If I supposed that this case was in any sense close or doubtful I would be content to record my *Page 476 vote against the views of my brethren in silence without assigning any reasons. The learned trial judge dismissed the complaint and held that no cause of action had been established, but the learned Appellate Division reversed the judgment and held that the plaintiff was entitled to recover. That the trial court was right on the law and the facts, and that his decision is unassailable seems to me very clear, but since all my brethren except the chief judge think otherwise, I am constrained to state briefly my reasons for differing with them.
There is no dispute about the rule of law that governs the case. The defendants are engaged in a great public work authorized by the state and by the city and are not liable for consequential damages to property owners unless caused by negligence or misconduct. I will not stop to cite authorities to support this proposition since no one disputes it. The learned court below found no reason for reversing the judgment in the findings themselves, but rather in the evidence, and since it approved the findings of fact and reversed upon the law, this court must review the case upon the findings alone. There is no dispute about this proposition. All admit it. The question before this court then is a very narrow one and is simply this: Did the learned trial judge dismiss the complaint after finding that the plant and structure in question was a nuisance? That is what is asserted by the learned counsel for the plaintiff and that is what the prevailing opinion holds. If he has so found then I admit that the decision about to be made by this court is correct, but if he has not it is wrong since this court must look to the findings alone for reasons and must assume that the facts found are the real and only facts in the case. Any one who will read the opinion of the trial court will see very clearly that he did not intend to find anything of the kind, and if he has it is evident that he has been so maladroit or unfortunate in the use of language that he has not only failed to express the thought that was in his mind but has actually expressed just the contrary. In other words, intending to find that the thing wasnot a nuisance he has succeeded in finding that it was. The learned trial judge *Page 477 may well be astonished to learn of the result imputed to him, and I think that at least one member of this court should defend him against such an imputation, and the best way to do that is to present the findings in his own words. Here they are:
"Fourth. The construction of the Rapid Transit Railroad in which these defendants are engaged is an important public work. The work is not performed negligently, carelessly or unskillfully or in an unreasonable manner. No private rights of the plaintiff are trespassed on by these defendants. The defendants are not liable for consequential damages resulting to the plaintiff from the construction of the work in which they are engaged. 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. The resulting annoyance to the plaintiff is temporary. The defendants occupy the public property under proper authority.
"Fifth. 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. The aggregate damage, however, produced thereby would not be lessened, and the loss which now falls upon the plaintiff would be cast upon others. The defendants are engaged upon a public work under public authority. The necessary and proper place for the construction of the operating plant were matters to be determined by the contractor 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.
"They acted in good faith, and their exercise of discretion is not open to review. The plaintiff is injured, but is not entitled to either damages or an injunction." *Page 478
Just how this language can be construed into a finding that the defendants created or maintained a nuisance in the public place fronting plaintiff's hotel is to me inconceivable. How the defendants' acts which are described in these findings as authorized by law, reasonable and skillful, free from negligence and carelessness, can at the same time be a nuisance, is a problem that no one has attempted to explain or can explain. The defendants are engaged in the construction of a city highway. That is what this court held that it is, and what it had to hold in order to make the statute valid under the Constitution. (152 N.Y. 257.) The city could build it by day's work or by contract, as it thought best, and if the plant in question is now a nuisance, it would be equally so had the city placed and maintained it where it is in the operation of building its own railroad. What the city could do itself it can authorize its contractors to do for the same purpose, and it has given the consent and authority. The city and the contractor had the power to locate the plant, and they have located it where it is. Who is to determine now whether it was located in the right place, or should have been located in some other place, the local authorities or the courts? It is suggested that it was located where it is in order to subserve the defendants' convenience and to save expense. There is no finding of that kind, and the assertion is based upon conjecture purely. If that argument means anything, it must mean that the city should have extorted from its contractor, building its own railroad, a large sum of money for the privilege of using the public place in question, and had it only done that, what is now a nuisance would not be a nuisance at all. How the exaction of compensation by the city from the contractor would benefit the plaintiff or reduce his damages it is difficult to perceive. That suggestion and the argument based upon it might very well be answered in the same way that the master of the vineyard answered a similar suggestion and complaint from his servant a long time ago: "Is thine eye evil because I am good? Is it not lawful for me to do what I will with mine own?" *Page 479
