text:
    AMALIA MEYER, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.

      Verdict—presumption that jurors home compromised opinions as to amount—Libel—rule as to damages.

    There is no presumption that individual jurors have compromised their opinions in arriving at the amount of a verdict in an action for libel where there is no evidence as to damages, from the mere fact that the verdict is for a certain number of dollars and three cents.

    The rule as to damages in actions for libel stated by the court, and a verdict of §1,375.03, held not excessive, as actual damages to plaintiff in her business as midwife, from a libelous writing in regard to her said business, printed and published in a newspaper in New York city, where a retraction of the charge made was published in the same newspaper two days thereafter, no evidence of damage being before the jury. In such case, the question of malice, in its bearing upon the right to exemplary damages, should not be taken from the jury.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal by defendant from judgment and from order denying motion for new trial. .
    The complaint showed that the plaintiff was a midwife, and that the defendant was the publisher of the World, a newspaper published in the city of New York.
    That defendant maliciously published a false and. scandalous article in its paper, and that thereby the plaintiff has been injured in her trade and business as a midwife.
    The gist of the article complained of was that Mrs. Meyer was well known in the profession as an abortionist. The damages were based on loss of business as a teacher of midwifery and as a midwife.
    The answer admitted the publication, &c., and denied each and every other allegation of the complaint. The second defense, by way of mitigating circumstances, stated that the publications were inserted in its newspaper by its employees as items of public, news, believing the same to be true, after due inquiry.
    The third defense was that the publication occurred on September 11, and on September 13 a full retraction of said publication was made in the said newspaper, stating that the plaintiff was not intended, but another person of the same name.
    The fourth defense was that the facts and circumstances under which the facts stated in such articles were gathered were such as to reasonably induce in the mind of a person , possessed of ordinary intelligence and knowledge a belief in the truth of said publications ; that the persons engaged in the publication of said paper before and at the time of said publications knew such facts and circumstances, and that they were by reason thereof led to believe in the truth of the charge, said facts being that the person really alluded to in said articles was not the plaintiff, but a Mrs. Dr. Meyer, a person generally called by the same name as plaintiff, and that statements were made by several persons to them that she was the same person as the one intended to be described, and that the persons who were engaged in said publications really believed that there was but one Mrs. Dr. Meyer in the city of New York.
    Evidence was given upon the trial tending to establish the facts alleged in the answer, and a copy of the paper containing the retraction above referred Lu was in evidence.
    No evidence of actual damage to plaintiff was given.

      Alexander & Green, attorneys, and C. B. Alexander, of counsel, for appellant, among other things, urged:
    I. In an action of tort the jury could not estimate the damage, in the absence of evidence, so as to honestly find a verdict of $1,375.03 (Kelly v. Sherlock, L. R., 1 Q. B. 697; Falvey v. Stamford, L. R., 10 Q. B., 54).
    II. The verdict is contrary to the weight of evidence, because the defense showed due diligence and care (Dunn v. Hall, 1 Ind. 344); also grounds constituting reasonable cause (Shilling v. Carson, 27 Md. 186; Purple v. Horton, 13 Wend. 9; Skinner v. Powers, . Id. 451; Howard v. Thompson, 21 Id. 319 ; Donelly v. Swain, 2 Phil. Rep. 93 ; Snyder v. Andrews, 6 Barb 43 ; Potter v. Thompson, 22 Id. 87).

      Davenport & Leeds, attorneys, and J. S. Davenport, of counsel, for respondent.
   By the Court.—Sedgwick, J.

The was no error in any of the rulings of the learned judge upon the' trial. The defendant’s rights were protected, in every direction. The only point for particular consideration relates to the damages. The appellant’s counsel claims that they were excessive and that the court should have granted the motion fora new trial on that ground. It is not denied that the libel was untrue, or that the plaintiff was entitled to an amount that would have compensated for the actual damage. But it is claimed that the preponderance of testimony was that there had been no actual malice ; that the article complained of had been written after great care and attention, to find the truth of its statements ; that a full retraction was' made on the day but one after the libel had been published, and that it was not a case, therefore, in which the plaintiff was entitled to exemplary or punitive damages. It is further claimed that on the evidence it is clear that the amount of the verdict, $1,375.03 was greatly in excess of the amount that would compensate the plaintiff for actual damages.

I am of opinion that the court was right in not taking from the jury the question of malice in its bearing upon the right to exemplary damages. The remarks of the judge on this point called the attention of the jury to all the particulars which were favorable to the defendant. On the other hand, it does not appear that the amount was in excess of actual compensation. It.is to be presumed that the jury exercised a sober judgment in their assessment, and great weight is to be given to their action, in a matter which they are1 so much better fitted than a court to decide. Fry v. Bennett (3 Bo'sw. 246) gives the rule that must be applied to this case : “ The true rule is, that if the defendant fails to justify, the plaintiff is entitled to recover,, at all events, his actual damages. He has a right to these, although the defendant, at the time of publishing the libel, believed the facts alleged to be true. The actual damages are to be determined by the jury, in a sound discretion, upon a careful consideration of the offense or misconduct imputed to the plaintiff, the circumstances of the publication, the extent of its circulation, and the natural and necessary consequences of such a publication, according to the results of human observation and experience.” That the libel charged a very gross violation of morality and law, in respects that it was natural and probable would seriously injure her personally and her business, cannot be denied, and the jury would have a right to consider whether .there would not be damaging consequences from the charge, even after there had ceased to be any doubt that she was innocent.

A suggestion was made that the individual jurors must have compromised their opinions as to the proper amount of damages, for the reason that there is no other way of accounting for the three cents that was a part of the verdict. This is not convincing. It is more likely that twelve . minds agreed upon a very exact estimate of damages, than that several were of such opinions as to the amount of damage that an average of them would result in the fraction of three cents, which it be thought important to retain.

I am of opinion that the judgment and order appealed from should be affirmed, with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    ROSA De JONGE, Appellant, v. PAULINE GOLDSMITH, Respondent.

      IAfe insurance—endowment policy payable to-.wife not assignable—Evidence.

    A policy of insurance payable to the wife upon the death of her hus- ' band, or upon a certain date, should he then be living, is not assignable by the wife. A guaranty by the wife of the “sufficiency and validity of the assignment” does not.give validity thereto; nor does the assignee acquire any interest in the policy by subsequent payment of premiums in good faith. His rights are limited to the recovery of the amount so paid by him.
    The presumption that such a policy was issued for the purposes declared in the act of 1840, is not destroyed by proof of a former assignment by the wife for the husband’s benefit. Whether such evidence is admissible for that purpose, qumre.

    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.

      Appeal by plaintiff from judgment.
    The action was begun by the plaintiff against The Mutual Life Insurance Company, to recover the amount of a policy of insurance upon the life of Henry Goldsmith, for the benefit of his wife, Pauline Gold smith, the present defendant, and assigned by her to the plaintiff. The insurance company was allowed by order to substitute the present defendant in its place, having deposited in court the amount due upon the policy.
    The policy was payable to the wife, on the death of her husband, or if he should be living on November 1, 1880, then, on that day. The husband died in 1877. Before his death, his wife assigned the policy to the plaintiff, by an instrument in writing which guaranteed “the validity and sufficiency of the foregoing assignment to the above named assignee.” The assignee paid four quarterly premiums, before the death of Mr. Goldsmith.
    The court held that the assignment was void, for want of power of the wife to assign, and adjudged that the defendant was entitled to the fund in court, excepting an amount equal to the premiums paid by the plaintiff, which amount was adjudged to be paid to the plaintiff.

      James K. Hill, attorney, and J. A. Shoudy, of counsel, for appellant.

      Eli M. Cohen, attorney, and Otto Horwitz, of counsel, for respondent.
   By the Court.—Sedgwick, J.

Brummer v. Cohen, decided by the general term of the New York common pleas (58 How. Pr. 239), the discussion in the opinion of Jndge Larremore in that case at general term, and of Judge J. F. Daly at special term, and the cases cited by those judges, require that there should be an affirmance of the position taken below, that the assignment of the defendant to plaintiff was void. The interest of the wife is non-assignable, on the ground that the intent of the statute would be defeated, if such a policy were held to be assignable (Eadie v. Slimmon, 26 N. Y. 15).

It is then further to be observed that the guaranty by a wife, of the validity of such an assignment, must partake of the fundamental objection to the assignment itself. If the guaranty be valid, the law would not declare the assignment invalid. A promise to make the assignment valid and sufficient has not as much strength as actually assigning.

The learned counsel for appellant argues that, the payment of premiums by plain tiff in her own right, and while claiming to be the owner of the policy, cannot inure to the benefit of the defendant. ‘1 Whether or not the policy that is attempted to be assigned is or shall be kept alive, so far as the payment of premiums affects this question, depends upon the position that the company may take. The assignee pays the premium from time to time. If it be assumed that the assignee does not, by legal construction, act for the real owner of the policy, if the company receives the premium, knowingly or unknowingly, from the assignee, the sole effect is, that the policy has been, as matter of fact, kept in being, to be enforced according to its terms. It concerns the company only to raise the question that the party interested in the policy did not tender the premium, and that it was not obliged to receive a premium from a stranger, if an assignee of this kind be a stranger. The assignee voluntarily keeps the policy alive to be enforced according to its terms, and his sole right is confined to a claim he may make to the. amount of the premiums paid by him.

