(dissenting).—The difficulty in this case arises from an attempt on the part of the commissioners appointed to award damages for the property proposed to be taken, to state results rather than facts.
They awarded to the three persons named, damages in the aggregate of $8,500, and said that the owners of the other property proposed to be taken should be awarded no damages, because the benefit to their remaining property afforded them a sufficient compensation.
The map describing the property intended to be taken is not furnished to us, and we do not know the number of persons thus affected, or the extent of the property.
That there were several such owners appears from the statement quoted, and that the plaintiff was one of them is not denied in the pleadings, and was not controverted on the trial.
The commissioners should have ascertained the entire value of the property appropriated by the map for the proposed improvement, and have stated the amount of damages to each lot, with the owner’s name, and gave the aggregate1 as the damages necessary to be paid.
They should then have found and recited that the adjoining property owned by Mr. Granger would be benefited to a certain amount to be specified, and that this benefit compensated for the damages before awarded, and the same' as to the other owners whose property was thus taken. By omitting to give the facts, they involved the matter in serious embarrassment.
Mr. Leach, Mr. Winton and Mr. Judson were the commissioners who made the award of damages to which I have referred.
The assessment of these damages upon the property benefited by the improvement was made by another commission, consisting of Mr. Williams, Mr. Smith and Mr, *317Porter. We see at once the error of the first proceeding and the force of the objection made by the plaintiff upon the trial, that there was no award specifying the damages sustained by the owners whose land was proposed to be taken, and no statement of the amount of benefit to the adjoining land.
How much damage had Mr. Granger sustained by the taking of that portion of his property, which was to be included in the proposed improvement ?
Unless the commissioners know this fact, I see not how they could assess the amount upon the property benefited. The report is silent upon the subject of this amount. The commissioners had no possible legal means of obtaining this knowledge. They assessed upon Mr. Granger’s remaining property, two hundred dollars, as the sum to be paid by him. This was necessarily an adjudication that his benefit was two hundred dollars more than the value of the property taken. This wa's a judgment that this last commission had no right to make. They had no authority to act upon the subject. Their only duty was to make a distribution of the amount of damage, which should have been previously ascertained by the prior commissioners, Mr. Winton, Mr. Leach and Mr. Judson. The award shows merely, that the plaintiff was “ fully compensated by benefit” to the adjoining lands, The report of the last commission finds not only that, but that he has leceived $200 benefit in addition. It was impossible that the plaintiff should be properly charged with this sum, unless those charging it knew how much compensation he was entitled to for the property taken. {Laws of 1857, pp., 135-137, §§ 1-4).
I consider this proceeding as fatally defective, and that it afforded no protection to the city of Syracuse or its agents.
The defendant insists that if the court are with the plaintiff on the merits of the case, that the action for an injunction to restain the defendant from opening the street, will not be sustained. The defendant, however, expressly con*318cedes that such action will lie where the injury threatened is irreparable, where it is necessary to prevent multiplicity of suits, or where the proceedings create a legal cloud upon the title. The main object of the action is to restrain the performance of the work, and the injury of his property. It is different from the case of a bill to restain the collection of a tax.
Concurring substantially in the legal rule thus laid down, the plaintiff claims that the present case is within the rules of equity justifying a preventive remedy, and that the injury to be sustained will be serious and irreparable.
In its strict etymological signification there can scarcely foe an irreparable injury to property, that is one which cannot by a sufficient amount of money, be restored, amended, or compensated for; The legal understanding of the term gives a more extended signification. Thus the loss of trade, the permanent ruin of a house, even the darkening of its windows, by which its daily enjoyment is rendered less available, fall within the idea. So the diversion of streams, the setting back of water-courses, the establisment of new ferries or turnpikes, the improper use of a public square, the disturbance of a burial-ground, are all deemed to be proper subjects of perpetual injunction.
So where a trespasser digs into and works a mine, to the injury of the owner; where timber is attempted to be cut by a trespasser in collusion with a tenant; or where there being a disputed boundary, one of the claimants is about to cut down ornamental trees on the disputed territory$ and in all cases of timber, coals, ores, and quarries, where the party is a trespasser, or where he exceeds his rights, the injury is held to be within the description of an irreparable injury. (2 Story Eq. Jur., §§ 926-929: Mace agt. Trustees of New-burgh, 15 How., 161).
In the present case the premises are a city house and lot, which have been occupied by him for thirty-five years past. The west wall of his house is nine feet from the west line of *319his lot. He has a barn and carriage-house on his lot. The proposed improvement takes six feet of his lot, being also two-thirds of his carriageway and destroys it, and cuts off a portion about five feet of his barn. The barn must be entirely removed, and the premises left without one, or it must be moved on to that portion of the premises now used as a garden and for the cultivation of fruit.
I think an injury to this class of property, and of the character here suffered, where its value as ornamental property is interfered with, and its daily use for the comfort and satisfaction of the owner are materially affected, properly falls within that jurisdiction in which a court of equity exercises its preventive powers.
Judgment of general term should be reversed and a new trial ordered, costs to abide event.
Judgment affirmed.