Opinion
December Term, 1897.
Martin Carey, for the appellants.
John Cunneen, for the respondent.
Plaintiff's complaint alleges that the Lehigh Valley Railroad Company is a foreign corporation by virtue of the laws of the State of Pennsylvania, and is engaged in operating a line of railroad for the transportation of freight and passengers from Sayre, in the State of Pennsylvania, through the town of Cheektowaga into the city of Buffalo; that prior to the construction of the bridge mentioned in the complaint the plaintiff's grantors were, and he is now, the owner in fee simple and possessed of a tract of land in the city of Buffalo, particularly described in the complaint; that so much of the lands described "as lie within the bounds of Alabama street are subject to the easement and right of way of the public upon and over the same for the purpose of a public highway or street only;" that Alabama street is one of the public streets, and was opened, improved and used by the public since about the year 1850. It is averred that the Lehigh Valley Railway Company, without the consent of the plaintiff or the owner of the lands, "erected and constructed and claims to own, possess and control a bridge and superstructure upon and across that portion of the above-described lands and premises which lie within the bounds of Alabama street, which bridge and superstructure are placed upon abutments of solid masonry, placed one on the easterly and one on the westerly side of Alabama street, and upon iron posts or pillars resting in said street between said abutments, which bridge and superstructure are of a solid and permanent character, and as the plaintiff alleges * * * constitute and are a part of the real estate of the plaintiff in this action above-described within Alabama street as aforesaid, and the property of the plaintiff in this action;" that the Lehigh Valley Railway Company, "in connection with said bridge and superstructure, constructed and maintains a line of railroad immediately in front and on the notherly side of that portion of plaintiff's said lands and premises which lie westerly of Alabama street and easterly of Louisiana street (a public street of said city, situate westwardly of plaintiff's premises), and continued and maintains said line of railroad eastwardly from Alabama street for several thousand feet, which line of railroad in front of plaintiff's premises and said bridge and superstructure across Alabama street and thence eastwardly for several thousand feet, was, when erected and constructed, and still is, elevated upon solid embankments and abutments, ranging from four to fifteen feet above the level of plaintiff's said lands and premises, said bridge and superstructure across Alabama street, rising about twelve feet above the level of plaintiff's lands and premises and above the grade of Alabama street." It is alleged that the Lake Shore and Michigan Southern Railway Company maintains a switch or siding extending from its main line through Scott street in the city of Buffalo, westerly from Hamburg street to Alabama street, and that at Alabama street "said switch track and siding lies within about twelve feet of the northerly line of so much of plaintiff's premises as lie within the bounds of Alabama street, and within about eighty feet northerly of the northeasterly corner of plaintiff's lands and premises lying westerly of Alabama street." It is averred in the complaint that the plaintiff's lands "are particularly valuable for business and manufacturing purposes, and such value would be greatly enhanced by having a railroad connection with the Lake Shore and Michigan Southern Railway Company's tracks, and which connection could readily be made except for the elevated roadbed, bridge and superstructure placed and maintained thereon by the defendant, The Lehigh Valley Railway Company aforesaid, which elevated roadbed, abutments, bridge and superstructure completely prevent any connection being effected between the plaintiff's said lands and premises and said Lake Shore and Michigan Southern Railway Company, or any other railroad company whatsoever."
