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to grant him all the relief to which he is en- that said bridge is owned and maintained titled.

by the defendant across the East river, and [Ed. Note.For cases in point, see vol. 2, that the northerly line of the plaintiffs' real Cent. Dig. Appeal and Error, $$ 947, 950.]

property is 20 feet south of a line falling ver6. MUNICIPAL CORPORATIONS - TORTS-EXERCISE OF GOVERNMENTAL POWERS—CARE OF

tically from the southerly side of said bridge, BRIDGES.

and that said bridge is about 80 feet higher Where, in the exercise of governmental than the roof of the plaintiffs' building, and powers and under legislative authority, a city

it further found: "Fifth. That said bridge erects and maintains a bridge, no liability is incurred for injuries to others, unless it enters

and the roadways thereof are so constructed on and takes private property or easements

that the passage of horses and vehicles thereconnected therewith for public purposes, or over causes the boards and planks of which unless, by negligence in the performance of

the flooring thereof is built to chip, splinter, the work in erecting or maintaining the bridge, a direct injury is occasioned.

tear off in shreds, and pulverize, and large [Ed. Note. For cases in point, see vol. 36,

quantities of such chips, shreds, and splinters Cent. Dig. Municipal Corporations, 88 1547– and pulverized wood collect and are allowed 1549.]

to collect thereon and are swept and fall 7. SAME.

therefrom onto the roof of said building. The New York and Brooklyn bridge, erect- Sixth. That water and snow accumulate on ed and maintained by legislative authority, was so constructed that the passage of horses and

the wagon road of said bridge, and on the vehicles thereover caused the planks of which southerly side thereof, and mingling with the the flooring thereof was built to splinter and pul- said chips, shreds, splinters, and with filth, reverize, and large quantities of splinters and pulverized wood collected on the bridge and fell

fuse, and manure thereon, form muck, slush, therefrom onto the roof of a building situated

and filth, which flows and falls onto the roof about 20 feet distant from the entrance to the and against the sides and windows of said bridge. Water and snow accumulated on the

building, the side of the said bridge not bebridge, and the same mingled with the splinters

ing inclosed, guarded, or provided with a and pulverized wood and fell on such building. There was nothing to show negligence either gutter to prevent it. Seventh. That in the in the construction or the maintenance of the use and operation of said bridge there flows bridge. Held, that the injuries sustained to the

and falls on the roof, sides, and windows building were consequential and not recoverable.

of said building from the southerly side of

said bridge and from the point over or adAppeal from Supreme Court, Appellate Di

jacent to the said building large quantities vision, Second Department.

of mud, filth, and manure, and also dust, Action by Annie M. Sadlier and another

splinters, chips, shreds, and waste from the against the city of New York. From a

planks of which the roadway is constructed, judgment of the Appellate Division (93 N.

and that by reason of the falling of such mud, Y. Supp. 579), reversing a judgment for plain

filth, and manure the windows and skylights tiffs entered on a decision of the court after

of said building are dirtied and rendered trial at Special Term (81 N. Y. Supp. 308),

dark, and the light is prevented from entering they appeal. Affirmed.

said building as fully as it otherwise would, The action is brought for equitable re- and that by reason of the refuse, waste, dirt, lief, and judgment is demanded that the de- splinters, chips, shreds, etc., which fall on the fendant be perpetually enjoined and restrain- roof of said building, and of the large quaned from so maintaining and using the bridge tities thereof which are cast upon and cover over the East river from the borough of Man- the said roof, the waste pipes leading from hatten to the borough of Brooklyn, N. Y., such roof become clogged and stopped up as to cause and allow or permit water, splin- and fail to carry off the water therefrom, ters, or débris, or matter of any kind to fall and by reason thereof the water accumulates upon plaintiffs' real property, except on the on the roof of such building and overflows condition that it purchase and pay for plain- the skylights and ventilators and floods the tiffs' property, or, if the parties cannot agree same. Eighth. That the various acts above upon the price therefor, that the defendant set forth have continued without intermisacquire the same by condemnation proceed- sion, either in a greater or less degree, from ings, and that the defendant pay the plaintiff the time such building was constructed, and $25,000 damages. The defendant, in that they are still continuing. Tenth. That swer to the complaint of the plaintiffs, alleged, the casting or falling of such material and among other things, that said bridge is a articles before mentioned upon said building public highway maintained and operated is a direct trespass upon and injury to the with full legislative and municipal authority, plaintiffs' said property. Twelfth. That the and that the acts complained of by the plain- plaintiffs have been damaged from the time tiffs have been done in the performance of a said building was erected up to January, public duty and by legislative authority. By 1902, by reason of the facts and conditions stipulation of the parties the issues were above set forth, in the sum of twelve hunnoticed for and tried at a Special Term of dred dollars. Thirteenth. That the permathe Supreme Court, and the court found that nent damage which the plaintiffs have susthe plaintiffs are the owners of certain real tained to this building by reason of the facts property with a three-story brick building and conditions above set forth should not now thereon in the borough of Brooklyn, and be assessed, although the defendant claims

