
    WILLIAM Y. MORTIMER, et al., as Executors, etc., Appellants, v. THE MANHATTAN RAILWAY COMPANY, Respondent.
    
      Trespass—Can executors and trustees recover damages for injuries to real estate premises occurring after the death of their testator, and while tlie said premises were occupied by a tenant under a lease executed by the testator.
    
    Richard Mortimer, the testator of the plaintiffs, died May 30, 1882. At the time of his death the premises in question were in possession of one Gregg under a lease, executed by the testator, for a term of five years from May 1, 1880, to May 1, 1885, and continued in such possession until the expiration of said lease, paying the rent to the plaintiffs, as executors, after the death of their testator, to May 1, 1885, when plaintiffs took possession and leased the premises for five years to another tenant. This action was commenced July 28, 1886, to recover damages occasioned to said property, from the death of their testator, by the defendant’s railroads.
    At the trial the jury, under the direction of the court, found in favor of the plaintiffs in two separate amounts: (1.) For damages from June 1, 1882, to May 1, 1885, (during the unexpired term of the lease to Gregg) for $14,653.80. (2.) For damages from May 1, 1885, to July 28, 1886, for $5,875.20. The defendant moved to set aside the verdict for $14,653.80, which motion was granted by the court, “ on the ground that no damages are recoverable in this action for any injury to the rental value of the premises in' question from the death of the testator Mortimer, May 31, 1882, when the lease, which was outstanding at the death of the testator, expired. From that order setting aside the verdict for $14,653.80 this appeal was taken. Held on appeal, that the trespass committed by the defendant from June 1, 1882, to May 1, 1885, was an injury to the inheritance under section 1665 of the Code, which provides that “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 plaintiffs were entitled to ecover for the damages caused by the trespass.
    Before Freedman and Ingraham, JJ.
    
      Decided February 6,1890.
    Appeal from an order setting aside a verdict rendered in favor of the plaintiffs for $14,653.80.
    
