(76 Hun, 601.)

#### THOMAS v. GRAND VIEW BEACH R. CO.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Equity—Jurisdiction—Adequate Remedy at Law.

An action in equity will not lie to restrain the operation of a railroad constructed over plaintiff’s land without his consent, unless he has suffered damages by the entry on and use made of the premises, which he could not recover in ejectment.

2. Same—Pleading .

The objection that plaintiff in an equitable action has an adequate remedy at law is not available unless pleaded.

Appeal from special'term, Monroe county.

Action by George W. Thomas against the Grand View Beach Railroad Company to restrain defendant from maintaining and operating its railroad on plaintiff’s land and for damages. From a judgment dismissing the complaint, plaintiff, appeals, and from so much of the judgment as determined that plaintiff is the owner of the premises described in the complaint, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

John Desmond, for appellant.

John D. Lynn, for respondent.

BRADLEY, J.

The facts as found by the court are that in April, 1891, the defendant went upon the plaintiff’s premises, and there constructed its electric railroad without the consent of the plaintiff; that in May following the defendant begun, and has since continued, the operation of the railroad, by running a motor car and one or two cars attached thereto; and that it will continue to do so unless compelled to desist therefrom. These findings of fact were warranted by the evidence. And as conclusions of law the court determined that the entry of the defendant upon the plaintiff’s land was unlawful; that for the injuries occasioned by such entry, use, and occupation of it by the defendant the plaintiff has an adequate remedy at law, and therefore is not entitled to maintain his action for injunction relief; and that the complaint should be dismissed, unless the plaintiff so amends his complaint as to convert the action into one for relief at law. This the plaintiff did not elect to do, and judgment dismissing the complaint was entered as directed. The general rule is that a court of equity will not entertain jurisdiction, when the question is properly raised, in a case where there is an adequate remedy at law. There are, however, to this rule some exceptions, within which are cases where equitable relief is necessary to prevent irreparable *202injury or the multiplicity of suits. McHenry v. Jewett, 90 N. Y. 58; Thomas v. Protective Union, 121 N. Y. 45, 24 N. E. 24; Corning v. Factory, 40 N. Y. 191; Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. 67. An inquiry is whether or not the plaintiff’s case ■comes within the exception. He could maintain action of trespass against the defendant to recover damages sustained up to the time of its commencement, but the trespass would be continued if the defendant persisted in thereafter maintaining and operating its railroad there, and the plaintiff, for his indemnity, might be required to bring suits from time to time. Such was the situation in Wheelock v. Noonan, supra. In such case, unless there be some other adequate and ample remedy at law, it would be a proper one for the exercise of equitable jurisdiction, where complete relief could be awarded, as justice between the parties should require. Lynch v. Railway Co., 129 N. Y. 274, 29 N. E. 315. The railroad in question was constructed of ties in the usual manner, ■and for the purpose of its use and operation the defendant had the possession of the land on which it was constructed. The plaintiff therefore may maintain ejectment to recover the possession of his land so appropriated (Carpenter v. Railroad Co., 24 N. Y. 656; Wager v. Railroad Co., 25 N. Y. 526); and in such action the plaintiff would, on- recovery, be entitled to recover damages for withholding the property and the rents and profits or value of the use and occupation, formerly known as “mesne profits” (Code ■Civ. Proc. §§ 1496, 1497, 1531), by inserting proper allegations for the purpose in the complaint (Larned v. Hudson, 57 N. Y. 151; Clason v. Baldwin, 56 Hun, 326, 9 N. Y. Supp. 609; Wallace v. Berdell, 101 N. Y. 13, 3 N. E. 769). Whatever the fact may be in that respect, it does not appear that the plaintiff has suffered any damages by the entry and use made of the premises by the defendant other than such as might be recovered in an action of ejectment. In Henderson v. Railroad Co., 78 N. Y. 423, which was an action in equity, damages for injuries resulting to the plaintiff’s property outside of the premises upon which the railroad was constructed were included in those claimed to have been suffered by him for reasons there alleged. And in Lynch v. Railway Co., 129 N. Y. 274, 29 N. E. 315, was the like claim for damages, and it may be supposed that the plaintiff there had no title in the fee of the street where the railroad was constructed; but his easements, having relation to his adjacent premises interfered with by the construction and operation of the elevated railroad, were those of light, air, and access, and thus the beneficial use of ■his premises was impaired, and their value depreciated. If it be assumed that the plaintiff had an adequate and complete remedy at law by action of ejectment, the further question arises whether the objection was so raised as to make it available to the defendant. It is, of course, unnecessary to plead it as a defense in a case where there is no support for equitable relief in the facts alleged. Hawes v. Dobbs, 137 N. Y. 465-470, 33 N. E. 560. In the present case it was within the power of the court to grant equitable relief upon the facts alleged in the complaint and proved *203on the trial; and in such case the rule seems now well settled that the fact that the plaintiff has an adequate remedy at law is a ■defense which must be pleaded, to enable the defendant effectually to raise the objection. Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. 541; Ostrander v. Weber, 114 N. Y. 95, 21 N. E. 112; Buffalo Stone & Cement Co. v. Delaware, etc., R. Co., 130 N. Y. 152, 29 N. E. 121; Watts v. Adler, 130 N. Y. 646, 29 N. E. 131; Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465-474, 32 N. E. 1058; Dudley v. Congregation, 138 N. Y. 451-460, 34 N. E. 281; Center v. Weed, 63 Hun, 560-563, 18 N. Y. Supp. 554; Weaver v. Haviland, 68 Hun, 377-381, 22 N. Y. Supp. 1012; O’Brien v. McCarthy, 71 Hun, 427, 24 N. Y. Supp. 1108. This was not done by the answer. The trial court was permitted by the evidence to find, as it did, the fact in support of that portion of the judgment from which the defendant’s appeal is taken. The judgment should be reversed, and a new trial granted; costs to abide the final award of costs. All concur.