Jamieson v. Kings County El. Ry. Co.

• Decision Date: 29 October 1895
• Citation: 41 N.E. 693,147 N.Y. 322
• Parties: JAMIESON et al. v. KINGS COUNTY EL. RY. CO.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 322

41 N.E. 693

JAMIESON et al.

v.KINGS COUNTY EL. RY. CO.

Court of Appeals of New York.

Oct. 29, 1895.

Appeal from supreme court, general term, Second department.

Action by Ella G. Jamieson and another against the Kings County Elevated Railway Company to recover damages, with fee and rental value of plaintiffs' property, caused by the construction and operation of defendant's elevated railroad, and for an injunction. A judgment for plaintiffs was affirmed by the general term (26 N. Y. Supp. 127), and defendant appeals. Reversed.

W. A. Poste, for appellant.

J. Newton Fiero and Theo B. Gates, for respondents.

FINCH, J.

I do not think the fact, which is explicitly found, that the construction and operation of the defendant's elevated road has injured the fee value of plaintiffs' property only to the extent of one dollar, necessarily defeats the equitable right to an injunction, and so defeats the action. It is further found that the rental value has depreciated to a substantial extent, and for which damages were awarded. While it is true that usually the fee value rises or falls in proportion to the changes of rental value, that is not always or necessarily true, and cases are possible in which one remains stationary while the other changes. That is found to be the fact in the present case, and I think that proof of a substantial and continuing injury to the rental value will sustain the equitable action. The wrong done is in the nature of a continuing trespass, involving a multiplicity of actions. The appellant's suggestion is that the finding of an unchanged fee value raises a presumption that there will be no loss of rental value in the future, and so no occasion for further suits. To indulge in such a presumption would require us to shut our eyes to the lesson of the past taught by the proofs in respect to this property. I think the action was main tainable and the remedy by injunction a proper one.

But I think, also, that there was error in the admission of evidence which we cannot disregard. The plaintiffs sought to prove the evil effect of the road in diminishing values by the process of calling the owners of property in the vicinity, and proving, in each case, what the particular premises owned by the witness rented for before the road was built, and what thereafter. There were objections and exceptions. Such a process is not permissible. Each piece of evidence raised a collateral issue (Gouge v. Roberts, 53 N. Y. 619)...