
    JAMES H. McGEAN, as Executor and Trustee, etc., Respondent v. THE METROPOLITAN ELEVATED RAILROAD COMPANY, et al., Appellants.
    
      Action to obtain injunction relief against the maintenance and operation of dej'endants’ elevated railway and for damages resulting therefrom.
    
    The only question urged upon this appeal, that has not already been passed upon by this court adversely to defendants’ contention, is one based upon the admitted facts in the case. After this action, was brought the plaintiff sold and conveyed the premises, claimed to have been injured, to one Rosenbaum for the consideration of $8,800, the grantor (the plaintiff) making the following reservation in the deed. “ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street as now constructed, and the fee and easement in Division street, now or heretofore or hereafter occupied and invaded by the said elevated railway structure when maintained "and operated, as aforesaid, an<j the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.” This transfer of title was not pleaded by defendants in a supplemental answer or otherwise. The defendants’ motion to dismiss the complaint, made immediately upon the introduction of this deed in evidence, was taken under consideration by the court, and finally, in effect, denied by the decision of the court granting an injunction.
    
      Held, that this conveyance did not bar or otherwise interfere with the pending litigation. It was made upon the express condition that it should not interfere with it. The recovery by the plaintiff in this action bars any action by the purchaser for the same cause of action, and this circumstance deprives the defendants’ objection of all practical significance. The damages recovered belong to the plaintiff. The plaintiff had a right to the relief when he brought the suit and should not be deprived of it by any subsequent act short of parting with his entire right of action. The plaintiff-, by this reservation in the grant, preserved his right to continue the action, and he was entitled to the relief obtained. For this reason, as also upon the further ground that the technical objection urged against the recovery was not raised by supplemental answer and is now available to the defendants, the judgment is affirmed.
    Before Sedgwick, Ch. J., and McAdam, J.
    
      Decided June 1, 1891.
    Appeal from a judgment rendered after a trial at special term. The judgment awards to the plaintiff the sum of $780.42, for past damages, and contained an injunction restraining defendants from operating their railway, in front of the premises, unless within a time specified they pay the sum of $1,500.
    
      Davies & Rapallo, attorneys, and Julien T. Davies and Alexander S. Lyman of counsel, for appellants, argued :—
    The attempted reservation in the deed from the plaintiff to Rosenbaum was ineffectual for any purpose. A preliminary question to be disposed of, is the construction to be given to the clause of reservation. The plaintiff’s contention on the trial, before his Honor Judge Freedman, was that the language employed was intended to, and did accomplish • two things : First, a reservation of the damages to be thereafter caused by defendants’ railroad to the premises granted to Rosenbaum, viz., No. 15' Division street. Second, an exception of the land in the bed of the street in front of No. 15' Division street, and a reservation of the easement in the street, appurtenant to the granted estate, and “ occupied and invaded ” by the defendants’ railroad. The learned trial judge, however, apparently adopted the plaintiff’s view, holding that the plaintiff was still seized in fee of one-half the bed of Division street, in front of the premises conveyed, and that his right to obtain an injunction herein was predicated wholly upon such ownership. Indeed, it was apparently conceded by the learned counsel for the plaintiff, that the reservation of future damages merely, and of the easement appurtenant to the premises granted, was insufficient to support his claim- for an injunction! In this connection the case of Williams, and subsequently his executor, Henderson, against the New York Central Railroad Company, 16 N. Y. 97; 78 Ib. 423, was cited as being a conclusive authority upon the point that the ownership by plaintiff of the fragment of land in the street, was sufficient to sustain the injunction. The effect of the reservation in the deed from the plaintiff to Rosenbaum was to reserve the damages to the fee and easement in the street, and not the fee and easement themselves. The language employed is : “ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street, as now constructed, and the fee and easement in Division street now or heretofore or hereafter occupied and invaded by the said élevated railway structure when maintained and operated as aforesaid, and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.” The natural construction is that the words “ all damages to ” are to be read in front of the words “ the fee and easement in Division street,” and not the word “ reserving.”
    
