
    Nina Grace Goldbacher, Plaintiff, v. George W. Eggers, Defendant.
    (Supreme Court, New York Special Term,
    May, 1902.)
    Injunction to compel removal of an encroaching wall — Refused where the trespass was not willful and damages will compensate — Measure of damages and proof — Code C. P., § 1499.
    Where the defendant, in building a six-story flat-house, has encroached, but not willfully or intentionally, upon an adjoining vacant lot of the plaintiff to the extent of a wedge-shaped strip ten inches by three inches by thirty-three feet, and the lot is for sale, and the plaintiff makes no special or peculiar use of it requiring the use of the encroachment, equity will not in the first instance grant the plaintiff a mandatory injunction compelling removal of the wall but, retaining jurisdiction and to avoid a multiplicity of actions, will, as damages will compensate her, give her damages and costs — upon the receipt of which she must convey the strip to the defendant and release him. Failing such payment the injunction will issue.
    The measure of damages is in such case the amount by which the selling price of the premises trespassed upon-has been reduced by the wrongful act of the defendant, and, in determining that amount, the court may use its own judgment and experience, aided by the evidence given by the parties.
    Although a part of the property consists of a strip of land not exceeding six inches in width, Code 'C. P.,§ 1499 does not apply because no building has been erected on land of the plaintiff abutting upon the wall of the defendant.
    Action to compel the removal of a wall alleged to encroach upon plaintiff’s premises and for damages.
    Goldbacher & Ackerman (Joseph N. Goldbacher, of counsel), for plaintiff.
    George E. Hyatt (A. Walker Otis, of counsel), for defendant.
   Clarke, J.

' This is a suit to compel the removal' of a wall alleged to encroach upon plaintiff’s premises and to recover dam"ages. The only point at issue is whether defendant’s westerly wall stands upon plaintiff’s lot, No. 3114 Third avenue. The plaintiff claims that defendant’s wall encroaches over her easterly line on a wedge-shaped strip ten inches wide on the street or north front; three inches wide in the rear and running back thirty-three feet and four inches. The defendant denies any encroachment. It is conceded that the plaintiff’s easterly boundary and the defendant’s westerly boundary are the same line. The plaintiff takes title under a deed describing her lot as “ Beginning at a point on the Southerly side of Third Avenue distant seventy-five (75) feet southwesterly along the line of said Third Avenue from a point' where, the westerly line of the Port Morris Branch of the Hew York and Harlem Eailroad crosses the Southerly line of said Avenue.” The defendant takes title under a deed describing his lot in the same language as beginning at a point fifty feet from the point where the westerly line of the railroad crosses the southerly line of Third avenue and thence southwesterly along said avenue twenty-five feet, that is to the point which is described as the point of beginning in the plaintiff’s deed and seventy-five feet from the point where the westerly line of the railroad crosses the southerly line of Third avenue. In 1887, the premises were part of a larger tract which was sold under partition and both plaintiff’s and defendant’s remote grantors obtained their deeds from the referee in that partition. The original tract as described in the judgment of partition takes the same starting point, as described in the plaintiff’s and defendant’s deeds and the premises were advertised and sold according to that description. In Elliott v. Lewis, 10 Hun, 486, it is held: “ The survey must commence at the place designated for its commencement in the deed, unless, perhaps, it clearly appears that to adopt it would destroy the grant.” The point of beginning is clearly defined in the deeds and if it is ascertainable by proof the location of the premises must be determined by commencing at such point. Both sides called city surveyors as witnesses. The testimony of the defendant’s surveyor, who determined the distance from the old angle of Third avenue does not materially help, because he testified that he made no measurements east of the defendant’s lot, that is toward the railroad. The other surveyor for the defendant testified that he measured the distance from the westerly line of the railroad and found it to be seventy-five feet to the wall in question. The railroad at its intersection with Third avenue runs through a cut, bound by a retaining wall. The witness testified: “ We took the) westerly side of that wall as a starting point; the wall was uncovered and dug out * * * and from the actual location of the stones on that wall, the location of the line of Port Morris wall with the southerly line of Third avenue, was made on the ground, and the measurement of 50 feet taken from there westerly along Third avenue for the determination of the beginning of Mr. Egger’s lot.” The city surveyor, who testified for the plaintiff, obtained his starting point in a different way. He first found the middle points between the rails of the single track in the cut, and connecting these points established a line midway between the rails, then by