#### James E. Andrews, Respondent, *v.*George Cohen, Appellant. James E. Andrews, Respondent, *v.*George Cohen, Appellant.

Second Department,

July 31, 1914.

Real property — easement — injunction restraining alterations to private right of way—when mandatory injunction will not be granted — failure of owner of right of way to object to proposed alterations — right to have private way for use of sleighs kept open to the sky.

Where an owner of a private right of way from the rear of his lot to the main street covered at one place by a shed for a distance of sixteen feet and at a height of eight feet and width of about twelve feet, upon learning that the owner of abutting lands was about to tear down the shed *581and build an incline over the right of way so as to afford an entrance from the main street to a theater which he was planning to erect at a cost of about $80,000, did not object to such changes or intimate his disapproval thereof until after the shed was torn down and the new building actually under construction, and in a suit for an injunction and for the removal of the new structures the court finds that only nominal damages have been sustained, an injunction compelling the defendant to tear down all his structures and to replace the original right of way should be modified so as to simply require the defendant to remove the posts and concrete foundations that are now in the lines of the plaintiff’s original right of way. Plaintiff should have the option, however, of having the action retained for the determination of the entire damages to his rights in the easements, either by the court or by a jury.

A mandatory injunction should only be granted on proof of substantial injury and not for damages that are merely nominal.

The fact that a grant of a private right of way covered for a certain distance by a shed provided that it might be used for “ sleighs” together with other vehicles, considered with the continued right to maintain such shed, does not of itself confer the unusual right of having such passageway kept open to the sky merely to let snow fall to facilitate the passage of sleighs.

Appeal by the defendant, George Cohen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 26th day of March, 1914, granting plaintiff’s prayer for a mandatory injunction preventing interference with his right of way and directing the removal of the defendant’s structures thereon pursuant to the decision of the court after a trial at the Dutchess Special Term.

Also an appeal by the defendant, George Cohen, by a separate record, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 11th day of May, 1914, denying the defendant’s motion to open the judgment herein and to permit the defendant to introduce additional evidence.

*Henry Hirschberg*[ *William L. Gellert*with him on the brief], for the appellant.

*Henry T. Fay,*for the respondent.

Putnam, J.:

Plaintiff, a hardware merchant at Poughkeepsie, is the owner of a lot on the north side of Main street, running back about *582266 feet, upon the front of which is his store, and along the rear he has storehouses for agricultural implements and other merchandise.

By express grants, he has a right of way running westerly across from these rear buildings to an alleyway, which, running southerly, leads out upon Main street some distance to the westward of his store. This right-angled passageway was about 263% feet in length, of. varying widths. It passed through a shed or loft in which were doors or gates, which are referred to in the original grant. The greater portion of this right of way was by a deed from Charles W. Swift and wife to Robert E. Taylor, plaintiff’s predecessor in title, in 1885, which provided: “a right of way from the said land of the said Taylor, beginning where two large doors or gates now are erected, near the northeasterly corner of the land of Mark Shwartz, on the southerly end of the line now dividing the land of said parties of the first part from the land of the said Taylor and running thence always of sufficient width and with room to turn with reasonable care to the northern end of the said alleyway and thence over said alleyway to Main Street, over which right of way and land covered thereby, the said Taylor, his heirs and assigns and his and their servants and tenants and persons having business with them at all times, shall have the right to pass and repass *to and from Main Street*to said land now owned by said Taylor on foot, or with horses, oxen, cattle, beasts of burden, wagons, carts, sleighs and other vehicles or carriages whatsoever; the right of way as above described is not to be so interpreted that there is to be room along it for a wagon to be turned entirely about, nor to require that the portion of the shed now covering that part of the said right of way nearest to said land of said Taylor, is to be removed until it shall be removed by natural causes or by the act of . the parties of the first part or their assigns; the said Taylor, his heirs and assigns forever to have and hold the said easement and privilege to the said party of the second part and his assigns forever as appurtenances belonging to the said land of the said Taylor as aforesaid.”

