Pappenheim v. Metro. El

• Decision Date: 13 October 1891
• Citation: 128 N.Y. 436,28 N.E. 518
• Parties: PAPPENHEIM v. METROPOLITAN EL., ETC., RY. CO.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 436

28 N.E. 518

PAPPENHEIM

v.METROPOLITAN EL., ETC., RY. CO.

Court of Appeals of New York.

Oct. 13, 1891.

Appeal from superior court of New York city, general term.

Action by Lena Pappenheim against the Metropolitan Elevated, etc., Railway Co. Judgment for plaintiff, and defendants appeal. Affirmed.

This action is brought to perpetually enjoin the defendants from operating their railway in Second avenue, between 120th and 121st streets, in the city of New York, in front of the plaintiff's premises, and to procure the structure already built there to be removed, and to recover from defendants the loss and damage already sustained by reason of the past operating of the defendants' railway in front of the plaintiff's premises, and, if the defendants shall be permitted to so operate their road in the future, that it shall be only upon condition that they first pay to the plaintiff the amount of the permanent loss and damage to her premises sustained by her by reason of such operation, and also the amount of her loss and damage already sustained. This is, in substance, the relief asked for by the plaintiff. The defendants, in their answer to the complaint, set up various defenses, the chief of which, and the one particularly argued and relied upon here, is that the railway was built in 1880, and has been in operation ever since, and, if any damage has been inflicted upon plaintiff's premises by the erection and operation of the railway, such damage was inflicted at the time it was so built and operated, and at that time the premises were owned and possessed by some other person, and the plaintiff was not then their owner, and is not the owner of the cause of action. The court found that the plaintiff, on the 23d of April, 1883, became the owner of the premises, and has ever since owned them, and since that time there has been a valuable building standing on them. Since that time the plaintiff has also owned, as attached or appurtenant to the premises, an easement of light, air, and access in and over Second avenue, and the only property rights of the plaintiff interfered with by the defendants are easements of light, air, and access therein appurtenant to the plaintiff's premises, and she is not seised of any estate in the land forming the bed of such avenue in front of her premises. The railroad had in fact been built and had been in operation along Second avenue for some years prior to the time when the plaintiff purchased, in 1883. She paid, according to some of the evidence, the fair market value of the lot with the railroad in the avenue. It was also proved that the plaintiff had sustained injuries by the construction and operation of the road from the time of her purchase to the trial of the action in the sum of $1,800, and that the value of the plaintiff's easement in fee taken, appropriated, or interfered with by reason of such construction and perpetual maintenance and operation of defendants' railway, over and above any benefits resulting therefrom and peculiar to the premises, was the sum of $2,000. It was also found that the defendants were authorized by certain acts of the legislature to exercise the right of eminent domain, and thus to acquire plaintiff's easement, if necessary, and defendants had like authority to build the railway in the streets in which it has been built; but there was nothing in the acts giving the defendants any authority to take plaintiff's property without compensation. The road has been built under the provisions of the so-called ‘Rapid Transit Act.’ Chapter 606, Laws 1875. Judgment was given for the plaintiff in accordance with the findings of the court, and it was provided that the injunction should not issue in case the defendants paid the amount of the damage to the fee upon the execution by plaintiff of a deed conveying to defendants plaintiff's interest in the easement taken by defendants. The judgment so entered was affirmed by the general term of the superior court of the city of New York upon appeal, (13 N. Y. Supp. 955;) and from the judgment of affirmance the defendants appeal here.

Julien T. Davies and Brainard Tolles, for appellants.

Charles Gibson Bennett, for respondent.

PECKHAM, J., ( after stating the facts as above.)

