Opinion
December, 1905.
J. Aspinwall Hodge, for the appellant.
Julien T. Davies, for the respondent.
This is, in form, an action brought by an abutting property owner against the Manhattan Railway Company for an injunction and damages for taking easements of light, air and access, by the erection and maintenance, without legislative authority, of an elevated railroad track over and above the center of Ninth avenue between two other elevated tracks previously erected and rightfully operated and maintained by the defendant and its predecessors in front of the plaintiff's premises.
Unfortunately, we have not before us the record of the evidence given at the trial. The case comes up on the judgment roll alone, and we can only look, therefore, to the pleadings and findings of fact to ascertain what induced the conclusions of law reached by the court below. The appeal is by the plaintiff. It was found at the Special Term that she was entitled to some relief by reason of the construction and maintenance of a central or "third track." It was adjudged that there had been an impairment of fee and rental value by reason of the construction and operation of such third track; that such impairment, at a money valuation, amounted to a certain sum; that the plaintiff was entitled to an injunction unless the defendant paid that sum, and if it were paid an injunction should not issue; and the plaintiff, on such payment being made, was required to convey the additional easements taken.
On this appeal a question arises which has not been finally passed upon in this State, although the plaintiff urges that there is abundant authority to sustain her contention respecting it. The defendant's railway is lawfully operated on two tracks in front of the plaintiff's premises. The right so to operate it by the acquisition of easements appurtenant to those premises is not denied. The construction and operation of a third or central track is the subject of the plaintiff's complaint. She insists that the defendant has no right to maintain the structure of a third track in the street in front of her property and to operate it with the annoyance and detriment to value which result from the increased traffic, as well as from the permanent character of the superadded structure. As the case is now presented on the findings of fact, and in view of what has been decided by this court respecting the third track of the defendant's road on Ninth avenue, there can be no doubt, I think, that the structure complained of by the plaintiff is an illegal one, although if the question were res nova, I should have something further to say on that subject. But the statement of what this court has decided is not to be taken as an indication or expression of opinion that the defendant, in constructing and maintaining such third track, acted or now acts in willful disregard of the rights of property owners, or in a high-handed manner, without at least apparent sanction of law. This is not the case of a wanton trespass or the arbitrary creation of a nuisance in the public highway. In 1875 the Legislature of the State of New York passed an act under which the defendant claimed, and had ostensible reason for claiming, the right to build this third track. (Laws of 1875, chap. 595.) The provisions of that act would be sufficient to confer that right (the defendant having received the permission of commissioners designated therein) but for considerations stated by this court in the case of Auchincloss v. Metropolitan El. R. Co. ( 69 App. Div. 63). It was there held that the defendants derived no authority from the act of 1875 to build or operate this third track, because that legislation was in violation of section 18 of article 3 of the Constitution of the State of New York, wherein it is provided that the Legislature shall not pass a private or local bill "granting to any corporation, association or individual the right to lay down railroad tracks." But it appears satisfactorily from the findings made by the court on the trial of this cause that, as matter of fact, the defendant in good faith and relying upon the authority of the act of 1875, did construct the third track. While that does not affect the plaintiff's right to relief for the additional trespass of the defendant, it furnishes a matter for the serious consideration of a court of equity respecting the nature and measure of relief to be awarded.
The plaintiff insists that the judgment to which she was entitled was that of a mandatory injunction requiring the defendant to remove the third track; that she was so entitled as a matter of absolute right which a court of equity was bound to recognize and enforce, and that it had no jurisdiction to deprive her of that right by awarding in its discretion any less drastic relief. The argument urged in support of that view and based upon some of the findings of the trial judge is, in effect, that the defendant illegally deprived the plaintiff of her property, to wit, the easements taken; that it has no corporate capacity to acquire those easements by proceedings in invitum for their condemnation; that the court at Special Term had no authority to annex any condition to the issuing of an injunction or to grant any alternative or substituted relief in avoidance of that to which the plaintiff claimed to be entitled absolutely and unconditionally. The single question, therefore, relates to the power of a court of equity in this case to decree that an injunction shall not issue if payment be made by the defendant of the value of the easements taken and to compel a conveyance of those easements to the defendant on the payment of such ascertained value.
