45 N.Y.S. 515 | N.Y. App. Div. | 1897
The right of the owner of land subject to a lease, to maintain an .action to restrain a trespass upon the reversion, and to recover damages caused by such trespass, has been settled .by several adjudications of the Court of Appeals and of this court. (Kernochan v. N. Y. Elev. R. R. Co., 128 N. Y. 559; Mortimer v. M. R. Co., 129 id. 82; Thompson v. M. R. Co., 130 id. 362.) That the plaintiff is the ■owner of "the reversion of the property described is conceded, and his right to, maintain the action to restrain .the trespass upon the reversion and to recover damages for injury caused to the reversion by the trespass follows as a matter of course. The mere fact that' the property has been leased is no answer to the cause of action, ■and the question, therefore, in this case, is as.to whether or not the plaintiff’s evidence justifies the finding of the learned trial judge as to the amount of plaintiff’s damages caused by the trespass, and .as to the value of the easement as part of the reversion which has been appropriated by the defendant road. 'It is conceded that the road is permanent; that the ■ appropriation by the defendant of the easement appurtenant to the plaintiff’s property is to continue indefinitely, and that the defendant can avoid the injunction at once by discontinuing its trespass: That, however, it refuses' to do, maintaining the structure, operating its road, insisting- upon continuing the trespass and claiming its right to erect, maintain- and operate the structure and railroad thereon in pursuance of the laws of this State. If, therefore, the proof before the court sustained the finding as to the amount of damage to the plaintiff’s reversion by the trespass,, and the value to the reversion of the . easement ¡appropriated by the defendant, it follows that the judgment was right and should be affirmed.
The property in question, situated on the north side of Forty-second street, at the corner of a street running parallel with Fourth
The trial court refused to award the plaintiff any damages for a period prior to the year 1890, when the rent to be paid was fixed by the lease, the award for past damages thus being limited to the period from the time that such rent was readjusted down to the time of the commencing of this action. The defendant strenuously
These'considerations also answer the position taken by the defendant as to the right of the court to grant the injunction. It is quite clear that this tenant is not, under the lease, in possession of the easements in the street. The rent that he is paying has been fixed upon a basis which excluded the use of those easements, as those easements were not appurtenant to the land when the arbitrators fixed the reasonable rent to be paid for the use of such land, but had been appropriated by the defendant before such rent was fixed.
As to the amount of the award by the learned trial court, we think it amply sustained, by the evidence; that in fact the evidence would have justified a much higher award. This property of the plaintiff included within this lease, is upon the corner of Depew place and Forty-second street, immediately adjoining the depot of the New York Central railroad. The evidence shows a very remarkable increase in value of property in Forty-second street in the neighborhood of the depot, except where the structure of the defendant has seriously limited the purposes for which it can be used. There is no reason why all the land immediately west of the depot should have increased from $30,000 to $120,000 a lot, as testified to by the witnesses, when a lot of land adjoining the depot on the east has not quite doubled in valueand while undoubtedly the value would be
In this case there is also an entire absence of the great benefit caused by the defendant’s road attracting a large number of people upon the street through which it runs, as here it discharges its passengers into the depot of the New York Central railroad without their descending to the street; and while we agree with the counsel for the defendant that they are not to be punished for thus providing accommodation for the traveling public, so as to enable them to take the trains with as little inconvenience as possible, in this case there is eliminated the necessity of. considering what,if any, offset the defendant is entitled to on account of the benefits to the property which arise because of the proximity of its depots, by which the business of the street is improved and property upon it rendered more valuable.
An examination of the whole testimony has satisfied us that the plaintiff’s property has been, most seriously injured by this trespass, and that the award made by the court below is reasonable and amply sustained by the evidence.
The judgment is affirmed, with costs.
O’Brien, Rumsey, Williams and Pabkee, JJ., concurred.
Judgment affirmed, with costs.