Paige v. Schenectady Ry. Co.

• Decision Date: 15 March 1904
• Citation: 70 N.E. 213,178 N.Y. 102
• Parties: PAIGE v. SCHENECTADY RY. CO. LANSING v. SAME. VAN EPPS v. SAME. BEATTIE v. SAME. THOMPSON v. SAME. WHITMYRE v. SAME.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 102

70 N.E. 213

PAIGE

v.SCHENECTADY RY. CO.

LANSING

v.SAME.

VAN EPPS

v.SAME.

BEATTIE

v.SAME.

THOMPSON

v.SAME.

WHITMYRE

v.SAME.

Court of Appeals of New York.

March 15, 1904.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Janet Franchot Paige, Caroline Paige Lansing, Belle Van Epps, Isabella Beattie, Louise A. Thompson, and Charles L. Whitmyre against the Schenectady Railway Company. From judgments of the Appellate Division (82 N. Y. Supp. 192) affirming judgments enjoining defendant from operating its railway on any part of Washington avenue in front of the premises of each of such plaintiffs, defendant appeals. Reversed in actions of Paige, Thompson, and Whitmyre, and affirmed as to the others.

The trial judge made a short decision in each action, and also made findings of fact, and directed the same to be attached to the decision therein. The Schenectady Street Railway Company, the predecessor of the defendant, obtained the consent of the local authorities of the city of Schenectady and the consent of the necessary number of abutting owners to the construction of a street railway in Washington avenue, in that city. The plaintiffs Paige, Whitmyre, and the predecessor in title of the plaintiff Thompson were among the property owners who consented to its construction. In September, 1891, after the railway on Washington avenue had been completed and was in operation, the company executed a mortgage upon its property and franchises, including the Washington avenue portion of its road, to the Central Trust Company of the city of New York. In August, 1893, Corra N. Williams, a stockholder and bondholder of the street railway company, brought an action in the United States Circuit Court on behalf of himself and all other creditors of said company, alleging its insolvency, and asked, among other things, that a receiver of the property of the railway company be appointed. Subsequently John Muir was, in that action, appointed receiver of all the property of the company, and duly qualified as such. In the following December, while the property was in the possession of such receiver, the Central Trust Company brought an action in the same court to foreclose the mortgage upon the property and franchises of said railway company. In that action George W. Jones was appointed receiver of its property on June 19, 1894, by an order which also provided that Muir, the receiver in the Williams suit, should turn over the property to Jones, and it directed him ‘to manage and operate the said railway and property, and to exercise the franchises of the said company, and to discharge the public duties, and to preserve and protect the said property in proper condition and repair so that it may be safely and advantageously used, and to protect the title and possession, and to secure and protect the business of the same.’ On or about October 2, 1894, D. Cady Smith and 19 others, owners of property on Washington avenue, presented a petition to the common council of the city of Schenectady, asking the consent of that body to the abandonment of the street railway on a portion of Washington avenue. A similar petition was presented on behalf of Jones, as receiver of the railway company in the foreclosure suit. The common council thereupon adopted a resolution authorizing Jones, as such receiver, to dispense permanently with the operation of its road between Church street and the Mohawk Bridge. After the adoption of such resolution, and with the consent of 20 abutting owners, Jones took up the rails on a portion of Washington avenue, and restored the pavement. There seems to be no evidence in the case that he obtained authority to abandon the road from the court which appointed him, from the railroad commissioners, or from the state. Nor does the proof disclose that he obtained the consent of the Schenectady Street Railway Company, or its stockholders or bondholders, or of the trustee under the mortgage. On September 1, 1894, a decree of foreclosure and sale was entered, and pursuant to that decree the property mentioned therein, which included the Washington avenue railway and franchise, was sold to one Kobbe and two others. This sale was confirmed by a decree of the court February 8, 1895, and a deed thereof was executed and delivered to them by the special master appointed to make such sale on or about February 9, 1895. Kobbe and the other purchasers also received deeds of such property, rights, and franchises from the Schenectady Street Railway Company and from George W. Jones. On February 14, 1895, Kobbe and the other purchasers conveyed the mortgaged property to the present defendant, which was incorporated on that day. The complaint in the foreclosure action, the decree of foreclosure and sale, and each of the foregoing deeds specifically described the franchise to maintain a railroad on Washington avenue. In 1901 the present defendant, claiming that the alleged abandonment of the railway by the receiver was ineffective, and also claiming a right under original proceedings instituted by it, independent of any right acquired from the Schenectady Street Railway Company, attempted to relay the tracks on Washington avenue, whereupon the present actions were brought. In each of the conveyances for the six lots owned by the plaintiffs the description of the lots bounded them upon the street. The defendant's railway is ‘in part on the half of the street towards the plaintiffs in all cases.’ On the trial it was stipulated that the plaintiffs had been in possession under their respective conveyances of the premises abutting on Washington avenue for 29 years. Upon the evidence and stipulation it is claimed by each of the plaintiffs that he or she owns the portion of Washington avenue in front of his or her premises to the center of the street. The defendant, however, sought to show that Washington avenue was in existence prior to August 27, 1664, and hence that it was originally a Dutch street, to which the Dutch law was applicable.Marcus T. Hun and James A. Van Voast, for appellant.