On November 1, 1911, Douglas Taylor, as successor in title of Robert E. Taylor, made a conveyance to plaintiff of two dis*583tinct parcels. He conveyed lot No. 279 Main street, occupied by the party of the second part as a hardware store. This lot measures approximately two hundred and sixty-six feet by about nineteen feet wide. The second parcel was the rear of lots 275 and 277 Main street northerly of the right of way over the rear of said lots as hereinafter granted, being a tract about eighty-five feet north and south, thirty-eight feet east and west. The conveyance also granted this easement:

> “Also a right of way thirteen (13) feet wide parallel and along the southerly boundary of the last above described parcel of land conveyed hereby over the rear of the lots numbers 275 and 277 Main Street, still owned by the party of the first part for the use of the party of the second part, his heirs, and assigns in common with party of the first part, his heirs and assigns for ingress and egress to and from the premises hereby conveyed and to be appurtenant thereto from and to the right of way which Charles W. Swift and wife, conveyed to Robert E. Taylor, his heirs and assigns, by deed dated November 7th, 1885, and recorded on the same date in Dutchess County Clerk’s Office in Liber 223 of Deeds, at page 17; and also the use of. said right of way to and from Main Street conveyed by said Swift to Taylor in common with the party of the first part, his heirs and assigns, the same being hereby made appurtenant to the premises hereby conveyed, together with the appurtenances and all the estate (sic) rights of the said party of the first part in and to the said premises.”

Plaintiff thus acquired the following rights of way which, when conjoined, gave him access from the rear of lot No. 279 out to Main street. By the last deed he secured a right of passage (ingress and egress) to and from lot 279 to the gates at the Swift shed, being a passageway thirteen feet wide and approximately thirty-eight feet long. It led through the gates and under the shed, which was a distance of sixteen and four-tenths feét more. Then it passed between open sheds and barns about forty-six feet further, when it turned into the alley leading south one hundred and sixty-two and one-half feet to Main street — the last passage ten feet two inches in width. The entire right of way was two hundred and sixty-three feet long, of which the part in the rear of lots 275 and 277 *584had but a grant of a right of passage with no description of the kind of vehicles, or mention of sleighs. The right of way was nowhere fenced. As it approached Main street, it was narrowed to ten feet two inches, and at the gateway at the east line of this shed was about twelve feet wide. After some years these doors or gates disappeared, leaving a lintel which later was broken down.

The defendant having in 1912 bought lands on both sides of this alleyway, costing $80,000, planned to erect a theatre. From the Erts heirs he purchased lands at the westerly part of this east and west passage, but not extending to Main street. From Douglas Taylor his conveyance included lots numbered 275 and 277 Main street, on which he planned to build an entrance from Main street to the auditorium, over an incline bridging this.right of way.

As early as October, 1912, plaintiff and defendant had general conversations as to these proposed designs. Apparently in April, 1913, some slight difficulties arose over plaintiff’s goods, which it was claimed incumbered access along this right of way. At that time they talked of covering over this passageway, as it was mentioned frequently afterwards.

In July and August the defendant was engaged in the demolition of the old buildings along the east and west passageway, when he wholly removed the shed mentioned in the first grant. It is not denied that there were frequent interviews between plaintiff and defendant during this removal of the buildings, when plaintiff made no objection to the proposed alterations, although it is disputed how far the plaintiff knew the extent and full scope of defendant’s design. When the wall of the main structure was started, and the cement posts or foundations were being laid for the pillars to carry this overhead incline to form the approach from Main street, plaintiff, on September 4, 1913, began the present suit for an injunction and for the removal of the defendant’s structures. The application for a preliminary injunction was denied, after the court had personally inspected the place. The defendant continued his operations, which resulted in building into and blocking the old right of way by the theatre or auditorium building, and making a substituted passageway around this wall, and building *585over and covering the old way for a distance of about sixty-three feet, but leaving a clearance or headroom of eleven and one-half feet from the bottom of the girders. The openings unbuilt upon about the building for plaintiff’s driveway left a total passageway shortened by about twenty-nine feet.

