123 N.E. 145 | NY | 1919
This is an action for an injunction to restrain the obstruction of a highway.
Early in the nineteenth century, Pearl street in the village of Evans Mills was opened to public travel. Its course lay east and west. The right of way of the Potsdam and Watertown Railroad Company, the defendant's predecessor, was acquired in 1854, and the tracks, running north and south, crossed Pearl street at right angles. At first, there was no interference with public travel. The railroad, in building its roadbed, lowered the grade two or three feet, but planks were laid between the rails, and a wooden bridge supplied a means of descent from the roadway to the grade. In 1870, there was a change. On the west side of the tracks, the defendant built a freight house, which spanned the street from side to side, and barred travel to the west. The crossing remained, but there was no highway beyond. In 1891, there was another change. The defendant tore *112 up the planks between the rails, and demolished the bridge. Since then, the crossing has been impassable or substantially impassable for vehicles or teams. If any use continued, it was by pedestrians only. A few feet north of the freight house is the railroad station, and back of the station are stores and a hotel. Pedestrians passing through Pearl street continued to cut across the tracks to reach those points of destination. In doing so they made a beaten pathway down the bank. After descending to the tracks, they followed no defined course. Some went straight across, and then along the tracks to the side. Others, and probably most, crossed the tracks diagonally, and thus to the station or beyond. All exposed themselves to the risk of injury from passing trains. In 1909, the defendant, anxious to avert this danger, built a wire fence across Pearl street along the easterly side of its right of way. The plaintiff complains of that obstruction. The trial judge permitted the defendant to bar the approach of vehicles, but required it to construct a gate or opening for the convenience of pedestrians. The Appellate Division affirmed by a divided court.
We think that Pearl street has been discontinued as a highway between the lines of the defendant's roadway. Section
That there was no such travel here is plain. It becomes still plainer when we recall the provisions of section
The judgment should be reversed, and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., COLLIN, CUDDEBACK, POUND, CRANE and ANDREWS, JJ., concur.
Judgment reversed, etc.