
    (72 Misc. Rep. 274.)
    COLLAR v. ULSTER & D. R. CO.
    (Otsego County Court.
    May 13, 1911.)
    1. Courts (§ 188)—Jurisdiction.
    Code Civ. Proc. § 1660, permits an action for nuisance to be maintained where such action could have been maintained before the Code took effect. Section 2950 provides that if, on plaintiff’s own showing in an action in justices’ court', title to realty is in question and is disputed by defendant, the court must dismiss the action. Oneonta City Charter, § 212, gives the City Court jurisdiction of civil actions for damages for a personal injury or injury to property, but section 213 prohibits such court from taking cognizance of a civil action, where title to realty is in question, and provides, when such question arises, the practice shall be the same as provided for Justices’ Courts. Held, that the City Court of Oneonta had no jurisdiction of an action for damages for maintaining a nuisance to property claimed to be owned by plaintiff.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 188.*]
    2. Trespass (§ 10*)—Definition.
    A “trespass” is any act whereby another is injured or any unlawful act committed with violence, actual or implied, to the property of another; any unauthorized entry on another’s realty, to its damage.
    [Ed. Note.—-For other cases, see Trespass, Cent. Dig. §§ 8, 12; Dec. Dig. § 10.
    
    For other definitions, see Words and Phrases, vol. 8, pp. 7088-7093; vol. 8, p. 7820.]
    3. Trespass (§ 10*)—Trespass to Realty.
    It is a trespass to disturb another’s peaceable possession of realty or to do damage thereto [citing 8 Words & Phrases, 7088],
    [Ed. Note.—For other cases, see Trespass, Cent. Dig. §§ 8, 12; Dec. Dig. § 10.*]
    4. Courts (§ 188*)—Jurisdiction—Trespass.
    A City Court with the jurisdiction of a Justice’s Court has no jurisdiction of an action for trespass where defendant pleads title, or it appears that by plaintiff’s own showing that title is in question.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 188.*]
    5. Words and Phrases—“Possession”—“Title."
    “Possession” means actual control of property by physical occupation, while “title” is the means whereby one holds possession of his land.
    [Ed. Note.—For other definitions, see Words and Phrases, vol. 6, pp. 5464-5470; vol. 8, pp. 7757j 7758, 6979-6982, 6182.]
    6. Evidence (§ 343*)—Title.
    The certified search of title of a county clerk was not admissible in evidence to prove plaintiff’s title in an action for damages by a private nuisance, notwithstanding Code Civ. Proc. § 933, making copies of records duly certified presumptive evidence; it being essential to plaintiff to produce a deed or the record in which it was recorded or a certified copy thereof.
    [Ed. Note.—For other cases, see Evidence, Dec. Dig. § 343.*]
    7. Railroads (§ 222*)—Private Nuisance.
    A railroad being lawfully maintained and operated, in determining whether it is so operated as to be a private nuisance, it is material to ascertain whether any one has been injured by its operation.
    [Ed. Note.—For other cases, see Railroads, Dec. Dig. § 222.*]
    8. Appeal and Error (§ 843*)—Questions to Review.
    Upon deciding upon appeal in an action for damages for maintaining a nuisance that the trial court had no jurisdiction of the action, the appellate court should not determine whether an actionable nuisance existed.
    [Ed. Note".—For other cases, see Appeal and Error, Cent. Dig. § 3332; Dec. Dig. § 843.*]
    Appeal from City Court of Orfeonta.
    Action by Rose Collar against the Ulster & Delaware Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.
    W. H. Johnson (Amos Van Etten, of counsel), for appellant.
    B. W. Hoye, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   ABRAHAM L. KELLOGG, J.

