
    Emily S. Concklin, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Second Department,
    March 15, 1912.
    Beal property—suit to enjoin railroad company from maintaining fence across right of way — adverse user of property devoted to public purpose — deed — effect of restrictions in habendum clause — covenant to build fences affirmative — breach of covenant as ground for prescriptive right.
    Where, in a suit to enjoin the defendant, a railroad company, from maintaining a fence recently constructed across a right of way which the plaintiff claims to have acquired by prescription, it appears that during the last fifty years plaintiff and his predecessors and others have reached the highway by walking along the side of defendant’s tracks and across the same in front of a station, and that this user has been open, visible, continuous, peaceable, uniform, uninterrupted and with the knowledge of the defendant, the plaintiff’s user is not sufficient to create a prescriptive right of way over the defendant’s property which is devoted to a public purpose and freely resorted to by the public.
    
      It seems, that the plaintiff’s use is permissive rather than adverse, and not such as would constitute notice to the defendant of an adverse claim.
    More definite and distinctive acts of adverse user are necessary to establish a right of way over unfenced property appurtenant to a railroad station and commonly and openly frequented by the general public than are required to raise a presumption of a right of way over property devoted solely to private purposes.
    
      A statement in a habendum clause of a deed that property is to he held for railroad purposes does not limit the fee conveyed and, it seems, that the grantee may convey the fee.
    A covenant to build fences is an affirmative one running with the land.
    A breach of such covenant to build fences constitutes a wrongful act and cannot be the foundation for a prescriptive right.
    Appeal by the plaintiff, Emily S. Concklin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 17th day of January, 1911, upon the decision of the court rendered after a trial at the Dutchess County Special Term.
    
      Hersey Egginton [H. S. Concklin and Charles Morschauser with him on the brief], for the appellant.
    
      Robert Wilkinson, for the respondent.
   Hirschberg, J.:

This action is brought to enjoin the defendant from maintaining a fence across a right of way which the plaintiff claims to have acquired by prescription over the defendant’s railroad premises in the village of Amenia, Dutchess county. The facts are not disputed. One John B. Barker is the common source of title to all the property involved. In January, 1852, he conveyed a narrow strip of land, 1,568 feet long, running through his farm, to the New York and Harlem Eailroad Company. The deed of conveyance contained the following habendum clause: “To have and to hold the same to the said parties of the second part [the railroad company], their successors and assigns forever, for the purposes of the extension of the New York & Harlem E. E. as directed in the several acts of the Legislature of the State of New York in relation thereto.” In addition to this habendum clause and to the usual covenants of title, the deed contained a covenant whereby the grantor agreed for himself, his heirs and assigns, to make and maintain good and sufficient fences on both sides of said strip of land; and a covenant whereby the grantee agreed forever to “ make and maintain good, sufficient and convenient crossing places across said Eailroad to and from the land of the said party of the first part on each side of said strip of land so taken for said railroad, pursuant to the Acts of the Legislature in relation thereto.” By lease made in 1873 for a period of 401 years, the respondent became the lessee of the New York and Harlem Eailroad Company and as such is now in possession of the property in question, operating a steam railroad over the same and maintaining a station for its passengers on a part thereof in the village of Amenia. In September, 1852, Barker conveyed approximately half an acre lying south of and adjoining the railroad property to appellant’s predecessor in title. The dwelling thereon now used by the appellant as a residence was erected in 1853.

In 1856 Barker conveyed a parcel of land lying west of and adjacent to appellant’s premises and southerly of and adjoining the railroad property to Enoch G-. Caulkins. Those premises lie between the plaintiff’s lot and a public highway known as Mechanic street, which crosses the railroad tracks at right angles and leads into the village of Amenia. The Caulkins property is now owned by one Lewis E. Barton, who maintains a hotel thereon.

The covenant to fence, made by plaintiff’s predecessor, has never been performed. During the last fifty years appellant’s predecessors and the appellant, as well as their servants and visitors, have reached said highway from the premises by walking along the southerly side of said railroad premises and across the same in front of the station to the highway. This user has been open, visible, continuous, peaceable, uniform, uninterrupted and with the knowledge of the respondent. A similar use of the railroad property seems also to have been made by the owmers of the premises adjoining the appellant’s property. In 1906 the respondent built a fence along the south line of its property, thereby closing the alleged right of way. From the judgment refusing to enjoin the maintenance of that fence the plaintiff appeals.

