149 N.Y.S. 71 | N.Y. Sup. Ct. | 1914
Plaintiff' brings these -actions to restrain the defendant from constructing fences between her lands "and those of the defendant whereby, as she alleges, her rights of way over the lands of the defendant are obstructed.
In December, 1853, Russell S. Hill, then owning a parcel of land in the village of Canton, N. Y., hounded westerly by Park street and on the other three sides by the property of other parties, conveyed out of the central part of the same a rectangular parcel eighty feet in width to the Potsdam and Watertown Railroad Company for a right of way. This parcel did not extend to Park street. By conveyances and leases it has passed to the defendant. Later the railroad company by purchase from one Symonds continued its right of way to Park street from the parcel of land purchased of Hill. By his conveyance to the railroad company Hill divided his lands leaving one parcel to the southeasterly of the railroad track isolated from his other lands and without any way from the same. This parcel of land for convenience will be referred to hereafter as the “ isolated lot.”
In the year 1855, the Pbtsdam and Watertown Rail
With the exception of the space occupied by this track, no use has been made of the right of way by the railroad company. In the same year, that the company commenced the construction of its track, Hill erected a dwelling-house on the “ isolated parcel.” At a later period and about 1861, Hill erected a second house on the “ isolated parcel” easterly of the one first built by him. This latter house with a parcel of land surrounding it was conveyed by Hill about 1865 to plaintiff’s father, J. Baldwin Livingston, and which, by descent, has come to her. Later this house was moved farther westerly on the ‘ ‘ isolated lot ’ ’ and about 1880 Livingston built a new house on his lot purchased of Hill.
From about the time of the sale to the railroad company, Hill used as a means of access to and from Ms “ isolated lot ” to Park street a way on the south side of the strip of land he had conveyed to the railroad company and -the parcel which the latter had purchased of Symonds. He used this as a road or way as was convenient and desired for teams and foot passengers in going to and from his house to Park street so that it became somewhat well defined and continued so to the time of the commencement of these actions. Hill and those succeeding him also used from about 1855, a foot-path directly across the railroad right of
From the time of the construction of the house on plaintiff’s lot in 1865 the plaintiff and her predecessor in title maintained a fence in front of that property, with gates, opening on the railroad land and she and those occupying the house used the railroad right of way from it to Park street passing in front-of the Hill house and over the way used by him. This way was used by foot passengers and teams in connection with plaintiff’s lot in the same manner that it was used for access to the Hill property to the westerly. The plaintiff and her predecessor in title from about the same period also had a path crossing the railroad tracks and right of way directly in front of her lot with steps and plank which was maintained and used the same as the path in front of the Hill lot. The occupants of the three lots in which the “ isolated lot ” was divided
During the years from 1855 the public also used for a short cut" the railroad right of way to pass from Park street to Main and Jay streets, the latter streets being northeasterly of the premises in question, using for that purpose in the main the southerly side of such right of way and from the “ isolated lot” westerly the same way used by Hill and his grantees.
The extent to which the paths across the tracks were used by those occupying the “isolated lot” is not clearly shown in the evidence nor does it clearly appear as to the extent the way was used from the “ isolated lot” to Park street. The evidence, however, discloses that these ways were well defined and showed
Upon these facts we turn to a consideration of the rights of the parties. The plaintiff contends that there was a way by necessity reserved to Hill and which has passed to her over the premises granted by him to the railroad company and for that purpose invokes the rule of law that if A conveys land to B, leaving other land of A to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant. It is not necessary to consider here the reason for this rule. It has been too long settled to need discussion. Wells v. Garbutt, 132 N. Y. 430; Dales v. Caas, 5 Wkly. Dig. 400; Wilmurt v. McGrane, 16 App. Div. 412; Jones Ease., § 306; 14 Cyc. 1176. The fact that the grantee is a railroad corporation, it has been held, does not change the rule. “ When a sale is made of a narrow strip of land through the center of a farm, the presumption that the parties do not intend to leave the grantor with no means of reaching or using the land beyond the strip sold is certainly as strong as when land is sold in other shapes which would require a way of necessity of much greater length.” New York & N. E. R. R. Co. v. Railroad Coms., 162 Mass. 81-84, 38 N. E. Rep. 27.
The authorities, however, limit the rule in its application to cases only where the burden is apparent, continuous and strictly necessary for the enjoyment of land retained by the- grantor. Outerbridge v. Phelps, 58 How. Pr. 77; Pettingill v: Porter, 8 Allen, 1, 85 Am. Dec. 671; Jones Ease., § 315; Buss v. Dyer, 125 Mass. 287-291; Wells v. Garbutt, supra. The fact was and this must have been apparent to the grantee when it purchased its right of way of Hill, that the one parcel of land of which the plaintiff now owns a
Plaintiff’s right of way claimed across the tracks of the defendant’s road must also fail so far as such claim is based upon a way by necessity through her grantor in title for reasons that we will now consider. As we have seen, the way claimed by plaintiff across the railroad tracks is an entirely different way from that used in connection with the Hill house. The necessity for a way must exist at the time of the conveyance and to the whole tract granted. If this necessity did exist, Hill exercised his right to select the way, and when this was done that right was exhausted. By dividing the lot and conveying away the different par
Attention is called to Treadwell v. Inslee, 120 N. Y. 458, 465; Parker v. Foote, 19 Wend. 308; Lewis v. New York & H. R. R. Co., 162 N. Y. 202; Ward v. Warren, 82 id. 265; Hammond v. Zehner, 21 id. 118; Jones Ease., § 186, and kindred decisions holding, in effect, that the visible, open, notorious, continuous and uninterrupted use of a way for twenty years raises a presumption that the use was under a claim of right and that the burden is upon the party alleging that the use has been by virtue of license or permission to prove that fact by affirmative evidence. These cases undoubtedly state the law correctly under the facts in each particular case. It is sufficient to say, however, with reference to these cases that none of them represent a case where a way is claimed by prescription over the tracks of a railroad company located and in use in a country district but they are cases where the ways claimed were over property adapted to private purposes. The presumption noted, however, is not conclusive as against other and further facts. It serves only to shift the burden to the owner of the title to show the true character of the use and, where there are other facts tending to justify a different inference and leading fairly to a contrary conclusion, they are to be taken into account. Colburn v. Marsh, 68 Hun, 269; American B. N. Co. v. New York El. R. Co., 129 N. Y. 252.
