171 N.Y. 460 | NY | 1902
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *463 This action is brought by the lessee and proprietor of a hotel known as the "Everett House" in the city of New York, situated on the northwest corner of 17th street and Fourth avenue, against sub-contractors engaged in the construction of a portion of the subway in the city of New York, for an injunction restraining the defendants from maintaining certain buildings which are alleged to constitute a nuisance and to recover damages arising therefrom.
The Special Term dismissed the complaint, the Appellate Division reversed the order and the defendants come here stipulating for judgment absolute in case of affirmance.
The trial judge found, among other facts, that the hotel premises have a frontage of about 128 feet on Union Square and 168 feet on Fourth avenue, are five stories high and contain some 250 rooms, several restaurants, a cafe and a bar.
That the park known as Union square, as designated by law, extends to the northerly limit of the prolongation of the thoroughfare, which to the westward of Broadway and the eastward of Fourth avenue is known as 17th street.
That so much of the Union Square as is laid out as a park is of oval shape, and so situated that there is in front of the plaintiff's hotel a paved place used as a thoroughfare for vehicles and about 150 feet wide. *465
That 17th street east of Fourth avenue and west of Broadway is 60 feet in width; the roadway being about 40 feet wide.
That the defendants are sub-contractors with John B. McDonald, who is the contractor with the city of New York for the construction of the Rapid Transit Railroad in the city of New York.
That the defendants as such contractors are constructing that portion of the subway in which this railroad is to be operated, extending from Great Jones street to 32nd street, and is known as sub-section number three.
That under a permit from the department of parks of the city of New York they have erected buildings upon the paved place in front of plaintiff's hotel, and placed therein boilers, forges, air compressors and machinery to furnish power and appliances for the prosecution of the work under their sub-contract; these buildings and appliances are erected upon the space 100 x 120 feet and are inclosed with board fences; the space is so used as a storage place for tools and machinery. The power generated within the inclosure is compressed air, which is conducted along the work in pipe lines. The structure is so erected as to leave in front of plaintiff's hotel a paved carriageway of the same width as is the carriageway of 17th street, east of Fourth avenue and west of Broadway.
That the erection and maintenance of the structure in front of plaintiff's hotel by the defendants have resulted, and will, during their continued maintenance, result in loss and injury to the plaintiff. The use of the public property by the defendants is merely temporary, being limited by the time necessary for the completion of the work upon which the defendants are engaged.
That the work could be conducted practically as well, and with less injury to this particular plaintiff if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work.
That the aggregate damage produced thereby would not be lessened, and the loss which is now placed upon the plaintiff would be cast upon others. *466
That the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities, under whose supervision and direction the work was to be performed. The proper authorities determined that the plant should be erected in front of plaintiff's premises; that they acted in good faith and their exercise of discretion is not open to review.
The trial judge filed a decision, stating concisely the grounds upon which the issues were decided, as permitted by the Code of Civil Procedure (§ 1022).
Notwithstanding, the trial judge found that the work could be conducted practically as well, and with less injury to this particular plaintiff if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work, he further finds that the work is not being performed negligently, carelessly or unskillfully, or in an unreasonable manner, and that no private rights of the plaintiff are trespassed upon by these defendants.
There is no claim that the work is negligently, carelessly or unskillfully performed, but this general finding that it is not carried on in an unreasonable manner is inconsistent with the specific finding that there would be less injury if the plant were placed elsewhere, or subdivided into smaller plants along the line of the work.
The finding that the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities is clearly a legal construction of the city charter, the Rapid Transit Acts and the contracts of the contractor and sub-contractors with the city of New York and must be treated as a conclusion of law.
In considering whether the defendants were authorized by proper authority to construct and maintain the structures complained of, it is unnecessary to consider the power of the park department to grant this authority, as the appellants insist that the Rapid Transit Acts empower the proper authorities to grant such temporary privileges as would facilitate *467 the construction of the railroad; that such authorities were either the rapid transit commissioners or the park commissioners, or both.