But I am in search of some statement or expression in the findings to the effect that the thing complained of is a nuisance, since it is asserted that such a statement is there, and that is the vital point in the case. The learned judge did find that if the thing had been placed elsewhere the work could have been done practically as well and with less damage to the plaintiff, but with the same damage to some one else, and it is contended that a nuisance lurks in this finding. If so, it must be because the city and the contractor should have selected some other party upon whom the same injury would be inflicted, and whether the thing is a nuisance or not depends upon whether there was an error of judgment in visiting the wrong upon the proper party, since some one must bear the loss or inconvenience. I am not aware of any authority for holding that an appliance like the one in question, necessary for the construction of an important public work, is a nuisance merely because it was possible to place it elsewhere, where it would be equally obnoxious and harmful to some one else. When the question as to the proper place to locate the plant was in good faith and in the exercise of reasonable discretion decided by the public authorities, it would be a very loose kind of law that would permit a private party to assail such action upon speculations that if only some other place had been selected all would be well. The place never could be safely or legally located if that principle is to be recognized. But the learned trial court also stated that if the plant which it is now said is a nuisance had been subdivided into a number of smaller plants, distributed along the line of the work, the aggregate damage to the plaintiff would be less, but still the same as to others, and the only result of such a change would be to cast the loss, or some of it, upon the plaintiff's neighbors. Here again it is said that a nuisance is plainly revealed. If so, the logical process through which that result is attained, though not stated, must be something like this: The defendants neglected to divide the thing now adjudged upon the findings to be a nuisance into several smaller nuisances, to the end that they might be equitably distributed around in front *Page 480 of the property of others who should bear some part of the loss, as if it were a tax or some public burden, and by this process of distribution lay the foundation for as many law suits as there were plants, and not having done this they, therefore, created a nuisance, and the thing complained of in this action is a nuisance. It is assumed that there is in law a vast difference between a large nuisance and a small one, and so there is, or may be, as to the damages or the extent of the injury, but not as to the right of action or the remedy. If the thing which the plaintiff complains of was cut down to one fifth of its present dimensions, but still made the same use of, he would have just as good a cause of action as he has now, though the damages might be less, and even that must be largely matter of conjecture, and so it would be with all the other property owners affected by the process of division and distribution.
I always supposed that it was no part of the functions of a court of last resort, organized as this court is, to decide questions of law arising upon facts found, conceded or undisputed, to determine whether the contractors and the local authorities located this apparatus for generating compressed air in the right place, or whether it should have been located at some other place. The learned trial court found that they had the power to locate it, as they clearly had, that they exercised this power reasonably and in good faith, and that ought to conclude this court in regard to the location. When we decide that it should have been located at some other place, for that is what the decision means, we are exercising original jurisdiction which we do not possess, and it does not help the matter much to do that under the guise of giving a construction to a finding that it will not bear. To say that the language of the findings, or any part of it, describes a nuisance is to mistake the meaning of words and to lose all idea of proportion.
It is said in the prevailing opinion that the part of the finding of the learned trial judge, which is to the effect that, in case the plant had been located elsewhere or distributed, the damage in the aggregate would be the same, is mere matter of *Page 481 conjecture without any support in the evidence. This I think is a mistake, since the record shows that the defendants' witnesses, some of them experts, and a part of whose testimony is quoted upon the brief of the plaintiff's counsel, while stating that it was possible to place the plant elsewhere or subdivide it, if the place could be found or procured, stated in almost the same breath that it would be impracticable to do so for very cogent reasons which they gave, and if done, the aggregate damage and public inconvenience would not be less. It is impossible to read the testimony as a whole and then say that the court was not authorized to make the finding in the very words that he employed. It is not quite fair, as it seems to me, for a court of last resort, reviewing a case upon findings, to fasten upon a single sentence in an entire finding and divide the sentence, adopting what is supposed to be favorable to the plaintiff and rejecting what is supposed to be favorable to the defendant, in order to work out, as matter of law, a nuisance from the language employed. It is admitted that the court used the short form of decision permitted by the Code and, hence, he is deemed to have found all the facts necessary to support his judgment since the decision has the same legal effect as the general verdict of a jury on the issues, as we have repeatedly held. This general verdict has not been disturbed by the reviewing court below, as it had the power to do upon the facts, and this court must accept the findings just as they are.
