
    Syracuse Solar Salt Company, Respondent, v. Rome, Watertown and Ogdensburg Railroad Company, Appellant.
    
      Damage to a salt manufacture, by cinders from, a railroad—when not speculative —use of a street by municipal license and statutory authority — easement of right to cast cinders on another’s land.
    
    Where, in an action brought by a salt manufacturing corporation, owning land abutting on a street, whose title extends to the center of the street, to restrain the operation of a railroad thereon, the court finds on sufficient evidence that the defendant has unlawfully cast over and upon the land owned by the plaintiff and upon its salt vats great quantities of dirt, dust and cinders, by reason whereof the amount of Diamond C salt produced by the plaintiff has been ‘ lessened in quantity and deteriorated in quality and its market value diminished, and that the damage and loss caused by defendant to the plaintiff thereby has amounted since 1882 to the sum of 89,000, the injury is the direct consequence of the defendant’s act, and it cannot be said that the damage to the plaintiff’s business is remote and speculative.
    The fact that a freight yard and switches maintained by the defendant opposite the plaintiff’s property are located upon land to which the defendant has title, and are a necessary factor in the operation of the road which the defendant was authorized to construct in the street by the municipality and by statute, does not relieve it from responsibility to the plaintiff for the injury resulting to it from the operation of its railroad in the freight yard and on the switches, where it appears that such in jury’is not merely trivial and inconsequent, but amounts to over 81,000 a year.
    The right to cast soot, cinders, dirt and dust upon the plaintiff’s land and upon its vats constitutes an easement in such land which it is necessary for the defendant to acquire before it can exercise such right without incurring liability.
    
      Appeal by the defendant, the Rome,. Watertown and Ogdenshurg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 4th day of November, 1898, upon the decision •of the court rendered, after a trial at the Onondaga Special Term.
    This appeal was transferred from the fourth department to the third department.
    The action was brought to restrain the defendant from operating its railroad over Marsh .street in the city of Syracuse, and to recover damages for injury resulting to the plaintiff’s property and business hoizn such operation of the defendant’s road.
    
      William G. Tracy and William B. Hornblower, for the appellant.
    
      W. S. Andrews for the respondent.
   Herrick, J.:

This case has been twice before the court upon appeal, and the decisions thereon will be found in 67 Hun, 153, and 11 Appellate Division, 557.

The facts appearing now are substantially the same as they appeared upon such appeals, and are so fully stated there that it is unnecessary to repeat them here.

Upon both the.former appeals it has been held that the facts alleged and proved by the plaintiff constituted a cause of action against the defendant, and the trial now to be reviewed was had pursuant to the rulings upon such former appeals, and I think the orderly administration of justice requires that we should follow them upon this appeal. That determination eliminates from our consideration .many of the questions discussed by counsel in their briefs.

The question of fact as to whether the plaintiff owned to the center line of Marsh street, subject to the public easement, has been, upon conflicting evidence, found in favor of the plaintiff, as it had been upon the last appeal, and I do not think the evidence justifies us in reversing that finding.

Adhering then to the finding upon that, question of fact, and to-the prior decisions made in this case upon the questions of law, tactically the only questions left for us to consider relate to the images awarded.

Upon the former trial the grounds stated in the findings of fact as to damages were : “(1) Interference with the plaintiff’s business; (2) deterioration in value of the salt manufactured; (3) injury to-the salt vats; (4) decrease in the amount of salt manufactured ] (5) expense incurred to prevent other extensive injury; (6) damages by reason of obstruction of access to the plaintiff’s premises ; (7) the lessening of the selling value of the plaintiff’s property.” (See 11 App. Div. 562.)

Upon that trial the court found a gross amount for past damages, without specifying the amount of damage sustained by the plaintiff upon each of the several grounds stated. Upon reviewing that trial the court said : “ Inasmuch as the damages are massed together in one gross finding, it is not possible for this court to determine what was allowed by the trial court upon any one of the numerous grounds specified in the finding of fact on the subject of damages. * * *

“ (a) Upon looking into the evidence we are not satisfied that any considerable sum should have been allowed because access to its premises had been obstructed.’ At all times the plaintiff has been enjoying access to its premises, and has used them for the same purpose that it did before the road was there, and it is difficult to discover any considerable, if any, damages sustained by reason of the interference with the plaintiff’s access to its premises.

"(b) Nor does the evidence reveal any satisfactory ground for saying that ‘ the selling value thereof ’ has been diminished. * * * As already stated, after the grounds of damage were stated in the findings, the conclusion follows: ‘ That the aggregate of the damages so suffered by the plaintiff ’ amount to the sum of $18,568. In order to sustain .that conclusion we must necessarily adopt all the grounds specified as a foundation for awarding damages.”