In the Laws of 1892 (Chapter 556, § 4) it is provided: "But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporation to facilitate such construction."
In the Laws of 1896 (Chapter 729, § 39) it is provided that the board of rapid transit commissioners, "for and in behalf of said city may acquire as in this act provided, any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whether of owners or abutting owners, or others including rights of owners, abutting owners, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference."
These provisions vest no power in the rapid transit commissioners or the park commissioners to erect such structures as those of which complaint is made. No direct legislative authority is pointed out warranting such invasion of the Union Square or the property rights of the plaintiff.
We express no opinion as to the power of the legislature to authorize such an invasion of private rights without due compensation.
The maintenance of these structures cannot be regarded as the enjoyment of temporary privileges conferred by the law of 1892, already quoted. These structures in a sense are temporary as compared with buildings substantially constructed and intended to endure for years, but they are not temporary when we consider the use of that word in this particular connection. It goes without saying that none of *468 the structures or appliances erected in the streets of New York for subway purposes are permanent in a general sense, but they are so in a special sense when they are authorized to remain until the completion of the work. If these defendants are to be engaged three years or more in completing the work they have undertaken on their section of the subway, and if these structures are to be used, among other things, as air compressors for the entire work, then they are permanent as to this contract and the completion of the work thereunder.
Assuming the facts as found, we are of opinion that the legal conclusions based thereon are not warranted.
The order of the Appellate Division does not state that it has/reversed upon the facts, and we are, therefore, to assume that the reversal was on questions of law. (Code of Civil Procedure, § 1338.)
The learned counsel for the plaintiff narrows the discussion upon this appeal by two very proper concessions:
(1) That the law is settled in this state that acts which are authorized by the express enactments of the legislature and performed in good faith upon work of a public character do not render the persons performing them liable for consequential damages unless there is an absence of due care or skill in the execution of the work.
(2) That in authorizing the construction of a railroad under the streets of New York the legislature may be deemed to have authorized the performance by the rapid transit commissioners and by the contractors of such acts as are necessary to the execution of the work. These concessions embody the settled law of the state. (Radcliff's Exrs. v. Mayor, etc., of Brooklyn,
The plaintiff's main position is that the buildings and appliances which have been erected on the plaza in front of his hotel, some of which is part of Union Square, are a nuisance unauthorized by law and not necessary to the execution of the work; that there is no reason for the generation of compressed *469 air in a central plant except that the contractors found it more convenient and economical; that if such necessity existed the structures should have been erected and maintained at a distance from the line of the work and away from the residential and thickly-settled parts of the city.
We are of opinion that the findings of the trial court established that these structures ought to have been placed elsewhere, or the power for the generation of compressed air subdivided into a number of small plants distributed along the line of the work.
The finding in this connection that the aggregate damage produced thereby would not be lessened and the loss which now falls upon the plaintiff would be cast upon others, is clearly inconsistent with the finding that the plaintiff sustained damages of a special nature.
It is a mere matter of conjecture, unsupported by evidence, what damages would be suffered by others if the plant were erected off the line of the work. It is evident that the plant could be located in sparsely settled districts near the river front and not cause a tenth part of the damage that would arise in maintaining it at the point selected by these defendants, or in the heart of the residential portion of the city, like Fifth avenue, Madison avenue or other localities that might be named. Gas houses, electric light plants, power houses and large manufacturing establishments peculiar to city life are usually erected in localities where the damages inflicted upon surroundings property are reduced to a minimum.
The plaintiff doubtless must suffer the annoyance and injury from such acts as are reasonably necessary to the execution of the work, but it is unjust and placing upon him an undue burden to permit the erection and maintenance of this plant in front of his hotel, for the generation of compressed air, to be used along the entire line of the work undertaken by these contractors, from Great Jones street to 32nd street, and which may continue for a period of three years or more from its inception.
Damages which are inflicted upon abutting property owners *470 in the performance of public work, reasonably and properly conducted, are regarded as damnum absque injuria. This exemption rests upon the necessity of the situation and commends itself to all reasonable minds.
