This is the usual action in equity, brought by the owners of property abutting upon the street, to enjoin the further alleged unlawful use by the defendants of easements of light, air and access, and for the recovery of past damages caused by such use.
A. former action brought in respect to these premises by Mary MoGlynn, as trustee, in behalf of these plaintiffs, resulted in a jndg*38ment of dismissal upon the merits, and it is contended that such judgment is res adjudicatei, the cause of action being the same as in that action. It was found and decided by the referee upon the former trial that the plaintiffs were not entitled to injunctive relief, nor to recover damages, and the complaint was dismissed. He found that the premises of the plaintiffs would not be worth more than they were at the time of the decision if the railroad in front of them were removed ; or than if it had not been built; that no substantial interference with access to the premises had been shown, but on the contrary the existence and operation of the railroad had rendered the premises more accessible to the benefit of the property; and that the plaintiffs do not own the bed of any part of the avenue in front of their premises, and their only property in said street is the appurtenances of light, air and access.
The judgment in that action was entered on March 11,1893; this action was commenced on November 13, 1893, and the court has awarded damages for the period between November 13j 1893, and May 10, 1900. The defendants pleaded the former action as a bar to this. • , .
An examination of the complaint in the present action and that in the first action shows that the averments upon which the plaintiffs base the right to recover are nearly identical in form, terms and language; indeed, the causes of action stated in the two pleadings are precisely alike, except as to the dates of the invasion and continued trespass -upon the plaintiffs’ rights. It - is evident, therefore, that as the complaint in the first action was dismissed upon the merits, after ¿11 the evidence had been received and judgment entered based thereon, that such judgment must be regarded as a bar to the extent of the matters there in issue, viz., the conditions existing prior to the entry of such judgment. It is undoubtedly the fact, and also the law, that the construction of the elevated structure in the street opposite the plaintiffs’ premises was an invasion of- their legal rights therein, and that the continued maintenance of the structure Constitutes the same a continuing trespass upon such rights so long as- the same remains and the defendants do not acquire the rights of the plaintiffs therein. But the mere invasion of the legal rights of the plaintiffs is not, of itself, sufficient-to authorize the intervention •of a court of equity to restrain the maintenance and operation of the *39railroad or to award damages therefor. After much discussion, the courts have announced as a fixed rule of law that equity will not interfere unless the act of the defendant has caused damage to the plaintiff of a substantial character, and if the plaintiff fails in establishing such damage a decree enjoining the railroad from maintenance or operation will not be granted. (O’Reilly v. N. Y. El. R. R. Co., 148 N. Y. 347; Bohm v. M. E. R. Co., 129 id. 576.)
It is evident, therefore, that when an action has once been brought and the parties have presented their evidence bearing upon their respective claims, and the court in determination of the same renders a judgment dismissing the complaint, based upon the ground that no substantial damage has been sustained by the plaintiff, such determination must be regarded as conclusive upon that state of facts. Otherwise, if no effect be given to such judgment, it would necessarily follow that one court might conclude that the plaintiff sustained no damage and another award a substantial recovery upon the same facts. Such a result is so repugnant to all legal rules and would render litigation so interminable unless the plaintiff recover judgment, that it ought not to be upheld, unless in the peculiar nature of this litigation no other result is permissible. It is the settled equitable rule that the judgments and decrees of a court of equity are binding upon parties and privies as to all matters which the parties might have legitimately litigated and had determined in the action, and a bill in equity regularly dismissed upon the merits may be plead in bar of a new bill for the same matter. (Neafie v. Neafie, 7 Johns. Ch. 1; Perine v. Dunn, 4 id. 140; Burhans v. Van Zandt, 7 N. Y. 523; Herm. Estop. §§ 400, 401; Story Eq. Juris. § 1523.) This rule is equally as applicable to the parties and privies in elevated railroad litigation as it is in any other. The peculiar relation, however, which has been created by the invasion of the plaintiffs’ legal rights may make such rule inapplicable when applied to results which may flow from the continued trespass upon their rights. As the trespass is a continuing one it is quite evident that at any time subsequent to judgment in a given case the relative conditions of the property owner and the railroad may be essentially changed, and while, at one time, the act of maintenance and operation may inflict no damage, at another time very serious damage may accrue, and under such circumstances the right to maintain a subsequent action would *40not be barred-nor affected by the prior determination, as the plaintiff’s right to recover would always depend upon his ability to establish that he suffered substantial damage by the continuous acts of ■trespass. It is evident, however, that if the evidence in the second -action showed no change in the circumstances from those upon which the former determination was based, both reason and logic, and, as we think, the law, would require a denial of the right to recover, and the former decree, as to such acts, would be regarded as conclusive of the controversy. Under such circumstances, the essential fact upon which the right to recover is based would be the same in both actions, and in principle we are not able to perceive any reason why the former adjudication should not be regarded as. final upon the same facts. Only one consideration of fact in this class of litigation can possibly operate to remove it from siich rule and the reason upon which it is founded, and that is that intermediate the time of the judgment in the first action and the determination of the second there has been' the continuous trespass. • But if by such act no damage has resulted and the structure and operation remain the same, such circumstances would not change the relative condition of the parties nor the basis upon which the conclusion in the first action was reached. It is not of vital consequence that the first action may not contain all the elements of a technical bar to the second action. The conditions remaining the same, the prior