Dietzel v. City of New York

• Decision Date: 12 May 1916
• Citation: 112 N.E. 720,218 N.Y. 270
• Parties: DIETZEL v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 270

112 N.E. 720

DIETZEL

v.CITY OF NEW YORK.

Court of Appeals of New York.

May 12, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Rosina Dietzel against the City of New York. From a judgment of the Appellate Division (170 App. Div. 571,156 N. Y. Supp. 748), affirming judgment for plaintiff, defendant appeals. Judgment reversed, and new trial granted.

Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for appellant.

J. Homer Hildreth, of New York City, for respondent.

WILLARD BARTLETT, C. J.

This is an action at common law to recover damages for a trespass committed by constructing a sewer upon the lands of the plaintiff. The trespass was established by uncontradicted proof upon the trial. The answer contained an averment to the effect that since the trespass the title to that portion of the land of the plaintiff occupied by the sewer had become vested in the city of New York through condemnation proceedings duly instituted and conducted according to law; but this averment was stricken out upon the motion of plaintiff's counsel, with the assent of counsel for the city. The only question presented by the appeal relates to the measure of damages.

The plaintiff was permitted, over the objection and exception of the defendant, to introduce opinion evidence as to the value of the plaintiff's property before and after the construction of the sewer. The learned trial judge also charged the jury that the measure of the plaintiff's damage would be the difference in the value of her property with and without the sewer, to which instruction the defendant duly excepted.

It is quite clear that the evidence was received and that the jury were thus instructed upon the assumption that the sewer was to remain as a permanent structure upon the plaintiff's land the fee value of which would thus be permanently lessened thereby. This was an erroneous assumption in an action at common law where the character of the trespass is such that it need not be permanent. The invasion of land by the construction of a sewer thereon is not necessarily permanent. The sewer may be removed and the land restored to its former condition. There is no presumption that the trespasser will persist in his wrongdoing in such a case, but, on the contrary, the plaintiff's damages are to be assessed on the assumption that he will right the wroing, and, therefore, they are limited to the injury which the plaintiff has sustained up to the time of the commencement of the action. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661; Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436, 28 N. E. 518, 13 L. R. A. 401, 26 Am. St. Rep. 486; Stowers v. Gilbert, 156 N. Y. 600, 51 N. E. 282. A recovery on the basis of permanent damage is not permissible in a common-law action for a trespass upon land unless the injury is incapable of actual, physical repair, and therefore in its nature and of necessity permanent. Such was the case of Argotsinger v. Vines, 82 N. Y. 308, where the trespass consisted of the cutting and removal of timber; such was the case of Dwight v. Elmira, Cortland & Northern R. R. Co., 132 N. Y. 199, 30 N. E. 398,15...