
    George Naylor, Jr., and John Naylor, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    April 19, 1907.
    Pleading — complaint;— riparian rights.
    In an action to establish riparian rights on the Hudson river; the complaint alleged in substance that prior owners of uplands received a grant of'lands under waters-of the Hudson river; that said owners conveyed to the defendant railroad a certain piepe of said land comprising the lands under water theretofore granted; that the defendant reconveyed to the plaintiffs’ grantor, who had become the owner of the original parcel, án additional strip, so that the \ plaintiffs are owners of premises which are uplands of the river, which, but . for the premises purchased by the defendant, would abut upon and be bounded - by th.e waters; that the lands occupied by the defendant are -used- solely for railroad purposes; that the right of the defendant to construct and operate its road is subject to the riparian rights of the plaintiffs to cross and recross for access to the river, and that the defendant has constructed upon its lands certain tracks, switches, etc., which prevent the plaintiffs from crossing, to the impairment of their riparian rights. On demurrer,
    
      Held, that the complaint stated a cause of action.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 9th day of July, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendants demurrer to the complaint.
    
      George II. Walker [A. ¡1. Harris with him on the brief], for the appellant.
    
      Nathan P. Pushnell, for the respondents.
   Jenks, J.:

I advise affirmance. The action is to establish riparian rights on the Hudson river. The appeal is from an interlocutory judgment overruling a demurrer that the complaint does not state facts sufficient to constitute a cause of action. The plaintiffs complain that in 1838 Isaac Seymour and two others were tenants in common of land abutting on the Hudson river, which were uplands; that as such owners they received in that year a grant of land under water from the Commissioners of the Land Office, which became absolute in them upon tlieir compliance with the conditions thereof; that thereafter and in 1848 Seymour, who had become sole owner, used all the lands as one parcel which abutted on the river; that in that year Seymour “ duly conveyed to the Hudson River Railroad Company by deed.” a certain piece of land which comprised the land under water theretofore granted by the said Commissioners, together with a portion of the said uplands; on information and belief that the said lands so conveyed to said company “ are now owned and occupied by the New York Central and Hudson River Railroad Company, the defendant.” Plaintiffs complain that in 1867 the defendant conveyed back to David Seymour, who had become pwner of the original parcel, an additional strip on the easterly line of the ¡property theretofore conveyed by Isaac Seymour to the defendant, and that by mesne conveyances the plaintiffs now are ■ the owners in fee of such parcel, so that tile plaintiffs are the owners of the premises which, are the uplands of the Hudson fiver, “ which but for the premises purchased by the said New York Central and Hudson River Railroad from Isaac. Seymour as aforesaid would abut upon' and be bounded by the waters ” thereof, and that by reason thereof the plaintiffs are still riparian owners. Plaintiffs complain that the lands so sold by Isaac Seymour and now owned" and occupied by the defendant' “ are used solely for railroad purposes and for the construction, management and operation of its railroad and structures thereon and for no other purpose whatsoever; ” that by reason of the premises and the fact. that the plaintiffs are the owners, of lands which would be uplands but for the said strip so owned and occupied by the defendant, the right of the defendant to construct, manage, operate and maintain its railroad is subject to the riparian rights of the plaintiffs to cross and recross for access to- the river for navigation, fishing and other uses incident to such ownership, including the right of passage to any landing-wharf. or port which lawfully has been or. may be made, by plaintiffs; that the defendant company have constructed upon their land thus owned by them and. maintain thereupon for the uses of their road certain tracks ■ with high projecting rails, ties,- switches and . turn-tables, which. * ,* . prevent plaintiffs from crossing ” the land, to the impairment of. their riparian rights, and that defendant denies to. the plaintiffs the exercise of such- or any riparian rights.

