Bly v. Edison Elec. Illuminating Co. of New York

• Decision Date: 07 October 1902
• Citation: 64 N.E. 745,172 N.Y. 1
• Parties: BLY v. EDISON ELECTRIC ILLUMINATING CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

172 N.Y. 1

64 N.E. 745

BLY

v.EDISON ELECTRIC ILLUMINATING CO. OF NEW YORK.

Court of Appeals of New York.

Oct. 7, 1902.

Appeal from supreme court, appellate division, First department.

Action by Sarah A. Bly against the Edison Electric Illuminating Company of New York. From a judgment of the appellate division (66 N. Y. Supp. 737) modifying and affirming a judgment in favor of plaintiff, she appeals. Reversed.

Parker C. J., and Haight, J., dissenting.

Frank M. Hardenbrook, for appellant.

Henry J. Hemmens and Samuel A. Beardsley, for respondent.

WERNER, J.

The principal question presented on this appeal is whether a tenant in possession of premises affected by a nuisance, under a lease made during the existence of the nuisance, can maintain an action to abate the same, and to recover his damages occasioned thereby. This question cannot be intelligently discussed without a short review of the history of the case. In 1886 the plaintiff went into occupation of the premises No. 33 West Twenty-Sixth street, in the city of New York, under a lease which expired May 1, 1890. In the fall of 1888 the defendant established an electric light plant on the same street, and about 175 feet distant from the plaintiff's dwelling. At the expiration of plaintiff's first lease, she took another lease for three years. Then she took leases from year to year until May 1, 1897, at which time she took a lease from a new owner of the premises for a term of three years. During the terms of all of these leases the defendant operated its electric light station. In December, 1898, which was more than 12 years after plaintiff had taken her first lease, and about 10 years after the establishment of defendant's electric light station, this action was commenced. The complaint charged that the electric light station, as operated by the defendant, was a nuisance; and the learned trial court found ‘that smoke and cinders are emitted from the premises of the defendant, and that great quantities of this smoke and cinders fall upon plaintiff's premises; that the jar and vibration caused by the running of the defendant's machinery are of such an extent and nature as to interfere seriously with plaintiff's enjoyment of her premises, and that the plaintiff has been damaged to a considerable extent, and is being damaged, by the aforesaid acts of the defendant; * * * that the aforesaid acts have prevented the plaintiff from renting the rooms of her house, have injured her furniture and household effects, and have caused her an expense for laundry work.’ Upon these findings the trial court decided that the plaintiff was entitled to $4,000 damages, and to an injunction ‘enjoining and restraining the defendant from so conducting its business on the premises mentioned and described in the complaint as to constitute a nuisance in the respects before mentioned, as against the plaintiff.’ Upon defendant's appeal to the appellate division, that learned court modified the judgment entered upon the decision of the trial court by reducing the damage to six cents and vacating the injunction. The plaintiff, who is the appellant in this action, does not complain because the injunction was vacated, for it is conceded that at the time of the argument in the appellate division the plaintiff's last lease had expired, and she had vacated the premises, so that there was no longer any necessity for an injunction. It is claimed, however, that the modification of the judgment in respect to the damages awarded was illegal and erroneous. This claim is met by the defendant's contention that the plaintiff, as tenant under a lease which was made during the existence of the nuisance, is entitled to no damages whatever. If it is true that a tenant who ‘comes to a nuisance’ has no remedy for the damages which he may suffer by reason thereof, then it must be conceded that the plaintiff has no cause for complaint, and that the learned appellate division has dealt more leniently with her than she deserved, for in that event the judgment of the trial court should have been reversed altogether, and judgment absolute rendered in favor of the defendant. We are inclined to the view that the learned appellate division erred in modifying the judgment as stated. The plaintiff was either entitled to such substantial damages as she had been able to establish by her proofs, or she was not entitled to anything. This is not a case in which the plaintiff has established a good cause of action, but has failed in her proof of damages. On the contrary, it is clearly a case in which the only reason there can be for withholding such actual damages as she may be able to establish is that she has no cause of action.