If we were to consider alone the findings upon which the plaintiff relies, namely, that the defendant without authority of law is maintaining and operating the third track in front of her premises, and that it is without capacity to condemn the easements taken by the erection and operation of trains on this third track, the argument which she advances to support the proposition that a mandatory injunction should issue would proceed very plainly to its conclusion. But that which is influential respecting the relief to be granted is contained in other findings of fact, which undoubtedly affected the learned trial judge in making the decision he rendered. The plaintiff insists that the court is without authority to do otherwise than compel the removal of the third track and to award damages for the injury inflicted by taking the easements. Our attention has been called to various decisions in which the plaintiff claims the proposition of law for which she contends is announced, and that under the findings in this case she is entitled to the mandatory injunction sought. Thus in Auchincloss v. Metropolitan El. R. Co. ( 69 App. Div. 63) the judge writing the opinion of the court said: "I can see no escape, therefore, from the position that the construction of this additional track in Ninth avenue, opposite the plaintiff's premises, was unauthorized and that the plaintiff was entitled to an injunction restraining the defendants from the maintenance and operation of this track." In Ackerman v. True ( 175 N.Y. 353) it was held that an encroachment upon the street is a public nuisance and may be a private nuisance; that the person suffering thereby may have his action of nuisance to abate the same and to recover special damages. And it was said in Pappenheim v. M.E.R. Co. ( 128 N.Y. 436) that in cases where the owner wishes actually to stop further trespass, and where the defendant has no legal right to acquire the property, such condition would not be inserted (meaning the ordinary alternative in cases of this kind of paying damages and requiring conveyance of the easements), and an injunction would issue upon the right of the owner being determined (citing Henderson v. N.Y.C.R.R. Co., 78 N.Y. 423). The authorities cited by the learned counsel for the appellant are to be considered with reference to a rule of law applicable to cases where the facts show only the existence of a nuisance or a continuing trespass, or, in other words, where there is no legal right or authority to do the acts or maintain the construction complained of by the injured party; but they do not present, in the form in which it now arises on additional findings the question of the power of a court of equity to mould relief in a given case where it can grant all the relief to which, in justice and equity, a plaintiff is entitled, and where it appears that the granting of the full measure of relief demanded would result in greater injury to the defendant than benefit to the plaintiff, and in the impairment of a great public convenience and also in increasing the danger to the traveling public. For here we are not now dealing with the case of a simple trespass originating in a wanton appropriation of private property. There is no taking of private property for a private use, for the defendant is a duly organized corporation which, acting in good faith on the belief that it had the right to construct this third track, did so and has operated it for the public convenience for ten years without objection of the plaintiff, who has owned her property for that period of time and never objected. While, as the law now stands, the defendant has no power to condemn the plaintiff's easements, it nevertheless has the power to acquire easements affected by the third track by treaty or contract, and it has, according to the findings, acquired easements from other property owners for the third track to the value of $800,000.
The case is to be regarded, I think, as one in which a court of equity may refuse to grant a mandatory injunction and leave the plaintiff to the ordinary action of nuisance, in which the defendant would be entitled to a trial by jury; but the plaintiff has brought this action, invoked the jurisdiction of a court of equity and tried the case as an ordinary elevated railway case. We are of the opinion that the simple question involved is the power of a court of equity to render this judgment. That power is exercised in cases in which by covenants between parties the use of real estate is limited by what are called covenants against nuisance. ( Amerman v. Deane, 132 N.Y. 355; McClure v. Leaycraft, 183 id. 36.) In such cases, the court, on considering the equities, refuses an injunction where it would be inequitable to enforce such covenants under changed conditions of property. In the case of an encroachment ( Crocker v. Manhattan Life Ins. Co., 61 App. Div. 226) the court refused to compel the taking down of a wall because of the oppressiveness of such a condition, and held that, both parties having submitted their controversy to a court of equity, that court would refuse an injunction and would award damages for one particular item of trespass and require the plaintiff to surrender an easement with reference to that particular item on payment of damages. We think it is evident in this case, from the findings of fact as made, that the mandatory injunction which the plaintiff claims to be entitled to, if granted, would work great wrong to the defendant, and the court will not exert its equitable power for that purpose. Here, the court, having the power to mould the relief according to the circumstances of the case, acted upon the finding that this third track in front of the plaintiff's premises is used for running express trains in relief of the two tracks constructed and which are operated by due authority in front of the plaintiff's premises, and that is specifically found, viz.: That the injury to the plaintiff's property "is small compared with the injury and inconvenience which would result to the defendant and to the public if the defendant should be compelled to discontinue the use of and remove the same," and if the track were removed, "the defendant's train service would thereby be seriously impaired" and its "ability to perform the purposes of a rapid transit railway would thereby be greatly lessened," and "the danger incident to the operation of trains * * * would thereby be increased."