      
      John W. Pirsson, attorney, and John E. Parsons and John Alexander Beall of counsel, for appellants, argued:—•
    I. There is only one question presented by the appeal in this case. Are the plaintiffs; as executors and trustees under the will of Richard Mortimer, • entitled to recover damages for depreciation in the rental value of the property during the period between the death of Mr. Mortimer, on May 30, 1882, and the expiration of the lease to Gregg, executed by him in his lifetime ? The plaintiffs, as the holders of the 'legal title, took the property after the death of the testator, not only, subject to the lease and the burdens, but also with. all the rights and benefits which the testator had or would-have had if he had survived. And it is not disputed that, had Richard Mortimer survived until the expiration of the lease he could have, recovered damages for the whole period.
    II. There can be no doubt that there is an injury in this case, and, in accordance with the general principle of law, there should be and there is a remedy. That remedy is precisely the one sought in this action, and it seems there is no other. The remaindermen or reversioners cannot sue, for it is not damage to the inheritance strictly as such. The executors and trustees are the only other parties who can by any possibility have a right of action, and this belongs to them, for it is for the rents, issues and profits of the property devised to them, and which is the subject of their trust.
    III. The decision of the learned Chief Judge appears (for there is no opinion) to have proceeded upon the theory that the plaintiffs as trustees, devisees under the will, were purchasers, and took the estate subject to the lease made by the testator, and that their estate was not injured unless the rent thus reserved and fixed was still further reduced, or its security impaired by subsequent acts of the defendant. It is submitted that this is an extremely technical and artificial definition of the term purchaser. It is true that within the strict common-law meaning of the term—devisees are' purchasers, but instances constantly occur in which “ to purchase,” and its inflections are used in the vernacular sense of acquired by payment of a price or value. 2 Abb. Law Dict., p. 356; Durando v. Durando, 23 N. Y. 331; McCartee v. Orphan Asylum, 9 Cow. 437; Curtis v. Burdick, 48 Vermont, 166; Kohl v. U. S., 91 U. 8. 374. The words “ purchases of land made, or to be made,” in Act of 1802, “ to enable aliens to purchase and hold real estate,” was interpreted to mean “ lands bought,” and that the broader sense of purchase which would include devise was not meant, but the more natural limited and common one of buying. (Citing Twyne’s Case, 3 Rep. 83; 4 Cruise, 382) ; Priest v. Cummings, 20 Wend. 357 and 358. The plaintiffs here are not purchasers within the authorities cited. They have acquired and hold the property in question not in their own right and for their own purposes, but as trustees, and for the benefit of the cestui que trusts, some of whom at least are the heirs-at-law of the testator. The idea, therefore, of a negotiation in reference to this property, the consideration of the situation, burdens and present disadvantages, in view of all which a price was fixed and paid, is precluded; and no reason exists or can be shown why the remedy which unquestionably would have existed had the testator lived, and which would have descended to the heirs-at-law had Mr. Mortimer died intestate, should be destroyed, because he provided for the care and management of the estate by trustees for the benefit of the heirs-at-law and their issue. For such an exceptional and inequitable result surely some authority should be found, and the learned court below has cited none.
    IV. On May 20, 1879, the defendant took possession of and from that time it has operated the •railroad in front of the plaintiff’s premises. On May 1, 1880, Mr. Mortimer made the five years’ lease to Gregg, at a rental reduced by reason of the railroad by the amount established by the verdict of the jury. That the estate of Mr. Mortimer sustained a loss up to the annual amount established by the verdict during the entire term is not in dispute. Under the authorities Mr. Mortimer could not at the beginning sue for and recover the whole loss, the reason being that the law recognizes the possibility that the defendant might at any time by the removal of the structure undo the wrong which it had perpetrated. If Mr. Mortimer.had lived, to enable him to recover it was requisite that he should show : First, that by reason of the existence and operation of the railroad, the rental of his property was at the time that he gave the Gregg lease, that is to say, May 1, 1880, diminished to the amount fixed by the lease. And, second, not as creating but as maturing the claim, that the wrong perpetrated by the defendant continued during the time for which suit was brought. In other words, the wrong was done to Mr. Mortimer when the defendant took possession cf his easement in the Bowery and Division street. He had a right of action for the damage. This constituted assets of his estate, and as such passed to the plaintiffs as his executors, subject only to be reduced in amount if at any time during the term the defendant removed its railroad. As this was not done the cause of action became complete. As the plaintiffs are both executors and trustees, and sue in their dual capacity, they can recover as executors, even if the view taken by the learned Chief Justice as to their rights as trustees is correct. It is obvious that the defendant is liable. It is equally obvious that in one or the other or both capacities the plaintiffs should recover.
    
