
    John E. Andrus, Respondent, v. The National Sugar Refining Company and The New York Central and Hudson River Railroad Company, Appellants.
    
      Basement created by grant — not destroyed by non-user — it may be by adverse user,.
    
    Mere non-user will not suffice to destroy an easement in land acquired 'by grant-a right of way created by grant may, however, be lost by adverse user where-the user is exclusive of the interest of the grantee and in open hostility to hia, claim.
    Appeal by the defendants, The National Sugar Refining Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of July, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, in an action to establish a right of way and to enjoin the defendants from obstructing the same by means of a railroad siding.
    
      Ralph E. Prime, for the appellants.
    
      Isaac N. Mills, for the respondent.
   Per Curiam :

This case has been before us on a previous appeal. (Andrus v. National Sugar Refining Co., 72 App. Div. 551.) It has been retried, in accordance with the view of the law then expressed by Mr. Justice Jenks, and has resulted in a judgment for the plaintiff declaring him to be entitled to the right of way which he claims and ¿ranting other relief. We have been asked, upon the appeal from this judgment, to reconsider and reject the legal propositions involved in our former decision; and in deference to the learned counsel for the appellants we have carefully reviewed them in the light of the new arguments which he has presented. These have not seemed cogent enough, however, to lead us to any different conclusion ; and so far as any question is concerned which was dealt with by this court upon the first appeal we adhere to the opinion then handed down.

Several new points, going to the maintenance of the action, have been made upon the present argument, most of which, however, although not directly discussed in our former opinion, are nevertheless sufficiently answered in the observations and suggestions therein contained. It is now argued in addition that any right of way which the plaintiff or his grantors ever had has been lost by non-usér or adverse possession. Mere non-user will not suffice to destroy an easement in land acquired by grant ( Welsh v. Taylor, 134 N. Y. 450), although there' is no doubt that a right of way, created by grant, may be lost by adverse use, where the use is exclusive of the interest of the grantee and in open hostility to his claim. (Smyles v. Hastings, 22 N. Y. 217.) The evidence in this record, however, does not seem to us to make out a case of adverse possession within this rule. We are clear that the judgment is right on the merits in its main features, but we agree with counsel for the appellants that it is in some respects top broad in its terms. It does not sufficiently appear that the maintenance of a railroad track by the defendants upon the strip of land in question will necessarily interfere with the free and unobstructed enjoyment of the right of way to which the plaintiff is entitled. It is quite conceivable that the presence of a properly-constructed track will not constitute any obstacle to the use of this strip by the plaintiff for all reasonable purposes; noy need the passage of cars over such tracks from time to time create any real obstruction, though, of course, the defendants should be prohibited from allowing cars to stand upon the track.

The judgment should be modified by striking out the provisions thereof numbered two, three and four, relative to the railroad track, and by inserting in lieu thereof an injunction against obstructing the right of way by allowing cars to stand thereon. As thus modified it should be affirmed, without costs of this appeal to either party.

All concurred.

Judgment modified, in accordance with opinion per curiam, and as modified affirmed, without costs of this appeal' to either party.  