
    Mary S. Eldridge, Resp’t, v. The Rochester City & Brighton R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Street Railroad — Consent op part owner.
    At the time a street railroad was constructed plaintiff was seized of one-half of the premises in question and, for value, consented to such construction; the owner of the other half did not consent. Subsequently, plaintiff bought the other half, and upon defendants attempting to construct a switch in front of the premises, brought an action for an injunction. Held, that the former contract did not avail defendant and that the action could be maintained.
    Appeal from a judgment entered on the decision of the Monroe special term, restraining the defendant from laying down additional tracks in Court street in the city of Bochester.
    
      Thos. Raines, for app’lt; David Hayes, for resp’t.
   Barker, P. J.

The plaintiff, being the owner of the premises situate on the south side and bounded by the center of Court street in the city of Rochester, brought this action to restrain the completion and use of a switch which the defendant was proceeding to construct on the southerly side of the center of that street in front of her premises. The relief sought was given by the judgment appealed from. The defendant, a street railroad company, in 1884 constructed its road along the center line of Court street and through several other streets of the city. With a view to procure the right to do so, the defendant had procured from property owners their assent, or grant, in writing, under seal, in form and to the effect that they severally, for value received, of the defendant, granted and conveyed to it a right of way in and through Elm street, Chestnut street, James street, Court street, Union street, and Gardner park to Alexander street, by and in front of the lands of said streets belonging to them wholly or in part, for the purpose of constructing and operating a horse railroad, as authorized "by the common council of the city of Rochester. It was so authorized by the common council; and the road has, since its -construction, been operated by the defendant. The plaintiff makes, in this action, no objection to the continued operation of the road upon the line as constructed, but her complaint has relation to a switch, which, in August, 1887, it was proceeding to construct along her premises and on the southerly side of the track as originally laid by the defendant.- The fee was in the plaintiff at that place and the defendant had no right, except through that of eminent domain, without her consent to construct the switch there. Craig v. Rochester City & B. R. R. Co., 39 N. Y., 404.

The contention on the part of the defendant is that this was accomplished by the grant before mentioned, made by the plaintiff. At the time that grant was made the plaintiff had title to only one undivided half of the premises in question as tenant in common with one Shepard, who did not join in or give any consent to the construction of defendant’s road in the street.

This was the situation until in January, 1887, when the plaintiff took title from Shepard to the other half, and became the sole owner of the premises. The nature of the plaintiff’s grant, when made, and the legal effect of it upon her right, for the purpose of remedy and relief at the time she brought this action, requires some consideration. The plaintiff did not, and could not, by her grant, as ¿gainst her co-tenant, afford to the defendant any right to occupy with its road any portion of the street to which they held the fee, and the grant was void except so far as it might operate byway of estoppel against the grantor. 3 Washburne on Real Property, m. p., 565; Crippin v. Morss, 49 N. Y., 63; Marshall v. Trumbull, 28 Conn., 183; Adam v. Briggs Iron Co., 7 Cush., 361.

At the time the plaintiff made it the defendant acquired no right to construct the switch at'the place in question in front of her premises. It is, however, argued by the defendant’s counsel, that, although the plaintiff may have a remedy at law for injury to the interest subsequently acquired by her, she is not entitled to relief in equity, because the denial in her behalf of the right of the defendant to continue to operate its railroad track there would have the effect to destroy her grant, which she should not be permitted to do. But, as the defendant took no easement by the plaintiff’s grant when made, and as it contained no warranty, the interest subsequently acquired by the plaintiff in the-premises did not, in support of the grant, enure to the benefit of the defendant. A party cannot grant that which he has not at the time the deed is made, but he may be denied the right to assert the invalidity of it for the protection of interests afterwards obtained in the subject of the grant when it has been upon the assurance of enjoyment by the grantee. This rests upon the doctrine of estoppel, which is applied to avoid circuity of action. McCrackin v. Wright, 14 Johns., 193; Jackson v. Bradford, 4 Wend., 622; Pelletreau v. Jackson, 11 id., 110; Mickles v. Townsend, 18 N. Y., 575; Blanchard v. Ellis, 1 Gray, 195; Clark v. Baker, 14 Cal., 612.

Inasmuch, as the defendant took no easement by force of the grant, and as there is no support for estoppel against the plaintiff, upon the principle before stated, it is difficult to see how the plaintiff’s grant can furnish any right to the defendant as relates to the interest acquired by her after the instrument was executed, or deny her the right to the equitable relief which she seeks in this action.

There is no destruction of any grant produced by such result. The defendant never had any that was effectual to confer any right to appropriate that portion of the street to its use for a railroad. The fact that the plaintiff has since become the sole owner of the premises adds nothing to the right of the defendant in that respect. As the defendant was advised when that paper was ¡executed by the plaintiff that she had title to the undivided half only, there is no oppotunity to charge her by estoppel in pais.

Whether any benefit may result to the defendant by way of abatement or compensation by reason of the grant, in the event it should he secured in invitum to acquire the easement, is not now properly the subject of consideration. That might depend upon the determination of another question, upon which in the view taken, it is hnnecessary now to express an opinion.

Judgment should he affirmed, with costs.

Dwight and Macomber, JJ., concur.  