Before proceeding to discuss the question whether the plaintiff has a cause of action, let us first fix the point of view from which it must be considered, and to that end we will briefly state a few propositions from which there can be no dissent: (1) The trial court has found that defendant's electric light station, as operated during the time set forth in the complaint, was a nuisance as to the plaintiff. The decision was in the short form, and was therefore, in effect, a general verdict. Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876,37 L. R. A. 305.The affirmance by the appellate division of the judgment entered upon that decision establishes the facts for the purpose of this appeal, and the pivotal fact in the case is that the nuisance complained of by the plaintiff existed. (2) The public character of defendant's business does not entitle it to maintain a nuisance. Bohan v. Gaslight Co., 122 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701. (3) v. Railroad Co., 159 N. Y. 323, 54 N. E. 57,70 Am. St. Rep. 550;Morton v. City of New York, 140 N. Y. 207, 35 N. E. 490,22 L. R. A. 241;Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537,57 Am. Rep. 701 (3) Had the plaintiff commenced an action during the continuance of her first lease, or at any time within six years thereafter, she would have been clearly entitled to recover such damages to her possessory rights under that lease as she could have proved. Kernochan v. Railroad Co., 128 N. Y. 568, 29 N. E. 65;Francis v. Schoellkopf, 53 N. Y. 152;Sherman v. Iron Works Co., 2 Allen, 524, 79 Am. Dec. 799;Foley v. Wyeth, 2 Allen, 131, 79 Am. Dec. 771.

In the light of these preliminary considerations, we come to the real question in the case. If the plaintiff could have maintained an action under her first lease, which antedated the nuisance, why can she not maintain an action under leases made during the existence of the nuisance? The acts complained of are no less a nuisance in the one case than in the other, nor are they any more excusable or justifiable by the character of the defendant's business. It is contended by the defendant that the difference between the two cases lies in the fact that in the former the rent paid by the tenant is supposed to represent the value of the premises free from the nuisance, while in the latter it is presumed to have been fixed according to their diminished value on account of the existing nuisance. This view was adopted by the learned appellate division, on the authority of Kernochan v. Railroad Co., supra. We think the Kernochan Case has no application to a case like the one at bar, and this without reference to the fact that it appears affirmatively that the rental paid by the plaintiff was the same during the existence of the nuisance as it was before. The Elevated Railroad Cases, to which class the Kernochan Case belongs, are sui generis. They are governed by principles which apply to no other class of cases. The wrongful acts for which the elevated railroad companies operating in the city of New York have been held liable are technically neither nuisances nor trespasses. They may more correctly be described as wrongful appropriations of the easements which are an integral part of the property of adjoining owners. These wrongful acts, although an invasion of the rights of such owners, were not trespasses, because there was no physical entry or intrusion upon their lands; and this for the reason that the ownership of the fee in the streets upon which the elevated railroads were built was in the municipality, and not in the adjoining owners. There was no nuisance, in the legal signification of that term, because the railroad companies were expressly authorized by legislative enactment to occupy the streets for that purpose. This express right was coupled with the power of eminent domain, so that these corporations could acquire in condemnation proceedings the easements of adjoining owners which it might be necessary to destroy or appropriate. The appropriation and destruction of such easements by said corporations, without resort to condemnation proceedings, led to the so-called elevated railroad litigation, which, for immensity of volume and and difficulty of questions involved, has no parallel in our jurisprudence. The principal question in the Kernochan Case, 128 N. Y. 568, 29 N. E. 65, was whether the owner of premises abutting upon a street in which an elevated railroad was constructed, who after such construction leased them for a term of years, could maintain an action for the impairment of his easements in such street by the construction and operation of such railroad. This question was answered in the affirmative, and, in discussing it, Judge Andrews, who spoke for the court, very clearly shows the reason for the rule adopted. The easements invaded and appropriated were incorporeal hereditaments forming an integral part of the owner's estate, which could not be permanently severed from the dominant or principal estate without an injury to the inheritance, and as the wrongful act of the railroad company was not a mere casual wrong, but an avowedly permanent appropriation of the easements, it was as much or more of a loss to the reversioner as it might be to a tenant in possession. But...