The New York and Brooklyn bridge, erected and maintained by legislative authority, was so constructed that the passage of horses and vehicles thereover caused the planks of which the flooring thereof was built to splinter and pulverize, and large quantities of splinters and pulverized wood collected on the bridge and fell therefrom onto the roof of a building situated about 20 feet distant from the entrance to the bridge. Water and snow accumulated on the bridge, and the same mingled with the splinters and pulverized wood and fell on such building. There was nothing to show negligence either in the construction or the maintenance of the bridge. Held, that the injuries sustained to the building were consequential and not recoverable.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Annie M. Sadlier and another against the city of New York. From a judgment of the Appellate Division (93 N. Y. Supp. 579), reversing a judgment for plaintiffs entered on a decision of the court after trial at Special Term (81 N. Y. Supp. 308), they appeal. Affirmed.

The action is brought for equitable relief, and judgment is demanded that the defendant be perpetually enjoined and restrained from so maintaining and using the bridge over the East river from the borough of Manhatten to the borough of Brooklyn, N. Y., as to cause and allow or permit water, splinters, or débris, or matter of any kind to fall upon plaintiffs' real property, except on the condition that it purchase and pay for plaintiffs' property, or, if the parties cannot agree upon the price therefor, that the defendant acquire the same by condemnation proceedings, and that the defendant pay the plaintiff $25,000 damages. The defendant, in swer to the complaint of the plaintiffs, alleged, among other things, that said bridge is a public highway maintained and operated with full legislative and municipal authority, and that the acts complained of by the plaintiffs have been done in the performance of a public duty and by legislative authority. By stipulation of the parties the issues were noticed for and tried at a Special Term of the Supreme Court, and the court found that the plaintiffs are the owners of certain real property with a three-story brick building thereon in the borough of Brooklyn, and

78 N.E.-18

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that said bridge is owned and maintained by the defendant across the East river, and that the northerly line of the plaintiffs' real property is 20 feet south of a line falling vertically from the southerly side of said bridge, and that said bridge is about 80 feet higher than the roof of the plaintiffs' building, and it further found: "Fifth. That said bridge and the roadways thereof are so constructed that the passage of horses and vehicles thereover causes the boards and planks of which the flooring thereof is built to chip, splinter, tear off in shreds, and pulverize, and large quantities of such chips, shreds, and splinters and pulverized wood collect and are allowed to collect thereon and are swept and fall therefrom onto the roof of said building. Sixth. That water and snow accumulate on the wagon road of said bridge, and on the southerly side thereof, and mingling with the said chips, shreds, splinters, and with filth, refuse, and manure thereon, form muck, slush, and filth, which flows and falls onto the roof and against the sides and windows of said building, the side of the said bridge not being inclosed, guarded, or provided with a gutter to prevent it. Seventh. That in the use and operation of said bridge there flows and falls on the roof, sides, and windows of said building from the southerly side of said bridge and from the point over or adjacent to the said building large quantities of mud, filth, and manure, and also dust, splinters, chips, shreds, and waste from the planks of which the roadway is constructed, and that by reason of the falling of such mud, filth, and manure the windows and skylights of said building are dirtied and rendered dark, and the light is prevented from entering said building as fully as it otherwise would, and that by reason of the refuse, waste, dirt, splinters, chips, shreds, etc., which fall on the roof of said building, and of the large quantities thereof which are cast upon and cover the said roof, the waste pipes leading from such roof become clogged and stopped up and fail to carry off the water therefrom, and by reason thereof the water accumulates on the roof of such building and overflows the skylights and ventilators and floods the same. Eighth. That the various acts above set forth have continued without intermission, either in a greater or less degree, from the time such building was constructed, and that they are still continuing. Tenth. That the casting or falling of such material and articles before mentioned upon said building is a direct trespass upon and injury to the plaintiffs' said property. Twelfth. That the plaintiffs have been damaged from the time said building was erected up to January, 1902, by reason of the facts and conditions above set forth, in the sum of twelve hundred dollars. Thirteenth. That the permanent damage which the plaintiffs have sustained to this building by reason of the facts and conditions above set forth should not now be assessed, although the defendant claims

its continuance is unavoidable if the bridge is to continue to be used, but the plaintiffs should be left to bring a new action if such trespass and nuisance continue, and have the permanent damage then assessed if it be meet."