According to the evidence the plaintiff was in the occupation, under a lease, of about fifteen acres of land adjacent to the thirty-four, acres owned by it. Its rights to the fifteen acres in question only extended to the margin of the street, and it appeared in awarding damages for the injury to the business carried on by the plaintiff that it was not manifest from the findings what damages were allowed for the injury to the business of the plaintiff occasioned by reason of the presence of defendant’s tracks in the street opposite the fifteen acres; and the court at that time was of the opinion that under the doctrine laid down in Fobes v. R., W. & O. R. R. Co. (121 N. Y. 505) the plaintiff was not entitled to recover damages for injury to its business occasioned by reason of the presence of defendant’s tracks in the street opposite the fifteen acres; and that the finding did not leave it clear and. certain that such injury had been excluded in making the award of damages.

Upon this trial the court confined its consideration of the injury to the plaintiff’s business to that done upon the thirty-five acres of land owned by it, and also to the injury to the crop of salt and the expenses that the plaintiff was put to in employing men “ for the purpose of skimming off the dirt, soot and cinders thrown by the defendant during the trespasses above mentioned, and while in the occupation of Marsh street as aforesaid, over and upon the plaintiff’s salt vats situated upon the thirty-five acres above mentioned; ” such expense was placed at $300 a year for ten years, being in all the sum of $3,000. And the injury to the salt crop during the same time was adjudged to be the sum of $9,000.

It will thus be seen that all the objections raised by the court to the recovery of damages, upon the last appeal, have been eliminated from the case as now presented, except whether the damages allowed for the loss or injury to the plaintiff’s business was not too remote.

Upon the last appeal the court made use of the following language : “Nor is it made apparent that the damages allowed for loss or injury of the( plaintiff’s business were not too remote, and such as ought to have been excluded according to the rule laid down in Taylor v. Met. El. Ry. Co. (50 N. Y. Super. Ct. Rep. [18 J. & S.] 312).”

There is evidence in the case to show, and the trial court has found, that “ the defendant has unlawfully cast over and upon the thirty-five acres of land owned by the plaintiff and upon its salt vats great quantities of dirt, dust and cinders, by reason where the amount of Diamond C salt produced by the plaintiff has been lessened in quantity and deteriorated in quality and its market value diminished. That the damage and- loss caused by the defendant to the plaintiff thereby has amounted since 1882 to the sum of $9,000:00.”

The evidence, together with this finding, shows direct and positive, and not remote or speculative, injury and damage to the plaintiff, by reason of the running of the defendant’s trains and locomotives opposite plaintiff’s salt vats, and I do not think damages can be withheld from the plaintiff because of their being remote or speculative; the injuries complained of seem to be the direct consequence of the defendant’s acts.

• There is another objection made to the recovery of past damages which requires consideration. It appears that the line of the West •Shore railroad also runs adjacent to' a. portion of the plaintiff’s premises^ and that some dust, soot and cinders have been cast upon the plaintiff’s premises and salt vats from that road. In estimating the damages suffered by the plaintiff, the court excluded therefrom the amount thereof assumed to have been caused by the operation of the West Shore railroad, and it is contended that it should also have excluded the damages resulting from the operation of the defendant’s road over its own property to the south of the plaintiff’s land (and purchased from the plaintiff by defendant’s predecessors), and also on the opposite side of the street.

As will be seen from the statement of - facts in the last appeal, the defendant’s main line extends about two feet to the west of the center line of Marsh street. On the east side of the street, and opposite the salt vats of the plaintiff, the defendant has a freight yard and switches, running from the main tracks into the freight yard; these switches are entirely on the east side of the street, and, together with the freight yard itself, on the defendant’s own .property.

The appellant in its brief, after reciting some of the testimony, asserts as follows: It clearly appears from this testimony that the principal damages to the plaintiff’s salt and to the plaintiff’s property must have been caused by the use of the freight yard and switches which defendant had a perfect legal right to use, and as "to which defendant was not a trespasser upon the plaintiff’s lands, and as to which plaintiff has no right of recovery unless the operation of the trains is carried on so negligently as to amount to a nuisance.” And it is contended on behalf of the appellant that, within the principle of the case of Fobes v. R., W. & O. R. R. Co. (121 N. Y. 505), the plaintiff is not entitled to recover for such damages, and that they should have been excluded from the award made by the trial court.

The syllabus of that case is in part as follows: “A duly incorporated railroad company, having authority from the State to lay its tracks and operate its road through and upon the surface of a city street, under the protection of a license from the city, in doing this takes no property of one who owns land adjoining the street, but bounded .by its exterior line.

“The company, therefore, is not liable to such owner for any consequential damages to his adjoining property, arising from a reasonable use of' the street for railroad purposes, without substantially changing its grade, and which is not exclusive in its nature, but leaves the passage across and through the street free and unobstructed for the public use.”

. This is a very broad statement of the rule, and must be taken with some qualifications and limitations, and one at least is found in the opinion of the court itself in that case. At page 515, the court says : “ If the adjoining owner of land is not the owner of the fee in the street, and the railroad company has obtained the proper authority, he has no right to compensation for such added burden, nor to complain of such use so long as it is not exclusive or excessive.”

The Legislature may, undoubtedly, authorize, and the municipality license, the use of streets and highways to a quasi public corporation, and the incidental inconvenience and injury inflicted upon adjoining property owners'must, where they are trivial and inconsequent in their nature, be suffered without. compensation. But where the interference is something more than a mere inconvenience, and the resulting injury is more than trivial, and, as .expressed in the Fobes case, is excessive, then the adjoining property owner has a right to complain.

