74 N.Y.S. 673 | N.Y. App. Div. | 1902
The question presented upon this appeal is the proper measure of damages in an action against the defendant for trespass in removing the water appurtenant to the plaintiff’s premises for distribution and sale to the inhabitants of the city of New York. All of the other questions of law which might otherwise be raised have been fully considered and determined in the cases of Smith v. City of Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141; Id., 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664; and Forbell v. City of New York, 47 App. Div. 371, 61 N. Y. Supp. 1005; Id., 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666; and we are to determine upon this appeal the measure of damages which should prevail in actions of this character. The rules governing the question appear to us to have been well defined, but the plaintiff urges with great earnestness that the damages awarded in the present action are based upon a wrong theory, and, as the matter is of no inconsiderable importance to the public, as well as to those whose rights have been invaded in the search for an adequate water supply for a growing city, it may not be unprofitable to review the authorities upon the point involved. The action of the plaintiff is an appeal to the equitable jurisdiction of the court, and asks for the damages which he has already sustained, with a permanent injunction restraining the defendant from “the operation in any manner whatsoever of its wells, pumps, pumping station, and appurtenances connected therewith, described in the foregoing complaint,” and it is important to an understanding of the case that the facts underlying the action be stated. It is not disputed that the plaintiff has been the owner of the premises described in the complaint since January 29, 1883. The property consists of about 82 acres of ground at Foster’s Meadow, Nassau county and Queens county, state of New York, which we may assume had a special adaptability for market gardening purposes prior to the wrongful acts of the defendant, which are not disputed. In the year 1884 the then city of Brooklyn, in an effort to produce an adequate supply of pure and wholesome water for the use of its inhabitants, drove and constructed a series of wells, and built and erected a pumping station and appurtenances connected therewith, upon property then owned by it at Foster’s Meadow aforesaid, and immediately, adjoining on the north the said real property of the plaintiff. The defendant’s pumping station (to- follow the allegations of the complaint) “is upon and at or near the source of Clear stream, which previous to about the year 1884 was a fine, natural, running surface stream, forming a part of the boundary line between the present counties of Queens and Nassau, and separated the former town of Jamaica from the town of Hempstead, * * * of a total length of about two miles, running in a southerly direction, and eventually emptying into Jamaica Bay.” It is also alleged that the pumping station wasi near the source of other streams in which the plaintiff had property rights, and that the operation of the pumps of the defendant has “dried up and kept dry the aforesaid streams, brooks, ditches, pools, and wells along or. on the above-described property of plaintiff, and has sucked and taken from, and continues to suck and take
The plaintiff, who appeals, urges that all of the points involved
“The rent of a mill or other similar property, the price which should be paid for the charter of a steamboat or the use of machinery, etc., are not only susceptible of more exact and definite proof, but in a majority of cases*677 would, I think, be found to be a more accurate measure of the damages actually sustained in the class of cases referred to, considering the contingencies and hazards attending the prosecution of most kinds of business, than any estimate of anticipated profits; just as the ordinary rate of interest is, upon the whole, a more accurate measure of the damages sustained in consequence of the nonpayment of a debt than any speculative profit which the creditor might expect to realize from the use of the money. It is no answer to this to say that in estimating what would be the fair rent of a mill we must take into consideration all the risks of the business in which it is to be used. Rents are graduated according to the value of the property, and to an average of profits, arrived at by very extended observation; and so accurate are the results of experience in this respect that rents are rendered nearly, if not quite, as certain as the market value of commodities at a particular time and place.”
The doctrine of this case, with its reasoning, is quoted with approval in Witherbee v. Meyer, 155 N. Y. 446, 450, 50 N. E. 58, and has been uniformly followed. In the case cited it was laid down as the established law of this state that a breach of contract to furnish water power to run a grist mill in a proper and efficient manner is the difference between the rental value of the mill and machinery with the power contracted for and its rental value with the power actually furnished, and we apprehend that this is the measure of past damages in the case of a trespass, such as has been found to exist in the case at bar, where the defendant has invaded the property rights of the plaintiff, rendering his land less useful; that is, we are of the opinion that the defendant, being endowed with the power of eminent domain, cannot be held to a higher rate of damages than would result from a breach of contract. To justify an award of exemplary damages the evidence must show on the defendant’s part malice, or fraud, or gross negligence (Powers v. Railway Co., 120 N. Y. 178, 182, 24 N. E. 295), and not such a 'public purpose as is here involved. The suggestion of the court in Forbell v. City of New York, 164 N. Y. 522, 527, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666, that “the defendant can employ the right of eminent domain, and thus provide its people with water, without injustice to the plaintiff,” indicates that the court had in mind the right of a municipal corporation to take private property upon the payment of just compensation, which must always be the fair value of the property taken, whether such taking is of the fee, or an easement, or any other element of property. If the defendant had the right to take the plaintiff’s property upon the payment of just compensation, the measure of damages must depend upon the value of the property taken, and, as the defendant has not elected to make use of its power, it must be liable in damages for the rental value of the property which it might have taken in the first instance up to the time that it does exercise its power of eminent domain. To determine the value of the property taken, as well as the rental value, evidence of the use to which the farm had been dedicated by its owner, the quantity of produce which it had raised, its adaptability for such purposes, the quality of the water which flowed in his streams, the use to which such water was put in raising fish, etc., was proper; but it could not form the basis of damages, except as it tended to fix the value of the property. See Rumsey v. Railroad Co., 136 N. Y. 543, 545, 546, 32 N. E. 979; Spencer v. Kilmer,