That the plaintiff sustained great annoyance and serious damage from the location and use of the thing of which he complains there can be no doubt. It is said that the damage is special which, I take it, means nothing more than that his damages are greater, relatively, than his neighbors generally have sustained. The amount of the damages cannot change the rule of law. The laborer in a tenement house who has been under like conditions and circumstances, damaged to the extent of one hundred dollars only, has the same standing in the courts to enforce his claim as the plaintiff. The answer to both claims is the same, and is to be found in the language of Judge MARTIN *Page 482 in this court (169 N.Y. 282): "In every civilized community controlled by governmental or municipal laws or regulations, there are many cases where the individual must be subjected to remote or consequential damages or loss to which he must submit without other compensation than the benefit which he derives from the social compact." This, in my opinion, is one of the cases referred to. The city, under the authority of the state, is engaged in a great public work that injuriously affects the business and property of hundreds of people on the line of the work and in the vicinity. Many of them have been and are damaged proportionally as much and perhaps more than the plaintiff. The strain upon the nervous system of the aged and feeble and the sick from the constant blasting and other operations must be very great, and while the plaintiff has lost money, some of his neighbors may have suffered in a way that money cannot compensate. If he is entitled to be made good so are they. All that is necessary is that they bring to this court the finding of a jury or a court to the effect that the subway could have been located on some other street or at some other point. The legislature did not give express or specific directions to locate the railroad in any particular street, any more or in any other way than it gave like directions to locate the place for the appliances necessary for its construction. All that was properly left to the local authorities, and if their decision does not protect the defendants from liability in this case for the alleged nuisance, neither would it protect them for converting the streets of the city into a broad and deep ditch, to the annoyance and damage of thousands of people. If the thing complained of in this case is a nuisance so is the ditch, since both things were located by the same authority. It does not help much to say that we are not to be understood as formulating "any general rule" in this case. If the decision rests firmly upon law and reason that warning is superfluous. It is impossible to decide the case without laying down a rule applicable to all cases depending on the same or similar facts and legal principles. Surely it cannot be presumed that the plaintiff is the only person in the city *Page 483 who can make out such a case as we now have before us. If the plaintiff is able to spell out a nuisance from adverse findings upon which he was defeated at the trial, how will it be with others who may succeed at the trial and procure more favorable findings from a court that may feel constrained to follow our decision in this case and these findings are unanimously affirmed? The truth is that the decision of any court born of a struggle to give relief to a particular person, when thousands in the same community have relatively a similar grievance, is quite sure at some time and in some way to come back to plague and vex the court that made it, and then it must be explained away by some specious but flimsy argument or silently ignored.