The cause of action stated in the complaint is that the plaintiff was, and still is, the owner of the freehold situated on the easterly side of Wells avenue, in the city of Oneonta, N. Y., known as No. 11, and that the defendant is a domestic railroad corporation, duly organized, incorporated, and existing under and by virtue of the laws of the state of New York, and that it is now. the owner and in possession of and operates and conducts its said railroad, together with its stations, roundhouses, trades, cars, trains, engines, and switches, near plaintiff’s property in the said city of Oneonta, and that it has continued to so operate its said railroad, consisting of the property mentioned, for many years last past. It is also claimed by the plaintiff that the defendant has maintained, and threatens to continue to maintain, in the immediate vicinity of plaintiff’s said dwelling house, a nuisance as follows, to wit: In the operation of its road, and in using and running its engines, it thereby causes large quantities of smoke, soot, dust, ashes, and cinders to be cast upon plaintiff’s dwelling and lands; that said nuisance consists, further, among other things, of soft coal and improper fuel, and causes such smoke, soot, cinders, ashes, and dust to pour forth from its engines and smokestacks, and to become deposited on plaintiff’s premises in large quantities, both within and without said dwelling house where plaintiff resides; that said smoke, soot, cinders, and ashes are obnoxious, unwholesome, and injurious to the plaintiff and her family, and taint the air, soil, and destroy furniture and wearing apparel ; destroy vegetation, trees, fruit, and flowers; render said dwelling house and premises unfit for habitation; greatly discolor, and injure the sale, of said dwelling, and that the defendant permits and maintains its engines and cars in proximity to plaintiff’s dwelling to create loud and penetrating noises and unnecessary sounds by blowing of whistles, escape of steam, and continuous pumping of air, and that by reason of such facts the defendant has, and threatens to continue, a nuisance, which has diminished the value of plaintiff’s premises in the sum of $500. We thus have three charges against the defendant set forth in the complaint, to wit; a nuisance, improper fuel, and unnecessary sounds. The action of the plaintiff, then, is solely for damages, in that plaintiff’s property has been diminished in value, and, in order to entitle the plaintiff to recover, it was necessary for her to establish that her property had been so diminished in value.

It appears that the plaintiff was in occupancy of the premises of which she claims to be the owner in fee prior to the time the defendant came into Oneonta, and constructed its yards and tracks and operated its railroad. The answer, in substance, put in issue plaintiff’s ownership of the premises, the allegations of damage, the jurisdiction'of the court, and affirmatively alleged the defendant’s ownership of its property, its right to use and occupy the same for the purposes and in the manner in which it had so used and occupied the same. I think the court was without jurisdiction to determine any of the issues involved in this action. The City Court of Oneonta is a court of limited jurisdiction. In fact, so far as it relates to this kind of an action, the jurisdiction is no greater than that of a Justice’s Court. There is nothing in the complaint tending to show that this is what is sometimes called a possessory action; in other words, it is based on the assumption of ownership, and upon the assumption of injury to the inheritance.

The action for a nuisance is a common-law action, or, in any ■event, so far as it may be deemed a statutory action, it is regulated by the provisions of the Code of Civil Procedure (section 1660), and contemplates the bringing of the action into a court of original jurisdiction, and not in a court of special or limited jurisdiction, such as the City Court of Oneonta. It follows, therefore, that the plaintiff has ■entirely mistaken her remedy, or, in any event, is mistaken in her choice of the court she has made to seek relief.

It is provided in the Code of Civil Procedure, in relation to actions in Justice’s Court, that if it shall appear by the plaintiff’s own showing (section 2956) that the title to real estate is in question, and that title is disputed by the defendant, the court must dismiss the action. The theory of the plaintiff is, here, that she is the owner of the premises mentioned in the complaint, and that the same have been depleted in value. Clearly the court has not jurisdiction of the action, as it possesses no equitable jurisdiction. It has no power to abate the alleged nuisance, nor to adjudge a certain existing condition to constitute a nuisance, and the defendant was entitled to have the action dismissed. In order to sustain the jurisdiction of the City Court in this action, attention has been called to the language employed by section 212, subd. 2, Oneonta City Charter.

Section 212 provides:

“Jurisdiction in Civil Actions and Proceedings.—Except as limited by the next succeeding section, the City Court shall have jurisdiction of the following civil actions and proceedings, to wit: Subdivision 2. An action to prove damages for a personal injury or injuries to property where the sum claimed does not exceed five hundred dollars.”