taking several measurements east and west from this middle line of the track he verified its position as the middle line of the forty-foot right of way. Having thus determined the middle line of the right of way, several points distant twenty feet westerly from that line at right angles thereto were established, and being connected the westerly line of the right of way was obtained. Where this westerly line intersected the southerly side of Third avenue was taken as o the point of crossing described in the deeds. This starting point was compared in itsl location with the same or corresponding point as shown upon the final tax map, the damage, and benefit maps, and the original map of the acquisition of the forty feet right of way of the railroad, and its position verified by measurements from monuments) on Third, Brook, and St. Ann avenues. From this point seventy-five feet were measured along the southerly side of Third avenue, and the point of beginning described in the plaintiff’s deed ascertained, and her easterly boundary line established. If there were any evidence that the map or theoretical line of the railroad was different from the line of the railroad as actually opened and used at the time of the delivery of the deeds, the latter would control. Burke v. Henderson, 54 App. Div. 157. In Smith v. Stacey, 68 App. Div. 521, the court says: “ The rule seems to be well established that the parties will be assumed to have acquired. title with the visible street boundaries in mind rather than those laid out on a map.” But there is no- evidence in this case of any difference between the physical and theoretical boundary at the time the deeds were delivered, and it does not appear that there was a retaining wall at that time. The parties could have determined whether they took the wall or the theoretieal line of the railroad as it appeared upon the maps, and whether they took the one line or the other is a question of fact. Barrows v. Webster, 144 N. Y. 422. The deeds make no mention of any wall. Eeither party took measurements from the top of 'the wall, which is on a level with the street, and which the plaintiff located somewhat inside the theoretical line to allow for the taper on the other side. .There is no evidence that the parties intended the measurement to be taken from the bottom of a retaining wall, to locate which it was necessary to excavate. To learn the intention of the parties we may refer to the map in the partition suit which is the source of both parties’ title. It is conceded that the premises in question are the same as shown on the map, and that the description of the original plot and deeds of the separate lots were drawn in accordance with that map. Under these circumstances the line of the railroad described in the deeds is not a retaining wall now standing upon the premises, but the boundary line of the railroad property as shown on the map. The plaintiff with precision, determined this westerly line, and by actual measurements therefrom established the true boundary line between the plaintiff and defendant’s property. I therefore find that defendant’s wall encroaches upon plaintiff’s lot as claimed. In equity the obligation to remove may be placed directly upon the party who caused the wall to be erected. Where the defendant is a willful trespasser the plaintiff as a matter of strict right is entitled to a mandatory injunction directing the defendant to remove his wall. Lyle v. Little, 28 App. Div. 181; Baron v. Korn, 51 Hun, 401, 127 N. Y. 224. In such case damages are not given for permanent injury to the property, and the plaintiff recovers only his damages up to the entry of the judgment, and at the same time secures an injunction which prevents the future trespass. Pappenheim v. Metropolitan E. R. R. Co., 128 N. Y. 436, 445. In Stowers v. Gilbert, 156 N. Y. 600, the court said: Damages * * * are not to be awarded upon the assumption of permanent injury, as the judgment does not and cannot, operate as a purchase of the right to have the wall remain as at present constructed.” But where the trespass was not willful, another rule may apply. In the recent case of Crocker v. Manhattan Life Ins. Co., 61 App. Div. 226, it is said: In Stowers v. Gilbert (156 N. Y. 600) there was a willful invasion by the defendant of the plaintiff’s rights and an absolute encroachment upon her land, consequently the defendant never occupied any position where he could invoke the equitable aid of the court. On the contrary, he occupied the position of a willful trespasser with full knowledge, and being such he had no standing to invoke a single equitable principle in his behalf. In such a case, great hardship and little corresponding benefit find no application whatever.” The action was to compel the removal of a wall several hundred feet high, which overhung .the plaintiff’s property a few inches. There was no pretense or claim that the defendant, in the construction of its wall, willfully or intentionally, encroached upon the plaintiff’s land. The court found that the expense of restoring defendant’s wall to the true line would inflict an enormous damage upon the defendant entirely disproportioned to any benefit which would accrue to the plaintiff; that the actual damage to the plaintiff was not such as to deprive him of the present