      Davies & Rapallo, attorneys, and Edward C. James of counsel for respondent, argued :—
    I. The plaintiffs took only the estate in reversion The lease, executed May 15, 1880, granted to Mr. Gregg an estate for years in all the property in question, continuing until May 1st, 1885, and left to Mr. Mortimer an estate in reversion during that period. 1 R. $.’723, § 12 (Vol. III., 7th ed.,p. 2176); 4Kent's Commentaries, 85, 353 to 356. The plaintiffs, as devise'es under the will of Mr. Mortimer, took title as purchasers of said estate in reversion. 1 R. S. 725, § 35 ; 2 Ib., 57, § 2. The reversion was an incorporeal hereditament. The devise passed the right to the rents, which subsequently became due upon the lease, as incident to the reversion, but not to the rents in arrear. 4 Kent's Commentaries, pp. 354,356. Until the plaintiffs’ right of entry accrued, upon the expiration of the outstanding estate for years, May 1st, 1885, they had no rights in the premises, except to collect the rent, which fell due upon said lease, after May 31, 1882, and to their statutory remedies for injuries to the inheritance. 2 R. S., 339, §§ 1, 2; Code, § 1665.
    II. No cause of action for trespasses prior to May 1, 1885. The theory upon which the defendants are held liable for damages is that they are trespassers upon easements belonging to this property. Uline v. N. Y., &c., R. R. Co., 101 N. Y. 98 ; Lahr v. El. Ey. Co., 104 Ib. 268 ; Drucker v. Manhattan Ry. Co., 106 Ib. 157, 161. There is no presumption that these trespasses will continue. Hence a recovery of damages can be had only for those committed within six years prior to the commencement of the action. Uline v. Railroad Co., 101 N. Y. 98 ; Silsby Mfg. Co., v. State, 104, Ib. 562, 559-70 ; Colrick v. Swinburne, 
      105, Ib. 503, 507-8. Each day’s continuance is treated as a new and distinct trespass, (Ib). Now, trespass is ordinarily an injury only to the possession. Hence, it is necessary for a plaintiff to prove his possession or right to possession in order to maintain the action. A landlord cannot maintain an action to recover damages for trespasses, while the property is in the possession of a tenant under an outstanding term of years, unless the acts constitute an injury to the inheritance, or estate in reversion (Code, § 1665). Campbell v. Arnold, 1 John, 1 ; Wickham v. Freeman, 12 Ib. 184 ; Holmes v. Seeley, 19 Wend. 507 ; Wood v. City of Williamsburg, 46 Barb. 601 ; Edwards v. Noyes 65 N. Y. 125 ; Randall v. Sanders, 23 Hun, 611; aff’d 87 N. Y., 578 ; Cushing v. Kenfield, 5 Allen, 307 ; Holt’s Nisi Prius Cases, 543. The trespasses complained of are interferences with the easements of light, air and access. They were not and in their very nature could not be “ injuries to the inheritance.” They affected only the use and enjoyment of the property, not the property itself. They are injuries to the estate in possession, not to the estate in reversion. They fall upon the tenant for the time in question not upon the landlord. Whatever injury befell the landlord for the term of the lease occurred when the lease was made, May 15,1880, and was the outgrowth of the then existing state of affairs, and not of what took place afterward. If any one is entitled to recover damages for the acts of the defendant between June 1, 1882 and, May 1, 1885, it is the tenant and not the landlord or his devisees. The plantiff’s estate suffered no injury before May 1, 1885, when the reversion fell in.' They were appointed trustees to receive the rents and profits, and took the estate with the lease of 1880 upon it, and were bound by it. They were entitled to the rent under that lease from June 1, 1882, to May 1,1885, and nothing more, whether the railroad was there or not. If it had been taken away immediately after Mr. Mortimer died they conld derive no behefit from its removal until their right of entry" accrued, May 1, 1885. For the same reason their estate in the premises suffered no injury from its existence and operation during that time, and they were entitled to no damages for that period.
    III. No case of action as executors The plaintiffs do not sue as executors for injuries done to the estate in the lifetime of the testator, but as trustees, or as executors made trustees by the terms of the will, for injuries occurring since his death. The statute authorizes executors to maintain actions for trespass committed on the real estate of the testator in his lifetime (3 R, S., 7th ed. p. 2307, or 2 Ib. 114, § 4), but not after his death. No cause of action for' damages in the testator’s lifetime is alleged in this complaint. A separate action was brought for those damages in this court and a recovery had. They are not included in this action.
   . By the Court.—Ingraham, J.

The action is for trespass. The complaint alleges that one Richard Mortimer, deceased, was in his lifetime and since November 1, 1858, the owner in fee of the plot of land at the corner of Division street and the Bowery, 69 feet 7 inches on the Bowery and 94 feet on Division street, in the city of New York, and that said Richard Mortimer was from the date of his purchase of said property seized of and owned the land included in the bed of said Bowery and the said Division street to the centre of said streets respectively.

These allegations are denied by the answer, but as all the testimony was not inserted in the case, it must be presumed that they were proved, and that said Richard Mortimer was -the owner of the fee of one-half the streets in front of his premises.

The complaint then alleges that said Richard Mortimer died, on the 30 th day of May, seized and possessed of said premises, leaving a last will and testament, by which he devised the said premises to the plaintiffs, as trustees, and that by virtue of said will these plaintiffs have succeeded to and- now are seized and possessed of all the rights in and to the said land and premises, and in and to the lands in the bed of said Bowery and Division street to the centre thereof respectively, of which said Richard Mortimer died seized and possessed.