The, defendant to .sustain its demurrer . submits, fit'st, that, the charter of the.Hudson Biver Bailroad-Company (Laws óf 1846, chap. "216, .§ ,9) provides that. ‘Í The said .corporation, is hereby empowered to purchase, receive and hold, in fee simple, such real ■ estáte and other property as may.be necessary ip accomplishing the objects for which thjs corporation.is granted, and may also receive, hold and take such voluntárygrants and donations of real estate and other property as shall be made to the said corporation, to aid in the construction, maintenance and accommodation of said railroad and ways, which real estate shall be held and. used for those purposes only.” This section was amended by. chapter 30 of the-Laws of 1848 by inserting the words .which voluntary grants and donations ” before the last .words of the section “shall be held and used, for those purposes only.” ■ And the defendant then points out that there is no allegation in the complaint that the lands were acquired for the construction, maintenance and accommodation óf said railroad, or that- they were ' acquired by voluntary grant, but the allegations are that the lands were duly conveyed to said railroad company and are used for railroad purposes and for the construction, management and operation of the railroad and structures theréon, and insists that this is not an allegation of the conveyance of a strip of land for the purposes of a right of way under the voluntary grant' clause of said' charter, but an allegation of the purchase by the company of that parcel of land, and that the defendant has the right to use this land for all railroad purposes, and to build docks thereon if’ it should so desire in aid of railroad purposes; and, second, that the plaintiffs are not riparian owners in that their, lands are not adjacent, to and are not bounded by the river. -

Such alleged rights cannot be-resblved in- favor of the plaintiffs simply because.the defendant owns and uses lands as a railroad corporation,' nor in favor of the defendant because the lands were conveyed to it arid are heldby. it in fee. ■ The railroad corporation could purchase, hold and use lands to the exclusion of such.riparian rights. (Matter of N. Y. C. & H. R. R. R. Co., 77 N. Y. 248; Wetmore v. Atlantic White Lead Co., 37 Barb. 70, 94.) - And yet a grantor of" lands may not have divested himself of his' riparian rights. (Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 423 ; N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 id. 95; Saunders v. N. Y. C. & H. R. R. R. Co., 144 id. 75, and concurring opinion by Pboicham, J., at page 90.) On the other hand, the mere alle- . gation of a conveyance of the lands so that the defendant held them in fee is not conclusive against, the existence of such riparian rights. (Rums'ef s Gase and' Aldridgds Oase, supra.) Without intending to indicate any rule for this case, I suggest that there may well be a manifest and. radical difference, so far as riparian rights are concerned, between land held in- fee and Used .solely for the roadway of a defendant corporation,-and land.held in fee and used by such corporation for. other and legitimate purposes which would be incompatible with the existence and exercise of such rights as are asserted by the plaintiffs.'

The sole question which I shall decide is whether the complaint stands against this demurrer. In Coatsworth v. Lehigh Valley R. Co. (156 N. Y. 457) the court, per Martin, J., say : The facts stated are admitted by the demurrer, Hence, the only question is whether a cause of-action is alleged or can be fairly gathered from all the averments contained in the complaint. A demurrer upon that ground can be sustained only when it appears that, after admitting all the facts alleged of that can by reasonable and fair intendment be implied from'them, the complaint fails to state a cause of action. (Marie v. Garrison, 83 N. Y. 14; Sanders v. Soutter, 126 N. Y. 195.) Under the more recent authorities, pleadings are not to be construed strictly.against the .pleader, but averments which sufficiently point out the nature of the pleader’s claims aré sufficient, if under them he Would be entitled to give the necessary evidence to establish his causé of action. (Rochester R'way Co. v. Robinson, 133 N. Y. 242, 246.) ” If the reasonable import of a complaint is a cause of action a demurrer does not lie because the language of the complaint permits ah exclusion of such cause of ,action. (Olcott v. Carroll, 39 NM. Y. 436 ; Ketchum v. Van Dusen, 11 App. Div. 332.). Within these rules I think the complaint is sufficient to demand. an answer, and I have, therefore, advised affirmance of this judgment, with costs.

Hirsohberg, P. J., Woodward, Hooker and Miller, JJ., concurred. .

'. . Interlocutory judgment affirmed, with costs. .  