
    Lorenzo Duncan, Respondent, v. The Nassau Electric Railroad Company and The Brooklyn Heights Railroad Company, Appellants.
    Second Department,
    June 5, 1908.
    Railroad — trespass by laying tracks — injunction — damages — full relief in equity.
    It is a trespass for a street surface railroad to begin to lay its tracks without . agreeing with an abutting proprietor owning to the center of the street as to compensation, or taking proceedings to condemn.
    An owner whose property is placed under an additional burden by a railroad is entitled to an injunction, or in the alternative to such damages as would be given- him on condemnation with damages for the trespass, since equity having jurisdiction will grant full relief.
    On condemnation an owner is entitled not only to the value of the property taken, but also to compensation for damages to the residue caused by the use' to be made of the property condemned.
    Where a railroad, being a trespasser, laid its tracks in 1901, but did not run cars until 1905, and all the evidence of annoyance and discomfort relates to the railroad since 1905, no damage can be recovered for loss in rental value between 1901 and 1905 caused by a fear that sometime cars would be run.
    A railroad is liable for damage to the fee caused by its operation, but not for a shrinkage in fictitious values resulting from other causes.
    Appeal by the defendants, The Nassau Electric Eailroad Company 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 Kings on the 24th day of - May, 1907, upon the report of a referee.
    
      Augustus Van Wyck [ James C. Church and Charles W. Church, Jr., with him on the brief], for the appellants.
    
      Charles H. Strong [Edwin A. Watson with him on the brief], for the respondent.
   Miller, J.:

The plaintiff, who owns the. premises No. 885 Union street, borough of Brooklyn, has recovered a judgment restraining the defendants from maintaining or operating a street surface electric railroad in front thereof unless they pay the sum of $5,000, and awarding him the sum of $2,333.33 damages for past trespasses. The plaintiff owns the fee to the center of the street, and his jiremises have a- frontage on the street of twenty-one feet. Of course no street- surface railroad could pay at that rate for its right of way. That is not a reason for reversing the judgment, but it invites a careful scrutiny of the-record.

The plaintiff’s right to maintain this action is settled. (Adee v. Nassau Electric R. R. Co., 72 App. Div. 404; 177 N. Y. 548; Peck v. Schenectady R. Co., 170 id. 298.) This suit was brought in September, 1902, about four months after the decision of this court in the Adee Case (supra), which modified the judgment so as to allow the defendant to condemn. The validity of its franchise had theretofore been adjudged. (Adee v. Nassau Electric R. R. Co., 65 App. Div. 529; 173 N. Y. 580.) The .complaint, prays for an injunction unless the defendants pay the damage caused to the plaintiff’s property; and the appellants contend that the suit, should be treated as a substitute for condemnation; that, as it was pending when the right of the said defendant, the Nassau Company, to condemn was finally determined by the Court of Appeals, it Avas needless for' said defendant to institute condemnation proceedings, and that no damage for past trespasses should, be alloAved. Such considerations may bear on the good faith of said defendant, but they do not affect' the legal question involved. The courts declared but did not mal<;e the law; It was said in the Peck Case (supra) that the doctrine, that a street surface railroad was an additional burden to the land of adjoining proprietors who owned to the center of the street, had become a rule of property. Said ' defendant could not impose this added burden on plaintiff’s property without-malting compensation, and when it commenced to lay its tracks Without agreeing with him, or instituting condemnation „ proceedings, it became a trespasser. The appellants cite American Bank Note Co. v. N. Y, E. R. R. Co. (129 N. Y. 252) and Sperb v. M. E. R. Co. (137 id. 155); but what was said in those cases in reference to injunctive relief with alternative damages being a substitute for condemnation had reference only to the damages allowed as the alternative for an injunction. The light to damages for a trespass depends on legal, not equitable, rules; such damages are allowed as an incident to injunctive relief, because equity having jurisdiction of the cause will grant legal as Avell as equitable relief for the purpose of settling all matters of difference in one suit. It follows that the plaintiff could recover such damage- as he had suffered from the defendants’ trespasses, and was entitled to an injunction unless the defendants as an alternative pay him such sum as would be awarded him in-condemation proceedings. In condemnation proceedings the owner is alloAved not only the value" of the property taken, but Compensation for the effect of. the taking • on the residue, considered with reference to the use to Avhicli the .property taken is to be put (City of Buffalo v. Pratt, 131 N. Y. 293 ; Henderson v. N. Y. C. R. R. Co., 78 id. 423); every resulting •" injury from the trespass could be considered in awarding' damages therefor (Kane v. N. Y. E. R. R. Co., 125 id. 164). The so-called elevated railroad cases which involved only easements of light, air and access are instructive, but are not in point.

