
    Pell Thompson et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 22, 1891.)
    
    Railroad—Elevated—Trespass—Action by remainderman.
    A remainderman can maintain an action to restrain an elevated railroad from the maintenance and operation of its road permanently through a street in front of the premises in which he has an interest.
    Appeal from a judgment of the general term of the court of ■common pleas of the city and county of New York, affirming a judgment entered upon a decision on a trial at special term.
    
      Brainard Tolles, for app’lts: John A. Weeks, Jr., for resp’ts.
    
      
       Affirming 29 St. Rep., 720.
    
   Haight, J.

This action was brought for an injunction perpetually restraining the defendants from constructing, maintaining or operating an elevated railroad through Pearl street in the city of New York adjoining or in front of the plaintiffs’ premises, and for the damages alleged to have been sustained by reason of such ■construction and operation.

In the year 1870 the mother of the plaintiffs died intestate seized of the premises in question. She left her surviving the plaintiffs, and William W. Thompson, her husband, who, as tenant by curtesy, ever since has been in the possession thereof, receiving the rents, issues and profits. Upon the death of their mother the plaintiffs became vested with an estate in remainder, and as such bring this action for an injunction, upon the theory that the maintenance and operation of the railroad is a damage to their inheritance.

The defendants had never obtained from the plaintiffs, either by purchase or proceedings to condemn, the right to construct and operate their railroad. The structure must, therefore, as to them, be regarded as illegal and a continuing trespass upon their rights from the time the road was built Story v. The N. Y. E. R. Co., 90 N. Y., 122 ; Uline v N. Y. C. & H. R. R. R. Co., 101 id., 98.

In the case of Pappenheim v. The Metropolitan El. R. Co., 128 N. Y., 436; 40 St. Rep., 445, Peckham, J., in delivering the opinion of the court, says: “ As the structure is illegal, and as it constitutes, while it exists, a continuing trespass, the railroad company is under a legal obligation to remove it, and the law will presume that the company will do so. In an action at law the owner of the property interfered with or trespassed upon cannot recover damages to his premises based upon the assumption that such trespass is to be permanent. He can recover only the damages which he has sustained up to the commencement of the-action. The judgment entered for the damages sustained does not operate as a purchase of the right to continue the trespass. But the owner may resort to equity for the purpose of enjoining the continuance of the trespass and to thus prevent a multiplicity of actions at law to recover damages; and in such an action the court may determine the amount of damage which the owner would sustain if the trespass were permanently continued and it may provide that, upon payment of that sum, the plaintiff shall give a deed, or convey the right to the defendant, and it will refuse an injunction when the defendant is willing to pay upon the receipt of the conveyance.”

This action was brought in equity and for an injunction, and the question as to the permanency of the elevated road in this case is disposed - of by the parties. The defendants, in their answer, allege: That the, said railway was constructed according to law and with the greatest care and skill, and that the said structure, maintenance and operation are permanent.” The plaintiffs, as part of their affirmative case, read this allegation of the-defendants in evidence, and the trial court found as a fact that “ The defendants proclaim their intention of continuing to maintain the said structure and to operate the said railroad substantially as they have been maintained and operated in the past,. and that said structure and its operation is permanent.’’

The question is therefore presented as to whether the plaintiffs, as remaindermen can maintain an action to restrain the defendants from the maintenance and operation of their road permanently through Pearl street in front of the plaintiffs’ premises.

Section 1665 of the Code of Civil Procedure 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 an intervening estate for life or for years.”

The statute provided that: “ A person seized of an estate in remainder or reversion may maintain an action of waste or trespass for an injury done to the inheritance, notwithstanding an intervening estate for life or years.” 1 R. S., 750, § 8.

Under the Code the words “of waste or trespass for” are-omitted, and the words founded upon,” are substituted in them-place. The words omitted as used in the statute indicated the-nature of the action that might be maintained. The leaving off them out of the Code would seem to indicate an intention, not to restrict the party injured to such actions, but to give him the right to maintain an action founded upon an injury done to his „inheritance. That an action for an injunction may be maintained for such an injury appears to be authorized by § 1681 of the same title, for it provides that: “ If during the pendency of an action specified in this title the defendant commits waste upon or does any other damage to the property in controversy, the court or a judge thereof may, upon the application of the plaintiff and due proof of the facts by affidavit, grant without notice or security an order restraining him from the commission of any further waste-upon or damage to the property. Disobedience to such an order may be punished as a contempt of court. This section does not affect the plaintiff’s right to a permanent or temporary injunction in such an action.”

It will be observed that the right to an injunction is not limited to wastes, but covers “ any other damage to the property.”

In the Story case it was held that the owners of premises abutting upon a public street acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air, through and over the same for the benefit of their property; that the ownership of such easement is an interest in real estate constituting property within the meaning of the term as used in the constitution of the state, and requires compensation to be made therefor before it can lawfully be taken from its owner for public use; that the right thus secured was an incorporeal hereditament and became an appurtenant to the lot forming an integral part of the estate in it. From the moment it attached the lot became the dominant and the street the servient tenement See also Lahr case, 104 N. Y., 268; 4 St. Rep., 340.

In the case of Kernochan v. The N. Y. El. R. Co., 128 N. Y., 559; 41 St. Rep., 110, decided December 1, 1891, Andrews, J., in delivering the opinion of the court, says that: “The invasion of this incorporeal right by the structure of the elevated road is the gravamen of this and similar actions and such an injury, although not a trespass upon the land, has throughout the course of common law been remediable by an action for damages technically known as an action for trespass on the case.”

In that case it was held that the action could be maintained by the owner during the period in which the premises were in the occupation of a tenant under a lease for a term of years; and that the construction and operation of the road before any consummated right has been acquired by the defendants, whereby the owner of abutting propery is deprived of the full enjoyment of his property, constitutes an injury to the inheritance.

We thus have the express provisions of the Code, giving the right to a remainder-man to maintain an action founded upon an injury to t^ie inheritance. We also have the adjudication in the Kernochan case, that such an injury as is complained of in this case constitutes an injury to the inheritance. It consequently follows, that the action can be maintained.

In view of the fact that the authorities have been collated and considered in the Kernochan case, further discussion of the question is not deemed necessary.

Mo other question was presented for consideration.

The judgment should be affirmed, with costs

All concur.  