
    Solomon Scheu v. The New York, Lackawanna and Western R. R. Co. et al.
    
    
      (Superior Court of Buffalo, Trial Term,
    
    
      Filed December 1, 1887.)
    
    1. Pleading—Complaint—When a cause op action stated.
    The complaint in a certain action alleged in substance that the defendants were a railroad corporation engaged in operating a railroad within the city of Buffalo. That the plaintiff was the owner in fee of real estate with certain appurtenances, among which was the right to navigate with water craft and use and occupy a.l of a certain canal running to and adjoining said premises. That said canal was navigable and was constructed for the use and benefit of plaintiff and his premises and the use of other persons, etc. That the canal was constructed by former owners and grantors of said premises for the benefit thereof. Then followed a description of the premises, and a statement that the plaintiff being in possesion of said premises, the defendants, on a day named, unlawfully entered into and upon the said premises and parts thereof, describing them. The land described was the land over which a bridge, constructed by the defendant, swung when opened, and also the land under the canal over which the bridge when closed rested. It then alleged that defendant wrongfully and unlawfully withheld the possession of said premises from plaintiff. Then prayed judgment that plaintiff recover the said real estate and appurten, anees, rig" ,ts and privileges, and the use, occupation and possession thereof; and that the defendants be restrained, etc., from the use, occupation, etc., of each and every part thereof, together with damages. Held, that tlio facts alleged being proved, the plaintiff was entitled to a judgment restraining the defendant from swinging the said bridge over or above plaintiff’s premises, etc.
    8. Same—Remedy where allegations are indefinite.
    If the allegations of the complaint are indefinite or defendant wanted more particularity of statement his remedy was by motion to make it more definite and certain. Having answered, he will not be heard to complain when it appears that he was not prejudiced or misled.
    S. Same—When error to dismiss complaint.
    If the facts stated in the complaint are sufficient to entitle a party to the relief asked, it would be error to dismiss it.
    4. Same—Joinder of legal and equitable causes op action — When ENTITLED TO RELIEF.
    _ Legal and equitable causes of action arising out of the same transaction may be joined and when the plaintiff t ails on the trial to establish his legal claim, he is not thereby prevented from having his right to equitable relief passed upon by the court.
    5. Same—When entitled to injunction.
    There was no proof showing that defendants had dispossessed the plaintiff or held possession of any real property the fee of which was shown to be in the plaintiff. But the proof did show that the defendants, by their acts, destroyed the beneficial use and enjoyment of a portion of such real property and interfered with valuable appurtenant rights and incidents connected therewith. Held, that the plaintiff was entitled to judgment restraining the defendants.
    The plaintiff is the owner of subdivision lots, Nos. 17, 18 and a part of 19 of outer lot No. 2, in the city of Buffalo. So far as important here, said subdivision lot 19 has a practical southerly frontage upon the exterior line of a public street in said city known as Water street, and an easterly frontage upon a body of water running at right angles to Water street, known and called the Evans ship canal, to speak more accurately. Subdivision lots 17 and 18 have an easterly frontage upon said canal, while a portion of subdivision lot 19 lies under the waters of said canal, the balance fronting thereon. Said ship canal was constructed upwards of fifty years ago, from Buffalo river to the Erie canal, and was built and maintained by the owners of property having a frontage thereon; its width was seventy-five feet, and its depth varied from ten to sixteen feet. It was used by lake craft and canal boats, in carrying to and taking away grain and other commodities. The owners of property fronting upon the canal erected elevators, warehouses and docks, which were used in lading, discharging and storing such commodities and freight as was usually transported by water. Some years ago the northerly end of said canal which connected with the Erie canal was closed at a point where it intersected Erie street, in said city, and that portion of the canal lying northerly of Erie street was not thereafter used for canal purposes. The remaining portion of said canal has continued to be used for the purposes of its construction to the present time. It has been kept dredged and cleaned out at the expense of frontage owners, although payments of assessments for that purpose have not been uniform.
    South of plaintiff’s property, and immediately adjoining thereto, said canal is intersected by Water street, where it is crossed by a swing bridge. The first bridge was erected by the persons who constructed the canal shortly after its construction. This bridge swung upon pivots in the center, to the east side of the canal, and rested against what was called the Evans transportation building. No part of it passed over, rested on or above the premises owned by the plaintiff. It was used for the passage of teams, was about twelve feet wide, and eight feet above the water. In the practical use of the canal, canal boats passed in and out under the bridge, and it was usually not opened except for vessels larger than canal boats. This bridge was kept and maintained until 1840, or thereabouts, when James C. Evans, plaintiff’s grantor, and then owner of subdivision lot 19, widened and straightened the canal opposite said lot. This improvement commenced at a point about fifteen feet from the intersecting fine between lots 18 and 19, and extended to the southerly line of lot 19.
    Piles were driven along the fine of said excavation and a dock was erected opposite a warehouse then standing upon said lot; said dock was subsequently allowed to fall into decay. A present survey of the premises shows that the greatest width of land removed in making said improvement is about sixteen feet, and at the southeasterly point of lot nineteen, where it intersects Water street and said canal, it is about fifteen feet. Since said improvement, the lands embraced within the angles mentioned have been covered with water. The bridge at about this time was slightly increased in length, but in other respects remained as originally constructed. A short time after, the city authorities assumed control of said bridge, and have, until a time herein mentioned, kept and maintained it, but in all essential respects during said control it has remained as first built.
    In 1815 the city of Buffalo acquired title to the fee of Water street, and has since held the same subject to a public easement therein. In and about February, 1882, the common council of said city, by resolution, authorized the defendant, the New York, Lackawanna and Western Railway Company, to lay its tracks upon and through the center of Water street and across said ship canal. Thereafter such proceedings were had and taken that said defendant laid its tracks in and upon and through said street in front of plaintiff’s said premises and across the said Evans Ship Canal.
    In and about the month of June, 1882, the defendant instituted proceedings under the general railroad act for the purpose of condemning for railroad purposes certain land fronting upon Water street and owned by the plaintiff. That such proceedings were thereafter had by defendant as resulted in an order of the court directing the condemnation of the following described premises. All that certain piece or parcel of land commencing at the point of intersection of the westerly line of the Evans Ship Canal and the northerly line of Water street, and running thence westerly along said line of Water street to a point thirty-five feet from the face of the dock along said line of said canal, which point is 170 feet southerly from the angle in Water street, and running thence northerly parallel with said canal forty-six feet. Thence easterly, and parallel with Water street, twenty-five feet, and thence southerly to the place of beginning. The southeasterly point of the land thus taken intersected the northerly line of Water street at its junction with the westerly line of the present ship canal. The land condemned had a frontage of thirty-five feet on Water street, while the northerly boundary was but twenty-five feet in width; thus leaving a triangular piece of land still owned by plaintiff easterly of the land condemned and fronting on the ship canal. This triangular strip is ten feet wide at its northerly end running to a point by uniform angle at the junction of the northerly line of Water street and the ship canal. Title to the land also remained in the plaintiff, which lies under the waters of the ship canal lying east of its present line and embraced within the angles of plaintiff’s description as heretofore mentioned.
    When defendant laid its road across said ship canal it caused to be constructed a new bridge, the length of which was increased to seventy-seven feet and its width to thirty-seven and one-half feet, with a further fine of projection into Water street opposite plaintiff’s premises. Its height above the water of the canal has been decreased to between three and four feet, so that canal boats cannot now pass out of, or into said canal unless the bridge be opened; it swings upon a pivot in the center to the westerly line of said ship canal, and while being swung it passes over the land of plaintiff under the waters of said canal, and, also, over the sai'd triangular piece. When entirely open it rests upon and over the land taken in the condemation proceedings, and also, over a portion of the triangular piece; there is a bench or wall for its support at the northerly end, but the whole of said structure is upon the defendant’s land. The defendant, the Delaware, Lackawanna and Western Railroad Company, is a. lessee of the property of the defendant first-mentioned.
    
