31 N.Y.S. 537 | N.Y. Sup. Ct. | 1894
This action was brought to obtain an injunction restraining the defendants from the further maintenance and operation of the defendants’ elevated railway in front of premises on Trinity Place, together with damages for the maintenance and operation of said railroad in the past. The plaintiff acquired his title to the premises on or about the 29th of March, 1889, by a deed which contains these words:
“Damages to said premises arising by reason of the elevated railroad as now constructed and operated in front of said premises have been reserved to the Western Union Telegraph Company, a former owner.”
The reservation referred to was in the following language:
“The party of the first part hereto [the petitioner] reserves all claim or right of action against the Metropolitan and Manhattan Elevated Itailroad Companies, or either of them,, for any and all injury or damage done to the aforesaid property, or to the value or uses thereof, in the past, present, or future, by reason of the construction and operation of the elevated railroad in front of said premises as they are now constructed and operated.”
The appellant presented its application to the court to be made a party to the action, and in its petition alleged facts which it is claimed would entitle the petitioner, if it were necessary, to a reformation of these deeds by the insertion of further language reserving to the petitioner any sum of money that might be appraised or agreed upon, under the power of eminent domain, as compensation for the extinguishment of the claims and rights of action above mentioned. The petition further represented that, by reason of the fact that the easements taken by the defendants were inseparable from the land to which they were appurtenant, the legal title thereto had passed to the plaintiff, subject, nevertheless, to the said reservation, and were held by him in trust for the petitioner, to the extent necessary to carry into effect the intent of said reservation; that plaintiff repudiated the said trust, and refused to recognize the interest of the petitioner in the subject of the action, and was acting in hostility thereto; that petitioner was thereby exposed to irreparable injury, from which no adequate relief could be obtained by a separate action. The prayer of the petition was that the petitioner be made a party plaintiff in the action, and control the prosecution thereof, and receive the fruits thereof, or, in the alternative, that petitioner be made a party defendant, and have leave to interpose an answer, and to seek such relief against the other parties to the action, in respect to the subject-matter thereof, as in law and
It is conceded by the counsel for the appellant that the petitioner has no cause of action by itself against the defendants for the damages sustained by the erection and operation of their elevated railroad, by reason of the reservation contained in the deed above referred to; but it is urged that the plaintiff in this action, having taken title with notice of such reservation, took the same subject to a trust to enforce the petitioner’s claim for damages, which was reserved. It seems to us that there are several difficulties in the way of the establishment of the petitioner’s claim upon any ground whatever. It has been-distinctly held that these easements cannot be severed from the principal estate so as to form the basis for the establishment of any right. It has been further held, as is conceded by the appellant, that such a reservation as was contained in the appellant’s deed left no right of action in favor of the grantor in the deeds containing such reservation. It is a well-established rule in our jurisprudence that an action must be brought in the name of the real party in interest, and the fiction of one party bringing an action in his own name to the use of another is no longer permitted. Yet the necessary result of the appellant’s contention is that the plaintiff is to maintain this action to his use, as the real party in interest. If the appellant’s contention is correct, it is the proper plaintiff, and the present plaintiff is not. 2iow, it admits that it has no cause of action, as against the defendants, because of its conveyance of the premises to which the easements forming the subject-matter of this action are appurtenant; and this position is emphasized by the admission of the appellant that adequate equitable relief by the recovery of permanent damages cannot be had except by tendering to the railway companies a clear legal title to the easements taken. Now, where in the contract of any of the predecessors in title of the plaintiff is there any obligation upon their part to convey anything to anybody at the request and dictation of the appellant? There is no such agreement. The appellant relied upon its reservation, and such reservation imposed no duty upon its grantee. Its grantee got that which was granted, which seems to have been the substance, and the appellant has reserved that which has proven to be the shadow; and now it seeks to clothe this shadow with a material body by compelling its grantee to do something which he has nowhere covenanted or agreed to do. Our attention is called to the case of McGean v. Railway Co., 133 N. Y. 9, 30 N. E. 647. But that seems to have no bearing upon the case at bar, because the sole ground upon which the plaintiff in that case had any standing in court or any claim for damages was because he owned the title to the center of the street, and expressly excepted from the grant the lands contained in the street. The court expressly stated that the grantee of the plaintiff took his conveyance with a reservation to the plaintiff of the fee of the street and the permanent damages to the adjoining property; and that presumably, to the extent of the rights thus reserved, the cost of the