175 N.Y. 72 | NY | 1903
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Whether we hold the instrument in question, to which the plaintiff affixed his seal and signature, to be a license, or an agreement for an easement, is not very material to the decision, in my opinion; for the reason that, in either *80
holding, it was quite inadequate to confer a right to make use of the street for railroad operations to an unlimited extent. If it should be construed to be a license, which creates no title in the licensee and which, in law, is revocable by the licensor, the fact of performance by the licensee under its authority, in the expenditure of large sums of money in constructing its railroad plant, would move a court of equity to protect the latter's rights against revocation. (Wiseman v. Lucksinger,
I reach the conclusion that, the location, or route, of the proposed railway being indefinitely described upon the map and by the plaintiff's agreement, the principle of construction, which obtains in the cases of grants of easements made in general terms, should govern here and, applying it to the established *83 facts, the court should hold that the track, as located in the center of Second street, was unchangeable and that the railway could not be added to upon the plaintiff's land without his further permission, or the acquisition of the right through statutory condemnation proceedings. (Washburn on Easements, 225, 240; Onthank v. Lake Shore M.S.R.R. Co., supra; Jennison v.Walker, 11 Gray, 423.) When the railroad company undertook to change, and to add to, its tracks, in the ways described, it became a trespasser as to the plaintiff. It rendered itself liable to be restrained in its operations and to a recovery of damages for any injuries sustained. So far as the ordinary and necessary operation of its railroad upon the one track through the street would cause annoyance, or constitute a nuisance, affecting the enjoyment and use of his property, the plaintiff could not complain. No recovery of consequential damages could be had, which were occasioned by the injuries resulting therefrom. They would be the incidents of the right granted, as to which the defendant would be released. But, so far as it was a trespasser upon plaintiff's land, the defendant could be compelled to acquire further easements therein, if needed for its corporate purposes, by purchase, or through condemnation proceedings, under the penalty of being restrained in its operations, if it failed to do so; and, so far as damages had been sustained through defendant's wrongful acts, to the extent that they may be separately established as resulting therefrom, they can be recovered by the plaintiff. That any appreciable damage resulted from the slight change in the location of the passenger and freight depots is not apparent upon the proofs. They were necessary incidents to the operation of the railroad as authorized.
For these reasons, I advise a reversal of the judgment and that a new trial should be ordered, with costs to abide the event.
PARKER, Ch. J., MARTIN, CULLEN, WERNER, JJ. (and BARTLETT, J., in result), concur; HAIGHT, J., absent.
Judgment reversed, etc. *84