The necessary injuries and annoyances inflicted upon this plaintiff, in the proper prosecution of this work, arise from the opening of the street in Fourth avenue, on the east side of his property, and the construction of the subway, by blasting, and other necessary work, involving obstruction, noise and general inconvenience. When this portion of the work is accomplished and the street restored to its normal condition opposite his property, the annoying situation would cease as to him. If, however, the structures, of which complaint is made, are to be maintained during the entire prosecution of the work on defendant's section, the plaintiff is subjected to annoyances and injuries that are neither necessary nor reasonable.
It is clear that these structures, if located upon private property, would constitute a nuisance by reason of the creation of smoke, cinders, dust, gases and disturbing noises. (Campbell
v. Seaman,
In Balt. Potomac R.R. Co. v. Fifth Baptist Church
(
In Booth v. Rome, W. O.T.R.R. Co. (
For reasons already stated, the fact that the defendants are engaged in a public work is no defense to the charge that the structures in front of plaintiff's hotel are a nuisance.
In Seifert v. City of Brooklyn (
It is to be kept in mind that the construction of the Rapid Transit Railroad by these defendants is an important public work, in which the citizens of the city of New York are deeply interested, and the courts should be careful to accord to them every legal right, in a liberal spirit of construction, avoiding, if possible, placing in their way obstacles of any kind.
We wish to be understood as deciding this case upon its peculiar facts and not laying down any general rule as to the conduct of this subway work. It is impossible to so precisely regulate the damages as to prevent greater loss to one abutting owner than another under apparently like circumstances. What we do hold is that these defendants ought not to be permitted to continue a condition of affairs that is rapidly reducing this plaintiff to bankruptcy when the trial court has found in substance that the structures, of which complaint is made, are not necessary for the reasonable prosecution of the work.
This case presents a situation of peculiar hardship, and the *472 plaintiff ought to be adequately compensated in damages, or the defendants should be prevented by perpetual injunction from continuing the nuisance of which complaint is made.
The order of the Appellate Division should be affirmed, and judgment absolute ordered for the plaintiff on the stipulation, with costs.
Concurrence Opinion
I concur in the opinion of Judge BARTLETT that the order of the Appellate Division should be affirmed and judgment absolute rendered for the plaintiff, and will add but a few words to what he has written. It is to be premised that although under section 1338 of the Code the order of the Appellate Division must be considered as granted on questions of law alone, still the disposition of this appeal is not entirely controlled by the findings of fact made by the trial court. There are first to be considered the pleadings to see what allegations are charged in the complaint, and which of them are admitted and which put in issue by the answer. The findings are to be construed in the light of the pleadings and then if it appears that any finding necessary to uphold the judgment granted has been made without sufficient evidence to sustain it, the judgment has been properly reversed by the Appellate Division for error in law. (Shotwell
v. Dixon,
The defendants claim further authority for the acts complained of under section 4 of the Rapid Transit Act (Chap. 556, Laws of 1892): "But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction." If the views which I have expressed are correct, then this section cannot be construed as authorizing the grant of any use of the park for purposes which would constitute a nuisance to adjacent owners. Moreover, the privileges authorized by the statute must be temporary. The erection of a structure and plant which is to be maintained during the time required for the construction of the whole line of railroad, approximately a term of three years, is, to my thinking, not temporary. The findings of the trial court were, therefore, in the respects which I have discussed, without any evidence for their support, and the Appellate Division properly reversed the judgment of the Special Term for error of law.
Dissenting Opinion
If I supposed that this case was in any sense close or doubtful I would be content to record my *476 vote against the views of my brethren in silence without assigning any reasons. The learned trial judge dismissed the complaint and held that no cause of action had been established, but the learned Appellate Division reversed the judgment and held that the plaintiff was entitled to recover. That the trial court was right on the law and the facts, and that his decision is unassailable seems to me very clear, but since all my brethren except the chief judge think otherwise, I am constrained to state briefly my reasons for differing with them.
