Duncan v. Nassau Electric Railroad (127 A.D. 252, 1908)

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.