Tallman v. Metro. El. Ry. Co.

• Decision Date: 15 April 1890
• Citation: 121 N.Y. 119,23 N.E. 1134
• Parties: TALLMAN v. METROPOLITAN EL. RY. CO.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 119

23 N.E. 1134

TALLMAN

v.METROPOLITAN EL. RY. CO.¹

Court of Appeals of New York.

April 15, 1890.

Common pleas of New York city and county, general term.

Action by Jacob B. Tallman against the Metropolitan Elevated Railway Company for damages caused by the construction of an elevated railway in front of plaintiff's lots. Defendant appeals. For former report, see 2 N. Y. Supp. 130.

EMINENT DOMAIN-SPECULATIVE DAMAGES.

In an action against an elevated railway company for damages to abutting property, caused by the construction of the road along the street, evidence of what would have cost to erect dwelling-houses on the lots, what they would have rented for if they had been built with the road there, and what they would have rented for had the road not been constructed, is inadmissible as speculative and contingent. The measure of damages is the diminished rental or usable value of the lots caused by the road computed for the time embraced in the action.

Edward S. Rapallo and Samuel Blythe Rogers, for appellant.

James M. Smith, for respondent.

EARL, J.

The plaintiff was the owner of four adjoining lots on the westerly side of West Fifty-Third street in the city of New York. He became the owner of three of them in 1866, and of the other in 1868, and he continued to own them until after the commencement of this action in February 1884. The elevated railway of the defendants was constructed through Fifty-Third street in front of these lots in 1878, and was thereafter maintained and operated. The plaintiff used a part of his lots for a carpenter shop and the remainder as a lumber-yard. This action was commenced to recover damages occasioned to the lots by the construction and operation of the railway, and the only question which it is important for us now to determine relates to the rule of damages. When the defendant began to construct its railway in front of the plaintiff's lots he could have commenced an action in equity against it, and restrained it until it had made compensation to him for the rights and easements which it took from him, or until it acquired them by condemnation proceedings. Story v. Railway Co., 90 N. Y. 122. In that way he would, at least in the theory of the law, have been indemnified for all the damages he would suffer by reason of the construction of the railway. Instead of taking his remedy by an equitable action at that time he could have taken it at any time afterwards during his ownership of the lots with the same result. He was not, however, confined to his remedy by such an action. He could suffer the railway to be constructed, and then bring successive actions to recover damages to his lots, caused by the construction, maintenance, and operation of the railway. In such an action he would recover his damages to the commencement of the action, and the action would be governed by the principles laid down in Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. In such an action the plaintiff cannot recover for the permanent diminution in the value of his lots. He can only recover the damages he sustains from day to day, or from month to month, or from year to year, in the use of his lots; and the question to be determined in such an action is how much has the rental, or usable value, of the lots been diminished by the construction, maintenance, and operation of the railway? As a basis for estimating the damages the lots must be taken as they are used during the time embraced in the action, and the plaintiff's recovery must be confined to the diminished rental or usable value of the lots just as they were. He was in no way prevented from putting his lots to any use he wished. He had the right acting reasonably, not wantonly or rashly,...