This is, in form, an action brought by an abutting property owner against the Manhattan Railway Company for an injunction and damages for taking easements of light, air and access, by the erection and maintainánce, without legislative authority, Of an elevated railroad track over and above the center of Ninth avenue between twó other elevated tracks previously erected and rightfully operT ated and maintained by the defendant and its predecessors in front •of. the plaintiff’s premises.
Unfortunately, we have not before us the record-of the evidence *807given at the trial. The case comes up on the judgment roll alone, and we can only look, therefore, to the pleadings and findings of fact to ascertain what induced the conclusions of law reached by the court below. The appeal is by the plaintiff. It was found .at the Special Term that she was entitled to some relief by reason of the construction and maintenance of a central or “ third track.” It was adjudged that there had been an impairment of' fee and rental value by reason of the construction and operation of such third track; that such impairment, at a money valuation, amounted to a certain sum; that the plaintiff was entitled to an injunction unless the defendant paid that sum, and if it were paid an injunction should not issue; and,the plaintiff, on such payment being made, was required to convey the additional easements taken.
On this appeal a question arises which has not been finally passed upon in this State, although the plaintiff urges that there is abundant authority to sustain her contention respecting it. The defendant’s railway is lawfully operated on two tracks in front of the plaintiff’s premises. The right so to operate it by the acquisition of easements appurtenant to those premises is not denied. The construction and operation of a third or central track is the subject of the plaintiff’s complaint. She insists that the defendant lias no right to maintain the structure of a third track in the street in front of her property and to operate it with the annoyance and detriment to value which result from the increased traffic, as well as from the permanent character of the superadded structure. As the case is now presented on the findings of fact, and in view of what has been decided by this court respecting the third track of the defendant’s road on Ninth avenue, there can be no doubt, I think, that the structure complained of by the plaintiff is an illegal one, although if the question were res nova, I should'have something further to sayón that subject. But the statement of what'this court has decided is not to be taken as an indication or expression of opinion that the defendant, in constructing and maintaining such third track, acted or now acts in willful disregard of the rights of property owners, or in a high-handed manner, without at least apparent sanction of law. This is not the case of a wanton trespass or the arbitrary creation of a nuisance in the public highway. In 1875 the Legislature of the State of New York passed an act under *808which- the- defendant claimed,, and had ostensible reason for claiming, the. right to- build this, third track. (Laws, of 1875, chap. 595.) The provisions of that act would be¡ sufficient to confer that right (thei defendant having, ■ received, the permission of commissioners designated therein) hut for considerations, stated by. this court, in the. case of Auchincloss v. Metropolitan El. R. Co. (69 App. Div. 63).. It was there, held, that the defendants: derived no authority from the. act of 1875 to build or operate this -third track,, because that legislation was in violation of section 18 of article 3., of the- Constitution of the State of Kew York, wherein it. is provided that the Legislature shall not pass,'a, private or local hid “ granting to- any corporation; association or individual the right to lay down railroad tracks.” But it appears, -satisfactorily from the findings made by the court on the trial of this, cause that, as matter of fact,, the defendant in good faith and relying upon the authority of the act of 1875, did construct the third track. . While that, does not affect, the. plaintiff’s right to relief for the additional trespass of the. defendant, it furnishes, a matter for the. serious, consideration of-a. court of equity respectingrihe nature and measure, of relief to, be awarded.'
The- plaintiff insists that .the. judgment to which she was: entitled was that of a, mandatory injunction, requiring the. defendant, to remove the. third track; that she, was so entitled as, a matter of .absolute right which "a court of equity-was. bound to recognize and enforce, and that, it had no jurisdiction to deprive her of that right by awarding in its discretion any less drastic- relief. The argument, urged in'support of that view and .based upon some, of the findings of .the trial judge is, in effect, that the defendant, illegally deprived the plaintiff of her property,- to, wit, the easement's taken,that it has no corporate capacity to acquire.those easements by proceedings in mvitum for their condemnation; that, the court at Special Term had no- authority to annex any condition to the. issuing of an injunction or to grant any alternative or substituted relief in avoidance of that to, which the plaintiff claimed to be entitled absolutely and unconditionally. .The single question, therefore, relates, to the power of a- court of equity in 'this-case to-decree that, an injunction shall not. issue- if. payment, be made, by the- defendant, of the valué of the, easements taken and to compel a conveyance, of those, easements to the defendant on the- paymémt of. such ascertained value. *809If we were to .consider alone the findings upon which the plaintiff relies, namely, that the defendant without authority of law is maintaining and operating the third track in front of her premises, and that it is without capacity to condemn the easements taken by the erection and operation of trains on this third track, the argument which she advances to support the proposition that a mandatory injunction should issue would proceed very plainly to its conclusion. But that which is influential respecting the relief to be granted is contained in other findings of fact, which undoubtedly .affected the learned trial judge in making the decision he rendered. The plaintiff insists that the court is without authority to do otherwise than compel the removal of the third track and to award damages for the injury inflicted hy taking the easements. Our attention has been called to various 'decisions in which the plaintiff claims the proposition of law for which she contends is announced, and that under the findings in this case she is entitled to the mandatory injunction sought. Thus in Auchincloss v. Metropolitan El. R. Co. (69 App. Div. 63) the judge writing the opinion" of the court said : “ I can see .no escape, therefore, from the position that the construction of this additional track in Kintk avenue, opposite the plaintiff’s premises, was unauthorized ".and that the plaintiff was entitled to an injunction restraining the defendants from the maintenance and operation of this track.” In Ackerman v. True (175 N. Y. 353) it was held that an encroachment ■ upon the street is a public nuisance and may be a private nuisance; that the person suffering thereby may have his action of nuisance to abate the Same and to recover special damages. And it was said in Pappenheim