Section 213, following, provides, however, that the City Court is not to take cognizance of certain actions, and says:

“The City Court shall not take cognizance of a civil action in either of the following cases: (1) Where the title to real property comes in question, as is prescribed in title 3 of chapter 19 of the Code of Civil Procedure, except as provided in section 242 of this act. And when such question arises, the pleadings and practice shall be the same as are provided by law for Courts of Justices of the Peace in t'owns in regard thereto.”

Section 242, above referred to, relates solely to actions to recover penalties, and that for all practical purposes the City Court of Oneonta possesses the same jurisdiction, and no other, than that which is vested in Courts of Justices of the Peace. It may be conceded that an action in Justice’s Court might be maintained for trespass by alleging and proving the actual or constructive possession of the plaintiff in such a case (Carter v. Pitcher, 87 Hun, 580, 34 N. Y. Supp. 549; Van Renssalaer v. Van Renssalaer, 9 Johns. 377; Douglas v. Valentine, 7 Johns. 273; Russell v. Scott, 9 Cow. 279; Edwards v. Noyes, 65 N. Y. 125), but the injury would be solely to the person, and not to the fee of the land.

This is clearly so, as trespass is defined to be any misfeasance or act whereby another is injuriously treated or damnified; any unlawful acts committed with violence, actual or implied, to the person, property, or rights of another; any unauthorized entry on -the realty of another to the damage thereof. 1 Bouv. Law Dict. 747. Every unwarrantable entry on one’s soil the law entitles, a trespass, for every man’s land'is, in the eye of the law, inclosed, and set apart. 3 Blackstone’s Comm. 209; Bileu v. Paisley, 18 Or. 47, 21 Pac. 934, 4 L. R. A. 840.

To disturb a peaceable possession as well as doing some damage to real property is a trespass. Hulick v. Scovil, 9 Ill. 159; Newcombe v. Erwin, 55 Mich. 620, 22 N. W. 66; Talbot v. English, 156 Ind. 299, 59 N. E. 857; McAdam, Landlord arid T. § 418; 8 Words and Phrases, 7088. I think the City Court of Oneonta would have had jurisdiction of an action to recover damages for trespass, but such is not the cause of action alleged in the complaint, to wit, damages to the freehold.

In trespass, however, the jurisdiction is arrested if the defendant plead title, or if it appear by the plaintiff’s own showing that the title to land is in question. Willoughby v. Jenks, 20 Wend. 96. Ordinarily a Justice’s Court can only be ousted of jurisdiction by a plea of title, and by giving the undertaking as is required by statute. Yet, where it appears by the plaintiff’s own showing, as in this case, that the title to real estate is in question, then it becomes the statutory duty of the court to dismiss the action, and this same statute applies to the City Court of Oneonta.

The distinction between possession and title is this: Possession means “the actual control by physical occupation”; whereas, title is defined, “the means whereby a person hath the possession of his lands.” The judgment of a justice is void, where a disputed title to land is' in question, and a plea of right of way deprived the justice of jurisdiction. Gage v. Hill, 43 Barb. 44; Striker v. Mott, 6 Wend. 465; Hall v. Hodskins, 30 How. Prac. 15; Heath v. Barmour, 53 Barb. 444; Whiting v. Dudley, 19 Wend. 373; Lane v. Young, 66 Hun, 563, 21 N. Y. Supp. 838.

I think it was also error to receive the certified search in evidence for the purpose of establishing the title of the plaintiff to the premises claimed to have been occupied by her. It was doubtless iricumbent upon her to prove ownership in .fee in order for her to maintain an action for a private nuisance. The title to real estate, however, cannot be shown by a clerk’s abstract or certified search. Section 933 of the Code of Civil Procedure provides that copies of records duly certified shall be presumptive evidence, but I am not able to find any adjudicated case which holds that a mere abstract is evidence of title, nor do I think that Clark v. Nixon, 5 Hill, 36, relied upon by the respondent, is such authority. That case holds that a recorded conveyance of the lands or a certified copy of such conveyance may be introduced in evidence for the purpose of proving title.

