
    Henry Otten, Appellant, v. The Manhattan Railway Company, Respondent.
    
      Elevated railroad—the present value of the premises trespassed upon Try it is to he. considered—when the court, must review all questions—when equity will interfere hy injunction.
    
    Where a case contained all the .evidence and the decision does not state separately the facts found, the appellate court is required to review all the questions of law or fact presented upon'the record.
    It is only where the trespass upon or interference with rights in real property causes substantial damage that a court of equity will interfere by injunction.
    In an action brought to restrain the defendant from- a continuous trespass upon' the plaintiff’s easement ina public street, the value of the premises is to be ascertained as of the present time, and the court must consider whether the operation of the defendant’s road is a present’ benefit, irrespective of the condition which existed in that section of the city before the elevated road.was constructed, and without regard to the benefit which had resulted in the past from its operation. ■ ■
    O’Bbien, J., dissented.
    Appeal by the plaintiff, Henry Otten, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 16th day of August, 1894, upon the decision of the court rendered after a trial at a Special Term of said court,
    
      WilUam. W. Badger, for the appellant. .
    . Bra/mard; Tolies and Julien T. Do/oies, for the respondent.
   Ingraham, J :

This action, brought to restrain the defendant from a continuous trespass upon the plaintiff’s easement in Columbus avenue, near Ninety-eighth street, in the city of New York, was decided in favor of the defendant upon the ground that the evidence did not show that the injury sustained by the plaintiff in consequence of the trespass exceeded the benefit to the plaintiff’s property from the maintenance and operation of the defendant’s railroad.

The decision of the court upon ivhich the judgment was entered was one stating concisely the grounds upon which the issues had been decided, and not one that stated separately the facts found. We are, therefore, required to review all questions of law or fact presented upon the record. (See § 1022, Code.) The plaintiff’s property consists of two .buildings twenty-five by sixty each the lots seventy-four feet deep, situated on the easterly side of Columbus avenue, between Ninety-eighth and Ninety-ninth streets. The buildings are used as stores upon the ground floors and as apartments upon the floors above. There are five stories that are occupied and rented by plaintiff for living apartments. The structure of the elevated railroad in front of the premises is forty-seven feet and seven inches from the surface of the street to the rail. It is just level with the sill of the fifth story window of the plaintiff’s premises^ and consists of three tracks, two of which are used for the ordinary way passing trains, while the center track is used for express trains.. The evidence is that such express trains pass this point at a speed of about thirty miles an hour. The evidence as to the obstruction and interference with the plaintiff’s easement establishes beyond a doubt that the interference here is most serious, and in consequence of the height of the structure, and the use that is made of it, is a substantial injury to the plaintiff’s property. The whole front of the building is covered by the structure and the passing trains ; and the use of this third track'for express trains, at the speed with which they pass the premises, in addition to the local travel, must be a serious interference with the use of the premises for living purposes. The court below, however, although recognizing this condition, dismissed the complaint on the ground that it appeared that the benefit which the plaintiff derived from the maintenance and operation of this road equaled or exceeded the injury thus caused.

The decision, of this case depends upon the determination of the. question as to what, if any, benefit this plaintiff derives from the maintenance and operation of this road. We recognize the principle that is well established,' and which is the foundation of the ■administration of equitable relief by way of injunction, that to justify micli an injunction the injury to the complainant must be proved to ■be substantial; that a court of equity will not interfere by this dis■cretionary writ, or mandate, to remedy a wrong which causes no sub- ■ stantial injury, and that, although a legal title may be interfered.witli, where such interference does not cause continuing substantial damage, a court of equity will leave the parties to their action at law. And this principle has been applied, by a late decision of the Court of Appeals, to actions, of this character, by a very convincing opinion by Judge ■Cteay in the case of O'Reilly v. N. Y. Elevated R. R. Co. (148 N. Y. 347). And if it appeared that, notwithstanding that this was a trespass by the defendant upon the plaintiff’s property, this wrongful and unauthorized use by the defendant of the plaintiff’s right ,and interest in this street was really a,benefit to the plaintiff instead ■of an injury, and that the present removal of this elevated railroad ■from this street would be a greater injury to the plaintiff’s property than the maintenance and operation of the road, it is clear that the .court was right in refusing to give to the' plaintiff any relief in equity, leaving the plaintiff to his action at law for damages. In considering this question, however, it should be remembered that we have to determine just what effect the maintenance and operation of this elevated railroad has upon the plaintiff’s property at the present ■time. It is not the condition of this • property fifteen or twenty years ago, when the road was first built, that has to. be considered. If the defendant had then taken and paid for the property that it required in the street, instead of wrongfully appropriating it to its own use, without consent or legal right, it would have been the value of .the' interest of the .plaintiff in the street at that time that def end7 ant would have had to pay for. This defendant, however, saw fit to seize the plaintiff’s property and use it without .right or authority instead of purchasing it or acquiring title to it in a lawful manner, and now, when it is called to account for its act, it is the condition - ■of affairs at.this time .that is to be determined. It .is the value oi: the plaintiff’s property now that is to be ascertained,, and the questian is whether or not the maintenance or operation of this road is an injury or benefit to the plaintiff’s property at the present time.

