
    Luther J. Burditt, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    1. Trespass—Illegal use of land for switching—Damages.
    In an action to enjoin a railroad company from maintaining- a swilch on plaintiff’s lands in a highway, where the equitable relief is granted, the loss of the use of the premises up to the time of the trial may be included in the damages allowed.
    2. Same—Evidence.
    In such an action opinions of witnesses as to the effect of the construction of the switch upon plaintiff’s property is. inadmissible, as that is the precise question which the court is to decide.
    Appeal from judgment of special term in favor of plaintiff. The plaintiff owned to the corner of Teall avenue, in the city of Syracuse. The defendant had laid down, and at the time of the commencement of this action was maintaining and operating, a switch upon-and across a portion of the premises of the plaintiff included within said avenue, without the permission of the plaintiff, and without having obtained any right so to do either by agreement or proceedings to condemn. This action is brought to enjoin the defendant from operating such switch upon the premises, and for damages sustained by reason of its having been so used. The court at special term granted the injunction asked for, and fixed the damages sustained at the sum of $151.75. From the judgment entered upon such decision the defendant appeals to this court
    
      M. M. Waters and Ashbel Green, for app’lt; C. H. Wilson, for resp’t.
   Parker, J.

There seems to be no doubt but that the defendant, in building and maintaining this switch in Teall avenue, has been guilty of a continuing trespass upon the plaintiff’s land, and that the judgment enjoining him from using such switch was properly rendered in this action. Indeed, the appellant makes no complaint before us of any error upon that question. The real question presented is whether the court at special term has imposed too heavy damages against the defendant by fixing the plaintiff’s loss of rents sustained in consequence of the use of the switch from the time it was laid at the sum of $151.75. It is not claimed that in fixing this amount the court adopted any erroneous rule of law, but simply that such amount cannot be sustained by the evidence in the case. An examination of the evidence convinces us that there is no occasion for interfering with the decision of the trial court upon that question. It being an action in equity, and equitable relief having been granted, the loss of the use of the premises up to the time of the trial might very well have been included in the damages allowed, and a larger sum even have been awarded. Barrick v. Schifferdecker, 48 Hun, 356; 16 St. Rep., 449 ; 123 N. Y., 52; 33 St. Rep., 485 ; Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423.

The objection that evidence offered by the defendant was improperly excluded is not well taken. The questions ask for the opinion of the witness as to the effect of the construction of the switch upon the plaintiff’s property. That was the precise question upon which the court was to decide, and such opinion, within the rule laid down in the Roberts case, 128 N. Y., 455; 40 St. Rep., 454, is not proper evidence. See discussion of that question at page 471, 128 N. Y., and 40 St. Rep., 462, of such case. The defendant’s ninth and tenth requests to find assume that only that part of plaintiff’s land over which the switch actually passed, was injuriously affected by it. Such an assumption is not sustained by the evidence, and the requests were for that reason properly denied. On the whole case we think the judgment is correct, and should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  