(91 Hun, 189.)

#### MITCHELL v. VILLAGE OF WHITE PLAINS.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Action—Legal on Equitable Cause.

A complaint stating that plaintiff was in possession of certain premises, and that defendant entered on a strip thereof, broke down the fence, dug a sewer, and appropriated said strip for highway and sewer purposes, and demanding judgment for a certain sum as damages, but not asking for a permanent injunction, states only a legal cause of action.

2. Same—Compelling Trespasser to Purchase Land.

A trespasser on land cannot be compelled, by action, to purchase at a price to be fixed by the court, but the court may determine the amount of damages which the owner would sustain if the trespass should be permanently continued, and provide that, on payment of that sum, the owner shall convey to the trespasser.

Appeal from judgment on report of referee.

Action by Ann Minott Mitchell, as administratrix, against the village of White Plains. There was a judgment in favor of plaintiff, and defendant appeals.

Affirmed on condition.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

H. T. Dykman, for appellant.

Wm. P. Fiero, for respondent.

BROWN, P. J.

This action was commenced by Isabella H. Mitchell. In her complaint she alleged that she was the owner, and in possession, of about 10 acres of land in the town of White Plains, Westchester county, and that on September 9, 1894, the defendant unlawfully entered upon a strip of said land adjoining Mamaroneck avenue, which is described as being 50 feet in width and 450 feet long, broke down the fence, and dug a sewer thereon, and appropriated the same for highway and sewer purposes. Judgment was demanded for $5,000 damages. The answer put in issue the title to the *936land, but that question, upon a former appeal (62 Hun, 231, 16 N. Y. Supp. 828; 138 N. Y. 627, 33 N. E. 1083), has been determined adversely to the defendant’s contention. The referee found that the acts of trespass were committed, as alleged in the complaint; that the value of the fence which was destroyed was $138.33. In reference to other damages, he found “that the depreciation in value of the property of the plaintiff, fifty feet in width and four hundred and fifty-three feet in length, taken, used, and appropriated by the defendant, was the sum of three thousand five hundred dollars.” He further found that the plaintiff had offered to convey said strip of land to the defendant upon payment of the amountfound due by the referee, with costs, and directed judgment to be entered against the defendant for the aforesaid sum and interest, and that, upon payment of said judgment by the defendant, the plaintiff should execute and deliver to the defendant a deed conveying to it the aforesaid strip of land in fee-simple absolute. The referee’s report was dated January 23, 1895. On February 9, 1895, Isabella H. Mitchell died intestate. Judgment appears to have been entered on February 18, 1895. On February 25, 1895, the plaintiff was appointed administratrix of said Isabella H. Mitchell, and was, by an order of the court dated March 14, 1895, substituted as plaintiff in this action.

It is the claim of the respondent that this action is in equity, and the appeal has been argued by her upon that assumption. If such is the character of the action, it is plain that the proper parties are not before the court, and we should be compelled to defer consideration of the case until they are brought in. The plaintiff, as administratrix of Isabella H. Mitchell, has no title to the land, and she could not comply with the provisions of the judgment, which required a deed for the land to be executed and delivered to the defendant on payment of the judgment. The title to the land is vested in the heirs of Isabella H. Mitchell. It does not appear from the record who such heirs are, but they alone can execute a conveyance of the land, and are entitled to be paid its value. The plaintiff, as administratrix, took title only to such damages as had been sustained prior to the commencement of the action. Shepard v. Railroad Co., 117 N. Y. 442, 23 N. E. 30; Griswold v. Railroad Co., 122 N. Y. 102, 25 N. R. 331. While, therefore, it was proper, upon the death of Isabella H. Mitchell, that her administratrix should have been made a party plaintiff, her interest in the recovery was limited to the damages sustained before the commencement of the action, which the referee has found to be $138.33.

As to that part of the recovery which was based upon the value of the land appropriated for the sewer, the heirs of Isabella H. Mitchell were the sole persons interested, and they have not been made parties to the action. We are of the opinion, however, that the complaint sets out a common-law action for trespass only. There is no prayer for a permanent injunction, and none is granted by the judgment. The theory of the action appears to have been that the owner could recover the value of the strip of land taken, and that, upon payment of its value, the land could be conveyed to the defendant; in other words, that the defendant could be compelled to purchase the land at a price to be fixed by the court. But an action of that character is *937unknown and unprecedented, and cannot be maintained at law or in equity. Galway v. Railroad Co., 128 N. Y. 143—146, 28 N. E. 479; Pappenheim v. Railroad Co., 128 N. Y. 436, 28 N. E. 518. It is settled in this state that no action at law can be maintained by an owner to recover prospective damages for injuries to real property. Uline v. Railroad Co., 101 N. Y. 98. 4 N. E. 536; Pond v. Railroad Co., 112 N. Y. 187, 19 N. E. 487; Tallman v. Railroad Co., 121 N. Y. 119, 23 N. E. 1134. An action in equity may be maintained by a landowner, not for the purpose of recovering the value of land appropriated by a trespasser, but to restrain the continuance of a trespass, and to prevent a multiplicity of actions at law to recover damages. In such an action the court may determine the amount of damages which the owner would sustain if the trespass were permanently continued, and may provide that, upon payment of that sum, the plaintiff shall convey the right to the defendant. But a court of equity cannot adjudge that the defendant shall pay, and the plaintiff shall convey. The privilege of securing the right to continue the acts complained of is granted as a favor to the offending party, and not as a matter of right to the injured owner; and, in all cases wherein judgments of this character have been granted, it will be found, I think, that the offending party had the right to exercise the power of eminent domain, and acquire the property upon which the trespass was committed, or the right to do the acts complained of. The rules applicable to equitable actions of this character, and the power of the court therein, are fully discussed and stated in Galway v. Railroad Co., and Pappenheim v. Railroad Co., supra. An owner of land trespassed upon may sue at law to recover damages for the trespass, or he may resort to equity, and have an injunction restraining its continuance. The trespasser is under a legal obligation to discontinue his acts, and the law presumes he will do so. But where it is conclusively determined that the acts complained of are to be continued, and the case is one where the defendant may acquire the right to continue them, a court of equity, as an act of grace or favor, will withhold its injunction, upon condition that defendant pay the value of the right. In that way condemnation proceedings are avoided, and the owner recovers the permanent damages to his property.

In this case it was decided, upon the former appeal, that the statute under which Mamaroneek avenue was laid out (chapter 552, Laws 1868) was unconstitutional, and we are not referred to any law which grants to the defendant the right to acquire title to the strip of land in dispute. The right to recover' was therefore limited to damages sustained prior to the commencement of the action. The only damage of that character proven was the value of the fence destroyed, which was found by the referee to be $138.33. The judgment must therefore be reversed, and a new trial granted, unless the respondent stipulates within 20 days to reduce the recovery to $138.33, - with interest from September 9, 1890, and, if such stipulation is filed, the judgment so modified is affirmed, without costs of appeal. All concur.