Hopkins v. Western Pacific Railroad

By the Court, McKinstry, J.: We do not decide that the plaintiff is or is not the owner of the fee to the centre of the street in front of his premises. The complaint alleges that he is such owner, and is drawn with a double purpose: to recover damages for the trespass upon that portion of his lot lying within the limits of the street, and, as to the other portion, to recover special dam-t ages, caused by an obstruction of the highway. In the last j aspect of the case, proof of the fact that the land would sell j for less on account of the continuance of the nuisance, was • not admissible. Under section 249 of the Practice Act, the nuisance could have been abated by the judgment in this . action. ' If so abated (assuming the rule to be as claimed by respondent), and if the lot had been rendered temporarily valueless by reason of the obstruction, the plaintiff would be restored to the full enjoyment of his property, and be paid for it besides.

Begarding this as an action on the case for special or particular damages, the defendant was liable only for the damages actually sustained prior to the commencement of the suit. Every injury caused by the continuance of such a nuisance, affords a new and distinct cause of action. (Vedder v. Vedder, 1 Denio, 257; Delaware and Raritan Canal Company v. Wright, 1 Zabriskie, 469.) If a party, against whom a verdict in an action of this kind was recovered, did not abate the nuisance, increased exemplary damages could be recovered in each succeeding action. (2 Wheaton’s Selw., N. P. 1141.) But on the trial of the first action, evidence tendered for the purpose of showing a diminution of the salable value of the premises, was inadmissible. (Bathishill v. Reed, 37 Eng. L. and E. 317.) Otherwise, a jury would be justified in finding damages equal to all the injury the premises would ever sustain, supposing the nuisance were to continue forever, which would be clearly wrong. (Thayer v. Brooks, 1 O. R. 489.)

If, in any aspect of the case, the decreased value of the [195]plaintiff’s premises can be considered, it is plain that it is the market value, or the sum for which they can be sold, as compared with their value before the creation of the nuisance, which is to be estimated; not their value for a particular purpose. Yet witnesses were permitted—notwithstanding the objection of the defendant—to testify to the decreased value of the property “as a family residence.” This was error. It may be that the proximity of the railroad has rendered the property more valuable, although it has ceased to be desirable as a homestead. Indeed, it affirmatively appears from the transcript, that while witnesses gave opinions that the premises would be worth $10,000 if the embankment, on which the rails of defendant rest, had not been made, the plaintiff himself estimated them to be worth that sum on the day of the trial.