There is no dispute about the rule of law that governs the case. The defendants are engaged in a great public work authorized by the state and by the city and are not liable for consequential damages to property owners unless caused by negligence or misconduct. I will not stop to cite authorities to support this proposition since no one disputes it. The learned court below found no reason for reversing the judgment in the findings themselves, but rather in the evidence, and since it approved the findings of fact and reversed upon the law, this court must review the case upon the findings alone. There is no dispute about this proposition. All admit it. The question before this court then is a very narrow one and is simply this: Did the learned trial judge dismiss the complaint after finding that the plant and structure in question was a nuisance? That is what is asserted by the learned counsel for the plaintiff and that is what the prevailing opinion holds. If he has so found then I admit that the decision about to be made by this court is correct, but if he has not it is wrong since this court must look to the findings alone for reasons and must assume that the facts found are the real and only facts in the case. Any one who will read the opinion of the trial court will see very clearly that he did not intend to find anything of the kind, and if he has it is evident that he has been so maladroit or unfortunate in the use of language that he has not only failed to express the thought that was in his mind but has actually expressed just the contrary. In other words, intending to find that the thing wasnot a nuisance he has succeeded in finding that it was. The learned trial judge *477 may well be astonished to learn of the result imputed to him, and I think that at least one member of this court should defend him against such an imputation, and the best way to do that is to present the findings in his own words. Here they are:
"Fourth. The construction of the Rapid Transit Railroad in which these defendants are engaged is an important public work. The work is not performed negligently, carelessly or unskillfully or in an unreasonable manner. No private rights of the plaintiff are trespassed on by these defendants. The defendants are not liable for consequential damages resulting to the plaintiff from the construction of the work in which they are engaged. The erection and maintenance of the structure in front of plaintiff's hotel by the defendants have resulted and will during their continued maintenance result in loss and injury to the plaintiff. The use of the public property by the defendants is merely temporary, being limited by the time necessary for the completion of the work upon which the defendants are engaged. The resulting annoyance to the plaintiff is temporary. The defendants occupy the public property under proper authority.
"Fifth. The work could be conducted practically as well and with less injury to this particular plaintiff if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work. The aggregate damage, however, produced thereby would not be lessened, and the loss which now falls upon the plaintiff would be cast upon others. The defendants are engaged upon a public work under public authority. The necessary and proper place for the construction of the operating plant were matters to be determined by the contractor and the public authorities, under whose supervision and direction the work was to be performed. The proper authorities determined that the plant should be erected in front of plaintiff's premises.
"They acted in good faith, and their exercise of discretion is not open to review. The plaintiff is injured, but is not entitled to either damages or an injunction." *478
Just how this language can be construed into a finding that the defendants created or maintained a nuisance in the public place fronting plaintiff's hotel is to me inconceivable. How the defendants' acts which are described in these findings as authorized by law, reasonable and skillful, free from negligence and carelessness, can at the same time be a nuisance, is a problem that no one has attempted to explain or can explain. The defendants are engaged in the construction of a city highway. That is what this court held that it is, and what it had to hold in order to make the statute valid under the Constitution. (
But I am in search of some statement or expression in the findings to the effect that the thing complained of is a nuisance, since it is asserted that such a statement is there, and that is the vital point in the case. The learned judge did find that if the thing had been placed elsewhere the work could have been done practically as well and with less damage to the plaintiff, but with the same damage to some one else, and it is contended that a nuisance lurks in this finding. If so, it must be because the city and the contractor should have selected some other party upon whom the same injury would be inflicted, and whether the thing is a nuisance or not depends upon whether there was an error of judgment in visiting the wrong upon the proper party, since some one must bear the loss or inconvenience. I am not aware of any