The court found as conclusions of law as follows: "First. That the plaintiffs are entitled to have the use of said building undiminished by the defendant in the manner aforesaid. Second. That the acts stated above, namely, the permitting of filth, slush, mud, manure, refuse, dust, splinters, chips, shreds, etc., to fall, be blown, swept, or thrown against and upon the plaintiffs' building and the windows and skylights and skylights thereof, is a direct trespass against the said property of the plaintiffs, and an interference with and diminution of the use of said property, depriving them of the full use thereof. Third. That the plaintiffs have suffered damages from the time said building was erected up to the 1st day of January, 1902, in the amount of $1,200, which damages arise from the causes above stated. Fourth. That such damages above stated which the plaintiffs have sustained are from direct injuries to their property, and not from consequential injuries. Fifth. That by reason of the facts hereinbefore stated the plaintiffs are entitled to judgment against the defendant in the sum of $1,200, with interest thereon from the 1st of January, 1902, for past damages; the question of fee or permanent damage not being now assessed, but the plaintiffs being left to another action and to have their permanent damage assessed if the trespass and direct injury to their property continues."

Judgment was thereupon entered in favor of the plaintiffs against the defendant accordingly. An appeal was taken to the Appellate Division, where said judgment was reversed. The reasons for the reversal, as stated in the opinion of the court, are that the court had no power to award the plaintiffs damages, except as a part of a judgment granting injunctive relief, and that the court in directing judgment for the plaintiffs took into consideration consequential injuries and damages, for which the defendant is not liable to the plaintiffs and for which they have no legal remedy. Further facts appear in the opinion.

Jesse W. Johnson, for appellants. John J. Delany, Corp. Counsel (James D. Bell, of counsel), for respondent.

CHASE, J. (after stating the facts). Where a trespass is of a continuous nature, a person has a right to invoke the restraining order of a court of equity to prevent the same, and in an action, for that purpose the court can, and should, grant all the relief that the nature of the action and the facts demand. In this case we will first assume that the complaint alleged facts justifying the relief which the plaintiffs demanded, that they established the allegations

of their complaint on the trial, and that the court found the facts in accordance with plaintiffs' contention and which entitled the plaintiffs to equitable relief. Should the judgment have been reversed simply because the court for special reasons refrained from granting the plaintiffs all the relief to which they were entitled? We do not see how the defendant was aggrieved. There is only one form of civil action. The distinction between actions at law and suits in equity and the forms of those actions have been abolished. Code Civ. Proc. § 3339. All that a plaintiff has to do in any case is to set forth in his complaint a clear, concise, and unequivocal statement of the facts constituting his cause of action, and a demand of the judgment to which he supposes himself entitled. Code Civ. Proc. § 481. The inherent, fundamental differences between actions at law and actions for equitable relief, such as determine whether a trial of the action by jury is a matter of right and otherwise affect the interests of litigants, have not been and cannot be abolished. For such reason, and for the very simple reason that a person must in his complaint, as we have seen, state the facts constituting his cause of action, a plaintiff who brings an action for equitable relief must establish such cause of action, or his complaint should be dismissed. It is therefore frequently held that damages, as in an action at law, cannot be given in an action in equity where the plaintiff has failed to establish his right to equitable relief. It does not follow that, where a plaintiff has established a cause of action entitling him to equitable relief, a judgment rendered by the court for past damages alone is wholly unauthorized and erroneous where for reasons special and peculiar to the action the court in its discretion, or arbitrarily, refrains from granting the equitable relief to which, from the facts found, the plaintiff was entitled. It is said in Pomeroy's Equity Jurisprudence (2d Ed.) § 237: "It may be stated, therefore, as a general proposition that a court of equity declines the jurisdiction to grant mere compensatory damages when they are not given in addition to or as an incident of some other special equitable relief, unless under special circumstances the exercise of such jurisdiction may be requisite to promote the ends of justice. There are, however, special circumstances in which the principle under discussion is invoked and is extended to the award of mere damages." Instances may be mentioned, such as in actions for specific performance, where it is found on the hearing that the relief prayed for is impracticable, or in an action in the nature of a creditor's bill where it is ascertained upon the hearing that property fraudulently transferred has been conveyed to an innocent purchaser. Instances of judgment being rendered in such actions for money

damages only are numerous. These cases are mentioned simply to show that a grant of equitable relief is not indispensable when the action is properly brought, and the facts upon which equitable relief is claimed are established, but where through special circumstances money damages only are given not because the plaintiff has improperly brought his action in equity, but because of such special circumstances.