Here are findings which we must assume are authorized by the evidence. Not only inconvenience to the defendant and to the public, but danger in the operation of the railway, would be the result of granting a mandatory injunction. The power of the court to mould its judgment in a case where both parties have submitted their rights to the court is not to be affected by the consideration that the defendant has no authority to condemn easements, and the expressions to the contrary in the cases cited by the learned counsel for the appellant seem to have no application in view of the decision of the Supreme Court of the United States in New York City v. Pine ( 185 U.S. 93). That case involved the right of landowners in the State of Connecticut to an injunction restraining the city of New York, its agents and officers, from diverting the water or any part of the water of the west branch of the Byram river or any part of the water of that river. The municipal authorities of the city of New York claimed that they had the right to divert the water of that stream, which had its source in the State of New York, but in its course flowed through the State of Connecticut and then returned to the State of New York. The city of New York undertook to divert this stream in order to increase its water supply. The plaintiffs in that case insisted upon their right to an undiminished natural flow of the river through its accustomed channel in the State of Connecticut, and that they could not be deprived thereof by the city of New York or for its benefit by any legal proceedings either in Connecticut or New York. The United States Circuit Court for the southern district of New York sustained the plaintiffs' prayer for an injunction, and on appeal to the Circuit Court of Appeals the decree was affirmed by a divided court. The case went to the United States Supreme Court on certiorari, and there it was held that, starting with the assumption that there was no power in the city of New York by any proceedings in the State of New York or Connecticut to acquire the right to appropriate the water, thus depriving the plaintiffs of its continued flow, nevertheless the equitable relief of a mandatory injunction would not be granted, at least in a case where long delay in the assertion of the alleged right had taken place, Although the delay itself would not be conclusive of the plaintiff's right to an injunction, it is a subject for the consideration of the court where there are other strong and controlling equities appealing to it.
We are, therefore, of the opinion that the judgment below should be affirmed, with costs.
O'BRIEN, P.J., and LAUGHLIN, J., concurred.
I concur in the affirmance of this judgment. The proposition that the defendant had no authority to lay this third track is not open to discussion in this court. ( Auchincloss v. Metropolitan El. R. Co., 69 App. Div. 63.) The act of the defendant, therefore, in constructing this track was unlawful and for the damage caused to the plaintiff thereby the plaintiff has a remedy at law. Whether or not a court of equity would interfere by injunction to prevent a continuance of the unlawful act rests in the sound judicial discretion of the court, and in determining whether a court of equity should grant an injunction, or should leave the party to her remedy at law, the actual injury sustained by the plaintiff, together with the resulting injury to the defendant and to the public at large, should be considered.
In Gray v. Manhattan R. Co. ( 128 N.Y. 499) it is said: "An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right." In this case the defendant constructed this third track claiming authority under certain statutory provisions. Its use has become necessary for the proper operation of the road, and it is quite apparent that the interests of the public, as well as that of the defendant, will be seriously jeopardized if the defendant is compelled by a mandatory injunction to remove the track. It has been determined by the court that all the plaintiff's rights could be protected by the payment to her of a sum of money which it required the defendant to pay to avoid an injunction. The plaintiff, therefore, had the option of accepting this sum of money as the value of her property which was appropriated by the defendant on the construction of this third track, or of resorting to her action at law to recover the damages caused by the trespass. A reasonable relief is, therefore, afforded the plaintiff without the public injury which would follow from an injunction under which the defendant would be required to remove the track. Under such circumstances I think the court has the power to refuse to grant an injunction upon condition that the value of the plaintiff's property be paid to her, leaving to the plaintiff the right to accept that amount or to enforce her rights at law. The right of the People or of the city to compel the removal of this track is not presented and, consequently, not determined. We have an owner of abutting property attempting to enforce her legal rights in a public street by an appeal to a court of equity, and I do not think the discretion of the court of equity in refusing to grant an injunction was improperly exercised in this case. For these reasons I concur in the affirmance of the judgment.
O'BRIEN, P.J., and LAUGHLIN, J., concurred.
Judgment affirmed, with costs.