I am of opinion (Brummer v. Cohen, supra) that it is presumed from the form of a policy of this kind that it was issued for the purposes declared-to be lawful by the act of 1840, and that the force of this presumption would not be destroyed, by proving that the wife had once before assigned the policy for the husband’s benefit, regaining it by reassignment. Perhaps, though it is not necessary to decide this, no amount of acts or words on the part of the wife, after the policy is issued, could be given in evidence to show that the policy was not protected by the statute, for she might in that way succeed in violating the intent of the statute which is a prohibition upon her.

We think the learned judge was right, in the exercise of his discretion, in adjudging costs against the plaintiff. There might be a doubt, if only personal rights were concerned, .that depended upon the agreement of parties. But there is a matter of public policy involved. The statute is well known. Its construction has been settled for many years, and any party that bases a claim that is forbidden by it, should do so with the risk of paying the costs of the action in which the claim is made.

Judgment affirmed, with costs.

Freedman, J., concurred.


text:
    HARVEY M. MUNSELL, Respondent, v. EDWARD FLOOD, Appellant.

      Action to recover personal property—form of judgment in.

    The clerk has no authority to enter an absolute judgment for interest in an action for the recovery of personal property, where the plaintiff is entitled to a judgment in the alternative for the recovery of the possession of the property, or in default of delivery for the value thereof, the jury having awarded no damages for detention of the property. The interest allowed by section 1,835, Code Civil Procedure, must be added to the sum which plaintiff recovers in case possession cannot be had, and is subject to all the conditions applicable to said principal sum.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from order, denying defendant’s motion to correct the form of judgment. The facts appear in the opinion of the court.
    Butler, Stillman & Hubbard, attorneys, and Adrian H. Joline, of counsel, for appellant.

      Edgar Whitlock, attorney, and James Hamilton, of counsel, for respondent.
   By the Court.—Sedgwick, J.

The action was to recover possession of certain choses in action. The verdict was given on April 17,1879, for plaintiff, and the jury assessed the value of the property at $3,241.23, but did not assess any damages for the detention. The-court ordered that judgment upon the verdict be stayed, and that defendant’s exceptions be heard in first instance at general term. The general term overruled the exceptions, and ordered that plaintiff have judgment on the verdict. The clerk entered judgment that the plaintiff recover possession of the property; that in case a recovery of possession cannot be had, then that plaintiff recover from the defendant the sum of $3,241.23, being the value of the property as assessed; no interest was added to this sum, excepting as a following independent clause provided. This clause was: “It is further adjudged that the plaintiff recover from the defendant the sum of $151,60, being interest on the verdict aforesaid, as computed by the clerk of this court, from the time of rendering of said verdict to the time of entering this judgment, and which, added to the amount thereof, makes a total of $3,392.83.”

The defendant’s counsel claimed below that the judgment should be modified by striking out the last clause, and adding the interest to the sum which the plaintiff recovered, in case possession could not be had. It seems clear that the form adopted gives an absolute and not a conditional judgment, both for the value assessed and the interest computed on it. This is not correct, and indeed was probably unintentional. On the appeal, the only difference between counsel was in respect of the interest. Section 1,235 of the Code of Civil Procedure contains the only authority the clerk has, to increase a sum awarded by verdict by adding interest. The interest must be added to the sum

awarded. The clerk has no power to alter the judgment or any condition of it, in any particular. After the sum is added, it must be left to all the conditions applicable to the principal awarded.

The result of not doing this, in the case here, has been that the clerk has assessed damages when there is no adjudication that the plaintiff is entitled to them, and when the clerk is not empowered to assess them.

The judgment should be modified by striking out the last clause, and by adding the amount of interest to the sum to be recovered, in case possession cannot be had.

Order appealed from reversed, with' $10 costs, and disbursements to be taxed, and an order should be entered, modifying judgment as has been stated.

Freedman, J., concurred.


text:
    THE SONOMA VALLEY WINE AND BRANDY CO., Appellant, v. THEODORE LAX, Respondent.

      Sale ly sample—Mi Hence.

    Upon the trial, the action being for the value of goods sold, the sample by which the sale was made was not produced in court, and the evidence as to it was very vague. The plaintiff offered to read from the deposition of plaintiff’s agent the answer to the question: “From what sample of wine did you take your order from said Lax ?” which answer was excluded.

      Held, error, for which a new trial must be granted.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment. The facts appear in the opinion.

      Edward S. Hatch, for appellant.

      Jerolorman & Arrowsmith, for respondent.
   By the Court.—Sedgwick, J.

The defense was that there had been a breach of a warranty, that the goods, for the price of which the action was brought, would be of a quality equal to a sample shown to defendant. The deposition of plaintiff’s agent, who negotiated the sale, had been taken. The plaintiff read from it the question: “From what sample of wine did you take your order for said wine, to said Lax?” The question was objected to as immaterial. The court excluded it. The sample had not been produced in court. The evidence in respect of it had been very vague. The defendant’s witnesses had given but a general description, and the plaintiff had a right to a full and exact statement of what its quality and quantity were, and from what it had been taken. For the exclusion of this question the judgment should be reversed, without passing upon the other exceptions.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.

Freedman, J., concurred. •'


author:
Speir, J.
      Curtis, Ch. J.—[Concurring.]

text:
    SALVATOR CARO, Appellant, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY.
    I. Constitutional Lam.

    1. Inhibition against taking private property.

      (a) “Property,” as here used, embraces—
    1. The free use, enjoyment and disposal of all of one’s acquisitions without control or direction.
    1. Taking of property, what constitutes.
    1. From the above definition of property it follows that the polluting the a/ir of one's dwelling with noisome smells which renders the enjoyment of life and property un- " comfortable, is the taking of property.
    1. This, although the smell be not unwholesome.

      (b) Injunction against the violation of the inhibition.
    1. Inability to comply with provisions etiacted for compensation.

    1. When an act under which a corporation is organized authorizes the taking by such corporation of private property for public use, and provides for the making by such corporation of compensation for the property taken by it, and is therefore constitutional, yet where the taking consists in the daily and continuous interference with a naked incorporeal right incident to tangible property, to the diminution of its free enjoyment, e. g., the polluting the air of one’s dwelling with noisome smells, which, although not unwholesome, yet render the enjoyment of life and property uncomfortable—and no compensation is made for such interference, and the corporation’s want of ability to make reparation is proved or admitted, an injunction may go against the doing or suffering to be done that which causes such interference.
    XI. Legislative enactment.

    1. Authorizing the doing or carrying on of a particular act or work, eifect of.

      ia) It does not authorize the doing of anything not
    NECESSARILY INCIDENT TO THE ACTS OR WORK AUTHORIZED, WHICH WORKS INJURY TO THE PROPERTY RIGHTS OF ANOTHER.
    1. A legislative authority to construct an elevated railroad and to operate it by atmospheric power, compressed air or other power, does not authorize vt to pollute the air of abutting dwelling-houses with noisome smells or noxious gas, which greatly diminish the enjoyment of the occupation of such houses. Such authority neither directly nor by implication authorizes the infliction of such a grievance. The infliction of such grievance does not appear to be necessary or incident to the exercise of the corporate authority and power.

    1. Injunction. Such grievance not being authorized by the legislative power, and being continuous in its character, and the party inflicting it not being of ability to make reparation, an injunction will go.
    Before Curtis, Ch. J., and Speir, J.

      Decided April 5, 1880.
    This is an appeal from a judgment of the special term on the report of a referee, sustaining a demurrer to the- complaint, on the ground that it does not set forth facts constituting a cause of action.
    The complaint in brief sets forth that the plaintiff, in 1874, bought a parcel of land, of about one hundred feet by half the block on the northerly side of Fifty-third street, between Sixth and Ninth avenues, abutting on said street, from Mr. Taiman, for the price of §8,000, and built a dwelling-house thereon at an expense of §30,000, and with his family has resided therefrom 1875 to the present .time ; that the title to the land was derived by mesne conveyances from James-J. JBertine. That when Fifty-third street was opened to the public in 1838, and the fee therein vested in the city of Mew York, this parcel of land extended southerly to a line coincident with the present center line of said street, and was, in its entire extent, the property of Bertine ; that in opening the street, the city took so much of said land as lay between the line coincident with the center line of said street, and the southerly line of said lot. That it was determined by the commissioners of appraisal that the benefit and advantage to Bertine, by reason of his. interest in the land, over and above the loss and damage to him from the opening of the street, and for relinquishing his interest in the land for the purpose of the opening, amounted to the sum of $5.80 ; that as successor and privy in interest and estate to Bertine, plaintiff is entitled to the undiminished possession and enjoyment of said benefit and advantage, and of such he cannot be deprived without just compensation or due process of law.

