
    New York Carbonic Acid Gas Company, Respondent, v. The Geyser Natural Carbonic Acid Gas Company, Appellant.
    
      Selection of a right of way.
    
    In selecting a route for a right of way, given without a definite statement as to its location, a reasonable regard for the interests and convenience of the person over whose lands it is to be laid out must be shown.
    The use of a way by the parties gives a construction to the grant.
    Appeal by the defendant, The Geyser Hatural Carbonic Acid' Gas Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 18th day of July, 1900, restraining the defendantfrom disconnecting, tearing up, or in any way interfering with any pipe of the plaintiff now laid, or which it may put down upon or over the right of way claimed tó be owned by it, over the premises of the defendant extending from the premises formerly owned by Emily H. Hathorn and Frank H. Hathorn described in the complaint,. to and over the broken road'.t'o-Coesa-avenue, and from in any way interfering with the plaintiff’s use of such pipe or pipes during the pendency of the action, and from doing any act or thing which shall in any way prevent the plaintiff from having and exercising its full enjoyment of the right of way claimed by it to exist across the premises of the defendant, until the hearing and decision of this action and the entry of judgment therein.”
    In October, 1889, one Wiswall, being the owner of a 100-acre farm near Saratoga Springs, conveyed a portion of it to Emily H. and Frank H. Hathorn. In that conveyance no right of way was given over the grantor’s adjacent lands. Subsequently he conveyed different parcels of the farm to different grantees, and finally, in January, 1893, he conveyed all the remainder to L. B. Oole and others. Part of the parcel so conveyed to them was adjacent to the parcel conveyed to the Hathorns, and upon it, running north and south nearly its whole length, was a road called “ broken road,” which led from Ooesa avenue on the north to a bridge crossing Ooesa creek at the southerly end of the tract. In this deed to Oole the following phrase was inserted : “ subject, also, to a. right of way to Emily H. and Frank H. Hathorn, their heirs and assigns, &c., ■over the broken road as it now exists to and from the lands conveyed to them by said Wiswall by deed dated October 12,1889, and recorded,” etc. This broken road did not anywhere touch the premises conveyed to the Hathorns. Its nearest point was at its south end where it entered upon the bridge. There it was about twenty-five feet from the Hathorn line. Subsequently, and on April 1, 1896, Wiswall executed to the Hathorns a conveyance in which he, in substance, recited that on October 12, 1889, he had conveyed to them certain premises therein described, and which were about twenty-five feet distant from the bridge across Ooesa creek, and that it was his intention to convey to them a right of way across his remaining lands to and over the broken road connecting with Ooesa avenue. And also further recited that he had conveyed such adjacent lands to L. B. Cole and others by the deed of January 10, 1893, subject to said right of way to said Hathorns, and then such conveyance proceeded as follows : “ How, therefore, in consideration of one dollar to me paid, I hereby grant and convey to the said Emily H. Hathorn and Frank H. Hathorn the said right of way over said land described in said deed to them over the space between said lands, the bridge and broken road and to and over said road to- said Ooesa avenue.”
    The Hathorns subsequently conveyed such premises to this plaintiff, and Cole and others, in March, 1895, conveyed the premises so conveyed to them to the defendant, with the same provision that it' was subject to the Hathorn right of way.
    In 1899 a well was sunk upon the Hathorn premises and large quantities of carbonic acid.gas are produced therefrom.. This was the first .and' only well upon them. Subsequently the plaintiff, claiming that it had by the conveyance above mentioned .acquired a right of way over the adjacent premises to the broken road and along and upon it, and that such right authorized it to lay pipes for the carrying of gas along such way, notified the defendant that because it had not located the way from plaintiff’s land to the broken road, it, the plaintiff, had located the route; and it thereupon proceeded to lay down pipes over such routé. The route so located by plaintiff extended from the plaintiff’s spring some 300 or more "feet • over defendant’s land to. the broken road, and thence along it about .the same distance to a parcel of land adjacent to such road owned by the plaintiff and on which it had erected works for compressing such gas and fitting it for market.
    The defendant denied that the plaintiff had acquired, as against it, any right of way whatever by the deed aforesaid. It also denied-the plaintiff’s right to lay down pipes, even if it had acquired such , a right, and it also denied that it had any right over the route located by it. It also threatened to tear up the pipes if laid. The plaintiff thereupon began this action to have the right of way over the route so adopted by it fixed and established, and for a permanent injunction against the defendant’s ever interfering with the pipes laid therein. An injunction order was obtained from a judge of this court and issued with the summons, and, subsequently, on notice and after a hearing upon the answer and opposing papers, a Special Term order was obtained enjoining the defendant from interfering with such pipes as were or. should be thereafter laid. From such last order this appeal is taken.
    
      James W. Verbeck, for the appellant.
    
      Edgar T. Brackett, for the respondent.
   Parker, P. J.:

The pipe which the defendant threatens to disconnect or tear up had never been used by the plaintiff. It was being put down when this action was commenced, and the purpose of the action is to determine whether the plaintiff has the right to lay and maintain it over the route claimed by it. Requiring the plaintiff to wait until final judgment determines such right would not in the least tend to render such judgment ineffectual. It would, at most, deprive it of a use to which it may appear it is entitled. But if, upon final judgment, it should appear that plaintiff is not entitled to so use this route, such an order would have authorized it to maintain, during the pendency of the action, a trespass upon the defendant’s land. Under such circumstances, final judgment should not be anticipated by an order authorizing the plaintiff to so appropriate such route, unless upon the facts presented it fairly appears that it has the right to do so. (Greanelle v. Mercantile Benefit Ass'n, 35 N. Y. Supp. 796; Finger v. City of Kingston, 9 id. 176.)