      Edward J. McGean, attorney, and Roger Foster of counsel, for respondent, argued:—
    The sale of the property pending the action did not deprive us of the right to an injunction as an alternative to the payment of the damages to the fee value by the maintenance of the elevated railway, (a) Common sense teaches us° that it is unjust that one who has sold property for a much less price on account of the existence of a r'ailway should not be entitled to recover those damages in a court of- equity. The only reason upon which the courts have hitherto sustained the rights of the purchasers has been that they presumably bought the right to enjoin the construction of a railroad. When a reservation of that right was made, that reason ceased. In the case of Henderson v. N. Y. Central R. R. Co,, 78 N. Y. 423; S. C. 16 Ib. 97; we quote from the headnote : “ All of the lots had been conveyed by W., or by the present plaintiffs, before trial, reserving all claims against defendant for damages. Held, that the action was maintainable; that in the exercise of its equitable jurisdiction the court, or a referee acting in its place, could give full relief—any relief to which plaintiff would in any action and before any tribunal be entitled to; and so that an allowance as an item of damages of the amount of the depreciation in value of the lots was proper, as was also a provision in the judgment that if plaintiffs tender to defendant a conveyance of the interest W. had at the time of his death in the land so occupied by defendant’s tracks, and released it from all claim for damages, except the item above stated, that it should pay a further sum, or in default that it should be enjoined from using its railroad upon said lands.” The only question there left in doubt by the court was whether the plaintiffs were entitled to thus recover the damages for the lands sold before the action was brought. That question does not arise here. Even did the court not believe that the Henderson and McRae cases were sound, yet they have existed unquestioned so long as to become a rule of property; and many conveyances, of some of which the writer of this brief has knowledge, have been made in reliance upon them since the construction of the elevated railway. To now overrule them would do great injury and tend to unset the faith in the decisions of the court. An easement of a right of way for a railway can always be reserved or granted to an individual or a corporation although detached from any interest in land. See Junction R. R. Co. v. Ruggles, 7 Ohio St. 1, cited at length in brief in Pegram v. N. Y. El. R. R. Co., submitted at this general term. Rover on Railroads, p. 322: “If the railroad of the company to whom the grant he thus made he sold by any means allowed by law, the right to the easement passes to the grantee unimpaired.” In N. J. Midland Ry. Co. v. Van Syckle, 9 Vroom (N. Y. Law), 496, 504, such an easement created by grant was held assignable. “ The company having, therefore, an interest in the land occupied by the railroad, it was assignable by the legislature, as any of their legal interest in lands may be assigned.” Lewis on Eminent Domain, § 318, p. 420 : “Where land is occupied wrongfully or by mere consent of the owner, expressed or implied, no right or title to the land so occupied passes, and a subsequent deed by the owner vests the entire estate in the grantee, and such grantee, in the absence of any reservation, is entitled to the just compensation for the land so occupied.” The following decisions hold that in such a case, even where there is no reservation, the grantor is entitled to all the damages, past and future, caused or to be caused, by the unlawful occupation by the railroad. Pomeroy v. C. & N. W. Ry. Co., 25 Wis. 641; Indiana, etc., Ry. Co. v. Allen, 100 Indiana, 409; Mc-Lendon v. Railroad Co., 54 Georgia, 293 ; McFadden v. Johnson, 72 Va. St. 335; Davis v. T. & O. C. Ry. Co., 114 Ib. 308; Rand v. Townshend, 26 Vt. 670; Lewis v. Wilmington, etc., R. R. Co., 11 Rich. Law (S. C.), 91.
   By the Court.—McAdam, J.

The main questions urged upon this appeal, are such as have already been passed upon adversely to the defendants’ contention and need not be again considered. The deed from the plaintiff was made after suit brought, and the transfer of title was not pleaded by supplemental answer or otherwise. In the contract and deed, a reservation, drawn in form similar to that which in the case of Henderson v. N. Y. Cent. R. R. Co., 17 Hun, 344, affirmed 78 N. Y. 423, was held to be sufficient to entitle a vendor to enforce by injunction the permanent damage done to his property, was inserted to save the ulaintiff’s rights of action. The conveyance did not bar or otherwise interfere with the pending litigation. It was made upon the express condition that it should not interfere with it. It would be unreasonable to suppose that one who has sold his property for a much less price on account of the railway should not be able to reserve and enforce his right to compensation for the loss. The right of purchasers to maintain equitable actions has been sustained on the theory that they succeeded to the right to enjoin the operation of the railway. The vendee in this case purchased no such right. He bought knowing that the vendor had a pending action for an injunction and damages, and that whatever rights were secured or damages recovered in that proceeding were to belong to the plaintiff therein, for he had expressly excepted and reserved them from the operation of the grant. The recovery by the plaintiff bars any action by the purchaser for the same cause of action, and this circumstance deprives the defendants’ objection of all practical significance. The damages recovered belong to the plaintiff. They were assessed on legal principles and are fully sustained by the proofs, both as to the subject matter and amount.

The defendants’ proposition seems to be, that having conveyed the property, to which the easement is appurtenant and appendant, it ran with the grant of the land, and that the plaintiff having lost both property and easement, the equitable jurisdiction to enjoin the defendants by injunction ceased, and could not be exercised for the sole purpose of assessing damages, and hence the court below had no power either to award damages or to enjoin the operation of the defendants’ road. The plaintiff had a right to the relief when he brought his suit, and should not be deprived of it by any subsequent act short of parting with his entire right of action. Pom. Eq. Juris., §§ 231, 242. If the defendants had applied to the court for leave to serve a supplemental answer, pleading the transfer made after issue joined, the plaintiff might have elected to discontinue his action, or if he' had concluded that the easement passed with the grant might have consented to the sup- • plemental answer unless his grantee elected to continue the action, or he might under section 756 of the Code have joined the grantee as a co-plaintiff, and allowed the action to proceed for their joint benefit. That course was not pursued and the plaintiff missed these opportunities. The defendants ask us upon this appeal to give full effect to a technical objection not pleaded, that might have been obviated if made in time and according to prescribed practice.

The deed in question on its face contains this provision : “ Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and operation of the elevated railway on Division street as now constructed, and the fee and easement in Division street now or heretofore or hereafter occupied and invaded by the said elevated railway structure when maintained and operated, as aforesaid, and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, executors and administrators.”

The property is located on Division street, which was laid out in 1765 by an agreement between Henry Rutgers and James DeLancey, who owned the land between which it runs upon the division line between their premises. Plaintiff’s predecessor in title was Henry Rutgers. (Finding V., p. 27, fol. 107.) Under that agreement each reserved a fee in one-half the roadway subject to the right of the public to use it as a street:

This circumstance, peculiar to Division street, is not to be overlooked.

Notice of the grants was notice of their contents, which include the reservations. No one has been or could be misled or injured to his prejudice, in which respect the case differs from Foote v. The Manhattan Railway Co., 58 Hun, 478. The easement reserved in this instance was, as will be observed, more tangible than mere sunlight or-air, and is hardly open to the criticism made against it. We think the plaintiff, by the reservation in the grant, preserved his right to continue the action, and that he wras entitled to the relief he obtained.

For this reason, as wrell as upon the further ground that the technical objection urged against the recovery was not raised by supplemental answrnr, and is not now available to the defendants, the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurred.  