
    Anna Maria Doyle, Resp’t, v. The Manhattan Elevated R. Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 5, 1891.)
    
    1. Railroads—Elevated—Evidence.
    Errors in the admission or exclusion of evidence as to the fee value in actions against an elevated railroad are ineffectual to reverse the judgment, unless they invalidate plaintiff’s claim to injunctive relief.
    3. Same—Trespass.
    The construction and operation of an elevated railroad in violation of plaintiff’s easements in the highway is a continuing nuisance, for each continuance of which a new action may be brought.
    Appeal from judgment in favor of plaintiff.
    
      Julien T. Davies and Brainerd Tolles, for app’lts; W. G. Peckham, for resp’t
   Pryor, J.

Action for injunction to restrain the maintenance and operation of defendants’ railway and for damages for past injuries. Appeal from judgment awarding such injunction and damages.

The allegations upon which appellants mainly rely are in the admission and exclusion of evidence as to the fee value of the property in question, and so they affect the amount defendants have the option of paying in avoidance of the injunction. But such errors, unless they invalidate plaintiff's claim to mjuuctive relief, are ineffectual to reverse the judgment Lawrence v. R. R. Co., now decided, 35 N. Y. State Rep., 39. And we are of opinion that upon the unchallenged and uncontroverted evidence, the right to an injunction is clear and incontestable.

It is equally plain that the sum, payment of which is offered defendants as an alternative of the injunction, is not so exorbitant as to call for revision by the general term in the exercise of its power to redress an abuse of discretion below.

The question, then, is, does any error invalidate the judgment for damages ? The errors, if any, in the admission or exclusion of evidence as to past damages, are immaterial and harmless; for the reason that the unchallenged and uncontroverted proof clearly justifies the amount awarded for such damages.

But appellants contend that acts barred by the statute of limitations are made the basis of recovery. Not so, however. The ground of the action is the taking of plaintiff’s property without compensation. Story v. R. R. Co., 90 N. Y, 122; Lahr v. R. R. Co., 104 id., 268; 4 N. Y. State Rep., 340. The construction and operation of defendant’s railway in violation of plaintiff’s easements in the highway is “ a continuing nuisance; ” and every continuance of a nuisance is a fresh nuisance, for which a new action may be brought Uline v. R. R. Co., 101 N. Y., 98, 109, et seq.

The leases of plaintiff’s property were all made after the construction of defendant’s railway; and all terminated before the commencement of the action; and so at the time of the injury possession was in plaintiff. But, by express provision of the Code, § 1665, “a person seized of an estate in remainder or reversion may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years.” The claim is for an injury to the inheritance, the depreciation of its value; but no recovery can be had of past damages for such injury beyond a period of six years. Here the trial judge expressly ruled that no damages should be allowed except as accruing within the six years.

The judgment should be affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.  