Miller v. Edison Electric Illuminating Co.

76 N.E. 734, 184 N.Y. 17, 1906 N.Y. LEXIS 1330

Opinions

Cullen, Ch. J.

I adopt Judge Gray’s, statement of facts and I agree with him in the position that this action was properly brought in equity; that it was triable by the court, and that the defendant was not entitled to a jury trial as of right. I am unable, however, to concur in the view that the plaintiffs were properly awarded damages for diminution in the rental value of the property. The plaintiffs were in possession of the premises during no part of the period for which damages have been recovered, but the same were in the occupation of their tenants under a lease for a term of years. One of these leases expired during the existence of the nuisance, and, as the trial court has found, by reason of the nuisance the plaintiffs were compelled to rent the premises for a new term at a reduced rent. It is for this loss of rent that damages have been awarded. The question as to which party, the landlord or liis tenant, is entitled to recover for depreciation of the rental value by the existence of a nuisance has involved the courts in much perplexity. In the elevated railroad cases it has been settled that in the case of a lease made after the erection and operation of the railroad the landlord, not the tenant, is entitled to recover for such depreciation. (Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559.) In the Fernoehan case there is an elaborate discussion of the question by Chief Judge Andrews. A careful analysis of the opinion of the learned judge will show that the decision proceeded on the ground that the elevated road was a permanent structure and intended to he so maintained; that it was constructed in the street under legislative authority, and that as ample authority was granted to condemn any property rights on which it might trespass, the lessor had “ no absolute remedy to compel the removal of the structure, since the right of condemnation can at any time be exercised by the defendants.” The learned judge said: “ It is also a necessary deduction from the circumstances attending the making of ordinary leases of improved property, executed after the construction of the elevated railroad, that the right to recover damages is vested exclusively in the lessor.” To the doctrine of that case the court has steadily adhered. When, however, the doctrine was invoked to defeat the right of a tenant to recover damages against the present defendant for the very same acts which constitute a nuisance in the case now before us, it was held that the rule in the elevated railroad cases did not apply. In Bly v. Edison Electric Ill. Co., a tenant, hiring after the nuisance was created, recovered the depreciation in the rental' value of the premises. The Appellate Division, citing the authority of the Kernochan case, reduced the award to a nominal sum, holding that the tenant was not entitled to recover diminution in rental value. (54 App. Div. 427.) On appeal to this court the judgment of the Appellate Division was reversed, though a new trial was ordered because the trial court had awarded damages for a period* anterior to six years before the commencement of the action. (172 N. Y. 1.) This court said, per Werner, J.: “We think the Kernochcm case has no application to a case like the one at bar, and this without reference to the fact that it appears affirmatively that the rental paid by the plaintiff was the same during the existence of the nuisance as it was before. The elevated railroad cases', to which class the Ilernochcm case belongs, are sui generis. They are governed by principles which apply to no other class of cases.” The elaborate discussion of the question by Judge Werner leaves nothing to be now added. It is sufficient to say that that case expressly held that a tenant under a lease made during the existence of the nuisance was entitled to recover the depreciation of the value of the occupation of the premises.

It is said to be the 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. Landlord and tenant have separate assets, 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 statement is doubtless correct, but under this rule “ to entitle a reversioner to maintain an action, the injury must be necessarily of a permanent character, and that a presumed intention to continue the nuisance is not sufficient, even where there is evidence that the premises would sell for less if the nuisance were continued.” (Mott v. Shoolbred, opinion of Sir George Jessel, M. R., L. R. [20 Eq. Cas.] 22; see also cases cited in Judge Werner’s opinion.) Here the only injury found by the trial court is to the enjoyment and occupation of the premises. That does not affect the reversioner. Had the trial court found that the operation of defendant’s light plant cracked the walls or injured the structure, such damage would be of a permanent character and the reversioner entitled to recover. In the present case, however, not only is there no permanent injury to the plaintiffs’ buildings, but the defendant’s plant did not constitute the nuisance, but its operation, and such operation was not necessarily or inherently injurious because the trial court found that at the time of the trial its operation did not damage the plaintiffs. Judge Andrews said in the Kernochan case: “We should be very reluctant to make a decision which would expose the defendants to a double action in cases like this,” and I imagine that the reluctance still continues. Nevertheless if the judgment before us is affirmed the defendant will be subjected to a double recovery against it, for under the Bly case the tenant is also entitled to recover, if in fact he has not already recovered, the diminu tion in the rental value during the same period for which the plaintiffs are awarded damages for such diminution. It is not a case like that suggested where the same act has caused injury to different persons and each recovers for the injury to himself ; but here two parties will recover for exactly the same injury. I may suggest this further distinction between the elevated railroad eases and that of a casual temporary nuisance. In the Kernoohcm case the defendant upon satisfactorily compensating the landlord could continue the operation of its road despite the complaint of the tenant. Here, no release from, or settlement with, the landlord could have prevented the tenant from restraining the operation of the defendant’s plant. Moreover, the lease by the plaintiffs was for a term of years. The right of the tenant and landlord then became fixed and the damage to the plaintiffs at once. It was the diminished rent during the demised term. Had the defendant ceased the operation of its plant the day after the lease, the plaintiffs’ injury would have been as great as if it had maintained the operation during the whole demised term. Tet I apprehend no one will contend that the defendant would have been liable for the whole period. But if we should assume that such a contention would be well founded the result would be that the day after the lease the operation of the plant might be stopped at the suit of the tenant and yet the defendant remain liable to the landlord for the loss of rent for the whole term of the lease. In other words the defendant’s liability would depend not on the injury done by its trespass or nuisance, but on the manner in which the owner might deal with his property. The decision in the BJy case did not pass this court without discussion. On the; contrary there was a vigorous dissent by Jiidge Haight (concurred in by two other members of the court), who contended that the loss in rental value went to the landlord, not to the tenant. The'force of this position was appreciated by the majority of the court which, when it decided that the tenant could recover for that loss, substantially decided that the landlord could not.

I think the judgment should be reversed and a new trial granted, costs to abide event.