Batchelor v. Hinkle

Ingraham, P. J.: Upon a former appeal from a judgment in favor of the defendants (132 App. Div. 620) the judgment was reversed upon the ground [622] that the plaintiff liad acquired an easement in this strip of land which had been dedicated for the widening of the adjacent street appurtenant to the property, which was appurtenant to his property; that this easement appurtenant to the plaintiff’s property was property of the plaintiff which no one could appropriate to his own use without the plaintiff’s consent, and the act of the defendants in erecting a building upon this strip of land was an appropriation of the plaintiff’s property, and the plaintiff was entitled to an injunction restraining such unlawful appropriation. We expressly held that the rule that a court of equity would not enforce a covenant in relation to a use of land where, for any reason, the enforcement of such covenant would be inequitable had no application. Upon the new trial of the case the Special Term failed to apply this rule, but has again awarded a judgment in favor of the defendants, applying principles of equity which, as we have held, were only applicable where a covenant was sought to be enforced which conveyed no property to the parties seeking to enforce it. The learned counsel for the respondents has sought to sustain this judgment upon-a principle which this court expressly held had no application. The court has re-examined the question, but sees no reason to change the views before entertained. If the plaintiff’s interest in this strip of land is an easement, properly appurtenant to the plaintiff’s property and which the defendants have unlawfully appropriated, it must be apparent that the court cannot deprive the plaintiff of her property or by a judgment force the plaintiff to sell her property to the defendants on the payment of any sum of money which the court should fix as its value. The defendants’ appropriation of this property is not for public use, the title to which the defendants have the right to acquire by eminent domain, and thus the case is not brought within the principle which has how become well settled in this State, that where a railroad company has occupied a street for railroad purposes and has power to acquire the interest.of an abutting owner in the street by the right of eminent domain, upon an application for an injunction to restrain such use, the court would refuse the relief on condition that the railroad' company pay to the owner the value of the property appropriated which it would have to pay upon proper condemnation proceedings, as this only applies where the [623] party appropriating the property has a right to acquire title to it by the right of eminent domain. The right of an abutting owner having an interest in a street to an injunction from a court of equity restraining such an encroachment was presented to the Court of Appeals in the case of Williams v. N. Y. C. R. R. Co. (16 N. Y. 97). It was there held that the defendants in constructing their railroad in a street, without any 'appraisal of the abutting owner’s damages or compensation to him in any form, were guilty of an unwarrantable intrusion and trespass upon his property, and that he was entitled to relief; that although he had a remedy at law for the trespass, as the trespass was of a continuous nature, he had' also a right to come into a court of equity and to invoke its restraining power to prevent a multiplicity of suits and could recover his damages as incidental to this equitable relief. Upon a subsequent appeal in that case, reported as Henderson v. N. Y. C. R. R. Co. (78 N. Y. 423), a judgment in favor of the plaintiffs enjoining a continued occupation of the street was affirmed. It was there said: “ Equitable relief is awarded, not as the defendant’s counsel claims by way of menace, or as a means of compelling the payment of money, but that the defendant may desist from the unauthorized use of the plaintiffs’ property, and forbear from any further interference with their rights. To hold otherwise would leave the citizen remediless against the power of a corporation to acquire and use property without compensation, and to prevent that, the court ought not to be reluctant to exercise its jurisdiction. The facts in this case show that the entry upon the land in question' was under the belief that the right to do so had been obtained, but it was not so, and the decree in this particular is just,” and it was held that the decision of the Court of Appeals upon the former appeal established the plaintiff’s right to an injunction. This same principle was applied and extended in the elevated railroad litigation which arose upon the appropriation of the streets in the city of New York for an elevated railroad. (See Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122.) The decision of that case'proceeded upon the principle that an easement appurtenant to real property was property within the meaning of the Constitution, and could not be appropriated by another without compensation, and that to enforce the right to such easement the plaintiff was entitled to appeal to a court of equity [624] for relief (See, also, Doyle v. Lord, 64 N. Y. 432; People ex rel. Williams v. Haines, 49 id. 587; Eagle v. Charing Cross R. Co., L. R. 2 C. P. 638); and the Supreme Court of the United States has lately held that an easement of abutting property owners in the streets of Hew York is property, and within the protection of the Constitution of the United States. (Muhlker v. N. Y. & H. R. R. Co., 197 U. S. 544.) The only case to which our attention has been called where a court of equity is justified in refusing injunctive relief upon payment to the party whose property has been appropriated of the value of the property, is where the person appropriating the property has the right -to acquire the property under the right of eminent domain; but where property has been thus appropriated by one having no right to acquire the property, or no right to compel the owner of the property to dispose of it against his consent, the owner of the property is entitled to it and to its full enjoyment; and where there has been such an illegal appropriation, the person whose property has been appropriated is entitled to appeal to a court of equity to en join the continuing trespass. This principle has been settled in this State by the almost unanimous decision of the courts. In Ackerman v. True (175 N. Y. 353), where an owner of abutting property had appropriated a part of the public street, the court held that the plaintiff, the owner of the other property abutting upon the street had a, right to maintain an action to abate the nuisance and also to recover any damages that she might have sustained by reason of the wrongful acts of the defendant in constructing and maintaining this encroachment upon the street. In that case it was contended that the plaintiff was not entitled to a mandatory injunction, but that claim was disallowed, arid the, plaintiff was held to be entitled to the injunction; and in the late case of City of New York v. Rice (198 N. Y. 124) a mandatory injunction was sustained restraining the defendant from continuing to occupy a portion of tlie public street in the maintenance of a building upon abutting property. It was also there held that there was no force in the objection that an .action in equity is not maintainable. In this case, before the erection' of this building was‘commenced notice was given to the defendant that the erection of the building upon this reserved space of five feet was an illegal appropriation of the plaintiff’s property, and demand was made that the defendant should respect the con [625] ditions under which they had acquired the property. Disregarding this notice, this action was commenced and an injunction was obtained, which was subsequently vacated. The action was then tried, but the complaint was dismissed, and pending an appeal to this court the defendants continued the erection of the building, appropriating the five feet which, as we have held, was subject to an easement appurtenant to the plaintiff’s property. The defendants had notice of the plaintiff’s claim and erected their building pending a litigation to enforce it, and cannot complain if, upon a final determination in a suit which had been commenced before the building was erected, it is determined that this appropriation was unlawful. A case which often'appeals to a court of equity where a person, without notice of a claim, has made extensive improvements upon its own property, is not presented. The defendants have, in violation of the plaintiff’s property rights, proceeded with the building, and they must bear the consequence of an unlawful appropriation of the property of- another.. Before finally disposing of the case it is proper to say that upon this evidence we think the finding of the court that the plaintiff’s interest in this property was of the value of one dollar is opposed to the evidence, as we think, upon the substantial undisputed evidence, the plaintiff’s interest in this strip of land was of a substantial value. I think the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event, with the direction that upon a new trial the' law as established by this court as to the rights of the plaintiff should be followed by the Special Term. McLaughlin, Clarke and Dowling, JJ., concurred.