The plaintiff alleges that he desires to remove said bridge "constructed and maintained upon his lands within Alabama street aforesaid, but apprehends and avers that the defendants in this action may attempt to interfere with or prevent the plaintiff from removing the same and open up the highway for legitimate uses, and for the construction and maintenance of a spur or switch of railroad track to connect his other lands and premises with the tracks of the railway of the said Lake Shore and Michigan Southern Railway Company aforesaid, and to secure efficient railroad connections for his said property." It is alleged that the abutments and posts are so placed, and the said bridge and superstructure so erected, placed and are maintained by the defendants without the consent or permission of the plaintiff and was and is illegally done. It is alleged that the effect has been to depreciate the value of plaintiff's lands. It is further alleged that the "abutments and posts, and the erection and construction of the said bridge and superstructure thereon, and maintaining the same without the consent or permission of the plaintiff, cause a continuous damage to plaintiff, and that the defendants in this action are guilty of trespass several times every day upon the lands and property of the plaintiff in this action, by running locomotives and cars over his said property, that it would require a multiplicity of suits to recover for said trespasses, and that there is no adequate remedy at law for the plaintiff to redress the wrong trespasses of the defendants aforesaid." It is also averred that since the construction of the bridge the Lehigh Valley Railway Company has entered into some arrangement or agreement with the other defendant permitting it "to use and occupy its said line of railroad, and the said bridge and superstructure, the property of the plaintiff in this action, and the said two railroad companies, defendants in this action, by some arrangement between them * * * are continuously maintaining the said posts and abutments and bridge in the position aforesaid, and continuously trespassing upon the property of the plaintiff as aforesaid."
The prayer of the complaint contains six subdivisions, and in one of the subdivisions the plaintiff asks for an injunction "restraining and enjoining the defendants, or either of them, their agents or servants, from trespass as aforesaid, upon the lands and property of the plaintiff or that part thereof which lies within the bounds of Alabama street aforesaid."
In Richards v. Edick (17 Barb. 261) it was held: "If a demurrer admits facts enough to constitute a cause of action, that is sufficient to sustain the complaint."
In People v. Mayor of New York (28 Barb. 248) it was said: "Nor is it good cause of demurrer that the plaintiff asks in his complaint for more than it shows he is entitled to; for relief that he is not entitled to, or for further relief than he is entitled to. Nor is the insertion in the complaint of redundant or impertinent matter, or of irrelevant or unmeaning verbiage, cause of demurrer." It is further said in the opinion in that case: "It is the duty of the court to uncover the mass of heterogeneous facts, and to sort out and arrange them; and if it is found that any lot or parcel of them, when arranged and placed together, will stand alone as a cause of action, it is the duty of the court to overrule the demurrer."
In volume 1, Rumsey's Practice, page 386, it is said: "The demurrer can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. ( Marie v. Garrison, 83 N.Y. 14, 23.) A complaint is good upon demurrer if it states a cause of action, no matter how much irrelevant or unnecessary matter appears in it."
The case of Marie v. Garrison ( 83 N.Y. 14) was referred to with approval in Sanders v. Soutter (126 id. 195), and it was said in the latter case: "A cause of action will be deemed to be stated in a complaint whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative and the pleading deficient in technical language ( Zabriskie v. Smith, 13 N.Y. 330)." That rule was adverted to with approval in Felts v. Martin ( 20 App. Div. 64).
In the course of the opinion in Rochester Railway Co. v. Robinson ( 133 N.Y. 246) it was said: "`Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature of the pleader's claim are sufficient, if under them, upon a trial of the issue, he would be entitled to give all the necessary evidence to establish his claim. ( Berney v. Drexel, 33 Hun, 34-37.)'"
The defendants' demurrer admits that the plaintiff is the owner in fee simple of the lands within the bounds of Alabama street "subject to the easement and right of way of the public upon and over the same for the purpose of a public highway or street only." If the public should discontinue or abandon the public street, the entire and exclusive enjoyment of the property thus owned by the plaintiff would be subject to his enjoyment as the proprietor of the soil from the center of the earth to the center of the heavens. ( Jackson v. Hathaway, 15 Johns. 453; Evans v. Board of Street Commissioners, 84 Hun, 213.) That one of the defendants constructed, and that both are maintaining, a structure and constantly using it without the consent and authority of the plaintiff, is also admitted by the demurrer. The structure seems to be some fourteen feet above the surface of the street.
In a late case the Court of Appeals has upheld the right of the owner of the soil in a highway, subject to the easement of the public, to maintain ejectment for the removal of telegraph or telephone poles erected thereon without the consent of the owner. ( Eels v. A.T. T. Co., 143 N.Y. 133; Matter of Grade Crossing Commissioners, 6 App. Div. 339.)