      James M. Humphrey, for pl’ff; F. D. Locke, for def’ts.
   Hatch, J.

It appears by the evidence given upon the trial and was conceded by defendants’ counsel upon the hearing, that defendants did not have title to the lands lying under the waters of the ship canal, and did not have title to the triangular piece of land fronting thereon. This being established it follows that defendants had no right to so construct their bridge as to swing over or upon plaintiff’s premises. The servitude thus imposed thereon has the effect of substantially destroying plaintiff’s beneficial use and enjoyment of the same. So apparent is this result that defendant does not contend against it. The rights of the plaintiff having been thus infringed, it is the imperative duty of the court, to apply a remedy, and grant relief if within its power so to do. The contention of the defendant is that the allegations of the complaint make this an action of ejectment solely, and that ejectment will not he to redress the wrongs here complained of. The complaint alleges in substance, that the defendants are railroad corporations engaged in operating a railroad within the city of Buffalo. That the plaintiff is the owner in fee of real estate with certain appurtenances, among which is the right to travel upon Water street, upon which his said premises are bounded, and also, the right to navigate with water craft, and use and occupy all that body of water known as the Evan’s ship canal, running from Buffalo -Creek, to and adjoining plaintiff’s premises; that said canal is a navigable stream of water, and was constructed for the navigation of boats and water craft, from Buffalo Creek, Lake Erie, and owned by, and for the use and benefit of plaintiff and his premises, and the use of other persons, and their premises adjoining thereon, which canal was contracted by the former owners and grantors of said premises for the benefit thereof, and that for a long time the canal and premises have been used, and occupied and possessed by the plaintiff.