adjudication is evidence conclusive that there is no ground for the interference of a court of equity. Under such circumstances, the judgment of dismissal in the first action may be proved, and when proved, has all the force and effect of a former adjudication of the question involved, and is conclusive as evidence of the plaintiffs’ right to maintain the action. We are of opinion that the second action cannot be maintained, as- it appears by proof upon the trial that the relative condition of the parties has not changed. If there has been no change, then in no legal or equitable sense can it be Said that the plaintiffs had a cause of action at the time of instituting the second action. It is quite likely true.that such fact may not be determined from the averments of the pleadings, but rests in, the proof given upon the trial, for, as the trespass is continuous, all that would seem to be necessary would be to aver it, and this, followed .by an allegation of damage, would undoubtedly state a good cause of *41action. But if the evidence remain the same, with the single exception of the continuing trespass, we think no cause of action would be established, and the judgment in the former action read in evidence would be conclusive of such fact. We are not aware of any authority where the matter has been authoritatively decided, nor has our attention been called tq any. In O'Reilly v. N. Y. El. R. R. Co. (supra) it was suggested by counsel that the plaintiff was entitled to recover for the wrongful invasion of his rights for the reason that the possession by the defendant would ultimately ripen into title and the plaintiff be left without remedy. In disposing of this question the court said that the objection was met by the form of the decree, which provided that the dismissal was “ without prejudice to the right of the plaintiffs to bring such action as they may hereafter be advised, based upon facts not inconsistent with those herein adjudged.” By this clause it was said that before the defendant could acquire any adverse rights, if the plaintiffs became able to prove any actual damage or loss, they could commence an action against the defendant and obtain such relief in law and equity as their case might warrant. I am at a loss to understand just what rights were secured by the clause of the judgment there in question. If they could only obtain relief based upon facts not inconsistent with that judgment, I am not able to see how they could obtain any relief at all unless it was held that they were authorized to recover upon reproving the same facts. Certainly such evidence would not be inconsistent with that given in the former action where the right to recover was denied. But how the court could be consistent and render a judgment upon facts not inconsistent with those which were not regarded as sufficient to sustain a recovery is beyond my power of comprehension, and, literally read, this seems to be the provision of the judgment in that case, which was regarded as essential to save the rights of the parties.
We conclude, however, that what was really meant by the court was that the dismissal was without prejudice to the plaintiff’s right to maintain a second action if he could establish that the subsequent, act inflicted substantial damage; and the language of the court in that case indicates that no recovery would be authorized unless such fact was established, and if not established, the former judgment given in evidence would be conclusive upon the right of the plaintiff *42to recover. It seems to us, however, that no conditions in the judgment were essential to protect the plaintiff’s rights. His right was and is, and continues so long as the trespasses continue, to maintain an action in equity for an injunction and damages at any time when the acts of the defendant inflict damage. If the acts in fact never do more harm than to infringe the plaintiff’s technical rights, he is-at no time entitled to maintain an equitable action for such purpose, and it is not apparent how, in this respect, he could be harmed by the ripening into title of the right to maintain and operate the road, if, during the whole period, he suffered no substantial damage. It •seems quite evident that if at any time the-defendant changed the structure or the method of operation in such form and manner as to create an additional burden upon the plaintiff’s rights, he could at once bring his action, and such condition would only begin to ripen into title in favor of the defendant from the time whén the additional burden was placed upon the easements.
The result of this reasoning would seem to lead to the conclusion that the former adjudication is to be regarded as conclusive upon' the plaintiffs’ right to recover in this action at the time when it was commenced. The first action was dismissed and judgment entered on March 11,1893; this action was begun on the thirteenth day of November of the same year. The proof given upon the trial does not show the slightest change or act upon the part of the defendants, either in construction or operation, which did not exist when the former action was tried and when the complaint was dismissed,, except such as occurred after this action was commenced. What-did appear was, that in December, 1894, some fourteen months after the plaintiffs began this action, the defendants placed a third track upon the structure and ran additional trains over the same, and this is the substantive part of- the testimony appearing in this record upon which the case is changed from that which appeared upon the former trial.
It is quite possible that this change of structure authorized the court to find that it inflicted damage upon the plaintiffs’ property, but such conditions were not in existence when this action was begun. While, undoubtedly, the jflaintiff is entitled to recover in one action all the damages sustained down to the time of the trial, yet this necessarily presupposes, indeed, rests upon-the fact' of the> *43existence of a cause of action upon which equity would lay hold and administer relief when the action was begun. The defendants do not seem to have objected to this proof, and we should regard them as consenting to its reception and sustain the judgment upon that ground, were it not for the fact that the court has awarded damages, both fee and rental, from the date of the commencement of the action. For fourteen months from the time of the commencement of the action the plaintiffs neither proved nor had a cause of action for equitable relief or for the award of damages, and yet such period was embraced by the court. So far as the fee damage is concerned, the award is not severable, nor are we able to determine what amount the court awarded for this period of fouiteen months. The judgment in this respect is, therefore, erroneous.
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., and Laughlin, J., concurred; Ingraham and Patterson, JJ., dissented.