If we assume that during the trial of this action the defendant had wholly removed the bridge, the relief which the court could have given would have depended upon such condition of things existing at the close of the trial. Miller v. Edison Elec. Ill. Co., 184 N. Y. 17. 76 N. E. 734. An injunction restraining the use of the great highway across the East river may to the court have seemed unnecessary and drastic, although the plaintiffs were upon equitable principles entitled thereto. The court, by its findings of fact and conclusions of law, recognize the plaintiffs' right to permanent or fee damages if the trespasses are continued. The decision in W. U. Tel. Co. v. Syracuse El. L. & P. Co., 178 N. Y. 325, 70 N. E. 866, holds in conformity with previous decisions of the court that unless a person bringing an action in equity establishes such cause of action his complaint should be dismissed. The court say: "The object of the action was to restrain an alleged trespass which is not permitted except under peculiar circumstances not shown to exist in this case." The form of judgment does not necessarily determine whether an action is one at law or in equity. Baily v. Hornthal, 154 N. Y. 648, 661, 49 N. E. 56, 61 Am. St. Rep. 645. If a plaintiff in his complaint alleges facts which give the court jurisdiction in equity, and he establishes such facts on the trial, he alone should complain if the court fails to grant him all the relief to which he is entitled. There is, however, a more serious objection to sustaining the judgment of the Special Term that goes to the right of the plaintiffs to recover from the city for all of the alleged wrongs stated in the findings quoted. The bridge is a public highway, erected and maintained by legislative and municipal authority. The plaintiffs' property is located opposite a point in the easterly approach to that part of the bridge spanning the river. The authority and duty of the defendant to erect and maintain the bridge in question and its approaches is conceded. The plaintiffs are not even abutting owners of the highway so maintained by the defendant. The real property which they assert has been damaged is not under the bridge and does not adjoin lands under the bridge. Their real property is part of the property of their ancestor remaining after the defendant had taken from him a strip 20 feet wide on the southerly side of a line drawn vertically from the southerly side of said bridge. There is no finding that

the bridge was not properly erected, or that it is negligently maintained.. We quote with approval from the opinion of the Appellate Division herein, as follows: "The authorities are clear that some of the acts complained of may constitute trespass, which, if committed in the administration of the bridge, cast liability upon the defendant irrespective of any question of its negligence. Lambert v. Besey, Sir T. Raym. 421; Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258; Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321, 54 Am. Rep. 664; Huffmire v. City of Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421. The fact that the Legislature authorized the bridge, and that it was constructed within such authority, does not shield the defendant from liability in such a case.

I do not believe that the defendant with impunity can sweep débris off the bridge so that when thus cast off into the currents of the air it falls upon the premises of the plaintiffs."

Where a municipality sweeps or throws water, snow, dirt, or refuse upon the real property of others, or gathers the same at one point that they may be discharged upon such real property of others, the injury occasioned thereby is direct, and not consequential. But the lawful maintenance of a public highway results in certain consequential injuries that are not actionable. The maintenance of a public highway at grade necessarily and unavoidably results in some annoyance and injury, as well as convenience and advantage to abutting landowners. Owners of abutting land and owners of land in the vicinity of highways are to some extent affected by noise thereupon and by dust, dirt, and particles of the material with which the highway is surfaced, being blown upon their property and on and into the buildings erected thereon. Surface water from highways, which is always more or less polluted by mud and refuse with which it mingles on such highways, runs upon the adjoining land. If it so happens that the adjoining lands are lower than the highway the annoyance and injury occasioned by the dirt and surface water from the highway is increased, and the greater the depression of the surrounding lands the greater the extent of the consequential annoyance and injury. The grade of a street may be changed under lawful authority to make the same lower or higher than that of the lands of abutting owners without liability for consequential damages, unless provision is made by statute therefor. Radcliff's Ex'rs v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357. This court, in Lynch v. Mayor, etc., of N. Y., 76 N. Y. 60, 32 Am. Rep. 271, were considering a case where the city of New York had caused the grade of an avenue to be raised 20 feet above

the surface of the adjoining lands without providing any means for carrying off the rain water which fell upon the avenue or to prevent such water from draining upon the adjoining lands, and said: "The defendant had at least as much right to fill up and raise this avenue as a private owner of a city lot has to fill up and improve his lot, and there can be no question that such an owner may fill up his lot and build upon it, and the surface water of adjoining lots may thus be prevented from flowing upon it, or the surface water may be thrown from it upon' adjoining lots, and flow upon them in a different way and in larger quantities than before, and yet no liability would arise. If it were otherwise it would be quite difficult to improve city lots and build up a city. Each owner may improve his lot and protect it from surface water. He may not collect such water into a channel and throw it upon his neighbor's lot. But he is not bound for his neighbor's protection to collect the surface water which falls upon his lot and lead it into a sewer."

