
    Petersen et al. v. The New York Central Rd. Co.
    (Decided April 7, 1930.)
    
      Messrs. True, Crawford S True, for plaintiffs.
    
      Messrs. Graves é Duff, for defendant.
   Williams, J.

This cause comes into this court on appeal from the court of common pleas, and involves the right of the railroad company to lay and maintain side tracks on a strip of land 50 feet wide designated on a plat and generally known as South Railroad street. After the injunction suit was started, no temporary injunction having been granted, the side tracks were laid and are now in use.

It is contended by the plaintiffs that, while the title to the strip of land is in the railroad company, the deed under which it holds had no witnesses to it at the time it was recorded, and therefore was not notice to the plaintiffs, who acquired their title subsequently, and that the rights of the plaintiffs in the strip of land for street purposes are superior for that reason.

The railroad company acquired title to the strip of land from Henry and Josephine Schumacher by deed dated June 22, 1872. We think it is a matter of no consequence whether or not there were two witnesses on the deed to the railroad company at the time it was recorded. It is not questioned that the grantor of the railroad company had a good record title, and of that the plaintiffs and their predecessor in title had due notice. We find, however, that the title of the railroad company to the strip of land is a valid and subsisting title. This strip of land has been traveled for nearly 50 years by the public, and the plaintiffs and many others owning land abutting upon it have built dwelling houses thereon, and it has been treated as a public way and so used adversely and not permissively for much more than 21 years prior to the commencement of this action in the court below, and we do not hesitate to hold that the plaintiffs and the public generally have an easement over this strip of land known as South Railroad street. On the other hand, the railroad company acquired it for railroad purposes, and has psed it in connection with its railroad property for nearly 50 years, and still has a right to so use it so long as it does not unreasonably interfere with travel by the public. The railroad company has a right to maintain the two side tracks flush with the street, and may continue in the future-to use the strip of land for railroad purposes and for side tracks, provided always that it does not unreasonably interfere with the continued use by the public as in the past for purposes of public travel.

Decree will be entered for the plaintiffs enjoining the railroad company from interfering with the plaintiffs in the use and enjoyment of South Railroad street as a public way, but the railroad company shall be permitted to maintain its present tracks flush with the surface of South Railroad street, and shall be permitted to use South Railroad street for railroad purposes in so far as such use does not interfere with the reasonable use thereof as a public way.

Decree accordingly.

Lloyd and Richards, JJ., concur.  