A new trial must be granted in this case, if for no other reason, because of the admission of improper evidence upon the subject of damages.
According to the decision of the referee the case resolved itself into an action at law for damages suffered by the plaintiffs’ *433testator, caused by an unlawful interference on the part of the defendants with the testator’s spring, and the cutting or removing by them of his water pipes leading therefrom to his premises, by reason of which he was deprived of the use of the water.
Let it be admitted that the defendants wrongfully interfered with the spring by digging in and around it, and also that they unlawfully cut and removed the water pipes leading from it, by reason of which the deceased was deprived of the use of the water for a time, then and in that case his damages would be such as he had sustained, because of being deprived of such use- — -in this case, during a part or all the timo from August 15, 1871, to the commencement of this action, September eleventh or twelfth of the same year, a period of twenty-seven or twenty-eight days, and, in addition thereto, such expenses as he should necessarily incur in restoring the spring and pipes to a condition of usefulness. Damages could not be allowed for injuries caused and suffered after the commencement of the action and the service of the injunction ; certainly not after the deceased had enjoined the defendants from restoring the .spring to its original condition; the deceased having the right, and having asserted it, to make the restoration himself, the defendants being willing and offering to do this for him.
It may be here remarked, that it seems, at least, doubtful whether the defendants had not in fact, prior to the commencement of the action, restored the spring and pipes to as good condition as they were in before they were interfered with. (See the testimony of Mr. Gibbons, Mr. Paget and Mr. Wurtz, ff., 97,. et seq.) It is quite plain from the evidence that if the defendants had not been enjoined from carrying out their purpose, in which they were actually engaged, the spring and its usefulness to the defendant would have been greatly improved. But there was no attempt to show the cost and expense of restoring the spring and pipes to their original condition. This element of damages, if it existed in fact, was entirely ignored on the trial. Therefore, the only damage for which a recovery was authorized under the proof in this case was such as was caused to the deceased by reason of the loss of the use of the water, and this for a few days only. To establish the amount of damages so sustained, *434the plaintiffs were allowed to prove the value of the spring to the farm of the deceased, before and after the defendants inter-ferance with it, as if such damages were permanent and the injury incapable of remedy. The witnesses estimated such damage at from $200 to $250, and one witness put it at a much larger sum. This evidence was admitted against objection, and the ruling was duly excepted to. Its admission was plainly erroneous. The value of the spring to the deceased’s farm formed no criterion for an estimate of damages resulting from a deprivation of the use of its waters for a few specific days. The action was not brought to recover the difference in value of the general use of the spring to the farm before and after the defendant’s interference with it. There was a short period of time during which the deceased was deprived of the use of the water. The question was, what amount of damages he had sustained by such deprivation, what sum would compensate him therefor. The spring might be worth a large sum to the farm to which it was an appurtenant, considered with reference to its enjoyment for all time, and yet the deceased might suffer little and perhaps no loss or damage at all from being deprived of its use for a few days on some particular occasion. There might be days when no damage would result from an inability to use the spring, because of no necessity or occasion for its use. The question was as to his convenience and necessities as regarded the use of the water during the days he was deprived of it. If he should have no occasion for its use for a time, he would suffer no damage from its disuse during that period, hence could recover at most but nominal damages for such deprivation. The evidence under consideration afforded no data from which the damages recoverable in this case could be estimated or computed; and this was the only proof submitted on the question of the amount of damages actually suffered by the deceased. The amount allowed is small, but there is no proper evidence to sustain a recovery even for this small sum. Without the objectionable proof the sum to be allowed was merely conjectural; and indeed with it, the case was no better; was worse in fact, because it must be assumed that such improper evidence had its influence as against even fair conjecture.
*435There was also error in the admission of evidence as to the condition in which the spring was permitted to remain after the commencement of the action down to the decedent’s death. If left unprotected the fault was with the deceased, who had asserted his right to control it, and had enjoined the defendant from in any manner interfering with it, and if a claim was intended to be made for anything done by the defendants after the commencement of the action, such claim ivas not within the issues made by the pleadings. If any relief could be claimed hi this suit for such action, on the part of the defendants, it should be obtained on motion for a violation of the injunction.
These conclusions lead, necessarily, to a reversal of the judgment.
But there is another ground of alleged error which should be considered. It is urged that the action, as brought by the deceased, was in equity for an injunction, and that the damages claimed were but an incident, dependent upon the establishment of a right to equitable relief, and that inasmuch as the plaintiffs’ failed to show such right in themselves they could not then convert the action into one at law for damages only.