Upon the former trial the court found that the past damages suffered by the plaintiff amounted to the sum of $18)568. Upon the trial now under review the court found that the damages suffered by the plaintiff to its business alone amounted to the sum of $9,000, and the additional expense in taking care of its vats to the sum of. $3,000.

The use which causes damage to such an extent, it seems to me, rises above a mere inconvenience, and is something that is not trivial and may fairly be said to be a use that is excessive.

The fact that, the freight yard and the switches to it were both' located upon the defendant’s own .property, and that switches and a freight yard are a necessary part and factor in the operation of defendant’s road, does not relieve it from responsibility for any resulting injury to adjacent property owners. The fact that it was authorized by the statute and by the municipal authorities to run its road over Marsh street, and that it was necessary to have a freight yard, did not necessarily authorize it to erect that freight yard and construct its switches opposite the plaintiff’s salt vats and thereby work injury and damage to the plaintiff’s business without compensating it for such damage.

“ The acts that a Legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams or matters in which the public have * * * control. ' The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the State; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not. experienced by the public at large.” (Baltimore & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 332.)

The statutory power to construct and operate a railroad does not authorize such a construction and operation thereof, even upon the railroad corporation’s own land, as will seriously impair the enjoyment of the adjoining land; such a user constitutes an easement upon such adjoining land, and is, in effect, taking property belonging to the adjoining proprietor for which he is entitled to compensation. (Garvey v. L. I. R. R. Co., 159 N. Y. 323; Long Island R. R. Co. v. Garvey, Id. 334.)

The plaintiff’s property is located where one of the principal industries is the manufacture of salt, and this specific property is so situated and is of such a character as to be peculiarly adapted to that purpose; but whether so or not. the plaintiff’s right to use its own real estate for the carrying on of any legitimate business, which is not harmful to others, is of itself property, and any material interference with its enjoyment of that right is a taking of such property.

The right of interference with the plaintiff’s property by casting soot, cinders, dirt and dust upon it and upon its vats, would constitute an easement in plaintiff’s land, for which the plaintiff would be entitled to compensation. (Long Island R. R. Co. v. Garvey, 159 N. Y. 334, 338.)

Assuming that the defendant has done no more than it was necessary for it to do in the ordinary running and operation of its road, and assuming also that the trial court has correctly found the amount of damage sustained by the plaintiff, by reason of the operation of the defendant’s road, then the plaintiff has been forced to contribute over $1,000 a year to enable the defendant to maintain and operate its road through the street in question.

Obviously, the general doctrine which levies, upon individuals forced contributions for the benefit of the public, and. denies compensation for the injury done, is vulnerable at two points. It is defeated sometimes by construing the harm inflicted into a taking of private property for which compensation must be made, and sometimes by a rigid construction of the authority claimed.” (Hill v. Mayor, 139 N. Y. 495, 505.)

This very material interference with and damage to the plaintiff’s business, is in effect a taking of its property, for which it is entitled to compensation. The damage that it sustained was a forced contribution to the operation of defendant’s road, which it is entitled to recover back.

I am, therefore, of the opinion that the finding of the trial court as to past damages should not be disturbed.

The trial court found “ That should the said trespass of the defendant continue in the future the value of the plaintiff’s property will be depreciated in the sum of $13,500.00.”

I am not clear as to the correctness of that finding, but the view that I have arrived at, as to what the judgment' should be in this case, renders it unnecessary to discuss that finding.

The judgment appealed from restrains the defendant from operating its railroad on the land owned by the plaintiff on Marsh street, unless within the period of four months it pays to the plaintiff the sum of $13,500; and in case the defendant makes such payment, the. judgment provides that the plaintiff thereupon, at the request of the defendant, shall execute and deliver to the defendant a deed releasing the interest of the plaintiff in said street.

• With the view that I have taken of this case, the delivery of a deed of the plaintiff’s interest in Marsh street, would not be sufficient protection to the defendant against actions brought by if for injury to the plaintiff’s property because of the soot, dust and cinders cast upon it, through the operation of the defendant’s railroad. If the defendant’s road cannot be operated without casting soot, dust and cinders upon the plaintiff’s. property, then it is just as necessary for it to secure an easement for that right as it is to procure plaintiff’s title to the street upon which the defendant’s tracks are laid; one is of just as much importance as the other. If the defendant elects to pay the sum of $13,500, then the plaintiff should execute and deliver to it not only a deed of its interest in said street, but also convey to it an easement for the purposes aforesaid, and the judgment herein should be modified accordingly. The judgment should also he further modified so as to enable the defendant, at its election, to commence condemnation proceedings to acquire the plaintiff’s interest in said street, and the necessary easement to operate its road, instead of paying the sum of $13,500 adjudged as future damages.

The judgment, as so modified, should be affirmed, with costs.

All concurred, Putnam, J., in result.

Judgment modified as per opinion and as so modified affirmed, with costs.  