authority for holding that an appliance like the one in question, necessary for the construction of an important public work, is a nuisance merely because it was possible to place it elsewhere, where it would be equally obnoxious and harmful to some one else. When the question as to the proper place to locate the plant was in good faith and in the exercise of reasonable discretion decided by the public authorities, it would be a very loose kind of law that would permit a private party to assail such action upon speculations that if only some other place had been selected all would be well. The place never could be safely or legally located if that principle is to be recognized. But the learned trial court also stated that if the plant which it is now said is a nuisance had been subdivided into a number of smaller plants, distributed along the line of the work, the aggregate damage to the plaintiff would be less, but still the same as to others, and the only result of such a change would be to cast the loss, or some of it, upon the plaintiff's neighbors. Here again it is said that a nuisance is plainly revealed. If so, the logical process through which that result is attained, though not stated, must be something like this: The defendants neglected to divide the thing now adjudged upon the findings to be a nuisance into several smaller nuisances, to the end that they might be equitably distributed around in front *480 of the property of others who should bear some part of the loss, as if it were a tax or some public burden, and by this process of distribution lay the foundation for as many law suits as there were plants, and not having done this they, therefore, created a nuisance, and the thing complained of in this action is a nuisance. It is assumed that there is in law a vast difference between a large nuisance and a small one, and so there is, or may be, as to the damages or the extent of the injury, but not as to the right of action or the remedy. If the thing which the plaintiff complains of was cut down to one fifth of its present dimensions, but still made the same use of, he would have just as good a cause of action as he has now, though the damages might be less, and even that must be largely matter of conjecture, and so it would be with all the other property owners affected by the process of division and distribution.
I always supposed that it was no part of the functions of a court of last resort, organized as this court is, to decide questions of law arising upon facts found, conceded or undisputed, to determine whether the contractors and the local authorities located this apparatus for generating compressed air in the right place, or whether it should have been located at some other place. The learned trial court found that they had the power to locate it, as they clearly had, that they exercised this power reasonably and in good faith, and that ought to conclude this court in regard to the location. When we decide that it should have been located at some other place, for that is what the decision means, we are exercising original jurisdiction which we do not possess, and it does not help the matter much to do that under the guise of giving a construction to a finding that it will not bear. To say that the language of the findings, or any part of it, describes a nuisance is to mistake the meaning of words and to lose all idea of proportion.
It is said in the prevailing opinion that the part of the finding of the learned trial judge, which is to the effect that, in case the plant had been located elsewhere or distributed, the damage in the aggregate would be the same, is mere matter of *481 conjecture without any support in the evidence. This I think is a mistake, since the record shows that the defendants' witnesses, some of them experts, and a part of whose testimony is quoted upon the brief of the plaintiff's counsel, while stating that it was possible to place the plant elsewhere or subdivide it, if the place could be found or procured, stated in almost the same breath that it would be impracticable to do so for very cogent reasons which they gave, and if done, the aggregate damage and public inconvenience would not be less. It is impossible to read the testimony as a whole and then say that the court was not authorized to make the finding in the very words that he employed. It is not quite fair, as it seems to me, for a court of last resort, reviewing a case upon findings, to fasten upon a single sentence in an entire finding and divide the sentence, adopting what is supposed to be favorable to the plaintiff and rejecting what is supposed to be favorable to the defendant, in order to work out, as matter of law, a nuisance from the language employed. It is admitted that the court used the short form of decision permitted by the Code and, hence, he is deemed to have found all the facts necessary to support his judgment since the decision has the same legal effect as the general verdict of a jury on the issues, as we have repeatedly held. This general verdict has not been disturbed by the reviewing court below, as it had the power to do upon the facts, and this court must accept the findings just as they are.
