
    William Scheer, Appellant, v. The Long Island Railroad Company, Respondent.
    Second Department,
    June 12, 1908.
    Real property — uses and trusts — trust with right of beneficiary to possession and profits — title of life tenant having power of sale —• eminent domain—^ error in naming owner— failure to record order—estoppel — equity — easements—extent of title by prescription.
    A conveyance of lands to a trustee to hold during the natural life of the grantor’s wife with power in said wife to convey or incumber the same with the consent of the trustee, with remainders over in case the wife should not convey or incumber before her majority and the majority of the grantor’s youngest child, prescribes no trust, and the title vests in the beneficiaries named and not in the trustee.
    Moreover, as the absolute power of disposition was given to the wife free from any trust as to the proceeds, her life estate is by virtue of the statute changed into a fee, as against her creditors or grantees.
    Hence, when the wife during the minority of a remainderman conveyed by a deed in which the trustee and her husband joined, and after receiving a reconveyance from her grantee, the lands were condemned in proceedings to which she was a party, the title so acquired is "superior to that of one holding under subsequent conveyances by the wife and the remainderman. It follows that the subsequent grantee is not entitled to maintain a suit to restrain trespass by the successor to the title acquired by eminent domain.
    Although in said condemnation proceedings the petition alleged that the lands were owned by the original grantor and that the wife and her husband, who was misnamed, claimed to have some interest therein, the proceeding was not thereby invalidated, if in fact the petition was amended to describe her as the, owner and wife of the grantor, and she appeared, claimed to be the owner and was paid the award.
    Although a certified copy of the order in condemnation proceedings was not filed as required by the statute, the owner and her successors are estopped from denying that title*vested, if she allowed an entry before the recording of the order and accepted the award.
    In any event, the original failure to record the order is cured,if a certified copy has in fact been recorded, for equity gives relief on the facts as they exist at the time of deciding the case.
    A railroad in possession of lands for over twenty years under condemnation proceedings brought to acquire a right of way but which were void for failure to join the true owner, does not acquire title by adverse possession under section 869 of the Code of Civil Procedure, but merely an easement by adverse user.
    Ho possession not under a claim of title in fee and exclusive of any other right in the land is adverse to the legal title so as to bar the owner or ripen into title by lapse of time. Section 369 of the Code of Civil Procedure has no applica- ' tion to possession under a ciaim • to some use, term, or interest less than a fee. An easement by -prescription obtained by twenty years’ continuous user covers only the amount of lands actually used.,
    A railroad which has acquired a sixty-foot right of way by prescription does not obtain an easement over an adjoining strip by annually mowing weeds thereon.
    . Appeal by the plaintiff, William Seheer, from a judgment of the Supreme Court in favor of. thq defendant, entered in the office of the cleric of the county of Queens on the 17th day of February,. 1906, upon the report of a referee, dismissing the complaint upon the merits.
    The suit is to restrain continued trespasses by the defendant on real estate of the plaintiff. The Bockaway Bail way Company instituted condemnation proceedings in 1871 to acquire a strip 99 feet wide for its right of way, and the defendant, as its successor, claicqs through the said proceedings.
    
      David B. Ogden [Charles S. Noyes with him on the brief], for the appellant. .
    
      James W. Treadwell [Joseph F. Keany with him on the brief], for the respondent.
   Gaynor, J.:

The plaintiff’s land is along the defendant’s railroad on both sides, the frontage thereon being about 350 feet. The land in dispute is two strips 19J feet wide in the right of way claimed by the defendant, which is a strip 99 feet wide, viz., one' on each side thereof, leaving a strip 60 feet wide in the middle. The plaintiff thus concedes to the defendant a strip 60 feet wide through the center of the said strip' of 99 feet, although the defendant’s predecessor acquired title to. the whole strip or else to none by the condemnation proceedings under which the defendant claims and which the . plaintiff assails.

