Bohm v. Metro. El. Ry. Co. 

• Decision Date: 20 January 1892
• Citation: 129 N.Y. 576,29 N.E. 802
• Parties: BOHM et al. v. METROPOLITAN EL. RY. CO. et al. SOMERS v. SAME.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 576

29 N.E. 802

BOHM et al.

v.METROPOLITAN EL. RY. CO. et al.

SOMERS

v.SAME.

Court of Appeals of New York.

Jan. 20, 1892.

Appeals from superior court, New York city, general term.

Actions by Nathan Bohm and others and by Peter Somers against the Metropolitan Elevated Railway Company and the Manhattan Railroad Company to recover damages caused by the construction and operation of defendants' elevated railroad in the street abutting the premises of the respective plaintiffs. Defendants appeal from judgments affirming judgments for plaintiffs. Reversed.

The other facts fully appear in the following statement by PECKHAM, J.:

These two cases were argued together, as involving only the same questions. The plaintiffs in the actions brought suit to recover damages, which they alleged they had sustained by reason of the operation of the railway of defendants through Second avenue in the city of New York. The plaintiff Somers was the owner, by conveyance to him in March, 1882, of certain premises known as ‘Nos. 2271 and 2273,’ on Second avenue in that city, and between 116th and 117th streets. He alleged that the defendants had unlawfully interfered with, trespassed upon, and illegally taken his easements (or some portion thereof) of light, air, and access to his property by the illegal erection and operation of their elevated railway in such avenue. He demanded judgment restraining defendants from further maintaining their structure in front of his premises, and compelling them to remove the same. He also asked to recover the amount of his damage already sustained by reason of the maintenance and operation of the road past his premises, and that, if defendants were permitted to maintain and operate the road in the future, it should only by upon the condition that they should pay plaintiff the amount of the permanent loss he would suffer by reason of such maintenance and operation. The plaintiff Bohm made substantially the same allegations in relation to his property, which was also situated in Second avenue, and a short distance from plaintiff Somers. The defendants answered, and particularly put in issue the allegations in the complaint in each case as to the damages resulting from the acts of defendants. Both actions were tried at a special term of the court without a jury, and the court, among other matters, found the following facts. They are in substance the same in each case. In the Somers Case: The defendants were duly incorporated, and before they proceeded to construct their railroad through Second avenue they obtained the authority of the legislature and the consent of the municipal authorities of the city of New York to do so, but such authorization did not entitle them to take the property of plaintiff without compensation. In 1883, and prior to April 1st, the plaintiff erected on his lots two large and valuable brick buildings, and to them and to the lots on which they rested were attached as appurtenant thereto certain easements of light, air, and access from Second avenue. Since April 1, 1883, the elevated railway structure of defendants has greatly cut off the light, air, and access which other-wise would have come to plaintiff's premises from that avenue. By the acts of defendants in deprinving the plaintiff in part of the beneficial use and enjoyment of his easements above mentioned from April, 1883, to the time of trial, April, 1890, the rental value of plaintiff's premises has been reduced $2,100, and the plaintiff has sustained a loss thereby to that amount The damage is of a continuous character, arising from the maintenance and operation of the road by defendants. The road was opened for public use in March, 1880, and has been ever since so maintained and operated. The permanent damage caused by the operation and maintenance of defendants' road was found to be $3,000, upon payment of which no injunction was to issue. The money was only to be paid in case the plaintiff conveyed to the defendants all the rights and easements appurtenant to his lots, which had been taken by them. In the Bohm Case the same general facts were found, differing only as to the different lots, and as to the amount of damages. Judgments upon the decisions of the judge were duly entered, and the defendants appealed therefrom to the general term, where the judgments were affirmed, and from the judgments of affirmance the defendants have appealed to this court.

John F. Dillon and Julien T. Davies, for appellants.

Charles Gibson Bennett, for respondents.

PECKHAM, J., ( after stating the facts.)