      Roger A. Pryor, attorney, and of counsel, and Benjamin F. Butler, of counsel, for appellant, among other things, urged :
    injury complained of is a taking of property, a. In a legal sense, property indicates not the thing owned, but the right to the thing ; audit consists in the right to the use and enjoyment of the subject of property. “ Property is the right of ownership of any object. The words ‘ property’ and ‘ possession’ bear a double meaning, each signifying the right itself, and the object of the right. In such expressions as the security of property, infringement of property, the right itself is meant” (Sir G. C. Lewis, Use and Abuse of Political Terms, 170). “ Taken with its strict sense, property denotes a right—indefinite in point of user, unrestricted in point of disposition, unlimited in point of duration—over a determinate thing. Sometimes it is taken in a loose and vulgar .acceptation, as denoting not the right of property, but the subject of such a right, as when a house or piece of land is called my property ” (2 Austin Jurisp. 817, 818 [London ed.]). “ Property is the right to use or deal with some given subject in a manner or to an extent which, though it is not unlimited, is indefinite. In which description is necessarily implied that the law will protect or'relieve the owner against every disturbance of his right on the part of any other person” (2 Austin, 965 B. a; Amos Science of Law, ch. VIII). The Roman law defines property thus: “ Dominium est fus utendi et abutendi re sua quatenus juris ratio paiitur, (See Laveleye, op. cit.,post, and 9 (Euvres de Pothier, 103, ed. 1861). The French Code thus: ‘ ‘ La propriété est le droit de disposer et de jouir des dioses de la maniere la plus absolue, pourvu qd on denfassepas un usage prohíbe pas les lois et les reglements.’’ Art. 544. “Ownership was in Roman law expressed by the word dominium, sometimes proprietas. The dominus was entitled to the use of the thing (usus), to the perception of all the products (fructus), and to consume the thing entirely if it were capable of consumption (abusus) ” (Bandars Justinian [Am. ed.], 38). “Property imparts to the owner a power of indefinite enjoyment or use, and contains, among other elements, certain powers of exclusion ” (Poste's Gaius, II., §§ 1-14, pp. 164, 165; 2 Ortolan, Legislation Romaine, 255; 1 Id. 653 et seq. ; 1 Maynz Cours de Droit Domain, 692, note 9 ; Laveleye, Les Formes Primitive de la Propriete, 381 ; 1 Morulon, Repetitions du Code Civil, 655 ; 1 Pothier, 35, § 100, and note, 3 ed. cit. ante). “Property consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save by the laws of the land” (1 Black. Comm. 138). ' “ Property is the right of any person to possess, use, enjoy, and dispose of a thing. The term, although frequently applied to the thing itself, in strictness means only the rights of the owner in relation to it” (Selden, J., in Wynekamer v. People, 13 N. Y. 433 ; Jackson v. Housel, 17 Johns. 283, per Spencer, Ch. J. ; Sherman v. Elder, 24 N. Y. 384, per Allen, J.). “ The essence of property consists in a right to enjoy, which excludes all others of the human race” (Schouler on Per. Prop., Introduction; Mills on Em. Domain, § 31). Hence, ‘ ‘ the term £ property ’ in the constitution includes a right of action for injuries to land proposed to be taken for a public purpose” (Morris v. Townsend, 24 Barb. 658). So a right of reversion is property, which may not be taken without compensation (Heard v. City of Brooklyn, 60 N. Y. 242). So, of a right to the use of water power (Bank v. Roberts, 44 N. Y. 192). So, of an easement over the land of another (People v. Haines, 49 N. Y. 587; Arnold v. Railroad Co., 55 Id. 661). So, of the lien of a mortgage (Astor v. Hoyt, 5 Wend. 605). So, of a riparian right to the use of running water (Gardner v. Newburgh, 2 Johns. Ch. 161 ; Yates v. Milwaukee, 10 Wall. 497). So, of an easement of way over the road of a turnpike company (Troy, &c. Co., 16 Barb. 100). So, of a corporate franchise (West River Bridge v. Dix, 6 How. U. S. 507 ; Richmond v. Railroad Co., 13 Id. 71). So, of a right in land subject to the easement of a public highway (Williams v. Railroad Co., 16 N. Y. 97). So, of the right to hold one’s land exempt from a flow of water (Pumpelly v.
      Green Bay Company, 13 Wall. U. S. 166). So, of the right to dispose of property (Wynehamer v. People, 13 N. Y. 378). So, a contested claim to unliquidated damages is property (Erwin v. United States, 7 Otto [ U. S.] 392). “ The owner of a lot fronting on a street has a peculiar interest in that street. His title carries with it, as an essential incident, certain valuable and indispensable servitudes and easements, which are as invaluable as his property in the lot itself. And this peculiar right exists as well when the fee of the street is in the public, as when it is in the lot owner” (Lindsay, Ch. J., in Jefferson, &c. v. Esterle Co., 13 Bush [Ky.] 667, 677). b. Since property consists in the right to the use and enjoyment of the tiling owqed, any restriction or limitation upon that right is a taking of property. A person may be deprived of his property, “ although the title be not affected, nor the material substance be taken or destroyed” (Berthold v. O’Reilly, 74 N. Y. 516). Property consists in the right of the owner to use and enjoy it exclusively, and whatever impairs that right “ destroys the notion of property, although the thing itself remain physically untouched” (Wynehamer v. People, 13 N. Y. 387). “Any injury to the property of an individual which deprives him of the ordinary use of it is equivalent to a taking.” Hence “a partial destruction or diminution of the value of property by the act of the government, directly and not merely incidentally affecting it, is, to that extent, an appropriation” (Cooley Const. Lim. 544, 545 ; Mills Em. Domain, ch. IV.). “it is not necessary that property should be absolutely taken, in the narrowest sense of the word, to bring the case within the protection of the constitutional provision. There may be such serious interruption to the common and necessary use of property as will be equivalent to a taking, within the constitution” (Pumpelly v. Green Bay, 13 Wall. U. S. 166). “ Where real estate is invaded .... so as effectually to destroy or impair its usefulness, it is a taking ” (Id. 181). “Any contribution made to the sovereign by the subject, greater than his quota or proportion, requires compensation to the subject” (Fuffen. B. 8, c. 3). “The imposition of a burden upon lands, subjecting them to an easement, in behalf of the public, derogatory to the rights of the proprietor, and depriving him of the full and free enjoyment of them,” is a taking of property, for which compensation must be made (People v. Haines, 49 N. Y. 590). “When a law annihilated the value of property, and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it, according to the plainest interpretation, and certainly within the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power” (Wynehamer v. People, 13 N. Y. 398). “Nor is it material to inquire as to the quantum of interest; it is enough that some portion of his estate, no matter how small, has been taken” (Taylor v. Porter, 4 Hill, 140 ; Seneca v. Railroad Co., 5 Hitt, 170). Hence, in the first case, it was adjudicated that a statute authorizing a private road over another’s land, without consent or compensation, was unconstitutional and void. So an exclusive franchise to tolls is taken by the concession of a similar right to another (State v. Noyes, 47 Me. 189). So, a partial destruction or diminution of value is a taking (Hover v. Powell, 10 N. J. Eq. 211.) So, depositing, stone or rubbish on land is a taking (East v. Schollenberger, 54 Pa. St. 144). So, acquiring an easement to run on another’s road (Jersey, &c. v. Railroad Co., 20 N. J. Eq. 61). So, the destruction by the State of a waterfall on a private stream (People v. Canal Appraisers, 13 Wend. 355 ; reversed, 17 Wend. 571, but on another point). So, changing a private into a public stream (Morgan v. King, 35 N. Y. 454). So, digging a ditch by authority of the legislature on the land of a private owner (People v. Nearing, 27 N. Y. 306). So, in appropriating land by the public to allow nothing for the widow’s right of dower (Matter of----------, 19 Wend. 678). So, in laying gas pipes in a country highway (Matter of the Petition, 62 N. Y. 386); or constructing a sewer in the street of a city (Kelsey v. King, 33 How. 39. So, depriving one of the use or enjoyment of property (Matter of Bushwick, 48 Barb. 9, 12). So, as against the owner of the fee, interfering with his use of trees in the highway (Village v. Richardson, 4 Lans. 136, 141). So, any act affecting the absolute and exclusive enjoyment of property (People v. Platt, 17 Johns. 195). So, building a railroad across a turnpike (Seneca v. Railroad Co., 5 Hill, 170). So, any encroachment upon property, or disturbance of its possession or enjoyment (Brooklyn, &c. v. Armstrong, 45 N. Y. 245). So, flooding land by excavating for a railroad (Robinson v. Railroad Co., 27 Barb. 512). So, causing consequential damage to adjoining property by erecting a railroad embankment (Mahon v. Railroad Co.; Hill & Denio, 156). So, abridging a husbánd’s interest in his wife’s property (White v. White, 5 Barb. 474; Westervelt v. Green, 12 N. Y. 202. And see Eaton v. Railroad Co., 12 Am. R. 153, et seq., for additional illustrations of what constitutes a taking of property). “That which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be destroyed or deprived of its essential attributes” (Wynehamer v. People, 13 N. Y. 386). “An act that works the essential loss or destruction of property is a taking of property” (Id. 387). “All property is alike in the characteristic of inviolability” (Id. 385). Summing up the effect of the authorities, Mr. Wood says : “It may not always be easy to determine what really amounts to a taking of property, but it is safe to say that whenever the exercise of the right operates to destroy an easement incident to real property, or operates as an actual physical invasion of property by some agency that produces injury thereto, or imposes a burden thereon, that this is a taking of property” (Law of Nuisances, § 755). In this case respondent is doing an act upon its own land which restricts and burdens appellant’s use and enjoyment of his; and this is the very definition of an easement (Church, J., in Pierce v. Keator, 70 N. Y. 421 ; Goddard on Easements, 1). But “An easement is property, and cannot be created without compensation” (Smith, J., in Eaton v. Railroad Co., 12 Am. R. 154). c. Bellinger v. New York Central R. R. Co. (23 N. Y. 42), is distinguishable from the present case in this essential particular, viz. : “ The railroad company had acquired title to the land occupied by the track of its road, and the plaintiff lias received payment for the value of 'his portion of that land, and for his damages in consequence of the road having been laid out through it” (Furniss v. Railroad Co., 5 Sandf. 551). But appellant has had, and could have had, no indemnity for the injury inflicted on his property by respondent. He was paid originally only for the value of the land taken for a street in its ordinary use ; but the construction and operation of respondent’s road, which is the cause of his injury, constitute a new use, an additional burden, and an unanticipated injury (Williams v. Railroad Co., 16 N. Y. 97 ; Mahon v. Railroad Co., 34 Id. 658 ; Craig v. Railroad Co., 39 Id. 404; Broisted v. Railroad Co., 55 Id. 220 ; Wash. Cem. v. Railroad Co., 68 Id. 591). In Lawrence v. Railroad Co. (16 Adol. & Ell. N. S. 643), it was held that damages not foreseen, and occurring from some subsequent injury, are not included in the original compensation (Furniss v. Railroad Co.,5 Sandf. 551). So that the opinion in Bellinger’s case, so far as adverse to appellant’s claim, was obiter, and it has since been distinctly repudiated by the court of appeals. Pumpelly v. Green Bay (13 Wall. 166) enunciates the contradictory opposite of the doctrine in Bellinger y. Railroad, and in 1878 the court of appeals recognize “ the soundness of the view taken by the United States supreme court,” and “fully approve it” (Bertholf v. O’Reilly, 74 N. Y. 516). Moreover, in Bellinger’s case, p. 51, the court pointedly distinguish “ consequential damage” from the effects of a direct invasion of property. In Kellinger v. Railroad Co. (50 N. Y. 206), the complaint was of an obstruction to the street, interrupting plaintiff’s access to his premises, and the court held that an action would not lie for ‘1 a mere inconvenience” in the use of the street. The case is unlike the present in every material circumstance. But, in the conclusion of his opinion (p. 212), the learned chief judge uttered the significant warning: “ While we feel bound to hold that this action cannot be maintained upon the allegations of the complaint, we do not intend to determine that there are no circumstances which will justify an action.” Bertholf v. O’Reilly (74 N. Y. 509), involved no question in the law of eminent domain, but merely vindicated an,exertion of the police power in regulation of trade and the use of property, as to the constitutional validity of which there cannot be serious controversy (Cooley Const. Lim. 572 ; Lindenmuller v. People, 33 Barb. 548). People v. Kerr (27 N. Y. 188), touched only the question of the rights of the abutting owners in the soil of the .street, and does not affect the claim for injury to adjacent property. In the Northern Transp. Co. y. City of Chicago (United States Supreme Court, October Term, 1878, unreported) the claim was that by the construction of an improvement along the line of the street, a public nuisance was created to the damage of plaintiff. The court held, in conformity with all authorities, that a public nuisance is not predicable of an act authorized
