Post v. West Shore & B. Ry. Co.

• Decision Date: 02 December 1890
• Citation: 26 N.E. 7,123 N.Y. 580
• Parties: POST v. WEST SHORE & B. RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 580

26 N.E. 7

POST

v.WEST SHORE & B. RY. CO. et al.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, third department.

This action was to enforce the specific performance of an alleged covenant for the reconstruction and restoration of a public road, and the construction of a railroad crossing, contained in a deed executed by the plaintiff to the New York, West Shore & Buffalo Railway Company, dated February 8, 1882, conveying a strip of land running northerly and southerly through the plaintiff's farm in the town of Catskill, in the county of Green, in this state, 130 feet in width and 1,500 feet in length, which strip of land included the public highway through said plaintiff's farm, known as the ‘Catskill and Saugerties Road.’ The plaintiff, prior to, and at the time of, said conveyance, was the owner of a valuable farm of 260 acres on the westerly shore of the Hudson river, through which ran northerly and southerly a rocky ridge known as ‘Kalkberg Mountain,’ dividing the lowlands of the plaintiff's farm on the river from the upland. Along the easterly foot of the ridge ran the Catskill and Saugerties highway, communicating with Catskill on the north, and with Saugerties and other places on the south. The plaintiff's house and farm buildings were located near to, and on the easterly side of, the highway. In 1882, the New York, West Shore & Buffalo Railway was engaged in the construction of its railway, the line of which at this point ran within and along the highway, across the plaintiff's premises. The railway company, in view of this fact, purchased from the plaintiff the strip mentioned, and the deed of conveyance from the plaintiff contained the following clause: ‘The party of the second part [the railway company] is to reconstruct and restore the public road, and place the same along the westerly line of and upon the aforesaid premises. The party of the second part is to construct a good and convenient crossing over the said railway premises to the highway, reconstructed as aforesaid.’ The conveyance to the company was in terms of ‘feesimple.’ The company thereupon took possession of the highway, and raised an embankment on the easterly side of the strip so conveyed, for the track of its road, from 14 to 20 feet high, across the plaintiff's farm, and completely shut off all approach to the plaintiff's buildings over the highway from the south, there being a ravine on the southerly side of his land, which embankment also prevented his reaching the highway to the north except by climbing the railroad embankment near the northerly line of his premises. Neither the New York, West Shore & Buffalo Railway Company, nor its successor in title, the West Shore Railway Company, nor the New York Central & Hudson River Railroad Company, the lessee of the West Shore Railway Company has constructed the highway on the westerly side of the 130-feet strip, as provided in the deed. But, in the fall of 1882, the grantee in the deed purchased from the plaintiff another strip of land across his farm, 50 feet in width, on the top of the mountain for a public road, and opened it as a public road, and connected it at the north and south with the old highway, and it has since been used by the public as such in place of the original road at the foot of the hill. The company also made an approach up the embankment on the north side of the plaintiff's farm, to enable the plaintiff to reach the old highway north of his premises. The plaintiff, by reason of the situation, when he desires to go from the 145 acres of his farm on the river to Saugerties, or any other market south of his premises, is compelled to first go north, climbing the embankment to the junction of the old road with the new road, across the hill, and then turn southerly and go over the hill road until it meets the original highway south of his lands, a route much less convenient than the former one, thereby increasing on each strip the distance to be traveled about one and a quarter miles. In respect to the new road, and the purchase of the strip 50 feet in width therefor, upon which one of the points made by the defendants is based, it appears that, in constructing the embankment, the railroad company blocked and obstructed the old highway so as to prevent its use, and the commissioner of highways thereatened legal proceedings; and it also appears that he objected to placing the highway on the 130-foot strip, on the ground that horses would be frightened, etc. The original company thereupon applied to the plaintiff to purchase a strip on the hill for the highway, and did make such purchase, paying the plaintiff $500 for the land. But the plaintiff expressly refused to release the company from the obligation under the covenant in the original deed; and insisted that the company should build the road on the west side of the 130 feet, as provided therein. It was shown on the part of the defendants that the construction of a highway under the hill, as provided in the covenant, would, by reason of the blasting which would become necessary, and other difficulties, be very expensive, and would cost from $12,000 to $14,000, and that the company had expended from $6,000 to $10,000 in constructing the road over the hill. Subsequent to the commencement of this action, the New York, West Shore & Buffalo Railway Company became insolvent, and its provperty was sold on foreclosure, and was purchased by individuals who subsequently conveyed it to a new corporation, the West Shore Railway Company, which latter company leased it by a perpetual lease to the New York Central & Hudson River Railroad Company. The two latter corporations were brought in as parties defendant. There was proof tending to show that the value of the plaintiff's farm had been greatly impaired by the obstruction of the old highway, and that it would be worth $5,000 more than it now is if the covenant in the original deed had been performed. The judgment of the court awarded the plaintiff $2,500 as damages for the failure to construct the road as provided in that deed, and adjudged that the defendant the West Shore Railway should construct a crossing under its road at a point indicated, to enable the plaintiff to reach the old highway and the new road over the hill.

Hamilton Harris, for appellants.

J. A. Griswold, for respondent.

ANDREWS, J., ( after stating the facts as above.)

The New York, West Shore & Buffalo Railway Company, by the acceptance of the deed of February...