Bernheimer v. Manhattan Railway Co.

redress by the extraordinary remedy of injunction. The rule that, to prevent multiplicity of litigation, a continuing trespass, though only of nominal damage, may be restrained (Wheeler v. Noonan, 108 N. Y. 179 , 183), is inapplicable to this case ; because here the property infringed is an easement only, and an incorporeal interest is not the subject of trespass (7 Lawson’s Rights, Remedies and Practice, § 3659 ; Cooley on Torts, 440). The wrong inflicted upon plaintiffs by defendants is the maintenance of a nuisance (Uline v. R. R. Co. 101 N. Y. 98 , 107); and it is settled law that to enjoin a nuisance complainant must show something more than nominal damage from a technical wrong (Campbell v. Seaman, 63 N. Y 568 , 586). “A fanciful diminution of the value of property by a nuisance without irreparable mischief will not furnish any foundation for equitable relief” (Snell’s Principles of Equity, 562 [Eng. ed., 1878] ; A—G. v. Nicholl, 16 Vesey, 342, St. 925).

In this case I cannot resist the conclusion that the value of plaintiffs’ property is substantially diminished by the presence and operation of defendants’ structures.

The principle of injury applied in Tallman v. R. R. Co. ( 121 N. Y. 119 ), is here totally inapplicable. There the action was at law for damage to rental value ; and, of course, the court held that the estimate of damage must proceed upon the basis of the then condition of the property, and that, in the computation of the actual loss of rentals, evidence of potential loss was irrelevant and inadmissible. But, in this equity suit for injunctive relief, the question is of permanent injury to the inheritance, and the sum to be awarded as an alternative of the injunction is not the amount of loss plaintiffs have already sustained, but all the loss they will hereafter suffer from the appropriation of their easements to defendants’ purposes. In other words, this is an assessment of the value of private property taken

for public use, and in such case the “just compensation ” of the constitution requires that, in determining the value of the property, “ due regard must be had to all the uses for which it is available and which tend to enhance its value ” (1 Hare’s American Constitutional Law, 349; Boom Co. v. Patterson, 98 U. S. 403 ).

It is legitimate, therefore, to consider the advantages of • the locality of plaintiffs’ lots for residential purposes ; the effect of defendants’ railway structures in neutralizing those advantages, and the comparative value of the lots for any other practicable purpose. I am of opinion that the utility of plaintiff’s lots as a site for residence is destroyed, and that their value for any other purpose is less than their value before the railroad.

Plaintiff’s evidence shows that before the railroad the lots were worth $50,000, and that now they are worth $55,000—an increase of $5,000. Defendant’s evidence shows that before the railroad the value of the lots was $26,000; and that now their value is $60,000—an increase of $34,000. Plaintiff’s witness testifies that the railroad depreciates their property twenty-five per cent.; defendants’ witness swears that it enhances the value of the property twenty-five per cent. Such an egregious discrepancy of estimate affords a striking illustration of the untrustworthiness of expert testimony. But, of the two witnesses, plaintiffs’ seems entitled to the greater confidence, because of his larger experience and his better opportunities of information.

From the evidence I deduce that property in adjacent streets not affected by the presence of defendants’ railroad has doubled in value since the construction of the railroad. This fact tends to prove that whatever be the benefit of the railroad to plaintiff’s property, the injury from the railroad still preponder