36 N.Y.S. 901 | N.Y. Sup. Ct. | 1895
It was found by the trial court that plaintiff owns “the land in what is now known as ‘Canal Street’ between the center line thereof and the south line thereof.” Upon studying the maps used at the trial and the evidence produced during the progress of the trial, we are of the opinion that the finding of fact is supported by the evidence. In re Ladue, 118 N. Y. 213, 23 N. E. 465; 2 Am. & Eng. Enc. Law, p. 507, subd. 6; Syracuse Solar Salt Co. v. Rome, W. & O. R. Co., 67 Hun, 153, 22 N. Y. Supp. 321. The court properly found as matter of fact that the plaintiff, “at the time of the commencement and of the trial of this action, was, and for a long time had been, the owner in fee and entitled to the possession of the parcel of land particularly described in the findings of fact, being the same lands described in the plaintiff’s complaint.” When the state assumed to grant the lands in question, it acted as proprietor of the land, and the effect of its conveyance is to be ascertained and declared as though the grant was made by a private individual. City of Oswego v. Oswego Canal Co., 6 N. Y. 265; Smith v. City of Rochester, 92 N. Y. 473. It was competent for the plaintiff to become a purchaser of the lands, and take a deed thereof from Newell at the time he received the conveyance, and in doing so we are of the opinion he did not violate the provisions of section 130 of the Penal Code. That statute evidently was aimed to shut off purchasers of pretended titles. Joseph Newell, deceased, had title to the premises described in his deed, and he died leaving a will creating a trust, and authorized his son, George, to execute the trust, and to convey at public or private sale any lands owned by him. In making such conveyance we are of the opinion George A. Newell did not violate the statute to which reference has been made. The possession of the lands constructively was in Joseph Newell at the time of his death, and subsequently in his trustee. Bliss v. Johnson, 94 N. Y. 235. We think the conveyance executed by George A. Newell in virtue of the power given to him in the will of Joseph Newell was sufficient to pass to the plaintiff all the right, title, and interest in the premises theretofore held and owned by Joseph Newell.
Appellants call our attention to Townsend v. Corning, 23 Wend. 435. In looking into that case, we find that the facts are quite unlike those found in the case before us, and that the case does
“Where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center, it would seem, has three remedies: (1) He may bring successive suits to recover his damages; (2) he may bring an action in equity to restrain the operation of the road; or (3) when the highway has been exclusively appropriated, he may maintain ejectment. Uline v. Railroad Co., 101 N. Y. 98, 4 N. Y. 536. That in cases like this a.suit in equity may be maintained to restrain the defendant from unlawfully using the plaintiff’s land, and for damages sustained by such use, is well established by the authorities in this state.”
Upon the evidence before the court, the damages were assessed at 6 cents and the value of the property at $50.- We think the assessments are moderate, and ought not to be disturbed on account of the amount thereof.
We think no prejudicial error was committed in receiving evidence as to the value of the premises affected by the occupation of the defendants. The case before us differs widely from Roberts v. Railroad Co., 128 N. Y. 455, 28 N. E. 486, as in that case a question was held to be improper which called for an opinion of an expert “as to what would have been the value of plaintiff’s property had defendants’ road not been built and operated.” During the progress of the trial an admission was made in the following language: “The defendant admits, for the purposes of this trial, the incorporation of defendants as alleged in the complaint, and the operation of the roads, tracks, and sidings as alleged in the complaint.” Under that admission and the evidence which was received relating to the several acts of the defendants in the premises, we are of the opinion that there was no error in awarding relief against both defendants.
Our attention is called to Prouty v. Railroad Co., 52 N. Y. 363. That was an action brought to recover a balance of certain dividends on certain guarantied 10 per cent, stock, and is quite different from the case now before us. Plaintiff was very moderate in his demand
Judgment affirmed, with costs. All concur.