Milhau v. Sharp

7 Abb. Pr. 220, 28 Barb. 228

Opinion

By the Court

Footnotes

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*—Davies, P. J.

—The only question necessary to consider in this appeal is, whether, upon the facts found, the plaintiffs can maintain this action; and if so, are entitled to the relief which has been granted.

It appears to us that both of these points have been settled in the affirmative by the Court of Appeals, in the case of Davis and Palmer against these defendants,† in a suit relating to this same grant. It is true that other questions were presented and argued in that case, and decided by the court, but it seems to us that the points presented in this case were also presented and distinctly passed upon.

Denio, Chief justice, in delivering the opinion of the court in that case, says: “ It is well settled that when such an offence (that is, a nuisance) occasions, or is likely to occasion, a special injury to one individual, which cannot well be compensated in damages, equity will entertain jurisdiction of the case at his suit,” and cites numerous authorities to sustain that position.

Wright, Justice, who delivered the dissenting opinion of the court, manifestly concurred in this view of the law, for he says: “ Private persons could not interfere, except the act authorized tended to the creation of a public or private nuisance, specially injurious to them, and from which they apprehended a direct special damage.”

In that case it was not proven that the plaintiffs were the owners of lots on Broadway, and the Superior Court found as a matter of fact, that the railway would not be a nuisance, or specially injurious to the plaintiffs.

It is seen that the facts found in this case are entirely different; and it appearing here that the plaintiffs are the owners of lots on Broadway, and that the establishment of the proposed railway would be specially injurious to their property, we must affirm the judgment of the special term, on the authority of the Court of Appeals in Davis and Palmer against same defendants.

Judgment affirmed, with costs.

Present, Davies, P. J., and Sutherland and Ingraham, JJ. f Davis a. The Mayor, <S$c., of Hew York, 14 N. 7. R. (4 Kern.), 506.