Poughkeepsie Gas Co. v. . the Citizens' Gas Co. , 89 N.Y. 493 ( 1882 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] We are of opinion that many of the questions which were pressed upon our attention upon the argument are not involved in this case, and cannot properly be determined upon this appeal. It may be, as argued by appellant's counsel, that the agreement between the plaintiff and Eastman amounts to nothing more than a license, revocable at his pleasure, or at the pleasure of his grantees; and that, notwithstanding the small main was laid upon his premises, and extended from such premises across a portion of South avenue, to the plaintiff's main, at his request, and upon his agreement that when laid, it should be, and remain, the property of the plaintiff, the plaintiff may now, by a simple revocation of such license, be deprived of the main and of the beneficial use thereof. And it may be that the owners of the premises can, if they choose, take up such main, or, allowing it to remain, convert it to their own use without making any compensation to plaintiff therefor. No such question is involved in this case. The main was not severed in front of any of the houses upon the terrace, but in the public street, where the plaintiff was unquestionably the owner of both mains.

The agreement alleged and proven between the defendant and the owners of the various houses on the block goes no further than an agreement to take gas of the defendant's company. Their consent that the defendant might use the main upon their premises, for the purpose of supplying them with gas, is neither alleged nor proven. Whatever may be the rights of the owners of the premises in regard to such gasmain, the defendant has not succeeded thereto, and is not at liberty to assert them. The defendant, for the purpose of supplying gas to the houses upon the terrace, instead of laying down a main of its own, entered upon South avenue, at a point leading from the plaintiff's main to the premises in question, severed its connections from said large main, and connected the small main with its own. This it had no right to do. Its act was a trespass upon the plaintiff's property, without justification or excuse. But it is urged, that, conceding that the act of the defendant was a trespass upon the property of the plaintiff, it does not follow that the defendant should be restrained from continuing the wrong by injunction; that the plaintiff's injury may be compensated for in damages. The general rule is, that where the injury is permanent in character, and the damages resulting therefrom continuous in their nature, and especially where, from the nature of the act and the injury suffered, it is impossible, or difficult, to ascertain and determine the extent of the injury which may flow from a continuance of the wrong, an injunction is the proper remedy.

For these reasons, we think the judgment of the General Term, affirming that of the Special Term, is correct, and should be affirmed.

All concur, except MILLER, J., absent.

Judgment affirmed.