
    The Lehigh and Hudson River Railway Company, Plaintiff, v. The Village of Warwick, Defendant.
    (Supreme Court, Orange Special Term,
    October, 1912.)
    Deeds — of lands used exclusively for railroad purposes — dedication and acceptance construed — highways.
    Injunctions — pendente lite — motion for, when granted — villages.
    Where a deed of land required the grantee to use it exclusively for railroad purposes, such use for more than fifty years by the patrons of the grantee, a railroad company, in going to and from its station and freight houses, and incidentally by the general public, cannot be construed as a dedication and acceptance of the land as a public highway, as such use was permissive only.
    Where the facts presented on a motion for an injunction pendente lite, in an action by the railroad company to restrain a village from further work upon the land, are insufficient to establish an intention on plaintiff’s part to entirely surrender the land to the village, the motion will be granted.
    Motion for an injunction pendente lite.
    
    Agar, Ely & Fulton, for plaintiff.
    Kane & Stage, for defendant.
   Tompkins, J.

I think the motion for an injunction pendente lite should he granted, and the defendant restrained from any further work upon the lands claimed to he owned by the plaintiff, until the trial and determination of the action upon the merits. The land in question was acquired by the plaintiff in 1861, by a deed which requires the plaintiff to use it exclusively for railroad purposes, and ever since it has been used by.the plaintiff for general railroad purposes, and by the patrons of the plaintiff’s railway, in going to and from the station and freight buildings, and incidentally by the general public. But such use of the railroad station grounds, permitted by the owner of the fee, cannot be construed as a dedication and acceptance of such lands as a village highway. In other words, by allowing the public to use the land in question as an approach to its station, the plaintiff did not relinquish its title thereto—such use is permissive only. New York Central & H. R. R. R. Co. v. Village of Ossining, 141 App. Div. 765; Concklin v. N. Y., N. H. & H. R. R. Co., 149 id. 739, and other cases.

It may be that, at the trial of this action, the defendant will prove facts showing a dedication to the public of the strip in question, but the facts presented on this motion, in respect to the removal of the water trough and hydrant, etc., are not sufficient, in my opinion, to establish an intention on plaintiff’s part to entirely surrender its land to the village for public use.

Motion granted.  