Di Ackerman v. True

Decision Date09 June 1903
Citation67 N.E. 629,175 N.Y. 353
PartiesACKERMAN v. TRUE.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by Charlotte Y. Ackerman against Clarence F. True. From a judgment of the Appellate Division (75 N. Y. Supp. 695) modifying and affirming a judgment in favor of defendant, both parties appeal. Reversed.

William J. Kelly, for plaintiff.

Henry G. Atwater, Alfred B. Cruikshan, and J. C. Thomson, for defendant.

MARTIN, J.

On March 15, 1898, the defendant conveyed to the plaintiff a plot of ground on the northeast corner of Riverside Drive and Eighty-Second street, in the city of New York, which extends along the easterly side of Riverside Drive about 60 feet, and along the southerly side of Eighty-Second street 12 feet. At the time of this conveyance the defendant also owned the property fronting on Riverside Drive adjoining the lot conveyed to the plaintiff on the northerly side and extending to Eighty-Third street. The plaintiff owned a lot adjoining that conveyed to her by the defendant, on which there was a house in which she resided. Subsequent to the conveyance to the plaintiff, the defendant constructed a row of houses on the plot owned by him northerly of the plaintiff's lot. The house which the defendant built upon the lot adjoining the plaintiff's was extended three feet and six inches beyond the easterly line of the street, and had in addition what is known as a swell front or bay window, also extending into Riverside Drive. The plaintiff claims that so much of the house built by the defendant adjoining her property as extends beyond the line of Riverside Drive and into the street is an unlawful invasion or trespass upon her rights, and is a public nuisance from which she has suffered special damages to a large amount by the diminution of the value of her property. This action was to compel the defendant to remove that portion of the building, and to pay the plaintiff damages for the injury sustained by her by reason of such encroachment and invasion of her rights.

In the complaint, after describing the situation, it was alleged that the defendant had commenced and was erecting in Riverside Drive, which was a public highway of the city of New York, and adjoining her property, a solid brick and stone wall, four stories in height, and extending into that street about four feet, and about thirty-two feet in width; and that this unlawful structure injures her property, obstructs her view, interferes with her easements of light, air, and access appurtenant thereto, and otherwise injures her property to the amount of $10,000. It is further alleged that the defendant's building is a violation of the provisions of the charter of the city of New York; that it constitutes a nuisance, and is an infringement upon and violation of the plaintiff's rights, which will cause her irreparable damage unless the same is removed, for which she has no adequate remedy at law. In her demand for relief she asks for a decree adjudging the defendant's building to be an unlawful obstruction of the public highway, and an unlawful interference with her easements of light, air, and access; that the same be forthwith taken down and removed; and that the defendant be perpetually enjoined from reconstructing the same. An injunction pendente lite was also asked for, and a judgment for $10,000 damages was demanded.

At the commencement of the trial the defendant moved that the plaintiff be compelled to elect whether she would proceed upon the theory of a nuisance or of a continuing trespass. The court required the plaintiff to make that election, and to that determination she duly excepted. Under this decision the plaintiff elected to proceed as for a nuisance, and, when asked what relief she expected to obtain, replied that the nuisance be abated.

The first question presented is whether, under the plaintiff's complaint, the court was justified in compelling her to elect whether she would proceed upon the theory of a trespass or as for a nuisance. It will be seen from the allegations of the complaint that they were appropriate to an action to obtain such relief as the plaintiff was entitled to for an encroachment upon the public highway which specially affected the value of her property. This was the sole cause of action alleged, and all the relief to which the plaintiff was entitled arising out of the transaction which was the subject of the action might, under the Code, be obtained in one suit, especially as there was no dispute between the parties as to the method of trial. Corning v. Troy Iron & Nail Factory, 40 N. Y. 191, 207;Davis v. Morris, 36 N. Y. 569;Colman v. Dixon, 50 N. Y. 572. Therefore we are of the opinion that the court possessed no authority to compel the plaintiff to limit or restrict her recovery or cause of action by requiring her to make any such election, and that that ruling by the court constituted an error for which the judgment should be reversed, provided the plaintiff's complaint stated a cause of action upon the establishment of which she would be entitled to recover.