The will of Richard Mortimer was introduced in evidence. It appears, therefore, that since the death of Richard Mortimer, the plaintiffs have been the owners in fee of the property described in the complaint, including the fee of one half of the Bowery and Division street.

Richard Mortimer on the 15th of May, 1880, leased the property known as Numbers, 1, 3, 5-, and 7 Bowery, and Numbers 2, 4, 6, and 8 Division street to one Robert G. Gregg for a term to end the 1st of May, 1885, and the said Gregg entered on the said lease and remained in possession of the demised premises until the expiration of the time.

Richard Mortimer died May 30, 1882, when the lease had nearly three years to run.

The action was brought to recover the damages sustained by the trespass from the 30th of May, 1882, to the commencement of the action.

The jury found the damages caused by the trespass for the period from June 1, 1882, to May 1, 1885, to be $14,653.80, and from May 1, 1885, to July 28, 1886, to be $5,875.20. The defendant moved to set aside the verdict for $ 14,653.80, on the ground that the plaintiffs could not recover for the injury to the rental value from June 1, 1882, to May, 1885, when the term demised that was outstanding at the testator’s death on May 31, 1882, expired. That motion was granted by the trial judge, and from the order entered thereon plaintiffs appeal.

No opinion was written on granting the motion, and we have not the benefit of the views of the trial judge. The respondent, however, relies on the rule that possession is necessary to sustain an action for trespass, and that the plaintiffs were not in possession of the premises upon which the trespass was committed until May 1,1885. This objection, if well founded, affects the recovery for the second period from May 1, 1885, to the commencement of the action, and is fatal to plaintiffs’ right to recover in the action at all.

The premises were leased at the time of the commencement of the action, and the plaintiffs were no more in possession after they made the lease in 1885 than they were during the pendency of the old lease.

At common law, to sustain an action for trespass quare clausum fregit, there must be a possession in fact of the real property to which the injury was done—the owner of the fee could not, therefore, maintain an action fór a trespass upon demised premises in the possession of a tenant.' Campbell v. Arnold, 1 John, 512. This rule was, however, subsequently changed by statute, and the provision now in force as section 1665 of the Code passed. It is there provided that “ 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.” Assuming that the premises upon which the trespass was committed were demised to and were in the possession of the tenant, plaintiffs were within the provision of this section of the Code, they were seized of an estate in reversion, and they could, therefore, maintain an action founded upon “ an injury done to the inheritance,” notwithstanding the intervening estate for years.

The only question is whether the trespass committed by the defendant was an injury “ to the inheritance.”

By the Revised Statutes the word “ inheritance ” is defined to mean real estate, and real estate “ shall be construed to include every estate, interest and right, legal and equitable in lands, tenements and hereditaments, except suchas are determined and extinguished by the death of an intestate seized and possessed thereof and except leases for years and estates for the life of another person.” 1 Rev. Stat., p.754, § 27. Andin the Story Case, 90 N. Y. 147, it was held, that the easement there described was property, and its owner is “a person having an estate or interest in real estate.”

It follows from this that any injury to this easement would be an injury to the “ inheritance ” which would entitle the owner of the easement to maintain an action founded upon that injury. But the interest of the plaintiffs was not limited to an easement in the street. They owned the street subject to the easement vested in the public to use it as a public street. It is so alleged in the complaint, and we must assume it was so proved on the trial. But if-this is not so, there being no evidence to show how the Bowery and Division street were opened or as to the ownership of the fee of the streets, the abutting owners are presumed to own the fee of the street. Stewart v. Metropolitan El. Ry. Co., 56 Super. Ct. 381.

The trespass was not, therefore, to the easement but to the fee of the streets of which the plaintiffs were seized.

It is well settled in this state that an action for trespass can be maintained by the owners of the land through which the road passes for an appropriation of the soil of the road. Gidney v. Earl, 12 Wend. 98 ; Cortelyou v. Van Brundt, 2 Johns, 357.

