Long Island R. Co. v. Mulry

• Decision Date: 09 June 1914
• Parties: LONG ISLAND R. CO. v. MULRY et al.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 108

105 N.E. 806

LONG ISLAND R. CO.

v.MULRY et al.

Court of Appeals of New York.

June 9, 1914.

Appeal from Supreme Court, appellate Division, Second Department.

Suit by the Long Island Railroad Company against Mary T. Mulry and others. From a decree in favor of plaintiff, reversed by the Appellate Division (149 App. Div. 924,133 N. Y. Supp. 1130), plaintiff appeals. Judgment of Appellate Division reversed, and that of Special Term affirmed.James W. Treadwell, of New York City, for appellant.

Charles H. Street, of Jamaica, for respondents.

WILLARD BARTLETT, C. J.

This is an equity suit to enjoin continued trespasses upon the plaintiff's right of way. In the condemnation proceedings by which the premises in question were acquired, there was an omission to make all the owners parties; but judgment of condemnation was duly obtained against the owners of five-eights of the undivided shares therein and the amounts awarded were paid to them and accepted by them. These condemnation proceedings were conducted by the Far Rockaway Branch Railroad Company, the plaintiff's predecessor in title. The final order of confirmation was entered on July 26, 1869, and the railroad company and its successors, claiming title under such order, have ever since 1869, according to the findings of the trial judge, been in possession of all the premises in question in this action. This long adverse possession, however, has been pronounced by the Appellate Division insufficient to establish the plaintiff's title, because, it is said, a railroad company acquires only a use or easement in condemnation proceedings, and nothing short of a claim of full title in fee will suffice to make title by adverse possession under section 369 of the Code of Civil Procedure; reference being made to the case of Scheer v . Long Island R. R. Co., 127 App. Div. 267,111 N. Y. Supp. 569, as authority for that proposition. In other words, it is asserted that a final order condemning real property for railroad purposes is not ‘the decree or judgment of a competent court’ mentioned in section 369 of the Code of Civil Procedure as the basis of a title by adverse possession. On this ground the Appellate Divisionhas reversed the judgment in the plaintiff's favor and directed a new trial.

[1] It is undoubtedly true that a claim of title, when relied upon to establish ownership by adverse possession, must be a claim in hostility to the true title, and accordingly it has been held that a claim under a lease for a term of years is insufficient (Bedell v. Shaw, 59 N. Y. 46) or a claim as mortgagee in possession or as the purchaser of a tax lease. Gross v. Wellwood, 90 N. Y. 638. The claim of a railroad corporation, however, asserting title to lands as having been condemned under the general Railroad Law is essentially different. In the exercise of the power of eminent domain by or in behalf of a railway company, the permanent public use of the land is contemplated. Miner v. N. Y. C. & H. R. R. R. Co., 123 N. Y. 242, 249,25 N. E. 339.

[2] A permanent easement in the land is thereby acquired for the uses and purposes of the railroad.

‘While it has been held in some cases that the owner of the fee, subject to the railroad easement, has some right to use the land taken, not inconsistent with the easement,...