
    The Greenwood Lake & Port Jervis Railroad Co., App’lt, v. The New York & Greenwood Lake Railroad Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1891.)
    
    Basement—License.
    A strip of land in the “Storms Tract” was conveyed in 1877 to “Michael A. Myers,trustee,” and subsequenty deeded to “Henry A.Thorpe, trustee,” and then to Traphagen, and subsequently through mesne conveyances in form absolute to the plaintiff. The original owners in 1877 conveyed to the Greenwood Lake Ice Co. fifteen acres of the Storms Tract subject to the deed theretofore “ given for a right of way through said premises, seventy-five feet in width, for railroad purposes,” and the grantee built an ice house on its land and a railroad track was laid on said strip. In 1878 Traphagen granted a right of way over the strip to the ice company for its ice business, and in 1880 the latter conveyed all its said property including its rights from Traphagen to U. and H., who have ever since conducted an ice business on the fifteen acres. Held, that the grant from Traphagen to the ice company was an easement and not a license and was not revocable by plaintiff.
    Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered upon the decision of the court at circuit after a trial without a jury.
    This was an action to recover damages for a series of trespasses alleged to have been committed by the defendant upon part of a strip of land 3920 feet long and seventy-five feet wide, known as a part of the Storms Tract, situate in Orange county on the west side of Greenwood Lake.
    Prior to March 17,1877, the Storms Tract belonged to Weston & Burt, who on that day conveyed the strip in question, “ to be used only for railroad purposes,” to one Michael A Myers, Trustee. who on the 22d of December following conveyed the same to “ Henry H. Thorpe, Trustee,” and five days later Thorpe conveyed to William C. Traphagen. Hone of the deeds to or from said persons described as trustees disclosed any beneficiary of a trust, or contained any limitation upon the power to convey. May 3, 1886, said Traphagen conveyed the strip to William O. McDowell, who on the 10th of September following conveyed to the Hew England, Hew York & Pennsylvania Eailroad Company and May 21, 1888, said railroad company conveyed to the plaintiff.
    March 20, 1877, said Weston & Burt conveyed to the Greenwood Lake Ice Company fifteen acres of the Storms Tract, situate on the easterly side of the lake, subject, however, to the deed theretofore “ given for a right of way through said premises, seventy-five feet in width, for railroad purposes.” During the same year the ice company built' an ice house on its said land and a railroad track was laid on said strip. April 11, 1878, said Traphagen granted to the Greenwood Lake Ice Company a right of way over said strip for the purpose of its ice business, and on the 18th of July, 1880, the ice company conveyed all its said property, including its rights under the grant from Traphagen, to Cooper & Hewett, who have ever since conducted an ice business upon the said fifteen acres. The defendant transported ice and supplies for Cooper & Hewett over the railroad track on said strip; changed the location, curvature and grade of the track somewhat in order to improve it, and to some extent used said track for purposes not connected with the ice business of Cooper & Hewett.
    The plaintiff, claiming that the grant from Traphagen to the ice company was a license, revocable at pleasure, assumed to revoke the same. This action was brought mainly to recover damages for entering upon said strip and changing and using the track after such attempted revocation.
    
      The plaintiff sought to recover for the alleged wrongful use of the land during the period of its own ownership and also during, that of its three immediate predecessors in title, who had assigned their rights to it.
    The trial court dismissed the complaint upon the ground, among others, that the grant from Traphagen to the ice company was irrevocable, and the general term affirmed upon the same-grounds, one of the judges dissenting.
    Further facts appear in the opinion. .
    
      Charles S. Noyes, for app’lt; Lewis E. Carr, for resp’t.
    
      
       Affirming 28 St. Rep., 739.
    
   Vann, J.

-—The only evidence tending to show that either Myers or Thorpe was a “ trustee ” was the addition of that word to their names, respectively, in designating them as the respective grantees in the conveyances of March 17 and December 22, 1877. As there was no declaration of trust and no deed to either “ as trustee,” the addition to the name of the party of the second part, in the absence of other evidence, might be regarded as merely descriptio personce. Towar v. Hale, 46 Barb., 364; People v. Board of Stock Brokers, 49 Hun, 349; 17 St. Rep., 584; affirmed, 112 N. Y., 670; 20 St. Rep., 979. But if either was a trustee, the conveyance to him “ and to his successors and assigns forever ” was absolute, with no limitation upon his power to convey, and no disclosure of the nature or object of the trust. While he-might be required to account for the proceeds in a proper proceeding, and upon adequate proof, his grantees took a good title, which neither party to this action can question, as both claim under it. Mr. Traphagen, therefore, took the entire estate, and during his ownership he granted a certain right in the land under consideration to the Greenwood Lake Ice Company. The nature of that right is the main question to be determined • upon this appeal. The instrument by which the right was created was under the hand and seal of Mr. Traphagen, and, after reciting his ownership of the strip of land in question, it proceeded as follows : “ And whereas the Greenwood Lake Ice Company desire to use said property as a way of ingress, egress and regress for themselves, their agents, servants and laborers over and upon which they may pass and repass railroad cars containing ice and materials for use in said ice business, now, therefore, in consideration of one dollar to me in hand paid, I do hereby grant to the said ice company, and to their assigns and successors in said ice business, the right to use said property for the purpose of a way of ingress, egress and regress over and upon which they may pass and repass railroad cars containing ice and materials, said supplies for use in said ice business, together with themselves, their employees and servants,' but it is expressly understood that this license to use said railroad is not an exclusive right to the said company. And it is further agreed that the right hereby conveyed is not to be assigned by the said company except to the successors in and assigns of said ice business, and'only for the purpose of said business.”