beneficial use and enjoyment of his premises, nor of the substantial benefit of any structure which he might erect upon his land, and whatever damage there was might be easily admeasured upon a money basis. The defendant did not insist upon its defense that the plaintiff had an adequate remedy at law, but submitted itself solely to the equitable jurisdiction of the court, itself demanding equitable relief. Under those circumstances, although the plaintiff insisted upon his right to a mandatory injunction, the court gave compensatory damages'. In Amerman v. Deane, 132 N. Y. 355, the action was to restrain the violation of a covenant running with the land prohibiting the erection of any tenement-house. The surrounding neighborhood had been mostly built up with flats, and the tenement-house erected by the defendant was a large one. The Court of Appeals affirmed a refusal to grant a permanent injunction, but fixed the permanent damages, and awarded a restraining injunction until such damages were paid. In Lyle v. Little, the court, in reference to granting an injunction said: If it had been shown, by reason of any special circumstances presented, that this would be a hardship or inequitable, and if the plaintiffs expressed a willingness to take in lieu thereof damages, the court might have been justified in fixing and awarding such damages as would compensate the plaintiffs; such damages being alternative relief fixed as a favor to the defendant to prevent the greater injury which would result to him if obliged to take down his wall.” In Isear v. Burstein, 30 Abb. N. C. 71, where plaintiff asked for, an injunction or for damages, a case in many respects similar 'to the one at bar, Justice McAdam granted compensatory damages. From these cases it appears that where the plaintiff insists upon his right, and the defendant is a willful 'and intentional trespasser, a mandatory injunction will issue; in case the plaintiff expresses a willingness to accept damages in lieu of an injunction, -permanent damages may be'awarded; in case the defendant has not willfully or intentionally trespassed, and submits to the equitable jurisdiction of the court a mandatory injunction will not be granted, where its 'enforcement would work great hardship upon the defendant with little or no corresponding benefit to the plaintiff, and where the injury to the plaintiff may be fully satisfied by the award of damages. In such case the relief granted is alternative, giving the defendant the opportunity to make the plaintiff whole. The reasons given in the cases for entertaining such suits in equity are to prevent irreparable 'injury for which the plaintiff has no adequate remedy at law, and to prevent a multiplicity of actions. Where the injury is shown to be reparable by a money compensation, equity may yet retain jurisdiction, to prevent a multiplicity of actions and award compensatory damages. As Haight, J., said, in Amerman v. Deane: This action is in equity, and one of the objects sought is to avoid a multiplicity of actions which might be brought in case only past damages could be recovered.” And in Corning v. Troy Iron & Nail Co., 39 Barb. 326; 40 N. Y. 191, it was said: The resort to an equitable, forum makes the 'relief comprehensive, and avoids a multiplicity of suits.” The plaintiff’s land is a vacant lot of irregular shape. Before this suit was commenced the defendant had erected upon his land a six-story brick flat, the westerly wall of which encroaches upon the'plaintiff’s lot. In erecting his building the defendant acted in good faith and without any knowledge that his wall encroached on plaintiff’s land. The defendant had a survey made by a city surveyor, and before the brickwork was started, he called on the surveyor again for the purpose of verifying the position of the walls. It does not appear that there was any dispute as to the boundary line at the time the building‘was erected, or that either party then knew of the trespass. The defendant has not pleaded or urged upon the trial that the plaintiff has an adequate remedy at law, but comes into* equity alleging his good faith, and praying that the injunction be denied. The defendant made no objection when damages were sought to be proved herein, and has made no demand for the assessment of damages by a jury, but has voluntarily submitted to the equitable jurisdiction of this court, himself presenting evidence as to; the amount of permanent damages, to be considered in case the encroachment were established. The plaintiff makes no special or peculiar use of heir lot which requires the use of the strip encroached upon. The lot is for sale, and although diminished in value, it is just as available for purposes of building or sale as heretofore. Under the circumstances the court may award money damages for the 'invasion of the right instead of issuing a mandatory injunction. The measure of damages is the amount by which the selling price of the premises trespassed upon is reduced by the wrongful act, and in determining the amount of damage the court may use its own judgment and experience aided by the evidence 'presented. Isear v. Burstein, 30 Abb. N. C. 71. The plaintiff’s expert placed the reduction 'in the selling price at $1,000, and the defendant’s at $300. Upon the entire case thei damages are fixed at $600.

