Neuhaus v. Long Island Railroad Company

• Citation: 30 A.D.2d 825,292 N.Y.S.2d 930
• Parties: Annette NEUHAUS, individually, etc., Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, Appellant.
• Decision Date: 08 July 1968
• Court: New York Supreme Court — Appellate Division

Page 930

292 N.Y.S.2d 930

30 A.D.2d 825

Annette NEUHAUS, individually, etc., Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, Appellant.

Supreme Court, Appellate Division, Second Department.

July 8, 1968.

Tooker, Tooker & Esseks, Riverhead, for plaintiffs-respondents; William W. Esseks, Riverhead, of counsel.

George M. Onken, Jamaica, for defendant-appellant; Donald E. Lampson, Jamaica, of counsel.

Before BRENNAN, Acting P. J., and HOPKINS, BENJAMIN, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Appeal from a judgment of the Supreme Court, Suffolk County, dated October 16, 1967, which enjoined defendant from interfering with plaintiff's access over a certain grade crossing. Judgment affirmed, with costs.

In our opinion, any ambiguity in the deed prepared by defendant, which provides that it shall maintain a "road or farm crossing" over the railroad tracks, must be construed against it (Blackman v. Strider, 142 N.Y. 555, 560 37 N.E. 484, 485). Under the statute existing at the time of the execution of the deed (1869), the railroad was required to maintain a farm crossing even if the deed were silent on this aspect (L.1850 ch. 140, § 44 as amd. L.1864, ch. 582, § 2 (now Railroad Law, § 52); Buffalo Stone & Cement Co. v. Delaware, Lackawanna & Western R.R. Co., 130 N.Y. 152, 29 N.E. 121; Peckham v. Dutchess County R. R. Co., 65 Hun 621, 20 N.Y.S. 39, affd. 139 N.Y. 642, 35 N.E. 206). However, if the deed did not specifically provide for a farm crossing the grantor was sometimes relegated to a suit at law for damages (Smith v. New York & Oswego Midland R. R. Co., 63 N.Y. 58; Clarke v. Rochester, Lockport & Niagara Falls R. R. Co., 18 Barb. 350). Consequently, the covenant in question was not superfluous and, as it has been judicially declared that the terms "road crossings" and "farm crossings" contained in the statute itself (L.1850, ch. 140, § 44) are not synonymous (Brooks v. New York & Erie R. R. Co., 13 Barb. 594), we are of the opinion that the railroad is required to provide a road crossing for reasonable use as a right-of-way.

In this modern era we perceive no added burden to the covenanted easement if automobiles travel over the right-of-way which, incidentally, has been blacktopped at plaintiff's expense (cf. McCormick v. Trageser, 28 A.D.2d 1086, 285 N.Y.S.2d 684). Such use is merely a continuation, as the testimony established that horse drawn wagons and "Model T Ford(s)" regularly transversed the crossing in the past. As was said by another court, "the parties have treated upon the subject and established by themselves, without the assistance of the court, and regardless of the statute, exactly what their respective rights are, and as they must remain, and * * * the court has no reason to interfere" (Matter of Ellis, 125 App.Div. 111, 113, 110 N.Y.S. 343, 344). Furthermore, the testimony established that the parties placed their own construction upon the covenant and the railroad acquiesced for a long period of time in the use of the right-of-way "in the usual manner" (Kraeer v. Pennsylvania R. R. Co., 218 Pa. 569, 573, 67 A. 871).

Defendant contends the maintenance of this grade crossing violates public policy and section 90 of the Railroad Law. However, while it is the policy of this State to eliminate grade crossings, as far as practicable (Matter of Ballston Town Highway, 281 N.Y. 322, 325, 23 N.E.2d 10, 11), public policy cannot deprive plaintiff of her contractual rights without due process of law. Furthermore, section 90 of the Railroad Law which prescribes, in essence, and orderly procedure to determine the kind of crossing to be provided for streets constructed after 1890, is inapplicable. It is clear that this statute was enacted for the benefit to the public at large and the parties, by their conduct, cannot consent to the kind of grade crossing to be provided (see Village of Bolivar v. Pittsburg, Shawmut & Northern R. R. Co., 88 App.Div. 387, 84 N.Y.S. 678, affd. 179 N.Y. 523, 71 N.E. 1141). Whether the "street" in question was in existence prior to 1890 or not (Railroad Law § 90; City of Yonkers v. New York Cent. & Hudson Riv. R. R. Co., 32 App.Div. 474 52 N.Y.S. 1074, affd. 165 N.Y. 142, 58 N.E. 877) is immaterial. The "street" in fact is a "two rut" dirt road running along the westerly boundary of plaintiff's southern parcel and continuing over the railroad tracks on the same line through plaintiff's northern parcel. The evidence adduced below does not conclusively establish whether the road north of the tracks continues beyond plaintiff's northernmost boundary to a public road. Of course, were plaintiff's northern parcel landlocked she would be entitled to use the crossing contractually agreed upon as a way of necessity and the railroad could not close the crossing under the shield of public policy (see Palmer v. Palmer, 150 N.Y. 139, 44 N.E. 966; McCormick v. Trageser, 28 A.D.2d 1086, 285 N.Y.S.2d 684, supra). However, a new hearing is not required for resolution of that point since, whether the property is landlocked or not, the policy embodied in section 90 of the Railroad Law does not apply to the circumstances herein. It is clear that the "two rut" dirt road was never dedicated to the public or used by the municipal authorities as a highway (Palmer v. Palmer, supra; see ...