Fanning v. D.M. Osborne & Co.

• Decision Date: 01 June 1886
• Citation: 102 N.Y. 441,7 N.E. 307
• Court: New York Court of Appeals Court of Appeals
• Parties: FANNING v. D. M. OSBORNE & CO. and another.

102 N.Y. 441

7 N.E. 307

FANNING

v.D. M. OSBORNE & CO. and another.¹

Court of Appeals of New York.

June 1, 1886.

Appeal from judgment of general term, Fifth department, affirming an interlocutory judgment entered upon a decision rendered at the Cayuga special term upon a trial by the court without a jury.

H. V. Howland and D. Wright, for appellants, D. M. Osborne & Co. and another.

S. E. Payne, for respondent, Gurdon S. Fanning.

ANDREWS, J.

The defendant D. M. Osborne & Co., a manufacturing corporation, from 1875 to the commencement of this action maintained and operated a street railroad in the city of Auburn, from a point near the New York Central Railroad, and thence, through Garden and other streets in said city, to its manufacturing establishment on Mechanic street, exclusively for the tranportation of machines manufactured by the corporation, and for other freighting purposes connected with its business, by means of ordinary freight cars owned by the corporation, which from 1875 to 1879 were drawn by horses, and afterwards by a dummy engine also provided and owned by it. The D. M. Osborne & Co. corporation succeeded to the business of the firm of D. M. Osborne & Co. in 1875. The firm of D. M. Osborne & Co., under a contract entered into between the individual defendant, David M. Osborne, with the East Genesee Street & Seward Avenue Railway, a street railway corporation organized in 1871, which contract is dated May 29, 1873, reconstructed the railroad track between the points mentioned, and relaid it with T rails, and from 1873 to 1875 the firm used the railroad for the same purposes for which it was subsequently used by the corporation defendant.

It is upon the evidence indisputable that the railroad, as used from 1873, had no semblance of a public enterprise, and was in no sense a common carrier of freight or passengers. The East Genesee & Seward Avenue Railway, in 1871, under its charter, (Laws 1871, c. 527,) having obtained the consent of the local authorities, as required by the act, constructedits main line, about two miles in length, and also a branch road laid with strap or flat rail on the line now operated by D. M. Osborne & Co. But after a few months it abandoned the use of the branch for the carriage of freight and passengers, and it remained unused until the firm of D. M. Osborne & Co. reconstructed it under the agreement of May 29, 1873.

The plaintiff is the owner of premises on Garden street, by deed dated July 21, 1868, which bounds the granted premises on the north by the ‘south line of Garden street.’ The plaintiff's title is derived through intermediate grantors from the original owners of great lot 47, which lot includes plaintiff's premises and all of Garden street, with other lands. Garden street has been used as a public highway for more than 50 years. It is described in a deed from one Dill, the original owner of lot 47, dated September 28, 1811, as the ‘road leading to Jehuel Clark's mill.’ It is not claimed that the public or the city of Auburn owns the fee of the street. The presumption, in the absence of evidence, is that the public has acquired an easement only for highway uses in the land embraced in the street, and that the fee remains in the original owner. It is proved by the evidence, and it is found by the trial judge, that the use of the railroad through Garden street has greatly obstructed the street, and rendered it unsafe and dangerous for teams and vehicles of the plaintiff and others using the same, and has impaired and injured plaintiff's right and interest in and to the street, and greatly injured his business, and depreciated the value of his property. The facts found show a special injury sustained by the plaintiff from the operation of the railroad, which justifies the interference of equity, unless it is made to appear that the defendant corporation has a legal right to maintain a railroad on Garden street for its private convenience.

We deem it unnecessary in this case to determine whether the authority conferred on the East Genesee Street & Seward Avenue Railway Company by its original charter, or by act, chapter 444 of the Laws of 1879, amending its charter so as to permit the company to operate the branch road in question by steam-power, could be exercised by the company itself except upon the condition of making compensation to the owners of property abutting on the street for any injury thereto. The act does not require compensation to be made, and the determination of that question would require an examination of the powers of the legislature to authorize the construction of a horse or steam surface street railroad in a street or highway the fee of which remained in the original owner, as against a purchaser from such owner of a lot abutting on the street or highway, and whose premises, by the terms of his deed, are bounded thereon. The case of Williams v. New York Cent. R. Co., 16 N. Y. 97, established the principle that a...