In my opinion, the right of the plaintiffs to bring and maintain this action is clear and the defendant's appeal should not be sustained. The plaintiffs were shown to have been injured by the defendant's acts, in the depreciation of the value of the property, as shown by the diminished amount of the rent for the premises reserved by the lease of 1895. For the prior term of five years from 1890, they had been receiving $15,000 a year as rent; while, for the succeeding term of five years from 1895, they were to receive only $12,000 a year. That represented a total loss to the owner of $15,000 for the new term and furnished a basis of injury, upon which this action was commenced in 1898.
I consider it to be a settled rule of law that, where the wrongful act affects different interests in the same property, the owner of each interest may have his separate action against the wrongdoer. Lessor and tenant have separate estates and each, if injured therein, may have redress; the one for the injury to the reversion, the other for the injury inflicted in diminishing his enjoyment of the premises. This rule and its reason have been, heretofore, discussed with such care, that I deem it necessary, only, to refer to the recent cases of Kernochan v.N.Y. Elevated R.R. Co., (128 N.Y. 559), Hine v. Same, (Ib. 571), Kernochan v. Manhattan Ry. Co., (161 ib. 345), andBly v. Edison Electric Ill. Co., (172 ib. 1). If it be a nuisance, which is the subject of complaint as injuring adjacent property interests, the question is, when the owner not in possession sues, whether it has diminished the rental value of his property; the difference in that respect being the measure of his right to damages. When the tenant sues, his right to recover rests upon the ground that his occupancy is disturbed and the full enjoyment of his possession of the premises is prevented by the common nuisance. (Francis v. Schoellkopf, 53 N.Y. 152;Hine v. N.Y. Elev. R.R. Co., supra; Bly v. Edison Electric *Page 25 Ill. Co., supra.) In the Bly case the question discussed was that of the tenant's right to maintain an action to abate a nuisance and for damages, when in under a lease made during the existence of the nuisance. It was held, upon a careful review of the authorities, in effect, that, as there was no justification for the maintenance of that which was a nuisance and, hence, an unreasonable and a wrongful use by the defendant of its property, the tenant of the property injuriously affected was not deprived of the right to bring an action by reason of having acquired the lease thereof, during the existence of the nuisance, at a diminished rental. The right to have compensation for injuries actually sustained and to have the nuisance abated could not thereby be affected. It was upon that proposition that the judges of this court divided in opinion. As to the right of the owner of property, though not in possession, to maintain an action to restrain the continuance of a nuisance, which threatens injury to his reversionary rights, and to recover for any damage which he may be able to show that he has already sustained in that respect, I think there should be no doubt. It is argued that, as the nuisance arises from the method of defendant's operation of the power house, presumptively, it is but casual and temporary. That is to say, though the defendant's building and mechanical plant were permanent structures, the operation of the machinery in a way intolerable and injurious to others, as complained of, would not be presumed to continue. Assuming the correctness of the proposition, how does it affect the principle upon which the legal right of the plaintiffs was founded? They, certainly, had the right to protect their reversionary interest against injury. A casual, or temporary, trespass, or nuisance, if the latter is of a casual nature, it is true, usually affects the possession of the property and, therefore, gives a right of action to the lessee. But for a wrongful act, which diminishes the rental value of the property, and which, from the circumstances, may, fairly, be regarded as likely to continue, whether it be in the nature of a trespass, or of a nuisance, an action will lie by a reversioner to redress the wrong; although *Page 26 the lessee may, equally, have his action to redress the wrong inflicted upon his right to peaceable and comfortable possession. (See Kernochan Case, 128 N.Y. 559, 566, and the English cases cited in the opinion; as well as the Bly Case, supra.) In this case the rental value of the plaintiffs' property, when the second lease was made in 1895, was diminished to the extent of $3,000 a year, under conditions of lease similar to those of the preceding, and, according to the findings of the trial court, the damage to the plaintiffs from defendant's operations, only, ceased to be inflicted in 1900. Thus, the defendant's use of its power house, in a way injurious to others, had continued for many years after its construction. It had so seriously affected the rental value of the plaintiffs' property as to compel them to accept a reduced rental in 1895 for a further term and when this action was commenced, in 1898, the threat in the situation was the same. However, technically, the nuisance may be termed casual, as caused by the methods of the defendant in operating its power house, it was a very real menace to the plaintiffs' interests as property owners. The case, in my judgment, came within the established rule which allows an action to a lessor, whose reversion is injuriously affected, to abate the nuisance, by restraining its continuance. To say that the nuisance was a casual, or a temporary, one is an answer no more satisfactory, than it is complete, legally, to the statement of the owners that they had suffered injury in the past by its maintenance and would suffer in the future unless it was restrained.