The defendant, however, insists that, inasmuch as the trial court found that the plaintiff has sustained no special damages by reason of the alleged encroachment, the complaint was properly dismissed upon the merits. The difficulty with this finding is that there was no evidence to sustain it, and, as the affirmance by the Appellate Division was not unanimous, that question must be considered upon this appeal. The proof showed quite conclusively that the erection and maintenance of this encroachment upon the street affected the value of the plaintiff's property, and that it was worth about $15,000 less than it would be if the defendant's wall did not project into the street. The only theory upon which the court found, or which is insisted upon by the defendant as tending to show, that the plaintiff sustained no damages, is the fact that her property is now worth more than it was before the wall was erected. It is not claimed that the extension of the wall into the street has improved the value of the plaintiff's property, but the claim is that, inasmuch as she can now sell her property for an amount exceeding the price which she paid, she has suffered no damages. The logic of this contention is not apparent. If she made a fortunate purchase, or if it has become so by the improvement of that neighborhood, she is certainly entitled to the benefit of any advance in the value of the property so purchased. In ascertaining the damages she has sustained, the true rule is to prove the value of the property with the defendant's encroachment and its value with that encroachment removed, and the difference is the measure of her loss. That difference was proved to be $15,000. Under these circumstances it is difficult, indeed quite impossible, to see how it can be properly said that the plaintiff has suffered no special damages. We are of the opinion that the trial court was not justified, upon the evidence in the record, in finding that the plaintiff has sustained no special damages by reason of the encroachment.

In the further consideration of this case it will be assumed that the plaintiff has established the fact that she has sustained special damages, by reason of the defendant's encroachment upon the street, amounting to about the sum of $15,000, and that these damages are peculiar to the plaintiff, and in addition to those which were suffered by the general public. It is well established by the decisions of this court that interferences with public and common rights create a public nuisance, and, when accompanied with special damage to the owner of lands, give also a right of private action to such owner, and that a public nuisance as to the person who is specially injured thereby in the enjoyment or value of his lands becomes also a private nuisance. That this encroachment upon the street was a public nuisance, and that as to the plaintiff it was a private nuisance we have no doubt. In the language of Blackstone, a private nuisance is ‘anything done to the hurt and annoyance of the lands, tenements, or nereditaments of another,’ which embraces not a mere physical injury to the realty, but an injury to the owner or possessor as respects his dealing with, possessing, or enjoying it; and that one erecting or maintaining such a nuisance is liable in an action at the suit of another who has sustained such special damages, and he may be restrained in equity from continuing the nuisance. Adams v. Popham, 76 N. Y. 410;Francis v. Schoellkopf, 53 N. Y. 152;Kavanagh v. Barber, 131 N. Y. 211, 213,30 N. E. 235,15 L. R. A. 689;Wakeman v. Wilbur, 147 N. Y. 657, 663,42 N. E. 341. In the case last cited, Judge O'Brien said: ‘The obstruction of the public highway is an act which in law amounts to a public nuisance, and a person who sustains a private and peculiar injury from such an act may maintain an action to abate the nuisance and to recover the special damages by him sustained’ (citing People v. Kerr, 27 N. Y. 193;Davis v. Mayor, etc., of N. Y., 14 N. Y. 506 ;Adams v. Popham, 76 N. Y. 410;Chipman v. Palmer, 77 N. Y. 51 ); and he then adds: ‘The extent of the injury is not generally considered very important. It should be substantial, of course, and not merely nominal, and the fact that numerous other persons have been injured by the act is no ground for a denial of the relief.’

Under the principle of these authorities it becomes obvious, we think, that the plaintiff was entitled to maintain this action, not only for the purpose of abating the nuisance, but also to recover any damages she might have sustained by reason of the wrongful acts of the defendant in constructing and maintaining this encroachment upon the street.

It is further contended by the defendant that the plaintiff was not entitled to a mandatory injunction to remove the encroachment, and that it was properly refused on...

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