the respondent.
   Patterson, J.:

This is, in form, an action brought by an abutting property owner against the Manhattan Railway Company for an injunction and damages for taking easements of light, air and access, by the erection and maintainánce, without legislative authority, Of an elevated railroad track over and above the center of Ninth avenue between twó other elevated tracks previously erected and rightfully operT ated and maintained by the defendant and its predecessors in front •of. the plaintiff’s premises.

Unfortunately, we have not before us the record-of the evidence given at the trial. The case comes up on the judgment roll alone, and we can only look, therefore, to the pleadings and findings of fact to ascertain what induced the conclusions of law reached by the court below. The appeal is by the plaintiff. It was found .at the Special Term that she was entitled to some relief by reason of the construction and maintenance of a central or third track.” It was adjudged that there had been an impairment of' fee and rental value by reason of the construction and operation of such third track; that such impairment, at a money valuation, amounted to a certain sum; that the plaintiff was entitled to an injunction unless the defendant paid that sum, and if it were paid an injunction should not issue; and,the plaintiff, on such payment being made, was required to convey the additional easements taken.

On this appeal a question arises which has not been finally passed upon in this State, although the plaintiff urges that there is abundant authority to sustain her contention respecting it. The defendant’s railway is lawfully operated on two tracks in front of the plaintiff’s premises. The right so to operate it by the acquisition of easements appurtenant to those premises is not denied. The construction and operation of a third or central track is the subject of the plaintiff’s complaint. She insists that the defendant lias no right to maintain the structure of a third track in the street in front of her property and to operate it with the annoyance and detriment to value which result from the increased traffic, as well as from the permanent character of the superadded structure. As the case is now presented on the findings of fact, and in view of what has been decided by this court respecting the third track of the defendant’s road on Ninth avenue, there can be no doubt, I think, that the structure complained of by the plaintiff is an illegal one, although if the question were res nova, I should'have something further to sayón that subject. But the statement of what'this court has decided is not to be taken as an indication or expression of opinion that the defendant, in constructing and maintaining such third track, acted or now acts in willful disregard of the rights of property owners, or in a high-handed manner, without at least apparent sanction of law. This is not the case of a wanton trespass or the arbitrary creation of a nuisance in the public highway. In 1875 the Legislature of the State of New York passed an act under which- the- defendant claimed,, and had ostensible reason for claiming, the. right to- build this, third track. (Laws, of 1875, chap. 595.) The provisions of that act would be¡ sufficient to confer that right (thei defendant having, ■ received, the permission of commissioners designated therein) hut for considerations, stated by. this court, in the. case of Auchincloss v. Metropolitan El. R. Co. (69 App. Div. 63).. It was there, held, that the defendants: derived no authority from the. act of 1875 to build or operate this -third track,, because that legislation was in violation of section 18 of article 3., of the- Constitution of the State of Kew York, wherein it. is provided that the Legislature shall not pass,'a, private or local hid “ granting to- any corporation; association or individual the right to lay down railroad tracks.” But it appears, -satisfactorily from the findings made by the court on the trial of this, cause that, as matter of fact,, the defendant in good faith and relying upon the authority of the act of 1875, did construct the third track. . While that, does not affect, the. plaintiff’s right to relief for the additional trespass of the. defendant, it furnishes, a matter for the. serious, consideration of-a. court of equity respectingrihe nature and measure, of relief to, be awarded.'