Douglas Campbell, for respondents.

MARTIN, J. (after stating the facts).

Although our decision in the case of Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357, where we held that the use of a city street for the purposes of a street surface railroad operated by electric power imposes an added burden upon the property rights of the owners of the fee of the street, is in conflict with the rule adopted in most other jurisdictions, yet, as that case was most carefully and thoroughly examined and considered, and the conclusion reached that we should adhere to the former decision of this court upon the subject, that decision must now be regarded as final and conclusive-not to be overruled or avoided, even by indirection. Hence it follows that the owners of the fee in Washington avenue are entitled to defend against any improper invasion of or interference with their rights therein, unless they have been surrendered or impaired by some effective act of the plaintiffs or their grantors.

The defendant seeks to attack or impeach the validity of the title of the plaintiffs to the fee of the street on the ground that their premises extend only to the line of the street, and not to the center thereof. The claims upon which this contention rests are twofold: First, that Washington avenue existed anterior to 1664, and was consequently a Dutch street, to which the Dutch law applied, and placed the title of the street in the public, and not in the abutting owner; and, second, upon the authority of the case of Graham v. Stern, 168 N. Y. 517, 61 N. E. 891,85 Am. St. Rep. 694, in which this court held that, where there was a conveyance of property in the city of New York bounded upon one of its streets, the presumption that the conveyance carried the fee to the center is offset, where the conveyance is by the municipal authorities, by the presumption that the municipality would not part with the ownership and control of a public street once vested in it to be forever held for the benefit of the public.

The first of these grounds is disposed of by the finding of the trial court, which, upon evidence sufficient to justify it, has found that Washington avenue was not in existence as a public highway prior to August 27, 1664, the date of the capitulation by the Dutch to the English. Consequently, under that finding, and with our view of the case, it becomes unnecessary to consider much of the historical evidence in these cases, which was so thoroughly and exhaustively discussed upon the argument and in the briefs of counsel, as, when, in 1664, the English took possession under the charter to the Duke of York, the common law of England followed. Mayor, etc., of N. Y. v. Hart, 95 N. Y. 443, 450;Canal Appraisers v. People, 17 Wend. 571, 583.

The contention of the defendant upon the second ground is that the title to the property claimed by the plaintiffs passed from the colony of New York, or from the local authorities of Schenectady, to the predecessors in title of the present owners, after Washington avenue had been opened, and while it was used as a public highway, and hence that, under the principle of the Graham Case, the presumption is that the public authorities, in making the several conveyances under which the plaintiffs claim, intended to retain the fee of the street, and that it should not pass to the grantees under such conveyances. Thus the question at once arises whether the principle of the decision in the Graham Case has any application to the facts and conditions existing in the cases at bar. Obviously, when Washington avenue became a public highway, the colony of New York was governed by the English law, under which the sovereign did not own the fee to the streets or highways, but only an easement upon the land over which they extended. Under the common law of England, the title to the land in a street or highway was...