Vail v. Long Island R. Co.

• Decision Date: 28 June 1887
• Parties: VAIL v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 283

12 N.E. 607

VAIL

v.LONG ISLAND R. CO.¹

Court of Appeals of New York.

June 28, 1887.

Appeal from general term, Second department.

E. B. Hinsdale, for appellant.

T. M. Griffing, for respondent.

ANDREWS, J.

The complaint alleged an unlawful entry by the defendant on the lands of the plaintiff for the purpose of constructing a side track of the defendant's road thereon, to be used in connection with its depot at Riverhead, and for depositing cars, engines, and freight, and loading and unloading cars.

With a view to equitable relief by injunction, it was averred that the acts of the defendant would occasion great injury, annoyance, and nuisance to the plaintiff, his family, business, and dwelling-house; the latter being only 111 feet from the main track of the defendant's road. The defendant, in its answer, among other things, put in issue the plaintiff's title to the land over which the side track was being constructed. The judge before whom the action was tried, found that the plaintiff was owner in fee of an undivided sixth part of the land occupied by the side track, and that the defendant had no title thereto, and ordered judgment in favor of the plaintiff restraining the defendant from occupying or using the premises for its track. The plaintiff in his complaint, and upon the trial, rested his right to recover exclusively upon his legal title to the land, and the invasion of his right as owner by the act of the defendant. This was the issue tried, and was found by the court for the plaintiff, and the judgment was based upon and pursued the complaint and finding. The correctness of the judgment must depend, therefore, upon the correctness of the finding upon the question of title. The general term, without passing upon the question, affirmed the judgment on the ground that, independently of the question of the ownership of the soil, the plaintiff had rights as abutting owner in the highway over which the track was laid, which were affected by the act of the defendant, and entitled the plaintiff, on account of the special injury suffered by him, to maintain the action. Mahady v Bushwick R. R., 91 N. Y. 148. But this ground was not suggested in the pleadings, nor, so far as appears, on the trial. The complaint made no reference to a highway, and the fact that the defendant's side track was in the highway appeared for the first time on the trial. It would be very unjust to affirm the case upon a ground so foreign to the issue presented by the pleadings. The plaintiff must therefore stand or fall upon the question of legal title.

It is conceded that the land embraced in the highway was originally owned by one Charles Vail, the father of the plaintiff, who died leaving a will, which was duly proved, by which he devised to his six children, as residuary devisees, his lands not specifically devised. The specific devises in the will did not embrace the part of the highway over which the side track of the defendant is laid. To meet this prima facie evidence of title to the locus in quo in the six children of the testator, the defendant put in evidence a deed executed in 1848 by the testator and others to the town...