78 N.E.-18

an

its continuance is unavoidable if the bridge of their complaint on the trial, and that is to continue to be used, but the plaintiffs the court found the facts in accordance with should be left to bring a new action if such plaintiffs' contention and which entitled the trespass and nuisance continue, and have the plaintiffs to equitable relief. Should the permanent damage then assessed if it be judgment have been reversed simply be meet.”

cause the court for special reasons refrained The court found as conclusions of law as

from granting the plaintiffs all the relief to follows: "First. That the plaintiffs are en- which they were entitled? We do not see titled to have the use of said building un- how the defendant was aggrieved. There diminished by the defendant in the manner is only one form of civil action. The disaforesaid. Second. That the acts stated tinction between actions at law and suits in above, namely, the permitting of filth, slush, equity and the forms of those actions have mud, manure, refuse, dust, splinters, chips, been abolished. Code Civ. Proc. § 3339. shreds, etc., to fall, be blown, swept, or All that a plaintiff has to do in any case is thrown against and upon the plaintiffs' to set forth in his complaint a clear, conbuilding and the windows and skylights

cise, and unequivocal statement of the facts thereof, is a direct trespass against the said constituting his cause of action, and a deproperty of the plaintiffs, and an interfer- mand of the judgment to which he supence with and diminution of the use of said

poses himself entitled. Code Civ. Proc. $ 481. property, depriving them of the full use

The inherent, fundamental differences bethereof. Third. That the plaintiffs have

tween actions at law and actions for eqsuffered damages from the time said building

uitable relief, such as determine whether was erected up to the 1st day of January,

a trial of the action by jury is a matter of 1902, in the amount of $1,200, which damages

right and otherwise affect the interests of arise from the causes above stated. Fourth.

litigants, have not

not been and cannot be That such damages above stated which the

abolished. For such reason, and for the very plaintiffs have sustained are from direct in

simple reason that a person must in his comjuries to their property, and not from consequential injuries. Fifth. That by reason

plaint, as we have seen, state the facts con

stituting his cause of action, a plaintiff who of the facts hereinbefore stated the plaintiffs are entitled to judgment against the defend

brings an action for equitable relief must

establish such cause of action, or his comant in the sum of $1,200, with interest there

plaint should be dismissed. It is therefore on from the 1st of January, 1902, for past damages; the question of fee or permanent dam

frequently held that damages, as in an action

at law, cannot be given in an action in age not being now assessed, but the plaintiffs being left to another action and to have their

equity where the plaintiff has failed to estab

lish his right to equitable relief. It does permanent damage assessed if the trespass and direct injury to their property continues."

not follow that, where a plaintiff has estabJudgment was thereupon entered in favor

lished a cause of action entitling him to eqof the plaintiffs against the defendant accord

uitable relief, a judgment rendered by the ingly. An appeal was taken to the Appellate

court for past damages alone is wholly unDivision, where said judgment was reversed.

