
    Washington H. Bird, Respondent, v. The New Jersey and New York Railroad Company, Appellant.
    
      Adverse possession—notice of claim by the record of a mortgage referring to, but not accompanied by, a survey showing the route — abandonment of such a claim —- effect of entering under a license.
    
    In an action of ejectment, to which the defense of adverse possession was interposed, it apjpeared that a mortgage of its railroad property, generally, made hy the defendant's predecessor in title on November 1, 1870, and recorded on December 30, 1870, referred to the property “ as the same is located by survey duly filed in the office of the clerk of the county of Rockland,” whereas in fact no survey was then filed, nor was any survey filed until June, 1871.
    
      Held, that the mortgage did not constitute a claim of title of which notice must he deemed to have been taken by reason of the record.
    Where it appears that after-the filing of such a mortgage the railroad company negotiated with the owner of the land, and promised to pay a certain sum for its use, such action on its part constitutes an abandonment of any adverse claim of title based upon the mortgage.
    Where a railroad company promises to pay a certain sum for a right to use lands for railroad purposes, and thereafter ‘enters upon the land, its possession is deemed to he subordinate to the rights of the owner until the conditions entitling the buyer to a conveyance have been fully performed.
    Where there is a- license to occupy, land no adverse possession can grow out of ■■ such occupancy.
    Appeal by the defendant, The Yew Jersey and Yew York Railroad ■Company, from a judgment of the Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Rock-land on the 10th day of August, 1895, upon the decision of the court' rendered after a trial at the Rockland Circuit before the court without a jury.
    
      jRobert Thorne, for the appellant.
    
      George B. Bristor, for the respondent.
   Willard Bartlett, J.:

By the judgment in this action the plaintiff has established his right to the possession of a strip of land near Union Station, in the county of Rockland, occupied for railroad purposes by the defendant. The sufficiency of the proof of the plaintiff’s title' is not questioned, except so far as the defendant claims that it is defeated by the evidence of adverse possession.

In order to make out the defense of adverse possession it was necessary to show that the railroad company had been in open, continued and actual occupation of the premises in controversy for more than .twenty years before the commencement of the action; and, furthermore, that such possession had been under a claim of title hostile to that of the plaintiff. The court found that the defendant and its legal predecessor had been in open, continuous, notorious and actual possession of the strip of land described in the complaint for more than twenty years, but held, in substance, that such possession was subordinate, instead of adverse, to the plaintiff’s title.

A mortgage of the railroad property generally was made by the defendant’s predecessor in. title on November 1 and recorded on December 30, 1870. The railroad company had not then taken possession of the land in controversy. The mortgage referred to the mortgaged railroad property “ as the same is located by survey duly filed in the office of the clerk of the county of Rockland.” As matter of fact no such survey had then been filed. In June of the following year, however, the railroad company filed in the office of the county clerk a profile and location of its right of way, showing that the railway line was located upon the identical lands described in the complaint. Upon these facts it is contended, in behalf of the appellant, that the mortgage constituted a claim of title to the lands in suit adverse to that of the plaintiff or his predecessors, and of which they, must he deemed to have had notice by reason of the record of the instrument.

I do not think this position is tenable. No one inspecting the mortgage, at the time when it was recorded, would find, anything in it to indicate that it could, by any possibility, refer to the premises which are the subject of this suit. It spoke of a survey as having been already duly filed in the office of the county clerk. If the searcher had looked for that survey he would have looked for it in vain. Eor the purposes of notice, I do not see on what principle it can be held that the profile, which was filed'with the county clerk six months later, referred back to that instrum nt, so as to constitute a part of it. A document, thé record of which is to give notice at the time of a particular state of facts, must contain, either in itself or by reference to other sources of information, some indication of the facts of which notice is to be given. So far as this mortgage referred to the survey, it referred to something which did not exist at the time of its record or come into existence until long afterward.

The mortgage also purported to convey to the mortgagees the railroad as the same was being constructed, including the roadway, lands, bridges, rails, embankments and other superstructures built or being built at the time it was executed. It might be .said that this provision was broad enough to cover the premises to which this suit relates, if the railroad company had then entered upon those premises, but the proof shows that no entry was made upon the land in question until 1871, and probably not until 1872.

.But even if a claim of title, adverse to that of the record owners, could be spelled out of this railroad mortgage and profile and. the filing of the same, the proof in this case shows very clearly that the railroad company abandoned any such claim when, in the process of construction; the premises in controversy were reached. The civil engineer and surveyor, who represented the corporation in acquiring its rights of way and in negotiating with land owners for that purpose, had a conference with tlíe agent of the lady who then owned this property; he promised to' pay $500 for the use of the ground if the railroad company was allowed to occupy it, and it is apparent that-it was on the strength of this promise, and only in consequence thereof, that the construction of the line was permitted over the land in question. The testimony of the witness who represented the owner in the negotiations, is not substantially contradicted by the civil engineer who acted in behalf of the railroad company. He, himself, stated that' his' business was to go round and buy land, and that he offered to buy this property if the owners would give him a deed. He could not recollect offering or agreeing to pay anybody a specific sum for this land, but would not swear that he had not done so. There is other testimony which sustains the statement made by the learned trial judge, in the course of' his opinion, that “ instead of claiming-title the defendant and its predecessors have all along been promising to pay the amount agreed to be paid when let into possession under the license.”

Upon the entire evidence as to the circumstances under which- the railroad company entered upon the property, it. is quite clear that there was either an agreement to purchase for a specified 'sum, or a simple license to occupy until some terms should be arranged between the parties. In neither case could the occupation be deemed adverse. Where an intending purchaser enters upon land which is the subject of the contract, his possession is deemed subordinate to the rights of the owner until the conditions entitling the buyer to a conveyance have been fully performed. (Matter of Dept. of Parks, 73 N. Y. 560, 566.) If there was a mere license, no adverse possession could arise out of the railroad’s occupancy of the land by permission. (Borden v. South Side R. R. Co., 5 Hun, 184 ; affd. in 67 N. Y. 588.)

Only one other point requires notice. The appellant contends that the plaintiff has been permitted to recover too much land, inasmuch as the evidence shows that it actually occupies a strip only eight feet wide, whereas the strip described in the complaint is sixty-six feet in width.' f do not think this objection is available. At the express request of the defendant’s counsel the trial court found that the defendant and its legal predecessor had been for more than twenty years in actual possession “ of .the strip of land described in the complaint.” This is a finding, made at the defendant’s own instance, that it was in occupation of the entire parcel which the plaintiff sought to recover. The request was made at the end of the trial and in the light of all the evidence, and the appellant has no ground for complaint because the court complied with it.

The judgment should be affirmed, with costs. •

All concurred.

Judgment affirmed, with costs.  