That the plaintiff sustained great annoyance and serious damage from the location and use of the thing of which he complains there can be no doubt. It is said that the damage is special which, I take it, means nothing more than that his damages are greater, relatively, than his neighbors generally have sustained. The amount of the damages cannot change the rule of law. The laborer in a tenement house who has been under like conditions and circumstances, damaged to the extent of one hundred dollars only, has the same standing in the courts to enforce his claim as the plaintiff. The answer to both claims is the same, and is to be found in the language of Judge MARTIN *482
in this court (
There is one passage in the prevailing opinion which seems to constitute the corner stone of the decision. Here it is: "It is evident that the plant could be located in sparsely settled districts near the river front, and not cause a tenth part of the damage that would arise in maintaining it at the point selected by these defendants, or in the heart of the residential portion of the city, like Fifth Avenue, Madison Avenue, or some other localities that might be named." But how is all that soevident? Certainly not from the findings that are our sole guide as to the facts. Hence this is but another way of saying that the court, when hard pressed for a reason, will fling away the findings and act upon its own notions of the real situation. The natural and reasonable place for the appliances necessary to construct the work is at or near the locality where the work is to be done. The notion that they should have been placed at some point a mile or more distant is but an extreme and fanciful suggestion. It does not require an expert to see that such a thing, while possible, was not reasonable nor practicable. That is what the learned trial court has found, and I assume he was as well informed on that question as we are or can be. It was a question involved in the issues before him and of which he had jurisdiction. It is a question now of which we have no jurisdiction outside of the findings made. But the residents of the fashionable avenues named *484 are to have the benefits of rapid transit practically at their doors, and is this court to hold that they must be exempt from the annoyance and damage incident to the construction of the tunnel, and that it should be shifted to the people in the sparsely settled districts, wherever that place is, or upon the people on the river fronts? Nay more, are the defendants, the contractors building the subway, guilty of creating and maintaining a nuisance simply because they have not done enough to shift the annoyance from the former to the latter? If that is law it must be that a noxious thing near one of the fashionable residences or hotels on one of these avenues is a nuisance, while the same thing, used in the same way, when placed near the home of a laborer or more humble man of business would not be a nuisance at all. Grant that the latter would not be able to prove more than ten per cent of the damage that the plaintiff has, as the court suggests, would the thing for that reason be any the less a nuisance? If the thing complained of is a nuisance where it is, why would it not be a nuisance if placed near the home of a laborer or mechanic? And yet the only ground of liability suggested in this case is the neglect of the defendants to favor the former by afflicting the latter. I have no doubt that all the reasons that have ever been or can be given to support the judgment about to be rendered by this court in this case are fairly embodied in the opinion of the court, and those reasons there expressed will speak for themselves. The issue in this case is one of law, and in its last analysis a very plain and simple one. On the one hand it is asserted that the trial court found that the thing complained of was and is a nuisance, while on the other it is asserted that the finding is the other way and plainly to the effect that it is not a nuisance. Therein lies the whole controversy. We cannot advance one step towards the solution of this question by generalizing as to the extent of the plaintiff's damages or speculating with respect to the part of the city where the thing in question should have been placed. All that is foreign to the question at issue and only tends to mislead. What is the fair meaning and legal import of the *485 language which the learned trial judge used in the findings? That is the question and the whole question.
We have very recently held that a property owner sustaining damages in the form of a physical injury to his house and buildings, caused by a contractor in the one case and the city itself in the other when engaged in a public work, could not recover for the damage and injury in the absence of proof of negligence (Holland House Co. v. Baird,
But I am mentally admonished that I must be wrong at some point in the discussion, since my learned brethren, for whose opinions I have great respect, even when given as in this case, dogmatically and without argument, differ so radically with me. I have endeavored, however, to make my reasons plain to the end that my error, if any, may be easily detected and readily refuted. I think the law and the facts in the case were correctly decided by the trial court and that there was no legal ground for reversing the judgment.
Since writing the above, Judge CULLEN, another of my associates, has very wisely and properly thought it necessary to add something to the discussion. Agreeing entirely as he does with Judge BARTLETT, who holds that upon the findings of thetrial court as made the plaintiff was entitled to recover, he proceeds immediately to demolish these very findings, *486 because made without what he calls sufficient evidence, and he cites a case to prove that this court must sustain the reversal below upon the law when the findings have not sufficient evidence to support them.