The record shows that the action remained at the time of the trial the same as before the testator’s decease. The plaintiffs were substituted in the action by a simple order of revivor. The pleadings were not amended; there was no supplemental complaint put in. It is conceded that the action failed as to any claim the plaintiffs could make to equitable relief. Then did not the action abate on the death of the original plaintiff ? It is insisted, on their part, that the action survived;as to the damages, and that under the order of revivor, having _ been substituted as plaintiffs in the action, they may recover such damages as they might show the decedent to have sustained growing out of the wrongs charged against the defendants in the complaint. We are inclined to sustain the plaintiffs’ position. in this regard. The damages sought to be recovei’ed belonged to them as the personal representatives of the deceased, and it was evidently supposed that by finding that the deceased had, according to the complaint and the proof given, grounds of equitable relief, then, for this reason, if for no other, the recovery of damages by the plaintiff might be sustained. If the right of recovery by the plaintiff *436rested on this position, it would have a very doubtful support on the facts proved. It is true the referee finds that the deceased, at the time the action was commenced, had a cause of action against the defendants in equity for au injunction. Now, admitting that this finding was one within the province of the referee to make, we are satisfied that it was unsupported by the proof.
The reservation to Mr. Stow (the grantor in the deed) of the spring issuing from tlie land granted, with the right of entry to repair and relay the water pipes which should conduct the water therefrom, was the reservation of' an incorporial hereditament, a privilege reserved from the grant, and it must be construed like a grant of such right. Now a grant of such right would pass nothing as an incident save what was requisite to the fair enjoyment of the privilege granted. The deceased then had no other interest in the land save such as was requisite and necessary to the enjoyment of the privilege held by him. The title to the land passed to the grantee in the deed containing the reservation subject to the easement; and so the grantee had the right to use and enjoy the land in all lawful ways not inconsistent with the right reserved to the grantor. Therefore the railroad company had the right to lay its track over the spring, on protecting its waters from injury, to the end that the party entitled to the enjoyment of the easement should not be unnecessarily interrupted in his right. This being so were the defendants, when restrained, exercising any other than a lawful right ? Was their action unreasonable in view of their own and Mr. Stow’s rights ? The company could not be deprived by Mr. Stow of all right to the use of the land at and about the spring. It had a right to make it useful, doing no unnecessary injury to Mr. Stow’s rights, and not withholding from him an absolute use of the waters, save temporarily, while putting their property in condition fot lawful enjoyment. It seems, from the evidence, that the railroad company were proceeding with tolerable rapidity and energy, and with due regard to the rights of Mr. Stow as to the manner in -which it proposed to protect and preserve the spring for his absolute use. If some trifling and temporary inconvenience resulted to him from the company’s reasonable ciciion, ho could have no cause of complaint any more than the *437company would have cause of complaint against his reasonable action in keeping the spring in a condition of usefulness. Their rights were co-ordinate as well as mutual; so Mr. Stow could not arbitrarily restrain the company from a reasonable use of its land. Each party had rights which they might respectively exercise, and neither could justly complain of the other for doing that which was fair and reasonable in view of those rights. Under an application of this rule, the evidence failed to show that Mr. StoAV, at the time he commenced his action, had a right of relief by injunction. The case was tried and decided upon the mistaken theory that the privilege reserved to Mr. Stow was paramount to and not at ail subject to the reasonable use and the fair and lawful enjoyment of the land by the owner of. the fee. This was proceeding in error as to the rights of the respective parties. It was laid down in Atkins v. Bordman (2 Met., 457, 467), that if a person has an easement in land, the owner of the fee has still all the beneficial use of it which he can have consistently with the other’s enjoyment of that easement. This case is a very instructive one upon the question here under examination. (See also Bliss v. Greeley, 45 N. Y., 671, and the cases cited on page 674.) It may be said, perhaps, that in this view of the case there was no right of recovery shown for damages. The determination of this question is not necessary to the decision of this case on the appeal.
Let us now recur to the question whether damages can be recovered in ah equity action where the plaintifF fails to establish his right to the equitable relief demanded. The authorities are to the effect that such recovery may be had. (Marquat v. Marquat, 12 N. Y., 336; Phillips v. Gorham, 17 id., 270; Davis v. Morris, 36 id., 569; Barlow v. Scott, 24 id., 40; Hudson v. Caryl, 44 id., 553; Colman v. Dixon, 50 id., 272; Wheelock v. Lee, 74 N. Y., 495.) It is held, however, that in such case the parties may, on demand, have the question of damages tried by jury. (See above cases.) All that was decided in Bockes v. Lansing (74 N. Y., 437) was this : That a referee on the trial had no power to change the cause of action from one for equitable relief to one in ejectment. This would be to change the cause of action in its entiro scope and purpose. But in case the question *438of damages should be sent to a jury for trial, would not the case be still deemed an action in equity, according to the pleadings, for the purpose of ordering judgment and awarding costs as in an equity suit? (Queere.) Then,»however, according to the decision in Van Wyck v. Baker (11 Hun, 309), the successful party would be entitled to costs in cases in which a claim of title to real property should be raised on the pleading, or should be certified by the court to have come in question at the trial. These questions relating to final costs in the action are not here before the court for decision.
Judgment reversed, new trial granted, costs to abide the event, and reference discharged.
BoardmaN, J., concurred ; LearNed, P. J., taking no part.Judgment reversed, new trial granted, costs to abide event, referee discharged.