
    Greenwood Lake & P. J. R. Co. v. New York & G. L. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    1. Easements—By Grant—Right of Way—License.
    A grant of the right to use a strip of land for the purposes of “ ingress, egress, and regress, ” and on which the grantee, an ice company, could pass and repass railroad cars containing ice and materials, the only limitation in the grant being that it was not exclusive, and that the right could not be assigned except to the successors of the grantee in the ice business, is not a mere license, but an irrevocable grant.
    3. Same—Extent of Right.
    The grantee is not restricted to the track as at first constructed, but may change its location to any part of the strip specified in the grant.
    8. Railroad Companies—Duty to Begin Construction—Deed.
    Since a corporation organized under the general railroad act (8 Rev. St. N. Y. 7th Ed., 1569) ceases to exist within five years after its articles of association are filed, unless it begins the construction of its road, a grant to such a corporation 10 years after its organization, and before it had constructed any road, conveys no title.
    Cullen, J., dissenting.
    Appeal from special term, Orange county.
    Trespass by the Greenwood Lake & Port Jervis Bailroad Company against the New York & Greenwood Lake Bailroad Company. The plaintiff claimed to be the owner of a strip of land 75 feet wide, commencing at the line between the states of New York and New Jersey, at the termination of defendant’s railroad, and running up through a tract of land known as the “Storms Farm.” The trespasses complained of were in the use defendant made of a railroad on this strip of land, and in changing the location of railroad tracks thereon. On the trial plaintiff rested its case on the following facts: On March 15, 1877, the title to the Storms farm was in James W. Weston and Mary E. Burt, who on that day conveyed to Michael A. Myers, trustee, the strip of land in dispute, to be used only for railroad purposes, and on condition that a railroad should be constructed thereon, and a freight and passenger depot erected within six months. The title to this strip passed in December, 1877, to William C. Traphagen, who, in June, 1886, conveyed it to William O. McDowell. In September, 1886, McDowell conveyed to the New England, New York So Pennsylvania Railroad Company, a corporation organized under the New York railroad act; and this company, in May, 1888, conveyed to plaintiff, which is also a corporation organized under the New York railroad act. The defendant claimed a permanent right of way over the land, under the following facts: On March 20, 1877, James W. Weston conveyed to the Greenwood Lake Ice Company 15 acres of the Storms farm, designated as the “Ice-House Lot, ” subject to the conveyance of the 75-foot strip he had previously made to Myers. The same year the ice company built an ice-house, and a railroad track was constructed on this 75-foot strip to the main branch of defendant’s road. In 1878, after the building of the track, Traphagen made the following conveyance, covering the land in dispute, to the Greenwood Lake Ice Company: “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 s'upplies for use in said ice business, together with themselves, their employes and servants; but it is expressly understood that this license to use said railroad is not an exclusive right to said company. And it is further agreed that the right hereby conveyed is not tó 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.” This conveyance by Traphagen was about nine years before his conveyance to McDowell, mentioned above. The ice company subsequently conveyed the “Ice-House Lot” to Edward Cooper and Abram-S. Hewitt, who continued the ice business. They afterwards entered into a contract with defendant, by which it agreed to transport the ice from the ice-house, receiving a certain portion of the proceeds for its freight. Defendant relied chiefly on the conveyance from Traphagen to the ice company. The following opinion was filed at the special term:
    “Barnard, J. The paper proven on the trial accompanying the site of the ice-house property evidenced a grant of a right of way, and not a mere license. The paper states that it grants a right of way. The only limitation is that it is incident to the ice-house property, and cannot be sold except to the successor in the ice business, and it is not an exclusive right to the land over which the way is constructed. The surrounding circumstances favor this construction: A valuable property is sold, surrounded by lands of the grantor, which was already established as an ice business by the erection of large ice-houses thereon. The ice was designed for a foreign market, and this was a piece of railroad leading from defendant’s road to the ice-houses then made. The railroad follows within a strip of seventy-five feet wide, which was in the future to be a railroad. The right of way proper did not, in terms, restrict the right to this strip, but that that was the design of the parties is the best inference. This is especially the inference as the deeds, or some of them, are subject to the right of way, as the right of way is subject to the real owner, except so far as the right of way is permanent.
    “The right of way is not restricted to the road, as now built. The paper does not say so, and the absolute right given carries with it the right to make the way useful for railroad ears. Cooper & Hewitt had, under it, a right to make a good grade and good curves, so that the ice could be drawn out over the right of way in cars. The cut was, therefore, properly made for this purpose; and, assuming the plaintiff’s right as owner of the seventy-five foot strip, no action will lie for this cut inside of the strip. The right of way was never designed to be attached to the main track of the to be built railroad. The ice-house had its right of track, and the prospective railroad company had all that was left within the strip.
    
      “After the new way was made, it left a new piece of road on the strip, which belonged to the owner of the strip; and the defendant has used this piece to land passengers at a pavilion erected by the owner of the land outside. If the plaintiff owns this strip, it is entitled to recover for the use of this piece of railroad. The plaintiff derives title to the strip through a railroad company which was never really organized, and never authorized to commence the construction of a railroad under it. When the title to the strip was conveyed to it by McDowell, it was some ten years after its proper organization; and, by our general railroad act, it ceased to exist after five years, unless a beginning was made within that period. This company could not therefore take a title, and, on conveyance, could convey none. The original grant was for railroad purposes, and it was limited, as a condition of the grant, that the road should be built within ten years; and it is doubtful whether the grantees under the grant, who had never taken possession, and had never even attempted to commence the construction of the road, had any title to give to this defunct corporation. If there is any claim for the use of this piece of railroad extending beyond the pavilion, itisin VanVleek; and he consented to the use of it, and it was used for his benefit. The complaint should therefore be dismissed, with costs.”
    From a judgment in accordance with this opinion, plaintiff appeals.
    Argued before Dykman, Pratt, and Cullen, JJ.
    