Section 1499 of the Code of Civil Procedure does not apply to this case, although part of the property consists of a strip of land not exceeding six inches in width, because noi building has been erected upon land of the plaintiff abutting the defendant’s wall. A recovery of damages does not therefore of itself transfer to the defendant the title to the strip encroached upon, but the execution of such a conveyance is appropriate and proper. In McSorley v. Gomprecht, 30 Abb. N. C. 412, it was suggested that the complaint be amended so as to* demand alternate relief, and an offer to release to* the defendant the strip covered by the defendant’s wall on payment of the damage caused by the appropriation. On the authority of Crocker v. Manhattan Life Ins. Co., it is not necessary to direct an amendment. The court there said: “It is quite possible to embody in a judgment a protection of defendant’s right to maintain its wall on the payment of damages without requiring a grant of the easement, but the result is not different if the easement be conveyed, and in Amerman v. Deane, 132 N. Y. 355, it was decided that the execution of the conveyance was appropriate and proper.” A court of equity having once obtained jurisdiction of a case will administer all the relief which the nature of the case and the facts demand. Where under conditions already stated permanent damages are awarded it is only just that a conveyance be made by the defendant. In Amerman v. Deane, it was said: Whilst this requirement may not be necessary to bar a further action for damages, it seems but just, under the circumstances and in view of the liberal award made, that the release should be given; ” and the judgment below was so amended. It must be remembered, that a willful trespasser cannot in this way acquire an inch of land because the mandatory injunction must issue as to him; that in other cases, where the injury to the plaintiff is irreparable the mandatory injunction will issue, and permanent damages will not be awarded. That where the granting of an injunction would work greater damage to an innocent defendant than the injury from which plaintiff prays relief the injunction could be refused absolutely, and the plaintiff compelled to seek his remedy at law. In such case the plaintiff would have to proceed either in ejectment, where the sheriff might not consider it his duty to deliver possession by taking down the wall (Bowie v. Brahe, 4 Duer, 676; Baron v. Korn, 127 N. Y. 224, 228), and it would be impracticable, if not impossible, for the plaintiff to regain actual possession of the strip occupied by the wall; or by successive actions for the continuing trespass, where damages only could be awarded to the time the action, was commenced. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98. But in equity, in order to do full justice between the parties, the plaintiff is awarded such full compensation as will make him whole, and the defendant is given the opportunity to pay the same instead of talcing down his wall. The plaintiff cannot be permitted to both receive the value and keep the land. He has preferred to seek the equitable interposition of this court, and he must himself do equity.

The plaintiff is awarded) a decree in the alternative. The plaintiff may execute, acknowledge, and deliver to the defendant, within thirty days after entry of judgment, a deed of the strip of land covered by the encroachment, releasing all damage occasioned thereby, the form of such instrument to be settled on notice, and thereupon the defendant shall pay the plaintiff the sum of $600, compensation for the injuries sustained, together with the costs of this action. In the default of such payment the mandatory injunction prayed for shall issue.

In case of failure of plaintiff to execute and tender the instrument! as above described, the prayer of the plaintiff for equitable relief must be denied.

Judgment accordingly.  