If this road were now removed with existing conditions, with existing methods of transfer from the plaintiff’s property to the other parts of the city, would plaintiff’s property be worth now more or less than it is with the road maintained and operated? The fact that fifteen or twenty years ago access to the property was difficult and tedious, and that the building of the railroad made it more accessible and added to its then value, that its, then holder 'was enabled to sell it for a greater price, would not be material in this investigation, for, as before stated, we now have to ascertain what the easement in this street appurtenant to plaintiff’s property is now worth; and its value depends upon whether its appropriation by defendant is at present a benefit or injury to the property. ' Considering the question in this aspect, I think it cannot be successfully disputed but that the maintenance and operation of this structure is a substantial injury to the plaintiff.

This property is about midway between the two stations of the elevated railroad, one station being at Ninety-third street and the other at One Hundred and Fourth street, so that in order to use the elevated railroad a person has to walk from Ninety-eighth street to Ninety-third or to One Hundred and Fourth street, being upwards of a quarter of a mile. The evidence shows that the benefit to the property midway between stations is the minimnn benefit that it can receive from the railroad. It also appeared from the evidence introduced by the defendant that this property now has as available means of transportion to the other parts of the city, the Eighth avenue horse cars, three lines of horse cars upon Amsterdam or Tenth avenue, one line of horse cars on the Boulevard and a cable road on Columbus avenue, which is a continuance of the present Broadway road. It also appeared that, taking the surface cars passing in front of this property, a person could go from this point to the Battery in about the same time as, or a shorter time than, by the elevated railroad, and that without having to walk or take another conveyance for the five blocks to the elevated railroad station. We have thus the established facts that this structure is an impairment of the plaintiff’s right to the use of the street, and that the location and use made by the defendant of this structure in the streets seriously' affects the ■ use of the plaintiff’s property.. It also appears that other means of communication from this prop- ■ érty to the other-parts of the city are afforded to the plaintiff, which are at-least as convenient and rapid as those offered by the defend- . ant That being, the case, it is apparent, without further -evidence, that at the present time, and as at present operated and maintained, this railroad gives to the plaintiff no substantial benefit, while its operation and maintenance are a substantial injury \ This defendant’s continued use of the street is a trespass and is wrongful. Unless this defendant condemns and pays for this plaintiff’s ■ right in the street that it now usee, the plaintiff has a legal right to' ■have the structure removed and the trespass cease. If such removal -of the structure, maintained and used by the defendant, and the discontinuance of its operation would to-day improve the property so as to give to the plaintiff greater rents' for the parts rented, and that his means of access to. his property would not be affected, then it is clear that it is the duty of the court to require the defendant to remove the" unauthorized and illegal structure, unless the value of the easement or property that is used should be paid to the plaintiff.

The learned judge in his opinion states that the property on Columbus avenue in front of this road has increased in value at a very much smaller ratio than the property in the adjoining streets; .that the benefit that has accrued to property in this locality by reason of the growth of the city has fallen largely upon projierty in the adjacent streets, and in a comparatively small degree upon property upon the. avenue through which passes this defendant’s road. It is useless" to analyze the evidence. It is sufficient to say that from an examination of it we are satisfied that this conclusion of the trial judge was correct, and that his conclusion that the removal of the defendant’s road would be' a more serious injury to the premises" than, its continued operation and maintenance- was erroneous.

It follows, therefore, that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J.,' BabbBtt and . Rumsey, JJ., concurred; O’Brien, J., dissented.

O’Brien, J.

(dissenting):

This is the usual action for an injunction and damages. The premises consist of two lots of land on the easterly side of Columbus avenue near Ninety-eighth street, known by the street numbers 783 and 785 Columbus avenue. Each lot has a frontage of twenty-five feet and a depth of seventy-four feet. Upon the premises are two flat houses,'five stories high, with stores on the ground floor and apartments for two families on each of the floors above. The plaintiff purchased these houses in January, 1888, for $21,500 each. The elevated railroad, in Columbus avenue, was built in 1878.

The question presented is, does the evidence show that these premises suffered any consequential damages, fee or rental, by reason of the construction and Operation of the road?

It is conceded that prior to the construction of the road the locality was vacant and unimproved, and lots were worth from $2,000 apiece in 1876 to $3,500'in 1879, and, according to defendant’s expert, are now worth from $17,500 to $18,000. This, increase in value was contemporanous with the construction of the-road and was followed by extensive building operations, which took place earlier and more rapidly on Columbus avenue than on any of' the other parallel avenues. The extent of the population which moved into that territory is to some degree shown by the fact that: the increase in traffic was from 27,380 for three months in 1879 to-over 3,000,000 for the year 1893. It also appears that before the ■ building of the road lots fronting on Central Park were more ■ valuable than those on Columhus avenue between the same cross-streets, while now the reverse is true; and though increased facili- • ties in the way of cable and other surface roads have made this. property easier of access, it is beyond dispute, upon the evidence,., that before their advent the elevated road had given a great stimulus • to property in this section of the city and greatly enhanced the-value of lots.

