Avery v. New York Cent. & H.R.R. Co.

• Decision Date: 07 June 1887
• Citation: 12 N.E. 619,106 N.Y. 142
• Parties: AVERY v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 142

12 N.E. 619

AVERY

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

June 7, 1887.

Appeal from general term, Fifth department.

George C. Greene, for appellant.

Truman C. White, for respondent.

PECKHAM, J.

The plaintiff is lessee of certain premises in Buffalo which were originally divided from premises of defendants by a strip of land 30 feet wide, and running from east to west 240 feet, and thence north about 100 feet. All of the property once belonged to one James Wadsworth, who in 1844 granted and conveyed a portion of it to defendant's predecessor for the purpose of a passenger and freight depot, and for no other purpose, and described this above-mentioned strip of land, 30 feet wide, as thereby dedicated for the purpose of a public street. Some question was made upon the trial as to the right of defendant to use, for the purpose of a railroad restaurant, any portion of the property thus conveyed, but the court held, under the other facts in the case, that defendant's right to so use it could not now be successfully questioned, and there has been no appeal from such decision, and so the question may be dismissed from our consideration. In 1850, James Wadsworth died, leaving a will by which he devised to his children the land not theretofore conveyed to defendant's predecessor, being one-quarter to each of his two sons, and one-quarter to his executors in trust for his daughter Elizabeth Wadsworth, and one-quarter to his executors in trust for his grandson Martin Brimmer, Jr. So far as the evidence in the case shows, this left the title, not only to the premises leased by the plaintiff, but also to the 30-feet strip of land already mentioned, in the devisees under the will of James Wadsworth, because of the lack of any acceptance of the dedication on the part of the public authorities, which will be again referred to. In 1853, partition of the lands now leased by plaintiff (which lands excluded the 30-feet strip) was made, by which one-half of such premises was conveyed to the trustees of Martin Brimmer, Jr., and one-half to Charles James Murray, who was then an infant. Both conveyances bounded the premises by the line of this 30-feet strip called therein an ‘alley.’ In 1857 the trustees of Brimmer, and the general guardian of Murray, conveyed by quitclaim deeds to defendant's predecessor an undivided one-half part of that portion of the strip in question, being 20 feet wide, and adjoining the lands of the said predecessor theretofore conveyed to it by James Wadsworth in his life-time. This left the title to the remaining 10 feet of such strip unaffected, while an undivided half of the interest in the 20 feet just mentioned remained in the other devisees under the will of Wadsworth, assuming that Brimmer's and Murray's trustees and guardian held title to one-quarter each, and that it was conveyed to the defendant's predecessor by the deeds above mentioned.

These deeds of the 20 feet contained a provision permittingthe construction of a building thereon, at the discretion of the railroad company, by a wall along the line bounding on the remaining 10 feet, and with roof projecting over such 10-feet strip a reasonable width for eaves-trough and water-conductor, such projection to be on sufferance of the grantors, provided they should want at any time to build on the land. Both these deeds also contained the following language: ‘This conveyance is upon the express condition that the said railroad company, their successors or assigns, shall at all times maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel, so called, [the premises now leased by plaintiff,] adjacent to the premises hereby conveyed, for the convenient access of passengers and their baggage to and from said premises hereby conveyed, which opening shall at no time be closed against such passengers and their baggage, subject, however, to all proper regulations of police and railroad discipline of persons on the said premises.’ Subsequent to the execution of these deeds, and in May, 1857, defendant's predecessor executed quitclaim deeds to the trustees of Brimmer, above mentioned, and to the general guardian of Murray, of an undivided half of the remaining 10 feet of said alley, although it nowhere appears that such predecessor had any title to such 10 feet. By mesne conveyances in or about September, 1873, Edward R. Hammatt, having become trustee for Brimmer, Jr., as such trustee, became, and has ever since been, the owner of the premises now leased to plaintiff, which premises are bounded by, and do not include in the conveyances or lease any portion of, the strip of land heretofore spoken of, although plaintiff claims a right of way over the 30-feet strip dedicated for a public street by said James Wadsworth in his deed of January, 1844. Soon after the execution of the deeds to the railroad company above mentioned, the company laid its tracks along this 20 feet of the 30-feet strip which lies south of the premises leased by plaintiff, and has ever since used the tracks for running its cars into and out of its depot at the west end of such strip. It appears also that there has been since the conveyance by Wadsworth in 1844, and upon the premises retained by him, and bounded by this 30-feet strip, a hotel which has been accessible from defendant's depot across its tracks, and which has depended largely for its patronage and custom upon the passengers arriving at and departing from such depot of defendants; and up to August, 1881, this 30-feet strip (excepting as 20 feet of it were used by defendant's tracks as above stated) has been open and used by the occupants of the hotel, and by travelers as above described, and by the public. In May, 1881, the said Hammatt, as trustee of Brimmer, leased to plaintiff the hotel spoken of for three years, at the annual rent of $4,000, and the plaintiff entered into possession under such lease, and has been and is now carrying on such hotel and restaurant. The further fact was proved that the right of way across this 30-feet strip is beneficial to the hotel and restaurant, and to the plaintiff's possession, and is an appurtenance thereto of great value.

In August, 1881, the defendant entered upon the said strip or alley, and built a high and substantial fence the whole length of the strip, and on the edge of the 20 feet bordering on the remaining 10 feet thereof, and such fence as been kept closed against the plaintiff and all others, and the defendants have thus wholly excluded the plaintiff, his servants, the guests of the hotel, and all others, from entering upon such 20 feet. The fence is thus a total obstruction in the way of any passage across such 20 feet to all persons coming from the depot to the hotel, or from the hotel to the depot, who might otherwise reach either place by traveling over this 20 feet; and in this way such obstruction has very greatly lessened the patronage of the hotel, and damaged thereby the plaintiff, up to the commencement of this action, in the sum of $300, as found by the trial judge. This action was brought to enjoin the continuance of such fence, and to recover damages for the time which it had stood.

The complaint contained two counts; the first one stating the facts of the conveyance to defendant's predecessor, and the dedication of the strip as a public street, and that the parties to the conveyance agreed mutually that the strip should remain and be a public street, and that it was necessary for the proper enjoyment of the hotel and restaurant that this strip should remain a public street. The plaintiff then set forth the erection of the fence, and thus, as he said, defendants wrongfully excluded him from the public street; and he further alleged that such fence was a nuisance. In the second count the strip was called an alley or public highway, and the plaintiff claimed to have an easement or right of way or access across or to the 20-feet strip in question. The plaintiff also alleged (evidently with reference to the language of the deeds to the railroad company in 1857) that the defendant had not, since the erection of the fence, maintained an opening into that part of the alley appurtenant to the southerly side of said hotel for the convenient access of passengers and their baggage ‘to and from the alley or public highway, as of right it should have done and was bound to do,’ and that it had thereby deprived passengers and their baggage of convenient access to said alley or public highway, and thus prevented such passengers and their baggage from entering said hotel at all across or by means of said alley or public highway. The plaintiff then alleged the tracks and the fence...