Stowers v. Gilbert

• Decision Date: 04 October 1898
• Citation: 156 N.Y. 600,51 N.E. 282
• Parties: STOWERS v. GILBERT.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 600

51 N.E. 282

STOWERS

v.GILBERT.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from supreme court, general term, Fifth department.

Action by Eugenia Stowers against Thomas Gilbert. The plaintiff had judgment, which was modified and affirmed by the general term (33 N. Y. Supp. 101), and defendant appealed. Reversed.

Frederick A. Mann, for appellant.

Charles M. Allen, for respondent.

BARTLETT, J.

This is an equitable action, brought for the purpose of restraining defendant from erecting a brick wall which plaintiff avers encroached upon her land, and to recover damages for the alleged trespass. The plaintiff and defendant are adjoining owners of land situate upon the north side of Atkinson street, in the city of Rochester, the premises of the defendant lying next east of the plaintiff's. The referee found that the plaintiff's house has stood in its present position for many years, and is within or west of the true line between plaintiff's and defendant's lands. It is also found that between the old house, which defendant removed in order to erect the present structure, and the plaintiff's house, there was a narrow passageway, through which a person could pass, and that the eaves of the two houses did not overlap each other. The defendant, in erecting his new west wall, of which complaint is now made, evidently proceeded upon the theory that plaintiff's east wall encroached upon his land near the rear of the house several inches, and that it was his legal right to place the wall along the true line as he claimed it. While attempting to do this, he was served with the injunction in this action, the complaint praying that the defendant be restrained from interfering with, cutting, or injuring in any manner plaintiff's said dwelling house, or the fences between the plaintiff's lot and defendant's lot, and restraining him from trespassing upon plaintiff's premises. It is found that the defendant trespassed upon the plaintiff's land, removed the underpinning from the east end of a piazza or stoop, broke and tore down the line fence and grape trellis, tore up boards and shingles, and cut off a portion of the shingles and cornice on the east side of plaintiff's house, but that the cutting of the eaves was done under and in pursuance of an order of the court made in this action. granted upon condition that the defendant give a bond with two sufficient sureties providing for the payment of any judgment which might be recovered by the plaintiff in this action on account of any cutting of the eaves of plaintiff's building pursuant to the permission granted by the order. The defendant then completed the erection of his wall. This case was tried thereafter, and resulted in a permanent injunction and a judgment for $500 damages against the defendant. The general term reduced the damages to $100, and affirmed the judgment as modified.

It is unnecessary to examine the merits of this case, as the court below adopted an improper measure of damages, and the judgment must be reversed. The damages proved on the trial before the referee were not temporary, but permanent, in character, and the evidence to establish the same was admitted over the objections and motions to strike out of the defendant. The plaintiff swore two real-estate brokers on the question of damages. The first witness, Durgin, testified that the value of the premises before the trespass was $2,000, and after the erection of wall $1,500. He fixed the value of house before trespass at $500. The witness stated that he took into consideration drip, also light and air shut off. The other witness, Knapp, fixed the damage to plaintiff's house by the erection of the wall at $500. He also stated that he took into consideration in fixing the damages the leakage of water from the higher building, and cutting away the cornice and eaves, but shutting off light and air did not enter into his computation. The evidence of these two...