The trial, which was held in January, 1914, resulted in a decree for the plaintiff. The learned justice held that the term *“*sleighs ” in the Swift grant, and the use of sleighs in the winter time in the plaintiff’s business, required that the rights of way should be open and unobstructed to the sky during the entire length of the passage, so as to permit the fall of snow for the use of sleighs. Though the shed at the Shwartz lot had covered sixteen feet of the passageway at a height of eight feet, and had by the side gateposts limited its width to about twelve feet, the court held that after defendant had torn down this structure all right to have any overhead structure had been irrevocably lost. He found, which was undisputed, that the auditorium wall had encroached upon the original right of way, also that two posts upon concreted abutments stand in and upon the north line of the right of way given under the Taylor deed. He further found that the crossing structure left a headroom or clearance of eleven feet six inches. He negatived any acquiescence by plaintiff, indeed held that plaintiff did not know that his rights would be interfered with until some time in August, 1913. Plaintiff’s damages since the beginning of the building and down to the time of trial were found in the nominal sum of six cents. Accordingly, the injunction directed the removal of all defendant’s structures and the restoration of the passageway open above throughout, to be made within sixty days, by a decree entered March 26, 1914. Defendant appealed, and also moved to reopen the case so as to introduce further testimony, which application was also' denied.

Such a result effectually bars and isolates defendant’s lots and his theatre structure. It cuts off all approach to Main street and virtually destroys the building used as a theatre. The decree further imposes on defendant the heavy cost of demolition of all the structures erected on and over this passageway.

*586The ordinary right of way in a city does not exclude building over it, providing sufficient headroom is left for the purpose of convenient passage. The right of the servient tenement, therefore, did not depend on keeping up this shed, as the servitude impressed by a right of way does not exclude building above and across it. (Jones Ease. § 39J.) While this shed stood, its headroom of eight feet measured the height of loads that could pass under it. On the plaintiff’s theory, he became a great gainer by its destruction, since he now asserts a right, never exercised, to take loads in this passage of a height of thirteen feet and upwards. The plaintiff not only knew his own requirements, but was especially familiar with the incidents of the different grants, which, as conjoined, made up his right of way. When the proposal to begin this removal of the old structures was made in April, 1913, plaintiff was called on to speak, and to object, if he meant afterwards to insist on an open right of way, after the shed was gone. Instead, he gave the defendant to understand that he did not object to such changes. After the defendant had testified to his conversations with the plaintiff, and his exhibition to plaintiff of plans and sketches, and the plaintiff’s acquiescence, plaintiff was recalled in rebuttal. He frankly admitted that defendant had asked him about going around the theatre building, instead of along the old right of way, and had talked to plaintiff of building over the right of way. He was asked by his counsel: “ Q. Did you say to him that it would be nice to have your right of way covered ? A. I don’t remember that. Q. Do you remember meeting him in August on Main Street? A. Yes, sir, a day, but I don’t remember when it was; it was between ten and eleven o’clock and I handed him a card and he said it was too small and he said I have a newspaper in my pocket and he sketched a diagram and he said he was going to take the right of way and I said if you are I will have to sit still. Q. Is that the first time he said to you that he was going to take the right of way? A. Yes, sir. Q. Did you consent at that time? A. No, sir, didn’t make any statement.”

Therefore, on plaintiff’s own admissions, he never objected or intimated disapproval, until after the shed was down *587and the new building had been actually under construction. Counsel argues that the plaintiff had a right to remain non-committal, also that the original plan or sketch in which the plaintiff passively acquiesced was something different from the structure that has since been erected. But the sole use of the entire venture, costing over $100,000, depended on a connection with Main street, and, hence, a crossing, either upon the ground or above plaintiff’s right of way. Hence in equity plaintiff should have objected and made his objection in season.

The enumeration of vehicles in the grant from Swift which included “sleighs,” was a proper inclusion of the usual vehicles for such a driveway. When the grant mentions the uses, the omission of any might work an exclusion. Thus the right to have pigs driven in a passageway raised a question if horned cattle could also he so driven. *(Ballard*v. *Dyson,*1 Taunt. 279.)

