Fobes v. Rome, Watertown & Ogdensburgh R. R. Co., 121 N. Y. 505 31 N. Y State Rep., 828, does not decide that an abutting owner has not vested rights to light, air and access in a public street, which are incident to his lot and which are private property, within the meaning af the constitution; but that the operation pursuant to legislative authority by the defendant of its steam railroad on the grade of the street, which was at about the natural surface of the ground, was not an actionable invasion of the abutter's right. The learned judge who wrote the opinion in that case thus defined the limits of the question to be discussed: "It (defendant) admits that plaintiff had an easement in that street, but it denies that it has occupied or appropriated it. Whether it has taken any portion of the plaintiff's easement in the street in question, is what the defendant asks shall be decided by us, and it denies in toto any taking whatever of the plaintiff's property or any portion thereof."

The conclusion which we arrive at is, that the erection and operation of the elevated road in Pearl street immediately in front of the plaintiff's premises, in the manner and with the effect described in the findings of fact, was a material impairment of the plaintiff's right of property, for which he is entitled to recover compensation for the damages inflicted.

It is urged that if the plaintiff ever had a right of action, it has been lost by his acquiescence in the construction and use of the road by the defendant. It is found that when the road was being built through this street the plaintiff forbade the New York Elevated Railroad Company to construct it, and threatened that corporation with litigation, but began no action until this suit was commenced, and in the meantime he has occasionally been a farepaying passenger on the road. Had this action been brought in equity solely for the purpose of compelling the defendants to remove their structure, and if all persons having such interests in the elevated road as would entitle them to be heard before such relief could be granted were parties to the action, personally or representatively, this question might require some consideration, but in an action for the recovery of damages, the conduct of the plaintiff, as found by the court, and his delay in bringing the action, is not a defense.

The order should be affirmed, and judgment absolute rendered against the appellants, with costs.

All concur, except HAIGHT, J., absent.

GEORGE P. CAHOON, App'lt, v. THEODORE W. BAYARD et al,

Resp'ts.'

(Court of Appeals, Filed October 7, 1890.)

1. MINING RIGHTS-LICENSE.

Defendants' grantor gave plaintiff an agreement that he should “have the right to enter upon the premises * with men, teams and tools

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for the purpose of prospecting and examining for mines and minerals, and to dig, carry away and test such portions, etc., as he may think proper, 'Affirming 16 N. Y. State Rep., 488.

* and if he, after making such examination and test, etc., shall be of opinion that they are worth working, he shall then have the right to go on and dig, carry away and cause to be worked such of the substances there found," the net proceeds of sales to be divided as specified, and the agreement "to bind the heirs and assigns of the respective parties." Held, that this did not vest the fee in plaintiff and his assigns to exercise all the mining rights in the land where the mine was located, but was merely a license to prospect and operate mines under the arrangement for division of profits.

2. SAME.

The right to an interest in the land would have been initiated upon the plaintiff's becoming satisfied in his mind that the ores were worth working, and upon his then making the election to go on and operate the mining rights.

3. SAME-ELECTION UNDER MUST BE EXERCISED WITHIN A REASONABLE TIME. The owner was not bound to wait indefinitely for plaintiff to make up his mind about the advisability of going on with the business, and the lapse of ten years was far in excess of the period of time which he might fairly have been held bound to accord to plaintiff for exercising his

election.

APPEAL from judgment of the supreme court, general term, third department, affirming judgment entered upon the report of a referee, dismissing plaintiff's complaint.

ses

John C. Keeler, for app'lt; C. A. Kellogg, for resp'ts.

