149 N.Y.S. 262 | N.Y. App. Div. | 1914
The judgment appealed from permanently enjoined the appellant from obstructing a prescriptive right of way claimed by respondent over land of which the appellant is the lessee, the title to which was acquired by the grantor of the lessor through condemnation proceedings. In 1864 the Saratoga and Hudson Eiver Eailroad Company thus acquired a right of way for railroad purposes through the village of Coxsackie, N. Y., upon which a railroad was built which in time became the property of the West Shore Eailroad Company, and some years since was leased by that company to the appellant by whom it has since been operated. The railroad right of way divided a lot of three acres which fronted on Whitbeck street, leaving one acre thereof, which was conveyed to the respondent’s trustee in 1898, on the east side of the railroad property, wholly cut off from a highway, which could only be reached by trespassing upon lands of other individual owners, or by crossing the railroad right of way and a portion of the three-
In 1909 the appellant sought to induce the respondent to enter into a lease of the right of way, evidently that he might be estopped from claiming that he had an easement by prescription. The respondent inserted in the proposed lease a clause reserving any right which he might have to pass from the parcel to Mansion' street, and the appellant thereupon refused to accept the lease. The trial justice found among
The findings and conclusions of the trial justice are fully sustained by the evidence. It may be fairly assumed, as stated by the appellant in its brief, that as the Saratoga and Hudson Biver Bailroad Company placed this gate in the line fence, leaving the Conine lot unfenced at the street, the privilege was given by the railroad company to the owner of the one-acre parcel to pass from that property to Mansion street. Whether that right was given for the purpose of avoiding the possible claim by the owner of the one-acre parcel of a right of way by necessity across the railroad right of way and the remaining portion of the three-acre parcel to Whitbeck street, is not disclosed, but it is undisputed that the respondent and his predecessors in title have claimed and exercised the right to pass on foot and with teams from the one-acre parcel to Mansion street for nearly fifty years, and although at times some successor in title or occupancy of the Saratoga and Hudson Biver Bailroad Company has endeavored to obstruct the passage, the owner or occupant of the one-acre parcel has asserted his claim of right and forced a passage over the disputed right of way.
In confirmation of the suggestion that the right of way was
A case very much relied upon by appellant is that of Concklin v. New York Central & H. R. R. R. Co. (149 App. Div. 739), in which the appeal to the Court of Appeals was dismissed upon the ground that the Appellate Division had unanimously decided that the findings of fact were supported by the evidence and that the exceptions presented no reviewable question. (207 N. Y. 752.) In some respects that case is similar to this, but in that case the right of way claimed was along the side of the railroad premises and across the same in front of the station to the highway, and the court held that a user of grounds thrown open to the public, in connection with the use of a public or quasi-public building, was ordinarily to be considered permissive and not adverse, unless there was some distinctive act indicating a separate and exclusive use under a claim of right sufficient to notify the owner not only of the user but of the claim, of right. The court said: “The record contains no evidence of any decisive act upon the plaintiff’s part indicating a separate and exclusive use from which knowledge of a claim of right could be presumed by the respondent.” Hardly a greater contrast could exist between the facts of that case and of the case at bar, where the railroad company constructed a double gate in the line fence for the express use of the occupant of the acre parcel with his teams in passing along the east side of the Oonine lot, which lot, excepting near the street line, was much wider than the ordinary right of way of the railroad, and which evidently was not needed and certainly was not used for railroad or public purposes. Apparently during the first thirty or forty years the railroad company fully acquiesced in the use of the right of way by the owners and occupants of the acre parcel, and knowledge during the whole period of user that the use was -under claim of right was not wanting. The first objec
Appellant makes five points in its brief. 1. That the Conine lot having been taken by condemnation proceedings for public use cannot be again taken without legislative authority, and that a person traveling over a portion of the land cannot thereby acquire a greater interest than can the public. Among the cases cited is the Concklin Case (supra), in which the court held that the evidence was insufficient to create a prescriptive right of way. Several other cases are also cited which lay down the rule that no individual can gain for himself by prescription an easement on a highway, in which term the Erie canal is included. None of the cases cited, however, hold that a right of way cannot be obtained by prescription within the right of way of a railroad company, where the facts are sufficient to warrant the finding. It is said in Euling Case Law (Vol. 1, p. 737, Adverse Possession, § 56): “These principles [which prevent the acquisition of public property by adverse possession] have been most frequently invoked with respect to the right or power to acquire an adverse title to lands within the' right of way of a railroad company, and the great weight of authority is to the effect that title may be so acquired, and this is especially true as to such portions of the right of way as have not been dedicated to public use. On principle it seems that the reasons for exempting the acquisition of public highways by adverse possession are not applicable to a railroad right of way; for, even though such right of way may, in a sense, be devoted to a public service, it still remains private property the use of which is intended for private gain. Nor are sovereign rights involved.” A large number of cases in many States are cited as supporting this statement, and cases in California, Kansas and Nebraska are cited as holding otherwise. (Southern Pacific Co. v. Hyatt, 132 Cal. 240; Missouri, K. & T. R. Co. v. Watson, 74 Kan. 494; McLucas v. St. Joseph & G. I. R. Co., 67 Neb. 603.) However, in Nebraska a railroad is made a public highway by the State Constitution (Neb. Const, art. 11, § 4), while the Kansas decision was controlled by the terms of the grant made by the United States
2. Appellant’s second point assumes that the respondent accepted the lease of a right of way tendered by the appellant which was not the fact. Hence the subject need not be considered."
3. Appellant’s third point is that a complete determination of the controversy cannot be had without the presence of other parties, its claim being that the respondent was a tenant in common of the one-acre parcel, and that the other tenant in common should have been joined as a party to the action. The appellant not having taken the objection by demurrer or answer is deemed to have waived it. (Code Civ. Proc. § 499.) Furthermore, the parcel was conveyed to the respondent with the addition of the word “ trustee,” which the appellant claims was simply descriptio personae. If the respondent held the parcel in trust he had the right to bring the action without joining with him the persons interested. It appears, however, that he took the title with the understanding that he was to pay two other persons certain sums, and that he had already paid one of them in full, and under the arrangement which was made could pay the other at any time. This relation did not constitute the parties tenants in common, but doubtless gave the remaining creditor an equitable lien.
4. The fourth point in appellant’s brief is that a right of way
5. Contrary to the statement in appellant’s fifth point, the evidence seems to establish an easement over the Conine lot.
The application for a reargument should be denied. The application for leave to go to the Court of Appeals should be dismissed as unnecessary.
All concurred.
Motion for reargument denied. Motion for leave to go to the Court of Appeals dismissed as unnecessary.
See Gen. Laws, chap. 39 (Laws of 1890, chap. 565), § 32, as amd. by Laws of 1891, chap. 367, and Laws of 1892, chap. 676; Consol. Laws, chap, 49 (Laws of 1910, chap. 481), § 52.— [Rep.