The law of the road (B. S. pt. 1, chap. 20, tit. 13, § 7; 1 B. S. 696, § 7) provides: “The term ‘carriage,’ as used in this Title, shall be construed to include stage-coaches, waggons, carts, *sleighs, sleds,*and every other carriage or vehicle used for the transportationcf persons and goods, or of either of them.”* Hence the mention of sleighs in this grant, read with the continued right to maintain this shed, did not of itself confer the unusual right of having this passageway kept open to the sky, merely to let snow fall to facilitate the passage of sleighs. Although the Taylor grant, in order to reach the way -under this original grant, gave a right of way running to the eastward of this shed, it did not have incorporated in it all the terms of the Swift grant, but gave simply an ordinary right of passage.

Because the old barns and sheds to the westward upon the Erts land had an open courtyard at and about the turn into the Main street alley, leaving there a space some thirty-five or forty feet square, it does not follow that this enlarged area was all appropriated to plaintiff’s easement. The grant gave a right “to turn with reasonable care,” not that there is to be room “for a wagon tobe turned entirely about,” but for a wagon to *588turn into the northern end of the alleyway, and probably to meet and pass other vehicles there. And however ample the space was left by the unbuilt courtyard about these buildings, this requirement measured the width of plaintiff’s easement. When the buildings there were removed the right of way was still limited by the stated requirements of room to turn with reasonable care. *(Johnson*v. *Kinnicutt,*2 Cush. 153; *O'Brien*v. *Murphy,*189 Mass. 353; *Lipshy*v. *Heller,*199 id. 310.)

The court cannot legalize a wrong. It cannot relocate this easement or direct plaintiff to accept any substitute. But before sustaining a mandatory injunction it has to weigh the “balance of injury” — the disproportion between the hardship of destroying defendant’s structure and the harm to plaintiff by the changed right of way. (2 Pom. Eq. Rem. § 552.) What is plaintiff’s loss by the altered driveway, which he alleges is “permanently injured, ruined and destroyed?” Here the judgment finds plaintiff has sustained only nominal damages. Laughlin, J., in *Batchelor*v. *Hinkle*(149 App. Div. 910) said: “The evidence in this record tends to show only nominal damages, and, therefore, I think that this complaint, which is for equitable relief, should have been dismissed without a finding as to the precise amount of damages, so that the plaintiff might, if she so desired, have her damages assessed by a jury.”

Notwithstanding the reliance upon the plaintiff’s constitutional rights, to ignore which seems to give a defendant the power of eminent domain, as was stated by the prevailing opinion of Ingraham, P. J. *(Batchelor*v. *Hinkle,*140 App. Div. 621), the judgment of injunction was reversed, because of its hardship upon the defendant. (210 N. Y. 243.)

It is settled in New York that mandatory injunctions will only he granted on proof of substantial injury, and not for damages that are merely nominal'. *(Gray*v. *Manhattan R. Co.,*128 N. Y. 499; *Wormser*v. *Brown,*149 id. 163.) Therefore, on the grounds that the plaintiff did not seasonably object to the defendant’s building, and that his damages as found by the court below were merely nominal, I advise that this injunction he modified so as to save the great hardship of its present command to tear down all structures and strictly to *589replace the original right of way. The injunction should require defendant to remove the posts and concrete foundations that are now within the lines of the plaintiff’s right of way under the Taylor conveyance, as specified in the 15th conclusion of law, and the injunction should otherwise be withheld. Plaintiff to have the option, however, of having the cause retained for the determination of the entire damages to his rights in this easement, either by the court, or by an issue submitted to a jury. The findings of fact numbered 27, 32, 37 and 38 are reversed and stricken out. As so modified, I advise that the judgment and order he affirmed, without costs to either party.

Jenks, P. J., Thomas, Rich and Stapleton, JJ., concurred.

Judgment and order modified in accordance with opinion, and as so modified affirmed, without costs to either party. Order to be settled on notice before the presiding justice.

*

 See, also, Highway Law (Gen. Laws, chap. 19; Laws of 1890, chap. 568), § 162, as amd. by Laws of 1901, chap. 531; Highway Law (Laws of 1908, chap. 330), § 286; Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), § 326.— [Rep.