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GRAY, J.-The agreement under which the plaintiff in this action claims to have acquired some property rights and interests does not contain any words sufficient to constitute a deed of an estate in lands, or even importing the grant of such. Its language is, that he "shall have the right to enter upon the premi with men, teams and tools for the purpose of prospecting and examining for mines and minerals, and to dig, carry away and test such portions, etc., as he may think proper; and if he, after making such examination and test, etc., shall be of opinion that they are worth working, he shall then have the right to go on and dig, carry away and cause to be worked such of the substances there found.' The agreement provided that the expenses were to be borne by the plaintiff, and the net proceeds of sales of product were to be divided in certain specified proportions. It was also provided that it should "bind the heirs and assigns of the respective parties." The plaintiff's contention is, that through this writing he and his heirs and assigns became vested in fee with the right to exercise all the mining rights in the piece of land where the mine in question was located. That, however, was not the legal effect of the instrument. Its plain intendment and its whole force were to give to the plaintiff a license, or authority, to enter upon the lands for the specific purpose of prospecting for minerals, and of extracting and testing the ores; and then it gave him the option, if he thought them worth working, of going on and operating the mine under an arrangement for the division of the profits. That was the value and the benefit of this agreement to the plaintiff. Although in writing and purporting to bind the heirs and assigns of the parties, it amounted to nothing more than a mere license, or personal privilege, to the plaintiff, and conveyed no title or interest in the

land. To obtain more, it was necessary for the plaintiff to take the further step of declaring his election as to whether he would enter upon the business of regularly working the mine, or of doing acts equivalent to the declaration of that election.

The instrument is inartificially and crudely drawn; but the sense of it must be deemed to be to give a privilege to go upon the lands; not to vest an interest in them. As to the conveyance of any right it was executory, and had the plaintiff formed the opinion that the mining rights were worth possessing and working, he could, undoubtedly, have compelled the execution and delivery of proper instruments of grant, securing to him all requisite property rights. The right to an interest in the land would have been initiated upon the plaintiff's becoming satisfied in his mind that the ores were worth working and upon his then making the election to go on and operate the mining rights. Prior to that, he was vested with no estate, or interest, in the property which was transmissible or transferable. The case of Mendenhall v. Klinck, 51 N. Y., 246, is sufficiently in point as an authority for that proposition.

For over twenty years between the making of this agreement and the commencement of this action, the plaintiff, as the referee finds, went upon the premises yearly and did some prospecting for ores; but he never did more, or all that the agreement called for. Meanwhile Spaulding, with whom the plaintiff had made the agreement, conveyed away the land some ten years afterwards. We think the plaintiff failed to avail himself of the provisions of this agreement in any such wise as to evidence an intention to operate the miring rights. Nothing was done by him to indicate to Spaulding that he was going to take up the matter seriously; and he was legally bound to define his position towards the owner of the land as soon as it was fairly possible. But he does not appear to have removed the minerals, or to have tested them, and his yearly visits upon the property do not have the semblance of an honest purpose. If he honestly meant to initiate and acquire rights in Spaulding's property, fair dealing required of him to take the requisite steps under his agreement within a reasonable time. No time being specified in the instrument, the law affixed to it the obligation of proceeding within what would be deemed a reasonable time. When the plaintiff waited for so long a period without definite action he thereby left it open to Spaulding to revoke the authority to him.

The agreement in question was not obligatory upon plaintiff to do anything, except in the event that he chose to acquire an interest in the mining property, and after he had had a fair opportunity to satisfy himself he was bound to act promptly, or the privileges might be revoked. This revocation of the authority contained in the agreement was, in fact, effected when Spaulding deeded away the land. He was not bound to wait indefinitely for the plaintiff to make up his mind about the advisability of going on with the business, and the lapse of over ten years was far in excess of the period of time which he might fairly have been held bound to accord to plaintiff for exercising his election. Under the circumstances and in view of plaintiff's conduct,

Spaulding was entitled to believe and the court had the right to conclude that the plaintiff, having failed to do the acts mentioned in the agreement within so great a length of time, had ceased to have any further rights under the instrument in question. The judgment should be affirmed, with costs.

All concur.

CAROLINE BARRICK, Resp't, v. ANNA SCHIFFERDECKER, App'lt.' (Court of Appeals, Filed October 7, 1890.)

1. NUISANCE-INJURY TO BUILDING-MEASURE OF DAMAGES.

Where the melting of ice in defendant's ice house struck through the walls of plaintiff's adjacent dwelling, injuring it and making it so unsafe and unfit for occupation as to seriously diminish its rental value, and plaintiff asks for an injunction to prevent the continuance of the nuisance and for damages, it is improper for the court to allow the plaintiff to prove the loss of rental value to the trial and the cost of repairing the injury and the permament depreciation, and on the jury fixing the damages to refuse to grant an injunction but allow the judgment for damages to stand.

