Opinion
November Term, 1900.
Henry J. Hemmens, for the appellant.
Frank M. Hardenbrook, for the respondent.
A clear statement of what constitutes a nuisance for which relief may be had is given in the case of Booth v. R., W. O.T.R.R. Co. ( 140 N.Y. 277), wherein it is said: "Whether a particular act or thing constitutes a nuisance may depend on the circumstances and surroundings. The use of premises for mechanical or other purposes, causing great noise, disturbing the peace and quiet of those living in the vicinity and rendering life uncomfortable, or filling the air with noxious vapors or causing vibration of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property."
As there was evidence to support the finding of the Special Term that the manner in which the defendant conducted its business was a nuisance, and was injurious not alone to the comfort of those who occupied the building but also to the property itself, it follows that some relief should be accorded. The question remains, however, whether the plaintiff, in addition to an injunction, was entitled to the damages awarded, and this involves a consideration of the measure of damages.
That a tenant in possession of land who is injured after coming into possession by the creation of a nuisance is entitled to relief by way of injunction, and also to damages, has often been held; and in Rosenheimer v. Standard Gas Light Co. ( 36 App. Div. 1), in ascertaining damages so suffered, it was said: "The damages to property temporary in their nature and continuing while the nuisance lasts, can only be measured by the diminution in rental value or the difference between the rental value free from the effects of the nuisance and subject to it. The same rule applies whether the property is in the possession of a tenant or in the occupation of the owner. ( Francis v. Schoellkopf, 53 N.Y. 152.)"
Damages, however, are not recoverable for a greater period than six years. Here during the period for which damages were recoverable, plaintiff was in possession under a lease or leases which were subsequent in date to the construction and operation of the defendant's power house. As there is no evidence that the injury was increased by reason of the nuisance being greater at any particular time, we must conclude that after the expiration of the prior lease, plaintiff went into possession under the new leases with knowledge that the manner in which defendant was operating its power house and business caused the emission of smoke and cinders which soiled furniture and clothing and created noise and vibration which interfered with the sleep and comfort of the plaintiff and her boarders.
The question, therefore, is whether one who takes a lease with knowledge of an existing nuisance, is entitled not only to an injunction, but to damages for such injuries subsequently inflicted. Undoubtedly the defendant's acts tended to injure the rental value of the premises for the purpose either of a private dwelling or a boarding house. Having leased the property with such knowledge, the question remains whether the consequential damage which the plaintiff suffered is one which inured to her or to the owner of the premises. By "consequential damage" we mean of course to exclude any increase of damages over that which existed prior to the making of the lease, since it is well established that a tenant may recover for damage by nuisance arising during the term of a lease.
But for diminution of rental value caused by a nuisance which existed prior to the making of a lease, we regard the rule as now established that such damages are recoverable only by the owner of the freehold and not by the lessee of property which is taken with knowledge of the existence and extent of the nuisance. Thus, in Kernochan v. N.Y. El. R.R. Co. ( 128 N.Y. 564), suit was brought against the elevated road by a leaseholder to recover damages for noise and interference with his rights of possession, and the court in refusing to grant the relief said: "It is a fundamental proposition that only the party injured by a wrongful act can maintain an action for damages. * * * The same wrong may occasion injury to several persons or to separate and distinct interests in the same property. But he only is entitled to maintain an action who can show that his right has been invaded, and to such person or persons only is the wrongdoer bound to make compensation. The owner of real property, so long as he is in possession and has not leased or created any subordinate interest in the land, plainly is the only person injured by the construction and maintenance of the elevated railway. * * * In the present case the owner of the lot did not retain the full and absolute dominion, but carved out of the fee a term of years; but by so doing he did not divest himself of his inheritance. * * * It is undoubtedly true that the rent reserved in leases like this represents in the minds of the parties the value of the use of the premises incumbered by the railroad. * * * The loss falls upon the lessor, and the continuance of the wrong during the term imposes no pecuniary loss upon the lessee. To hold that the right of action vests in the lessee, or to divide the claim between the owners of the two estates, would be contrary to equity and to the presumed intention of the parties; * * * the right to recover damages is vested exclusively in the lessor. The circumstances and situation forbid the inference that the parties acted upon the presumption that the road would be removed or abandoned during the term * * * and the rent reserved is fixed upon this assumption." And in Yoos v. City of Rochester (92 Hun, 481) the principles laid down in the Kernochan case were applied in an action brought to recover damages resulting from a nuisance created by the discharge of sewage into a creek which flowed over premises leased by the plaintiff and prior to the making of the lease. The case contained evidence that when the lease was given, the attention of the lessee was called to the nuisance; he was told that the owner had filed a claim for the injury, and he was given the premises for one-half the normal rent because of the polluted stream which the city could not abate till the construction of a sewer which was not finished for three years thereafter. It was held error for the judge to charge that, unless there was an express agreement between the landlord and the tenant that the landlord was to retain the right to sue for damages, the tenant would be entitled to recover all damages caused by the pollution of the stream; that the plaintiff was entitled to recover no damages unless the nuisance was increased in some way during his tenancy, and that it must be presumed that when the plaintiff leased the premises, he took into consideration the effect which the nuisance would have upon the use and enjoyment of them.
