
    George W. Thomas, Appl’t, and Resp’t, v. The Grand View Beach Railroad Company, Resp’t, and App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April, 1894.)
    
    1. Equity—Jurisdiction—Adequate remedy at law.
    The general rule is that a court of equity will not entertain jurisdiction, wlieré the question is properly raised, in a case where there is an adequate remedy at law.
    2. Same—Ejectment.
    Where the defendant is wrongfully in possession of the land on which its road is constructed, the plaintiff may maintain ejectment to recover its possession.
    3. Same—Pleading.
    The fact that the plaintiff has an adequate remedy at law, is a defense which must be pleaded, to enable the defendant effectually to raise the objection.
    Cross appeals. The plaintiff appeals from judgment entered upon decision of the court at Monroe special term dismissing the complaint. The defendant appeals from so much of the judgment as determines that the plaintiff is the owner of the premises described in the complaint The plaintiff -alleges that the defendant unlawfully constructed its railroad upon his lands and has since run its cars upon it, The action is brought to restrain the defendant from maintaining and operating its railroad upon plaintiff’s land and for damages.
    
      John Desmond, for app’lt; John D. Lynn, for resp’t.
   Bradley, J.

The facts as found by the court are that in April, 1891, the defendant went upon the plaintiff’s premises and there constructed its electric railroad without the consent of the plaintiff, that in May following the defendant began and has since continued the operation of the railroad by running a motor car and one or two ears attached thereto, and that it will continue to -do so unless compelled to desist therefrom. These findings of fact were warranted by the evidence. And as conclusions of law the court determined that the entry of the defendant upon the ■plaintiff’s land was unlawful, that for the injuries occasioned by such entry, use and occupation of it by the defendant the plaintiff has an adequate remedy at law., and therefore is not entitled to maintain his action for injunctive relief, and that the complaint should be dismissed unless the plaintiff so amends his complaint as to convert the action into one for relief at law. This the plaintiff did not elect to do, and judgment dismissing the complaint .was entered as directed.

The general rule is that a court of equity will not entertain 'jurisdiction, where the question is properly raised, in a ease where there is an adequate remedy at law. There are however to this rule some exceptions, within which are cases where equitable relief is necessary to prevent irreparable injury or the multiplicity of suits. McHenry v. Jewett, 90 N. Y. 58 ; Thomas v. Musical M. P. Union, 121 Id. 45 ; 30 St. Rep. 563; Corning v. Troy I. & N. Factory, 40 N. Y. 191; Wheelock v. Noonan, 108 Id. 179; 13 St. Rep. 110.

An inquiry is whether or not the plaintiff’s case comes within the exception. He could maintain action of trespass against the defendant to recover damages sustained up to the time of its commencement but the trespass would be continued if the defendant persisted in thereafter maintaining and operating its railroad there .and the plaintiff for his indemnity might be required to bring suits from time to time.

Such was the situation in WJieelocJc v. Noonan, supra. In such case unless there be some other adequate and ample remedy at law, it would be a proper one for the exercise of equitable jurisdiction where complete relief could be awarded, as justice between the parties should require. Lynch v. Metropolitan El. Ry. Co., 129 N. Y. 274; 41 St. Rep. 541. The railroad in question was constructed of ties in the usual manner, and for the purpose of its use and operation the defendant had the possession of the land on which it was constructed. The plaintiff may therefore maintain ejectment to recover the possession of his land so appropriated. Carpenter v. Oswego & S. R. R. Co., 24 N. Y. 656 ; Wager v. Troy Union R. R. Co., 25 Id. 526. And in such action the plaintiff would on recovery be entitled to recover damages for withholding the property and the rents and profits or value of the use and occupation, formerly known as mesne profits Code'Civ. Pro., §§ 1496, 1497, 1531, by inserting proper allegations for the purpose in the complaint. Larned v. Hudson, 57 N. Y. 151; Clason v. Baldwin, 56 Hun, 326; 31 St. Rep. 350 ; Wallace v. Berdell, 101 N. Y. 13. Whatever the fact may be in that respect it does not appear that the plaintiff has suffered any damages by the entry and use made of the premises by the defendant, other than such as might be recovered in an action of ejectment.

In Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, which was an action in equity, damages for injuries resulting to the plaintiff's property outside of the premises upon which the railroad was constructed were included in those claimed to have been suffered by him for reasons there alleged.

And in Lynch v. Metropolitan El. R’y Co., 129 N. Y. 274; 41 St. Rep. 541, was the like claim for damages, and it may be sup¡josed that the plaintiff there had no'title in the fee of the street where the railroad was constructed. But his easements having relation to his adjacent premises interfered with by the construction and operation of the elevated railroad were those of light air and access, and thus the beneficial use of his premises was impaired and their value depreciated.

If it be assumed that the plaintiff had an adequate and, complete remedy at law by action of ejectment, the further question arises whether the objection was so raised as to make it available to the defendant. It is of course unnecessary to plead it as a defense in a case where there is no support for equitable relief in the facts alleged. Hawes v. Dobbs, 137 N. Y. 465-470; 51 St. Rep. 271. In the present case it was within the power of the court to grant equitable relief upon the facts alleged in the complaint and proved on the trial. And in such case the rule seems now well settled that the fact that the plaintiff has an adequate remedy at law is a defense which must be pleaded to enable the defendant effectually to raise the objection. Town of Mentz v. Cook, 108 N. Y. 504: 13 St. Rep. 845 ; Ostrander v. Weber, 114 N. Y. 95; 22 St. Rep. 979; Buffalo S. & C. Co. v. D., L. & W. R. R. Co., 130 N. Y. 152; 41 St. Rep. 259 ; Watts v. Adler, 130 N. Y. 646; 41 St. Rep. 325; Williamsburg Sav. Bank v. Town of Solon, 136 N. Y. 465-474; 49 St. Rep. 840; Dudley v. Congregation, etc., 138 N. Y. 451-460; 53 St. Rep. 19; Centre v. Weed, 63 Hun, 560-563; 44 St. Rep. 463; Weaver v. Haviland, 68 Hun, 377-381; 52 St. Rep. 311; O'Brien v. McCarthy, 71 Hun, 427; 54 St. Rep. 532. This was not done by the answer.

The trial court was permitted by the evidence to find as it did the fact in support of that portion of the judgment from which the defendant’s appeal was taken.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs. All concur.  