George H. Close and Others, Respondents, v. Clark Witbeck, Appellant

George H. Close and Others, Respondents, v. Clark Witbeck, Appellant. Third Department, May 6, 1908. Nuisance — encroachment on public street — action by individual — special damage essential. A private individual cannot maintain an action for damages and to abate an alleged public nuisance caused by the encroachment of a show window upon a public street, unless he has sustained damages of a personal and peculiar nature not suffered by the rest of the community. Such damages must be substantial, not merely nominal. When in such action by a private individual the court finds that the encroachment does not occasion substantial damage to the plaintiff by interfering with his easements in light, air and access, and the only evidence of damage is the opinion of a witness not founded upon facts, there is no basis for an award of substantial damages. The fact that the rental value of the defendant’s premises was increased by the encroaching show window does not entitle the plaintiff to damage, when there is nothing to show that such increase in rental was at the plaintiff’s expense, or that the rental value of his building was depreciated. The j udgment in such action should not order the nuisance abated and at the , same time award damages based on the fee va]ue of the plaintiff’s property on the theory that the obstruction will he permanent. Appeal by the defendant, Clark Witbeck, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 21st day of February, 1907, upon the decision of the court rendered after a trial at the Schenectady Special Term. This is an action to require the abatement of an alleged nuisance consisting of the projection over a sidewalk of a show window in front of defendant’s store and to recover damages because thereof. Plaintiffs own a building on the same side of the street as the defendant’s building. The two buildings do not adjoin but are sepa rated by an intervening building. Each of said buildings is twenty-six or twenty-seven feet wide and immediately abuts the street. They are all used for commercial purposes and are on the principal business thoroughfare of the city of Schenectady. Defendant’s building is of recent construction. The show window which is complained of extends nearly across the front of the building, and from the sidewalk to the height of the first story, but no foundation thereunder has been constructed into the sidewalk. It consists of glass, except the iron or steel framework into which the glass is fitted. It seems to be permanently constructed as a part of the building, and its removal would cost $2,105. It projects one foot over the sidewalk beyond the building line. Some of the buildings in the immediate vicinity have stoops, porches, steps and railings extending over the building line. Plaintiffs’ building has bow windows extending from the second story two and one-half feet over that line. On the theory that said projection on defendant’s building constitutes both a public nuisance and a private nuisance to the plaintiffs, the latter have been awarded a judgment for $1,000 damages, and requiring defendant to rempve such projection within sixty days. Daniel Naylon, Jr., and Edward C. Whitmyer, for the appellant. A. J. Dillingham, for the respondents. [MAJORITY — Cochrane, J.:] Cochrane, J.: Assuming, without deciding, that defendant is maintaining a public nuisance, that fact alone does not justify this action. For such a grievance redress must be obtained by some action or proceeding in behalf of the public, and not by a private action. To entitle plaintiffs to recover herein they must establish that they sustain damages of a personal and peculiar nature, such as are not sustained by the rest of the community, and also that such damages are substantial and not merely nominal. (Wakeman v. Wilbur, 147 N. Y. 657; Callanan v. Gilman, 107 id. 360, 370; Francis v. Schoellkopf, 53 id. 152; Adams v. Popham, 76 id. 410; Adler v. Metropolitan Elevated R. Co., 138 id. 173; Abendroth v. Manhattan R. Co., 122 id. 1; Ackerman v. True, 175 id. 353, 360.) The learned trial justice has found that the structure of defendant “ interferes with the easements appurtenant to plaintiffs’ property, * * * by reason of which plaintiffs have been damaged in the sum of ” $1,000. But he has also explicitly found that such structure does not occasion substantial damage to plaintiffs because of interference with the view either of or from their property, or with the easements of light, air or access to their building. With these questions of view, light, air and access eliminated as elements of damage there is no sufficient foundation in the evidence for the conclusion that plaintiffs have sustained substantial damages. Two witnesses express the opinion that such damages have been sustained. One of these expressly predicates his opinion solely on the supposed interference with the view and with the free circulation of air. The findings of the court are expressly against such damages. The other witness, although asked to do so, was unable to give any intelligible reason for his opinion. As was stated in Morison v. American Telephone & Telegraph Co. (115 App. Div. 744): “ Substantial damages have been awarded and they should be supported by tangible, definite proof. The opinion of a witness qualified to speak is competent on the question of value, but his opinion should be founded upon some facts. The ipse dixit of the witness aids but little unless we can see some reason addressing itself to the opinion given.” Witnesses called by the defendant stated that there was no difference in the value of plaintiffs’ property because of the projection in question. It is not easy to see on what fact plaintiffs themselves base their claim for damages. One of the plaintiffs was called as a witness, but he did not specify any element of damage except such as the court held did not exist. There is no interference with public travel so as in that way to divert business from plaintiffs’ building and there has been no loss of rents or customers. It is very clear that there is no interference with air, light or access. The finding of the court below that there is no substantial damage because of interference with the view was at most a finding on a disputed question of fact and sustained by evidence. Damages cannot be based on some fancied grievance or imaginary wrong or mythical consideration. Mo one contends that the esthetic features of plaintiffs’ building have been marred or deteriorated or that the artistic harmony existing between their building and others has been destroyed, or that there is anything out of keeping with the general architectural style in the immediate locality. There are some residential streets in some localities where a projection such as is complained of might be a menace to the symmetry and design common to all the buildings, but that can hardly be said of a business street like this where there seems to be no common plan of construction or uniformity of style and where even the plaintiffs’ building is by no means free from an offending projection. The court below seems to have been influenced by the idea that this projection would afford defendant larger rent than would otherwise be the case. But conceding that to be so there is no fact which warrants the inference that such increase in rent would be at the expense of the plaintiffs or that the rental value of their building is depreciated. As it does not, therefore, sufficiently appear that plaintiffs have sustained substantial damages this judgment cannot under the authorities cited be sustained. It is also to be observed that plaintiffs have been awarded a double remedy. The damages they have been awarded are not such merely as they have already sustained, but are the damages as fixed by the court to the fee value of their property on the theory that the projection complained of would permanently exist and at the samo time defendant is required to remove such projection. The judgment must be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. All concurred ; Chestek, J., in result. Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.