In Williams v. N.Y.C.R.R. Co. ( 16 N.Y. 97) it was held that, "Although he (the owner) had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power to prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief." The doctrine of that case was again asserted in the second appeal under the name of Henderson v. N.Y.C.R.R. Co. ( 78 N.Y. 423, affg. 17 Hun, 344). (See, also, McGean v. M.E.R. Co., 133 N.Y. 9; Bowen v. D., L. W.R.R. Co., 153 id. 479.)
It is contended by the learned counsel for the appellants that, where substantial damages cannot be awarded to the owner of premises, an equitable action will not lie. It is not necessary to determine that question in this case adverse to the contention of the appellants. Suffice it to say that the allegations of the complaint are to the tenor and effect that the plaintiff, by reason of the wrongful acts of the defendants, has sustained and is sustaining substantial damages.
The case as presented upon the complaint by the plaintiff is quite unlike O'Reilly v. N.Y. El. R.R. Co. ( 148 N.Y. 347), much relied upon by the appellants. In that case a trial had taken place before a referee, and he had, upon all the facts and evidence disclosed before him, "found it to be a fact that a general benefit had been produced by the presence of the railway in which the plaintiffs' property participated," and he also found "that the plaintiffs had failed to show that the fee or rental value of the premises had been diminished," and he reached the conclusion "that, though the plaintiffs had shown title to the property in question, and to the easements of light, air and access appurtenant thereto, and though the defendants had appropriated such easements without the sanction of the plaintiffs, and without having made compensation therefor, yet, as the plaintiffs had failed to show that any substantial loss had resulted to them, or that other than nominal damages had been suffered, and because it appeared that to grant the equitable relief prayed for would involve serious public inconvenience, judgment should be directed dismissing the complaint." That dismissal, however, was to be "without prejudice to the right of the plaintiffs to bring such action as they may hereafter be advised, based upon facts not inconsistent with those herein adjudged." In considering the findings of the referee and his conclusion to deny the injunction, the court, in its opinion (p. 355), alludes to the case of Hunter v. M. Ry. Co. ( 141 N.Y. 281) and says that it was there decided that "the question for the tribunal in each case is, whether, by the construction and operation of the elevated railroad, there has been an intrusion upon the complainant's property rights to his actual prejudice and damage." Near the close of the opinion the learned judge says: "It is sufficient to say, in conclusion, that we do not feel compelled by authority, nor upon principle, to hold that the court must grant relief by way of injunction in a case where the plaintiffs are unable to show any actual damage to their property, or loss suffered by reason of the defendants' acts, and in the face of the fact that, by reason of the presence and operation of the elevated railroad in the street, the value of their property has greatly increased, and that it has shared equally with all the property in the vicinity in the general increase of values which has taken place."
We see nothing in that case inconsistent with the views which we have already expressed, nor anything tending to indicate that if the plaintiff, on the trial of this action, shall establish substantial damages, he may demonstrate the right of recovery.
Having reached the conclusion that the complaint states facts sufficient to constitute a cause of action, we do not deem it necessary to consider the extent of the relief which the plaintiff may be entitled to, nor to determine at this time whether the plaintiff is entitled to any relief as to the block of land mentioned in the complaint lying outside of Alabama street. Those questions can more appropriately be determined when the facts are produced at the trial. Whether an injunction shall issue in a case of this character or not, is always addressed to the sound, equitable discretion of the court, after consideration of all the facts and circumstances disclosed upon the hearing of the parties, and such discretion can more appropriately be exercised after a trial than upon considering the complaint to which a demurrer has been interposed. We are of the opinion that the demurrer was properly overruled at the Special Term.
The interlocutory judgment should be affirmed, with costs, with leave to the defendants to answer upon payment of the costs of the demurrer and of this appeal.
All concurred, except FOLLETT, J., not sitting.
Interlocutory judgment affirmed, with costs, with leave to defendants to answer upon payment of the costs of the demurrer and of this appeal.