The- plaintiff insists that .the. judgment to which she was: entitled was that of a, mandatory injunction, requiring the. defendant, to remove the. third track; that she, was so entitled as, a matter of .absolute right which "a court of equity-was. bound to recognize and enforce, and that, it had no jurisdiction to deprive her of that right by awarding in its discretion any less drastic- relief. The argument, urged in'support of that view and .based upon some, of the findings of .the trial judge is, in effect, that the defendant, illegally deprived the plaintiff of her property,- to, wit, the easement's taken,that it has no corporate capacity to acquire.those easements by proceedings in mvitum for their condemnation; that, the court at Special Term had no- authority to annex any condition to the. issuing of an injunction or to grant any alternative or substituted relief in avoidance of that to, which the plaintiff claimed to be entitled absolutely and unconditionally. .The single question, therefore, relates, to the power of a- court of equity in 'this-case to-decree that, an injunction shall not. issue- if. payment, be made, by the- defendant, of the valué of the, easements taken and to compel a conveyance, of those, easements to the defendant on the- paymémt of. such ascertained value. If we were to .consider alone the findings upon which the plaintiff relies, namely, that the defendant without authority of law is maintaining and operating the third track in front of her premises, and that it is without capacity to condemn the easements taken by the erection and operation of trains on this third track, the argument which she advances to support the proposition that a mandatory injunction should issue would proceed very plainly to its conclusion. But that which is influential respecting the relief to be granted is contained in other findings of fact, which undoubtedly .affected the learned trial judge in making the decision he rendered. The plaintiff insists that the court is without authority to do otherwise than compel the removal of the third track and to award damages for the injury inflicted hy taking the easements. Our attention has been called to various 'decisions in which the plaintiff claims the proposition of law for which she contends is announced, and that under the findings in this case she is entitled to the mandatory injunction sought. Thus in Auchincloss v. Metropolitan El. R. Co. (69 App. Div. 63) the judge writing the opinion" of the court said : “ I can see .no escape, therefore, from the position that the construction of this additional track in Kintk avenue, opposite the plaintiff’s premises, was unauthorized ".and that the plaintiff was entitled to an injunction restraining the defendants from the maintenance and operation of this track.” In Ackerman v. True (175 N. Y. 353) it was held that an encroachment ■ upon the street is a public nuisance and may be a private nuisance; that the person suffering thereby may have his action of nuisance to abate the Same and to recover special damages. And it was said in Pappenheim v. M. E. R. Co. (128 N. Y. 436) that in cases where the owner wishes actually to stop further trespass, and where the defendant has no legal right to acquire, the property, such condition would not be inserted (meaning the ordinary alternative in cases of this kind of paying damages and requiring conveyance of the easements), and an injunction would issue upon the right of the owner being determined (citing Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423). The authorities cited by the learned counsel for the appellant are to be considered with reference to .a rule of law applicable to cases where the facts show only the existence of a nuisance or a continu- ■ ing trespass, or,'in other words, where there is no legal right or authority to do the acts or maiiitain the construction complained of by the injured party; but they do riot present, in the form in which it now arises on additional findings the question of the power of a court of equity to mould relief in a given case where it can grant all the relief to which, in justice and equity; a plaintiff is entitled, and where it appears that the granting of the full measure of relief 'demanded, would result in greater, injury to the. defendant than benefit to the plaintiff, and in. the impairment of a great public convenience and also in increasing the danger to the traveling, public. For here we are not-now dealing with the ease of a simple trespass originating in a wanton appropriation of private property. There is no taking of private property for a private use, for the defendant ds a duly organized corporation which, acting in good: faith on the belief that it had the right to construct this third track, did so and has operated it' for; the public convenience for ten years without objection of the plaintiff," who has owned her property for that period of time and never objected. While, as-the law now stands, . the defendant has no' power to condemn the plaintiff’s éaseménts, it nevertheless has the power to acquire easements affected by the third track by treaty or contract, and it has, according- to the findings, acquired easements from other property owners for the third track to the value of $800,000.. '

The case is to be regarded,.! think, as one in which a court- of equity may refuse to grant a mandatory 'injunction. and leave the plaintiff to the ordinary action of nuisance, in which the defendant would be entitled to a trial by jury ; btit the plaintiff has brought this action, invoked the jurisdiction of á court of equity and. tried the case as an ordinary eleyated railway case. We are of the opinion that the simple question involved is the power of a court of equity to render this judgment. That power is exercised in cases in which by -covenants between parties the use of real estate is limited by what are called covenants' against nuisance. (Amerman v. Deane, 132 N. Y. 355; McClaure v. Leaycraft, 183 id. 36.). ' In' such cases, the court, on considering the equities, refuses- an injunction where it would be inequitable to enforce such coveriants under changed conditions of property, In the cáse of an encroachment (Crocher v. Manhattan Life Ins. Co., 61 App. Div. 226) the court refused to compel the taking down of a wall because of the oppressiveness of such a coiidition, and held that, both parties having submitted their controversy to a court of equity, that court would refuse an injunction and would award' damages for one particular item of ■ trespass and require the plaintiff to' surrender an easement with reference to. that particular item on payment of damages.' We-think it is evident in this case, from the findings of fact as made,., that the mandatory injunction which the plaintiff claims to be-. "entitled to, if granted, would work great wrong to the defendant,, and the court will not exert its equitable power for that purpose.. Here, the court, having the power to mould the relief according to-the circumstances of the case, acted upon the finding that this third-track in front of the plaintiff’s premises is used for running express-trains in relief'of the two tracks constructed and which are operated, by due authority in front of the plaintiff’s premises, and that is. specifically found, viz.: That the injury to the plaintiff’s property “ is small compared with the injury and inconvenience which would' result to the defendant and to the public if the defendant should be-compelled to discontinue the use of and remove the same,” and if the-track were removed, “ the defendant’s train service would thereby be seriously impaired ” and its “ ability to perform the purposes of a. rapid transit railway would thereby be greatly lessened,” and “ the-danger incident to the operation of trains * * * would thereby be increased.”

