American Bank-Note Co. v. New York El. R. Co.

Decision Date15 December 1891
Citation29 N.E. 302,129 N.Y. 252
PartiesAMERICAN BANK-NOTE CO. v. NEW YORK EL. R. CO. et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from superior court of New York city, general term.

Action by the American Bank-Note Company against the New York Elevated Railroad Company and others. Plaintiff obtained judgment, which was affirmed by the general term. Defendants appeal. Modified.

Julien T. Davies, for appellants.

Peckham & Tyler, for respondent.

FINCH, J.

This appeal is from a judgment awarding to the plaintiff compensation for the taking of its property by the construction and maintenance of the elevated railway in Greenwich street, and in front of plaintiff's premises abutting on that street; and also assessing damages for past injuries occasioned by the same operative cause; and two principal questions are presented for our consideration.

The defendants assert title by prescription to so much of the plaintiff's property in the street as was originally taken by the West Side & Yonkers Patent Railway Company, to whose rights and franchises the defendants have succeeded. If, upon the trial, a broader right by prescription was claimed, it had its sufficient answer in the remark of the court, appended to the fifth request of the defendants' proposed conclusions of law, that ‘the defendants have not maintained and operated a road in the present condition for twenty years. They cannot, by using a one-track road for fifteen years and a four-track road for five years, obtain the right to run the four-track road by prescription.’ That is so obviously true as to make needless any further reference to the broader claim, but a narrower and more plausible one was asserted and founded upon a distinct finding of fact ‘that a part of the light, air, and access of the premises Nos. 115 to 123 Greenwich street was taken for the use of defendants' railroad when it was first constructed and put in operation, July 2, 1868, and has been continuously used since for said railroad purposes.’ There is no finding of fact that this continuous possession of some undefined and undescribed part of plaintiff's property in the street was adverse. On the contrary, the court refused to make such finding, and further refused the defendants' proposed conclusion of law ‘that before this action was commenced the presumption of a grant of the right to maintain and operate an elevated railroad on the east side of Greenwich street from the then owner of said property to the defendants' predecessor's company had become conclusive by lapse of time.’ Exceptions were taken to these refusals, and raise the question to be discussed, for, without criticising the manner of the requests or the form of the pleadings, we think it best to meet the claim in its full force, and dispose of it on the merits. It was quite material to the defense interposed, for, while the narrower and final claim does not justify the complete and entire infringement upon the rights of the abutting owner shown by the proof, since the present railway destroys those rights to a much greater extent and in a more injurious manner than resulted from the original structure, yet it is argued that the claim bears upon the question of permanent or fee damage, and that by rejecting the defendants' prescriptive right on the east side of the street, if in fact it existed, compensation has been awarded to the plaintiff to some extent for property which in reality belonged to the defendants. The question, therefore, is whether they obtained title to any part of the plaintiff's incorporeal right in the street; and that again resolves itself into the inquiry whether the possession of the defendants and their predecessors was continuous, and was or was not adverse. Ordinarily, that is a question of fact. It may be conceded that, where the undisputed proof shows that the party asserting title entered upon the premises under a claim of right adverse to the true owner, and retained an open, exclusive, and hostile occupation for 20 years, to the knowledge and palpable injury of such owner, while not incapable of vindicating his right, and there are no other or contradictory facts, a presumption of title will arise, and the court should find in accordance therewith. But the presumption is not conclusive as against other and further facts. It serves only to shift the burden of showing the true character of the possession to the owner. Hammond v. Zehner, 21 N. Y. 118. And where there are other facts, tending to justify a different inference, and leading fairly to a contrary conclusion, they also are to be taken into the account, and the question becomes, if not wholly one of fact, at least a mixed question of law and fact, depending more or less upon the circumstances proved. Such I believe to be the situation in the case at bar; for, if not at the beginning of the railway occupation, at least along the line of its continuance, and at the end of the 20 years, there were facts and incidents which challenge the adverse character of the possession and even its continuity as unbroken or unchanged.

The West Side & Yonkers Railway Company became a corporation under the general act of 1850. By force of its provisions the company had the right of eminent domain, and could condemn such property of individuals as it needed for its corporate purposes. But in 1867, by chapter 489 of the Laws of that year, it was given special and peculiar rights in the streets of the city. The act was entitled ‘An act to provide for the construction of an experimental line of railway in the counties of New York and Westchester,’ and authorized the primary erection of an elevated railroad beginning at the southerly extremity of Greenwich street, and extending northerly for half a mile. The supporting columns were to be placed along the curb-stone line, and to carry a track not more than five feet in width, the center of the track to be perpendicular to the center of the columns, and not less than 14 feet above the suriace of the pavement. The road was required to be ‘operated exclusively by means of propelling cables attached to stationary engines placed beneath or beyond the surface of any street through which said railway may pass, and shall be concealed from view so far as the same may be detrimental to the ordinary uses of said streets. The half mile of road was to be completed in one year, and its experimental character was shown by the provision that, when ready for operation, it should be inspected by commissioners appointed for that purpose, upon whose report that it could be operated with safety and dispatch its extension northerly was to be permitted, but upon whose report to the contrary the structure was to be taken down, and the street restored to its original condition. Until the action of the commissioners, at least, the possession of the railway company was both temporary and experimental. The act, however, contained other provisions. By section 7 it was enacted that ‘any private property used or acquired shall be compensated for by said company under provisions of existing laws authorizing the formation of railroad companies and the acquisition of rights of way therefor.’ The provision seems to have contemplated some possible user of private property, for which compensation should be made. By section 11 it was provided: ‘The said company shall be liable for and shall pay all damages which may result to provate property or the owners thereof by reason of the construction of said road;’ and was required to give a bond in the penal sum of $500,000 conditioned for the payment of all such damages. The entry and possession of the West Side & Yonkers Company was under this charter. That was the grant and the specific title under which it occupied and used the streets as it did occupy and use them. The entry was not under a general claim of right adverse to all others, but under a specific and definite legislative grant, beyond and outside of which nothing was separately claimed. Neither the company nor individuals along the line knew that this title was imperfect, because there were incorporeal rights in the street belonging, not to the public, but to the abutting owners; and yet the property in fact existed, and the company took it without right, but, it must be admitted, under color of title and claim of right, since the property taken was within the apparent and possible boundaries of the grant under which the entry was made, and for a time was supposed by both parties to be in fact within its actual and legal boundaries. We have described that entry as a trespass, as an invasion of the rights of the adjoining owners, and as an exclusive and injurious seizure of their incorporeal rights in the street. The possession which followed we have declared to be a continuous wrong, for which all the time and every day damages accrued, and should be awarded. That such an entry may be adverse, and sufficient to initiate a possession which at the end of 20 years would ripen into a title, would seem to be quite clear were it not for the decision of the general term that the entry was in subordination to the rights of the abutters, and so not adverse to them. The authority relied on is the case of Broiestedt v. Railroad Co., 55 N. Y. 220, which, I think, has no just application to the case in hand, as the learned counsel for the appellants elaborately explains. The action was by the owner of the soil of a highway to restrain the maintenance and operation of a railroad in front of his premises. The answer was, among other things, that the plaintiff's deed was void, because the locus in quo was held adversely by the defendant at the time of the conveyance. The court ruled to the contrary, using this language: ‘The possession was not adverse, but was under license by act of the legislature, which only extended to the rights of the public. The entry under this license is presumed to have been in subordination to the...

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