Lead Opinion
This is one of the actions against these defendants commonly known as “land-damage actions.” It presents but little that is new. The defendants claim that the referees erred in their award as to the injury to the fee value of the plaintiffs’ easements. An examination of the record, however, shows that the report on this head was fully supported by the evidence. It also appears that a stipulation was entered into between the parties that the referees might view the property, and observe the obstruction and operation of the elevated railway in front of the plaintiffs’ premises, and the effect thereof. It was further stipulated that the experience of the referees, together with such observation and the information thus obtained, should be taken as evidence in the case. The record also shows that the referees availed themselves of the privileges conferred, by this stipulation, and actually viewed the property, and observed the construction and operation of the railway in front of the plaintiffs’ premises, and its effects upon them. The report of the referees, under these circumstances, should be treated very much as that of commissioners of appraisal, and should not be disturbed, unless the award is grossly excessive, or unless the referees erred in matter of
The defendants’ second point, that the referees erred in awarding damages which accrued more than six years prior to the commencement of the action, is not borne out by the facts. The referees awarded no such damages. What the defendants desire to convey is that certain leases were executed prior to the six years in question, and that, consequently, the entire damages on that head accrued at the time such leases went into effect. The point with regard to the statute of limitations, made upon this state of facts, was directly decided against the defendants’ contention in Conkling v. Railway Co., (Sup.) 12 N. Y. Supp. 846.
The only other point calling for special consideration is the allowance for damages for injury to the rental value of the premises subsequent to the commencement of the action. This point was raised in the Suarez Case, (Sup.) 15 N. Y. Supp. 222; but it was not determined, as the defendants themselves there requested the court to find damages down to the time of the trial. We think, however, that the damages were properly allowed. Rulings to the contrary were in common-law actions. In equity, however, complete relief
Concurrence Opinion
This being an action in equity, I have concluded, upon a careful examination of the questions, that-Mr. Justice Barrett is correct in concluding that damages may be recovered down to the time of trial in these cases. The rule in actions at law is undoubtedly that damages can only be recovered up to time of commencement of actions, and that such action is no bar to recovery of damages for subsequent trespass, or for a counter-claim of the trespass, after the commencement of the action, Uline v. Railroad Co., 101 N. Y. 98, 116, 4 N. E. Rep. 536; Manufacturing Co. v. State, 104 N. Y. 562, 11 N. E. Rep. 264; Hambleton v. Veere, 2 Saund. 169; Bowyer v. Cook, 4 C. B. 236; Holmes v. Wilson, 10 Adol. & E. 503. All these cases were actions at law to recover past damages. In them no recovery could be had for future damage. No rights could be acquired in those actions by which the trespass might be continued. In actions in equity of the kind of the one at bar, the trespass is treated as one to continue, and compensation for such continuance is awarded, and the right to continue acquired; hence it is proper that the whole of the rights of the plaintiff and defendant should be adjudicated upon and adjusted in one action, so that no new action may be necessary to protect the plaintiff for the damages sustained between the time of commencement of actions and time of trial. No right of action arising after the trial, I therefore concur.
Daniels, J., concurs.