      by the legislature, and that plaintiff could not recover for a mere “consequential” injury, in being obstructed in access to its premises. “There was no direct encroachment on private property ; all that was done was to render, for a time, its use more inconvenient.” But here is a direct encroachment, by the emission of stenches and the explosion of sound, on appellant’s property ; the injury is not a mere inconvenience, but a destruction of the enjoyment of property, involving an enormous depreciation of its value, and the injury is not temporary, but permanent. The case is essentially distinguishable from the present. In Radcliff v. Mayor (4 N. Y. 200-203), the injury resulted from digging in defendant’s ground, thereby removing lateral support from plaintiff’s land ; but he had no right to such support, and thus, in the use of its own property, defendant infringed no right of another. Here respondent violates the right of appellant to the use and enjoyment of his property exempt from disturbance by darkness, noise and stench—a right universally recognized and scrupulously protected by the courts. For a criticism on the doctrine of Radcliff’s case, see Sedgwiclc on Dam., 112. d. Upon the original acquisition of appellant’s -land by the public, he was not compensated for the injury of which he now complains. But that this injury, though merely a depreciation in value of his remaining property, resulting from the use to which the parcel taken is subjected, is an injury for which compensation must bo made, is settled by adjudication. “ When land is taken for the construction of a railroad, the compensation to be paid therefor is not limited to the actual value taken, and to the depreciation of the residue of the lot from which it is taken ; but the owner is entitled to recover, also, for any depreciation caused by the use to which it is appropriated;” e. g., “if its value is diminished by the noise and smoke caused by the use of the railroad, this circumstance is to be included in the estimate of damages. And neither the legislature nor the courts can authorize the taking of a portion of his property for a use which will be injurious to the residue, without affording him a compensation for all such injury ” (Matter of Utica & S. R. R. Co., 56 Barb. 456, 457; Furniss v. Railroad Co., 5 Sandf. 551 ; Rochester v. Budlong, 6 How. Pr. 467; Morris v. Townsend, 24 Barb. 638 ; 39 N. Y. 179, per Woodruff, J.). In the matter of the Prospect Park, in 16 Hun, 261, land had been taken for a highway, and nothing paid for it besides benefits accruing to other property from the opening of the avenue. Afterward, under an act of the legislature licensing the use of the highway by a railroad, the question came whether the railroad should make additional compensation. Held, that “the compensation for the additional burden imposed by the railroad should be the same as if the highway had not been opened, and that the owner was entitled to recover for any depreciation in the value of his remaining property caused by the use to which the land taken is appropriated.”
    II. Even though there be no taking of appellant’s property, the injury alleged and admitted is an actionable wrong, of which the appropriate redress is by injunction. 1. The darkness, stench and noise distinguished as the causes operating the injury to appellant, are admitted to be the immediate effect of appellant’s acts. But science reveals that darkness, stench and noise are, each, the material effect of the physical energies of nature. Hence, the injury to appellant is the effect of physical force directly applied by respondent, and is not, in any sense, an “ incidental ” or “ consequential ” injury. In the ultimate analysis, matter is but a form of force or of motion. Damage done by a missile is not more a material injury than damage inflicted by the vibration or emission of particles in light, sound and smell. But a stone cast upon one’s land furnishes a ground of action (Hay v. Cohoes Co., 2 N. Y. 159). 2. Apart from the admission in the pleadings, human experience testifies to the mischievous operation of darkness, stench and noise upon the enjoyment of life and property (Babbage on Street Nuisances, passim). Cicero, it is true, regretted thefumum, etopes, strepitumque Romee: but he was then languishing in exile. Though the citation be not an authority 6b-ligatory on the court, it may relieve the tedium of forensic discussion to recall the strepitus nocturnos atque diurnos of Horace, and the still more energetic outburst of Juvenal: Magnis opibus dormitur in urbe: (Inde caput morbi, &c., III. Sat.). That the effect upon the “enjoyment of life and property ” by noise, stench and darkness constitutes an actionable injury, is an incontrovertible proposition of law (Fish r. Dodge, 4 Denio, 311; Bradley v. Grill, Lutwytch, 69 ; First Baptist Church v. Railroad Co., 5 Barb. 79, decided Nov. 1848, after Trustees v. Railroad Co., 6 Id. 313, May, 1848 ; Tipping v. St. Helen Co., 11 H. L. Cas. 648 ; Gullick v. Tremlett, 20 Weeldy Rep. 358; Inch-bald v. Barrington, 4 L. R. Chan. App. 388; Elliotson v. Feetham, 2 Bing. N. C. 134 ; Brady v. Weeks, 3 Barb. 157; Jones v. Powell, 1 Hutt. 135 ; Peck v. Elder, 3 Sandf. 126, 129, per Walworth, Ch. ; Gatlin v Valentine, 9 Paige, 575; Hutchings v. Smith, 63 Barb. 252; Alfred’s Case, 9 Colee, 58 b; Morley v. Praynall, Cro. Car. 510; Styman v. Hutchinson, 2 Selwyn, 1068; Pickard v. Collins, 23 Barb. 444 ; Francis v. Schoelltope, 53 N. Y. 152 ; Howard v. Lee, 3 Sandf. 281 ; Campbell v. Seaman, 63 N. Y. 569 ; Mulligan v. Elias, 12 Abb. Pr. N. S. 259 ; Prescott’s Case, 2 City Hall Rec. 161; Cropsey v. Murphy, 1 Hilt. 126 ; Reed v. People, 1 Park. Cr. 481: Ball v. Ray, 8 Ch. 467; Scott v. Firth, 4 F. & F. 349 ; Sampson v. Smith, 8 Sim. 272; Imperial Co. r. Broadbent, 7 H. L. 600). Injury to adjacent property from the noise, smoke, &c., of a railroad on a street, constitutes, at common law, an actionable wrong (Chamberlain v. Railroad Co., 2 Best & S. 605, 617 ; Beckett v. Railroad Co., L. R. 3 C. P. 82 ; Brand v. Railroad Co., L. R. 2 Q. B. 223; Eagle v. Railroad Co., L. R. 2 C. P. 638). 3. If it be argued that the act causing the injury to appellant is not actionable, because authorized by the legislature, we reply : 1st. The authority given to respondent will be strictly construed in protection of private right (Powell v. Tuttle, 3 N. Y. 396, 401; Matter of Boston, &c., 53 N. Y. 579; Washington Cemetery v. Railroad Co., 68 N. Y. 591; Brooklyn v. Armstrong, 45 N Y. 239 ; Brown v. Railroad Co., 12 N. Y. 491). 2d. Non constat, but the legislature intended compensation for the injury. “If there are private rights which are to be taken, within the meaning of the Constitution, then such rights must be taken in pursuance of law, upon making compensation.” “ Hence, it seems to me that there is no room for doubt that ample* provision is made for compensation for any property, rights, &c.” (Earl, J., in Matter of New York Elevated Railroad Co., 3 Abb. New Cas. 426, 427 ; Church, Ch. J., in Gilbert Elevated Railroad Co. v. Anderson, 3 Abb. New Cas. 447,448). “Allen, J., was of the opinion that unless the statutes under which the corporation claimed to exercise its privileges did make provision for compensation for every property right and interest, whether corporeal or incorporeal, which would be invaded or appropriated, they could not be sustained.” “The statutes . . . make ample provision for full compensation for every property right or interest which will be destroyed, or the beneficial use of which will be disturbed or interfered with, by the construction and operation of the railway. Nothing short of this would have satisfied the mandate of the Constitution, forbidding the taking of private property for public use without just compensation” (Allen, J., 3 Abb. New Cas. 449). In both cases the court held that the acts under which respondent is incorporated make provision for compensation. 3d. Authority to construct and operate respondent’s railway in the street avails only to efface from the act the character of a public nuisance, and is ineffectual to justify the injury to appellant. “ The franchise and purpose of the charter was . . . to give the corporation the right to occupy the streets quoad the public franchise, and make that lawful which, but for the grant, would have been a nuisance, as an obstruction to a public, street ” (Allen, J., 3 Abb. New Cas. 457, and authorities, supra). 4th. “ If it,” the act incorporating the company, “goes further and authorizes the seizure of private rights of property of any kind, and the appropriation thereof, without compensation, it is unconstitutional, and therefore void ” (Allen, J., 3 Abb. New Cas. 433, and Andrews and Rapadlo, JJ., same page ; People v. Westchester, 4 Barb. 64; authorities supra; Breevort v. Grace, 53 N. Y. 255 ; Matter of Rhinelander, 68 Id. 107). 5th. Upon this point Hay v. Cohoes Co. (2 N. Y. 159), is an explicit and decisive authority (First Baptist Church v. Railroad Co., 5 Barb. 79, overruling, in effect, the previous case, of Trustees v. Railroad Co., 6 Barb. 313; Selden v. Co., 24 Id. 362; People v. Co., 64 Id. 55 ; Delaware Co. v. Lee, 2 Zab. 243).
    III. The case, then, is this: By respondent’s act, and for its emolument, appellant’s property is so disturbed and impaired in the use as to destroy the comfort of its enjoyment, and indefinitely diminish its value ; and for the loss he receives no equivalent of any kind or in any degree. Here, indisputably, is a wrong for which, in justice, there should be some redress. It is said the loss is inflicted in the interest of the public, and solus populi suprema lex. But the power of the sovereign people in our system of government to appropriate the property of the citizen is fettered and stayed by the organic condition that it be paid for (Breevort v. Grace, 53 N. Y. 255 ; 1 Black. Comm. 139 ; 13 N. Y. 386, 387). If the improvement be of benefit to the public, the public should pay for it, and the loss should not fall exclusively upon the citizen to whom it is an uncompensated injury. “ Were the transaction between individuals, every one could at once see its injustice. It is the public interest supposed to be involved that begets the difficulty ; and it is just for this reason that the Constitution interferes for the protection of individual rights’’ (Selden, J., in Williams v. Railroad Co., 16 N. Y. 110). “No prerogative of sovereign power should be watched with greater vigilance, than that which takes private property for public use ; and all the requirements authorizing its exercise must be strictly pursued ’’ (Dykman v. Mayor, 5 N. Y. 439). “Besides, the public good is in nothing more essentially interested than in the protection of every individual’s private rights (Comstock, J., in Wynehamer v. People, 13 N. Y. 386). Again, “where rights are acquired by the citizen, there is no power in the government, in any of its branches, to take them away,” without compensation (Id. 393). The injury which respondent admits it has inflicted upon appellant is “a species of despotism which ought not properly to be perpetrated in a government which claims to protect property equally with life and liberty. . . . The few are powerless against the legislative encroachments of the many. . . . The majority are never backward in consenting to and even demanding im-. provements which they may enjoy without expense to themselves. . . . The system operates unequally and unjustly, and leads to oppression and confiscation ” (Church, Ch. J., in Guest v. City, 69 N. Y. 516, 517).

