Porter v. Int'l Bridge Co.

• Decision Date: 16 December 1910
• Citation: 93 N.E. 716,200 N.Y. 234
• Parties: PORTER et al. v. INTERNATIONAL BRIDGE CO. et al.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 234

93 N.E. 716

PORTER et al.

v.INTERNATIONAL BRIDGE CO. et al.

Court of Appeals of New York.

Dec. 16, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Peter A. Porter, individually and as grantee of George M. Porter, and others, against the International Bridge Company, the City of Buffalo, and others, impleaded with others. From a judgment of the Appellete Division (131 App. Div. 921,115 N. Y. Supp. 1141) affirming an interlocutory judgment for plaintiffs, the International Bridge Company and another appeal by permission, certain questions being certified, and the City of Buffalo also appeals. Modified and affirmed.

Appeal by the International Bridge Company and the Grand Trunk Railway of Canada, by permission, from a judgment of the Appellate Division of the Supreme Court in the Fourth judicial department, entered March 3, 1909, affirming an interlocutory judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term; also, appeal by the city of Buffalo from the same judgment of the Appellate Division affirming the same Special Term judgment which is final as to that defendant.

In 1830 the eight owners of a tract of land of 500 acres near the village of Black Rock, known as the Parish tract, laid out the property as an extension of the village and caused a map thereof to be made, which they signed, upon which they left an open space designated as a ‘Publick Square.’ The owners subsequently partitioned and conveyed the various lots constituting the tract, with the exception of this public square, which has never since been disposed of by any conveyance or other instrument executed by the owners or their heirs, devisees, or grantees prior to 1889. The tract was afterward incorporated into the village of Black Rock, and still later became, and now is, a part of the city of Buffalo. The public square was partly occupied by a schoolhouse for many years; the schoolhouse being used as a public meeting place by the inhabitants. It was also used as a village common. It was not assessed to the previous owners after 1830, and since 1853 it has been treated as public property in levying assessments, except the portions subsequently occupied by the International Bridge Company as hereinafter stated. In 1860 the common council of Buffalo adopted a resolution that the said ‘Publick Square’ should be known and designated as ‘Porter Square,’ and in 1861 a resolution was adopted to the effect that the expense of maintaining, improving, and embellishing said square should be assessed upon neighboring property. From 1860 Porter Square continued to be vacant land and to be used as a common by the inhabitants of the city until 1870, when the common council consented that the International Bridge Company might use the streets and public squares of the city for the erection, maintenance, and operation of approaches to a bridge which it proposed to build across the Niagara river. By subsequent resolutions of the common council adopted pursuant to legislative authority between 1873 and 1882, inclusive, permission has been given to the International Bridge Company and the Grand Trunk Railway of Canada to erect railway passenger platforms on the premises and place 12 railway tracks and erect buildings and a passenger depot thereon. The property has been occupied by these corporations to this extent and for these purposes ever since. The present action is brought by the representatives in interest of the eight owners of the Parish tract in 1830. In 1890, before commencing suit, the plaintiff demanded of the International Bridge Company and the Grand Trunk Railway of Canada that they cease their occupation of the premises, or compensate him for his loss and take a deed thereof, which demand was refused. Upon a previous appeal the complaint was characterized as setting forth ‘a cause of action in equity to determine and enforce the rights of the various parties to the property, which is the subject of the action.’ Porter v. International Bridge Co., 163 N. Y. 79, 86,57 N. E. 174, 175.

