142 N.Y.S. 1045 | N.Y. Sup. Ct. | 1913
In my judgment the facts of this case bring it within the rule laid down in Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978.
The burden was continuous within the meaning of the law. It differed from an ordinary right of way or passage which is enjoyed only at intervals, leaving in the interim no visible sign of its existence in that it was a way which was permanently established upon one part of the property for the benefit of the other. It was not only a right of passage but included an artificial structure for that purpose permanent in character; in principle it was similar to the burden of ditches and drains which are consistently held to be continuous easements. It was specifically constructed and appropriated for the purposes of its use, and, in the intervals between the passage of cars thereover, its structure and the purpose for which it was there existing and located was visible, to all men. Parsons v. Johnson, 68 N. Y. 62-66, 23 Am. Rep. 149; Outerbridge v. Phelps, 13 Abb. N. C. 117; 2 A. & B. Encyc. (2d Ed.) 424; 14 Cyc. 1169, 1170.
Plaintiff’s land is substantially covered by an extensive milling plant used for the manufacture of flour and other commodities for the wholesale trade. It was built and equipped at an expenditure of about $125,000 and for that express purpose. It is true that, because of its location upon the streets, the mill could be used to some extent without the switch tracks; but, for the purposes of its construction and equipment, the evidence shows it to be practically useless without them. This situation prevailed at the time of the deed by the defendant’s grantor and has continued from then till now.
0Judgment is directed for plaintiff, with costs. Proposed findings may be submitted to me for signature.