      Porter, Lowrey, Soren & Stone, attorneys, and Grosvenor P. Lowrey and John K. Porter, of counsel, for respondent, upon the grounds taken by the learned judge in deciding the case, urged :
    I. It is well settled that no private property or interest is taken (within the meaning of article 1 of section 6 of the Constitution), when a new use is imposed upon the lands in such streets. .1. It is an axiomatic principle of social order that private property must be surrendered by the private owner when needed for the public use. This is part of the general doctrine universally assented to in all civilized societies, that the individual is less than the State, and that private interests must give way, even to the point of being destroyed, where that is required by the general public good. One special exception or qualification of this principle has, however, been always admitted as equally just and necessary with the principle itself, namely, that private property needed for the public use must be paid for before it is taken; and this qualification has been found capable of being expressed in written law. The taking of property is probably, however, but a small part of the injury which special interests from time to time receive as the direct or indirect effect of things done for the public good. Thus, the value of a toll bridge or ferry is prejudiced and perhaps destroyed by the erection of another, especially a free bridge or ferry, in its vicinity ; and the loss in such a case may be no less than if the private bridge were actually appropriated in the public name. Yet it has never been supposed that such injuries must be compensated for before the general public could enter upon the enjoyment of the improved facilities. This liability to prejudice by the introduction of new and better means to accommodate the public is one of the chances to which the individual is always subject, and for which, in countries where the common law prevails, no general system of redress has yet been adopted. It may happen that the injury is one so great and palpable that it becomes a duty of the law-making power to distribute the burden among the general public rather than leave it to be borne solely by those upon whom it first falls. This must always be a question of statesmanship, to be especially considered as the occasion arises, and can never with safety be dealt by general provisions of law. Thus, while it is competent and not too inconvenient for practical application, that railroad companies should be required to pay for all land taken by them before the construction of their roads, yet it might well happen that the imposition of an obligation to compensate for all the more or less intimate effects of building a railroad would have but one result, namely, to prohibit altogether the needed public improvement. When such a road is a public use, and when especially it is, as in this case, a vital public necessity, the public interest outweighs the private injury. It would be unfortunate if in such a case the courts should find themselves compelled to assess all the more or less remote and more or less certain injuries anticipated by fearful property owners, upon the private interests engaged in fostering a public enterprise. This road has been actually built since this action was begun, with the effect to show what would have been lost to the world if it had been understood in advance that not only property taken but all indirect injuries to property not taken must be paid for before the capital invested could have any return. One hundred millions has often been claimed as the amount of damage suffered by property owners on or near the defendant’s line. This estimate would, no doubt, be largely modified now, but still would remain large enough to consume more' than the entire capital of the road. The doctrine sought to be upheld here would have been prohibitive of the enterprise at any time ; and thus a benefit of thousands-of millions to the community would have been lost.
    II. The construction and maintenance of the defendant’s road being' authorized by law, cannot be the cause of legal injury to any person, nor the subject of any action for damages or restraint. And the operation of the same, when completed, can be made the subject of action for malfeasance or misfeasance only. The various legislative acts and proceedings thereunder, which are set forth in the complaint, establish in the clearest manner a right in the defendant to do that which the plaintiff seeks to enjoin ; and this right has been confirmed by the decision in this court, in the Sixth Avenue Railroad v. Gilbert- Elevated Railroad, and by the court of appeals in the case of the Gilbert Elevated Railroad v. Anderson. The authority given and thus approved is to construct, maintain and operate an elevated steam railway. Whatever is legitimately implied in the idea of such a railway was contemplated by the legislature and permitted. The thing first contemplated was the erection throngh the public streets of an iron railway structure. Whatever obstruction of light and air was naturally incident to the occupation of so much vacant space by a structure of that character was contemplated by the legislature, and if it had power, was authorized. If it had not power and this obstruction was not authorized, the offense is a public nuisance, actionable in the name of the people only, and not in the name of any private -citizen.. The operation of the railway was to be by steam. This implied necessarily the use of boilers, engines, and such other mechanism and methods as are necessary or usual in the propelling of carriages upon railway tracks by steam. Whatever noise or stench naturally and usually result from the use of such engines in .such a business was contemplated by the legislature, and, in like manner, authorized. It is undoubtedly the duty of every railway company to use approved agencies for reducing, as much as possible, these necessary annoyances. Having done this, all of such annoyances which cannot be entirely suppressed are a part of the natural, necessary, and therefore excusable accompaniments of the prosecution of a useful and necessary business. A single ice cart rattling- over a Broadway pavement makes more noise than any elevated railway train. It is not possible that goods and passengers should be moved in a city like this, without •causing more or less discomfort and inconvenience to those who are not engaged in the removal. These are ■inconveniences inseparable from life in a large, crowded and busy city. The defendant, unlike many others who are engaged in useful and lawful occupations, which, nevertheless, offend the vicinity in which they .are carried on, has no choice as to the place in which it will prosecute its business. The soap factory, and other lawful but offensive kinds of business, may be removed to a distance from human habitations, but this railroad has been located by act of law in Fifty-third street, and must either -pass through there or fail altogether. The route was not even suggested to the legislature by the promoters of the company, but was, after careful deliberation, selected by a commission of five eminent citizens: Henry G. Stebbins, Major-General Quincy A. Gilmore, Shepard Knapp, Chester A. Arthur and General John A. Dix, who made this .selection under the express injunction of the act to “designate and establish the same in such manner as shall, in their judgment, be convenient and necessary for such project, and with the least inconvenience to those who occupy premises adjacent, and upon the said streets, thoroughfares and places in, through and along which the said elevated railway may be so established and maintained.” The commissioners were thus called upon to perform a judicial function, and by their location of route have determined that to be the best route upon all the considerations imposed upon them by the act. It thus appears upon the record that a railroad being judged by the legislature necessary, and its erection a public use, the street in question was chosen as one of those in which least inconvenience to the interests of adjoining owners would happen, and that the annoyance by “ consequent ” (that is to say, natural and necessary) noise, stench, obstruction of light and of air was contemplated and permitted. This action, therefore, is not brought to restrain any abuse of the company’s rights, or negligence in the performance of its duties, but to test the question, pure and simple, whether a railroad company, lawfully incorporated and fully empowered by the legislature, can build a railroad through a street laid out and opened in the city of New York, under the Act of 1813, without first obtaining the consent of all persons owning property abutting on said street. If such an action can be maintained, it must be upon the ground that the owner of a street lot has, as such, some estate or interest in the land of the. street which may be the subject of appropriation (a claim which has already been shown to be unfounded) ; or that he is protected by the terms of some trust arising under the Act of 1813, in his favor specially (a claim which has also been shown to be without foundation) ; or that he is the possessor of some easement or interest appurtenant to his fee-simple title which gives him a separate and personal right to a voice in determining what, if any, new uses the street may be put to ; or that he is, by virtue of a contract to be gathered from all these circumstances (and which is protected by the Constitution of the United States), guaranteed against the imposition of any new burden upon the land, or the application of it to any new use even by legislative authority, without his consent.

