Chase, J.
Where a trespass is of a continuous nature a person has a right to invoke the restraining order of a court of equity to prevent the same, and in an action for that purpose the court can, and should, grant all the relief that the nature of the action and the facts demand.
In this case we will first assume that the complaint alleged facts justifying the relief which the plaintiffs demanded; that they established the allegations of their complaint on the trial and that the court found the facts in accordance with plaintiffs’ contention and which entitled the plaintiffs to equitable relief. •
Should the judgment have been reversed simply because the court for special reasons refrained from granting the plaintiffs all the relief to which they were entitled ? We do not see how the defendant was aggrieved. 1 There is only one form of civil action. The distinction between actions at law and suits in equity and the forms of those actions have -been abolished. (Code Civ. Proc. § 3339.) AH that a plaintiff has do in any case is to set forth in his complaint a clear, concise, and unequivocal statement of the facts constituting, his canse of action, and a demand of the judgment to which he supposes himself entitled. (Code Civ. Proc. § 481.)
The inherent, fundamental differences' between actions at law and actions for equitable relief, such as determine whether a trial of the action by jury is a matter of right and otherwise affect the interests of litigants, have not been and cannot be abolished. For such reason, and for the very simple reason that a person must in his complaint, as we have seen, state the facts constituting his cause of action, a plaintiff who brings an action for equitable relief must establish such cause of action or his complaint should be dismissed. It is, therefore, frequently held that damages, as in an action at law, cannot be given in an action in equity where the plaintiff has failed to establish his light to equitable relief. It does not follow that where a plaintiff has established a cause of action entitling him to equitable relief that a judgment rendered by the court for past damages alone is wholly unauthorized and erroneous where for reasons special and peculiar to the action the court in its discretion or arbitrarily refrains from granting the equitable relief to which, from the facts found, the nlaintiff was entitled.
It is said in Pomeroy’s Equity Jurisprudence (2d ed,
§ 237) : “ It may be stated, therefore, as a general proposition that a court of equity declines the jurisdiction to grant mere compensatory damages when they are not given in addition to or as an incident of some other special equitable relief, unless under special circumstances the exercise of such jurisdiction may be requisite to promote the ends of justice. There are, however, special circumstances in which the principle under discussion is invoked and is extended to the award of mere damages.”
Instances may be mentioned, such as in actions for specific performance, where it is found on the hearing that the relief prayed for is impracticable, or in an action in the nature of a creditor’s bill where it is ascertained upon the hearing that property fraudulently transferred has been conveyed to an innocent purchaser. Instances of judgment being rendered in such actions for money damages only are numerous. These cases are mentioned simply to show that a grant "of equitable relief is not indispensable when the action is properly brought, and the facts upon which equitable relief is claimed are established, but where through special circumstances money damages only are given not because the plaintiff has improperly brought his action in equity but because of such special circumstances.
If we assume that during the trial of this action the defendant had wholly removed the bridge, the relief which the court could have given would have depended upon such condition of things existing at the close of the trial.
(Miller
v.
Edison Elee. Ill.
Co., 184 N. Y. 17.)
An injunction restraining the use of the great highway across the East river may to the court have seemed unnecessary and drastic, although the plaintiffs were upon equitable principles entitled thereto. The court, by its findings of fact and conclusions of law, recognize the plaintiffs’right to permanent or fee damages
if the trespasses are continued.
The decision in
W. U. Tel. Co.
v.
Syracuse El. L. & P. Co.
(178 N. Y. 325) holds'in conformity with previous decisions of the court that unless a, person bringing an action in equity
establishes such cause of action his complaint should be dismissed. The court say: “The object of the action was to, restrain an alleged trespass which is not permitted except under peculiar circumstances
not shown to exist i/n this ease.”
The form of judgment does not necessarily determine whether an action is one at law or in equity.
(Baily
v.
Hornthal,
154 N. Y. 648, 661.)
If a plaintiff in his complaint alleges facts which give the court jurisdiction in equity and he establishes such facts on the trial, he alone should complain if the court fails to grant him all the relief to which he is entitled.
