Opinion
Argued May 28, 1919
Decided July 15, 1919
Charles Coleman Miller for appellant.
William P. Burr, Corporation Counsel ( Terence Farley and William E.C. Mayer of counsel), for respondent.
The land owned by plaintiff's wife was by permission of the latter worked by plaintiff in connection with the plot of land owned by him and he received the entire proceeds of the two pieces of land. The relation between the wife and husband as to the plot of land owned by the wife was that of landlord and tenant, the plaintiff being a tenant at will. ( Harris v. Frink, 49 N.Y. 24.) As between a landlord and his tenant, the latter in the absence of some contractual provision to the contrary has an exclusive right to the control and possession of the leased premises and may defend such particular estate until the same has been legally terminated. The tenancy of plaintiff never having been terminated, he was lawfully in possession of the three-acre plot of land and entitled to the annual product of the soil in the nature of emblements and for any injury inflicted by a wrongdoer resulting in a diminution of his enjoyment of the premises he would be entitled to redress. On the other hand, if the injury is one of a permanent character to the reversion, such as destruction of standing timber, etc., the right to recover for such wrong is vested in the landlord. Where both landlord and tenant sustain damages by the wrongful act of a third person, the law recognizes the right of each to maintain a separate action against the wrongdoer to redress his individual injury. ( Miller v. Edison Electric Illuminating Co., 184 N.Y. 17; Washburn on Real Property [3d ed.], sections 254, 255, 1517, 1519; Bly v. Edison Electric Illuminating Co., 172 N.Y. 1.)
Counsel for defendant argued that the rule stated is inapplicable to the case at bar for the reason that the tenancy of plaintiff did not commence until April 14th, 1908, and the city having constructed and operated the pumping stations in 1906-1907, the trespass having been committed at that time, the tenant cannot sustain a cause of action therefor. In support of his argument reliance is placed upon the case of Sposato v. City of New York ( 75 App. Div. 304; affirmed by this court, 178 N.Y. 583).
In the Sposato case, the plaintiff was lessee of land for a term of five years commencing in 1898. The pumping stations from which the alleged damages resulted were erected in 1885-1894. The order in the Sposato case was made October 10th, 1902. On October 7th, 1902, we decided the Bly case sustaining the principle heretofore stated ( 172 N.Y. 1) and subsequent to our decision in the Sposato Case ( 178 N.Y. 583) we reiterated the rule of law in the Miller Case ( 184 N.Y. 17). A casual reading of the Sposato case might lead to a conclusion that a conflict of decision existed. Such, however, is not the case. In the Sposato case the plaintiff alleged that the land in its natural condition and before the time of the acts complained of (1885-1894) were well saturated with water; that by the act of the city two wells had been dried up and the soil on the land had by the abstraction of water become so thoroughly dried up that it is comparatively worthless for the raising of crops and by reason of such diversion of water the plaintiff during the three years of his term of five years — which term had not expired — was deprived of his rightful use of the premises. The complaint did not allege the injury to or loss of any crops on the land during his possession of the same, and upon the opening of the case at Trial Term the complaint was dismissed on motion of counsel for the city, who argued in this court that upon the complaint the injuries sought to be recovered for were permanent to the fee and thereby vested in the landlord.
The complaint in the case at bar, while not as specific in expression as might be desirable, nevertheless alleged injury to the possession of plaintiff in that it asserts that the soil was by reason of the abstraction of the water therefrom made dry rendering the same less productive and profitable for garden purposes than before the wells were put in operation, which caused a depreciation in the usable value of the premises, and in substance the trial justice so found, and, as a basis for damages, found the diminuition in the usable value of the land caused by the abstraction of water therefrom.
My view is that the principle stated in the Bly and Miller cases, cited, which are controlling in this case, is not in conflict with the Sposato case.
In Reisert v. City of New York ( 174 N.Y. 196) the plaintiff as owner and in possession of some eighty acres of land sought to recover damages as he alleged by reason of the act of the city through the construction of driven wells in rendering the soil of his land dry and worthless for cultivation and a stream on the land valueless for fish and game purposes. Upon the trial of that action, counsel for plaintiff contended that the plaintiff was entitled to recover his profits as such which he was able to prove during the six years prior to the commencement of the action, basing his argument upon the decision of this court in Forbell v. City of New York ( 164 N.Y. 522), which action was one by a lessee of land. An examination of that decision does not justify the argument made by counsel as was determined by us when the case reached this court, though counsel made the same argument here. In the Reisert case, counsel for the city argued that the plaintiff's recovery was limited to the loss in rental value which might be proved as resulting from the trespass and the main question treated by us was the correct measure of damages. The judgment below was reversed for errors on the trial, and we held that evidence of the rental or usable value of the premises was competent; that if the land was commonly rented the ordinary rentals received for the same would be admissible as well as testimony tending to show the nature of the soil, the character and extent of the use made of the lands, the nature of the business conducted thereon when in their normal or usual condition as to surface or subterranean waters and when deprived thereof was competent as proving or tending to prove usable value, and from such facts the court or a jury would be enabled to determine whether and to what extent the rental or usable value of the land as affected by the diversion of the water had been substantially injured.
We also held that in such a case profits as such were not recoverable; that a plaintiff suffering from a tort or trespass of another is bound, so far as he reasonably can, to reduce his damages, and that the plaintiff would not be justified in efforts year after year to raise crops upon this damaged land or portion thereof if experience had demonstrated that they would not mature and produce a marketable or profitable article.
In the present case the courts below held that the trespass was a continuing trespass; that by reason thereof the bearing qualities of the land had been affected and the usable value of the seven acres, four acres of which were owned by plaintiff and three acres of which he occupied as tenant, by reason of the trespass had been diminished two hundred dollars per acre for each of the years 1909 to 1915, both inclusive, but the damages awarded were limited for diminution in usable value to the four-acre plot.
To deny the plaintiff damages to the usable value of the three-acre plot of land was error. The defendant was a trespasser and as such invaded the possessory rights of the plaintiff and materially diminished the value of the use of the premises for the purposes for which the same were adapted and had been used. For damage sustained to such usable value the plaintiff was entitled to redress. ( Reisert v. City of New York, 174 N.Y. 196. )
I do not deem it necessary to refer at length to the evidence adduced on the trial. My conclusion is that the evidence was ample to sustain the finding of the courts below that the diminution in the usable value of the premises was two hundred dollars per year.
The plaintiff produced evidence tending to show the nature of the soil of the land, the character and extent of the use made of the same and the nature of the business conducted prior to, during and subsequent to the commission of the trespass by the city, the extent of the crops raised, the prices received for the same in the market and the expenses incident to the cultivation and marketing of the same. While evidence of the amounts realized from the crops before and after the trespass was admitted, the record does not justify a presumption that such amount was adopted as a basis of damages by the trial justice. The evidence was proper for consideration by him upon the question of usable value and as to whether or not the plaintiff had exercised proper judgment as a reasonable man in the management of the seven acres in view of the changed conditions produced by defendant's trespass. Neither is it material that plaintiff sought injunctive relief as to the seven acres. He was granted such relief so far as the four-acre plot was concerned.
The judgment should be modified so as to provide that plaintiff recover of defendant the sum of $9,800 instead of $5,600 and, as thus modified, affirmed, with costs.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, McLAUGHLIN and CRANE, JJ., concur.
Judgment accordingly.