54 A.D. 427 | N.Y. App. Div. | 1900
' A clear statement of what constitutes a nuisance for which relief may be had is given in the case of Booth v. R., W. & O. T. R. R. Co. (140 N. Y. 277), wherein it is said : “ Whether a particular act or thing' constitutes a nuisance may depend on the circumstances and surroundings. The use of premises for mechanical or other purposes, causing great noise, disturbing the peace and quiet of those living in the vicinity, and rendering life uncomfortable, or filling the-air with noxious vapors or causing vibration of the neighboring d wellings, constitute nuisances, and such use is not justified by the right of property.”
As there was evidence to support the finding of the Special Term that the manner in which the- defendant conducted its business was a nuisance, and was injurious not alone to the comfort of those who occupied the building but also to the property itself, it follows that some relief should be accorded. The .question remains, however, whether-the plaintiff, in addition to an .injunction, "was entitled to
That a tenant in possession of land who is injured after coming into possession by the creation of a nuisance is entitled to relief by way of injunction, and also to damages, has often been heldand in Rosenheimer v. Standard Gas Light Co. (36 App. Div. 1), in ascertaining damages so suffered, it was said: “ The damages to property temporary in their nature and continuing while the nuisance lasts, can only be measured by the diminution in rental value or the difference between the rental value free from the effects of the nuisance and subject to it. The same rule applies whether the property is in the possession of a tenant or in the occupation of the owner. (Francis v. Schoellkopf, 53 N. Y. 152.) ”
Damages, however, are not recoverable for a greater period than six years. Here during the period for which damages were recoverable, plaintiff was in possession under a lease or leases which were subsequent in date to the construction and operation of the defendant’s power house. As there is no evidence that the injury was increased by reason of the nuisance being greater at any particular time, we must conclude that after the expiration of the prior lease, plaintiff went into possession under the new leases with knowledge that the manner in which defendant was operating its power house and business caused the emission of smoke and cinders which soiled furniture and clothing and created noise and vibration which interfered with the sleep and comfort of the plaintiff and her boarders.
The question, therefore, is whether one who takes a lease with knowledge of an existing nuisance, is entitled not only to an injunction, but to damages for such injuries subsequently inflicted. Undoubtedly the defendant’s acts tended to injure the rental value of the premises for the purpose either of a private dwelling or a boarding house. Having leased the property with such knowledge, the question remains whether the consequential damage which the plaintiff suffered is one which inured to her or to the owner of the premises. By “ consequential damage ” we mean of course to exclude any increase of damages over that which existed prior to the making of the lease, since it is well established that a tenant may. recover for damage by nuisance arising during the term of a lease.
A different rule necessarily applies where a person is in possession of property and afterwards, during such possession, damage is ■done by a wrongdoer to the rental value of the property.
In Wood on Nuisances (1st ed. p. 895) it is said: “A lessee of lands may maintain an action for injuries to the possession by a nuisance, und may recover therefor such damages as he can show to- his possessory right. Thus, in an action by the lessee of a livery stable against •a person who laid gas pipes in the streets so imperfectly that the gas •escaped therefrom through the .ground and into the water of the well used by him in connection with the stable, rendering the water unfit for use, it ivas held that' he might recover * * * for ■expenses reasonably and properly incurred by him in attempts to ■exclude the gas from the well. (Sherman v. Fall River, etc., Co., 2 Allen [Mass.], 524).” And in Pach v. Geoffroy (67 Hun, 401) the court held that a tenant of a part of a building used by him as ;a photograph galley is entitled to relief in equity restraining the unnecessary use by a tenant of machines in another part of the building so located and used as to constitute a nuisance by causing ■continuous vibration, jarring and noises to the inconvenience of the plaintiff and his customers and to the interference with and damage of his business. ■ '
The damages resulting from loss of business caused by vibration,
With regard to the remedy by injunction, one who is being-injured by the continuance of a nuisance is always entitled thereto-Although it may he presumed that the damages referred to, if any,, will fall upon the owner through the lease made, the wrongdoer does not thereby gain a right to continue the nuisance either as-against the owner or the tenant, even if the tenant may not recover damages. One who, under a lease, goes into possession of property affected by a private nuisance which is not of a permanent character, or sanctioned by a legislative grant, is not, therefore, without remedy, for though not entitled, to recover damages to the freehold, he has a right to have the nuisance abated, and, on a proper showing, is entitled to an injunction. As said in Garvey v. Long Island R. R. Co. (159 N. Y. 323): A court of equity has jurisdiction of an action to restrain the commission of a continuing trespass, because-the injunction prevents a multiplicity of actions at law, which is a. grievance to the parties and a burden upon the public. (Citing cases.). While in such an action the court may also render judgment for the. damages already sustained, that relief is merely incidental and is not. an essential part of the main Cause of action for a permanent injunction. The party entitled to damages may waive them if he chooses, by not furnishing evidence to enable the court to measure them in money, which is an advantage to the defendant, but does not defeat the action.- If such substantial and continuous interference with the-ordinary enjoyment of property is shown as would, when properly measured' by evidence, enable the court to fix the amount of thedámages, the injunction may be issued, although no damages are awarded.” So, also, in the case above cited of Pach v. Goeffroy,. an injunction was awarded but no damages.
Had the plaintiff, therefore, proceeded promptly she would have been entitled to an injunction restraining the defendant from prosecuting its business in a way that would inflict damage upon her or destroy her comfort or health. Having, however,, removed from
Our conclusion, therefore, is that the damages other than rental damages were merely nominal, and the judgment should be modified by reducing the award to six cents, and as so modified the judgment should be affirmed, without costs.
Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred.
Judgment modified by reducing the award to six cents, and as modified affirmed, without costs.