Miller v. Edison Electric Illuminating Co.

The difficulty in determining the rights of those who live or transact business in the vicinity of a building wherein is carried on manufacturing enterprise or the generation of electric light and power, as against the results produced by the mechanical force used and the combustion of coal essential to create that force,, lies rather in drawing the line which separates the lawful and reasonable exercise of mechanical forces for proper purposes from the excessive, negligent, or novel introduction of noise, jar, vibration, or foul vapors and dust into a peaceful neighborhood, than in the determination of the principles of law which prevent and compensate.. Where a nuisance is created, redress may he had by injunction and damages. Bly v. Illuminating Co., 54 App. Div. 427 , 66 N. Y. S. 737 ; Rosenheimer v. Gaslight Co., 39 App. .Div. 482 , 57 N. Y. S. 330 ;. Cogswell v. Railroad Co., 103 N. Y. 10 , 8 N. E. 537 ; Garvey v. Railroad Co., 159 N. Y. 323 , 54 N. E. 57 .

It is said by the defense that no injunction lies unless the conditions, as they exist at the time of the trial, warrant. Such is the rule where the evidence shows the past transgressions have fully ceased, and an innocent condition permanently arranged. But intermissions in violence or disturbance, with a sufficient power to-

I think the plaintiffs can hardly claim a recovery for current depreciation in rental values, and at the same time demand compensation for those things which occasioned the depreciation in those rental values, and which caused the tenant to refuse to pay as much as formerly, because he himself had sustained the loss. Nor can the plaintiffs insist upon compensation for a loss of rental during the period while they had the lawful right to compel the tenant to pay the full amount, and while, if the claim be true, the tenant was himself a sufferer from loss of custom. Nor can the landlord recover for personal annoyance and discomfort which he willingly endured, for he had as good a right to vacate as any other boarder. There can be no double recovery, even where there is an unlawful interference with rights. The right to damages, therefore, must arise, none being claimed for injury to the fee, when the loss of rental value became felt by the landlord. That period was May 1, 1895. The damages herein awarded, given to these plaintiffs, are for the depreciation in the productive power of these premises on account of such of the defendant’s acts as constitute an excess of its privilege from the period named. And, in the determination of the relief which is awarded the plaintiffs by way of injunction and damages, this court does not decide that the entire depreciation of possessory value is owing to the Edison power station, or that every

It is very certain that manufacturing enterprises may be maintained in busy cities, even though they do occasion some noise, disturbance, and jar. Their uses are so essential, and in harmony with the needs of man and. his development, that it is always well to view their conduct with full consideration of the necessities of their existence, even while giving a hearty and deserved recognition to the rights of those affected by their activities. The counsel for the plaintiffs urge that the eyes of Justice should be blind to consequences, and that her famous statue stood with darkened vision, that she might not see what would result from her decision. It would seem to this court that the greater object in blinding Justice was to prevent her seeing the personnel of those interested in her judgment, and that modern Justice cannot have her eyes too widely open to take in all the things which may produce great benefits or great hardships for insufficient or unrighteous cause.

Nor is it apparent from the evidence that this half block on West Twenty-Sixth street is the only portion of the city of New York which for the past 12 years has remained stationary in possessory value or character of occupation. ' The currents which move the action of men in the great city of New York have had their effect here. Its residential population is partly lost by movements to upper portions of the city, erection of apartment houses and numerous hotels, which have the convenience of elevators and baths, which this hotel has not. Business has invaded this region, and, apart from the depreciating causes incident to the commercial revulsion of 1893, we can readily see why so great a profit cannot now be had from the use of this quiet family hotel, not adapted to present exigencies, as could have been realized 10 years ago.

We have so far assumed that some cause of action exists for which the plaintiffs may recover. That assumption accords with the judgment of this court. Up to October, 1899, there was at times unnecessary jar and vibration, and prior to March, 1899, more noise and disturbance from the removal of ashes than the occasion required. At times there was also a deposit of soot and cinders which may fairly be taken into consideration. The main grievance, however, was the vibration and jar, without which the other causes might have been insufficient to justify injunctive relief. Only occasional transgressions beyond the power of lawful privilege, since October, 1899, have been proven. I cannot, therefore, award any injunction against the maintenance of the power station in activity, but do determine that an injunction shall lie against overloading the machinery, which is entirely within the control of the defendant, especially as it has now in process of construction another power plant which will assist in lightening the burden the station on Twenty-Sixth street has to carry, and against any jar or vibration arising from more than the customary use since October, 1899. The removal of the structure between the station and the plaintiffs’ premises, unless the new building substituted be improperly used, will, with due care, render any jar or vibration communicated 43 feet away to the plaintiffs’

Ordered accordingly.