The defendants’ railroad is a double-track-road. The track nearest the plaintiff’s premises was laid in June, 1901, the other in April, 1903, and cars for -regular passenger service commenced to run May 28, 1905. The plaintiff’s evidence is that he bought his property in 1889 for $16,000, its then market value; that its value depreciated to $15,000 in 1900, $18,500 in 1902, and $10,000 in 1906. The referee-allowed, as the alternative for an injunction, damages amounting to the entire depreciation since 1900,. and upon proof that rental value was usually eight per cent of the value of the property, he allowed as damages for the trespass $400 a year, eight per cent on $5,000 since June, 1901. The laying of the tracks in June, 1901, was a trespass, but it could not seriously have affected the usable value of the plaintiff’s premises; a new trespass began in May, 1905, when the defendants commenced regularly to run cars. All the - evidence in the case respecting annoyance and discomfort, and we think a trespasser must pay for all injury directly resulting from his trespass, relates to the period after the regular running of cars. The plaintiff occupied his own premises; the actual damage to him was the injury to the usable value, not the loss of rental value. We do not say that loss of rental value may not be shown unless the premises are rented, or that it may not in such case constitute a proper rule of damage for a trespass, but we do say that damages for a trespass commencing in 1905 cannot be awarded for a period commencing in 1901, aiid that such damages cannot be determined by an arbitrary rule for determining rental value without any proof that such rule has some relation to the question in hand. The plaintiff could recover such damage from June, 1901, as resulted from the laying of the tracks, and from May, 1905, such additional damage as resulted from the new trespass, i. <?., the running of cars; the permanent damage to the property is allowed in lieu of an injunction; that resulting from the temporary interference with its use by the trespass is allowed as damages for the trespass, and the latter must not include the former. The damage for the trespass depends entirely upon its character and extent. Whatever damages to the usable value of the property resulted from the presence of the defendants’ tracks in the street could be recovered for that trespass, and whatever resulted from the'running of cars could be recovered for that trespass, and. upon proper proof such damage might be measured by the loss in- rental value, blit the connection between the loss and the trespass would have to be shown,, likewise the relation , between rental and usable value. To be more specific, the plaintiff could not recover as dam-' ages for the trespass in laying tracks in the street á loss in rental value resulting from the fear that sometime cars would be run" on those tracks, because. damage: for that trespass 'would only occur when the trespass-occurred.- It seems plain that the damage.for trespass was computed by an arbitrary rule which was not shown to bear any relation to the question in hand. .

I think the depreciation in the value of the plaintiff’s property resulted, in large measure at least, from causes for which the defendants are not responsible. A number of houses, including the plaintiff’s, were built on the north side of Union street, between Seventh and Eighth avenues, in 1884 and 1885, and it was .evidently thought then that Union street in that section would be devoted exclusively to fine private residences; but it appears that in the development of .that section of the. city (the Park Slope, as it is called) other parallel streets became the fine residence streets, while Union street never acquired that, character, with the result that the values of Union street property, based on expectations, have depreciated, while the values of property on streets,' which in fact became exclusively private residence streets, have appreciated. That result has been attributed to the defendants’ railroad, and upon it the entire award for damage to the plaintiff’s property was based. But the record .discloses "that the status of Union street was fixed long before the defendants’ road was built. The plaintiff’s residence is near the middle of the block between Seventh and Eighth avenues.; on that block,. besides the private residences, there was a private stable, business places at the corners of Seventh avenue and .Union street, and a row of houses had been built; intended for flats but converted into separate private residences at the intercession of residents of Eighth .-avenue. On. the block west between Seventh and Sixth avenues. there were private stables, a number of livery and boarding' stables, flats .and; a few private .residences. On the block .east between Eighth and Ninth avenues were vacant lots, private residences, an apartment house, a club house, and a restaurant or road house. ' On the southwest, corner of Seventh avenue and Union street, within half a block of the plaintiff’s residence, was a large livery and boarding stable. The plaintiff’s theory is that the character of Union street was determined in anticipation of the building of a street railroad. It appears that there had been a decline in values for ten years before the road was built, and while the witnesses say that was a dull period for real'estate, they attribute the decline in values to the character which the street was assuming. One witness says that the marked decline began in 1892, when it appears that the. agitation over the granting of a franchise for a street railroad began. If, as, a result of that agitation and in anticipation of the coming of a railroad, the street lost its chance of becoming a strictly private residence street, and the development of that character passed on to other streets,, it is difficult to perceive any legal reason for compelling the defendants, the building of whose road commenced in 1901, to pay for the frustrated hopes of those who built or purchased more than a decade before. But I think the evidence discloses other causes, besides the agitation over the building of the street railroad, for the character which the street had assumed when construction of the road began. Union street is the only direct street from Hamilton ferry across the Growanus canal to the Prospect Bark Biaza, directly across which begins the Eastern Barkway leading to very rapidly developing sections of Brooklyn. It was bound to be a traffic street, and in view of that it was paved with granite blocks, while the parallel streets have asphalt pavements. It appears in the evidence that there is very heavy trucking in the street, particularly of coal, lumber, brick and the like from the canal. It was inevitable that any development of an exclusively private residence character would be diverted to other more suitable streets at the expense of whatever development of that character might start in Union street. The defendants are answerable for the damage caused by the construction, maintenance and operation of their railroad, but not for a shrinkage in fictitious values resulting from other causes. So far as disclosed by the evidence, the depreciation in the market value of plaintiff’s premises has been due to the character of Union street, ' which had become fixed long before the defendants’ road was constructed, and an award based on such depreciation should not be permitted to stand. •

Woodward, Jenks, Hooker and. Rich, JJ., concurred. • .

Judgment reversed and new trial granted, costs to abide the- final award of costs. • . .  