Opinion
December Term, 1896.
William G. Tracy and William H. Hornblower, for the appellant.
W.S. Andrews, for the respondent.
Upon the first trial in 1891 the complaint was dismissed on the merits. An appeal was taken to the General Term and a new trial was granted in 1893, and the opinion delivered on that appeal is found reported in 67 Hun, 153. Apparently the main features of that opinion were followed by the trial judge upon the occasion of the second trial now brought here by appeal.
The trial judge, upon a large volume of conflicting evidence, has found as matter of fact that the line of the thirty-four acre lot extends to the center of Marsh street, and as a conclusion of fact upon that evidence he expressly states that the plaintiff is "the owner, subject to the public easement, of so much of the bed of Marsh street as lies west of the centre line thereof." We should not be justified in reversing the judgment on that question of fact even if we entertained the opinion that upon that evidence we might have arrived at a different conclusion. As was said in Kingsland v. Kings County E.R. Co. (83 Hun, 152), to justify a reversal: "The proof must so clearly preponderate that it can be said, with a reasonable degree of certainty, that the trial court erred in its conclusion. (Citing Aldridge v. Aldridge, 120 N.Y. 614; Barnard v. Gantz, 140 id. 249.)"
We are not prepared to say that the proof so clearly preponderated upon the question of fact to which we have alluded as to warrant us in applying to the case in hand the rule which we have stated. The omission to express a conclusive or controlling opinion upon that question of fact on this occasion seems appropriate inasmuch as, upon another aspect of the case presented, we have reached the conclusion that a new trial should be ordered, and, therefore, the question of the ownership of the plaintiff to the center line of Marsh street will be open for further investigation and additional evidence to be given by either party on the occasion of a new trial.
Plaintiff, by its complaint, presented a cause of action on the equity side of the court. It claimed to recover for the numerous trespasses which had been continuous, according to the claim of the plaintiff, over a period of six years preceding the commencement of the action; and to avoid a multiplicity of suits the equitable jurisdiction of the court was invoked in accordance with well-established precedents. And in conjunction with the claim to recover for the trespasses past was an averment that the defendant threatened to continue the maintenance of its road, and, therefore, its alleged trespass upon the property alleged to be owned by the plaintiff. The right to maintain such an action is established by a long line of cases. ( Williams v. The N YC.R.R. Co., 16 N.Y. 97; Henderson v. The N.Y.C.R.R. Co., 78 id. 423; Inderlied v. Whaley, 32 N.Y. Supp. 640; Burditt v. The N.Y.C. H.R.R.R. Co., 71 Hun, 361.)
(2) A careful study of the evidence found in the appeal book, with the extensive comments made thereon in the elaborate briefs of counsel on either side, leads to the conclusion that the award of damages is very liberal, not to say excessive. An inspection of the findings of fact upon the subject of damages does not furnish a satisfactory explanation of the amount awarded for any of the specific grounds stated in the findings of fact in respect to the damages. The court has found a gross amount for past damages without specifying the amount of damages sustained by the plaintiff upon each of the several grounds stated, although it was not bound to incorporate the particulars in the decision upon the particular items of damages awarded. (Code Civ. Proc. § 1022.) The grounds stated in the finding of fact as to damages are as follows: (1) Interference with the plaintiff's business; (2) deterioration in value of the salt manufactured; (3) injury to the salt vats; (4) decrease in the amount of salt manufactured; (5) expense incurred to prevent other extensive injury; (6) damages by reason of obstruction of access to the plaintiff's premises; (7) the lessening of the selling value of the plaintiff's property.
If there had been a specific statement of the amount of damages awarded upon the several heads, a review of the evidence might indicate whether the finding of fact upon that particular head was sustained by evidence. Inasmuch as the damages are massed together in one gross finding, it is not possible for this court to determine what was allowed by the trial court upon any one of the numerous grounds specified in the finding of fact on the subject of damages. Turning to the finding of fact we find that it reads as follows: "That, by reason of such trespasses in the past, the plaintiff has been injured, its business has been interfered with, the quality of the goods manufactured by it has been deteriorated, the amount of salt manufactured by it has been lessened, the salt vats constructed upon its premises have been injured and expense has been incurred by it in the prevention of greater and further injury, access to its premises has been obstructed and the selling value thereof diminished. That the aggregate of the damages so suffered by the plaintiff from the eighth day of December, 1882, down to the time of the trial of this action, amounts to the sum of eighteen thousand five hundred and sixty-eight dollars ($18,568)."
