8 N.Y.S. 707 | N.Y. Sup. Ct. | 1890
Most of the questions presented upon this appeal have been considered in cases which have been heretofore argued and conclusions arrived at .adverse to the claims made by the appellants. It is claimed that the learned judge who presided at the trial adopted an erroneous measure of damages, and admitted incompetent evidence upon the subject of damages. It seems to us that in the discussion of the rules applicable to the question of damages in these cases the peculiar position of the defendant is too often lost sight of. If the defendant, before or immediately after the building of the road, had taken the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of its structure and the operations of the road, undoubtedly the measure of damages would have been the value of those easements at that time. But instead of pursuing this course they have, without authority, seized upon these easements, maintained their unlawful structure, and operated their road, utterly regardless of the right o£ those upon whose property they were trespassing, and without showing any disposition to acquire the "title to that wiiich they had seized. It became necessary for the owners of these easements to appeal to the courts for protection from this wanton measure of their rights, and the courts would have been justified, under these circumstances, in compelling the absolute cessation of the operation of these roads until they had taken measures to condemn to their use the property which they had already seized upon. Instead of doing this, because of the great public'inconvenience which such a course would entail, they have in these proceedings proceeded to determine what would be a fair compensation to be paid for these easements, upon the payment of which, and the annual damage already sustained, the operation of the road might continue. Under these circumstances, of what time is the value of these easements to be ascertained? Clearly, as of the time of the trial. The right to recover for the damage theretofore done rests upon a different basis. The permanent damage is to be determined as of the time of the trial. If proceedings under the statute were initiated now, the present value of these easements would necessarily be allowed, not what their value was when the road was constructed. The defendant could have had this latter rule of damages if they had commenced their proceedings to acquire title when they began the construction of-their road. They have not done this, but have refused to pay until compelled to do so by the strong arm of the law, and hence, as they only pay now, they must pay what the property taken is worth now. The evidence . as to the value of these easements is necessarily, from the very nature of the case, somewhat conjectural and stringent, and strict rules are not to be applied where they would deprive an owner of all proof of damage, as we are dealing with the damage done by a trespasser; and, while damages should be proven with reasonable certainty, the rights and interests of the owner of these easements should not be sacrificed. How are we to arrive at the value of these easements taken by the defendant? To the plaintiffs they are of no value, except because of the enhanced value which they give to the property they own fronting upon the street. By themselves they are worthless,—have no intrinsic value. Then what more certain evidence of their value can be given than by proof of what the property to which they are appurtenant would now be worth with the easements, and what it is worth without these easements? But it is said that this rule is contrary to that laid down by the court of appeals.
McGrean v. Railway Co., 22 N. E. Rep. 957.