In order to prove her title, it was necessary for the plaintiff to produce a deed which satisfied the requirements of the law, and such deed may have been proved either by producing the original or the record or a certified copy of the record. Abb. Trial Evidence, p. 874. It is very strongly urged by the learned counsel for the appellant that the plaintiff in this action was permitted to recover upon a cause of action not stated in the complaint, and that it was error to receive the evidence of rental value. Cogswell v. N. Y. & N. H. & H. R. R. Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701, was an action brought to recover damages against the defendant, in that it maintained a private nuisance to the property of the plaintiff. Proof was permitted in that case that the house was rendered untenantable and could not be rented, although prior tó the erection of the alleged nuisance if had been rented for a large sum, and such evidence appears to have been considered by Andrews, J, who wrote for the Court of Appeals, some evidence of damage, but, having reached the conclusion that the trial court was without jurisdiction, I am not called upon to decide here as to whether such evidence was or was not properly or improperly admitted, or as to whether the plaintiff tried her action upon the theory of trespass, or as to whether, in an action to recover for an alleged trespass, evidence of loss of rental value would have been competent or incompetent.

The plaintiff contends that the statute confers no unusual power on the defendant, but simply authorized it to construct and operate a steam surface railroad; that the implied powers springing from the express power to maintain a railroad do not extend to the grievances complained of by the plaintiff, nor permit the ruin of her property as she claims, without just compensation; that, while the welfare of the public and the necessities of travel require that the plaintiff should submit to annoyances caused by a reasonable use of the property of the defendant, she is not obliged to submit to.an unreasonable use, which she claims the evidence in the case has established, citing Garvey v. L. I. R. Co, 159 N. Y. 323, 54 N. E. 57, 70 Am. St. Rep. 550; Cogswell v. N. Y. & N. H. & H. R. Co, 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701; Morton v. Mayor, 140 N. Y. 207, 35 N. E. 490, 22 L. R. A. 241; Booth v. R. W. O. T. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552; Bohan v. Pt. Jervis Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711; Amherst v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305; Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739; Rosenheimer v. Standard Gaslight Co., 36 App. Div. 1, 55 N. Y. Supp. 192.

_ On the other hand, it is urged by the defendant that no property rights of the plaintiff have been invaded by reason of the state of facts as adduced upon the trial, inasmuch as it had authority for what it did in the statute which created it, and that, when the Legislature authorizes the operation of a steam surface railroad, it impliedly sanctions and legalizes its inconveniences and annoyances to others which are inseparable from the proper- conduct of such an enterprise; that it has not done, nor permitted, anything to be done except that which it had the lawful right to do as the owner and operator of its railroad property; and that there has been no want of proper care and skill on its part, and that the proper rule of law to be applied is as stated by O’Brien, J, in Friedman v. N. Y. & H. R. Co., 89 App. Div. 38, 85 N. Y. Supp. 404, and citing Peck v. Newburgh Light & Power Co., 132 App. Div. 82, 116 N. Y. Supp. 433; McCarty v. National Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549, 13 L. R. A. (N. S.) 465; Hatch v. Central R. R. Co., 25 Vt. 67; also citing Uline v. N. Y. C. R. R. Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661; Rad-cliff v. Mayor, 4 N. Y. 195, 53 Am. Dec. 357; Davis v. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Bellinger v. N. Y. C. R. Co., 23 N. Y. 42; Kellinger v. 42d St. R. Co., 50 N. Y. 206.

The right to exist and operate being unquestioned as a matter of law, it becomes a material circumstance in determining the question whether a thing is or is not a nuisance to ascertain from the facts whether the plaintiff has been hurt or injured by the unreasonableness of the methods employed. Hochstrasser v. Martin, 74 Hun, 338, 26 N. Y. Supp. 410.

The trial court, as I think, not having had jurisdiction of the cause of action alleged in the complaint, I have concluded that it would not be proper for me to determine the legal propositions last above stated, as they are applicable in my opinion to the facts included in the record. For the reasons stated, however, the judgment of the City Court herein should be reversed, with costs.

Judgment reversed, with costs.  