There is one passage in the prevailing opinion which seems to constitute the corner stone of the decision. Here it is: "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 some other localities that might be named." But how is all that soevident? Certainly not from the findings that are our sole guide as to the facts. Hence this is but another way of saying that the court, when hard pressed for a reason, will fling away the findings and act upon its own notions of the real situation. The natural and reasonable place for the appliances necessary to construct the work is at or near the locality where the work is to be done. The notion that they should have been placed at some point a mile or more distant is but an extreme and fanciful suggestion. It does not require an expert to see that such a thing, while possible, was not reasonable nor practicable. That is what the learned trial court has found, and I assume he was as well informed on that question as we are or can be. It was a question involved in the issues before him and of which he had jurisdiction. It is a question now of which we have no jurisdiction outside of the findings made. But the residents of the fashionable avenues named *Page 484 are to have the benefits of rapid transit practically at their doors, and is this court to hold that they must be exempt from the annoyance and damage incident to the construction of the tunnel, and that it should be shifted to the people in the sparsely settled districts, wherever that place is, or upon the people on the river fronts? Nay more, are the defendants, the contractors building the subway, guilty of creating and maintaining a nuisance simply because they have not done enough to shift the annoyance from the former to the latter? If that is law it must be that a noxious thing near one of the fashionable residences or hotels on one of these avenues is a nuisance, while the same thing, used in the same way, when placed near the home of a laborer or more humble man of business would not be a nuisance at all. Grant that the latter would not be able to prove more than ten per cent of the damage that the plaintiff has, as the court suggests, would the thing for that reason be any the less a nuisance? If the thing complained of is a nuisance where it is, why would it not be a nuisance if placed near the home of a laborer or mechanic? And yet the only ground of liability suggested in this case is the neglect of the defendants to favor the former by afflicting the latter. I have no doubt that all the reasons that have ever been or can be given to support the judgment about to be rendered by this court in this case are fairly embodied in the opinion of the court, and those reasons there expressed will speak for themselves. The issue in this case is one of law, and in its last analysis a very plain and simple one. On the one hand it is asserted that the trial court found that the thing complained of was and is a nuisance, while on the other it is asserted that the finding is the other way and plainly to the effect that it is not a nuisance. Therein lies the whole controversy. We cannot advance one step towards the solution of this question by generalizing as to the extent of the plaintiff's damages or speculating with respect to the part of the city where the thing in question should have been placed. All that is foreign to the question at issue and only tends to mislead. What is the fair meaning and legal import of the *Page 485 language which the learned trial judge used in the findings? That is the question and the whole question.
We have very recently held that a property owner sustaining damages in the form of a physical injury to his house and buildings, caused by a contractor in the one case and the city itself in the other when engaged in a public work, could not recover for the damage and injury in the absence of proof of negligence (Holland House Co. v. Baird, 169 N.Y. 136;Uppington v. City of N.Y., 165 N.Y. 222), and so this court has held that the temporary use of structures like the one in question in the construction of an aqueduct, injurious to adjoining property owners, constituted no cause of action in favor of the party injured against the city. (Lester v. Mayor,etc., of N.Y., 150 N.Y. 578, affg. S.C., 79 Hun, 479.) What the legal distinction, if any, is between the damages claimed in these cases and the damages claimed in this case I cannot perceive and no one has attempted to state. I am not in favor of making use of the equitable powers of the court, including the writ of injunction, for the sole purpose of coercing these defendants to pay money to the plaintiff, under the name of damages, which the latter could not recover in an action at law.
But I am mentally admonished that I must be wrong at some point in the discussion, since my learned brethren, for whose opinions I have great respect, even when given as in this case, dogmatically and without argument, differ so radically with me. I have endeavored, however, to make my reasons plain to the end that my error, if any, may be easily detected and readily refuted. I think the law and the facts in the case were correctly decided by the trial court and that there was no legal ground for reversing the judgment.
Since writing the above, Judge CULLEN, another of my associates, has very wisely and properly thought it necessary to add something to the discussion. Agreeing entirely as he does with Judge BARTLETT, who holds that upon the findings of thetrial court as made the plaintiff was entitled to recover, he proceeds immediately to demolish these very findings, *Page 486 because made without what he calls sufficient evidence, and he cites a case to prove that this court must sustain the reversal below upon the law when the findings have not sufficient evidence to support them.