The question is whether the condemnation proceedings were effectual to acquire the railroad use or easement which the defendant claims, and that depends on whether the said proceedings were • against the owner of the land. The plaintiff claims that the title was in Ann Horton, wife of. Samuel R. B. Horton, for .her life, remainder in fee to their children, when the condemnation proceedings were begun in 1871; and his title is from all of them by deeds of conveyance made in 1892 and 1893. The defendant claims that the title was in the said Ann Horton alone in fee; and in this it is correct. The common source of title is the said Samuel R. B. Hor-. ton. In 1854 he conveyed a large tract which embraced the premises in dispute to his son John L. B. Horton “as trustee of and for Ann Horton, -wife of said party of the first part ” ; “ To have and to hold during the natural life of the said Ann Horton, with power to mortgage, lease or sell the same or any part thereof by and with the consent of said trustee, but should she not mortgage, lease or sell the same before the youngest child of the said grantor and the said Ann Horton becomes twenty one years of age, then not to mortgage, lease, or sell at all without the consent of said children, but to hold the same during her natural life, and then to be divided equally” among the said children-. Ho trust being prescribed, the title vested in the nominal beneficiaries, i. e., in Ann Horton, the wife, for her life, remainder to the children (1 R. S. 728, § 49). But the absolute power of disposition given to the wife, free from any trust as to the proceeds, changed the life estate to her into a fee in respect of her creditors or grantees (Id. 732, §§ 81, 85). In 1862, one of the children being still under age, she conveyed the tract to her son George C. Horton for an expressed consideration of $3,000, the said trustee and her husband joining therein, and by a deed of the same date the said grantee conveyed the same premises back to her. It is claimed that these two conveyances were a mere subterfuge to get the fee absolute in Ann Horton, and that they were therefore void. They were not void; at most they could have been voidable at the suit of the remaindermen, if their mother was under any trust duty to them in respect of the property. But she sustained no such relation to them. She had an absolute power of disposition of the property for her sole benefit. Having such power she had the right to execute it in any way she saw fit, and therefore no way she might adopt could be 'an unlawful subterfuge. It was only necessary, that the so-called trustee consent, and that he did by joining with her in the deed.

The railroad condemnation proceedings embraced three parcels. The'commissioners appraised and reported on each parcel separately. -A part of the strips in dispute. (116 feet in length thereof) is embraced in the description of the "large parcel which is first in the order of confirmation, and the remainder in that which is second.

The allegation of .the petition in respect of the first is that it is “ owned or claimed by Samuel B. B. Horton”, and that “John L. Horton, jr., and Ann Hoi-ton, his wife, have or claim to -have' some interest in said premises ”. The husband of the o.vvner Ann Horton, from whom she had got title in -the way already stated,, is alleged to be owner, and she is misnamed the wife of John L. Hor-' ton, jr. But it is not necessary to discuss the effect of this, for she was served and appeared in the proceeding, and claimed to be the owner'of this parcel, and the award was made to her as owner by the commissioner’s report, and the orde'r óf' confirmation, made in 1872, recites that the petition was .amended by describing her as wife of S&muel B. B. Horton and as owner, and directs'the award to be paid to her as owner.' The said order was made on notice to her. The referee has found on sufficient evidence that the award, was paid to her, and the. railroad went into possession and laid its first track in 1872.. This all sufficed to vest the railroad' company with the use or easement which the statute enabled it to acquire by such proceedings.

It is-claimed by the plaintiff, however, that such vesting never occurred for failure to record a certified copy of the order of confirmatiomin the county clerk’s office. Section'18 of the said statute (Ch. TáO, Laws of 1850) provides’ that “ A certified copy of the order so to be made as aforesaid shall .be recorded at full length in the clerk’s office of the county in which the land described in it is situated, and thereupon and on the payment or deposit by the company of the sums to he paid as compensation for the land * * * the company shall be entitled to enter upon, take possession of and use the said land for the purposes of its incorporation during the continuance of its corporate existence ”, etc. How, if it were taken to be- the law that the recording of a certified copy of the order was á prerequisite to the vesting of the easement in the company, and that therefore it would not -he in a position to lawfully enter, or obtain an order, or mandate giving it possession, against the objection of the landowner, until it had complied-'with such prerequisite, that is not the case before us. If the owner allow the company, to enter before the recording of the order, and accept payment of the award, which is the case here, he is not in a position to assert that the company did not acquire and become vested with the interest sought. The making of the order of confirmation created the reciprocal rights of vendor and purchaser between the landowner and the company and entitled the former to a precept for the collection of the award (Matter of Rhinebeck & Connecticut R. R. Co., 67 N. Y. 242). The fact that the order is not-recorded does not detract from its effect (Oberfelder v. Metropolitan El. R. Co., 138 N. Y. 181). The opinion in Lent v. N. Y. & M. R. Co. (130 N. Y. 504) is not to the' contrary. There was there only a question of the sufficiéncy of the complaint in an action by the landowner against the company -to collect the award as a debt, as allowed by the amendment of section 18 of the railroad act of 1850 in 1876 (Chap. 198, Laws of 1876). Such amendment provided that the landowner might have the certified copy of the order recorded if the company neglected to do so for ten days, and gave the company the right to abandon the proceedings within thirty days after notice in writing of such recording. The complaint was therefore insufficient for not alleging the recording of the order and the expiration of the time for abandonment, for there was no debt due until that time. The remarks on this head in the opinion in the Oberf elder case are only to the same effect. There is no question of purchaser without notice here. The commencement of the proceeding was made notice by the said statute as amended (Chap. 282, Laws 1854) in respect of all persons made parties; and the order was not required to be recorded as a deed, i. e., in a book of deeds (Morgan v. N. Y. & M. R. Co., 130 N. Y. 692). Moreover, a certified copy of the order has been recorded since this suit was brought, and the fact is available, as is the rule in equity, where relief is given on the facts as they exist up to the time of, deciding the case.

