
    Philander Mott, Respondent, v. H. Cassius Lewis and the City of Syracuse, Appellants.
    
      Trespass — damages recoverable, at law, only to the lime of commencement of suit — the measure of damages is not the difference between the value, of the land subject to, and free from, the trespass. • ■
    
    In an action at law for a trespass committed in piling dirt upon the plaintiff's land, Ms recovery is limited to damages accruing prior to the commencement of the action,, and he cannot recover prospective damages, based upon the theory that the trespass will he permanent; it is, therefore, error for the court to charge that he is entitled to recover the difference between the value of the land with, and its value without, the dirt upon it.
    Appeal by the defendants, H. Cassius Lewis and another, 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 16th day of December, 1898, upon the verdict of a jury for -$450, and also from an order bearing date the 8th day of December, 1898, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    This action was commenced August 31, 1897, for trespass in piling dirt upon the premises, of the plaintiff in the city of Syracuse. The alleged trespass was committed by the defendant Lewis, who was a contractor doing work under the authority and direction of, and according to the manner provided by the city of Syracuse.
    
      James E. Newell, for the appellants.
    
      Walter H. Knapp, for the respondent.
   Spring, J.:

The plaintiff was the owner of two houses on the west side of Cortland avenue'in the city of Syracuse. In the street in front of his premises there had heen for many years an approach to a bridge, filled in with dirt, which elevated the roadbed about ten feet above the plaintiff’s land. There was no sidewalk adjacent to the plaintiff’s lot and one was directed to be constructed by the city authorities. This required filling in with dirt to the street line along plaintiff’s premises, and the earth drawn in was placed upon his lots as no retaining wall or support was constructed to confine it within the street. The plaintiff had two houses on this lot, each three stories high, one back from the street line about twenty feet and the other about ten feet, and these buildings were occupied by tenants. The dirt embankment sloped down from the street line and impacted against these dwellings extending well up on the windows of the lower story of the front part of each house. That this dirt was piled on the plaintiff’s premises by the defendant Lewis pursuant to the direction of the proper officers of the défendant, and in accordance with the plans and specifications made by them, and that the entry was an unwarranted invasion of the plaintiff’s land, are facts established by undisputed evidence.

The only question before us for review is as to the measure of damages. The action was at law and the rule of damages adopted by the court was that the plaintiff was entitled to recover the difference between the value of his property burdened with the dirt and its value before the trespass was committed. The court said (at p. 109): “ As I say, the measure of the plaintiff’s damages * * * is the difference between what that place would have been worth with the dirt on it and what it would have been worth without the dirt on it. That is the thing that you are going to compensate him for, if you come to that question, for having the dirt upon his lands.” An exception was taken by the defendants to this instruction.

The effect of the verdict was to establish that the defendants were trespassers; they were wrongdoers, and the plaintiff might remove the encroachment or maintain a suit in equity to relieve his premises of this unauthorized burden or bring successive actions to recover damages for the continuous trespass. That is, the defendants are mulcted in a verdict on the assumption that they have permanently injured the premises of the plaintiff and yet acquire no right to their continued use. They do not get what they must pay for.

The distinction between the relief afforded in a suit in equity and the damages .which may be awarded in an action at law is generally well defined. Where the right of- condemnation exists, although the entry upon the land of the owner was unauthorized, yet if the appropriation was of a permanent nature the court in a suit to restrain the unlawful using of the premises may award damages for the full extent of the injuries done upon the plaintiff, vesting in the •defendant the title which he might have acquired by condemnation proceedings. The rule, however, is equally well established that in an action of trespass the plaintiff is limited in his recovery to the •damages accruing prior to the commencement of the action. '( Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Comesky v. Postal Telegraph-Cable Co., 41 App. Div. 245; Pappenheim v. M. E. R. Co., 128 N. Y. 436; Slingerland v.. International Contacting Co., 43 App. Div. 215, 225 ; Stowers v. Gilbert, 156 N. Y. 600; Ottenot v. N. Y., L. & W. R. Co., 119 id. 603 ; Carll v. Village of Northport, 11 App. Div. 120.)

The doctrine was thus stated in the Pappenheim, Case (supra, at p. 444): “ 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. lie 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 a conveyance.”

The philosophy of the rule awarding damages in the suit in equity is that the.defendant could acquire the user complained of by condemnation proceedings, and the court, to prevent multiplicity of actions, acts upon the situation as it exists, and gives to the party injured his full quantum of damages, and protects the defendant by requiring the plaintiff to convey his rights upon the acceptance of the compensation allowed. That solution rests in the discretion of the court, and is of course peculiarly within the province of a -court of equity. The remedy cannot be worked out in a purely legal action, and the recovery there is restricted to damages arising prior to the commencement of the action. • In this case, with. the ■entry of the defendants fixed as an unlawful one, successive actions ■could be maintained for the continuing trespass, and yet" compensation for all damages, prospective as well as past, has already been ■awarded to the owner.

The plaintiff’s counsel cites Argotsinger v. Vines (82 N. Y. 309) to sustain his contention. In that case timber was cut and removed, and in an action of trespass witnesses were permitted to testify to the value of the farm with the timber growing thereon, and after it was removed, and the rule thus "adopted was sustained. In that case the defendants had cut and taken away the live trees, and "their restoration was, of course, impossible. It was "one completed act of trespass, and all the rights of the parties could be determined in one action. It was not a continuing trespass. The ■same suggestion is applicable to the kindred actions of trespass for the removal of shade trees, like Evans v. Keystone Gas Co. (148 N. Y. 112). In that class of eases the verdict not only determines that the defendant has committed a trespass, but it must necessarily also fix the full measure of damages, for they all accrued before the action was commenced.

In Goldschmid v. Mayor (14 App. Div. 135) the trespass complained of was .a bulging retaining wall, which projected upon .the plaintiff’s premises. The only theory, if any, upon which the recovery in that action can be upheld, is that the wall- must obviously have been a permanent structure, and that fact was assumed in the opinion.

The judgment should be reversed and a new trial ordered, with ■costs to the appellants to abide the event."

All concurred, except Adams, P. J., not voting.

Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.  