
    Augustus D. Shepard, Resp’t, v. Metropolitan Elevated Railway Company et al., Def'ts. Western Union Telegraph Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    Parties—Elevated railway.
    A grantor is not entitled to be made a party in an action by the grantee against an elevated railway company to recover the damages to the prem- * ises conveyed, caused by the operation of its road, though he reserved such damages.
    Appeal from an order, denying on its merits the petition of the Western Union Telegraph Company to be made a party to the action.
    
      Rush Taggart, for app’lt; W. G. Peckham, for resp’t.
   Van Brunt, P.

This action was brought to obtain an injunction restraining the defendants from the further maintenance and operation of the defendants’ elevated railway in front of premises on Trinity Place, together with damages for the maintenance and operation of said railroad in the past. The plaintiff acquired his title to the premises on or about the 29th of March, 1889, a deed which contains these words :

“Damages to said premises arising by reason of the elevated railroad as now constructed and operated in front of said premises have been reserved to the Western Union Telegraph Company, a former owner.”

The reservation referred to was in the following language:

“ The party of the first part hereto [the petitioner] reserves all ■claim or right of action against the Metropolitan and Manhattan Elevated Eailroad Companies, or either of them, for any and all injury or damage done to the aforesaid property, or to the value or uses thereof, in the past, present, or future, by reason of the construction and operation of the elevated railroad in front of said premises as they are now constructed and operated.”

The appellant presented its application to the court to be made a party to the action, and in its petition alleged facts which it is claimed would entitle the petitioner, if it were necessary, to a reformation of these deeds by the insertion of further language reserving to the petitioner any sum of money that might be appraised or agreed upon, under the power of eminent domain, as compensation for the extinguishment of the claims and rights of action above mentioned. The petition further represented that, by reason of the fact that the easements taken by the defendants were inseparable from the land to which they were appurtenant, the legal title thereto had passed to the plaintiff, subject, nevertheless, to the said reservation, and were held by him in trust for the petitioner, to the extent necessary to carry into effect the intent of said reservation; that plaintiff repudiated the said trust, and refused to recognize the interest of the petitioner in the subject of the action, and was acting in hostility thereto ; that petitioner was thereby exposed to irreparable injury, from which no adequate relief could be obtained by a separate action. The prayer of the petition was that the petitioner be made a party, plaintiff in the action, and control the prosecution thereof, and receive the fruits thereof, or, in the alternative, that petitioner be made a party defendant, and have leave to interpose an answer, and to seek such relief against -the other parties to the action, in respect to the subject-matter thereof, as in law and equity it might be entitled to receive. The motion was denied upon the merits, and from the order thereupon entered this appeal is taken.

It is conceded by the counsel for the appellant that the petitioner has no cause of action by itself against the defendants for the damages sustained by the erection and. operation of their elevated railroad, by reason of the reservation contained in the deed above referred to ; but it is urged that the plaintiff in this action, having taken title with notice of such reservation, took the same subject to a trust to enforce the petitioner’s claim for damages, which was reserved. It seems to us that there are several difficulties in the way of the establishment of the petitioner’s claim upon any ground whatever. It has been distinctly held that these easements cannot be severed from the principal estate so as to form the basis for the establishment-of any right. It has been further held, as is conceded by the appellant, that such a reservation as was contained in the appellant’s deed left no right of action in favor of the grantor in the deeds containing such reservation. It is a well established rule in our jurisprudence that an action must be brought in the name of the real party in interest, and the fiction of one party bringing an action in his own name to the use of another is no longer permitted. Yet the necessary result of the appellant’s contention is that the plaintiff is to maintain this action to his use, as the real party in interest.- If the appellant’s contention is correct, it is the proper plaintiff, and the present plaintiff is not. Now, it admits that it has no cause of action, as against the defendants, because of its conveyance .of the premises to which the easements forming the subject matter of this action are appurtenant; and this position is emphasized by the admission of the appellant that-adequate equitable relief by the recovery of permanent damages cannot be had except by tendering to the railway companies a clear legal title to the easements taken. Now, where in the contract of any of the predecessors in title of the plaintiff is there any obligation upon their part to convey anything to anybody at the request and dictation Of the appellant? There is no such agreement The appellant relied upon its reservation, and such reservation imposed no-duty upon its grantee. Its grantee got that which was granted, which seems to have been the substance, and the appellant has reserved that which has proven to be the shadow; and now it seeks to clothe this shadow with a material body by compelling its grantee to do something which he has nowhere covenanted or agreed to do. Our attention is called to the case of McGean v. Met. El. Railway Co., 133 N. Y. 9 ; 44 St. Rep. 75. But that seems to have no bearing upon the case at bar, because the sole ground upon which the plaintiff in that case had any standing in court or any claim for damages was because he owned the title to the center of the street, and expressly excepted from the grant the lands contained in the street. The court expressly stated that the grantee of the plaintiff took his conveyance with a reservation to the plaintiff of the fee of the street and the permanent damages to the adjoining property; and that presumably, to the extent of the rights thus reserved, the cost of the property to him had been proportionately diminished; and that he was estopped by the reservation in his deed, which is to be given the same effect as a direct grant, from asserting any title to any part of the cause of action or to the rights, which the defendants will acquire under the judgment, which puts them in privity of title with the plaintiff. There the fee of the land was reserved upon which the easement existed. In the case of Kernochan v. N. Y. El. Railway Co., 128 N. Y. 559; 41 St. Rep. 110, it was expressly held that it is not possible to except easements from the operation of the conveyance, so as to preserve the title thereto unimpaired in the original owner; that they are incapable of a distinct and separate ownership, and the owner of a lot cannot reserve them upon a sale, but they must, of necessity, pass to the purchaser as appurtenant to the premises, and with them passes to the purchaser also the right to any remedy for their invasion. In the case at bar there is no claim that any part of the street was reserved out of this grant by the plaintiff, as was the fact in the case of McGean. It is a conveyance absolute, passing all the estate, together with its appurtenances, and then containing this reservation, which the courts have held cannot be enforced as to future damage, because it is an attempt to reserve a right of action for damage to a thing the title of which has been parted with. We are of opinion, therefore, that no trust relation was established between the plaintiff and its grantees, and that under no principle of law can this appellant compel this plaintiff to sue in his name for its benefit.

The order should be affirmed, with costs.

All concur.  