This action, brought to restrain the defendant from a continuous trespass upon the plaintiff’s easement in Columbus avenue, near Ninety-eighth street, in the city of New York, was decided in favor of the defendant upon the ground that the evidence did not show that the injury sustained by the plaintiff in consequence of the trespass exceeded the benefit to the plaintiff’s property from the maintenance and operation of the defendant’s railroad.
The decision of the court upon ivhich the judgment was entered was one stating concisely the grounds upon which the issues had been decided, and not one that stated separately the facts found. We are, therefore, required to review all questions of law or fact presented upon the record. (See § 1022, Code.) The plaintiff’s property consists of two .buildings twenty-five by sixty each the lots seventy-four feet deep, situated on the easterly side of Columbus avenue, between Ninety-eighth and Ninety-ninth streets. The buildings are used as stores upon the ground floors and as apartments upon the floors above. There are five stories that are occupied and rented by plaintiff for living apartments. The structure of the elevated railroad in front of the premises is forty-seven feet and seven inches from the surface of the street to the rail. It is just level with the sill of the fifth story window of the plaintiff’s premises^ and consists of three tracks, two of which are used for the ordinary way passing trains, while the center track is used for express trains.. The evidence is that such express trains pass this point at a speed of about thirty miles an hour. The evidence as to the obstruction and interference with the plaintiff’s easement establishes beyond a doubt that the interference here is most serious, and in consequence of the height of the structure, and the use that is made of it, is a substantial injury to the plaintiff’s property. The whole front of the building is covered by the structure and the passing trains ; and the use of this third track'for express trains, at the speed with which they pass the premises, in addition to the local travel, must be a serious interference with the use of the premises for living purposes. The court below, however, although recognizing this condition, dismissed the complaint on the ground that it appeared that the benefit which the plaintiff derived from the maintenance and operation of this road equaled or exceeded the injury thus caused.
*398The decision, of this case depends upon the determination of the. question as to what, if any, benefit this plaintiff derives from the maintenance and operation of this road. We recognize the principle that is well established,' and which is the foundation of the ■administration of equitable relief by way of injunction, that to justify micli an injunction the injury to the complainant must be proved to ■be substantial; that a court of equity will not interfere by this dis■cretionary writ, or mandate, to remedy a wrong which causes no sub- ■ stantial injury, and that, although a legal title may be interfered.witli, where such interference does not cause continuing substantial damage, a court of equity will leave the parties to their action at law. And this principle has been applied, by a late decision of the Court of Appeals, to actions, of this character, by a very convincing opinion by Judge ■Cteay in the case of O'Reilly v. N. Y. Elevated R. R. Co. (148 N. Y. 347). And if it appeared that, notwithstanding that this was a trespass by the defendant upon the plaintiff’s property, this wrongful and unauthorized use by the defendant of the plaintiff’s right ,and interest in this street was really a,benefit to the plaintiff instead ■of an injury, and that the present removal of this elevated railroad ■from this street would be a greater injury to the plaintiff’s property than the maintenance and operation of the road, it is clear that the .court was right in refusing to give to the' plaintiff any relief in equity, leaving the plaintiff to his action at law for damages. In considering this question, however, it should be remembered that we have to determine just what effect the maintenance and operation of this elevated railroad has upon the plaintiff’s property at the present ■time. It is not the condition of this • property fifteen or twenty years ago, when the road was first built, that has to. be considered. If the defendant had then taken and paid for the property that it required in the street, instead of wrongfully appropriating it to its own use, without consent or legal right, it would have been the value of .the' interest of the .plaintiff in the street at that time that def end7 ant would have had to pay for. This defendant, however, saw fit to seize the plaintiff’s property and use it without .right or authority instead of purchasing it or acquiring title to it in a lawful manner, and now, when it is called to account for its act, it is the condition - ■of affairs at.this time .that is to be determined. It .is the value oi: the plaintiff’s property now that is to be ascertained,, and the ques*399tian is whether or not the maintenance or operation of this road is an injury or benefit to the plaintiff’s property at the present time.
If this road were now removed with existing conditions, with existing methods of transfer from the plaintiff’s property to the other parts of the city, would plaintiff’s property be worth now more or less than it is with the road maintained and operated? The fact that fifteen or twenty years ago access to the property was difficult and tedious, and that the building of the railroad made it more accessible and added to its then value, that its, then holder 'was enabled to sell it for a greater price, would not be material in this investigation, for, as before stated, we now have to ascertain what the easement in this street appurtenant to plaintiff’s property is now worth; and its value depends upon whether its appropriation by defendant is at present a benefit or injury to the property. ' Considering the question in this aspect, I think it cannot be successfully disputed but that the maintenance and operation of this structure is a substantial injury to the plaintiff.
This property is about midway between the two stations of the elevated railroad, one station being at Ninety-third street and the other at One Hundred and Fourth street, so that in order to use the elevated railroad a person has to walk from Ninety-eighth street to Ninety-third or to One Hundred and Fourth street, being upwards of a quarter of a mile. The evidence shows that the benefit to the property midway between stations is the minimnn benefit that it can receive from the railroad. It also appeared from the evidence introduced by the defendant that this property now has as available means of transportion to the other parts of the city, the Eighth avenue horse cars, three lines of horse cars upon Amsterdam or Tenth avenue, one line of horse cars on the Boulevard and a cable road on Columbus avenue, which is a continuance of the present Broadway road. It also appeared that, taking the surface cars passing in front of this property, a person could go from this point to the Battery in about the same time as, or a shorter time than, by the elevated railroad, and that without having to walk or take another conveyance for the five blocks to the elevated railroad station. We have thus the established facts that this structure is an impairment of the plaintiff’s right to the use of the street, and that the location and use made by the defendant of this structure in the streets *400seriously' affects the ■ use of the plaintiff’s property.. It also appears that other means of communication from this prop- ■ érty to the other-parts of the city are afforded to the plaintiff, which are at-least as convenient and rapid as those offered by the defend- . ant That being, the case, it is apparent, without further -evidence, that at the present time, and as at present operated and maintained, this railroad gives to the plaintiff no substantial benefit, while its operation and maintenance are a substantial injury \ This defendant’s continued use of the street is a trespass and is wrongful. Unless this defendant condemns and pays for this plaintiff’s ■ right in the street that it now usee, the plaintiff has a legal right to' ■have the structure removed and the trespass cease. If such removal -of the structure, maintained and used by the defendant, and the discontinuance of its operation would to-day improve the property so as to give to the plaintiff greater rents' for the parts rented, and that his means of access to. his property would not be affected, then it is clear that it is the duty of the court to require the defendant to remove the" unauthorized and illegal structure, unless the value of the easement or property that is used should be paid to the plaintiff.
The learned judge in his opinion states that the property on Columbus avenue in front of this road has increased in value at a very much smaller ratio than the property in the adjoining streets; .that the benefit that has accrued to property in this locality by reason of the growth of the city has fallen largely upon projierty in the adjacent streets, and in a comparatively small degree upon property upon the. avenue through which passes this defendant’s road. It is useless" to analyze the evidence. It is sufficient to say that from an examination of it we are satisfied that this conclusion of the trial judge was correct, and that his conclusion that the removal of the defendant’s road would be' a more serious injury to the premises" than, its continued operation and maintenance- was erroneous.
It follows, therefore, that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Yan Brunt, P. J.,' BabbBtt and . Rumsey, JJ., concurred; O’Brien, J., dissented.