Here are findings which we must assume are authorized by the evidence. Hot only inconvenience to the defendant and to the public, bnt danger in the operation, of the railway, would be the-result-of granting a mandatory injunction. The power of the court to mould its judgment in a case where both parties have submitted their rights to the court is not to be. affected by the consideration that the defendant has no authority to condemn ■ easements, and the expressions to the contrary in the cases cited by the learned counsel for the appellant seem to have no application in view of the decision of the Supreme Court of the United States in New York City v. Pine (185 U. S. 93). That case involved the right of landowners-in the State of Connecticut to an injunction restraining the city of New York, its agents and officers, from diverting the water or any part of the water of the west branch of the Byram river or any part' of the water of that river. The municipal authorities of the city of Hew York claimed that they had the right to divert the water of that stream, which had its source in the State of Hew.York,, but in its course flowed through the State of Connecticut and then returned to the State of Hew York. The city of Hew York undertook to divert this stream in order to increase its water supply. The plaintiffs in that case insisted upon their right to-an undiminished natural flow of the river through its accustomed channel in the State of Connecticut, and that they could not be deprived thereof by the-city of New York or for its benefit by any legal proceedings either in Connecticut or New York. The United States Circuit Court for the southern district of Hew York sustained tlie plaintiffs’ prayer for an injunction, and on appeal to the Circuit Court of Appeals the decree was affirmed by a divided- court. The case went to the United States Supreme Court on certiorari, and there it was held that, starting with the assumption that there was no power in the city of Hew York by any proceedings in the State of Hew York or Connecticut to acquire the right to appropriate the water, thus depriving the plaintiffs of its .continued flow, nevertheless the equitable relief of a. mandatory Injunction would not be granted, at least in a case where long delay in the assertion of the alleged right had taken place, Although the delay itself would not be conclusive of the plaintiff’s right to an injunction, it is a subject for the-consideration of the court where there are other strong and controlling equities appealing to it.

W e are, therefore, of the opinion .that the judgment below should be affirmed, with costs.

O’Brien, P. J., and Laughlin, J., concurred.

Ingraham, J. (concurring):

I concur in the affirmance of this judgment.' The proposition that .the defendant bad no authority to lay this third track is not open to discussion in this court. (Auchincloss v.. Metropolitan El. R. Co., 69 App. Div. 63.) The act of the defendant, therefore, in constructing this track was unlawful and for the -damage -caused to the plaintiff thereby the plaintiff has a remedy at law. Whether or not a court of equity would interfere by injunction to prevent a continuance of the unlawful act rests in the sound judicial discretion of the court, and in determining' whether a court of equity should grant an injunction, or should leave the party to her remedy at law, the actual injury sustained by the plaintiff, together with' the resulting injury to the defendant and to the public at large, " should be considered.

In Gray v. Manhattan R. Co. (128 N. Y. 499) it is said: “ An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right.” In this case the defendant constructed this third track claiming authority under certain statutory provisions. Its use has become necessary for the proper operation of the road, and it is quite apparent that the interests of the public, as well as that of the defendant, will be seriously jeopardized if the.defendant is compelled by a mandatory injunction to-remove the track. It has been determined by the court that all the plaintiff’s rights could be protected by the payment to her of a sum of money which it required the defendant to pay to avoid an injunction. The plaintiff, therefore, had the option of accepting this sum of money as the value of her property which was appropriated by the defendant on the construction of this third track, or of resorting to her action at law to recover the damages caused by the trespass. A reasonable relief is, therefore, afforded the plaintiff without the public injury which would follow from an injunction under which the defendant would be required to remove the track. Under such circumstances I think the court has the power to refuse to grant an in junction upon condition that the value of the plaintiff’s property be paid to her, leaving to the plaintiff the right to accept that amount or to enforce her rights at law, The right of the People or of the city to compel the removal of this track is not presented and, consequently, not determined. We have an owner of abutting property attempting to enforce her legal rights in a' public street by an appeal to a court of equity, and I do not think the discretion of the court of equity in refusing to grant an injunction was improperly exercised in this case: Eor these reasons I concur in the affirmance of the judgment.

O’Brien, P. J., and Laughlin, J., concurred.

Judgment affirmed, with costs.  