MILHAU a. SHARP

MILHAU a. SHARP. Supreme Court, First District; General Term, October, 1858. Cause oe Actios.—Iujuuction. An individual owner of real property, upon the public street of a city, may maintain an action to enjoin the construction there of a railway, which would be a nuisance. "Where a nuisance occasions, or is likely to occasion, a special injury to an individual, which cannot be compensated in damages, it may be enjoined, at the suit of such individual. Appeal from judgment of the special term. The complaint in this cause was filed by the plaintiffs, stating that they were owners of lots on Broadway, with buildings erected thereon, and doing business therein. That the defendants were about to construct a railway therein, without legal authority, and that such railway would be specially injurious to them. The judge at special term, before whom the case was tried, found as matter of fact: 1. That the plaintiffs are severally owners and occupants of buildings fronting upon said street, and of the lots of land upon which said buildings are erected, as particularly set forth in the complaint, and have been such owners and occupants for several years last past. 2. That the establishment of a railroad in Broadway, aforesaid, will be specially injurious to the said property of the plaintiffs. Upon this finding a judgment was entered, perpetually enjoining and restraining the defendants from entering into or upon said street, called Broadway, for the purpose of laying or establishing a railroad therein under the grant referred to in the complaint. From that judgment an appeal has been taken, by the defendants, to this court. David Dudley Field, for appellants. G. O. Bronson and J. Van Burén, for respondents. [MAJORITY — By the Court—Davies, P. J.] By the Court—Davies, P. J. —The only question necessary to consider in this appeal is, whether, upon the facts found, the plaintiffs can maintain this action; and if so, are entitled to the relief which has been granted. It appears to us that both of these points have been settled in the affirmative by the Court of Appeals, in the case of Davis and Palmer against these defendants,† in a suit relating to this same grant. It is true that other questions were presented and argued in that case, and decided by the court, but it seems to us that the points presented in this case were also presented and distinctly passed upon. Denio, Chief justice, in delivering the opinion of the court in that case, says: “ It is well settled that when such an offence (that is, a nuisance) occasions, or is likely to occasion, a special injury to one individual, which cannot well be compensated in damages, equity will entertain jurisdiction of the case at his suit,” and cites numerous authorities to sustain that position. Wright, Justice, who delivered the dissenting opinion of the court, manifestly concurred in this view of the law, for he says: “ Private persons could not interfere, except the act authorized tended to the creation of a public or private nuisance, specially injurious to them, and from which they apprehended a direct special damage.” In that case it was not proven that the plaintiffs were the owners of lots on Broadway, and the Superior Court found as a matter of fact, that the railway would not be a nuisance, or specially injurious to the plaintiffs. It is seen that the facts found in this case are entirely different; and it appearing here that the plaintiffs are the owners of lots on Broadway, and that the establishment of the proposed railway would be specially injurious to their property, we must affirm the judgment of the special term, on the authority of the Court of Appeals in Davis and Palmer against same defendants. Judgment affirmed, with costs. Present, Davies, P. J., and Sutherland and Ingraham, JJ. f Davis a. The Mayor, <S$c., of Hew York, 14 N. 7. R. (4 Kern.), 506.