It is, further, argued that as the plaintiffs failed to make good their ground to equitable relief, by proving that the nuisance continued to exist at the time of the trial, the court should not have retained the action, but should have dismissed the complaint. It is, however, well settled that when a court of equity has gained jurisdiction of a cause, its jurisdiction is not affected by subsequent changes in the situation of the parties, if any cause of action survives; it may retain the case generally to do complete justice between them, by awarding that measure of relief for the injury done which *Page 27 the case admits. The jurisdiction depended upon the situation at the commencement of the suit, with respect to the right to equitable procedure and relief; but the measure of the relief would be regulated by the situation at the time of pronouncing the decree. (Lynch v. Metr. E.R. Co., 129 N.Y. 274; VanAllen v. N.Y. El. R.R. Co., 144 ib. 174; Van Rensselaer v.Van Rensselaer, 113 ib. 207; Madison Av. Baptist Church v.Oliver Street Baptist Church, 73 ib. 82.) The trial court, therefore, committed no error in retaining the cause for the purpose of awarding damages.
Nor was the action triable, as of right, by a jury. It was not originally; nor was it so upon the denial of the equitable relief. The Code provides for a jury trial where the action is, simply, for a nuisance, (§ 968); but this action was brought for equitable relief to restrain the continuance of a nuisance, as well as to recover the damages occasioned. It was like the action of Cogswell v. N.Y., N.H. H.R.R. Co., (105 N.Y. 319); where the distinction was pointed out between a common law action for damages and the abatement of the nuisance, as in Hudson v.Caryl, (44 N.Y. 553), and an action where relief by way of injunction was asked.
This case is materially different from that of McNulty v.Mt. Morris El. Light Co., (172 N.Y. 410); for, there, the plaintiff, after the commencement of his action and before the trial, had ceased to be a tenant of the premises and had removed therefrom. Hence, when the trial came on, he had no interest, or estate, in the premises, as to which he was entitled to ask for any equitable relief. He had no ground upon which to demand of the court anything but a judgment for the damages, which he had sustained from the nuisance complained of while he had been a tenant. As Judge PARKER observed, in the prevailing opinion in that case, "before the cause was reached for trial, plaintiff had passed out of possession of the property, thus parting with the right to the injunction and there remained to him only his claim for damages." In this case the plaintiffs had, in no sense, changed their position. They came to the trial with their demand for an injunction based *Page 28 upon evidence, showing that the further lease, made in 1900 for a term of five years, was for a lesser rental; that the defendant's building still stood there, with all its powerful machinery, and that jarring and vibration still existed, though not as frequently as had previously been the case. With the plant there, as a permanent structure and with capacity to injure the tenants of adjacent dwellings, the plaintiffs had the right to insist upon their apprehensions of injury to the rental value of their property, unless the acts complained of were permanently restrained. The trial court, however, would not take that view of the evidence and decided that "it was improbable that it, (the power house), would be so used as to work injury in the future, except, perhaps, in case of emergency and then only for a limited time." I do not think the court could, justly, say of the case that it had been shorn of all its equitable features, (as said inMcNulty's Case, supra,) before the trial. Upon the evidence, the plaintiffs were deemed by the court to have failed in establishing their right to restrain the defendant from continuing the operations as then conducted. I conclude, therefore, upon this point that there was no error committed by the trial court in holding the case for its judgment as to the relief which the plaintiffs should be awarded, whether equitable, or, simply, in a pecuniary compensation.
A further question is presented with respect to the damages. The trial court awarded the sum of $4,500 for the damages sustained from a date six years prior to the commencement of the action down to the date of the trial. When the action was commenced, in 1898, the plaintiffs had submitted to a definite loss, upon the renewal of their lease, in 1895, for a term of five years, amounting to $3,000 a year, or to $15,000 for the whole period. Prior to 1895, they were receiving the rental value of their property under the lease of 1890. It was erroneous, therefore, to award damages for the period antedating the making of the new lease of 1895. Then, only, a loss was first sustained, so far as the record shows, which was recoverable, in the diminished value of the property *Page 29 due, according to the evidence, to the effects of the defendant's operation of its power house upon these dwellings and their occupants. The amount allowed by the trial court was less than one-third of the actual depreciation in rental value for the term of five years from 1895 to 1900. The Appellate Division, in affirming the judgment, have said in the opinion, with respect to these damages, that they regarded the case as one where it was possible "to separate the damage allowable from that for which a recovery could not be had," and I think they were right. While the exercise of our jurisdiction to grant to a party such judgment as he may be entitled to, (Code, § 1337), is to be exercised upon the facts found by the court below, I think it is well exercised in this case in the affirmance of the judgment, for the same reason that moved the Appellate Division justices. The findings of fact plainly state that nothing was awarded to the plaintiffs for any damage after the year 1900. They show, equally clearly, that the only damage they had sustained before the commencement of the action was in the re-leasing of their property, in the year 1895, at a depreciation of $15,000 for the whole term of the lease. They, also, show that the moderate award was due to the trial judge's conviction that the depreciation in the rental value, generally, was somewhat influenced by other considerations. Therefore, his finding as to the period wherein damages were recoverable was purely formal and, clearly, inadvertent in its formulation, in view of his previous findings of fact. There should be no difficulty in affirming this judgment, when the recovery was so far within the distinct depreciation of the rental value as shown by the facts found.
For these reasons, I advise the affirmance of the judgment.
O'BRIEN, VANN and WERNER, JJ., concur with CULLEN, Ch. J.; EDWARD T. BARTLETT and HAIGHT, JJ., concur with GRAY, J.
Judgment reversed, etc. *Page 30