So far as the facts relating to the maintenance of the bridge in question and its approaches will permit, the rules of law relating to the maintenance of a public highway are applicable to it. The plaintiffs, however, are not abutting owners. The approach to the bridge is not an elevated structure built over a highway maintained at grade, but at least at the point opposite the plaintiffs' lands it is built over other lands owned by the defendant which are not directly used for highway purposes, and as we have seen the defendant has taken from the plaintiffs' ancestor the lands immediately between the lands under the bridge and those now owned by the plaintiffs. The decisions of the courts relating to the rights of owners of lands abutting on streets at grade, upon which elevated structures have been erected by or for elevated or other railroads, are based upon facts entirely different from those appearing in this case, and such decisions are not applicable to this case. A private owner of land may build on and over the same without liability for all of the annoyance and consequential injury that may be thereby occasioned to his neighbor. The liability of the defendant to the plaintiffs should not in any event exceed the liability of an individual and private owner in the maintenance of a similar structure over land owned by him. When, in the exercise of governmental powers and under express legislative authority, a city erects and maintains a bridge or elevated structure necessary for carrying out a public purpose, no liability is incurred by the city for injuries to others, unless it enters upon and takes private property or easements belonging thereto or connected therewith for public purposes, or unless by negligence and lack of care in the performance of the work in erecting or in the maintenance of the bridge or structure, or by reason of some

other affirmative act, a direct injury is thereby occasioned.

The learned justice at Special Term recognized and asserted the rule that the defendant is not liable for consequential damages arising from the maintenance of the bridge, but, we think, in his application of the rule to the facts in this case he wholly fails to confine the award for damages to injuries that are direct and not consequential. The judgment in this case is based upon findings of fact which state indiscriminately that the substances therein named are swept, blown, and fall upon the plaintiffs' property, and the conclusions of law state without reservation, in substance, that the plaintiffs recover of the defendant for permitting such substances to fall, be blown, swept, or thrown against and upon the plaintiffs' building. The findings and conclusions of law clearly include damages for consequential injuries for which the defendant is not liable. As the judgment in favor of the plaintiffs obtained at the Special Term cannot be sustained, it is not deemed wise at this time to further discuss and define the liability of the city, if at all, for specific and specified acts heretofore done or allowed in the maintenance of the bridge.

The order of the Appellate Division should be affirmed, and judgment absolute ordered on stipulation, against the appellants, with costs in all the courts.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, and HISCOCK, JJ., concur. GRAY and O'BRIEN, JJ., absent.

Ordered accordingly.

(185 N. Y. 335) HINDLEY v. MANHATTAN RY. CO. et al. (Court of Appeals of New York. June 12, 1906.)

1. EASEMENTS EASEMENTS APPURTENANT TO LOT ABUTTING ON STREET-NATURE.

The easements of light, air, and access appurtenant to a lot abutting on a street are not coterminous with the street, but in the absence of special circumstances are confined to that portion of the street which is directly in front of the lot.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Easements, §§ 95, 101.]

2. SAME ADVERSE POSSESSION EVIDENCE

ADMISSIBILITY.

Where, in an action by an abutting owner against an elevated railroad for injuries to his easements of light, air, and access, the railroad pleaded a prescriptive right to maintain the road, evidence of settlements made by the railroad with other owners not connected with the abutting owner, except that of mere location on the street, was inadmissible as showing that the railroad's possession of the easements was not founded on prescription. 3. EVIDENCE-ADMISSIONS.

An abutting owner sued an elevated railroad for damages to his easements of light, air. and access. The road was constructed in 1879, and had been in continuous operation for over 20 years. In 1900 and 1901, the railroad,

through its vice president, presented petitions praying for reductions of its franchise taxes. The petitions recited that the railroad had paid a specified sum for damages to abutting owners, and that on the assumption of being able to make as favorable settlements in the future about $8,000,000 more would be required to obtain the unobstructed right to exercise its franchise. Held, that the petitions were not admissions that a prescriptive right to the easements had not attached, and were inadmissible as showing that the railroad intended to assert that it had no defense founded on prescription to a claim presented by the abutting owner for damages to his easements.