       Even if the pollution of the air was a necessary incident of exercising the authority conferred, yet the case of Hay v. Cohoes Co. (2 N. Y. 159), cited by Chief Justice Curtis, would require the abandonment of the authorized work, unless the act giving the authority made provision for compensation for the injury thereby inflicted, and the company was of ability to make compensation.

       The brief on appellant’s part, as to what constitutes property, is so elaborate and instructive, that it was thought to be useful to the profession to report it in full.

   Speir, J.

The action is brought on the equity side of the court to restrain the committing a nuisance, and for the redress of wrongs and injuries which will involve the plaintiff in vexatious litigation. The issue presents a naked question of law arising on a demurrer to the complaint, where the facts, if properly pleaded, are admitted.

The contentions on the part of the plaintiff and appellant are : First. “ That the owner and occupant of a lot of land and dwelling-house abutting on the street, has a right to the use and enjoyment of such lot and dwelling-house free from the disturbance and invasion of such right, which is admitted by the demurrer ; and that such disturbance and invasion constitute a talcing of property in the sense of the constitutional inhibition. Second. Independent of such constitutional guaranty, the injury inflicted by the defendant upon plaintiff’s lot and dwelling-house, as set out in the complaint, and admitted by the demurrer, constitutes a wrong entitling him to relief by injunction.”

It is claimed by the defendant that the propositions above stated are not now, but, on the contrary, have been carefully considered and determined by this court, the court of common pleas, and, as they believe, practically determined by the court of appeals.

It was admitted, and the following concessions were made in advance by the plaintiff’s counsel:

1. That the fee of the streets for the purpose named in the act of 1813 .is in the city of New York.

2. That the appellant has no easement or other interest in the soil of the street which the respondent invades.

3. That there is a constitutional law authorizing the defendant- to build an elevated railroad upon the street in front of appellant’s dwelling.

4. That under the law there are no restrictions as to the manner of building or operating the railroad— and that the damages which may be recovered must be for injuries directly or immediately caused by the construction or operation of the road, in the manner in which it is or may be hereafter constructed or operated, and not remote and consequential.

We have examined the decisions in the court of appeals and others, to which we have been referred, but in none of them, as we believe, have the points presented by the appellants been adjudicated.

In the case of Gilbert Elevated R. R. Co. v. Anderson (70 N: Y. 375), Chief Justice Church, in delivering the opinion, says: “The amount or extent of the damages are questions not properly before the court. . . . . To determine what particular occupation of

the streets is" to be deemed a legitimate public use involves important and delicate questions. They were very much debated in this court in the surface railroad cases, and the principles adjudicated in those cases will be regarded as obligatory upon the court in deciding future cases.” This decision as to this point was concurred in by the other learned judges of the court. This expression of the opinion of the court of appeals amounts to a positive assertion that the points presented for discussion are new and undetermined. Nor can it be maintained that this court, in the case of Sixth Avenue R. R. Co. (43 Super. Ct. 292), or the court of common pleas (Patten v. New York Elevated Bailroad Co., 3 Abb. New cas. 345), relied on by the defendant, are authority in support of its position, since in both cases the points raised by the defendant here as having been adjudicated in those cases, were neither presented nor decided.

Among the principles applied to the surface railroad cases, we' refer to an expression of two of the judges in the case reported in 70 N. Y., in Matter of N. Y. Elevated Railroad Co., p. 327. The claim made in the case rested on the assumption that the abutting owners of property upon the streets have property rights therein of which they were to be deprived and for which they are entitled under the constitution to compensation. The answer to this by Mr. Justice Earl was, “ Whether they have such property rights, it will not be necessary to determine on this appeal, for the reason that provision is made for compensation.” Mr. Justice Allen concurring, says: I am of the opinion'that the several acts, as a whole, did make ample provision for such compensation, and that every property right of individuals, including whatever right or interest, by way of easement, appurtenant to these lands or otherwise, owners of lots abutting on the streets have, in such streets, as well as those the fee of which is in the city, under the laws of 1813, as the other streets, must, under the Constitution and the statutes, under which these proceedings are had, be compensated for.” The learned judge was further of the opinion, that unless such provision for compensation was "made by the statutes to individuals for every property right and interest, whether corporeal or incorporeal, which would be invaded in the construction and operation of the railway, they co'uld not be sustained.

The principles applicable to the steam surface railroads are clearly stated by the court in Drake v. Hudson River Railroad Co., in 7 Barb. 508. This is an early and may be considered a leading casein determining the rights of owners of property bounded on the streets in this city, and the rights of the steam railroad company, in common with others, to use the same, under rules and regulations prescribed by the proper authority. Judge Jones," late chief justice of this court, whose learning and great familiarity with the subject no one will question, furnishes the leading opinion. He first comes to the conclusion, which has generally been received and adopted by the profession,that the streets of this city were dedicated to public uses, and vested in the corporation upon trust, so that the same should be kept open as public streets for the use of the citizens of New York forever, in such manner in which streets then were or should at any time thereafter be beneficially used by lawful authority for the purpose of public city streets. That the common council of the city were vested with the regulation of the streets, and were to prescribe and direct the manner and mode of using them.

