Countryman v. Lighthill , 31 N.Y. Sup. Ct. 405 ( 1881 )

Smith, J.:

"We are not aware of a precedent •for this action, and, upon principle, we think it ought not to be sustained. The rule is well stated in Scott v. Firth (4 Fost. & Fin., 349; S. C., 10 L. T. [N. S.], 240), that to constitute a case of nuisance — i. e., of actionable wrong — there must be not merely a nominal, but such a sensible and real damage as a sensible person if subjected to it would find injurious, regard being had to the situation and mode of occupation of the property. What is a real and sensible inconvenience if in one place, would be none if in another.” In Crowhurst v. Amersham Burial Board (39 L. T., 355; S. C., 18 Alb. L. J., 515), the defendant having planted on its own ground yew trees, noxious and poisonous to horses, so near to a neighbor’s lot that his horse while feeding therein cropped the overhanging branches and died of the poison contained in what he ate, the defendant was held liable solely on the ground that the trees were poisonous. But it would be intolerable to give an action in the case of an innoxious tree whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil. The neighbor has a remedy in such case by clipping the overhanging branches, especially if the owner of the tree refuses to do it on being requested. (Gale & Whately on Easements [ed. 1840], 210, 211; 20 Vin. Ab., 417, tit. “Trees” E.; Washb. Easements [2d ed.], 677; Add. on Torts, 289, 290, § 266; Crowhurst v. Am. Burial Board, supra.)

The overhanging branches of a tree, not poisonous or noxious in its nature, are not a nuisance, per se, in such a sense as to sustain an action for damages. Some real, sensible damage must be shown to result therefrom. The complaint in this case alleged that in consequence of the overhanging limbs the plaintiff’s garden was damaged. That was not a necessary result, and in what way it was produced was not alleged. The only proof on the subject was, that plaintiff had berry bushes on his side of the line, and he thought there was a difference between those in the shade and those that were not. What the difference was — whether the shaded bushes were injured or benefited by the shade — does not appear. The action was misconceived, and the justice erred in rendering judgment for the plaintiff.

The County Court seems to have supposed that as the judgment was for nominal damages only, it was not to be reversed, although erroneous. There are cases originating in Justices’ Courts in which the appellate courts have refused to grant the plaintiffs new trials for error, or to reverse wrong judgments against them where only-nominal damages could be recovered and the suits were .vexatious. (Stephens v. Wider, 32 N. Y., 351, and cases cited; Terry v. Dudley, vol. 11, The Reporter, 306.) But even in such case a plaintiff may have a new trial or reverse an erroneous judgment, where a principle, or a right, or"its extent is’involved, although he is entitled to only nominal damages and the suit is vexatious. (Herrick v. Stover, 5 Wend., 580, 586; Hyatt v. Wood, 3 Johns., 239; Dixon v. Clow, 24 Wend., 188.) So an erroneous nonsuit will be reversed, although the plaintiff may sue again (Smith v. Sutts, 2 Johns., 9; Wilson v. Foree, 6 id., 111; Schemerhorn v. Jenkins, 7 id., 373), even if no costs were awarded. (Lovell v. Evertson, 11 Johns., 52; Elwell v. McQueen, 10 Wend., 519, 523; Barthelemy v. People, 2 Hill, 255, note a; Nellis v. Tucker, 5 Den., 82.) But we do not know of a case holding that an erroneous judgment in favor of one whose suit was both vexatious and groundless, should be affirmed because the recovery was only for nominal damages. (See Porter v. Cobb, 22 Hun, 278.)

The judgment of the County Court and that of the justice are reversed.

Talcott, P. J., and Hardin, J., concurred. .

So ordered.