
    John T. Cunningham, Resp’t, v. John M. Fitzgerald, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 18, 1893.)
    
    
      1. Injunction — Change op grade op street by private individual.
    Where the owner of a tract of land has sold lots thereon fronting upon a street as laid out upon a map duly filed by him, and thereafter, without any ordinance or other public authority, such owner attempts to lower the grade by_ digging and carrying away the soil to he used on other streets as laid out in the general plan of the tract, the grantee is entitled to an injunction restraining the prosecution of the work.
    
      Z, Same.
    The referee awarded a judgment restraining defendant from in any manner lowering the grade “ or changing the condition of St. John’s Park from the east line of plaintiff's premises to the Boulevard.” Held. error; that the extent of the relief to which the plaintiff was entitled was to enjoin the defendant from cutting down the grade of the street in front of his lot in such a way as to render access to and from his premises less convenient in some material and substantial respect.
    (Earl, J., dissents.)
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered upon report of referee.
    
      Quincy Van Voorhis, for app’lt; Arthur E. Sutherland, for resp’t.
    
      
       Modifying 43 St. Rep., 904.
    
   O’Brien, J.

The judgment in this case awards an injunction to the plaintiff restraining the defendant from cutting down the grade of a street in front of his lot or interfering with the same. A small money judgment was also awarded as damages. Thé referee who tried the case found that about the year 1884 the defendant became the owner of a considerable tract or parcel of land in the village of Charlotte, which had been mapped and plotted into village lots, with streets and avenues running through and intersecting each other, upon which the lots were bounded. The map upon which the streets and lots were exhibited was duly filed in the county clerk’s office, but no lots had been sold prior to the time that the whole parcel was purchased by the defendant. Subsequently the defendant conveyed one of the lots to the plaintiff, describing it as lot number eighteen on the map, “ being fifty feet in front on the north side of Hughes Park, and extending back therefrom, of equal width throughout, one hundred and twenty-five feet.” This park was an avenue one hundred feet wide, intended for sidewalks twelve feet wide on each side, and a roadway over seventy feet wide. When the plaintiff purchased,, the roadway up to the east line of his lot had been improved and graded by raising the bed of the road in the centre and forming gutters on each side. The name of the park was subsequently changed to St. John’s Park. It runs east and west through the tract, and at the west end intersects a boulevard running north and south. The defendant has sold all the lots fronting on the park or avenue west of the plaintiff’s lot, but he still owns numerous lots on the east, and the avenue in front of them remained in substantially its natural state. Since the plaintiff’s purchase the defendant opened a new street running southerly from St. John’s Park at nearly right angles therewith, and terminating at the south in a cul de sac. The plaintiff has built a dwelling upon and graded his lot to correspond with the grade of the -highway in front of it, established a driveway and planted ornamental trees on the side of the street in front of the lot.

The defendant, before the commencement of this action, and without the plaintiff’s consent, entered upon this highway in front of and east and west of the plaintiff’s lot, and dug up and carried away quantities of the soil from the roadway, and put the same upon the new street referred to, cutting down the grade of the street in front of the plaintiff between one and two feet, and was so engaged cutting it down still more when he was restrained by the injunction. It has been found that this interfered with the plaintiff's access to his property from the street and damaged the-same, and that the defendant’s purpose was to remove the earth from St. John’s park, in front of plaintiff’s lot, and east.and west of it, for the purpose of taking it to the new street and grading it up to correspond with the grade of the park where the two-intersect. The defendant owned the lots on the new street and on the park east of plaintiff, and they will be benefited by this improvement, but the finding is that the change, if carried out, will work irreparable injury to the plaintiff. These facts and others have been found by the referee in great detail, and as we cannot say that any of them are wholly unsustained by the evidence, we are concluded by them in the disposition of the case. The avenue, on the north side of which the plaintiff’s property is, has become a public highway by dedication. The parties who have purchased lots bounded thereon have an easement in the street for the purpose of access to their lots, and this easement is property which cannot be invaded without subjecting the party to liability in damages, and in a proper case it will be protected by injunction. The defendant did not act under any public authority, but for his private benefit. Indeed, it appears that the public authorities had never accepted the street in question or exercised any jurisdiction over it, but that circumstance does not affect the plaintiff’s rights in the street for the purpose of access. The language of the description of plaintiff’s lot in the deed from the defendant can be construed as bounding the lot upon the street, and if so, the plaintiff owned to the centre of the street, and the removal of the soil thereupon in the manner found by the referee would clearly amount to a trespass. Story case, 90 N. Y., 122; Perrin v. N. Y. C. R. R. Co., 36 id., 120.

