McGrane v. New York Elevated Railroad

Ingraham, J. (dissenting):

This action was commenced on November 13, 1893, and the complaint alleged that the plaintiffs were the owners of two pieces of property situated on the westerly side of Ninth avenue, in the city of New York, between Thirty-seventh and Thirty-eighth streets; that during the year 1878 the defendant, the New York Elevated Railroad Company, took possession of Ninth avenue in front of the plaintiffs’ premises and erected thereon an elevated railroad, and is now maintaining and operating a double-track steam elevated railway thereon, and ran and still runs thereon railroad cars drawn by locomotive steam engines ; that said railway is now and since May 20, 1879, has been in the possession of and operated by the defendant, the Manhattan Railway Company ; that such an appropriation of the avenue was against the plaintiffs’ will or consent, the defendants claiming the right to maintain and operate the said railroad without compensation for the property thus taken ; that the erection of the said structure and the running of said trains thereon have created an additional burden on the premises described in the complaint, not included in the easements granted to the city, and have *44interfered with the plaintiffs’ right to have the said street in front of their premises a free and open passageway and to have the light and air enter upon said building free from any obstruction in said street; that by reason of the premises the plaintiffs have suffered damages in at least the sum of $15,000, and the complaint asks that the defendants be enjoined from maintaining, continuing or operating said railroad and structure and be directed to remove the same, and that they recover against the defendants the sum of $15,000.

The cause of action here sought to be enfored was thus based upon a trespass by the defendants upon the plaintiffs’ property, it being claimed that at the date of the commencement of the action the defendants were then committing such a trespass; that such trespass was a continuing one, the defendants claiming that they were entitled to maintain their road and trespass upon the plaintiffs’' property without compensation, and the relief they sought was an injunction restraining such continuing trespass. As a defense to this cause of action the defendants alleged that on the 6th of May, 1890, Mary IT. McGHynn, as trustee of Hugh A. McGrane, ^¡arrie O. McGrane, and Hugh A. McGrane and Mary A. McGrane, infants, by Mary IT. McGlynn, their guardian ad litem, the then alleged owners of the premises described in the complaint, began an action against these defendants in the Superior Court of the city of Hew York; that said action was brought to enjoin the maintenance and Operation through said street in front of said premises of the elevated railroad described in the complaint herein, and for incidental damages, and that the cause of action set’forth in the complaint herein is the same cause of action as that sued upon in said former action, and that on the lltli of March, 1893, judgment dismissing the complaint upon the merits was entered therein.

Upon the trial of this case the defendants introduced in evidence the judgment roll in the former action, wherein it appeared that the action was brought for an injunction and for damages, the cause of action being similar to that set out in the complaint in this action. As a part of that judgment roll there is the report of a referee before whom the action was tried. The referee found as a fact that the maintenance of the railway structure in front of the plaintiffs’ premises has, from the year 1887 to the present time, constituted, and will hereafter constitute, a use inconsistent with, and in *45excess of, the ordinary uses for which said street was set apart and reserved in law, and by such inconsistent and excessive street use the access to the plaintiffs’ premises above . described has been obstructed, and will hereafter be continuously obstructed, and the quantity of air and light that would otherwise have passed, and would otherwise hereafter pass, have been lessened ; that to the extent that the maintenance of said railway structure and the operation of trains thereon constituted and constitute an inconsistent street use, as set forth in the 11th and 12th findings, the defendants have taken and kept and are in possession of, and will hereafter take, a part of the easements of access and of light and air herein-before found to be a part of the plaintiffs’ land; and at the request of the defendants, that the premises in suit would not be worth more than they now are if the elevated railroad in front thereof were removed ; that the increase of accessibility has been a benefit to the plaintiffs’ property and has increased the value thereof; and as a conclusion of law, that the plaintiffs are not entitled to injunctive relief unless they have proved that the physical interference with the easements appurtenant to the premises in suit has resulted in substantial pecuniary damages to the same, and are not entitled to relief unless they have proved that the actual market value of the premises in suit would be greater if the defendants’ elevated railroad in front thereof had not been built, and that the plaintiffs are not entitled to recover damages herein, and the.referee dismissed the complaint, without .costs. Upon these findings a judgment was entered dismissing the complaint upon the merits, without costs to either party.