That erecting and maintaining a structure like that of the defendant’s on the lands of another is an injury to the lands and is a trespass upon the land, has been determined in the action brought by .the same plaintiffs, as executors, to recover for damages sustained by the testator in his lifetime. See 54 Super. Ct. 322, affirmed by the court of appeals, 113 N. Y. 626. I think it is clear, therefore, that the trespass committed by the defendant was an injury to the “ inheritance,” and that, under the provisions of section 1665, the plaintiffs were entitled to recover for the damages caused by the trespass.

But I do not think the tenant, under the lease of May 15, 1880, was even in possession of the property upon which the trespass was committed. Richard Mortimer was the owner of the property, and of the fee of one half of the streets at the time the lease was made. For several years before that time the elevated railroad had appropriated the street in front of his premises for the purpose of a railroad. That •being the condition of affairs, Richard Mortimer leased to Gregg “ the property known as Numbers 1, 3, 5 and 7, Bowery, and 2, 4, 6 and 8, Division street, being the same premises very recently occupied by the party of the second part.”

It is clear that this would not include either the fee of the street or the easement in the street that the lessee had not occupied for several years and that the defendant had appropriated several years before. I think, therefore, that this property in the street was never leased by Mortimer to Gregg, and was never in the possession of the tenant. The ownership of the property, however, passed under his will to the plaintiffs, and plaintiffs are entitled to recover for a trespass thereon.

I think, therefore, that plaintiffs were entitled to recover for the damages sustained by reason of the trespass from the time the plaintiffs became the owners of the property, June 1, 1882, down to. May 1, 1885.

The parties have stipulated that there was sufficient evidence to sustain the verdict of the jury as to damages occurring from June 1,1882, to May 1,1885, if plaintiffs were entitled to recover any damages for the same time ; and under that stipulation I think plaintiffs were entitled to judgment for the amount of the verdict of the jury.

It is conceded that damages have been caused by the trespass to the amount of the verdict, and it is clear that it is the plaintiffs who are entitled to the rents and income of the property, who have sustained such damages. It was not the testator, for he could not have received the rents of the property that accrued after his death. It was not the plaintiffs as his executors, because they became vested only with the personal property that belonged to the testator at the time of his death. It was to the plaintiffs as devisee of the property, for they were entitled to the rents that had accrued from the demised premises after the death of the testator, and they would have received the amount that the jury has found was the damages sustained, as rent for this property, over and above the amount that they did receive for the property that Gregg occupied; and on such proof I do not see why the defendant would not be liable to the plaintiffs. The law gives to a person injured by a trespass compensation for the injury sustained, and when the wrong is proved, and where it clearly appears that the wrong has injured a party and the amount can bé fixed with reasonable certainty, I can see no reason why the court should not award to the injured party a judgment for such an amount. The fact that had it not been for the trespass and the likehood that it would continue, Richard Mortimer could have leased the property including the use of the streets for $10,000 instead of the property he was able to lease for $6,000, and that after Richard. Mortimer’s death, plaintiffs, the owners of the property and entitled to the rents, would for these three years have received $4,000 per year more than they did receive, show that plaintiffs’ damages were caused by the injury. For •that damage defendant is liable. It is the plaintiffs who are damaged because of the wrongful act, and it is the plaintiffs who should be compensated for the wrong.

The rule is now settled in this state that the proper measure of damages for a trespass upon real estate or for the maintenance of a nuisance, is the difference in rental value free from the trespass or nuisance and subject to it. And this rule has been applied although the property was not rented but was occupied by the owner. Francis v. Schoellkopf, 53 N. Y. 154; Michel v. Supervisors, 39 Hun, 47 ; Wiel v. Steward, 19 Ib. 272. And I can see no reason why it should not be applied in this case as the measure of the plaintiffs’ damages, sustained by the wrong committed by the defendant.

The order appealed from should be reversed with $10 costs and disbursements, and the motion to set aside the verdict denied with $10 costs.

Fbeedman, J., concurred.  