Upon the facts as they appear in the record before us, it is by no means clear that the plaintiff has that right. On the contrary, it would rather seem that it is not entitled to appropriate the route claimed to the laying down of its pipes.

The only claim that it makes to a right of way over the defendant’s land and along the broken road mentioned is through the conveyance made by Wiswall to the Hathorns in April, 1896. It is claimed that by such deed a right of way is given, but that this deed does not assume to locate it over any specified route, and that because the defendant has refused to -designate a route, the plaintiff is justified in designating the route claimed in the complaint herein.

But, in my judgment, the language in that conveyance clearly indicates an intent to locate snch right of way at the corner where such lands come to within about twenty-five feet of the broken road. Such road leads on to the bridge across the Coesa creek, and the conveyance first recites that the premises which had been conveyed to the Hathorns by the prior deed of October 12, 1889, were about twenty-five feet distant from such bridge. It then proceeds to convey to them a right of way “ over the.spaee between said lands, the bridge and broken road,, and to and over said road to said Coesa avenue.” The “space” there referred to is clearly the strip of adjacent land between the Hathorn line and the broken road as it enters upon the bridge, being about twenty-five feet in width. A glance at the map used by defendant upon this motion makes the construction plain. At that point a road twenty-five feet long would connect the broken road with the Hathorns’ land, and enable them to drive from their premises on to the broken road and thence along, it to the public highway known as Ooesa avenue. Such broken road was a farm road, long established and .used for the benefit of the farm, and the driving 'over which .would cause no injury or inconvenience to the rest of Wiswall’s- premises. By the crossing of this narrow strip of twenty-five feet a right of way was thus secured from the Hatliorn lot to the public highway, and I have no doubt that such was the location which Wiswall intended by the conveyance in question. Moreover, it is averred in the answer, and must; I think, be taken as one of the facts'in the case, that this plaintiff has in fact heretofore used that route as its way to and from such lot. It put a pair of bars in the line fence there and reached the broken road over this twenty-five foot “ space.” Thus the use'of the way by the parties themselves gives construction to the grant as I now construe it.- • The route of the right of way which the plaintiff seeks to establish by this action is an entirely different one. It starts from a point in the Hathorn line much further north and east of the space ” referred to, and leads northerly upon defendant’s premises, and nearly parallel with the broken road some 200 or 300 feet before it intersects such road. Then it proceeds along such road about the same distance, then it leaves-the' road at the westerly side of it and crosses lands of the defendant over which it concededly has no. right of way, to its own lot on which its works are located. A glance at the map used will show the situation' much clearer than it can be stated, and makes plain how thoroughly the route claimed differs from the one heretofore used by the parties and which in my judgment is intended by the deed.

It must be borne in mind that the plaintiff has but one right of way under the deed in question. It cannot have one road for men and teams and another over which to lay pipes for the transportation of gas. If the route over which it claims to lay the pipes in question is the plaintiff’s at all, it is its to drive and travel over. It may open up a roadway of- reasonable width over that route, and it can have no other. But suppose that the deed does not at all define the route of the right of way given, and that plaintiff is not at all hampered with it in locating that route, is it entitled to appropriate the one which it has taken % In my judgment it is not. In selecting a route reasonable regard for the interests and convenience of the defendant must be had. (19 Am. & Eng. Ency. of Law, 106.) And surely when the broken road can be reached by passing over a “ space ” of 25 feet only, a route which runs over the defendant’s land for 200 or 300 feet parallel to that road before entering it cannot be deemed as at all considerate of defendant’s interests or convenience.

As bearing upon this question, the language of the reservation, if it be deemed such, in the deed to Cole and others must be considered. The right of way reserved is “ over the broken road as it now exists.” No reservation is made of a right of way to the broken road, but only'of one along and upon it. At least the language used does not reserve any, and Cole might claim that by strict right the Hathorns must acquire from him the right of way to such road. But concede that access to the road as well as a right of way over it was intended, then surely the reservation must be construed strictly in favor of Cole, and the burden which is thus imposed upon the-lands so granted, to him must not be enlarged beyond that which will do him the least possible injury and at the same time afford a reasonable right of access and egress to the Hathorns. And it would seem that Wiswall had this in mind when he referred to the “ space ” of twenty-five feet in width over which the right of way was granted. And so also should the Hathorns and their grantees be held to ’a large consideration for the interests and convenience of Cole and his grantees, when they claim by force of such reservation to fix a route across their lands for a right of way to such broken road.'

I am of the opinion that an injunction which secures to the plaintiff the right to lay and maintain its pipes over the route it has. selected should not be granted until after full investigation and consideration of all the facts a final judgment decrees that it is justly entitled to it.

In reaching this conclusion I have not considered the question, whether a right of way, given as this is claimed to have been given,, carries with it the right to lay and maintain pipes over whatever route may be fixed for the same, nor whether the conveyance to theHathorns of April, 1896, conveyed any right of way which is operative as against Cole and his grantees. Those are questions by no means free from doubt, but it seems unnecessary to now decide the same, since, for the reasons above given, I conclude that the order appealed from should not have been granted and must be reversed.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  