The defendants seek upon these appeals to obtain from this court some decisive statement as to the rule which should obtain in actions like these in arriving at the amount of damages which should be paid by defendants to abutting lot-owners on account of the building and maintenance of defendants' roads in the city of New York. To that end they have waived every other exception in the cases. There are, it is said, large numbers of cases in which the decision of the question is of the greatest importance to both parties. The defendants claim that, if the correct rule for the ascertainment of damages had been followed in these cases, the uncontradicted evidence showed that plaintiffs had not sustained any damage whatever. At the outset the plaintiff's counsel sets up a bar to our entering upon an examination of the subject by alleging that the question is not raised, and that there is no exception which brings the matter before us. In the Somers Case the defendants requested the court to find as follows: ‘ Twentieth. The existence and operation of the defendants' railroad in Second avenue has greatly increased the population of the locality in which the plaintiff's property is situated, and has brought traffic into Second avenue. The plaintiff's property has thereby incidentally been benefited. Twenty-First. Since the year 1880 there has been a general rise in the value of real estate situated upon Second avenue, and this increase in value is largely attributable to the existence and operation of the defendants' railroad.’ Substantially the same requests were made in the Bohm Case. These requests, the defendants state, are founded upon uncontradicted evidence. Upon a careful perusal of the evidence in the cases I think this contention is well founded. The court refused to make the findings as requested, and the defendants excepted. Motions were made by the defendants in each case for a dismissal of the complaint on the merits, because, among other grounds, it appeared the plaintiffs' property had been benefited by the railroad, and had increased in value since its erection, and by reason thereof. The motions were denied, and exceptions taken. We think, upon the whole, that the question was sufficiently raised. It is true that exceptions are unavailing when they are taken to the refusal of a judge to find as facts matters which are merely evidence, and which are immaterial. In these cases, however, we must remember that the sole question at issue between the parties upon this branch of the case was as to the proper rule to be observed in ascertaining the amount of damages the plaintiffs had sustained, if they had sustained any. The amount of damages would be materially affected by the rule which should be observed in determining their existence; and yet in making the bare finding of the amount of damage sustained, it would not appear that any particular rule had been followed, and hence it would not appear that any erroneous rule had been adopted. It might in such cases be urged, perhaps, that there was no evidence upon which to base a finding of damage if a correct rule had been adopted, and yet a perusal of the testimony might show some slight amount, and hence the exception would fail. The judgment might at the same time be really founded upon the incorrect rule. There would in almost any event be a difficulty in determining whether a wrong rule had or had not been adopted. If it were a trial by jury, the judge would be requested to instruct the jurors as to the true rule, and an exception would lie to his refusal and to the rule actually adopted, and the question brought up in that way. In a trial before the court it is more awkward. The requests in these cases were to find certain facts which had been established by uncontradicted evidence, and upon those facts the defendants seek to draw an inference in the nature of a conclusion of fact or of law, or both, that the plaintiffs have sustained no damage. The court has, in truth, refused to find the facts as requested, and such refusal, added to the circumstance that he has found the plaintiff have sustained substantial damage, and to an amount stated by him, leads to the inevitable conclusion that he refused to find them because they were, in his judgment, immaterial. A request to find that the plaintiffs had sustained no damage, or a motion for a nonsuit on the ground that no damage had been proved, might not alone bring up the question. Taking all the means together which the defendants adopted in their perfectly legitimate attempt to bring up for review the question as to what is the proper rule of damages in these cases, we must say that, if their able counsel has not yet succeeded, it is difficult to see how success in that line can be achieved hereafter. Without overruling the cases upon the subject of exceptions to refusals to find upon mere matters of evidence, we think the cases before us are distinguishable. The question sought to be raised here is so difficult of presentation by way of exception or request upon a trial before a court or referee, and is withal so important, that we are disposed to say the various requests to find, and the exceptions taken to the judge's refusals, together with the motion for a nonsuit on the ground that no damage had been proved, and the exceptions taken to the denial of such motion, should in these cases and...