v. M. E. R. Co. (128 N. Y. 436) that in cases where the owner wishes actually to stop further trespass, and where the defendant has no legal right to acquire, the property, such condition would not be inserted (meaning the ordinary alternative in cases of this kind of paying damages and requiring conveyance of the easements), and an injunction would issue upon the right of the owner being determined (citing Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423). The authorities cited by the learned counsel for the appellant are to be considered with reference to .a rule of law applicable to cases where the facts show only the existence of a nuisance or a continu- ■ ing trespass, or,'in other words, where there is no legal right or *810authority to do the acts or maiiitain the construction complained of by the injured party; but they do riot present, in the form in which it now arises on additional findings the question of the power of a court of equity to mould relief in a given case where it can grant all the relief to which, in justice and equity; a plaintiff is entitled, and where it appears that the granting of the full measure of relief 'demanded, would result in greater, injury to the. defendant than benefit to the plaintiff, and in. the impairment of a great public convenience and also in increasing the danger to the traveling, public. For here we are not-now dealing with the ease of a simple trespass originating in a wanton appropriation of private property. There is no taking of private property for a private use, for the defendant ds a duly organized corporation which, acting in good: faith on the belief that it had the right to construct this third track, did so and has operated it' for; the public convenience for ten years without objection of the plaintiff," who has owned her property for that period of time and never objected. While, as-the law now stands, . the defendant has no' power to condemn the plaintiff’s éaseménts, it nevertheless has the power to acquire easements affected by the third track by treaty or contract, and it has, according- to the findings, acquired easements from other property owners for the third track to the value of $800,000.. '
The case is to be regarded,.! think, as one in which a court- of equity may refuse to grant a mandatory 'injunction. and leave the plaintiff to the ordinary action of nuisance, in which the defendant would be entitled to a trial by jury ; btit the plaintiff has brought this action, invoked the jurisdiction of á court of equity and. tried the case as an ordinary eleyated railway case. We are of the opinion that the simple question involved is the power of a court of equity to render this judgment. That power is exercised in cases in which by -covenants between parties the use of real estate is limited by what are called covenants' against nuisance. (Amerman v. Deane, 132 N. Y. 355; McClaure v. Leaycraft, 183 id. 36.). ' In' such cases, the court, on considering the equities, refuses- an injunction where it would be inequitable to enforce such coveriants under changed conditions of property, In the cáse of an encroachment (Crocher v. Manhattan Life Ins. Co., 61 App. Div. 226) the court refused to compel the taking down of a wall because of the oppressiveness *811of such a coiidition, and held that, both parties having submitted their controversy to a court of equity, that court would refuse an injunction and would award' damages for one particular item of ■ trespass and require the plaintiff to' surrender an easement with reference to. that particular item on payment of damages.' We-think it is evident in this case, from the findings of fact as made,., that the mandatory injunction which the plaintiff claims to be-. "entitled to, if granted, would work great wrong to the defendant,, and the court will not exert its equitable power for that purpose.. Here, the court, having the power to mould the relief according to-the circumstances of the case, acted upon the finding that this third-track in front of the plaintiff’s premises is used for running express-trains in relief'of the two tracks constructed and which are operated, by due authority in front of the plaintiff’s premises, and that is. specifically found, viz.: That the injury to the plaintiff’s property “ is small compared with the injury and inconvenience which would' result to the defendant and to the public if the defendant should be-compelled to discontinue the use of and remove the same,” and if the-track were removed, “ the defendant’s train service would thereby be seriously impaired ” and its “ ability to perform the purposes of a. rapid transit railway would thereby be greatly lessened,” and “ the-danger incident to the operation of trains * * * would thereby be increased.”
Here are findings which we must assume are authorized by the evidence. Hot only inconvenience to the defendant and to the public, bnt danger in the operation, of the railway, would be the-result-of granting a mandatory injunction. The power of the court to mould its judgment in a case where both parties have submitted their rights to the court is not to be. affected by the consideration that the defendant has no authority to condemn ■ easements, and the expressions to the contrary in the cases cited by the learned counsel for the appellant seem to have no application in view of the decision of the Supreme Court of the United States in New York City v. Pine (185 U. S. 93). That case involved the right of landowners-in the State of Connecticut to an injunction restraining the city of New York, its agents and officers, from diverting the water or any part of the water of the west branch of the Byram river or any part' of the water of that river. The municipal authorities of the city of *812Hew York claimed that they had the right to divert the water of that stream, which had its source in the State of Hew.York,, but in its course flowed through the State of Connecticut and then returned to the State of Hew York. The city of Hew York undertook to divert this stream in order to increase its water supply. The plaintiffs in that case insisted upon their right to-an undiminished natural flow of the river through its accustomed channel in the State of Connecticut, and that they could not be deprived thereof by the-city of New York or for its benefit by any legal proceedings either in Connecticut or New York. The United States Circuit Court for the southern district of Hew York sustained tlie plaintiffs’ prayer for an injunction, and on appeal to the Circuit Court of Appeals the decree was affirmed by a divided- court. The case went to the United States Supreme Court on certiorari, and there it was held that, starting with the assumption that there was no power in the city of Hew York by any proceedings in the State of Hew York or Connecticut to acquire the right to appropriate the water, thus depriving the plaintiffs of its .continued flow, nevertheless the equitable relief of a. mandatory Injunction would not be granted, at least in a case where long delay in the assertion of the alleged right had taken place, Although the delay itself would not be conclusive of the plaintiff’s right to an injunction, it is a subject for the-consideration of the court where there are other strong and controlling equities appealing to it.
W e are, therefore, of the opinion .that the judgment below should be affirmed, with costs.
O’Brien, P. J., and Laughlin, J., concurred.