
    The New York Central and Hudson River Railroad Company, Plaintiff, v. The Shattemuc Yacht and Canoe Club, Defendant.
    (Supreme Court, Westchester Special Term,
    January, 1908.)
    Easements — Location, maintenance and extent of right — Extent of right acquired hy grant — Pipes under railroad.
    Railroads and railroad companies — Interest in lands and right of way — Rights and privileges acquired by company as incident to the grant.
    Where the owner of lands fronting on the Hudson river for about 2,000 feet, with a grant of outside land under water, transferred to plaintiff’s predecessor, a railroad company, a strip substantially along his water front, 74 feet wide for its proposed right of way, by a deed which purported to convey the fee, with a reservation to the grantor of all rights to the land under water outside of the land conveyed, and also the privilege of having made and constructed at the expense of the grantee two culverts at points designated upon an accompanying map or at such other places as might be convenient to both parties, and, thereafter, the railroad company conveyed back to its grantor by a quitclaim deed a strip on the easterly side of the strip which had been conveyed to it, and the description in a subsequent conveyance in fee of a cross section fifty feet in length out of the parcels retained by the first owner after the conveyance to the railroad company to the defendant includes plaintiff’s right of way strip, and •the grant is subject to the rights of the railroad company, the grantee, a yacht club, as to its parcel of fifty feet, has the right, under the charter of plaintiff’s predecessor, the Hudson River Railroad Company, of crossing the plaintiff’s intervening right of way, including the right to lay and maintain gas and water pipes to connect with the club-house of said grantee located on its westerly parcel.
    Where the railroad company demanded, as a condition precedent to laying said pipes, that the yacht club execute and deliver to it an agreement which conceded that the yacht club had no right of crossing the railroad’s right of way but, for any such crossing, was dependent solely upon the railroad’s consent, and the yacht club refused to execute such agreement; and, upon the yacht club’s attempting to lay the pipes in question, the railroad company brought an action against it for an injunction; the defendant is entitled to judgment dismissing the complaint, with costs, and for the amount expended by it in laying the pipes which the railroad company removed and enjoining the railroad company from interfering with defendant’s rights.
    Action to restrain the defendant from laying either water or gas pipes across plaintiff’s right of way.
    George H. Walker, for plaintiff.
    Frank L. Young, for defendant.
   Mills, J.

The defendant owns land upon both sidés of the plaintiff’s right of way strip in the town of Ossining, for a distance of fifty feet. Its parcel on the westerly side of plaintiff’s right of way, which runs approximately north and south, is of considerable depth or width and is composed of land under water included within an old grant. Its parcel on the east of plaintiff’s right of way strip is only three feet in depth or width, but is connected with Water street, a public highway, by a right of way twelve feet ,in width. Upon its westerly parcel the defendant maintains its club-house and for several years, but considerably less than twenty, it has had a plank crossway over plaintiff’s right of way strip connecting defendant’s westerly and easterly parcels and affording, with said right of way to Water street, to defendant and its members, their only means of access from a public highway to such westerly parcel and club-house. Since 1890 the defendant has received its water supply by means of a pipe laid under said plank crossway. Last summer the defendant’s membership and resulting needs had so increased that it imperatively needed a larger supply of water-and also a.supply of gas;- and for the purpose of furnishing such supplies it was necessary for the defendant to have a larger water pipe and a gas pipe laid across plaintiff’s right of way strip, so as to connect with defendant’s westerly parcel and club-house. Defendant has no right to lay such pipe so as to connect with said parcel, except at said crossway over plaintiff’s right of way. There were negotiations between the parties, in which the defendant claimed the right to lay such pipes across plaintiff’s right of way under said crossway; and plaintiff denied such right and demanded that, as a condition precedent to laying said pipes, the defendant execute and deliver to plaintiff an agreement, spoken of in the proofs as its usual crossing agreement. Defendant refused to execute the agreement' because such practically conceded that defendant had no right of crossing plaintiff’s right of way, but for any such crossing was dependent solely upon plaintiff’s consent. Thereupon last August defendant attempted to lay the new pipes under said crossway and was stopped by a temporary injunction issued in this action, which was brought to enjoin the defendant from laying water or gas pipes or either of them across plaintiff’s right of way.

Upon the trial no controversy as to any material fact appeared.

In August, 1847, Benjamin Brandreth owned the land fronting for 2,135-J feet irpon the Hudson river, with a grant of outside land under 'water. The plaintiff’s predecessor, the Hudson River Railroad Company, laid out its railroad along substantially the water front of that tract. On the 25th of August, 1847, Brandreth conveyed to • plaintiff’s predecessor the land needed for its proposed right of way through, said tract, the same being a strip 2,135-J- feet long (running north and south) and about 74 feet in width. There is some dispute before me as to the width of the strip, which dispute I do not undertake to decide, as its solution is of no consequence here. The deed was made for a consideration of $625, and purported to convey in fee. In it, however, the grantor reserved all rights to lands under water outside of the strip conveyed, and also “ the privilege of having made and constructed, at the expense of said parties of the second part (viz., plaintiff’s predecessor), two culverts of the width of twelve feet each at the points designated on said map, or at such other- places as may be convenient to both parties.” The deed was accompanied by a map, which designated the proposed culverts. The location of neither culvert, with reference to the defendant’s parcel, has been proven; but it is admitted upon both sides that neither culvert came in contact with defendant’s parcels.

In July, 1854, the plaintiff’s predecessor, the Hudson River Railroad Company, by quitclaim deed conveyed back to the said Brandreth a narrow strip of land approximately eleven feet wide on the easterly side of the strip which Brandreth in 1847 had conveyed to the company.

