Uline v. New York Cent. & H.R.R. Co.

• Citation: 101 N.Y. 98,4 N.E. 536
• Court: New York Court of Appeals
• Decision Date: 19 January 1886
• Parties: ULINE v. NEW YORK CENT. & H. R. R. CO.

101 N.Y. 98

4 N.E. 536

ULINE

v.NEW YORK CENT. & H. R. R. CO.¹

Court of Appeals of New York.

Filed January 19, 1886.

DANFORTH, J., dissenting.

Matthew Hale, for appellant.

A. J. Parker, for respondent.

EARL, J.

Colonie street runs at right angles with and crosses Broadway, in the city of Albany, and the defendant's railroad crosses the two streets diagonally at the place of their intersection, and had crossed there for at least 40 years before the trial of this action. The plaintiff owned three houses and lots contiguous to each other, situate on the northerly side of Colonie street, and easterly of Broadway and of the railroad. The lot numbers are 85, 83, and 81, numbered in this order from Broadway. Lots 85 and 83 extend only to the northerly side of Colonie street, while lot 81 extends to the center thereof. When the railroad was originally built, the two streets were somewhat raised. About the year 1874, two additional tracks were laid upon the defendant's road where it crossed the two streets, one of which was upon the easterly side thereof, and the road-bed was raised at its intersection with Broadway from two and a half to three feet. It does not appear that either of the tracks, or any part of the road-bed, was upon any of plaintiff's land, or that she received any damage whatever from them. But, to accommodate the grade of Colonie street to the grade of the railroad, it became necessary to raise the street and sidewalks thereof, and the consequence was that the street and sidewalk in front of plaintiff's lots were elevated about one foot, and all the damage of which plaintiff complains was caused by this elevation. She alleged in her complaint that her lots extended to the center of the street; that the defendant entered upon her property, (meaning her property in the street,) and tore up the pavement, raised the street, sidewalks, and gutters, and so shaped the street and gutters as to pour the water therefrom down over the sidewalk into the basements of her houses, by means of which her premises were made liable to be flooded with water, and had been flooded with water, and were rendered damp, unhealthy, and inconvenient of access, and her property therein had been injured, and the rental value and the value thereof greatly depreciated.

Many exceptions were taken at the trial on behalf of the defendant, which its counsel argued before us, and relied upon for a reversal of the judgment. But I shall notice those only which have reference to the rule of damages laid down by the trial judge. Upon the trial it was claimed, on behalf of the defendant, that the plaintiff could recover only such damages as she had sustained up to the commencement of the action. On the contrary, her counsel claimed that she could recover damages upon the theory that the embankment placed in the street in front of her lots was to be permanent, and that thus it was a permanent injury to her lots, and so the law was ruled by the trial judge.

A witness for the plaintiff was asked this question: ‘What, in your judgment, was the value of these lots 81, 83, and 85 Colonie street before the grade was raised?’ This was objected to by defendant's counsel as immaterial and incompetent, and the objection was overruled, and the witness answered that each lot was worth $3,000, and was worth less after the change. Then he was asked this question: ‘How much would it be worth since the change in the street?’ This was objected to by defendant's counsel on the grounds that it was immaterial and incompetent; that a change of market value between 1874 and that time was no evidence of damages in this action; that the question assumes that the damage was permanent; that the proper measure of damages was any injury to the rental value of the premises prior to the commencement of the suit and the cost of restoring the street to its former condition; and that there was nothing in the complaint or in the evidence which rendered material any evidence as to the market value of the property either before or after the alleged wrongful act. The trial judge ruled that he would allow the plaintiff to prove how much the rental of the property had been impaired down to the commencement of the action, and the actual injuries which the property had sustained by the flow of the water into, upon, and against it by reason of the change of the grade of the street by the defendant; and to this ruling plaintiff's counsel excepted. Subsequently, upon further argument on the next day, the judge reversed his ruling, and, among other things, said:

‘Yesterday an inquiry was made of counsel as to the act of the defendant in constructing the additional tracks, and in raising the bed of the road. I understood it to be conceded that the act was a pure trespass; that the dumping of the ground in the street was a trespass; and that the construction of the tracks was a trespass, and the running of the cars was a trespass,-and I therefore held that no court would be justified in assuming that an act of that character would be permanent; therefore that the permanent depreciation in value of the property could not be the basis of the damages, but only the depreciated rental during the time of the continuance of the trespass up to the time of the beginning of the suit, and the actual injury which the flooding had done to the property. I think, if these facts be conceded, that the plaintiff can only recover the rental which she had lost, and the actual injury to the premises down to the time of the bringing of the suit.’

He then called attention of the complaint, and said that it did not charge that the defendant's acts were illegal, or that they were a pure trespass upon the street, and that the pleadings showed that the acts were legally done by the defendant under its charter; and, further:

‘If that proposition be sound, how can the court act upon an assumption that here was a mere trespass committed by the railroad company upon a street which they had no right to do? My decision yesterday rested upon an assumption that, purely and simply, here was a trespass committed upon the street which the company had no right to commit, and which, because a trespass, the court could not assume would be of a permanent character. Upon that supposition, and upon that theory, it was held that the plaintiff could not recover as for a permanent injury to the property, but must be limited in her recovery to the damages which she had sustained by a loss of rental up to the time of bringing the action, and to the actual injury done to the property.’

Plaintiff's counsel stated that ‘they had never claimed this was a case of mere trespass; that, as to two of the lots, they did not own the soil in the street, and it could not be a trespass.’ The trial judge then held that, because the acts of the defendant in the street were not illegal or unlawful, and therefore not a trespass, they might be regarded as of a permanent nature, and that the plaintiff could therefore recover for the permanent injury done to her property; and he overruled defendant's objection to the question; and the witness answered that each lot, immediately after the change, was worth about $1,500. Similar questions put by plaintiff's counsel to other witnesses were objected to by defendant's counsel. The objections were overruled, and the witnesses answered in substantially the same manner. Evidence offered by the defendant to show how much it would cost to restore the street to its former condition was, on the objection of the plaintiff, excluded.

At the close of all the evidence defendant's counsel moved for a nonsuit upon the following grounds:

‘(1) That no title has been proved in plaintiff in the property in question; (2) there is no proof of any interference by defendant with property in question; (3) plaintiff has failed to make out a cause of action; and upon the further ground there is no proof of any unlawful or illegal interference by defendant with the property in question.’

The trial judge said: ‘I agree with you; there is no proof of any illegal interference. That involves another very grave question,-I concede that;’ and he denied the motion, and defendant's counsel excepted.

The judge charged the jury that the plaintiff could recover, for the permanent injury to her property, the diminished market value thereof. He was requested by defendant's counsel to charge as follows:

‘If the jury believe that the act of the defendant in raising the street was not unlawful, but was by the permission of the city of Albany, then the defendant is not, under the proof, liable to plaintiff for any injury done to the plaintiff by reason of such grade.’

The judge replied: ‘I decline to charge that. I admit that involves a very difficult problem of law.’

Defendant's counsel also asked him to charge:

‘If the jury believe such acts were done without the permission of the city, and were unlawful, then the measure of damages would be the actual injury sustained by plaintiff before the commencement of this action, including the loss of rent and the injury to the use and enjoyment of the property before the commencement of the action, if any.’

And the judge said:

‘I decline to charge that, because there is no proof one way or the other upon the question. Whether there was an authorized or unauthorized act, there is no presumption in favor of the trespass.’

Defendant's counsel further asked the judge to charge ‘that upon the evidence the jury will not be justified in rendering a verdict for the supposed difference in market value in the premises before and after the act in question,’ and he refused so the charge; and to all the refusals defendant's counsel excepted. The judge then said: ‘For the purpose of presenting that question sharply, I neglected to charge, as I shall do now, that the plaintiff can recover the difference in the rental value of the property, provided you find that the act of the defendant has impaired...