189 A.D. 703 | N.Y. App. Div. | 1919
This action was brought by the plaintiff, Maria A. O’Brien, in ejectment, to recover possession of a strip of land 800 feet long and 100 feet wide at the railroad station on the line of the Harlem Eiver and Port Chester railroad in the county of Bronx, city of New York.
It is alleged by the plaintiff, and she has recovered upon the claim, that she is' entitled to the possession of the parcel in question as the result of forfeiture arising from the violation by the defendants of a condition subsequent under a deed of said parcel whereby the same was granted to the defendant, the Harlem Eiver and Port Chester Railroad Company, by plaintiff’s father, one Patrick Dunican, and his co-owner, one John Halloran, in 1873. The action was tried at Trial Term before the court and a jury, and at the close of the evidence the learned justice presiding upon the trial held that the plaintiff was entitled to the immediate possession of an undivided one-sixth of the parcel in question and directed a verdict in favor of the plaintiff awarding her the possession thereof, and submitting to the jury the sole question of the amount of damages to be awarded to plaintiff for withholding from her the possession of the land. In accordance with such direction the jury returned a verdict awarding the plaintiff the possession of the undivided one-sixth of said premises, deducting a 100-foot strip occupied for public highway purposes, and assessed plaintiff’s damages at the sum of $666.67. Counsel for the defendants moved to set aside the verdict upon the grounds stated in section 999 of the Code, which motion was denied, and judgment was thereafter entered in favor of plaintiff and against defendants, awarding to plaintiff the possession of an undivided one-sixth of said premises, together with the sum of $666.67, damages for withholding the same, and for the costs of the action. From said judgment and order the defendants bring this appeal.
The land in question was a part of a tract of 104 acres conveyed to plaintiff’s father, Patrick Dunican, and to John Halloran, by deed from Thomas Tone, bearing date May 1, 1873. By said deed Tone conveyed to the grantee Halloran therein named an undivided two-thirds of the said 104-acre parcel, and to plaintiff’s father an undivided
“ To Have and to Hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, their successors or assigns, forever, but only on the condition that the above described land shall be used for railroad purposes, to wit: for the purpose of a Passenger and freight depot and depot grounds and for the approaches thereto and in case at any time hereafter the premises shall cease to be used for the purposes aforesaid then the title thereto shall revert to the said parties of the first part their heirs and assigns.”
Halloran and Dunican, having conveyed this parcel to the railroad company for the purposes mentioned and defined in said deed, thereafter proceeded to divide up the remainder of their tract into building lots having a frontage of twenty-five feet to each lot, and thereafter sold and disposed of the same. It appears that in the conveyance thereafter made by Halloran and Dunican, the grantors expressly reserved the aforesaid parcel theretofore sold and conveyed to the defendant. Since receiving title to the tract in dispute herein, the railroad company has occupied said premises for various purposes. It erected thereon a passenger station, and it also erected at or near the easterly end of the 800-foot strip of land a two-story frame building, now used as a storehouse. It also erected on said premises westerly of the storehouse a one-story frame building originally intended to be used as a power house for generating electricity to be used in raising and lowering a nearby drawbridge. It appeared at the time of the trial that the power house was not in use for the
It is the contention of the plaintiff and upon which she has obtained judgment ejecting the defendant from said premises that such use of the property as was made by the defendant exceeded the purposes for which the premises were conveyed. The evidence shows that the passenger station erected on the premises by the defendant was at the time of the trial in active use. The plaintiff asserts that by using the premises for the laying of tracks of defendant’s railway, for the erection of various buildings, in addition to the passenger depot, the defendant exceeded its authority under the deed which it received from plaintiff’s father and his co-owner, Halloran, and plaintiff seeks to avail herself of the reversion clause contained in said deed, that the premises should “ revert to the said parties of the first part their heirs and assigns,” because the premises in question had ceased to be used for the purposes mentioned in said deed.
The appellant claims, on the other hand, that the premises were conveyed generally for railroad purposes, and that in laying its tracks and making the erections complained of on the property the defendant was at all times within its rights
In making the erections complained of, to some extent, at least, the appellant clearly exceeded any right or authority conferred by said deed. It was the plain intent of the grantors to convey to the defendant, appellant, the premises in question upon the condition that the land should be used for the railroad purposes expressed in the deed, to wit, for the purpose of a passenger and freight depot and depot grounds and for the approaches thereto, and it would seem that any use of said land by the defendant, appellant, other than for the purposes in the deed specifically prescribed, was unwarranted and in excess of the rights granted to it by the deed in question. By no possible stretch of imagination can it be said that to the defendant, appellant, was granted the right to erect storehouses, machine shops, power houses, and other buildings which it appears have been built thereon since defendant obtained title to the land in question. Nor would it seem that the defendant was authorized to lay its railway tracks thereon. However, it is not necessary upon this appeal to determine whether or not the defendant railroad company exceeded its authority in making such erections. The question here is whether, under the deed to defendant, the premises conveyed have ceased to be used for the purposes
Respondent’s position is, and the court has held, that by the unwarranted erections on the land the grantee forfeited all right thereto. I am unable to see the force of such contention. It does not seem to me that by reason of doing more than it was permitted to do under its deed, the defendant necessarily forfeited title to the premises. The deed provided that “ in case at any time hereafter the premises shall cease to be used for the purposes aforesaid, then the title thereto shall revert to the said parties of the first part their heirs and assigns.” In other words, it was the plain intent of the parties that when the premises should cease to be used for the purpose of a passenger and freight depot and depot grounds and for the approaches thereto, then the premises should revert to the grantors, their heirs and assigns. Such a contingency has not, as yet, arisen, as the premises are still occupied by the grantee for its passenger depot and depot grounds and for the approaches thereto.
I think the plaintiff has entirely mistaken her remedy, and that under existing conditions ejectment will not lie. The premises have not as yet ceased to be used for some of the purposes described in the deed, and until the premises have ceased to be used for such purposes there can be no-reversion of title.
The judgment and order appealed from should be.reversed, and plaintiff’s complaint dismissed, with costs.
Clarke, P. J., Lattghlin, Smith and Philbin, JJ., concurred.
Judgment and order reversed, with costs, and complaint dismissed, with costs.