authorized and erroneous where for reasons The reasons for the reversal, as stated in

special and peculiar to the action the court the opinion of the court, are that the court

in its discretion, or arbitrarily, refrains from had no power to award the plaintiffs dam- granting the equitable relief to which, from ages, except as a part of a judgment grant

the facts found, the plaintiff was entitled. ing injunctive relief, and that the court in It is said in Pomeroy's Equity Jurisprudence directing judgment for the plaintiffs took (2d Ed.) 8 237: "It may be stated, therefore, into consideration consequential injuries as a general proposition that a court of and damages, for which the defendant is not equity declines the jurisdiction to grant mere liable to the plaintiffs and for which they compensatory damages when they are not have no legal remedy. Further facts appear given in addition to or as an incident of in the opinion.

some other special equitable relief, unless

under special circumstances the exercise of Jesse W. Johnson, for appellants. John

such jurisdiction may be requisite to proJ. Delany, Corp. Counsel (James D. Bell, of

mote the ends of justice. There are, howcounsel), for respondent.

ever, special circumstances in which the prinCHASE, J. (after stating the

the facts).

ciple under discussion is invoked and is Where a trespass is of a continuous nature,

extended to the award of mere damages." 'a person has a right to invoke the restrain- Instances may be' mentioned, such as in ing order of a court of equity to prevent actions for specific performance, where it is the same, and in an action for that pur

found on the hearing that the relief prayed pose the court can, and should, grant all the for is impracticable, or in an action in the relief that the nature of the action and the nature of a creditor's bill where it is ascerfacts demand. In this case we will first tained upon the hearing that property fraud'assume that the complaint alleged facts ulently transferred has been conveyed to an justifying the relief which the plaintiffs de- innocent purchaser. Instances of judgment manded, that they established the allegations being rendered in such actions for money

damages only are numerous. These cases are the bridge was not properly erected, or mentioned simply to show that a grant of that it is negligently maintained. We quote equitable relief is not indispensable when with approval from the opinion of the Apthe action is properly brought, and the facts pellate Division herein, as follows: "The upon which equitable relief is claimed are authorities are clear that some of the acts established, but where through special cir- complained of may constitute trespass, which, cumstances money damages only are given if committed in the administration of the not because the plaintiff has improperly bridge, cast liability upon the defendant irrebrought his action in equity, but because spective of any question of its negligence. of such special circumstances.

Lambert v. Besey, Sir T. Raym. 421; Hay If we assume that during the trial of V. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; this action the defendant had wholly re- St. Peter V. Denison, 58 N. Y. 416, 17 Am. moved the bridge, the relief which the court Rep. 258; Sullivan v. Dunham, 161 N. Y. could have given would have depended upon 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. such condition of things existing at the close St. Rep. 274; Seifert v. City of Brooklyn, of the trial. Miller v. Edison Elec. Ill. Co., 101 N. Y, 136, 4 N. E. 321, 54 Am. Rep. 664; 184 N. Y. 17, 76 N. E. 734. An injunction Huffmire v. City of Brooklyn, 162 N. Y. restraining the use of the great highway 584, 57 N. E. 176, 48 L. R. A. 421. The across the East river may to the court have fact that the Legislature authorized the seemed unnecessary and drastic, although bridge, and that it was constructed within the plaintiffs were upon equitable principles such authority, does not shield the defendentitled thereto. The court, by its findings ant from liability in such a case. of fact and conclusions of law, recognize the I do not believe that the defendant with plaintiffs' right to permanent or fee damages | impunity can sweep débris off the bridge if the trespasses are continued. The decision

so that when thus cast off into the currents in W. U. Tel. Co. v. Syracuse El. L. & P. 06., of the air it falls upon the premises of 178 N. Y. 325, 70 N. E. 866, holds in con- the plaintiffs.” formity with previous decisions of the court

Where a municipality sweeps or throws that unless a person bringing an action in

water, snow, dirt, or refuse upon the real equity establishes such cause of action his

property of others, or gathers the same at complaint should be dismissed. The court

one point that they may be discharged upon say: "The object of the action was to re

such real property of others, the injury ocstrain an alleged trespass which is not per- casioned thereby is direct, and not consemitted except under peculiar circumstances

quential. But the lawful maintenance of a not shown to exist in this case." The form

public highway results in certain consequenof judgment does not necessarily determine

tial injuries that are not actionable. The whether an action is one at law or in equity.