The structure erected by defendants in Second avenue, in front of the plaintiff's premises, was an illegal structure, and inconsistent with the use of the avenue as a public street. At the time of building the railway a trespass was committed by the defendants upon the property now owned by the plaintiff, although she did not own it at that time. Such trespass has been continued from the time when the road was built up to the time when the judgment in this action was entered. By continuing the trespass the defendants laid themselves open to continuous actions, in which the recovery would be for the damage sustained up to the time of the commencement of each action. These propositions are clear, and are now undisputed. They have been settled by the Story and the Uline Cases, so familiar to the court and the bar. 90 N. Y. 122; 101 N. Y. 98, 4 N. E. Rep. 536. As the structure is illegal, and as it constitutes while it exists a continuing trespass, the railroad company is under a legal obligation to remove it, and the law presumes that the company will do so.

In an action at law the owner of the property interfered with or trespassed upon cannot recover damages to his premises, based upon the assumption that such trespass is to be permanent. He can recover only the damages which he has sustained up to the commencement of the action. The judgment entered for the damages sustained does not operate as a purchase of the right to continue the trespass. But the owner may resort to equity for the purpose of enjoining the continuance of the trespass, and to thus prevent a multiplicity of actions at law to recover damages; and in such an action the court may determine the amount of damage which the owner would sustain if the trespass were permanently continued, and it may provide that upon payment of that sum the plaintiff shall give a deed or convey the right to the defendant, and it will refuse an injunction when the defendant is willing to pay upon the receipt of a conveyance. The court does not adjudge that the defendant shall pay such sum, and that the plaintiff shall so convey. It provides that, if the conveyance is made and the money paid, no injunction shall issue. If defendant refuse to pay, the injunction issues. It may be that, in the case of a railroad actually running its cars upon or through property of another, it would not be justified in refusing to pay upon the delivery of the conveyance, and, instead thereof, submitting to an injunction. Public interests might have a right to be heard in that respect. But it is enough to say that, in the cases where permanent damage is to be paid, there is a conditionthat a conveyance shall be made, and the defendant thus secures title to the property used. In cases where the owner wishes to actually stop the further trespass, and where the defendant has no legal right to acquire the property, such condition would not be inserted, and a strict injunction would issue upon the right of the owner being determined. Henderson v. Railroad Co., 78 N. Y. 423. The owner, if he receive the amount of the permanent damage, is by the court compelled to convey the interest to the defendant which the defendant pays for in that way. Condemnation proceedings are thus avoided. It is conclusively determined that the trespass is to be continuous, and defendant concedes it when it avails itself of the condition, and pays the permanent damage in order to receive the conveyance. It is only in this way that the owner recovers as for a permanent damage to his property.

In a case where the defendant has no power to condemn the property, if the owner in that event proceed in equity, he recovers only his damage up to the entry of the judgment, and at the same time secures an injunction which prevents the future trespass. If the owner sue at law, he recovers his damages as stated. If the owner, without having brought any suit in equity, sell his property at a loss caused by the erection of the railroad, the question at once arises as to what rights are acquired by the purchaser, and what claim, if any, has the vendor against defendant. The vendee has purchased and the vendor has sold to him, in fee-simple absolute, the premises fronting the street, to which premises are attached, as property passing to him by the conveyance, the easements of light, air, and access which the defendant has already interfered with and trespassed upon by the erection and operation of the road. Story v. Railroad Co., 90 N. Y. 122; Lahr v. Railway Co., 104 N. Y. 268, 10 N. E. Rep. 528; Kane v. Railroad Co., 125 N. Y. 164, 26 N. E. Rep. 278. The vendee finds the railroad making use of a portion of his property without right, and in the character of a mere wrong-doer. That use depreciates the value of the remaining part of the owner's property, and causes him daily damage. He institutes his action, either at law or in equity, to recover damages up to the time of the commencement of the action or permanently, and for an injunction, as the case may be, and, in answer to proof of ownership and daily or permanent damage, he is told by way of defense that the railroad company paid or is liable to pay to his vendor the difference between what the vendor sold the property for to him and what it could have been sold for if the railroad were not there, and therefore it has the right to continue the act which by such payment or liability has been changed from a trespass to a valid action. It is true that the railroad has not received any conveyance of any right to continue the trespass. On the contrary, the vendor conveyed to plaintiff the absolute fee-simple in the property, and all the ordinary rights of ownership passed with such...