It is contended by the plaintiff that this was a license, revocable at the will of the grantor, or his assigns, and by the defendant that it was an easement, irrevocable without the consent of both parties or their successors and that it ran with the adjoining land of the grantee, upon which its ice business was conducted, and for the benefit of which the grant was made. While the instrument creating the right is termed in the body thereof a license to use said railroad,” this is not conclusive for the court must look at the nature of the right rather'than to the name that the parties gave it, in order to learn its true character.

An easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or over the estate of another for the benefit of the former. Washburn Easem., 2; Goddard Easem., 2; 3 Kent’s Com., 452; Nellis v. Munson, 108 N. Y., 453; 13 St. Rep., 825; Pierce v. Keator, 70 N. Y., 419, 421; Hills v. Miller, 3 Paige, 254, 257; Ritger v. Parker, 8 Cush., 147; Morrison v. Marquardt, 24 Iowa., 35; Big Mountain Imp. Co.’s Appeal, 54 Penn. St., 361; Hewlins v. Shippam, 5 Barn. & C., 221; Rowbotham v. Wilson, 8 Ellis & B., 123.

A license is a personal, revocable and non-assignable privilege, conferred either by writing or paroi, to do one or more acts upon land without possessing any interest therein. Wiseman v. Lucksinger, 84 N. Y., 31; Mendenhall v. Klinck, 51 id., 246; Pierrepont v. Barnard, 6 id., 279, 286; Jackson v. Babcock, 4 Johns., 418; Mumford v. Whitney, 15 Wend., 380; Cook v. Stearns, 11 Mass., 533; Prince v. Case, 10 Conn., 375; Washburn Easem., 6, 7; Goddard Easem., 3; 18 Am. & Eng. Encyc., 539.

Although originally revocable at the will of the licensor, it may become irrevocable through the expenditure of money by the licensee. Wiseman v. Lucksinger, 84 N. Y., 31, 41; Dempsey v. Kipp, 61 id., 462; Pierrepont v. Barnard, 6 id., 279; Risien v. Brown, 10 S. W. Rep., 661; Rogers v. Cox, 96 Ind., 157; Russell v. Hubbard, 59 Ill., 335; Morse v. Copeland, 2 Gray, 302; Drake v. Wells, 11 Allen, 141.

The right in question was created by deed, and is made assignable, because it runs to the “ Ice Company and to their assigns and successors,” with a limitation upon the power of assignment, restricting it “ to the successors in and assigns of said ice business.” It was without profit, as nothing was to be taken from the land of the grantor. It was not personal, because succession in title was provided for. Its nature indicates that the parties intended it to be a permanent interest in the land of the grantor, for it was a right of way over a railroad for the purpose of enabling a corporation to carry oh a business requiring transportation upon an extensive scale. The business was of such a character that a revocable right might result in irreparable injury to the grantee. The express mention of successors and assigns of the business shows that the parties had in contemplation something more than a temporary expedient or a merely revocable user. Moreover, the right of way was the only means of communication by land with the railroad upon which the ice company depended for the transportation of its ice to market and of supplies to its ice house. The track was laid upon the strip of land leading to the railroad, the right to use it granted and the-ice house built, all at about the same time, and apparently for-the same purpose, as there was no other use for the track. While it is true that no dominant estate is expressly named in the grant, yet one in fact existed and was named by implication. The-grant was to an ice company, for use in its ice business of the-right to use a railroad track for the purpose of ingress and egress. Ingress to what and egress from what ? Obviously, the adjoining land on which the ice company had constructed an ice-house and was conducting its ice business at the date of the grant and to which it acquired title only three days after the original conveyance of the strip of land in question. All of the deeds-were on record, and the creator of the right under consideration expressly mentions the ice business five times in the instrument, creating it, thus showing that he knew of its existence and contracted with reference to it as it was then conducted.

The sole object of the grant was to benefit the ice business by giving it a right of way from its ice house to the railroad, and by necessary implication from the language used under the circumstances surrounding the grantor when he used it the term “ ice business ” was intended to designate the land where that business-was carried on, as the land to be benefited by the grant. That, land, therefore, was designed to he, and is indirectly referred to, as the dominant estate, or that to which the right belongs, whil& the servient estate, or that upon which the burden rests, is directly-mentioned.

We think that the grant from Mr. Traphagen to the ice company, when construed with reference to what the parties bad in contemplation, satisfies every element in the definition of an easement and conflicts with nearly every element in the definition of a- license.

After examining all of the exceptions to which our attention, has been called we find nothing that should reverse the judgment, which should, therefore, be affirmed, with costs.

All concur.  