We quite agree with the appellant in the proposition that the defendant has no right to compel the plaintiff to condemn his own property. The action of the defendant in trespassing upon the rights of the plaintiff is a continuing wrong, and this case comes within the convenient and just rule, sanctioned by all of the authorities in this state, and by the great weight of authority elsewhere, that recoveries in such cases may be had in successive actions until the wrong or nuisance shall be terminated or abated. Uline v. Railroad Co., 101 N. Y. 98, 126, 4 N. E. 536, 54 Am. Rep. 661; Stowers v. Gilbert, 156 N. Y. 600, 604, 605, 51 N. E. 282. The plaintiff might, for the purpose of avoiding a multiplicity of suits, bring an equitable action to restrain the defendant from operating its pumps until it had acquired the property rights of the former: but he is not obliged to do so, and he may bring successive actions for the recovery of his damages. Galway v. Railway Co., 128 N. Y. 132, 146, 28 N. E. 479, 13 L. R. A. 788. But this point does not help the plaintiff, for he insists upon a measure of damages which has never been recognized in this state, and, as he has nominal damages in the present action, he may bring a new action for damages, which will accrue to him from day to day, so long as the defendant continues to trespass upon his rights of property. Galway v. Railway Co., supra. In this way he may com
. “He can only recover the damages he sustains from day to day, or from month to month, or from year to year, in the use of his lots; and the question to be determined in such an action is, how much has the rental or usable value of the lots been diminished by the construction, maintenance, and operation of the railway? As a basis for estimating the damages, the lots must be taken as they are used during the time embraced in the action, and the plaintiff’s recovery must be confined to the diminished rental or usable value of the lots just as they were. He was in no way prevented from putting his lots to any use he wished. He had the right, acting reasonably, not wantonly or rashly, to put upon them any structures which he deemed most to his advantage; and at any and all times until the railway company acquired as against him the right to maintain and operate its road in Fifty-Third street he had the right to recover the diminished value of his lots occasioned to them, just as they were, by the maintenance and operation of the road. But he could not be permitted to prove, or allowed to recover, such damages as he might have sustained if he had put his lots to other uses, or placed upon them other structures. Such damages would be purely speculative and contingent. The plaintiff had owned these lots for about twelve years before the railway was constructed without making any substantial improvements upon them, and they remained in the same condition down to the commencement- of the action. * * * Upon the trial he was permitted to prove what it would have cost to erect the dwelling houses upon the lots, and what they would have rented for after they were constructed, and also to give evidence of the amount for which they would have rented if the railroad had not been constructed; and the jury evidently took this evidence into consideration in fixing the amount of damages which they awarded the plaintiff. There can be no certainty that the plaintiff would ever have erected dwelling houses upon the lots, and there could be no certainty as to the rents which could have been obtained from them either with or without the railroad in the street; and the defendant was permitted by the rule adopted in the court below to have all the advantages which he could derive from keeping his lots*680 substantially vacant and ready to sell as such, and at the same time to have all the advantages, without the investment of any money, and without any risk, which he could have derived from their improved condition. He was simply entitled to the damages caused to him in the use of his lots from the defendants’ interference with his easements or light, air, and access; and such damages are necessarily, and from the very nature of the case, such only as flowed from the interference with such easements during the time covered by the action. If he desired a more ample indemnity for the injury he suffered from the railway in front of his lots, he should, by an equitable action, have compelled the defendant either by agreement with him to pay his damages, or to acquire the right by condemnation proceedings to interfere with and take his easements. Any other rule would open upon the trial in every case like this an inquiry into all the possible uses to which the abutting owner might put his premises; and damages, instead of being awarded upon any certain or probable basis, would rest mainly upon conjecture and speculation.’’
See Hartman v. Pipe Line Co., 71 Hun, 367, 25 N. Y. Supp. 24; Gillett v. Trustees, 77 Hun, 604, 28 N. Y. Supp. 1044; Reichert v. Backonstross, 71 Hun, 516, 24 N. Y. Supp. 1009. In the latter case the plaintiff was permitted to testify as to the value of certain land, flooded through the wrongful act of the defendant, if the water had not been turned upon it. The general term of the Fourth department, modifying the judgment of the county court, held that a recovery based upon such- a calculation was erroneous, and that the measure of damages should be limited to the fair value, as established by the evidence in the case, of the use for the year in question of the land actually flooded, which was lost to the plaintiff by reason of the flooding thereof, together with the cost of closing the ditch. See Storm v. Railroad Co., 82 Hun, 11, 31 N. Y. Supp. 13.
We have examined the cases cited by the plaintiff, and a large number of authorities which a diligent search has discovered to us, but without finding a single precedent which may be fairly said to support the plaintiff’s contention that he is entitled to measure his damages by the value of the crops which he thinks he might have raised upon his farm but for the wrongful conduct of the defendant. Where the damages result from a trespass upon real estate, the rule is universally applied that the rental value of the premises during the time that the wrong continues is the measure of damages which may be recovered, unless there is a permanent damage to the fee, or there is an expense involved in restoring the premises to their original value, in which case these items are included. In no adjudicated case, so far as we have been able to discover, is there a recognition of the right to recover for profits which might have been realized but for the trespass, and it is not to be expected that the court of last resort will consent to a modification of the salutary rule by which all former questions of this character have been adjusted. See Sperb v. Railroad Co., 137 N. Y. 155, 162, 32 N. E. 1050, 20 L. R. A. 752.
We do not find any evidence of fraud or deceit on the part of the defendant which would justify a court of equity in disregarding the statute of limitations, and we are of opinion that the ruling of the court upon this point was within the law, and that the plaintiff cannot recover for any loss prior to six years from the commencement of this action. Galway v. Railroad Co., supra; Arnold v. Railroad
The judgment appealed from should be affirmed, with costs. All concur.