maintenance of a public highway at grade Baily V. Hornthal, 154 N. Y. 648, 661, 49

necessarily and unavoidably results in some N. E. 56, 61 Am. St. Rep. 645. If a plain

.

annoyance and injury, as well as convenience tiff in his complaint alleges facts which

and advantage to abutting landowners. Owngive the court jurisdiction in equity, and

ers of abutting land and owners of land in he establishes such facts on the trial, he

the vicinity of highways are to some extent alone should complain if the court fails

affected by noise thereupon and by dust, to grant him all the relief to which he is

dirt, and particles of the material with which entitled. There is, however, a more serious

the highway is surfaced, being blown upon objection to sustaining the judgment of the

their property and on and into the buildings Special Term that goes to the right of the

erected thereon. Surface water from highplaintiffs to recover from the city for all

ways, which is always more or less polluted of the alleged wrongs stated in the findings

by mud and refuse with which it mingles quoted. The bridge is a public highway,

on such highways, runs upon the adjoining erected and maintained by legislative and land. If it so happens that the adjoining municipal authority. The plaintiffs' proper- lands are lower than the highway the anty is located opposite a point in the easterly

noyance and injury occasioned by the dirt approach to that part of the bridge spanning and surface water from the highway is inthe river. The authority and duty of the creased, and the greater the depression of the defendant to erect and maintain the bridge surrounding lands the greater the extent of in question and its approaches is conceded. the consequential annoyance and injury. The The plaintiffs are not even abutting owners grade of a street may be changed under lawof the highway so maintained by the de- ful authority to make the same lower or highfendant. The real property which they as- er than that of the lands of abutting owners sert has been damaged is not under the without liability for consequential damages, bridge and does not adjoin lands under the unless provision is made by statute therefor. bridge. Their real property is part of the Radcliff's Ex'rs v. Mayor, etc., of Brooklyn, property of their ancestor remaining after 4 N. Y. 195, 53 Am. Dec. 357. This court, in the defendant had taken from him a strip Lynch v. Mayor, etc., of N. Y., 76 N. Y. 60, 20 feet wide on the southerly side of a line 32 Am. Rep. 271, were considering a case drawn vertically from the southerly side where the city of New York had caused the of said bridge. There is no finding that grade of an avenue to be raised 20 feet above As

the surface of the adjoining lands without other affirmative act, a direct injury is thereproviding any means for carrying off the by occasioned. rain water which fell upon the avenue or The learned justice at Special Term recogto prevent such water from draining upon nized and asserted the rule that the defendthe adjoining lands, and said: "The defend- ant is not liable for consequential damages ant had at least as much right to fill up and arising from the maintenance of the bridge, raise this avenue as a private owner of a but, we think, in his application of the rule city lot has to fill up and improve his lot, to the facts in this case he wholly fails to and there can be no question that such an confine the award for damages to injuries owner may fill up his lot and build upon it, that are direct and not consequential. The and the surface water of adjoining lots may judgment in this case is based upon findings thus be prevented from flowing upon it, or of fact which state indiscriminately that the the surface water may be thrown from it substances therein named are swept, blown, upon adjoining lots, and flow upon them in and fall upon the plaintiffs' property, and a different way and in larger quantities than the conclusions of law state without reser-' before, and yet no liability would arise. If vation, in substance, that the plaintiffs reit were otherwise it would be quite difficult cover of the defendant for permitting such to improve city lots and build up a city. substances to fall, be blown, swept, or thrown Each owner may improve his lot and protect against and upon the plaintiffs' building. it from surface water. He may not collect The findings and conclusions of law clearly such water into a channel and throw it up- include damages for consequential injuries on his neighbor's lot. But he is not bound for which the defendant is not liable. for his neighbor's protection to collect the the judgment in favor of the plaintiffs surface water which falls upon his lot and obtained at the Special Term cannot be lead it into a sewer."