After alluding to the then recent introduction of railroads, their great and acknowledged advantages over all other modes of travel, which had brought them"into exclusive use, the learned judge proceeds : “ Desirable improvements of public utility, and beneficial inventions of general interest, are not to be rejected, suppressed, or arrested, simply because they may in their operation and practical effect occasion to property in their vicinity or within the sphere of their action some contingent, or consequential damage. For when they occur the party aggrieved has a remedy by action at law, and by repetition of such action during the continuance of the grievance, whenever and as often as loss or damage ensue ; and with the ulterior remedy which in the case of the presence of tracks in the streets or the running of the cars upon them or other operations of the railroad should be or become a nuisance, or the aggression shall prove to be permanent and without an adequate remedy by action, this court will be competent to administer its equitable relief by injunction to prevent its continuance or for its removal.”

It is proper to say that in this case the injunction was dissolved, as it did not appear from the complaint and affidavits that the mischief was irremediable, which damages could not compensate, and did not reach to the very substance and value of the estate and tend to the destruction of it in the character in which it was enjoyed.

It is urged that no private property or interest is taken within the meaning of the constitution, where a new use is imposed upon the lands in such streets (by which is meant the operation of a railroad by steam, elevated above the- surface of the street). This, we think, has no special pertinency in the case now before us, since it is conceded that, by the terms of the law, there are no restrictions upon the manner of building, nor as to the manner of operating the road ; that it may be operated with any means, in any manner ; that the defendant has the right to use the road, although it be a new mode of using the public streets, for the reason that it is one mode of using it; and finally, that the law is constitutional, as it provides under limitations against the injury of private property without compensation, and that if no such provision was made it would be simply void. When the cases of the surface steam railroads were first debated in the courts, the use imposed upon the lands was as new and prior thereto as little known or anticipated as the present elevated road. The conclusion reached in all the surface railroad cases was, that merely operating the roads by steam on the surface could not be deemed a nuisance, not because it was a new use of the road, but that the law authorized the use as a mode of travel which did not encroach upon private rights.

It is claimed, when the injury to individual rights of property is very great and plainly perceptible, that it becomes the duty of the law-making power to distribute the burden among the general public, rather than leave it to be borne solely by those upon whom it falls. And' it was gravely urged that this must always be a question of “ Statesmanship,” to be specially considered whenever the occasion arises, as the provisions of law cannot safely deal with it. The Constitution being paramount to the statutes and the laws enacted by the legislature, and intended to protect the citizen in the enjoyment of his property in every possible relation of life, it would seem that the courts alone can dispose of the question, when and how payment for private property taken for public use shall be made. It may be admitted that the burdens imposed upon individuals by legislative enactments may become too oppressive to be patiently borne, but the remedy must only be found with" the law-making power of the government. To this question there can be no solution but by an appeal to the fixed and permanent principles of law and equity. It has been well said by the present learned chief justice of our highest court:' “We should all regard a departure by the courts from rules of law wisely established, for the protection of all; to meet the equities of a particular case or class of cases, as a far greater evil than that sought to be remedied.”

The term “property ” is of the largest import, and embraces every mode in which it may be applied to public use, and extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments. The courts will interfere by injunction to secure to a party the bare privilege, conferred by statute (Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611 ; Newburgh Turnpike Co. v. Miller, 5 Id. 101 ; Boston & Lowell R. R. Co. v. Galena & Lowell R. R. Co., 2 Gray, 1). In the last case, Shaw, Ch., J., says, “ It is a right or title which, if it exists at all, is purely a statute right; it is created by law, it exists only in contemplation of law, it is invisible, intangible, in cap able of physical possession, and depends on the law for its protection.” “Any injury to the property of an individual, which deprives the owner of the ordinary-use of it, is equivalent to a taking, and entitles him to compensation ” (Cooley on Constitutional Limitations, 542). Even claims for compensation for the possession, use or appropriation of tangible property, constitute personal estate equally with property out of which they grow, although the validity of such claims may be denied, and their value may depend upon the uncertainties of litigation, or the doubtful result of an appeal to the legislature (Erwin v. United States, 7 Otto, 396).

It is elementary law that the corrupting the air of a man’s dwelling with noisome smells is a nuisance, for light and air are two indispensable requisites to every dwelling. Lord Mansfield has said that it is not necessary that the smell should be even unwholesome, it is enough if it renders the enjoyment of life and property uncomfortable (3 Black. Comm. 219 ; 1 Burr. 337; Duke of Northumberland v. Claus, C. P. at Westminister, 1824, Chitty). In a word, we think it may be said that there is an inherent absolute right of property in every man, which consists in the free use, enjoyment and disposal of all his acquisitions without control or diminution, save only by the laws- of the land; and “so great is the regard of the law for private property that it will not authorize the least violation of it.” Although there are many individual possessions in life denominated in common use and by law private, yet when we come to speak of a man’s dwelling-house, the abode of his social and domestic life, the word private seems to have been used by the early writers in another and more significant' sense. In Lemayne’s Case (3 Coke, 185-91, b) it is said: “ The house as to every one is to .him as his castle and fortress, as well for his defense as for Ms repose.”

The subject of controversy is a mere naked incorporeal right claimed by the plaintiff to have and enjoy his land and dwelling-house free from the invasion arising from the constructing and operating an elevated steam railroad, producing noises, stench, obstruction of light and air, causing grievous disturbance to himself and family, thereby rendering his residence undesirable, and greatly reducing the market value thereof. If this right exists and has been invaded, the proper and specific remedy which shall prevent the continuing invasion is by injunction, and is within the ordinary, scope of equity jurisdiction. If the plaintiff is disturbed in the enjoyment of his incorporeal right, such disturbance is technically a private nuisance. The complaint, after alleging that if the road be permitted to be built and operated along the street and in front of plaintiff’s house and land he will be subject to a continuing nuisance and to wrongs and injuries which will involve him in interminable litigation, and for which damages will afford him no appropriate or adequate relief, continues, ‘ ‘ and he is informed and believes the defendant is insolvent and unable to.pay any judgment for damages that might be recovered against it, and has mortgaged its entire property for a sum far beyond its value, and that any execution against it would be idle and fruitless.” Where insolvency' or want of ability to answer for injury to be done, in the party complained of, be averred and proven, the court will grant an injunction. The truth of the above allegations is admitted by the demurrer.

It is claimed that the legislature have legalized this road, and therefore it is not a nuisance. It is admitted it is not a public nuisance, as it would be if the legislature had not legalized it. The statutes effectually protect the company, if it complies with the conditions, from an indictment, and against any interference with its work, as a public nuisance on account of the fee in the streets ; but not against claims for private damages arising from injuries to adjacent owners. The company may occupy the streets, but it must occupy them at its peril, in a way not directly or immediately to injure private rights. .In all the surface railroad cases we have examined, while they have held that these roads do not operate as a nuisance, they have clearly, and, we think, • unanimously decided that the facts, after investigation, did not authorize a .judicial deduction that a nuisance had been proven. In the case of Lexington & Ohio R. R. Co. Applegate (8 Dana, 289), cited by the defendant, the chief justice says, “neither the government of the city nor of the State can license a private nuisance, or take or encroach on private property without the owner’s consent or payment of his damages.”

No one will question the utility of the elevated railroad as a public improvement of great convenience and accommodation to the city and the public at large, but these accommodations cannot authorize or justify its invasions on the rights of any portion of our citizens. The individual whose property is affected because the road is of great public value, should be indemnified and fully compensated by the public, or by the company, which profits by the improvement, for any loss or damage he has or may sustain. We have seen, and it is admitted that the law has made provision for such indemnity; that the surface railroads have been compelled to pay the damages done to private property in every case where it is proved to have been invaded. The defendant admits the injury and wrongs done to the plaintiff as alleged in his complaint, and its want of ability to make reparation.

We are of the opinion that the appellant is entitled to relief, and that the judgment should be reversed, with costs.

The action is brought to enjoin the defendant from running its trains in front of the plaintiff’s dwelling in Fifty-third street. The occupation of the street, from curb to curb, opposite the plaintiff’s premises, by an elevated steam railway, and the deprivation of light and air, and the noise, stench, and the exposure of the privacy of plaintiff’s dwelling, and the diminution of the value of the same, in consequence of such occupancy, and the running of trains, are conceded by the demurrer. Upon the argument of the appeal of the plaintiff, from the judgment for the defendant on the demurrer, the plaintiff conceded :

Curtis, Ch. J.—[Concurring.]

First. That the fee of the street is in the public.

Secondly. That the plaintiff has no easement, or other interest in the soil of the street which defendant invades.

Thirdly. That defendant’s railroad is constructed and operated in the street, by due authority of law.

Fourthly. That mere depreciation of the value of the plaintiff’s property, by the construction and operation of such a railroad, without the intervention of any physical agency to the injury of such property, would be a consequential damage, for which the defendant is not liable.

These concessions greatly narrow the field of controversy.

The plaintiff rests his controversy on these two grounds:

First. That as owner and occupant of a lot and dwelling-house abutting on the street, he has a right to the use and enjoyment of such lot and dwelling-house, free from the disturbance and invasion of such right, which the defendant admits by its demurrer, and that such disturbance and invasion constitutes a taking of property, in the sense of the constitutional inhibition (Art. 1, § 6).