A different rule necessarily applies where a person is in possession of property and afterwards, during such possession, damage is done by a wrongdoer to the rental value of the property.
In Wood on Nuisances (1st ed. p. 895) it is said: "A lessee of lands may maintain an action for injuries to the possession by a nuisance, and may recover therefor such damages as he can show to his possessory right. Thus, in an action by the lessee of a livery stable against a person who laid gas pipes in the streets so imperfectly that the gas escaped therefrom through the ground and into the water of the well used by him in connection with the stable, rendering the water unfit for use, it was held that he might recover * * * for expenses reasonably and properly incurred by him in attempts to exclude the gas from the well. ( Sherman v. Fall River, etc., Co., 2 Allen [Mass.], 524)." And in Pach v. Geoffroy (67 Hun, 401) the court held that a tenant of a part of a building used by him as a photograph galley is entitled to relief in equity restraining the unnecessary use by a tenant of machines in another part of the building so located and used as to constitute a nuisance by causing continuous vibration, jarring and noises to the inconvenience of the plaintiff and his customers and to the interference with and damage of his business.
The damages resulting from loss of business caused by vibration, smoke and cinders from defendant's power house are, in effect, damages to the rental value of the premises, and such, we think, on the authority of Kernochan v. N.Y. El. R.R. Co. ( supra), which is a case relating to a nuisance existing by virtue of legislative sanction, and on Yoos v. City of Rochester ( supra), where a private nuisance existed, cannot be recovered by this plaintiff.
With regard to the remedy by injunction, one who is being injured by the continuance of a nuisance is always entitled thereto. Although it may be presumed that the damages referred to, if any, will fall upon the owner through the lease made, the wrongdoer does not thereby gain a right to continue the nuisance either as against the owner or the tenant, even if the tenant may not recover damages. One who, under a lease, goes into possession of property affected by a private nuisance which is not of a permanent character or sanctioned by a legislative grant, is not, therefore, without remedy, for though not entitled to recover damages to the freehold, he has a right to have the nuisance abated, and, on a proper showing, is entitled to an injunction. As said in Garvey v. Long Island R.R. Co. ( 159 N.Y. 323): "A court of equity has jurisdiction of an action to restrain the commission of a continuing trespass, because the injunction prevents a multiplicity of actions at law, which is a grievance to the parties and a burden upon the public. (Citing cases.) While in such an action the court may also render judgment for the damages already sustained, that relief is merely incidental and is not an essential part of the main cause of action for a permanent injunction. The party entitled to damages may waive them if he chooses by not furnishing evidence to enable the court to measure them in money, which is an advantage to the defendant, but does not defeat the action. If such substantial and continuous interference with the ordinary enjoyment of property is shown as would, when properly measured by evidence, enable the court to fix the amount of the damages, the injunction may be issued, although no damages are awarded." So, also, in the case above cited of Pach v. Goeffroy, an injunction was awarded but no damages.
Had the plaintiff, therefore, proceeded promptly she would have been entitled to an injunction restraining the defendant from prosecuting its business in a way that would inflict damage upon her or destroy her comfort or health. Having, however, removed from the premises after the expiration of her lease on April 30, 1900, she would no longer be benefited by an injunction, and as it is no longer necessary it should not be granted.
Our conclusion, therefore, is that the damages other than rental damages were merely nominal, and the judgment should be modified by reducing the award to six cents, and as so modified the judgment should be affirmed, without costs.
VAN BRUNT, P.J., RUMSEY, PATTERSON and McLAUGHLIN, JJ., concurred.
Judgment modified by reducing the award to six cents, and as modified affirmed, without costs.