#### YOOS v. CITY OF ROCHESTER.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Nuisance—Measure oe Damaqbs—Injury to Use.

The measure of damages for injury to a tenant’s use of premises resulting from a nuisance is the difference between the rental value of the premises with the nuisance existing and their rental value in the same condition as when the tenancy commenced.

3. Same—Landlord and Tenant.

Where a tenant knows of the existence of a nuisance affecting the value of the use of property when he leases it, and the injury is not increased during his term, he cannot recover damages therefor.

Appeal from Monroe county court.

Action by John Yoos against the city of Rochester to recover damages caused to the use of property occupied by plaintiff as a tenant by a nuisance maintained by the defendant. From a judgment on the verdict of a jury, the defendant appeals.

Reversed.

Argued before LEWIS, BRADLEY, WARD, and DAVY, JJ.

Adolph Rodenbeck, for appellant.

Arthur Warren, for respondent.

DAVY J.

It appears from the evidence in this case that in April, 1890, the respondent leased 35 acres of land located on Thomas creek, in the town of Brighton, for three years, at an annual rent of $300; and he brings this action against the city of Rochester to recover damages for creating a nuisance caused by the discharge of sewage from two of its outlet sewers that empty into said creek, which is a natural watercourse flowing from the city of Rochester through the plaintiff’s premises, and emptying into Irondequoit Bay. The case was tried before a jury in the Monroe county court, and a verdict was rendered in favor of the plaintiff for $312. This appeal is taken from the judgment entered upon the verdict of the jury, and also from the order denying the defendant’s motion for a new trial.

The learned judge who presided at the trial charged the jury that, unless there was an express agreement between the landlord and the tenant that the landlord was to retain the right to sue and recover the damages to the premises, the tenant would be entitled to recover all the damages caused by the pollution of the stream,' and that the measure of damages was the difference in value of the plaintiff’s *1073right to use, occupy, and enjoy the property with the nuisance and without it, which was excepted to by the defendant’s counsel. This exception, we think, was well taken. Where a nuisance affects the enjoyment and occupancy of the realty, the measure of damages is usually the loss of rents or the depreciation in the rental value. Cases may arise where loss of profits resulting from an interference with one’s lawful business or loss of crops may be regarded as elements of damage; and, where the injuries permanently affect the realty, the measure of damages is the difference between what the property would have sold for before" and after the injury by the nuisance. In this case, however, the nuisance complained of was the odor arising from the polluted stream, which the plaintiff contends was so offensive that it interfered with his enjoyment of the property. So that, if the plaintiff was entitled to recover all the damages occasioned by the nuisance, the measure of damages must be based upon the depreciation of the rental value of the premises. But to hold, in the absence of an express agreement, that the plaintiff, under all circumstances, was entitled to all the damages arising from the nuisance during the period that he occupied the premises, might in many cases work great injustice to the landlord, especially if the plaintiff was informed of the nature and extent of the nuisance and its probable duration, and he took that into consideration, and paid no more rent for the premises than they were actually worth with the stream polluted. The plaintiff, under such circumstan-, ces, could not, it seems to me, successfully contend that he had sustained any damages, unless the nuisance' in some way was increased during his tenancy. If the landlord did not receive as much rent for the premises on account of the nuisance, the loss fell upon him, and not the plaintiff. We think that these were proper questions for the consideration of the jury in estimating the plaintiff’s damages.

In the case of Kernochan v. Railroad Co., 128 N. Y. 566, 29 N. E. 65, Judge Andrews, in discussing this question, lays down the rule very clearly as to the right of the tenant to recover damages for the diminished rental value of his premises incumbered by a nuisance at the time the lease was made. He says:

> “It is a fundamental proposition that only the party injured by the wrongful act can maintain an action for damages. There may be difficulty in some cases in ascertaining the proper party. The same wrong may occasion injury to several persons or to separate and distinct interests in the same property; but he only is entitled to maintain an action who can show that his right has been invaded, and to such a person or persons only is the wrongdoer bound to make compensation. In determining [he says] whether the lessee acquired by the lease the right to recover damages inflicted upon the property by the road during the term, the situation at the time the lease was executed, the terms of the instrument, and the intention of the parties thereto, are to be considered.”

The agent of the landlord testified that, before the plaintiff leased the premises, he had two or three interviews with him, in which the condition of the creek was spoken of, and that he informed the plaintiff that the owner had filed a claim against the city for damages. He also testified that the premises were leased to the plain*1074tiff for one-half of their rental value on account of the polluted stream. The natural inference to be drawn from this testimony is that the plaintiff knew of the existence of the nuisance at the time he leased the premises; and if he had made proper inquiry, as a ndent man should have done under the circumstances, he would have ascertained that the stream had been polluted by the city’s sewage for many years, and that it had been declared a public nuisance by the courts, and that the city was powerless to abate it until the East side trunk sewer was completed, which was then in process of construction, and was not finished for more than three years after the lease was made. These facts would not justify us in reaching the conclusion that the owner of the premises demanded the same amount of rent that he would have exacted if the stream had not been polluted. Neither would it be fair to presume that the plaintiff did not take into consideration the effect the nuisance would have upon the use and enjoyment of the property. It would be contrary to reason and common sense to hold that he paid as much rent for the premises with the nuisance as he would have paid without it. To hold that the plaintiff, after having obtained a reduction of the rent on account of the nuisance, is entitled to all the damages that accrued to the premises during his term, because there was no express agreement that the landlord should have them, would be contrary to equity and the presumed intent of the parties when they made thé lease.

The judgment and order of the county court, therefore, should be reversed, and a new trial ordered, with costs to abide the event.

LEWIS and BRADLEY, JJ., concur. WARD, J., not voting.