The effect of that judgment is, by the prevailing opinion, held to be fatal to the plaintiffs’ right to a recovery in this action, upon the ground that, the conditions remaining the same, the prior adjudication is evidence conclusive that there is no ground for the interference of a court of equity; that 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 against the plaintiffs’ right to maintain the action; that before the second action can be maintained, it must be made to appear by proof upon the trial that the relative conditions of the parties have changed, and that *46damage has resulted from the acts of the defendants bn account . thereof; for it is argued that if there be no change, then in no legal or equitable sense can it be said that the plaintiff's had a cause of action at the time of instituting the second action.

The former action was brought to restrain a trespass, and was based upon the fact that in 1890 the defendants were trespassing upon the plaintiffs’ property under a claim of right; that such trespass was a-continuous trespass for which the plaintiffs could obtain no adequate relief in an action at law. When that action came on to be tried in the year 1893, the court found as a fact, that the defendants were trespassing upon the plaintiffs’ property, but that the plaintiffs had failed to prove that such trespass had caused substantial damage, and that for that reason the plaintiffs were not entitled to equitable relief. That this adjudication was binding upon both parties to, the action is not disputed. The .question is as to what was adjudicated. That the right to maintain the action depended upon the Condition as it existed at the time the action was brought seems to be conceded. The effect of that adjudication, therefore, is that on the 6th of May, 1890, the defendants were trespassers upon the plaintiffs’ property; but to entitle the plaintiffs to recover, they were bound to prove that such a trespass caused a material in j ury; and that, having failed to prove such injury, the defendants were entitled to a dismissal of the equitable cause of action.

■ Now, what relation had this adjudication to an action commenced in November, 1893, based upon an allegation that the defendants were then committing a trespass upon the plaintiffs’ property; that- such trespass as the defendants were then committing was an injury, and that the plaintiffs should be enjoined from continuing such trespass ? By the prevailing opinion it does not seem to be claimed that this prior adjudication was a bar to the commencement of this action, but that it was evidence conclusive upon the trial that the defendants’ trespass caused no damage. But as I understand the rule, théfe is no distinction between the effect of an adjudication as evidence and a bar except that to be effectual as a bar it must be pleaded. The second action was not brought for the same cause of action that the first was brought to enforce. If the first action had been at law, to recover the-damages for.the trespass, and' resulted in a judgment for nominal damages only—which, *47in view of the finding of the referee in the report upon which the judgment in the first action was based, seems to me to be the.effect of the adjudication, he, having found that the occupation of the street, so far as it affected the plaintiffs’ easement therein, was a trespass, but that no damage having been proved tlie plaintiffs were not entitled to equitable relief — such a judgment could not be a bar or as evidence conclusive in favor of a defendant upon a second action brought to recover damages for a subsequent trespass upon the same property. Would the plaintiff in such a subsequent action be bound to prove that the existing conditions for which he sought to recover damages were essentially different from those existing at the time the first cause of action was commenced % It seems to me that he would not. That judgment would be a bar to any action brought to recover for the damages sustained prior to the commencement of the first action. It certainly could not be a bar to a claim for damages sustained by the owner of the property trespassed upon from he time of the judgment in the first action to the commencement of the second action. Upon what principle can other or different, effect be given to a judgment where the owner of land asks for a. judgment enjoining a trespasser from continuing trespass ? While it is clear that a judgment in an equity action is a bar to a recovery for a similar cause of action as is a judgment in an action at law, I think that the effect of such a judgment in an equity action, where, it is brought to enforce a legal right, can be no greater than would be the bar of a judgment recovered in an action at law. The prevailing opinion expressly holds that the condition at the time of the commencement of the action must determine the right of the plaintiffs to maintain it. As to the effect of the adjudication, therefore, we go back to the time of the beginning of the first action in 1890, and the effect of this decision, as I understand it, is, that because the court had adjudicated that in 1890 a trespass caused no injury the owner of the property can never maintain an action to recover for subsequent trespasses upon the same property unless he affirmatively shows that the trespass was different in character from that caused when the first action was commenced, or that the acts constituting the trespass were different in character from those constituting the first trespass. It is to that proposition that I dissent.

