14 N.Y.S. 39 | N.Y. Sup. Ct. | 1891
This action is brought to recover the sum of $820.95, the value of certain property consisting of rails, fastenings, materials, and structures placed on plaintiff’s land for railroad purposes. The plaintiff Charles B. MeFair was at the time of the beginning of this action, and now is, the owner of a life-estate in the land upon which this property was located. The other plaintiffs, who are his children, are the remainder-men, and entitled to the-fee of such land at the death of their father. The defendant corporation is-the successor of a railroad company known as the Rochester, Funda & Pennsylvania Railroad Campany, which was organized under the laws of the state of Few York, to the property, rights, and franchises of which the present-corporation defendant succeeded. On the 3d day of June, 1872, the plaintiff Charles B. MeFair entered into a stipulation in writing, by which it was agreed between him and the railroad company that certain persons should be-named as commissioners to ascertain and appraise the damages to be paid by the company to the land-owners for the construction upon these lands of the structures of the railroad. Pending the ascertainment of the damages, it was agreed that the railroad company might enter upon the lands for the purpose of constructing its railroad. In accordance with this agreement the railroad actually entered upon and took possession of the lands under this writing. On the 20th day of June, 1872, Charles B. MeFair served a notice upon the railroad to the effect that, inasmuch as the company had violated a part of the agreement by failing to ascertain the damages due to the land-owners, the company was forbidden from entering upon the premises, or from further prosecuting the construction of a railroad upon the plaintiffs’ farm. This notice, however, is of very little importance to the correct determination of this case, because on the 25th day of June, 1873, Charles B. MeFair entered
This action cannot be maintained unless it be shown that the railroad company, the predecessor of the present defendant, was a trespasser; but the facts above disclosed, which are undisputed, show that the company cannot be regarded in any legal sense as a trespasser, for it had, at the inception of its occupation of the lands and throughout such occupation, with the exception of the protest of Charles B. McNair, above mentioned, the permission of the life-tenant. The authorization given by him to the company was not only in writing, but was given for a valuable consideration. Under the first agreement the occupation of the railroad company was clearly contemplated by the minds of both parties, and in fact the writing between the parties expressly provides in terms that the railroad company might enter upon the land for the purpose of constructing its railroad, and the other written agreement was made after the company had begun making its structures, and by its terms fully recognized the right of the company to continue the occupation for the purposes named. It is not even contended by the learned counsel for the appellants that Charles B. McNair could, by any act of his own, turn the occupation of the company, which was there given with his full knowledge and consent, into a trespass, so as to enable him to maintain an action; but it is contended with some earnestness by the counsel that the other plaintiffs are not bound by the acts of their father. It is contended that, as they were not parties to the original transaction, so they are not bound or affected by anything which the life-tenant did in his own or in their behalf. It is true that the children were at that time all infants having no general guardian, but they resided with their father, the life-tenant, upon this farm. Charles B. McNair was their guardian in socage, and he continued to represent such infants and their rights, so far as they could be represented by any guardian, certainly up to the time they were 14 years of age, and probably up to the time that an actual guardian had been appointed by a court or judge.- By section 20 of 2 Rev. St. p. 153, Charles B. McNair was required to keep and sustain the houses, gardens, and other appurtenances to the lands of his wards from the issues and profits thereof, or with their-moneys in his hands, as such guardian in socage. In the case of Emerson v. Spicer, 46 N. Y. 597, the general rule is stated to be that a guardian in socage may take the lands during the guardianship. The power of the parent, under these circumstances, to permit the occupation of the lands, was terminable only either upon the arrival of the infants at the age of 21 years, or by the appointment before that time of another guardian. Emerson v. Spicer, supra, 598. As was the case of In re Norwood & M. R. Co., 47 Hun, 490, the entry on the land was with the consent of the appellant Charles B. McNair, and, so far as it was possible, it was also made with the consent of the infants. The structures being thus