      Charles S. Noyes, for appellant. Lewis E. Carr, for respondent.
    
      
       2 Rev. St. N. Y. (7th Ed.) 1569.
    
   Dykman, J.

The judgment from which the appeal in this action is taken should be affirmed on the opinion of the trial judge, printed in the case..

Cullen, J.,

(dissenting.) This is an action for a series of trespasses committed on a strip of land 75 feet wide, on which a railroad has been constructed. The plaintiff claims title to the premises, and sues, not only for trespasses committed during its own ownership, but forthose committed during the ownership of its grantors, which.claims it holds by assignment from such prior owners. The cause was tried by the court, without a jury, and judgment rendered for the defendant.

We think this judgment cannot be sustained. The complaint alleged title in the premises in one William C. Traphagen from December 28, 1877, to June 81, 1886. The answer expressly admits that at one time Traphagen was the owner of the premises. This admission does not cover the period mentioned in the complaint. But, as the answer contains no denial of the allegation of the complaint in this respect, the fact was admitted. The claim made on the trial that the Montclair Railroad Company had an equitable interest in the premises, to which the defendant succeeded, was therefore against the admissions of the pleadings. The findings of the trial court of these facts were without evidence to sustain them, and were in-direct hostility to such admissions. The findings were, therefore, erroneous. This disposes of all claim of right or title on the defendant’s part as successor of the Montclair Company.

Traphagen conveyed the premises to one McDowell on May 31, 1886. On September 10, 1886, McDowell conveyed to the Hew England, Hew York & Pennsylvania Railroad Company. On May 81, 1888, the latter company conveyed to the plaintiff. Both these companies are railroad corporations, organized under the laws of this state. This chain of title, complete on its face, is assailed on the ground that the Hew England, Hew York & Pennsylvania Railroad Company was not a corporation at the time of the conveyance to it— First, because the 10 per cent, required by a statute had not been paid in, in cash, at the time of the organization; second, because it did not, within five years from its organization, commence the construction of its road. These facts were found by the trial court, and the evidence justified the findings. We think that this defense was not available by the defendant. The corporation was a corporation de facto. A conveyance to it could not be questioned by the grantor, for he would be estopped from denying the corporate existence of his grantee; nor could a conveyance from it be questioned, save by the state. 2 Mor. Priv. Corp. §§ 753, 754. A defacto corporation is all that is requisite, as against a trespasser. Paper Co. v. O' Dougherty, 65 N. Y. 570. If, however, we are in error in deciding the conveyance to, and that from, the New England, etc., Company to be valid, it would not help the defendant. If the deed to that company was utterly void, the title would not be in air; it would remain in McDowell, the grantor. The plaintiff sues on four causes of action, to-wit, the trespasses committed during its own ownership, and the ownership of its three predecessors in title. If no title passed to the New England, etc., Company, McDowell’s assignment transferred to plaintiff the right to all damages committed up to the date of the assignment. The defendant’s counsel asserts that “a right of action for trespass on real estate may not be severed from the title or right to possession.” We know of no authority or principle to justify such a claim. On the contrary, we assume it to be elementary law that the reverse of the proposition is correct. A conveyance of land would not pass to the grantee any claim for prior trespasses.

Nor is the point that the several deeds through which plaintiff’s title is deduced are void, because of an adverse possession by defendant, well founded, even if such question be deemed material. The evidence shows that the defendant did not claim to own the premises in controversy. Its claim was not in hostility to the true title, but in subordination to it, as licensees under a license the effect of which is now to be considered. In 1878, Traphagen, then the owner of the premises, by an instrument under seal, granted to the Greenwood Ice Company “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 the ice business, together with themselves, their employes and servants; but it is expressly understood that this licehse 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 assignees of, said ice business, and only for the purpose of said ice business. ” Cooper & Hewitt subsequently acquired the property and business of the ice company, and received a conveyance of its rights under this grant; and the defendant justifies its acts under the license of Cooper Ss Hewitt. Assuming, without deciding, that the rights acquired by the ice company were of such a character that they could be conveyed or assigned, it is clear that the acts of the defendant went far beyond the terms of the grant. So, indeed, the learned trial judge finds, in his opinion, that the defendant used the premises to land passengers at a pavilion. The plaintiff was denied relief for this trespass, on the ground that the plaintiff’s immediate grantor was not a valid corporation. This ground we have already held untenable. But we think the trespasses went further. In September, 1887, it tore up a railroad track laid and constructed upon the strip before the grant by Traphagen, and constructed a new track, partly on the strip and partly without. We can find no justification for this in the grant. That grant was to use the strip as a way of ingress, egress, and regress for railroad cars. No authority to construct or build a railroad upon the strip was granted. ° There was a railroad on the strip at the time, and, doubtless, the right to use this track was intended. The trial court justified this act on the ground that the grantees had the right to use the whole width of the strip for a railroad. This we think erroneous; but, if true that the grantees could construct other roads, they had no right or power to destroy or impair the railroad already existing. The judgment should be reversed, and a new trial granted; costs to abide event.  