Then follows a description of the premises by metes and bounds. It then states that the plaintiff being in possession of said premises, and the owner thereof, the defendants on or about the 1st day of November, 1882, wrongfully and unlawfully entered into and upon said premises and parts and parcels thereof described as follows. Then follows a description of the premises by metes and bounds, which shows the land described as being the lands over which the said bridge swings when open, and also all of the land embraced in Water street, opposite plaintiff’s premises, and all that portion of the lands under the canal included in Water street and over which the bridge, when closed, rests. Then alleges that defendants wrongfully and unlawfully withhold the possession of said premises from plaintiff."' Then ■prays judgment that plaintiff recover the said real estate and appurtenances, rights and privileges, and the use, occupation and possession thereof, and that the defendants, he prevented, restrained and prohibited from the use, occupation and possession, and each and every part thereof, together with damages.

From these allegations it can be spelled out that plaintiff seeks to recover for an invasion of rights and appurtenances incident to an ownership of land as well as the premises, for the pleader first alleges ownership in fee of premises, with certain appurtenances, and then sets out what they are. The first is an easement in Water street, upon which he says his premises bound. The other is the right to navigate with water craft the Evan’s Ship Canal, alleging the purposes for which it was constructed, the uses to which it was put, and how it was beneficial to his premises and to other persons bounding thereon. It is true that his subsequent allegations show title in himself, not only as an appurtenant right, but as owner of the fee, and in this his allegations may be construed to be inconsistent, but it does, not thereby follow that when he has shown himself entitled to recover upon one theory, his complaint shall be dismissed because he does not also show himself entitled to recover upon the other. His prayer for relief is that he recover the alleged appurtenances, rights and privileges of which he has been deprived, and that the defendants be restrained and prohibited from the use and occupation of the premises and every part thereof. As will be hereafter-noticed, if defendants had a remedy against this defective pleading it was not by a dismissal of the complaint after the proof is in, or by compelling an election of the branch upon which plaintiff shall proceed when the trial is opened.

The defendants appeared and answered separately.

First. By a denial of the possession and ownership of' the fee.

Second. A denial of any rights in Water street, and in the Evans ship canal.

Third. A denial of the uses and purposes for which said canal was constructed and the uses to which it has been put.

Fourth. Denies the wrongful entry.

The second defense is the acquiring of title to the premises by condemnation proceedings.

The third defense is that Water street is a public highway, the fee of which was in the city of Buffalo. And that said city duly granted this defendant the right to construct its railroad in Water street and across the canal, and that it has constructed it in conformity with such authority. The answer of the Delaware, Lackawanna and Western Railroad' Company also alleges that it is the lessee of the said railroad and premises from its co-defendant, and that, the use and entry by it is identical with the acts mentioned in the complaint.

It is thus seen that the defendants squarely put in issue-each allegation in the complaint, both as to the fee and appurtenant rights. It was upon the issue thus framed that the parties came to trial. The proof given upon the trial was pertinent and embraced within the issues thus raised. If the allegations of the complaint were indefinite, or defendant wanted more particularity of statement, his remedy was by motion, to make more definite and certain. Neftel v. Lightstone, 77 N. Y., 96; Hale v. Omaha National Bank, 49 id., 626. But having answered he should not now be heard to complain. Kline v. Corey, 18 Hun, 524.

Especially is this true when it appears, as here, that defendant was not misled or prejudiced. The complaint should then be amended so as to conform with the proofs given upon the trial, Reeder v. Sayre, 70 N. Y., 180-190; Price v. Brown, 98 id., 388; Bedford v. Terhune, 30 id., 453.

This rule has been enforced where a demurrer to a complaint, if interposed, would have been sustained. Woolsey v. Rondout, 4 Abb. Ct. App. Dec., 639.

Section 1207, Code Procedure, authorizes the entry of any judgment consistent with the case made by the complaint and embraced within the issues, when an answer has been interposed.

Section 484, subdivision 9 provides, that claims arising out of the same transaction, or connected with the same subject of the action, may be united. The courts early held, under like provisions, that if the facts stated in the complaint are sufficient to entitle a party to the relief asked, it would be error to dismiss, and in Barlow v. Scott (24 N. Y., 40), Judge Lott states, that “the statement of the right- and its infringment by a defendant constitute such a case.” Id. 45.