There is, however, a more serious objection to sustaining the judgment of the Special Term that goes to the right of the plaintiffs to recover from the city for all of the alleged wrongs stated in the findings quoted.
The bridge is a public highway erected .and maintained by legislative and municipal authority. The plaintiffs’ property is located opposite a point in the easterly approach to that part of the bridge spanning the river. The authority and duty of the defendant to erect and maintain the bridge in question and its approaches is conceded. The plaintiffs are not even abutting owners of the highway so maintained by the defendant. The real property which they assert has been damaged is not under the bridge and does not adjoin lands under the bridge. Their real property is part of the property of their ancestor remaining after the defendant had taken from him a strip twenty feet wide on the southerly side of a line drawn vertically from the southerly side of said bridge. There is no finding that the bridge was not properly erected or that it is negligently maintained. We quote with approval from the opinion of the Appellate Division herein, as follows :
“ The authorities are clear that some of the acts complained of may constitute trespass, which, if committed in the administration of the bridge, east liability upon the defendant irrespective of any question of its negligence.
(Lambert
v.
Besey,
Sir T. Raym. 421;
Hay
v.
Cohoes Co.,
2 N. Y. 159;
St.
Peter
v.
Denison,
58 id. 416 ;
Sullivan
v.
Dunham,
161 id. 290;
Seifert
v.
City of Brooklyn,
101 id. 136;
Huffmire
v.
City of Brooklyn,
162 id.
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Chase, J.
Where a trespass is of a continuous nature a person has a right to invoke the restraining order of a court of equity to prevent the same, and in an action for that purpose the court can, and should, grant all the relief that the nature of the action and the facts demand.
In this case we will first assume that the complaint alleged facts justifying the relief which the plaintiffs demanded; that they established the allegations of their complaint on the trial and that the court found the facts in accordance with plaintiffs’ contention and which entitled the plaintiffs to equitable relief. •
Should the judgment have been reversed simply because the court for special reasons refrained from granting the plaintiffs all the relief to which they were entitled ? We do not see how the defendant was aggrieved. 1 There is only one form of civil action. The distinction between actions at law and suits in equity and the forms of those actions have -been abolished. (Code Civ. Proc. § 3339.) AH that a plaintiff has do in any case is to set forth in his complaint a clear, concise, and unequivocal statement of the facts constituting, his canse of action, and a demand of the judgment to which he supposes himself entitled. (Code Civ. Proc. § 481.)
The inherent, fundamental differences' between actions at law and actions for equitable relief, such as determine whether a trial of the action by jury is a matter of right and otherwise affect the interests of litigants, have not been and cannot be abolished. For such reason, and for the very simple reason that a person must in his complaint, as we have seen, state the facts constituting his cause of action, a plaintiff who brings an action for equitable relief must establish such cause of action or his complaint should be dismissed. It is, therefore, frequently held that damages, as in an action at law, cannot be given in an action in equity where the plaintiff has failed to establish his light to equitable relief. It does not follow that where a plaintiff has established a cause of action entitling him to equitable relief that a judgment rendered by the court for past damages alone is wholly unauthorized and erroneous where for reasons special and peculiar to the action the court in its discretion or arbitrarily refrains from granting the equitable relief to which, from the facts found, the nlaintiff was entitled.
It is said in Pomeroy’s Equity Jurisprudence (2d ed,
§ 237) : “ It may be stated, therefore, as a general proposition that a court of equity declines the jurisdiction to grant mere compensatory damages when they are not given in addition to or as an incident of some other special equitable relief, unless under special circumstances the exercise of such jurisdiction may be requisite to promote the ends of justice. There are, however, special circumstances in which the principle under discussion is invoked and is extended to the award of mere damages.”