Fo authority is cited to sustain this proposition, either in the pre*48vailing opinion or by counsel on the argument. The general rule, however, is well settled that the test as to whether the second suit is founded substantially upon the same cause of action is, that the same evidence will support both actions. (Steinbach v. Relief Fire Ins. Co., 77 N. Y. 501.) Applying this rule, it seems "to me quite evident that the prior judgment is not an adjudication of any question arising in this action. In the first cause of action the plaintiffs sought to enjoin a continuous trespass existing prior to the commencement of that action. The adjudication was that the defendants were guilty of the trespass, but that the plaintiffs sustained no damage. This second cause of action is to restrain a trespass existing at the time it was brought, and to recover the damage caused by such a trespass. Evidence that the defendants had trespassed upon the plaintiffs’ property in 1893 would clearly not have sustained an action brought in 1890. That such trespass was an injury to the plaintiffs’ property in 1890 would not sustain this equitable action for an injunction commenced in 1893. The question determined in the former action was that at the time of its commencement the trespass had caused the plaintiffs no damage. What possible relation that could have to the question that was involved in the trial of this case, viz.? whether this trespass had caused the plaintiffs damage in 1893 when this action was brought, or in 1901, when the action was tried, I am unable to see. The record shows that the substantial question before the referee upon the trial of the first action was the damage caused by the trespass in 1890, and that the substantial question before the court upon the trial of this action was the damage caused by the trespass in 1893. It is now settled that these, actions must be determined upon the conditions that existed at the time they were commenced ; and in determining whether or not such a "trespass causes damage, the conditions then existing must be considered, and not the conditions that existed at the time this railroad was built. Thus, if the continued existence and operation of this road is a damage to the abutting property, so that if the road were removed the property would be of greater value, the injunction should issue; and the fact that at a prior time in the history of the road it had been an advantage to the plaintiff’s property is not material. (Otten v. Manhattan Ry. Co., 2 App. Div. 398.) If these abutting property owners had brought an action against this railroad the first year it was built, *49and equitable relief had been refused upon the ground that the existence and operation of the road caused no damage, applying this rule, it certainly could not be said that that judgment was a conclusive adjudication that the railroad could continue forever to trespass upon the plaintiffs’ property, although at a subsequent time, in consequence of changed conditions as to the use to which the plaintiffs’ property was put, a continued operation of the road caused serious damage. In the case of Rose v. Hawley (133 N. Y. 315) it was expressly held that where the later cause arose out of facts happening after the commencement of the first action, the causes of action could not be identical; and that where the former judgment is in equity in favor of the defendant, the test is to inquire whether the new judgment sought is inconsistent with the prior one rendered ; and where that is one of no cause of action, there may be no such real inconsistency, and the party claiming that there is, must show it; that no needless or purely constructive bar should be encouraged, and that the real truth and actual fact should always be sought.

It is conceded by the prevailing opinion, as I understand it, that this judgment would not be a bar if it appeared that the conditions had changed since the former action was commenced; but that as no change appears, the j ndgment is conclusive. But this seems to me to violate the rule that the burden to show that the conditions are the same rests upon the party who undertakes to make use of the judgment as conclusive evidence. (See Bell v. Merrifield, 109 N. Y. 211; Lewis v. O. N. & P. Co., 125 id. 348; Reynolds v. Ætna Life Ins. Co., 160 id. 651.) In the last named case it is said; “ The conclusive character of a judgment as a bar extends only to the identical issues which were tried in the former action. They must be the same in each action, not merely in name but in fact and in substance, and the party seeking to avail himself of a former judgment, as conclusive evidence or as a bar in a subsequent action, must show affirmatively that the question involved in the second was material and determined in the former, as a former judgment would not operate as an estoppel in a subsequent action as to immaterial and unessential facts, even though put in issue and directly decided.” Upon this record I think that the former judgment that *50the., plaintiffs sustained no in jury by-a trespass in 1890,. was not art adjudication that the same- identical trespass did.not cause damage, in 1893.. ;

. As. this is the only question discussed in the prevailing opinion, it, is unnecessary to discuss the other questions presented. ,

. I, therefore, dissent.,

Patterson,. J., concurred.

Judgment reversed,, new trial granted, costs .to appellants to abide-, event.