sustained, it is not deemed wise at this time So far as the facts relating to the main- to further discuss and define the liability tenance of the bridge in question and its of the city, if at all, for specific and specified approaches will permit, the rules of law re- acts heretofore done or allowed in the lating to the maintenance of a public high- maintenance of the bridge. way are applicable to it. The plaintiffs, how- The order of the Appellate Division should ever, are not abutting owners. The approach be affirmed, and judgment absolute ordered to the bridge is not an elevated structure on stipulation, against the appellants, with built over a highway maintained at grade, costs in all the courts. but at least at the point opposite the plaintiffs' lands it is built over other lands owned CULLEN, C. J., and EDWARD T. BARTby the defendant which are not directly used LETT, HAIGHT, and HISCOCK, JJ., confor highway purposes, and as we have seen

GRAY and O'BRIEN, JJ., absent. the defendant has taken from the plaintiffs' ancestor the lands immediately between the Ordered accordingly. lands under the bridge and those now owned by the plaintiffs. The decisions of the courts relating to the rights of owners of lands abut

(185 N. Y. 335) ting on streets at grade, upon which elevated

HINDLEY V. MANHATTAN RY. co. et al. structures have been erected by or for ele- (Court of Appeals of New York. June 12, vated or other railroads, are based upon facts

1906.) entirely different from those appearing in this 1. EASEMENTS-EASEMENTS APPURTENANT TO case, and such decisions are not applicable LOT ABUTTING ON STREET-NATURE. to this case. A private owner of land may

The easements of light, air, and access build on and over the same without liability

appurtenant to a lot abutting on a street are

not coterminous with the street, but in the for all of the annoyance and consequential absence of special circumstances are confined injury that may be thereby occasioned to

to that portion of the street which is directly in

fronċ of the lot. his neighbor. The liability of the defendant

[Ed. Note.-For cases in point, see vol. 17, to the plaintiffs should not in any event ex

Cent. Dig, Easements, $$ 95, 101.] ceed the liability of an individual and pri

2. SAME — ADVERSE POSSESSION - EVIDENCE vate owner in the maintenance of a similar

ADMISSIBILITY. structure over land owned by him. When, Where, in an action by an abutting owner in the exercise of governmental powers and

against an elevated railroad for injuries to his under express legislative authority, a city

easements of light, air, and access, the rail

road pleaded a prescriptive right to maintain erects and maintains a bridge or elevated the road, evidence of settlements made by the structure necessary for carrying out a pub- railroad with other owners not connected with lic purpose, no liability is incurred by the the abutting owner, except that of mere loca

tion on the street, was inadmissible as showing city for injuries to others, unless it enters

that the railroad's possession of the easements upon and takes private property or easements was not founded on prescription. belonging thereto or connected therewith 3. EVIDENCE-ADMISSIONS. for public purposes, or unless by negligence An abutting owner sued an elevated railand lack of care in the performance of the

road for damages to his easements of light,

air, and access. The road was constructed in work in erecting or in the maintenance of

1879, and had been in continuous operation for the bridge or structure, or by reason of some over 20 years. In 1900 and 1901, the railroad,

cur.

through its vice president, presented petitions 9. SAME. praying for reductions of its franchise taxes. Where an elevated railroad entered into The petitions recited that the railroad had possession of easements of light, air, and acpaid a specified sum for damages to abutting cess belonging to an owner abutting on a owners, and that on the assumption of being street, under the mistaken belief that it owned able to make as favorable settlements in the fu- the easements by virtue of a grant by a city ture about $8,000,000 more would be required to to it of the right to erect, maintain, and operobtain the unobstructed right to exercise its ate a road in the street, the taking of the easefranchise. Held, that the petitions were not 'ments was adverse. admissions that a prescriptive right to the easements had not attached, and were inad

Appeal from Supreme Court, Appellate missible as showing that the railroad intended Division, First Department. to assert that it had no defense founded on

Action by John H. Hindley against the prescription to a claim presented by the abutting owner for damages to his easements.

