APPEAL by the defendant, The Buffalo, Lockport and Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 9th day of April, 1909, upon the decision of the court rendered after a trial before the court without a jury.
Frank F. Williams and Charles B. Hill, for the appellant.
George F. Thompson, for the respondent.
The controversy is over a small piece of land, consisting of about an eighth of an acre, situate in the town of Royalton, Niagara county, and lying between the New York Central and Hudson River railroad and the highway, immediately north thereof. The plaintiff claims to own the same, and the action is brought to restrain the appellant railroad company from entering upon said land and in general from building and operating its electric railroad over and across the same.
The railroad company contends that the land in question was conveyed to it, and that the plaintiff acquired her title subsequently and under such circumstances as to inure to its benefit; and further that it had such possession of the premises at the time of the execution and delivery of her conveyance that it is void for champerty.
The railroad company's tracks extend in a northeasterly direction, crossing the other railroad and highway referred to at nearly right angles. The defendant Edgar Knapp owns the farm immediately north of the highway; the farm south of the highway, over which the railroad company's tracks are built, may be called the Knapp heirs' farm.
On the 27th day of June, 1906, two conveyances were made to the railroad company, one by the defendant Edgar Knapp of the right of way across his farm, and the other by Mary Knapp, the widow of Silas Knapp, deceased, and his heirs at law, of the right of way south of the highway, across the Knapp heirs' farm. The defendant Edgar Knapp is one of the heirs at law of Silas Knapp and joined in the conveyance of the right of way across the Knapp heirs' farm, and bound himself by the covenants therein contained. That conveyance contains covenants of seizin, quiet enjoyment, freedom from incumbrances, further assurance and warranty of title. The conveyance of the right of way north of the highway is not involved in this controversy and need not be referred to again.
While the Knapp heirs did not have the title to the small triangular piece of land in dispute, I think it is clearly included in their conveyance to the railroad company. The northern boundary of the lands as therein described extends to the boundary line between lands of the first parties named in the conveyance
(the Knapp heirs) and lands now or formerly owned by Edgar Knapp, and is further located as being the boundary line between lots 1 and 2, section 12, and also the center of the highway, and includes a strip of land extending from the north bounds southerly across the farm, except such as is owned and occupied by the New York Central and Hudson River Railroad Company for its right of way. The lands are further located by a map, which is attached to and made a part of the deed of conveyance. The description, as supplemented by the map, certainly includes all the right of way lands lying between the highway and the New York Central and Hudson River railroad.
The plaintiff's counsel contends, as I understand his position, that because the deed from the Knapp heirs contains the provision that the grantee takes only such right as it might have obtained by condemnation proceedings, and the Knapp heirs did not have the legal title to this triangular piece of land, that it is not covered by the conveyance, and that the covenants contained in the conveyance do not apply thereto. I think that no such interpretation or effect can be given to this provision and that we should hold not only that the lands in dispute are intended to be conveyed by the deed of conveyance, but as well that the covenants contained therein apply thereto.
It appears that at the time of the conveyance by the Knapp heirs the title to this triangular piece of land was in one Charlotte Fuller. Edgar Knapp and his attorney set about thereafter to acquire the title. It is unnecessary to refer in detail to the various interviews had between Knapp, his attorney and the representatives of the railroad company, or to the various transactions which led up to acquiring the title. It is sufficient to say that the railroad company finally insisted that its title should be made good, and the title was acquired by Edgar Knapp, and is now nominally held by the plaintiff, Knapp's adopted daughter. On the 12th day of March, 1907, Charlotte Fuller conveyed to David C. Colbert, by quitclaim ...