Rector v. New York Elevated Railroad

This is the usual abutter’s action in equity for past and fee damages. The plaintiff is a religious corporation. Its property, the subject-matter of this suit, is a plot of land at the corner of Twenty-Eighth street and Ninth avenue, in the city of New York, on which it has erected and now occupies a church edifice. The evidence on the trial established that the interference with the easement of light, air, and access to the premises had been comparatively slight, but that the noise from the running of the trains had been

While the noise caused by the operation of the defendant’s railroad' could not be considered in ascertaining the fee damages, nor could compensation be awarded therefor (American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252 , 29 N. E. 302 ), until the plaintiff’s property rights were acquired, the defendant, in relation to the plaintiff, was a trespasser on the street and liable to respond for all damages caused, including injury or damage from noise (Kane v. Railroad Co., 125 N. Y. 164 , 26 N. E. 278 ). There can be no question on the evidence that the noise seriously interrupted and interfered with the religious exercises carried on in the church. The-learned trial court has not found to the contrary. It did find as follows:

“The plaintiff is a corporation. Whatever inconvenience the defendant’s railway has caused has not been to it as distinguished from its agents, employes, or members of its congregation.” “No loss of profits has been caused in the past to plaintiff in the management and carrying on of its business by reason of any acts of defendant.”

From these findings clearly appears the theory on which the decision of the trial court proceeded,—that, first, because the plaintiff was a corporation, and, second, because its property was not used for pecuniary profit, plaintiff was not entitled to recover. We believe that neither proposition is correct.

It is claimed that tire doctrine of the first proposition is justified by the decisions of the late superior court of the city of New York. Those cited to us seem to give countenance to the claim. We can readily appreciate that distinction can be drawn, whether well or ill founded, between the rule of damage in cases where the owner occupies the property and that applicable where the property is rented out; between a case where the owner with his family occupies the premises as a dwelling and a case where the premises are occupied for business purposes; between a case where the premises are used for pecuniary gain and where they are used for religious, educational, or charitable purposes. But we are at a loss to perceive how even a plausible distinction can be drawn between the case of ownership by a private person and that by a corporation. If vicarious annoyance or imputable discomfort is to be the subject of compensation, why may not the rule obtain in case of the corporation as well as in that of the individual? Injury to its person the corporation cannot suffer, but that might be equally true of a private owner. He might have been in Europe the whole period, and have never entered the premises, his business there being conducted by agents.

In answer to the finding that the plaintiff has suffered no loss of profits in its business, the learned counsel for the plaintiff (possibly seriously) urges that the evidence established that, since the construction of defendant’s railroad, the wealthier members of the congregation had left the church, and their places been filled by persons in less affluent circumstances. This does not help the plaintiff unless there is a presumption of law that the liberality of the members of the congregation is proportionate to their wealth. If this were a

The judgment appealed from should be reversed, and a new trial granted; costs to abide the event. All concur.