[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 178 The strip of land in question was near the easterly terminus of the Tonawanda railroad, and since its acquisition for railroad purposes a track has been maintained thereon which has connection with the main track of the defendant's railroad. In April, 1889, the defendant and Arthur G. Yates of the city of Rochester, entered into an agreement whereby the defendant made a lease to Yates covering the land in question and other lands in the same vicinity for a term of fifteen years from the first day of May, 1889, at an annual rental payable quarterly. It was provided in the agreement that the land covered by the lease was to be used only for a coal yard and trestles for the purpose of receiving and handling coal transported over the railroad of the defendant. It reserved the right to terminate the lease at any time upon giving six months written notice; and Yates covenanted not to assign the lease or underlet the premises or any portion thereof. It agreed to furnish the ties and iron rails necessary for the use of the trestle and lay the tracks and keep them in repair, and he agreed to make all repairs in and about the trestle at his own expense, and to furnish the materials to construct the same, and at all times during the continuance of the lease to keep the same in good repair and condition for use. It reserved from the lease "the use and control of the said track and trestle for all the purposes of a railroad, together with the strip of land twenty-five (25) feet in width adjoining the Erie canal, acquired for the purposes of said railroad." *Page 180

It appears that under this agreement Yates went into possession of the land, built the trestle thereon by raising the tracks, built a shed over the tracks inclosing the tracks and trestle, and made coal bins or pockets beneath the same; that he had the sole and exclusive use of the land and trestle for his coal business; that no one else except the defendant and its agents and employees and persons having business with Yates could have any access to the track and the land, and that the only use the defendant made of the land and the track thereon was for the delivery of coal to Yates. Substantially upon this evidence the court below held that the defendant had abandoned the use of this strip of land for the purposes of its railroad; that the land had, therefore, reverted to the plaintiff, and that he was entitled to recover the same in this action.

The interest of the defendant in this strip of land was a permanent easement for the uses and purposes of its railroad. (Heard v. City of Brooklyn, 60 N.Y. 242; Miner v. N.Y.C. H.R.R.R. Co., 123 id. 242; Weston v. Foster, 7 Met. 297;Proprietors of Locks, etc., v. N. L. Railroad Co.,104 Mass. 1.) While this easement exists the defendant is entitled to the exclusive use, possession and control of the land, and the owner of the fee has no right to use, occupy or interfere with the same in any manner whatever. Under the general laws of the state railroad corporations are bound to keep their tracks guarded and protected by fences and cattle guards, and there is no right of crossing by the owners of adjoining property except at farm crossings, to be built for the use of adjoining farm owners. While it has been held in some cases that the owner of the fee, subject to the railroad easement, has some right to use the land taken, not inconsistent with the easement, the better view of the law, supported by the greater weight of authority, is that the use of the railroad company while the easement exists is exclusive of the owner of the fee. (Pierce on Railroads, 159, 160, and cases cited; Mills on Eminent Domain, § 208; Hazen v.B. M. Railroad Company, 2 Gray, 574; Munger v. TonawandaR.R. Co., 4 N.Y. 349.)

We think the evidence does not show that the defendant had *Page 181 abandoned this strip of land, or its easement therein, so that the owner of the fee became entitled to the possession thereof.

An easement may be abandoned by unequivocal acts showing a clear intention to abandon, or by mere non-user, if continued for a long time. The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment. (Washburn on Easements, 2d ed. 631,et seq. and cases cited; Hoggatt v. Railroad Company, 34 La. An. 624; Curran v. City of Louisville, 83 Ken. 628;Proprietors of Locks, etc., v. N. L.R.R. Co., 104 Mass. 1;White's Bank of Buffalo v. Nichols, 64 N.Y. 65; Crain v.Fox, 16 Barb. 184; Snell v. Levitt, 110 N.Y. 595.) Under these authorities the acts claimed to constitute the abandonment of an easement must show the destruction thereof, or that its legitimate use has been rendered impossible by some act of the owner thereof, or some other unequivocal act showing an intention to permanently abandon and give up the easement. Here there were absolutely no acts of the kind mentioned. The defendant could put an end to the lease to Yates at any time by giving the six months notice. It continued to use the track passing over the land in question for railroad purposes, to wit, the transportation of coal to Yates, and it actually reserved the use and control of the track and land for all railroad purposes. I can assert with great confidence, after a diligent examination of the books, that no authority can be found holding that upon such facts an easement has been absolutely lost to the owner thereof.

The court below, therefore, erred in ordering judgment for the plaintiff, absolutely taking this land from the defendant.

But the learned counsel for the plaintiff asks that instead of reversing the judgment we modify it so as to give judgment to the plaintiff, subject to the proper easement of the defendant. This we ought not to do. The action was commenced, tried and decided solely on the ground that the defendant had forfeited its rights in the land in question. Yates is not a *Page 182 party to the action, and he has not been heard. We ought not to pass upon his rights under his lease without hearing him. Upon the plaintiff's theory of his rights, Yates is a necessary party to this action, and before the new trial he should be made a party. (Code, §§ 1502, 1503.) The case of Proprietors of Locks,etc., v. N. L.R.R. Co. (supra) is not an authority for the modification asked, although such a judgment as the plaintiff now wants by the modification was there given. There, the lessees, as I infer, were actually represented in the litigation. The facts were all agreed upon without reference to the pleadings or the parties. There it was stipulated that if "the demandants have any cause of action against the railroad corporation or their lessees, or either of them, such judgment is to be rendered in this action against the tenants as the demandants would be entitled to recover upon the facts, in any form of action against the tenants or either of their lessees."

Besides, we are not now, upon the evidence appearing in this record, prepared to pass upon the rights of Yates under his lease and the power of the defendant to use this land substantially as it now uses it. The matter is not free from doubt, and we leave it to be determined upon fuller argument and a more careful presentation of the facts when the proper parties are in court, simply calling attention to the following authorities, in addition to those above cited; Morawetz on Corporations, § 190;People ex rel. Fairchild v. Preston (140 N.Y. 549); W.U.Tel. Co. v. Rich (19 Kansas, 517); Illinois Cent. R.R. Co. v. Wathen (17 Ill. App. 582); Grand Trunk R.R. Co. v.Richardson (91 U.S. 454); Carolina Cent. R.R. Co. v.McCaskill (94 N.C. 746); Peirce v. B. L.R.R. Co. (141 Mass. 481); Hooper v. Bourne (2 Q.B. Div. 339); Mulliner v.Midland R. Co. (11 Ch. Div. 611); Reformed Church v.Schoolcraft (65 N.Y. 134); In re N.Y.C., etc., R.R. Co. v.M.G.L. Co. (63 id. 326); Strong v. City of Brooklyn (68 id. 1); In re N.Y.C., etc., R.R. Co. (77 id. 248); In re theApplication of the Staten Island Rapid Transit Company to AcquireLands (103 id. 251). *Page 183

Our conclusion, therefore, is that the judgment should be reversed and a new trial granted, costs to abide event.

All concur, except FINCH, J., not sitting.

Judgment reversed.