Manhattan Railway Company and another. 4. APPEAL-HARMLESS ERROR-ERRORS IN AD

From a judgment of the Appellate DiviMISSION OF EVIDENCE.

sion (93 N. Y. Supp. 53, 103 App. Div. 504), Where it is manifest that evidence im- affirming a judgment for plaintiff entered properly received did not affect the result, a

on a decision after a trial at Special Term judgment will not be reversed, while, if there is not enough competent evidence to sustain

(85 N. Y. Supp. 561), defendants appeal. a judgment, the errors in admitting improper Reversed, and new trial ordered. evidence require a reversal.

This action was commenced on the 22d of [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 4153-4160.

July, 1901, by an abutting owner on the 5. SAME.

west side of Sixth avenue in the city of In an action by an abutting owner against New York, to recover damages from the dean elevated railroad for injuries to his ease- fendants, as the owners and operators of ments of light, air, and access, the railroad pleaded a prescriptive right to maintain the

an elevated railroad in said avenue, for an road, and showed that the road was constructed

unlawful interference with his easements of in 1879 and had been maintained for over light, air, and access, and also to restrain 20 years. The railroad, in 1900 and 1901, pre

the defendants from further maintaining or sented petitions praying for reductions of its franchise taxes. The petitions recited that operating said road. The complaint was in it had paid a specified sum as damages to abut- the usual form in such cases, and the anting owners and would be required to pay in swer also, except that the defendants pleadthe future about $8,000,000 more to obtain the unobstructed right to exercise its fran

ed as a defense a prescriptive right to mainchise. There was no other evidence justifying tain their railroad, founded upon open, cona finding that a prescriptive right to the ease- tinuous, and hostile occupation for a period ments did not exist. Held, that the error in admitting the petitions in evidence as showing

of more than 20 years before the commencethe nonexistence of a prescriptive right was

ment of the action. It was alleged in the reversible.

complaint, and admitted by the answer, that 6. EASEMENTS-ADVERSE POSSESSION-POSSES- the elevated road in question was constructSION UNDER COLOR OF TITLE.

ed in 1879, and that it has been maintained A grant by a city to a railroad of the right to erect, maintain, and operate an elevated

ever since in the avenue in front of the road in a street gives to the railroad the ap- plaintiff's premises; that it is in the nature parent authority to appropriate the easements

of a long iron trestle, extending lengthwise of light, air, and access appurtenant to the lots abutting on the street, and is color of through the street, built by erecting foundatitle on which the railroad may acquire a

tions of brick or stone embedded in the earth, prescriptive right to the easements, though with iron columns about 20 feet high restthe city had no power to transfer the easements.

ing thereon and supporting a frame of gird7. SAME-ADVERSE ENTRY. A city granted to a railroad the right

ers and cross-girders, upon which two sets to erect, maintain, and operate an elevated

of railroad tracks are laid, and that since the road in a street. The railroad erected and oper- construction of the road it has been operated ated an elevated road, without leave or li

as a passenger railway by means of locomocense from an abutting owner. The elevated road interfered with the abutting owner's ease

tives drawing trains of cars upon the elevated ments of light, air, and access. Held, that structure every day up and down in front of the possession taken by the railroad was open,

; tb

the premises of the plaintiff. The trial hostile, and exclusive. ripening into a prescriptive right by lapse of time.

court found the facts substantially as al[Ed. Note.--For cases in point, see vol. 17,

leged in the complaint, and found, as a fact, Cent. Dig. Easements, $8 23, 24.]

that the defendants had no prescriptive right 8. SAME.

to maintain or operate their road in Sixth A city granted to a railroad the right avenue in front of the plaintiff's premises. The to erect, maintain, and operate an elevated damages already accrued were assessed at road in a street. Pursuant to the grant, the railroad constructed the road and for over

the sum of $1,531.05 and judgment was di20 years continued to operate the same. The rected therefor against the defendants. The maintenance and operation of the road inter- damages to accrue from the permanent operafered with the easements of light, air, and access belonging to an abutting owner. Held.

tion of the road were assessed at the sum that the daily trespass committed by the rail

of $3,000 and an injunction was awarded road in daily operating the road was but a against further maintenance or operation uncontinuation of the original taking of posses

less the defendants should pay that amount prolong the prescriptive period

of judgment. The Appellate Division unan

necessary for the acquisition "of the teasements to the plaintiff within forty days after notice

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