195 N.Y. 398 | NY | 1909
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I think the determination made below of the question of priority of liens, as between the appellant's judgment and the corporate mortgage to the plaintiff, is correct. There is no question but that subsequently-acquired property may be subjected to the lien of a mortgage, (Bear Lake R.W.W. Irrigation Co. v. Garland,
When we come to consider the question of convenience, or necessity, we reach a question of fact which has been conclusively determined by the unanimous affirmance of the findings of the referee. He has found as facts that the hotel and other structures were "maintained for the business of the railroad to attract custom"; that "the land upon which these stand, and all adjacent property, are needed for their purposes" and that the company uses its upland and the land under water granted by the state "in connection with its terminal." He finds that *403 the "grants of land under water, acquired after the execution of the mortgage, are all necessary, proper and convenient for the maintenance" of the railroad and business of the company. The claim, that the location of these findings in the referee's report made them legal conclusions, is without force. If, in formulating his report, the referee commingled facts and legal conclusions, it is immaterial. A finding of fact cannot be made a conclusion of law by labelling it as such. What the referee was to do was to report the facts upon the question with his opinion.
It is settled, therefore, that the acquisition of the land under water was convenient and necessary for the profitable maintenance of the railroad and, in view of the peculiar character of the business sought to be built up, it is evident that the control of the land is important, if not essential, to the company; in order, not only, that the facilities, or terminal attractions, may be augmented, but that the land shall not come into the hands of those, who might be unfriendly, or whose management might affect unfavorably the character of the place.
There is a further consideration, which militates in favor of the plaintiff's contention, and that is that the right to acquire the land under the waters of the bay was appurtenant to the ownership of the upland. The land was not appurtenant to the upland and it would be incorrect to say that it passed with it as belonging to it under the term used of "appurtenance," (seeWoodhull v. Rosenthal,
For these reasons, I advise the affirmance of the judgment appealed from.
VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; CULLEN, Ch. J., absent.
Judgment affirmed, with costs.