[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 463 This action is brought by the lessee and proprietor of a hotel known as the "Everett House" in the city of New York, situated on the northwest corner of 17th street and Fourth avenue, against sub-contractors engaged in the construction of a portion of the subway in the city of New York, for an injunction restraining the defendants from maintaining certain buildings which are alleged to constitute a nuisance and to recover damages arising therefrom.
The Special Term dismissed the complaint, the Appellate Division reversed the order and the defendants come here stipulating for judgment absolute in case of affirmance.
The trial judge found, among other facts, that the hotel premises have a frontage of about 128 feet on Union Square and 168 feet on Fourth avenue, are five stories high and contain some 250 rooms, several restaurants, a cafe and a bar.
That the park known as Union square, as designated by law, extends to the northerly limit of the prolongation of the thoroughfare, which to the westward of Broadway and the eastward of Fourth avenue is known as 17th street.
That so much of the Union Square as is laid out as a park is of oval shape, and so situated that there is in front of the plaintiff's hotel a paved place used as a thoroughfare for vehicles and about 150 feet wide. *Page 465
That 17th street east of Fourth avenue and west of Broadway is 60 feet in width; the roadway being about 40 feet wide.
That the defendants are sub-contractors with John B. McDonald, who is the contractor with the city of New York for the construction of the Rapid Transit Railroad in the city of New York.
That the defendants as such contractors are constructing that portion of the subway in which this railroad is to be operated, extending from Great Jones street to 32nd street, and is known as sub-section number three.
That under a permit from the department of parks of the city of New York they have erected buildings upon the paved place in front of plaintiff's hotel, and placed therein boilers, forges, air compressors and machinery to furnish power and appliances for the prosecution of the work under their sub-contract; these buildings and appliances are erected upon the space 100 x 120 feet and are inclosed with board fences; the space is so used as a storage place for tools and machinery. The power generated within the inclosure is compressed air, which is conducted along the work in pipe lines. The structure is so erected as to leave in front of plaintiff's hotel a paved carriageway of the same width as is the carriageway of 17th street, east of Fourth avenue and west of Broadway.
That the erection and maintenance of the structure in front of plaintiff's hotel by the defendants have resulted, and will, during their continued maintenance, result in loss and injury to the plaintiff. The use of the public property by the defendants is merely temporary, being limited by the time necessary for the completion of the work upon which the defendants are engaged.
That the work could be conducted practically as well, and with less injury to this particular plaintiff if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work.
That the aggregate damage produced thereby would not be lessened, and the loss which is now placed upon the plaintiff would be cast upon others. *Page 466
That the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities, under whose supervision and direction the work was to be performed. The proper authorities determined that the plant should be erected in front of plaintiff's premises; that they acted in good faith and their exercise of discretion is not open to review.
The trial judge filed a decision, stating concisely the grounds upon which the issues were decided, as permitted by the Code of Civil Procedure (§ 1022).
Notwithstanding, the trial judge found that the work could be conducted practically as well, and with less injury to this particular plaintiff if the defendants' plant were placed elsewhere, or were subdivided into a number of smaller plants distributed along the line of the work, he further finds that the work is not being performed negligently, carelessly or unskillfully, or in an unreasonable manner, and that no private rights of the plaintiff are trespassed upon by these defendants.
There is no claim that the work is negligently, carelessly or unskillfully performed, but this general finding that it is not carried on in an unreasonable manner is inconsistent with the specific finding that there would be less injury if the plant were placed elsewhere, or subdivided into smaller plants along the line of the work.
The finding that the necessary and proper place for the construction of the operating plant were matters to be determined by the contractors and the public authorities is clearly a legal construction of the city charter, the Rapid Transit Acts and the contracts of the contractor and sub-contractors with the city of New York and must be treated as a conclusion of law.
In considering whether the defendants were authorized by proper authority to construct and maintain the structures complained of, it is unnecessary to consider the power of the park department to grant this authority, as the appellants insist that the Rapid Transit Acts empower the proper authorities to grant such temporary privileges as would facilitate *Page 467 the construction of the railroad; that such authorities were either the rapid transit commissioners or the park commissioners, or both.
In the Laws of 1892 (Chapter 556, § 4) it is provided: "But no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporation to facilitate such construction."
In the Laws of 1896 (Chapter 729, § 39) it is provided that the board of rapid transit commissioners, "for and in behalf of said city may acquire as in this act provided, any real estate and any rights, terms and interest therein, any and all rights, privileges, franchises and easements, whether of owners or abutting owners, or others including rights of owners, abutting owners, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of constructing and operating such road free of interference or right of interference."
These provisions vest no power in the rapid transit commissioners or the park commissioners to erect such structures as those of which complaint is made. No direct legislative authority is pointed out warranting such invasion of the Union Square or the property rights of the plaintiff.
We express no opinion as to the power of the legislature to authorize such an invasion of private rights without due compensation.
The maintenance of these structures cannot be regarded as the enjoyment of temporary privileges conferred by the law of 1892, already quoted. These structures in a sense are temporary as compared with buildings substantially constructed and intended to endure for years, but they are not temporary when we consider the use of that word in this particular connection. It goes without saying that none of *Page 468 the structures or appliances erected in the streets of New York for subway purposes are permanent in a general sense, but they are so in a special sense when they are authorized to remain until the completion of the work. If these defendants are to be engaged three years or more in completing the work they have undertaken on their section of the subway, and if these structures are to be used, among other things, as air compressors for the entire work, then they are permanent as to this contract and the completion of the work thereunder.
Assuming the facts as found, we are of opinion that the legal conclusions based thereon are not warranted.
The order of the Appellate Division does not state that it has/reversed upon the facts, and we are, therefore, to assume that the reversal was on questions of law. (Code of Civil Procedure, § 1338.)