Of course he does not mean quite what he says, since the case cited does not hold anything of the kind. What it does hold is that this court in such a case may disregard the findings that have no evidence whatever to sustain them. If the evidence was thought to be insufficient the court below should have reversed upon the facts, but I venture to say that no one will be able to point out a single finding made by the trial court that has not the support of at least some evidence. Indeed, it is difficult to see how any other findings could have been made. It is quite impossible, however, to reconcile the two opinions. They are inconsistent with each other and each is, in some respects, inconsistent in itself. Inasmuch as Judge CULLEN agrees with Judge BARTLETT, he must assume the findings in the record to be the findings in the case; and to stand upon the findings as made in one breath, and to throw them away as worthless in the next, does not strike me as a very logical or consistent method of argument. When we find one opinion standing squarely on the findings and the other agreeing with it, but at the same time seeking to destroy these very findings, there must be some confusion of thought or want of harmony in the argument. It only illustrates, however, the vague and illusive theories that may sometimes be used with the very best intentions to sustain a case. It would be much more satisfactory if we could learn just what finding it is that is without sufficient evidence to sustain it if we are to review the case in that way. There was but one general, fundamental fact in issue in the case, and that was whether the thing complained of was or was not a nuisance. The plaintiff alleged that it was and the defendants denied that allegation. Therein was involved the whole issue of fact in the case, and it is obvious that the plaintiff could not succeed unless the trial court found that issue in his favor. That court not only refused to so find, but actually found that it *487 was not a nuisance. All the other allegations of the complaint and the other findings are merely evidentiary. The trial court having negatived the fundamental fact in the plaintiff's case, this court cannot supply it unless the proof on that subject was conclusive in support of the plaintiff's allegation that it was a nuisance. No one has yet ventured to say that. So we must go back to the point from which we started, and that is concerning the legal effect of the findings as made.
If the court found in terms, or in substance, that the thing is a nuisance, then this court, I admit, has some ground to stand upon; but otherwise not. The argument, or rather the assertion, that the use of the public place in question during the progress of the work is not temporary, while the use of the bed of the street for the same time is temporary, does not seem to me to meet the situation. The thing complained of is either temporary or permanent. No one has ventured to assert that it is permanent, and hence it must be temporary. The statute authorized the public authorities to grant such temporary privileges to the contractor for the purpose of facilitating the work, and the court found that the authorities did make the grant to the defendants. The city authorities consented, and so did the rapid transit commission. What does the statute mean by "temporary privileges," if it does not mean the use of some of the public places, like the one in question, while the work lasts? It is so obvious that that was the very purpose of the statute that it seems to me that there is no room for any other construction. It is not a very fair or intelligent answer to the question suggested above to say that whatever it means, it does not mean that the authorities have power to grant to the defendants the privileges which they did. That is only a bald assertion, unsupported by either reason or authority.
But it is said that the case of Morton v. Mayor, etc., ofN.Y. is decisive of this case. That assertion seems to me very much like jumping at a conclusion. If there is no difference or distinction between the erection of a permanent power house *488 that jars and shakes the walls of an adjacent dwelling house, and is to do that for all future time, rendering the house untenantable, and the use of the square in question, as it is used, only during the time that the work of constructing the tunnel lasts, then that case has some application here. But I supposed there was a very broad distinction in the circumstances of the two cases, and how any one can avoid seeing that distinction, even if he should try, is one of the many things in this case that I have not been able to understand. That case might just as well be cited to sustain an injunction against the defendants for opening the broad and deep ditch in front of the plaintiff's hotel, since it would be just as applicable then as it is now. In both cases it is the occupation of a public place for the purpose of constructing a public work which is a damage to the plaintiff's business.
It will be seen that Judge CULLEN has ignored the finding of the trial court that the thing in question could not practically be placed elsewhere, without inflicting the same damage on some one else. He does not even claim that the finding is without evidence, and such a claim could not fairly be made on the evidence in the record.
I still think that the learned trial judge decided this case correctly. He did not allow sentiment or sympathy to enter into his decision, but followed the law.
GRAY, HAIGHT and WERNER, JJ., concur with BARTLETT and CULLEN, JJ. O'BRIEN, J., reads dissenting opinion, and PARKER, Ch. J., concurs.
Ordered accordingly.