EMILY S. CONCKLIN, Appellant,
THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.
APPEAL by the plaintiff, Emily S. Concklin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 17th day of January, 1911, upon the decision of the court rendered after a trial at the Dutchess County Special Term.
Hersey Egginton [H. S. Concklin and Charles Morschauser with him on the brief], for the appellant.
Robert Wilkinson, for the respondent.
This action is brought to enjoin the defendant from maintaining a fence across a right of way which the plaintiff claims to have acquired by prescription over the defendant's railroad premises in the village of Amenia, Dutchess county. The facts are not disputed. One John B. Barker is the common source of title to all the property involved. In January, 1852, he conveyed a narrow strip of land, 1,568 feet long, running through his farm, to the New York and Harlem Railroad Company. The deed of conveyance contained the following habendum clause: 'To have and to hold the same to the said parties of the second part [[the railroad company], their successors and assigns forever, for the purposes of the extension of the New York & Harlem R. R. as directed in the several acts of the Legislature of the State of New York in relation thereto.' In addition to this habendum clause and to the usual covenants of title, the deed contained a covenant whereby the grantor agreed for himself, his heirs and assigns, to make and maintain good and sufficient fences on both sides of said strip of land; and a covenant whereby the grantee agreed forever to 'make and maintain good, sufficient and convenient crossing places across said Railroad to and from the land of the said party of the first part on each side of said strip of land so taken for said railroad, pursuant to the Acts of the Legislature
in relation thereto.' By lease made in 1873 for a period of 401 years, the respondent became the lessee of the New York and Harlem Railroad Company and as such is now in possession of the property in question, operating a steam railroad over the same and maintaining a station for its passengers on a part thereof in the village of Amenia. In September, 1852, Barker conveyed approximately half an acre lying south of and adjoining the railroad property to appellant's predecessor in title. The dwelling thereon now used by the appellant as a residence was erected in 1853.
In 1856 Barker conveyed a parcel of land lying west of and adjacent to appellant's premises and southerly of and adjoining the railroad property to Enoch G. Caulkins. Those premises lie between the plaintiff's lot and a public highway known as Mechanic street, which crosses the railroad tracks at right angles and leads into the village of Amenia. The Caulkins property is now owned by one Lewis E. Barton, who maintains a hotel thereon.
The covenant to fence, made by plaintiff's predecessor, has never been performed. During the last fifty years appellant's predecessors and the appellant, as well as their servants and visitors, have reached said highway from the premises by walking along the southerly side of said railroad premises and across the same in front of the station to the highway. This user has been open, visible, continuous, peaceable, uniform, uninterrupted and with the knowledge of the respondent. A similar use of the railroad property seems also to have been made by the owners of the premises adjoining the appellant's property. In 1906 the respondent built a fence along the south line of its property, thereby closing the alleged right of way. From the judgment refusing to enjoin the maintenance of that fence the plaintiff appeals.
It has been suggested that as a railroad company possesses merely an easement for railroad purposes, and that as the land reverts to the original owners upon the abandonment of the railroad franchise, it is incapable of conveying a fee, and hence the presumption of a lost deed as the basis of a prescriptive right cannot be indulged against it. (See Roberts v. Sioux City & Pacific R. R. Co., 73 Neb. 8; 2 L. R. A.
[ N. S.] 272; Southern Pacific Co. v. Hyatt,132 Cal. 240; 54 L. R. A. 522; Missouri, K. & T. Ry. Co. v. Watson,74 Kan. 494; 14 L. R. A. [ N. S.] 592; Northern Pacific R. Co. v. Ely,197 U.S. 1; Northern Pacific Railway v. Townsend, 190 id. 267.) In the case at bar, however, the respondent did not acquire the property in question by condemnation proceedings in the exercise of the power of eminent domain. The deed from Barker vested it with the fee. (Nicoll v. N.Y. & E. R. R. Co.,12 N.Y. 121; Kenney v. Wallace, 24 Hun, 478; Beal v. N.Y. C. & H. R. R. R. Co., 41 id. 172; Yates v. Van De Bogert,56 N.Y. 526.) The statement in the habendum clause that the property was held for railroad purposes did not limit the fee conveyed. (Vail v. L. I. R. R. Co.,106 N.Y. 283; Nicoll v. N.Y. & E. R. R. Co., supra.) It would seem, therefore, that the respondent could convey the fee of the property. I do not, however, deem it necessary to determine whether the respondent could dispose of that property in such a manner as to interfere with the proper exercise of its public franchise, or whether an easement could be acquired by prescription in such premises, if said easement in any way interfered with the proper exercise of such franchise, because I do not believe that the appellant has fairly established that her user of the premises in question was adverse. Her contention is that the open, visible, notorious, peaceable, continuous and uninterrupted use of the way for fifty years raises a presumption of adverseness, unless affirmatively shown by the respondent to have been by license, and cited in support of such contention are Hammond v. Zehner (21 N.Y. 118); Colburn v. Marsh (68 Hun, 269; affd. on opinion below, 144 N.Y. 657); Hey v. Collman (78 A.D. 584; affd., 180 N.Y. 560); Miller v. Garlock (8 Barb. 153); Nicholls v. Wentworth (100 N.Y. ...