The trial court determined that the plaintiff and the defendants other than the appellants were the owners in fee simple of certain specified proportionate shares of the property in controversy; that the original owners by making and signing the map of 1830 and by their subsequent conveyances with reference to the same intended to allow the public in general and each and every member of the community the full and unrestricted use and enjoyment of the land marked ‘Publick Square’ and every part thereof for the purposes of a public square; that the city of Buffalo intended to receive the property for the purposes of the general public for use as a public square and did not receive or at any time acquire the fee; and that under the resolutions of the common council which have been mentioned the city relinquished all the rights of the public to use the premises in question as a public square and abandoned the same for such purposes. The judgment provides that if within 90 days from the date thereof neither the International Bridge Company nor the Grand Trunk Railway Company shall have instituted proceedings to condemn the premises in question, or agreed with the plaintiffs as to their value and the plaintiff' damages, or if, having instituted condemnation proceedings, they do not prosecute the same with due diligence, the plaintiffs may apply to the court for final judgment determining the value of the premises and the damages sustained because of the withholding of possession thereof, and enjoining the defendants from further operating any cars or engines across the premises or maintaining any structure thereon.

This judgment has been affirmed by the Appellate Division. In allowing the International Bridge Company and the Grand Trunk Railway Company of Canada to appeal to this court, the Appellate Division has certified the following questions:

‘(1) Upon the facts found can Peter A. Porter, individually and as grantee, maintain this action for the recovery of his interest in the premises in question?

‘(2) Is the use of the premises in question by the International Bridge Company and the Grand Trunk Railway Company of Canada a public use or consistent with their use as a public square?

‘(3) Has the city of Buffalo abandoned the premises in question as a public square?

‘(4) Have either of the defendants acquired prescriptive rights to the premises in question or any part thereof?’Adelbert Moot and Henry W. Sprague, for appellants International Bridge Co., and others.

Clark H. Hammond, Corp. Counsel (George E. Pierce, of counsel), for appellant City of Buffalo.

Charles P. Norton, for respondents.

WILLARD BARTLETT, J. (after stating the facts as above).

In the consideration of this appeal I think it is essential at the outset to ascertain precisely what is the character of the action. The case has already been before this court twice: First, on an appeal from a judgment affirming an interlocutory judgment overruling a demurrer to the complaint for misjoinder of causes of action (163 N. Y. 79, 57 N. E. 174); and, secondly, on an appeal from an order reversing an order directing a jury trial of the issues involved in the action (175 N. Y. 467, 67 N. E. 1089). Upon the first appeal, Judge Martin, speaking for the court, said: ‘After a careful examination of the complaint, we are of the opinion that it is not be regarded as stating more than one cause of action, viz., a cause of action in equity to determine and enforce the rights of the various parties to the property, which is the subject of the action, and that all the rights sought to be established and enforced arose out of the same transaction or transactions connected with the same subject of action, and their joinder in the same complaint was justified by the provisions of section 484.’ Page 86, 163 N. Y., 57 N. E. 175. The view that the action is purely equitable in its nature was emphasized on the second appeal, where this court held that the defendants did not have a constitutional right to a trial by jury. It being thus settled that the case is one of equitable cognizance, in what category of equity jurisprudence does it fall? The statement of Judge Martin that it is brought to determine and enforce the rights of the various parties to the property which is the subject of the action is quite general, and does not help us much in the matter of classification. It is not an action to compel the determination of a claim to real property under the Code of Civil Procedure, for in such an action the complaint must set forth facts showing that the property at the commencement of the action was, and for the one year next preceding has been, in the possession of the plaintiff or in the possession of himself and those from whom he derives his title, either as sole or joint tenant or tenant in common with others. It is not a suit to remove a cloud upon title. There are no allegations in the complaint appropriate to a suit for such relief. The general rule is that a plaintiff out of possession holding the legal title will be left to his remedy by ejectment. 3 Pomeroy's Eq. Juris. (1st Ed.) § 1399n. I think in view of our previous adjudications herein that it must be regarded as a suit to enjoin a continuing trespass, i. e., the occupation of Porter Square by the bridge and railroad companies, on the theory that, by reason of the abandonment of the premises by the city of Buffalo as a public square, the easement of the public therein has ceased, and all the rights of the original proprietors as owners of the fee before the dedication have been restored to the plaintiffs. To this extent and in this sense it is a suit ‘to determine and enforce the rights of the various parties to the property which is the subject of the action,’ as was suggested by this court upon the first appeal.

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