Instances may be mentioned, such as in actions for specific performance, where it is found on the hearing that the relief prayed for is impracticable, or in an action in the nature of a creditor’s bill where it is ascertained upon the hearing that property fraudulently transferred has been conveyed to an innocent purchaser. Instances of judgment being rendered in such actions for money damages only are numerous. These cases are mentioned simply to show that a grant "of equitable relief is not indispensable when the action is properly brought, and the facts upon which equitable relief is claimed are established, but where through special circumstances money damages only are given not because the plaintiff has improperly brought his action in equity but because of such special circumstances.
If we assume that during the trial of this action the defendant had wholly removed the bridge, the relief which the court could have given would have depended upon such condition of things existing at the close of the trial.
(Miller
v.
Edison Elee. Ill.
Co., 184 N. Y. 17.)
An injunction restraining the use of the great highway across the East river may to the court have seemed unnecessary and drastic, although the plaintiffs were upon equitable principles entitled thereto. The court, by its findings of fact and conclusions of law, recognize the plaintiffs’right to permanent or fee damages
if the trespasses are continued.
The decision in
W. U. Tel. Co.
v.
Syracuse El. L. & P. Co.
(178 N. Y. 325) holds'in conformity with previous decisions of the court that unless a, person bringing an action in equity
establishes such cause of action his complaint should be dismissed. The court say: “The object of the action was to, restrain an alleged trespass which is not permitted except under peculiar circumstances
not shown to exist i/n this ease.”
The form of judgment does not necessarily determine whether an action is one at law or in equity.
(Baily
v.
Hornthal,
154 N. Y. 648, 661.)
If a plaintiff in his complaint alleges facts which give the court jurisdiction in equity and he establishes such facts on the trial, he alone should complain if the court fails to grant him all the relief to which he is entitled.
There is, however, a more serious objection to sustaining the judgment of the Special Term that goes to the right of the plaintiffs to recover from the city for all of the alleged wrongs stated in the findings quoted.
The bridge is a public highway erected .and maintained by legislative and municipal authority. The plaintiffs’ property is located opposite a point in the easterly approach to that part of the bridge spanning the river. The authority and duty of the defendant to erect and maintain the bridge in question and its approaches is conceded. The plaintiffs are not even abutting owners of the highway so maintained by the defendant. The real property which they assert has been damaged is not under the bridge and does not adjoin lands under the bridge. Their real property is part of the property of their ancestor remaining after the defendant had taken from him a strip twenty feet wide on the southerly side of a line drawn vertically from the southerly side of said bridge. There is no finding that the bridge was not properly erected or that it is negligently maintained. We quote with approval from the opinion of the Appellate Division herein, as follows :
“ The authorities are clear that some of the acts complained of may constitute trespass, which, if committed in the administration of the bridge, east liability upon the defendant irrespective of any question of its negligence.
(Lambert
v.
Besey,
Sir T. Raym. 421;
Hay
v.
Cohoes Co.,
2 N. Y. 159;
St.
Peter
v.
Denison,
58 id. 416 ;
Sullivan
v.
Dunham,
161 id. 290;
Seifert
v.
City of Brooklyn,
101 id. 136;
Huffmire
v.
City of Brooklyn,
162 id. 584.) The fact that the Legisla, ture authorized the bridge, and that it was constructed within such authority, does not shield the defendant from liability in such a case. * * * I do not believe that the defendant with impunity can sweep debris off the bridge so that when thus cast off into the currents of the air it falls upon the premises of the plaintiffs.”
Where a municipality sweeps or throws water, snow, dirt or refuse upon the real property of others, or gathers the same at one point that they may be discharged upon such real property of others, the injury occasioned thereby is direct and not consequential. But the lawful maintenance of a public highway results in certain consequential injuries that are not actionable.
The grade of a street may be changed under lawful authority to make the same lower or higher than that of the lands of abutting owners without liability for consequential damages unless provision is made by statute therefor.
(Radcliff’s Exrs.
v.