Of course he does not mean quite what he says, since the case cited does not hold anything of the kind. What it does hold is that this court in such a case may disregard the findings that have no evidence whatever to sustain them. If the evidence was thought to be insufficient the court below should have reversed upon the facts, but I venture to say that no one will be able to point out a single finding made by the trial court that has not the support of at least some evidence. Indeed, it is difficult to see how any other findings could have been made. It is quite impossible, however, to reconcile the two opinions. They are inconsistent with each other and each is, in some respects, inconsistent in itself. Inasmuch as Judge CULLEN agrees with Judge BARTLETT, he must assume the findings in the record to be the findings in the case; and to stand upon the findings as made in one breath, and to throw them away as worthless in the next, does not strike me as a very logical or consistent method of argument. When we find one opinion standing squarely on the findings and the other agreeing with it, but at the same time seeking to destroy these very findings, there must be some confusion of thought or want of harmony in the argument. It only illustrates, however, the vague and illusive theories that may sometimes be used with the very best intentions to sustain a case. It would be much more satisfactory if we could learn just what finding it is that is without sufficient evidence to sustain it if we are to review the case in that way. There was but one general, fundamental fact in issue in the case, and that was whether the thing complained of was or was not a nuisance. The plaintiff alleged that it was and the defendants denied that allegation. Therein was involved the whole issue of fact in the case, and it is obvious that the plaintiff could not succeed unless the trial court found that issue in his favor. That court not only refused to so find, but actually found that it *Page 487 was not a nuisance. All the other allegations of the complaint and the other findings are merely evidentiary. The trial court having negatived the fundamental fact in the plaintiff's case, this court cannot supply it unless the proof on that subject was conclusive in support of the plaintiff's allegation that it was a nuisance. No one has yet ventured to say that. So we must go back to the point from which we started, and that is concerning the legal effect of the findings as made.
If the court found in terms, or in substance, that the thing is a nuisance, then this court, I admit, has some ground to stand upon; but otherwise not. The argument, or rather the assertion, that the use of the public place in question during the progress of the work is not temporary, while the use of the bed of the street for the same time is temporary, does not seem to me to meet the situation. The thing complained of is either temporary or permanent. No one has ventured to assert that it is permanent, and hence it must be temporary. The statute authorized the public authorities to grant such temporary privileges to the contractor for the purpose of facilitating the work, and the court found that the authorities did make the grant to the defendants. The city authorities consented, and so did the rapid transit commission. What does the statute mean by "temporary privileges," if it does not mean the use of some of the public places, like the one in question, while the work lasts? It is so obvious that that was the very purpose of the statute that it seems to me that there is no room for any other construction. It is not a very fair or intelligent answer to the question suggested above to say that whatever it means, it does not mean that the authorities have power to grant to the defendants the privileges which they did. That is only a bald assertion, unsupported by either reason or authority.
But it is said that the case of Morton v. Mayor, etc., ofN.Y. is decisive of this case. That assertion seems to me very much like jumping at a conclusion. If there is no difference or distinction between the erection of a permanent power house *Page 488 that jars and shakes the walls of an adjacent dwelling house, and is to do that for all future time, rendering the house untenantable, and the use of the square in question, as it is used, only during the time that the work of constructing the tunnel lasts, then that case has some application here. But I supposed there was a very broad distinction in the circumstances of the two cases, and how any one can avoid seeing that distinction, even if he should try, is one of the many things in this case that I have not been able to understand. That case might just as well be cited to sustain an injunction against the defendants for opening the broad and deep ditch in front of the plaintiff's hotel, since it would be just as applicable then as it is now. In both cases it is the occupation of a public place for the purpose of constructing a public work which is a damage to the plaintiff's business.
It will be seen that Judge CULLEN has ignored the finding of the trial court that the thing in question could not practically be placed elsewhere, without inflicting the same damage on some one else. He does not even claim that the finding is without evidence, and such a claim could not fairly be made on the evidence in the record.
I still think that the learned trial judge decided this case correctly. He did not allow sentiment or sympathy to enter into his decision, but followed the law.
GRAY, HAIGHT and WERNER, JJ., concur with BARTLETT and CULLEN, JJ. O'BRIEN, J., reads dissenting opinion, and PARKER, Ch. J., concurs.
Ordered accordingly.