
    Leander M. Shaw, Respondent, v. Rochester, Syracuse and Eastern Railroad Company, Appellant.
    Fourth Department,
    March 3, 1909.
    Railroad — occupation, of street without acquiring right to cross fee of abutting owner — injunction.
    Where a street surface railroad constructs and operates its road in front of the premises of an abutting owner who owns the fee to the center of the street without his consent and without acquiring a right against him by condemna- ' tion, it is guilty of a continuing trespass giving rise to a cause of action.
    But where the owner made no objection to the construction of the road and there w.as no deed on record at the time showing his title to the center of the street and he does not sue until the road had .been in operation for many years, an injunction restraining the operation of the road should not issue except after the defendant’s refusal to pay the rental and fee damages as assessed by the court, with costs.
    Under such circumstances the Court should find the rental and fee damage and provide that the defendant on paying the same, with costs, shall be entitled to a deed from the owner entitling it to cross the property. The right to an injunction should be conditioned upon the defendant’s refusal to pay after tender of a deed. ,
    McLennan, P. J., dissented.
    Appeal by the" defendant, the Rochester, Syracuse and Eastern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of September, 190.8, upon the decision of the . court, rendered after a trial at the Monroe Special Term.
    
      William Nottingham, for the appellant.
    
      Reed & Shutt and A. D. Jenney for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to restrain defendant from operating its trolley road, along John street, in the village of Fairport, Monroe county, in front of plaintiff’s property, and maintaining the grade, poles, wires, and permanent obstructions on his premises, and to compel defendant to remove said obstructions and to restore the grade, and to recover $2,000, accrued damages and costs, and for other just and equitable relief. This relief was sought for upon the claims that plaintiff owned to the center of the street and the defendant had. committed a trespass by constructing and operating its road over plaintiff’s premises without acquiring the. right so to do by agreement or condemnation proceedings. It appeared upbn the trial and the court found that the plaintiff was the owner of the lands in question, his title extending to the center of the street; that the defendant constructed and was operating its road- along the street and across 'plaintiff’s premises without his consent, and .without acquiring the right so to do by condemnation proceedings; that such acts constituted continued, and permanent trespasses,, for which plaintiff would have a right to a series of actions against the defendant so long as the defendant failed to acquire the right to use the land by agreement .or some legal proceeding.

So far the court was correct in its decision. The controversy is over the relief granted, based upon these facts. The court granted the injunction restraining and mandatory asked'-for as hereinbefore stated, but directed that it should" not take effect 'or-be operative for about two months thereafter, and that the plaintiff recover damages for the trespass up to the time of the commencement of the action, about three years, in the sum of $150. These damages were grossly excessive. A -mere reading of the evidence shows this. Eo detailed, consideration of it here is necessary.

Beyond this we do not think an injunction should have been granted. The plaintiff’s rights could as well be fully protected by adopting the practice that, has come into general use in this class of cases, viz., finding the rental and fee damage, so called, and providing that the defendant, upon paying such damages and costs, should have a deed of the right to use the property. If the plaintiff refused to give the deed upon the payment of the damages and costs, he should have no injunction. If the defendant refused to pay the damages and costs and accept the deed, then only should an injunction issue. This relief should have been provided by the trial court, and the whole controversy thus settled in an inexpensive and expeditious-manner. The matter was of too little consequence to-make the defendant the expense of condemnation proceedings, which seem to have been contemplated by the relief that was granted by the trial court. The deed that showed the extent, of plaintiff’s title to the property was not of record when the railroad was constructed, and there was doubt as to the necessity of acquiring any rights to cross the same. Eo objection Was made by the plaintiff to the building of the railroad along the street in front of his premises. The.railroad* Was compelled1 to improve the grade of the street and to pave it, without expense to the village or the property owners on the street. The plaintiff only made his claims after the railroad had been built for a long distance and in operation fór years. It is a case, therefore, where the railroad should be made no unnecessary expense in acquiring its right to cross plaintiff’s property. Under the law of the State, it must pay the- so-called rental and fee damages, whatever they may be determined to be, by agreement or legal proceedings. It is a case peculiarly for the application, of the procedure here suggested by us. The same thing was asked for at the close of the plaintiff’s evidence, but it was not adopted by the trial court. ' '

Under the circumstances, we think no injunction should have been granted, except conditionally, upon defendant’s refusal to pay the damages,, upon their being established and a deed tendered.

The procedure referred to is authorized by Pappenheim v. M. E. R. Co. (128 N. Y. 436, 444); Lynch v. M. E. R. Co. (129 id. 274) and Peck v. Schenectady R. Co. (170 id. 298).

All concurred, except McLennan, P. J., who dissented and voted for affirmance.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  