4. APPEAL-HARMLESS ERROR-ERRORS IN ADMISSION OF EVIDENCE.

Where it is manifest that evidence improperly received did not affect the result, a judgment will not be reversed, while, if there is not enough competent evidence to sustain a judgment, the errors in admitting improper evidence require a reversal.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4153-4160. 5. SAME.

In an action by an abutting owner against an elevated railroad for injuries to his easements of light, air, and access, the railroad pleaded a prescriptive right to maintain the road, and showed that the road was constructed in 1879 and had been maintained for over 20 years. The railroad, in 1900 and 1901, presented petitions praying for reductions of its franchise taxes. The petitions recited that it had paid a specified sum as damages to abutting owners and would be required to pay in the future about $8,000,000 more to obtain the unobstructed right to exercise its franchise. There was no other evidence justifying a finding that a prescriptive right to the easements did not exist. Held, that the error in admitting the petitions in evidence as showing the nonexistence of a prescriptive right was reversible.

6. EASEMENTS-ADVERSE POSSESSION-POSSESSION UNDER COLOR OF TITLE.

A grant by a city to a railroad of the right to erect, maintain, and operate an elevated road in a street gives to the railroad the apparent authority to appropriate the easements of light, air, and access appurtenant to the lots abutting on the street, and is color of title on which the railroad may acquire a prescriptive right to the easements, though the city had no power to transfer the easements. 7. SAME-ADVERSE ENTRY.

A city granted to a railroad the right to erect, maintain, and operate an elevated road in a street. The railroad erected and operated an elevated road, without leave or license from an abutting owner. The elevated road interfered with the abutting owner's easements of light, air, and access. Held, that the possession taken by the railroad was open, hostile, and exclusive, ripening into a prescriptive right by lapse of time.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, §§ 23, 24.] 8. SAME.

A city granted to a railroad the right to erect, maintain, and operate an elevated road in a street. Pursuant to the grant, the railroad constructed the road and for over 20 years continued to operate the same. The maintenance and operation of the road interfered with the easements of light, air, and access belonging to an abutting owner. Held, that the daily trespass committed by the railroad in daily operating the road was but a continuation of the original taking of possession, and did not prolong the prescriptive period necessary for the acquisition of the easements by prescription.

9. SAME.

Where an elevated railroad entered into possession of easements of light, air, and access belonging to an owner abutting on a street, under the mistaken belief that it owned the easements by virtue of a grant by a city to it of the right to erect, maintain, and operate a road in the street, the taking of the easements was adverse.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John H. Hindley against the Manhattan Railway Company and another. From a judgment of the Appellate Division (93 N. Y. Supp. 53, 103 App. Div. 504), affirming a judgment for plaintiff entered on a decision after a trial at Special Term (85 N. Y. Supp. 561), defendants appeal. Reversed, and new trial ordered.

This action was commenced on the 22d of July, 1901, by an abutting owner on the west side of Sixth avenue in the city of New York, to recover damages from the defendants, as the owners and operators of an elevated railroad in said avenue, for an unlawful interference with his easements of light, air, and access, and also to restrain the defendants from further maintaining or operating said road. The complaint was in the usual form in such cases, and the answer also, except that the defendants pleaded as a defense a prescriptive right to maintain their railroad, founded upon open, continuous, and hostile occupation for a period of more than 20 years before the commencement of the action. It was alleged in the complaint, and admitted by the answer, that the elevated road in question was constructed in 1879, and that it has been maintained ever since in the avenue in front of the plaintiff's premises; that it is in the nature of a long iron trestle, extending lengthwise through the street, built by erecting foundations of brick or stone embedded in the earth, with iron columns about 20 feet high resting thereon and supporting a frame of girders and cross-girders, upon which two sets of railroad tracks are laid, and that since the construction of the road it has been operated as a passenger railway by means of locomotives drawing trains of cars upon the elevated structure every day up and down in front of the premises of the plaintiff. The trial court found the facts substantially as alleged in the complaint, and found, as a fact, that the defendants had no prescriptive right to maintain or operate their road in Sixth avenue in front of the plaintiff's premises. The damages already accrued were assessed at the sum of $1,534.65 and judgment was directed therefor against the defendants. The damages to accrue from the permanent operation of the road were assessed at the sum of $3,000 and an injunction was awarded against further maintenance or operation unless the defendants should pay that amount to the plaintiff within forty days after notice of judgment. The Appellate Division unan