121 N.Y. 119 | NY | 1890
The plaintiff was the owner of four adjoining lots on the westerly side of West Fifty-third street in the city of Hew York. He became the owner of three of them in 1866, and of the other in 1868, and he continued to own them until after the commencement of this action in February, 1884. The elevated railway of the defendants was constructed through Fifty-third street in front of these lots in 1818, and was thereafter maintained and operated. The plaintiff used a part of his lots for a carpenter shop and the remainder as a lumber yard. This action was commenced to recover damages occasioned to the lots by the construction and operation of the railway, and the only question which it is important for us now to determine relates to the rule of damages.
When the defendant began to construct its railway in front of the plaintiff’s lots he could have commenced an action in equity against it and restrained it until it had made compensation to him for the rights and easements which it took from him, or until it had acquired them by condemnation proceedings. (Story v. N. Y. F. R. R. Co., 90 N. Y. 122.) In that way he would, at least in the theory of the law, have been indemnified for all the damage he would suffer by reason of the construction of the railway. Instead of taking his remedy by an. equitable action at that time, he could have taken it at any time afterward during his ownership of the lots with the same-result.
The rule of damages as thus laid down was violated by many rulings upon the trial of this action, and a new trial should, therefore, be ordered, costs to abide the event.
Judgment reversed.