The lack of growth, both in rental and fee values, was confined to lands on the avenue and no adequate explanation of the fact appears except the presence of the defendants' heavy structure and the running of many trains thereon. When land with such a structure, used for such a purpose, in front of it, falls below its ante-panic value, and the rents fall below even their panic value, and both fail to make up the loss as the years pass by, while property on abutting streets in the immediate neighborhood, with no railroad in front of it, advances rapidly both in fee and rental values, in the absence of any explanation the inference is irresistible that the presence and operation of the road kept the values of the abutting property down. ( McGean v. Manhattan R. Co., 117 N.Y. 219, 225; Becker v. Metropolitan El. R. Co., 131 N.Y. 509, 511; Bookman v. New York El. R.R. Co., 147 N.Y. 298.) This is not a case simply of comparative increase, or where the locality was not built up before the road came, or where an improper measure of damages was adopted, but where no damages were allowed although the uncontradicted evidence proved substantial damages and facts were found showing substantial damages.
Without other discussion of the facts in the case, there is proof of such exceptional facts and circumstances, in the character of the structures maintained by the defendants and in their uses, as, in connection with the evidence respecting the difference in rentals and the inferior class of occupants, to justify the award of damages. The Storck Case ( 131 N.Y. 514) and the Bookman Case ( 147 N.Y. 298) recognize the distinction which is to be made in a case like this; where, perhaps, under circumstances such as existed in the Bohm Case ( 129 N.Y. 576), a recovery by the abutting property owner might be difficult, if at all possible, to affirm. Nor do we find a fatal inconsistency between the 48th finding and the 13th and 14th findings, as insisted upon by the appellants.
We think there is another ground upon which the judgment of the General Term should be affirmed. The granting or refusing of equitable relief by way of injunction depends to a great extent upon the particular facts in each case, and is largely discretionary with the court in which the action originates. ( Jerome v. Ross, 7 Johns. Ch. 315; T. B.R.R. Co. v. B., H.T. W. Ry. Co., 86 N.Y. 107, 123; Shepard v. M.R. Co., 131 N.Y. 215; Doyle v. M.E.R. Co., 136 N.Y. 505, 511; Bookman v. N.Y. Elevated Railroad Co., 147 N.Y. 298; Health Dept. of N.Y. v. Purdon, 99 N.Y. 237; Gray v. M.R. Co., 128 N.Y. 499, 509; O' Reilly v. N.Y. Elevated R.R. Co., 148 N.Y. 347.) In the last case, where the question involved was the right of the plaintiff to an injunction against the operation of an elevated railroad, constructed in a public street in the city of New York by authority of law, this court held that it should not be granted at the suit of an abutting owner, on proof of the wrongful appropriation of the easements of light, air and access, where the plaintiff failed to show any substantial monetary damage to his property, or loss suffered, by reason of the defendant's acts.
" In Doyle v. The Metropolitan El. Railway Company ( 136 N.Y. 505), it was said: "The proof of damages was an indispensable element of the plaintiff's case, as it cannot be supposed that a court of equity would entertain jurisdiction to restrain a trespass, that was not shown to have produced any damage or loss to the plaintiff." Quite recently, in Bookman v. N.Y. Elevated Railroad Company ( 147 N.Y. 298), it was held that the decree recovered by the plaintiffs 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.
ies by reason of the City of New York's impoundment and diversion of water from the east and west branches of the Delaware River for use by the residents of the City of New York (Administrative Code of City of N.Y., ch 51, tit K, art 1). The primary contention of appellants is that respondents' expert, in all the cases excepting Phillips', by basing his estimation of damages on the value that the subject properties would have had but for the loss of riparian rights, rather than upon the actual decrease in value, submitted proof which was speculative and inadequate. The permissibility of introducing expert testimony with respect to both the present value of the premises with the water diverted and also as to what the present value would be had there been no diversion was upheld by this court in Gallagher v Kingston Water Co. ( 25 App. Div. 82, affd 164 N.Y. 602). Appellants rely upon cases involving elevated railways in which experts were not permitted to give hypothetical evaluations (Bookman v New York El. R.R. Co., 147 N.Y. 298; Roberts v New York El. R.R. Co., 128 N.Y. 455). The court in Gallagher, however, specifically distinguished the elevated railroad situation from the diversion of waters case there under consideration. In the former, because the construction and operation of a railroad brought benefits as well as injuries, in the form of increased growth, "The expert * * * necessarily has to consider both benefits and injuries and balance the account — which is the very thing the jury have to do. The majority of the court thought it better that all the conditions affecting values be shown, and thereupon the court or jury should determine.
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 Columbus avenue between the same cross streets, while now the reverse is true; and though increased facilities 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 Bookman case ( Bookman v. N.Y. 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.
This issue has always been a question of fact. ( Bohm v. Metropolitan El. Ry. Co., 129 N.Y. 576, 592; Bookman v. New York El. R.R. Co., 147 N.Y. 298, 306; Malcolm v. New York El. R.R. Co., 147 N.Y. 308, 313.) There remains a third point for discussion.