( a) Upon looking into the evidence we are not satisfied that any considerable sum should have been allowed because "access to its premises has been obstructed." At all times the plaintiff has been enjoying access to its premises and has used them for the same purpose that it did before the road was there, and it is difficult to discover any considerable, if any, damages sustained by reason of the interference with the plaintiff's access to its premises.
( b) Nor does the evidence reveal any satisfactory ground for saying that "the selling value thereof" has been diminished. The trespasses of the defendant have not been of that destructive character that leads one to suppose that the actual value of the premises has been interfered with, and it is difficult to conceive of any basis for allowing damages in a trespass action which are not to compensate for injury actually caused, unless the substantive ownership has been impaired. Assuming that the trespass ceased at the termination of the trial, and a sum of money is paid to liquidate the damages caused by the past trespass, it is not apparent that, therefore, "the selling value" of the premises has been or would be diminished. As before observed, the evidence does not indicate clearly what sum would measure the diminution of the value of the property by reason of the trespasses, nor do the findings of fact made by the court point out how much was allowed under this head of damage, and no case has been cited with facts like those found here, which sanctions a recovery in trespass for "lessening of the selling value of the property still owned" by a party alleging trespass. The rule laid down in numerous cases of a like character, at least so far as the land is concerned, as to damages, relates to a diminution or depreciation of the rental or usable value of the land, and they do not specify as an item in damages in trespass the depreciation in value of the land. ( Wright v. N.Y. El. R.R. Co., 78 Hun, 450; Lawrence v. Met. E.R. Co., 126 N.Y. 483. )
In S.A.R.R. Co. v. M.E.R. Co. ( 138 N.Y. 551) it appeared that there was an error in the finding as to the nature of the damages sustained, and that it was only of an abstract nature; "that it consisted of a merely erroneous description of the injury sustained;" and that, upon a further inspection of the finding, it appeared that the court had adopted the correct rule for the ascertainment of damages; and under such circumstances it was said that the court would not reverse for the abstract error. In the case in hand, as already stated, after the grounds of damage were stated in the findings, the conclusion follows: "That the aggregate of the damages so suffered by the plaintiff" amount to the sum of $18,568. In order to sustain that conclusion we must necessarily adopt all the grounds specified as the foundation for awarding damages. To do so would be to advance a new rule for the measurement of damages caused by trespasses.
In passing, it may be observed that another difficulty presents itself in considering the question of damages allowed for past trespasses. According to the evidence the plaintiff was in occupation of some fifteen acres of land under a lease, and its rights under the lease only extended to the margin of the street. The fifteen acres lie adjacent to the thirty-four acres, and the evidence shows a general description of the location of the plaintiff's salt works; and in awarding damages for the injury to the business carried on by the plaintiff, it is not manifest from the findings what damages in that regard were allowed for the injury of the business of the plaintiff occasioned by reason of the presence of the defendant's tracks in the street opposite the fifteen acres.
According to the doctrine laid down in Fobes v. R., W. O.R.R. Co. ( 121 N.Y. 505), the defendant, by its railroad, has taken no property or rights of the plaintiff opposite the fifteen acres. In that case it was held that the owner whose property is bounded by the exterior line of a street cannot recover for consequential damages to his adjoining property arising from a reasonable use of the street for railroad purposes where there has been no substantial change of the grade, and where the passage across and through the street is free and unobstructed for the public use.
The finding before us does not leave it clear and certain that the rule laid down in the Fobes case was observed in measuring damages supposed to have accrued to the plaintiff's business carried on upon the two properties lying adjacent. Nor is it made apparent that the damages allowed for loss or injury to the plaintiff's business were not too remote, and such as ought to have been excluded according to the rule laid down in Taylor v. Met. El. Ry. Co. (50 N.Y. Super. Ct. [18 J. S.] 312.)
We do not find in the evidence or in the findings as to damages a proper predicate for a modification of the award of past damages, and as we are not satisfied with the amount allowed by the trial court, we reach the conclusion that the assessment of damages should not be allowed to stand. ( Cassin v. Delany, 38 N.Y. 178; Andrews v. Tyng, 94 id. 16.)
The foregoing views seem to require that the judgment should be reversed.
All concurred.
Judgment reversed and a new trial ordered, with costs to abide the event.