
    John J. Ascher, Respondent, v. The South Shore Traction Company, Appellant.
    Second Department,
    April 21, 1911.
    Railroad — injunction — construction of trolley line — abutting owner . having fee of street -¡- nature of action — form of judgment — condemnation. j
    In á suit to enjoin a traction company from constructing its trolley road over part of a highway owned in fee by the plaintiff, the defendant cannot compel the plaintiff to prove his damages both rental and fee, nor should the judgment provide that upon the payment of an amount fixed' therein plaintiff shall eonjvey a right to use the road to the defendant. which has acquired the necessary franchises and consents to construct its line.
    The gist of such an action ijs the alleged unlawful taking' of the property itself and not the damages suffered through interference with any easement appurtenant thereto.
    The only way in which plaintiff’s rights in the street can be acquired against his consent is by condemnation proceedings.
    
      
      It seems, that if plaintiff had asked relief in the alternative, éither by-injunction or by compelling the defendant to purchase his rights in the •highway at then.1 value, the court might have fixed the value thereof and the defendant, by paying such sum, might have acquh'ed "title.
    Appeal "by the. defendant, The South Shore Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of • Suffolk on the 30th day of December, 1910, upon the decision of the court rendered after a trial at the Suffolk Special Term.
    
      Arthur Carter Hume, for the appellant.
    
      E. Walter Beebe [Herbert S. Brussel with him on the brief], for the respondent.
   Burr, J.:

Plaintiff is the owner of a tract of land on the southerly side of the Middle road or Main street in the village of Bayport and town of -Islip, and also of the southerly one-half of the highway in front of and adjoining said premises. Defendant is a street surface railroad company, and is about to construct and operate a railroad through said street by electric power transmitted' through an overhead trolley line. Defendant has acquired the consent of the town and State officials to such construction, and also that of the owners of more than two-thirds of the property in the said town abutting on said street. It has not acquired plaintiff’s consent. The judgment enjoins the construction and operation of ■ defendant’s road unless, .within five months after the entry thereof, by appropriate condemnation proceedings it acquires plaintiff’s right and estate in said highway.

Defendant appeals from said judgment, and while it concedes that its conduct in constructing its road is a trespass upon plaintiff’s property, and that it has a right to acquire by condemnation proceedings the necessary right of way through the same, nevertheless it insists that plaintiff should be required to ¡Drove his damage, both rental and fee, in this action, and that the judgment should provide that upon payment of the amount so fixed plaintiff should execute and deliver to it a deed conveying to it the right to use such property. This indirect method of acquiring property foif public ■ use. is contrary. both to the spirit and letter'of the Constitution. (Const. art. 1, § T.)

' , We think that no case! in this State has directly determined that this may be done agajihst the will of the parties interested.. In Henderson v. N. Y. C. R. R. Co. (78 N. Y. 423) the complaint was framed with a| view to such ■ relief. It asked, first, .for damages, and then among other things that defendant be permitted to use its tracks over plaintiffs’ property “ only on condition that, the plaintiff shall first be paid his damages. The court, in speaking ofj a judgment in the alternative form here suggested, said it was’“optional with the defendant to comply with the conditions. The plaintiffs could not require it, but they would be bound by the judgment, and the defend-. ant become on performing the condition, purchaser of the land with rights not inferior tq those obtained by appraisement and payment of damages under the statute.” It might be .said in this case that it was optional with plaintiff to comply with the condition or be refused,his injunction,, but the situations- are not analogous. In the- Henderson case defendant was bound to acquire title to plaintiffs’ I rights in- the property, either by the method prescribed in the ponstitution or under the tenqs-of the judgment. It had its Choice. But in this case, if the' method Suggested by defendant is'adopted and plaintiff is unwilling to ■ •waive the constitutional method of .fixing damages, plaintiff’s rights in the highway may never be acquired, and his • only remaining remedy agairjst defendant’s unlawful acts- would, be an action for damagesj for repeated trespasses, which might be most inadequate-. Certainly plaintiff is not given his choice as to -the methods-of determining the value of his property rights before parting with the same, as. defendant was in -the Henderson case. !

In the case of Pappenheim v. M. E. R. C. (128 N. Y. 436). the complaint was expressly framed with. a view to obtaining relief in this manner, and- in so doing plaintiff' was deemed . to have waived his right ¡to have, the railroad company acquire his .property in the constitutional method. ' In that case the-court said: “The court ¡loes not adjudge that the defendant shall pay such sum and Ijhat the plaintiff shall so convey. It provides that, if the conveyance is made and the money paid, no injunction shall issue. If defendant refuse to pay, the injunction issues.” Of course, if the injunction issues, the road either stops its operation altogether or it proceeds to condemn its right of way. The judgment did not assume to deprive defendant of its constitutional right respecting the method of assessing damages, as the judgment prayed for in this case would deprive the plaintiff.

So in Duncan v. Nassau Electric Railroad Co. (127 App. Div. 252), and in the various elevated railroad cases, plaintiff invoked the form of alternative relief which the judgment awarded.

The case of Shaw v. Rochester, Syracuse & Eastern Railroad Co. (131 App. Div. 528) has been cited as an authority in support of defendant’s contention. It is not entirely clear from the statement contained in the opinion in that case whether the complaint was so framed as to indicate a consent upon plaintiff’s part that alternative equitable relief should be granted. It did contain apparently a specific allegation as to pecuniary damage and the amount thereof, and there was a fiudiug as to' the amount of such damage, which the court deemed excessive. If it is not the fact, however, that plaintiff so assented, we-should hesitate to follow the decision in that case in holding that defendant can compel plaintiff against his will to pursue this method of parting with his property for a public use. In the case at bar the complaint was not so framed, and although the amended answer contained an allegation that plaintiff had sustained no damage, no evidence was offered by either party respecting the same. The. learned court at Special Term had no data upon which to base such a judgment as appellant asks for, if it had desired to render it.

Appellant further contends that plaintiff was bound to affirm - atively allege and prove such damage, and we are cited to the case of O’Reilly v. N. Y. Elevated R. R. Co. (148 N. Y. 347) as an authority to the effect that under no circumstances will injunctive relief be granted when no monetary damage resulting from a trespass is shown. In that case plaintiffs had sought to obtain a judgment in the alternative form which defendant contends should have been awarded here. They had alleged damage both to fee and rental value, and had asked that if “the defendants be permitted to continue the operation of their road through Ninth avenue, in front of their premises, it shall be upon; condition that they pay for the value of the rights and easemjen'ts taken.” The court found as a fact that the easements ¡taken had no value. It was under such circumstances that the court said: “Where the gist of the action is an-actual damage suffered by property, it must he proved as a fact in thej case, or else the court .is at liberty to disregard the mere technical trespass-and to refuse its writ Of injunction.” . The gist.of this action is more than an actual damage suffered by property through interference with an easement appurtenant tliereto. -It is an unlawful' taking of the property itself. Wei are not prepared to assent to the proposition that a street ¡surface railroad company can, without any authority of -lay or any misapprehension as. to its legal rights in the matter, take possession of the property of another, even though if be property lying in a street.or highway, and be permitted tcj say, we are entitled to acquire your property rights by condemnation, and it is true that the Constitution prescribes how these rights shall be acquired, hut we propose to disregard these requirements and compel you to submit to some.other method of fixing the value thereof and then compel you to convey your property to us at. a price thus, determined. If it does aissume such a position, it should not call upon a court of equity' to assist it in maintaining the same.

The judgment appealedj from should be affirmed, with costs.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

. Judgment affirmed,' with costs.  