Mayor, etc. of Brooklyn,
4 N. Y. 195.)
The maintenance of a public highway at grade necessarily and unavoidably results in some annoyance and injury, as well as convenience and advantage to abutting landowners. Owners of abutting land and owners of land in the vicinity of highways are to some extent affected by noise thereupon and by dust, dirt and particles of the material with which the highway is surfaced, being blown upon their property and on and into the buildings erected thereon. Surface water from highways, which is always more or less polluted by mud and refuse with which it mingles on such highways, runs upon the adjoining land. If it so happens that the adjoining lands are lower than the highway the annoyance and injury occasioned by the dirt and surface water from the highway is increased and the greater the depression of the surrounding lands the greater the extent of the consequential annoyance and injury.
This court, in
Lynch
v.
Mayor, etc. of N. Y.
(76 N. Y. 60),
were considering a case where the city of New York had caused the grade of an avenue to be raised twenty feet above the surface of the adjoining lands without providing any means for carrying off the rain water which fell upon the avenue or to prevent such water from draining upon the adjoining lands, and said:
“
The defendant had at least ,as much right to fill up and raise this avenue as a private owner of a city lot has to fill up and improve his lot, and there can be no question that such an owner may fill up his lot and build upon it, and the surface water of adjoining lots may thus be prevented from flowing upon it or the surface water may be thrown from it upon adjoining lots, and flow upon them in a different way and in larger quantities than before, and yet no liability would arise. If it were otherwise it would be quite difficult to improve city lots and build up a city. Each owner may improve his lot and protect it from surface water. He may not collect such water into a channel and throw it upon his neighbor’s lot. But he is not bound for his neighbor’s protection to collect the surface water which falls upon his lot and lead it into a sewer.”
So far as the facts relating to the maintenance of the bridge in question and its approaches will permit, the rules of law relating to the maintenance of a public highway are applicable to it. The plaintiffs, however, are not abutting owners. The approach to the bridge is not an elevated structure built over a highway maintained at grade, but at least at the point opposite the plaintiffs’ lands it is built over other lands owned by the defendant which are not directly used for highway purposes, and as we have seen the defendant has taken, from the plaintiffs’ ancestor the lands immediately between the lands under the bridge and those now owned by the plaintiffs.
The decisions of the courts relating to the rights of owners of lands abutting on streets at grade upon which elevated structures have been erected by or
for
elevated or other railroads, are based upon facts entirely different from those appearing in this case, and such decisions are not applicable
to this case. A private owner of land may build on and over the same without liability for all of the annoyance and consequential injury that may be thereby occasioned to his neighbor. The liability of the defendant to the pláintiífs should not in any event exceed the liability of an individual and private owner in the maintenance of a similar structure over land owned by him.
When, in the exercise of governmental powers and under express legislative authority a city erects and maintains a bridge or elevated structure necessary for carrying out a public purpose, no liability is incurred by the city for injuries to others unless it enters upon and takes private property or easements belonging thereto or connected therewith for public purposes, or unless by negligence and lack of care in the performance of the work in erecting or in the maintenance of the bridge or structure, or by reason of some other affirmative act a direct injury is thereby occasioned.
The learned justice at Special Term recognized and asserted the rule that the defendant is not liable for consequential damages arising from the maintenance of the bridge, but, we think, in his application of the rule to the facts in this case he wholly fails to confine the award for damages to injuries that are direct and not consequential.
The judgment in this case is based upon findings of fact which state indiscriminately that the substances therein named are swept, blown and fall upon the plaintiffs’ property and the conclusions of law state without reservation in substance that the plaintiffs recover of the defendant for permitting such substances to fall, be blown, swept or thrown against and upon the plaintiffs’ building.
The findings and conclusions of law clearly include damages for consequential injuries for which the defendant is not liable. As the judgment in favor of the plaintiffs obtained at the Special Term cannot he sustained, it is not deemed wise at this time to further discuss and define the liability of the city, if at all, for specific and specified acts heretofore done or allowed in the maintenance of the bridge.
The order of the Appellate Division should be affirmed and judgment absolute ordered on stipulation, against the appellants, with costs in all the courts.
Cullen, Ch. J., Edward T. Bartlett, Haight and Hiscock, JJ., concur; Gray and O’Brien, JJ., absent.
Ordered accordingly.