65 N.Y.S. 31 | N.Y. App. Div. | 1900
The plaintiff was the owner of two houses on the west side of Cortland avenue'in the city of Syracuse. In the street in front of
The only question before us for review is as to the measure of damages. The action was at law and the rule of damages adopted by the court was that the plaintiff was entitled to recover the difference between the value of his property burdened with the dirt and its value before the trespass was committed. The court said (at p. 109): “ As I say, the measure of the plaintiff’s damages * * * is the difference between what that place would have been worth with the dirt on it and what it would have been worth without the dirt on it. That is the thing that you are going to compensate him for, if you come to that question, for having the dirt upon his lands.” An exception was taken by the defendants to this instruction.
The effect of the verdict was to establish that the defendants were trespassers; they were wrongdoers, and the plaintiff might remove the encroachment or maintain a suit in equity to relieve his premises of this unauthorized burden or bring successive actions to recover damages for the continuous trespass. That is, the defendants are mulcted in a verdict on the assumption that they have permanently injured the premises of the plaintiff and yet acquire no right to their continued use. They do not get what they must pay for.
The doctrine was thus stated in the Pappenheim, Case (supra, at p. 444): “ In an action at law the owner of the property interfered with or trespassed upon cannot recover damages to his premises, based upon the assumption that such trespass is to be permanent. lie can recover only the damages which he has sustained up to the commencement of the action. ' The judgment entered for the damages sustained does not operate as a- purchase of the right to continue the trespass. But the owner may resort to equity for the purpose of enjoining the continuance of the trespass, and to thus prevent a multiplicity of actions at law to recover damages; and in such an action the court may determine the amount of damage which the owner would sustain if the trespass were permanently continued, and it may provide that, upon payment of that sum, the plaintiff shall give a deed or convey the right to the defendant, and it will refuse an. injunction when the defendant is willing to pay upon the receipt of a conveyance.”
The philosophy of the rule awarding damages in the suit in equity is that the.defendant could acquire the user complained of by condemnation proceedings, and the court, to prevent multiplicity of actions, acts upon the situation as it exists, and gives to the party injured his full quantum of damages, and protects the defendant
The plaintiff’s counsel cites Argotsinger v. Vines (82 N. Y. 309) to sustain his contention. In that case timber was cut and removed, and in an action of trespass witnesses were permitted to testify to the value of the farm with the timber growing thereon, and after it was removed, and the rule thus "adopted was sustained. In that case the defendants had cut and taken away the live trees, and "their restoration was, of course, impossible. It was "one completed act of trespass, and all the rights of the parties could be determined in one action. It was not a continuing trespass. The ■same suggestion is applicable to the kindred actions of trespass for the removal of shade trees, like Evans v. Keystone Gas Co. (148 N. Y. 112). In that class of eases the verdict not only determines that the defendant has committed a trespass, but it must necessarily also fix the full measure of damages, for they all accrued before the action was commenced.
In Goldschmid v. Mayor (14 App. Div. 135) the trespass complained of was .a bulging retaining wall, which projected upon .the plaintiff’s premises. The only theory, if any, upon which the recovery in that action can be upheld, is that the wall- must obviously have been a permanent structure, and that fact was assumed in the opinion.
The judgment should be reversed and a new trial ordered, with ■costs to the appellants to abide the event."
All concurred, except Adams, P. J., not voting.
Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.