But it is unnecessary to decide that question. Whether the plaintiff owned to the center of the street or not, the defendant could not impair his right of access. He could not cut dqwn the roadway so as to render the plaintiff’s right of ingress and egress more difficult. It is, no doubt, true that -the plaintiff purchased in contemplation of the improvements to be made upon the street, and as the defendant still owned a large part of the tract he was interested in making the improvements. But the roadway in front of the plaintiff had become graded and established, and the change made and contemplated by the defendant was not for the benefit of the street at the point in question, but for the benefit of other localities. When the public authorities undertake to improve a street, and it becomes necessary to change the grade, there are many cases where private interest or convenience must yield to the public good. But the defendant’s original right, as owner of the whole tract, to lay out and grade streets at his pleasure, was abridged whenever he sold a lot bounded upon the street, and when he had sold all of the lots on the street, his right to regulate or grade that street was the same as any other member of the community, unless the right to do the particular thing claimed had been expressly reserved in his grants.

A private individual, engaged in improving streets for the benefit or convenience of his own property, cannot cut down the grade of an existing street to the detriment of an abutting owner. If the cutting of the grade impairs the abutting owner’s right of access to his property, his consent is necessary under such circumstances, as he may resist a projected improvement by his neighbor which he could not resist if undertaken by the public authorities. A party cannot impair his neighbor’s easement in a street, and force what he calls a benefit upon him against his will. As against any mere private interest, the property owner can resist an attempt to change the grade of a. street whenever he can show that such change will injure him. In this case, the plaintiff has satisfied the referee with respect to the injury committed and contemplated, and that was largely, if not entirely, a question of fact. It is true that when the plaintiff purchased his lot he was chargeable with knowledge of the fact that the whole tract was mapped and plotted, and that a plan for the general improvement of the' lots and streets was contemplated. A purchaser might have such knowledge or information with respect to changes in the grade of the street from the map or from the surroundings or situation visible at the time of his purchase that his assent to it could be implied. But there does not appear to be anything in this case to show that the plaintiff expected, or had any right to expect, that the grade of the street would be cut down after it was established and the roadway completed, and the surface of his lot made to conform thereto. The improvement which rendered this necessary, in the view of the defendant, was not projected until after plaintiff’s purchase, and after the improvement of his lot and the street adjoining. The point is made by the defendant that the facts stated in the complaint are not sufficient to confer jurisdiction upon a court of equity to grant relief by injunction. It is sufficient to say that such an objection cannot be raised for the first time upon an appeal, but should be raised by answer and presented at the trial.

The judgment awarded by the learned referee is, we think, too broad. The words of the judgment are, that the defendant be perpetually enjoined and restrained from plowing, excavating or carrying away earth from the roadway of St. John’s park in front of plaintiff's premises, * * * and from excavating, interfering with, or in any manner lowering the grade, or changing the condition of St. John’s park from the east line of plaintiff's premises to the boulevard’'

This virtually enjoins the defendant from improving the park west of plaintiff’s easterly line. A private citizen, whether moved by public spirit or private interest, may improve and beautify parks and streets, especially when he stands in such relations to the locality as the defendant does. The plaintiff has no right to enjoin the defendant from improving St. John’s park west to the boulevard if he desires to, so long as he does not interfere with the property rights of others. The extent of the relief to which the plaintiff was entitled was to enjoin the defendant from catting down the grade of the street in front of his lot in such a way as to render access to and from his premises less convenient in some material and substantial respect. The evidence to show that the defendant has actually interfered with the plaintiff’s rights within this rule is not very strong, and it is possible that it was open to another view, but as the finding is not destitute of all evidence for support, and as it has been approved by the general term, we cannot disregard it.

The judgment should, therefore, be modified as above indicated, and, as so modified, affirmed, without costs to either party in this court.

All concur, except Earl, J., dissenting.  