That was an action for specific performance of a contract. The proof showed no title in the defendant so that a decree-of performance could not be made. The court awarded damages for the non-performance of the agreement, which was upheld.

This doctrine finds support in The N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y., 357.

In Davis v. Morris (36 N. Y., 569), it is held that legal and equitable causes of action arising out of the same transaction may be joined, and when the plaintiff fails on a trial before the court to establish his rights to equitable relief, ho is not thereby prevented from having his legal claims passed upon by a jury. The converse of this proposition must of course be true. Beck v. Allison, 56 N. Y., 366.

In Stevens v. Mayor of New York (84 N. Y., 296), Judge Danforth states the rule thus, “ the names of actions no longer exist, but we retain in fact the action at law and the suit in equity. The pleader need not declare that his complaint is in either; it is only necessary that it should contain facts constituting a cause of action, and if these facts are such as, at the common law his client would have been entitled to judgment, he will under the Code obtain it. If on the other hand they establish a title to some equitable interposition or aid from the court, it will be given by judgment in the same manner as it would formerly have been granted by decree. So the complaint may be framed with a double aspect, but in every case the judgment sought must be warranted by the facts stated. For as was said in Dobson v. Pearce (12 N. Y., 156), ‘ the question is, ought the plaintiff to recover ’ or as in Crary v. Goodman (id., 266), ‘ whether according to the whole law of the land applicable to the case the plaintiff makes out the right which he seeks to establish.’ It is only when he fails in doing this that he can be treated as one making a false clamor.” Id. 304-305. Colrick v. Swinburne, 105 N. Y., 503; 8 N. Y. State Rep., 172.

We here have a case where the pleader has stated his cause of action in a double aspect; upon each allegation of the complaint thus stated the defendant has joined issue. It may be assumed that the proof upon the trial shows that plaintiff is not entitled to judgment establishing his legal cause of action as there is no proof showing that defendants have dispossessed the plaintiff, or now wrongfully hold possession of any real property, the fee of which was shown to be in the_ plaintiff. But the proof does show that defendants, by their present acts, have and do destroy the beneficial use and enjoyment of a portion of such real property, and have and do interfere with valuable, appurtenant rights and incidents connected therewith, thus showing plaintiff entitled to equitable relief. It is doubtless the fact that the structure of plaintiff’s complaint can better be sustained as an action in ejectment than in its equitable aspect, but that does not thereby deprive plaintiff of the relief to which he shows himself entitled, or call for a dismissal of his complaint. Harrison v. The Brooklyn Bath and Coney Island R. R. Co., 100 N. Y., 621; Lattin v. McCarty, 41 id., 107.

The claim of counsel that plaintiff is limited in his rights to establishing, first, the commission of a trespass by defendants in swinging the bridge, and having obtained a judgment, would thereby become entitled to maintain an. action restraining defendant by injunction from swinging the bridge cannot be upheld. The wrong existing, the court can in this action apply the remedy. Corning v. Troy Iron and Nail Factory, 40 N. Y., 191; Broiestedt v. South Side R. R. Co. of L. I., 55 id., 220.

The claim is also made by defendants that the right having been obtained from the common council to lay its tracks in Water street and across the Evans ship canal, that, therefore, they have invaded no right of the plaintiff, and that such grant is authority for their acts. It is not material now to inquire what the effect of the permission is so far as it is applicable to Water street. The grant, with respect to the crossing of the ship canal, is subject to a condition that said defendants shall construct, maintain and operate .a swing bridge across said canal, at such an elevation and of such construction as not to impair the navigation of said canal as then existing and not to infringe any vested right. It appears clearly that the defendants have not complied with such conditions, consequently the grant cannot be invoked as a defense to their action. So far as plaintiff’s rights in Water street are concerned, he has a perfect legal remedy, by action to recover damages, if they have been invaded. Reming v. D. L. and W. R'y, (1 N. Y. State Rep., 733), decided by the general term of this court, following the rule laid down in Story v. Elevated Railroad Co., (90 N. Y., 122, and kindred cases.

From the views herein expressed, it follows that plaintiff is entitled to judgment restraining the defendants from ■swinging the said bridge crossing the Evans ship canal, .across, over and above plaintiff’s premises, or any part thereof. Plaintiff is also entitled to judgment compelling and •directing the defendants to restore the said swing bridge to a condition where it will not impede navigation as the same existed previous to the construction of the present bridge.

An order may also be entered amending the complaint herein so as to conform to the proofs given upon the trial. •Costs of the action awarded to plaintiff.  