To such a condition the language of the court in the Book-man case (Bookman v. N. Y 7. El. R. R. Co., 147 N. Y. 298) is apposite: “Where an elevated street railroad enters a,. vacant and uninhabited locality, which normal growth has. not effectively reached, which improvement has not seriously-touched, which remains to be developed and which has no element of growing value except such as lies in hope and expectation, and thereupon and ■ thereby population and growth, tending elsewhere, are diverted to the new line of rapid transit, and build up the vacant locality, creating a demand for lots and a steady and persistent increase of values, both directly on the line and in the side •streets near by; the only reasonable and sensible inference is, that the increased values are the sole and substantial product of the newly opened line which has brought prosperity, to a neglected locality. So far as normal growth or incoming population has had anything to do with the increase of value, they are themselves as operating causes due to the new mode of access, and in no respect separate from, or independent of it.” And in that case, although there was evidence to show that, in the streets just oft the line of the road the increase was greater, the court refused to give any weight to such testimony and followed the Bóhm case (Bohm v. Metr. El. Ry. Co., 129 N. Y. 576) in which, upon similar evidence appearing, an award of damages was denied.

The evidence showing the growth and. development and increase of values in this locality, and the extent thereof, is affirmed by every witness except one expert on behalf of the plaintiff, who, while admitting such increase in values contemporaneous with, and subsequent to, the building of the road, does not place it as high as the other witnesses. As shown, however, this man testified that he had been a broker but about five months and that his business, prior to that time, had been that of a builder, and his cross-examination shows very little familiarity with the purchase and sales of property, and cannot be regarded ■ as outweighing that of the three •experts presented on behalf of the defendant, who had extensive dealings in property on the line of the road in that section and who were familiar with values,-having themselves been engaged in buying and selling such property.

There is upon the question of rental damage plaintiff’s own testimony that, shortly after buying the property, he slightly reduced the rent of tenants above the stores, the store rent remaining the same since the purchase. That this fact of a slight reduction in rents just about the time the plaintiff purchased, in order to make them conform to the rental value, is not, standing by itself and unexplained, proof of rental damage, has been held in two cases, McCready v. Met. El. R. Co. (76 Hun, 531) and Storm v. N. Y. El. R. R. Co. (82 Hun, 11).

It thus appears from the testimony that the property has steadily increased in value, both fee and rental, since the construction of the elevated road, and that such increase has been due to the existence of the road. The conclusion, therefore, that the road was a benefit and not an injury to this property, is not impaired- by the fact appearing that by reason of the construction of other means of transit in the way of surface roads, east and west, an additional impetus was given to the value of properties which derived benefits from the means of access thus furnished, and which, therefore, by reason of the greater advantages, show a slightly greater increase in values than these premises along the elevated road. It is true that the question i§ to be viewed, not as to the benefits conferred upon property in the past, but as correctly stated in the prevailing opinion, as to whether or not the'maintenance or operation of this road is an injury or benefit td the plaintiff’s property at the present time.” And this, I think, is to be determined by the answer to the question propounded: “ If this road were now removed with existing conditions, with existing methods of transfer from the plaintiff’s property to the other parts of the city, would plaintiff’s property be worth now more or less than it is with the road maim tained and operated ? ” While the inference may be drawn from all the testimony of values that such value would be less, we are not confined to that in view of the testimony furnished by one of plaintiff’s own witnesses, who gave it as his opinion that rents in this district would be reduced one-third if the advantages of the elevated road were withdrawn. And in the recent case of O'Reilly v. N. Y. El. R. Co. (148 N. Y. 347), the court in commenting with approval upon the cases of Hunter v. Man. Ry. Co. (141 N. Y. 281) and Doyle v. Met. Ry. Co. (136 -id. 505), then referred to the Bookman Case (supra), saying: It was held that the decree recovered by the plaintiff was erroneous, in view of the fact that the finding that the plaintiff’s property was injured by the railroad over and above all benefits conferred, was wholly unsupported by the proof. The theory adopted in that case by the court in its-decision was, practically, that if benefits only are shown to have been caused, as the result of the construction and operation of the elevated . railway,' the "complainants are without right to equitable relief, as well as not entitled to‘ any award of damages.”

So here I fail to find any evidence of. resultant damage, the record disclosing that such as may have been caused by the building of the road in front of these premises was more than offset by the advantages which they derived in the past and are now deriving as the result of the construction and operation of the road.

The record,- therefore, having failed to show that there was any consequential damage inflicted, either rental or fee> the learned trial judge was justified in dismissing the complaint, and the judgment appealed from should be affirmed.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  