The learned counsel for the plaintiff narrows the discussion upon this appeal by two very proper concessions:
(1) That the law is settled in this state that acts which are authorized by the express enactments of the legislature and performed in good faith upon work of a public character do not render the persons performing them liable for consequential damages unless there is an absence of due care or skill in the execution of the work.
(2) That in authorizing the construction of a railroad under the streets of New York the legislature may be deemed to have authorized the performance by the rapid transit commissioners and by the contractors of such acts as are necessary to the execution of the work. These concessions embody the settled law of the state. (Radcliff's Exrs. v. Mayor, etc., of Brooklyn, 4 N.Y. 195;Cogswell v. N.Y., N.H. H.R.R. Co., 103 N.Y. 10;Benner v. Atlantic Dredging Co., 134 N.Y. 156.)
The plaintiff's main position is that the buildings and appliances which have been erected on the plaza in front of his hotel, some of which is part of Union Square, are a nuisance unauthorized by law and not necessary to the execution of the work; that there is no reason for the generation of compressed *Page 469 air in a central plant except that the contractors found it more convenient and economical; that if such necessity existed the structures should have been erected and maintained at a distance from the line of the work and away from the residential and thickly-settled parts of the city.
We are of opinion that the findings of the trial court established that these structures ought to have been placed elsewhere, or the power for the generation of compressed air subdivided into a number of small plants distributed along the line of the work.
The finding in this connection that the aggregate damage produced thereby would not be lessened and the loss which now falls upon the plaintiff would be cast upon others, is clearly inconsistent with the finding that the plaintiff sustained damages of a special nature.
It is a mere matter of conjecture, unsupported by evidence, what damages would be suffered by others if the plant were erected off the line of the work. It is evident that the plant could be located in sparsely settled districts near the river front and not cause a tenth part of the damage that would arise in maintaining it at the point selected by these defendants, or in the heart of the residential portion of the city, like Fifth avenue, Madison avenue or other localities that might be named. Gas houses, electric light plants, power houses and large manufacturing establishments peculiar to city life are usually erected in localities where the damages inflicted upon surroundings property are reduced to a minimum.
The plaintiff doubtless must suffer the annoyance and injury from such acts as are reasonably necessary to the execution of the work, but it is unjust and placing upon him an undue burden to permit the erection and maintenance of this plant in front of his hotel, for the generation of compressed air, to be used along the entire line of the work undertaken by these contractors, from Great Jones street to 32nd street, and which may continue for a period of three years or more from its inception.
Damages which are inflicted upon abutting property owners *Page 470 in the performance of public work, reasonably and properly conducted, are regarded as damnum absque injuria. This exemption rests upon the necessity of the situation and commends itself to all reasonable minds.
The necessary injuries and annoyances inflicted upon this plaintiff, in the proper prosecution of this work, arise from the opening of the street in Fourth avenue, on the east side of his property, and the construction of the subway, by blasting, and other necessary work, involving obstruction, noise and general inconvenience. When this portion of the work is accomplished and the street restored to its normal condition opposite his property, the annoying situation would cease as to him. If, however, the structures, of which complaint is made, are to be maintained during the entire prosecution of the work on defendant's section, the plaintiff is subjected to annoyances and injuries that are neither necessary nor reasonable.
It is clear that these structures, if located upon private property, would constitute a nuisance by reason of the creation of smoke, cinders, dust, gases and disturbing noises. (Campbell v. Seaman, 63 N.Y. 568; Bohan v. Pt. J.G.L. Co., 122 N.Y. 18;Booth v. Rome, W. O.T.R.R. Co., 140 N.Y. 267.)
In Balt. Potomac R.R. Co. v. Fifth Baptist Church (108 U.S. 317) the court said (p. 329): "That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and when the cause of the annoyance and discomfort are continuous courts of equity will interfere and restrain the nuisance."
In Booth v. Rome, W. O.T.R.R. Co. (140 N.Y. 267) the court said (p. 277): "The use of premises for mechanical or other purposes causing great noise, disturbing the peace and quiet of those living in the vicinity and rendering life uncomfortable, or filling the air with noxious vapors, or causing vibration *Page 471 of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property."
For reasons already stated, the fact that the defendants are engaged in a public work is no defense to the charge that the structures in front of plaintiff's hotel are a nuisance.
In Seifert v. City of Brooklyn (101 N.Y. 136), in speaking of the immunity which the law extends to municipal corporations for the result of acts of a judicial and discretionary character, RUGER, Ch. J., said (p. 144): "When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, the power to make such an appropriation or create such nuisance will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guaranteed by the Constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts from responsibility for their consequences."
It is to be kept in mind that the construction of the Rapid Transit Railroad by these defendants is an important public work, in which the citizens of the city of New York are deeply interested, and the courts should be careful to accord to them every legal right, in a liberal spirit of construction, avoiding, if possible, placing in their way obstacles of any kind.
We wish to be understood as deciding this case upon its peculiar facts and not laying down any general rule as to the conduct of this subway work. It is impossible to so precisely regulate the damages as to prevent greater loss to one abutting owner than another under apparently like circumstances. What we do hold is that these defendants ought not to be permitted to continue a condition of affairs that is rapidly reducing this plaintiff to bankruptcy when the trial court has found in substance that the structures, of which complaint is made, are not necessary for the reasonable prosecution of the work.
This case presents a situation of peculiar hardship, and the *Page 472 plaintiff ought to be adequately compensated in damages, or the defendants should be prevented by perpetual injunction from continuing the nuisance of which complaint is made.
The order of the Appellate Division should be affirmed, and judgment absolute ordered for the plaintiff on the stipulation, with costs.