The diligence of counsel and my own effort have not enabled us to find a reported case in this state exactly parallel with the one at bar. In Concklin v. N. Y. C. & H. R. R. Co., 149 App. Div. 739, there are many sug
In Keller v. Erie R. R. Co., 183 N. Y. 67, the court said: “ I think that it was not within the power of the defendant to permit, or to suffer, persons, not in its employment, to walk upon and along its tracks at a place where there was no highway and but an intersection of railroad tracks, and that no length of acquiescence in their doing so, under the circumstances of this case, could create a right of user, by license, or by sufferance. This ought to be clear from section 53 of the Railroad Law (Laws 1892, ch. 676), which was intended to protect the traveling public, as well as the railroad companies. It reads that ‘ no person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.’' It is not easy, if at all possible, to see how any right, as by license, could be acquired through acquiescence to do something which was so clearly in violation of the statutory inhibition. An act expressly prohibited by the public statute is, in its inception and always must continue to be, unlawful.”
While that was a negligence case, yet the court was considering, in the expression of its views, the right
In Massachusetts, on the contrary, it has been repeatedly held that a right of way across the tracks of a railroad company may be acquired by a private person by prescription and against a statute similar to that referred to prohibiting persons walking or standing on any railroad tracks. Turner v. Fitchburg Ry. Co., 14 N. E. Rep. 627, 145 Mass. 433; Gay v. Boston & A. R. Co., 6 N. E. Rep. 636, 141 Mass. 407; Inhabitants of Deerfield v. Conn. Riv. R. Co., 11 N. E. Rep. 105, 110 (Mass); Fitchburg R. Co. v. Frost, 16 N. E. Rep. 773, 147 Mass. 118; McCreary v. Boston & M. Ry. Co. (Mass.), 11 L. R. A. 359.
In Sapp v. N. C. Ry. Co., 51 Md. 115, the facts showed that for a period of twenty-five years, persons, including the plaintiffs, walked to and from their houses, which fronted on the defendant’s railroad, on the company’s ground alongside of the company’s tracks as their foot-way when going to and from their houses to North avenue and that such user had been continuous and uninterrupted during that period and had never been interfered with by any one connected with the railroad. No other foot-way from the house was feasible and the same was used as a right and not as a favor from the company. It was held by the court that a railroad corporation'had no power or right to grant an easement of foot-ways for persons to walk along their tracks or by the side of them. That if such power existed and were exercised, it would be subversive of the very purposes for which railroad charters are granted.
In the case under consideration, I do not deem it important to determine whether a private way may.be
To determine in the present case whether the use made of the right of way was adverse, although eoncededly for the prescribed period and open and notorious so far as the plaintiff and her grantor are concerned, we must consider the parties, the nature of the use made of the railroad property and of plaintiff’s alleged rights of way, with all the facts and incidents which challenge the character of the claim to adverse use and the claim of right to the ways in the plaintiff.
It is a matter well understood that in the early days when this right of way was acquired, there was no considerable demand for a railroad in the territory through which it passed. Facilities at the beginning were provided to meet the public demand as needed from time to time. It and other agencies have developed the country through which it passes so that there is increased demand for its use and its development and it may well be that in the near future more tracks will be needed over its right of way.
It would be unreasonable to hold that the mere nonuser of a part of a railroad location side by side with the part in actual use could be acquired by a citizen using the same even for a right of way because they had enjoyed the" permissive and. not a hostile use of such part of the railroad company’s lands. The construction of the track or tracks upon a part of the location throughout its length is the best assertion of right to the entire width that could in the nature of railroad construction, operation and development be demanded.
The defendant and its predecessors in title have never, so far as the proof shows, disclaimed owner
The plaintiff’s use of the ways so far as it was exercised was undoubtedly" visible, open and notorious, in that she -and others passed openly over or along the tracks of the company from time to time. Such use would undoubtedly have arrested, and should'have arrested, the attention of an individual owner of property, but it might well be questioned whether it would or should be held to attract the attention of railroad officials charged with the duties of looking after and protecting hundreds of miles of railroad. Such use might in the ordinary case between individuals be held to impart knowledge, but in the present case I am of the opinion that it is not sufficient. Not only do the facts and the situation presented support the theory of a lack of knowledge of the use of the ways by plaintiff but that the use was of such a character as is commonly made of railroad property in the country without any thought or question that it will ripen into a claim. If there was no such visible, open or notorious use of the ways by plaintiff as against the defendant as to create the presumption of knowledge, then the plaintiff to succeed must establish that the use and claim of right which she makes was actually known by the railroad officials (Treadwell v. Inslee, supra; Lewis v. N. Y. & H. R. R. Co., Supra), and this proof is wanting.
To acquire a way by prescription against a railway company over its right of way situate in country districts, there should be most distinctive acts indicating hostile use under a claim of right for the required period and such acts should be sufficient to notify the company of the use and the claim of right or some
Judgment accordingly.