It has been suggested that as a railroad company possesses merely an easement for railroad purposes, and that as the land reverts to the original owners upon the abandonment of the railroad franchise, it is incapable of conveying a fee, and hence the presumption of a lost deed as the basis of a prescriptive right cannot be indulged against it. (See Roberts v. Sioux City & Pacific R. R. Co., 73 Neb. 8; 2 L. R. A. [N. S.] 272; Southern Pacific Co. v. Hyatt, 132 Cal. 240; 54 L. R. Á. 522; Missouri, K. & T. Ry. Co. v. Watson, 74 Kan. 494; 14 L. R. A. [N. S.] 592; Northern Pacific R. Co. v. Ely, 197 U. S. 1; Northern Pacific Railway v. Townsend, 190 id. 267.) In the case at bar, however, the respondent did not acquire the property in question by condemnation proceedings in the exercise of the power of eminent domain. The deed from Barker vested it with the fee. (Nicoll v. N. Y. & E. R. R. Co., 12 N. Y. 121; Kenney v. Wallace, 24 Hun, 478; Beal v. N. Y. C. & H. R. R. R. Co., 41 id. 172; Yates v. Van De Bogert, 56 N. Y. 526.) The statement in the habendum clause that the property was held for railroad purposes did not limit the fee conveyed. (Vail v. L. I. R. R. Co., 106 N. Y. 283; Nicoll v. N. Y. & E. R. R. Co., supra.) It would seem, therefore, that the respondent could convey the fee of the property. I do not, however, deem it necessary to determine whether the respondent could dispose of that property in such a manner as to interfere with the proper exercise of its public franchise, or whether an easement could be acquired by prescription in such premises, if said easement in any way interfered with the proper exercise of such franchise, because I do not believe that the appellant has fairly established that her user of the premises in question, was adverse. Her contention is that the open, visible, notorious, peaceable, continuous and uninterrupted use of the way for fifty years raises a presumption of adverseness, unless affirmatively shown by the respondent to have been by license, and cited in support of such contention are Hammond v. Zehner (21 N. Y. 118); Colburn v. Marsh (68 Hun, 269; affd. on opinion below, 144 N. Y. 657); Hey v. Collman (78 App. Div. 584; affd., 180 N. Y. 560); Miller v. Garlock (8 Barb. 153); Nicholls v. Wentworth (100 N. Y. 455); Winne v. Winne (95 App. Div. 48); Townsend v. Bissell (4 Hun, 297); Law v. McDonald (9 id. 23), and Schwer v. Martin (29 Ky. L. Rep. 1221). Without analyzing these cases in detail, it is sufficient to say that they are distinguishable from the case at bar in that they present instances where the right was acquired over property devoted solely to private purposes, and where, consequently, less definite or distinctive acts might be held sufficient to raise a presumption of adverse user than would he required in order-to establish a right of way over unfenced property appurtenant to a railroad station and commonly and openly frequented by the general public.

User of grounds thrown open to the public in connection with the use of a public or quasi-public building is ordinarily to be considered permissive and not adverse, unless there be some distinctive act indicating a separate and exclusive use under a claim of right sufficient to notify the owner, not only of the user but of the claim of right. (See Jones Ease. § 285, and cases cited.) While there do not seem to be any authorities precisely in point with the facts in the case at bar, the trend of judicial decisions seems to be towards a holding that such a user as the plaintiff’s is not sufficient to create a prescriptive right of way over property devoted to a public purpose and freely resorted to by the public. The record contains no evidence of any decisive act upon the plaintiff’s part indicating a separate and exclusive use from which knowledge of' a claim of right could be presumed by the respondent. (Kilburn v. Adams, 7 Metc. 33; Inhabitants of Gloucester v. Beach, 2 Pick. 59; Plimpton v. Converse, 44 Vt. 158; Strong v. Wales, 50 id. 361; Burnham v. McQuesten, 48 N. H. 446.) In Kilburn v. Adams (supra) it appeared that the plaintiff owned lands adjoining property upon which was situated an academy, and claimed a right of way from his land over the academy lot to a highway." The academy land had been left open during many years and crossed in all directions by the general public. The court held that although the plaintiff made more frequent use of the land than others, such use was not inconsistent with the proprietor’s rights and could not be the basis of an easement by prescription in the absence of some decisive act on the plaintiff’s part indicating a use separate and exclusive from the general use. To the same effect in prmciple is the recent decision of this court in New York Central & H. R. R. R. Co. v. Village of Ossining (141 App. Div. 765), wherein it was held that the mere use of a way opened to the public by a railway company did not operate to dedicate the land to the public as a highway.

Within the principle of the cases herein referred to, I think • that the plaintiff’s use was permissive rather than adverse, and not such as would constitute notice to the respondent of a claim adverse to its ownership of the property, and I agree with the language of the learned trial justice (Mr. Justice Mills) in the opinion rendered herein at the Special Term, viz.: It does not appear to me that a railroad company, by leaving its lands about one of its stations open and unfenced in all directions, is submitting to an adverse use of a part of them simply because a neighboring landowner drives or walks over such part to and from his own premises. No authority expressly to the contrary effect is cited. The instances of such collateral user continued for a much longer period than twenty years are abundant throughout the country, and it seems quite remarkable that no precedent directly upon the point has been established or at least found by the counsel. The user by plaintiff and her predecessor must be deemed upon the evidence to have been permissive and under an implied license, and not adverse.”

It may be further noted that the appellant has no right of way by necessity, as the original Barker deed grants a right of way to the highway distinct from the way claimed by prescription.

The failure of the plaintiff and her predecessor to build and maintain fences along the respondent’s line pursuant to the covenant in the Barker deed does not tend to establish an adverse user. The covenant was an affirmative one, running with the land, and the operation of the Statute of Limitations would not commence until demand and refusal. (Bronson v. Coffin, 108 Mass. 175, 188; Talmadge v. R. & S. R. R. Co., 13 Barb. 493, 498.) The alleged breach of this covenant would constitute such a wrongful act as could not be the foundation for a prescriptive right. (Thomas v. Marshfield, 13 Pick. 240, 248.)

The judgment should be affirmed.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Judgment affirmed, with costs.  