Secondly. That, independently of such constitutional guaranty, the injury inflicted by the defendant upon the plaintiff’s lot and dwelling-house, as stated in the complaint and admitted by the demurrer, constitutes an actionable wrong entitling him to relief.

Neither the acts of the legislature under which the defendant is incorporated, nor the requirements and conditions imposed upon the defendant by the board of commissioners created by the legislature, confer, or attempt to confer any right or power to* introduce into the plaintiff’s premises, for instance, the stench or noxious gas, of which, among other grievances, the plaintiff complains, and' which, the demurrer admits, will greatly diminish the plaintiff’s enjoyment of his dwelling-house. The question is directly raised, whether this is a lawful act on the part of the defendant. Conceding that the defendant has full power and right to enter upon the public street, to construct and operate an elevated railroad there, from what source does it derive the ‘power to thus diminish the plaintiff’s enjoyment of his house ? The act of the legisla-. ture authorizes the defendant to operate its road “by atmospheric power, compressed air, or other power.” It, neither directly or by implication, authorizes the infliction of this grievance of a polluted atmosphere, of which the plaintiff complains, and which the demurrer-admits.

In the case of Hay v. Cohoes Co. (2 N. Y. 159), this question was considered. The defendant, also a corporation created by the legislature, dug a canal upon its own land, for the purposes authorized by the legislature in its charter. In doing so, it was necessary to. blast rocks, and fragments were thrown against and injured the plaintiff’s dwelling,- upon lands adjoining. The defendant was held liable for the injury, although no negligence or want of skill in executing the work was alleged or proved. In the opinion of the court, per G-ardiner, J., it was considered that the defendant had the right to dig the canal, and the plaintiff the right to the undisturbed possession of his. property, and if the rights conflict, then, on ground of public policy, it was better that the one should surrender a particular use of his land, rather than that another should be deprived of the beneficial use of his property altogether. It is further said, “ he may excavate a canal, but he cannot cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he cannot construct the work without the adoption of such means, he must abandon that mode of using his property, or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner.” Again, in speaking of the defendants, it was further said: “ They could not pollute the air upon the plaintiff’s premises (Morley v. Pragnall, Cro. Car. 510), nor abstract any portion of the soil (Rol. Abr. 565, note; 12 Mass. 221), nor cast anything upon the land (Lambert v. Bepy, Sir T. Raymond., 421), by any act of their agents, neglect, or otherwise, for this would violate the right of domain.' .....Ho one questions that the improvement contemplated by the defendants upon their own premises, was proper and lawful.” “ The means by which it was prosecuted were illegal notwithstanding, for they disturbed the rightful possession of the plaintiff, and caused a direct and immediate injury to his property.” “ For the damages thus resulting the defendants are liable.”

The law, as it was administered in that case, seems applicable to the present. The defendant in the case of Hay v. Cohoes Co. (2 N. Y. 159), constructed the canal,' pursuant to the authority conferred by the legislature, as was its right, but disturbed the rightful possession and enjoyment of the plaintiff. In' the present case a railroad is substituted for a canal, and in place of fragments of rocks cast upon the plaintiff’s premises, stench or gas, disagreeable to the senses, is diffused through the plaintiff’s residence. It is difficult to see any distinction between casting a stone upon plaintiff’s premises, or filling his dwelling-house with a noxious gas, so far as constituting a good cause of action is concerned. The gas is, in itself, a material substance, capable of more or less condensation. Take sulphureted hydrogen, for. example ; what can be more penetrating and polluting to an abode, or more destructive to health and enjoyment ? The volatility of a gas cannot change the principle of law by which every individual is entitled to the undisturbed possession and enjoyment of his own property. It is a quality that tends to increase and prolong the injury. No law gives one urban neighbor the right to thus invade the adjoining dwelling of another, and deprive him of the enjoyment of home and health. The legislature has not conferred, or attempted to confer, such a power upon the defendant, nor does the exercise of it appear to be necessary or incident to the operation of the defendant’s road.

Whether the defendant has a right to occupy the street from curb to curb, with structures raised for its use, to let them for newspaper stands, or for other purposes, are not the questions before us. But the question is, whether any of the acts of the defendant charged by the plaintiff in the complaint as injurious to his property, and admitted by the demurrer, are unwarranted by law. The pollution of the air in the defendant’s dwelling by noisome gases, in the consideration above given to it, comes within the pale of the decision in Hay v. Cohoes Co., supra, and is a violation of the plaintiff’s right of domain, and not included in, or justified by the legislative grants to the defendant, or even necessarily incident to its enjoyment of those grants! If such a broad construction is given to them, as is claimed by the defendant, then the defendant is vested with rights and powers inconsistent with the protection and enjoyment of property, and unprecedented in their nature. It is the just and reasonable-interpretation of the action of the legislature, that no-adjacent owner of property should be deprived of the-enjoyment of it by an act of the defendant, such as-the one we have considered, gratuitous, unnecessary, and in no respect an incident to the proper use by defendant of the grants from the legislature.

To hold that the plaintiff is entitled to no protection, or compensation by law, for the injury the defendant inflicts upon him, and that he is utterly without redress, is inconsistent with the views I am constrained to entertain, as to what constitutes the due administration of justice.

We think the complaint states facts sufficient to constitute a cause of action against the defendant, and that the judgment appealed from should be reversed, with costs.


author: By the Court.—Freedman, J.

text:
    SARAH E. SLAUSON, v. HEZEKIAH WATKINS, Appellant, impleaded with BENJAMIN L. LUDINGTON, Respondent.

      Motion to charge person beneficially interested, with costs

    It is within the discretion of the court, and is a proper exercise thereof, to deny, as prematurely made, a motion to charge the person beneficially interested in the recovery in an action (2 B. 8. 619) with the payment of a judgment for costs entered therein, when an appeal from said judgment is ponding at the time said motion is made, though no security upon appeal has been filed, and no stay of proceedings granted. The denial of the motion upon said ground may be deemed equivalent to a stay.
    Before Sedgwick, Speib and Fbeedman, JJ.

      Decided April 5, 1880.

      This is an appeal by the defendant Watkins from an ■order made at special term, denying, as premature, a motion which sought to charge the defendant Ludington, who is alleged by the moving papers to be the person beneficially interested in the recovery, and who brought this action in the plaintiff’s name, with the judgment for costs, entered against the plaintiff.
    The motion was held premature, on the ground that an appeal herein from said judgment, without security' •or stay, was pending on behalf of the plaintiff.

      Oliver N. West, for appellant, urged :
    —I. Section 44 of the Revised Statutes (vol. 2, p. 619) provides as follows: Where any action shall be brought in the name of another, by any assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee, or person, shall be liable for costs, in the same cases, and to the same extent in which a plaintiff would be liable, and the payment of .such costs may be enforced by attachment.”
    II. The moving papers show beyond any dispute that Ludington brought the action in Mrs. Slauson’s name, and that he is the person beneficially interested :in the recovery. They show also that the plaintiff, by reason of having given no security on her appeal, nor secured any stay of proceedings, is now liable (notwithstanding the pendency of such appeal) to pay this judgment for costs, and this, notwithstanding the fact, that for her to make such payment now, when the court might hereafter determine the judgment to be wrong, would be a possible hardship. (Execution has in fact, as appears in the moving papers, been issued against the insolvent plaintiff and returned, “no goods.”)
    III. This, then, is a case in which the nominal plaintiff is now “liable for costs ” to the full “extent.” If the statute means anything at all, it means that the liability of the real party shall be co-extensive with that of the sham plaintiff upon the record. In case Mrs. Slauson is now liable, so also, is liable Ludington. To what extent she is liable, to that extent also is he liable. If it be not premature to enforce the judgment against her, neither is it premature to proceed against him. He is the real plaintiff, and her liability is his liability. Having stepped into her shoes, when he found it convenient, in bringing his action, the statute says that he shall stand in them, although he now finds it more convenient to step out of them.
    IV- The order affects a substantial right, and is appealable (Code, § 1,347 ; 29 N. Y. 634),

      George W. Lord, for respondent.

      See Merceron v. Fowler, p. 850.

   By the Court.—Freedman, J.

It was not only discretionary, but eminently proper for the court below to decline, during the pendency of plaintiff’s appeal in the court of appeals, to summarily order the defendant Ludington, as the person who is alleged to have brought the action in plaintiff’s name, and to be beneficially interested in the recovery, if any were had, to pay the judgment for costs recovered by the defendant Watkins. The mere fact that at the time of the motion no security on appeal had as yet been filed, and no stay of proceedings had been obtained, did not give Watkins such an absolute right to proceed summarily as to deprive the court of all discretion in the matter. The denial of the motion as premature may be treated as equivalent to a stay of proceedings, granted upon a consideration of the special circumstances of the case.

The order should be affirmed, with costs.

Sedgwick and Speir, JJ., concurred.