2. SAME.

The cost of prevention and the result of continuance cannot both be given. The award of the one must necessarily exclude the other.

APPEAL from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiffs, entered by direction of the court, and upon its own findings and upon a general verdict in favor of the plaintiffs for damages.

Andrew Hamilton, for app'lt; D. Cady Herrick, for resp't.

FINCH, J.-The principal question raised on this appeal relates to the measure of damages. The parties were adjoining owners, and the defendant, using her building for the storage of ice, caused injury to the plaintiff's dwelling-house. The melting of the ice occasioned a dampness, which struck through the walls of the dwelling, and beyond an injury to the structure, made it so unsafe and unfit for occupation as to have seriously diminished its rental value. The plaintiff brought an equitable action so far as the relief demanded was concerned. She asked for an injunction to prevent the continuance of the nuisance and for damages. Under the defendant's objection and exception she was allowed to prove the loss of rental value to the time of the trial, and then the cost of repairing the injury done and putting the dwelling into a condition to be unaffected by the proximity of the ice, and in addition to that, the permanent depreciation. No instructions were given to the jury limiting or guiding their action upon this evidence, but they were left to determine the damages from the proof given, and in their own way. They rendered a verdict for the plaintiff of $1,000. The court refused to grant an injunction and gave no equitable relief, but allowed the judgment for damages to stand. That judgment must be reversed for the error in admitting evidence relating to the damages. Although the complaint demanded equitable relief, no case for it was made, and none awarded. The injury complained of was by no means permanent in its character, 1 Reversing 16 N. Y. State Rep., 449.

and resulted from the use of the defendant's building as an ice house and the melting of the ice therein. She might elect to discontinue that use, and if equitable relief had been granted would have had the option to have discontinued the nuisance and so to have prevented a permanent depreciation of value, or, continuing it, to obtain the right so to do by paying the resulting depreciation, as the court might determine. But on this trial the depreciation was proved without an award of equitable relief, and double damages may have been the consequence of the proof.

The rental value to the time of the tr.al and in addition the sum necessary to repair plaintiff's house and put it in a condition which would prevent future injury from the same cause were first shown, and their aggregate would cover the total damages possible to be sustained. When to that permanent depreciation is added, damages are given for what cannot occur. The cost of prevention and the result of continuance cannot both be given. The award of the one must necessarily exclude the other. We cannot know how the jury arrived at their verdict, and it may have been influenced by the erroneous admission of evidence, and so there must be a new trial upon which, according as the court shall find the facts, either the legal or equitable rule of damages must prevail, but not both.

The judgment should be reversed and a new trial granted, costs so abide the event.

All concur.

ISABEL YOUNG, by Guardian, App'lt, v. GEORGE W. JOHNSON, Resp't.'

(Court of Appeals, Filed October 7, 1890.)

1. ASSAULT-CRIMINAL-EVIDENCE.

On a trial of an action for criminal assault it is proper to ask a physician whether, in his opinion, pregnancy would probably result from first intercourse in a case where the female had been ravished and the act accomplished against her will.

2. SAME-PROOF OF ACTS OF INDECENT FAMILIARITY WITH OTHERS.

It is admissible to show that plaintiff at a period prior to the alleged assault and to the time when she became pregnant, had been guilty of acts and conduct towards other men which were dangerously familiar and imprudent.

3. SAME-SUBSEQUENT RELATIONS OF ACCUSED AND ACCUSER.

It is allowable for defendant to prove that the day after the alleged outrage plaintiff rode with him to a place some miles from her home; that she some time after visited at his house; that she frequently conversed with him after the alleged assault, and ate at the same table with him on at least one occasion.

4. SAME.

It is not error for the court to refuse to allow plaintiff, in rebuttal of the above testimony, to call witnesses to show that she was a person of good moral character in the community where she lived, according to the speech of people.

5. SAME-CREDIBILITY OF PLAINTIFF AS WITNESS.

It is proper for the court to instruct the jury that the fact that plaintiff 1 Affirming 11 N. Y. State Rep., 590.