Galway v. Metro. El. Ry. Co.

• Decision Date: 06 October 1891
• Citation: 28 N.E. 479,128 N.Y. 132
• Parties: GALWAY v. METROPOLITAN EL. RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 132

28 N.E. 479

GALWAY

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

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from supreme court, general term, first department.

Action by James Galway against the Metropolitan Elevated Railway Company and the Manhattan Railway Company to restrain the operation of defendants' elevated railroad in front of plaintiff's property, and to recover damages for injury by the railroad to said property. There was a judgment for plaintiff, and defendants appeal. Affirmed.

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

George Zabriskie, for respondent.

RUGER, C. J.

This is one of the usual actions in equity to restrain the defendants from further maintaining and operating an elevated street railroad on Sixth avenue, in the city of New York, adjacent to the plaintiff's property, thereby unlawfully interfering with it. This property consisted of five vacant lots, extending about 125 feet along the easterly side of the avenue, between Fifty-Seventh and Fifty-Eighth streets, and was acquired by the plaintiff by purchase in and previous to 1871. The defendant the Metropolitan Elevated Railway Company commenced and completed the structure of its railroad between the months of January and July, 1878, and from the time of its completion to the commencement of this action, in 1889, it has, either by itself or through its lessee, the Manhattan Railway Company, continued to maintain and operate an elevated steam railroad in front of and adjoining the plaintiff's premises on Sixth avenue. No proceedings were taken by the railroad to acquire the easements of the abutting owners in the avenue, or their consent to its construction. The plaintiff complained that by reason of the operation of such railroad, in impairing the easements of light, air, and access to his premises, he had been damaged, and demanded judgment for such damages as well as a perpetual injunction against the defendants from further operating and maintaining their railroad in front of his premises. A trial was had at special term, and the court declined to award pecuniary damages to the plaintiff, but rendered judgment granting the relief by injunction unless the defendant should pay to the plaintiff, within a limited time, the sum of $20,000 as the depreciation of the value of the premises caused by the railroad, and upon such payment being made required the plaintiff to execute to the defendants a conveyance of the easements. The depreciation in the value of plaintiff's property by reason of the erection and maintenance of the railroad was found by the trial court to be $20,000, and the evidence supported that finding. It was also found that the plaintiff saw the railroad in the course of construction in front of his premises, and, from time to time, saw what defendants were doing in respect thereto, and occasionally as a passenger rode upon it. He subscribed money to pay for counsel to prevent the erection of the road, but made no protest otherwise and instituted no legal proceedings to enjoin its construction or operation prior to the commencement of this action. It was also found that, after the commencement of the action, but before the trial, the defendants instituted proceedings for the condemnation of that part of the easements referred to which had been taken for the use of such railroads, and that such proceedings were pending, undetermined, at the time of the trial. The defendants requested the trial court to find the following propositions of law: First, ‘that this action is barred by the statute of limitations;’ and, second, ‘that plaintiff's alleged right of action is barred by his acquiescence in said railroad and its operation, and his use thereof a passenger,’ and that he is estopped from maintaining the action. The court refused to find as requested, and it is conceded by the defendants that the exceptions to such refusal raise one only questions to be considered on this appeal.

It is claimed that the 10-year statute of limitations commenced to run agaisnt an equity action from the time the plaintiff was first entitled to commence such action, and, that period having elapsed, that the plaintiff was barred from maintaining such action by section 388 of the Code of Civil Procedure. ¹ This section is the general statute adopted in the Code as a precautionary measure to cover cases inadvertently omitted or otherwise unprovided for. The general right of an abutting owner on a public street to recover damages for an unlawful invasion of his easements by the erection and maintenance of an elevated railroad in the street adjoining his premises is not contested by the defendants;nor is the liability of the defendants to make compensation to the plaintiff for the injury inflicted upon his property by the construction and operation of their railroad disputed, or his right to maintain successive actions at law to recover damages for the injury to his easements; but it is claimed that he has lost the right to proceed in equity, not only by reason of the statute of limitations, but also by virtue of an equitable estoppel arising out of the alleged acquiescence in the admitted trespasses. The case, therefore, involves the question how far, if at all, the owner has forfeited his rights in his property by reason of his alleged laches and inaction during the period of 11 years intervening between the construction of the road and commencement of the action.

We think it would be impossible to sustain this appeal without unsettling the established law of the state. It is, in effect, an effort to exempt actions in equity from the operation of the well-settled principle, that trespasses upon real property, effected by an unlawful structure or nuisance, are continuous in their nature, and give sucessive causes of action from time to time, as the injuries are perpetrated. The questions raised are answered by elementary principles established in this state by numerous reported cases. They are found in the two propositions that continuous injuries to real estate caused by the maintenance of a nuisance or other unlawful structure create separate causes of action, barred only by the running of the statute against the successive trespasses; and the further principle that no lapse of time or inaction merely, on the part of the plaintiff during the erection and maintenance of such structure, unless it has continued for the length of time necessary to effect a change of title in the property claimed to have been injured, is sufficient to defeat the right of the owner to damages. It may be that there is no case where the precise question as to the application of section 388 to such causes of action has been directly decided in this state; but the rule follows as a logical conclusion from the cases, and it affords a strong argumentagainst the appellants' theory that, in the numerous cases in this state in which the question has been involved the point has never before been taken by counsel for the trespasser in any case in this court. It is not claimed here that the plaintiff has ceased to be the owner of the easements impaired, or that any other party has acquired title thereto, but it is argued that he has lost the right to employ the equitable power of the courts, by reason of his neglect to demand it within 10 years from the time when a cause of action accrued. Thus, although the wrongful acts may be continued and the owner subjected to irreparable injury, and his legal remedy may be either inadequate, or require that it should be sought through repeated and numerous actions at law, it is contended that the jurisdiction of an equity court shall be arrested at the very time when, in the interest of the public, the exercise of its power becomes the most apparent and necessary. This claim we think is altogether untenable. The right of abutting owners to damages for an invastio of their rights in the public streets is predicated upon the constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, or have his property takeen for public use without just compensation; and it necessarily follows that, so long as such person continues to be the owner of property and liable to be injured in respect thereto by the unlawful acts of others, he is entitled to invoke the protection of the fundamental law, without regard to the lapse of time that may occur before the commencement of legal proceedings, provided the remedy is claimed within the statutory period of limitation applicable to his legal right, or before adverse possession has barred his title to the property injured. Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536; Arnold v. Railroad Co., 55 N. Y. 661;Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. Rep. 427; Tallman v. Railroad Co., 121 N. Y. 123, 23 N. E. Rep. 1134. The cause of action, both at law and equity, in such cases, arises out of the trespasses committed, and is based on the ownership of the property upon which the injuries are inflicted, and it is obvious that no cause of action can be barred while there is an outstanding legal cause of action for which the party has a legal remedy. The existence of a legal cause of action is not only a prerequisite to the maintenance of the equitable action, but is also the foundation of the jurisdiction which equity courts possess in respect to the subject-matter. The questions presented have been so frequently considered and decided in this court, in analogous cases, adversely to the contention of the appellants, that they should no longer be the subject of controversy or debate. The learning and ability, however, with which the counsel for the appellants have pressed their case before us, have induced us to treat the questions argued at greater length than would otherwise have been though necessary or proper, and we therefore indicate, briefly, the general theory upon which this court has proceeded in the...