Greenwood L. & P.J.R. Co. v. New York & G. L. R. Co.

• Decision Date: 01 October 1892
• Citation: 31 N.E. 874,134 N.Y. 435
• Parties: GREENWOOD L. & P. J. R. CO. v. NEW YORK & G. L. R. CO.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 435

31 N.E. 874

GREENWOOD L. & P. J. R. CO.

v.NEW YORK & G. L. R. CO.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, second department.

Action by the Greenwood Lake & Port Jervis Railroad Company against The New York & Greenwood Lake Railroad Company to recover damages for trespasses. From a judgment of the general term, affirming a judgment of the circuit court, (8 N. Y. Supp. 26,) plaintiff appeals. Affirmed.

Charles S. Noyes, for appellant.

Lewis E. Carr, for respondent.

The other facts fully appear in the following statement by VANN, J.:

This was an action to recover damages for a series of trespasses alleged to have been committed by the defendant upon part of a strip of land, 3,920 feet long and 75 feet wide, known as a part of the ‘Storms Tract’ situate in Orange county, on the west side of Greenwood lake. Prior to March 17, 1877, the Storms tract belonged to Weston & Burt, who on that day conveyed the strip in question, ‘to be used only for railroad purposes,’ to one ‘Michael A. Myers, Trustee,’ who on the 22d of December following conveyed the same to ‘Henry H. Thorpe, Trustee,’ and five days later Thorpe conveyed to William C. Traphagen. None of the deeds to or from said persons described as trustees disclosed any beneficiary of a trust, or contained any limitation upon the power to convey. May 3, 1886, said Traphagen conveyed the strip to William O. McDowell, who on the 10th of September following conveyed to the New England, New York & Pennsylvania Railroad Company, and May 21, 1888, said railroad company conveyed to the plaintiff. March 20, 1877, said Weston & Burt conveyed to the Greenwood Lake Ice Company 15 acres of the Storms tract, situate on the easterly side of the lake, subject, however, to the deed theretofore ‘given for a right of way through said premises, seventy-five feet in width, for railroad purposes.’ During the same year the ice company built an ice house on its said land, and a railroad track was laid on said strip. April 11, 1878, said Traphagen granted to the Greenwood Lake Ice Company a right of way over said strip for the purpose of its ice business, and on the 18th of July, 1880, the ice company conveyed all its said property, including its rights under the grant from Traphagen, to Cooper & Hewett, who have ever since conducted an ice business upon the said 15 acres. The defendant transported ice and supplies for Cooper & Hewett over the railroad track on said strip; changed the location, curvature, and grade of the track somewhat in order to improve it; and to some extent used said track for purposes not connected with the ice business of Cooper & Hewett. The plaintiff, claiming that the grant from Traphagen to the ice company was a license, revocable at pleasure, assumed to revoke the same. This action was brought mainly to recover damages for entering upon said strip, and changing and using the track, after such attempted revocation. The plaintiff sought to recover for the alleged wrongful use of the land during the period of its own ownership, and also during that of its three immediate predecessors in title, who had assigned their rights to it. The trial court dismissed the complaint upon the ground, among others, that the grant from Traphagen to the ice company was irrevocable, and the general term affirmed upon the same grounds, one of the judges dissenting. Further facts appear in the opinion.

VANN, J., ( after stating the facts.)

The only evidence tending to show that either Myers or Thorpe was a ‘trustee’ was the addition of that word to their names, respectively, in designating them as the respective grantees in the conveyances of March 17 and December 22, 1877. As there was no declaration of trust, and no deed to either ‘as trustee,’ the addition to the name of the party of the second part, in the absence of other evidence, might be regarded as merely descriptio personae. Towar v. Hale, 46 Barb. 361;People v. Stock-Brokers' Bldg. Co., (Sup.) 2 N. Y. Supp. 113, affirmed 112 N. Y. 670, 20 N. E. Rep. 414. But if either was a trustee, the conveyance to him ‘and to his successors and assigns forever,’ was absolute, with no limitation upon his power to convey, and no disclosure of the nature or object of the trust. While he might be required to account for the proceeds in a proper proceeding, and upon adequate proof, his grantees took a good title, which neither party to this action can question, as both claim under it. Mr. Traphagen, therefore, took the entre estate, and during his ownership he granted a certain right in the land under consideration to the Greenwood Lake Ice Company. The nature of that right is the main question to be determined upon this appeal. The instrument by which the right was created was under the hand and seal of Mr. Traphagen, and, after reciting his ownership of the strip of land in question, it proceeded as follows: ‘And whereas, the Green wood Lake Ice Company desire to use said property as a way of ingress, egress, and regress for themselves, their agents, servants, and laborers over and upon which they may pass and repass railroad cars, containing ice and materials for use in said ice business, now, therefore, in consideration of one dollar to me in hand paid, I do hereby grant to the said ice company, and to their assigns and successors in said ice business, the right to use said property for the purpose of a way of ingress, egress, and regress, over and upon which they may pass and repass railroad cars containing ice and materials,-said supplies for use in said ice business,-together with themselves, their employes, and servants; but it is expressly understood that this license to use said railroad is not an exclusive right to the said company. And it is further agreed that the right hereby conveyed is not to be assigned by the said company, except to the successors in, and assigns of, said ice business, and only for the purpose of said business.’ It is contended by the plaintiff...