The petition names S. Williams as the owner .of the said second parcel described'in the order of confirmation, and John L. Rorton, jr., and Samuel R. B. Rorton as having or claiming some interest, Whereas the land was owned by Áilil Rorton, as already shown. I$h© award was made to Williams»' He did not appear, and the proceedings went by default in respect of this parcel. The owner not being a party, nothing was acquired in this parcel by the proceedings ; but the company having taken possession in 1872 under the order of confirmation, and continued therein with its tracks and operating its railroad ever since-, it is claimed that it has thereby acquired title by adverse possession (Code Civ. Pro. § 369). But this cannot be so. ’.Its possession being under the said order was not under claim of title, but only of a use or easement in the land, that being all that the order could confer, as is expressly conceded in the brief for the defendant, and as is the law (Heard v. City of Brooklyn, 60 N. Y. 242; Strong v. City of Brooklyn, 68 id. 1; Washington Cemetery v. Prospect P. & C. I. R. R. Co., Id. 591; Roby v. N. Y. C. & H. R. R. R. Co., 142 id. 176); and no possession not under a claim . of title in fee, and exclusive- of any other right in the land by the claimant, is adverse to the legal title, and will bar the owner or ripen into title by lapse of time, viz., twenty years, under the statute of limitations. The said statute has no application to possession under a claim of' some use, term or interest less than the fee (Code Civ. Pro. §§ 368, 369, 371; Jackson v. Johnson, 5 Cow. 74; Bedell v. Shaw, 59 N. Y. 46; Gross v. Welwood, 90 id. 639).

In the opinion in the case of Miner v. N. Y. C. & H. R. R. R. Co. (123 N. Y. 242), which is similar to the case now here, it is said: From 1850 to the commencement of this action, more than thirty-years, this land was held and possessed under a*claim of right," •adversely, by the defendant and its predecessors in the title ” ; and that therefore the action was barred. Now possession under an. executory contract of purchase, or a lease, or a tax lease, or a mortgage in default, is “ under a claim of right ”, and yet, as the cases cited above hold’, and as is the settled rule, it would not suffice to make title by adverse possession, or bar ejectment by the owner of the legal title. Nothing short of a claim of full title will do that. The language of the learned judge writing,-though large, therefore had reference to title by. “ prescription ”, which comes under a different head, applies to easements, and exists outside of the statute of limitations in respect of titles in fee, and has not been reduced to such a statute in this state (Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202; American Bank Note Co. v. N. Y. El. R. R. Co., 129 id. 252; Leffmann v. L. I. R. R. Co., 120 App. Div. 528; Betjemann v. Brooklyn Union Elev. R. R. Co., 127 id. 83).

The defendant no doubt acquired a right of user by prescription by the lapse of 20 years of continuous user, but only to the extent of such user, as is the measure and rule, and the findings show that that has been wholly within the said 60 foot strip. There is a find- . ing that outside of that strip the defendant has annually mowed the weeds, but there can be no prescription to mow weeds.

The judgment should be reversed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed on the law and facts, and new trial granted, costs to abide the final award of costs.  