Through several intermediate conveyances the defendant became the owner in fee of its premises. The description in -the deed to defendant includes plaintiff’s right of way strip and contains the following subject clause, viz.: “Subject, however, to the rights of the New York Central and Hudson River Railroad as used and possessed by them.”

It thus appears that defendant has come to own a cross section, fifty feet in length, out of the parcels retained by Brandreth after his conveyance to plaintiff’s predecessor, vdii'ch parcels were in length 2,135-| feet upon both sides of the right of way strip conveyed; or, in other words, that the defendant now owns a little less than one-fortieth in length of those parcels so retained, treating the deed by Brandreth to the company in 1847 and the deed by Brandreth back to the company in 1854 as one entire transaction.

It seems to me that the two following questions are presented for determination, viz.:

First. Has the defendant, as to its fifty feet wide parcel, the right of crossing plaintiff’s intervening right of way ?

Second. Does such right of crossing, if it exists, include the right to lay and maintain the proposed gas and water pipes %

As to the first question, there can he no doubt that a reasonable right -of crossing over plaintiff’s right of way strip, to and from the west parcel to the east parcel, retained by the grantor Brandreth, existed as a result of his conveyance to the plaintiff’s predecessor.

■ This right would exist upon the doctrine of necessity, aside from the provisions of the charter of plaintiff’s predecessor and aside from the provisions of the Railroad Law. It also existed under section 16 of that charter, and that too without regard to the use of the lands, i. e., whether or not they were devoted to agricultural purposes. People ex rel. Frost v. N. Y. C. & H. R. R. R. Co., 168 N. Y. 187.

It is unnecessary to consider whether or not the dictum contained in the opinion of the Appellate Division in the First Department, in the case of New York Central & Hudson River Railroad Company v. Marshall, 120 App. Div. 742, to the effect that section 32 of the Railroad Law applies only to farm lands, is correct.

This right of the landowner Brandreth to have, and this duty of the railroad company to provide, crossings, were\ recognized in the deed above recited by Brandreth to plaintiff’s predecessor, as appears bj the reservation therein, hereinbefore recited. From such reservation in that deed it may be inferred that the parties thereto at that time deemed the two crossings reserved sufficient for the then needs of the parcels retained by the grantor. If, owing to the changed conditions, e. g., increased use of the land due to the development of the locality, additional crossings are needed within the length of the 2,13 5-| feet strip conveyed, it is well settled that the court, under said section 16, can compel the railroad company, the plaintiff, to furnish them. This was distinctly held in People ex rel. Frost v. N. Y. C. & H. R. R. R. Co., supra. There is no proof before me showing the present condition of the parcels retained by Brandreth, outside of the fifty feet cross section now owned by defendant.

The defendant’s claim here seems to rest upon the contention that, if said original retained tracts, bordering plaintiff’s right of way for 2,135-J feet, have now become divided into any number of separate ownerships, e. g., forty-two cross sections of fifty feet in length, each owned by a separate individual, the plaintiff can be required and compelled to furnish a separate crossing between the ■ two parcels, east and west, comprising each cross section, or forty-two separate crossings in all over the strip originally conveyed by Brandreth to plaintiff’s predecessor. If this be true of cross sections fifty feet in length, it might also be true of those twenty-five feet in length, and then the plaintiff might be compelled to furnish eighty-four separate crossings of the original Brandreth strip of 2,135£ feet in length. Plainly such a duty resting upon plaintiff might be very onerous. BTo direct authority sustaining this contention has been presented, and none is known to me. In this respect this case seems to be a matter of first impression. The claim here made in behalf of the defendant is that the general rule, to the effect that the duty of furnishing reasonable crossings is a continuous one varying in its requirements according to the varying conditions, requires the extreme results above stated if such conditions should arise. I am not convinced of the soundness of this reasoning and am unwilling to accept and follow it here in the first instance. If such a conclusion be reached, I think it had better be declared by an appellate tribunal. Eeither the plaintiff nor its predecessor is or would be in any way responsible for the subdivision of the adjoining parcels into so many small cross sections, v While such subdivision may be a factor to be considered in determining the number of crossings now required within the 2,135¿ feet of the original Brandreth strip, it does not seem to me that it should be regarded as the only or as the conclusive factor. In short, I do not think that the naked fact that defendant’s parcels constitute a portion or one cross section of the original parcels retained by Brandreth is enough to sustain defendant’s claim to a crossing.

It is contended in behalf of the defendant that, aside from section 16 of the charter of plaintiff’s predecessor, and aside from the doctrine of a right of way by necessity, the defendant has a right of crossing because the plaintiff, being a railroad company, can hold its land only for railroad purposes, although it has taken through purchase by a conveyance in fee (Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75, 86, 89) ; and that the plaintiff’s right of way should be regarded as a highway and the defendant, as the owner of land subject to plaintiff’s rights, should be regarded as having all the rights in plaintiff’s right of way strip which the owner of the servient tenement has in the premises devoted to the right of way. Such rights are to use.such premises in any way not inconsistent with the use of the right of way by the owner of the dominant tenement. Hermann v. Roberts, 119 N. Y. 37, 42.

Even if this contention be correct, still I apprehend that the rights of the defendant, as owner of the servient tenement, would be such rights as were in the original owner thereof; or, in case such ownership had come to be in several individuals each owning a separate parcel, such rights would be in such owners collectively and not severally. Therefore, even upon this theory, the result would be the same and it would not follow that the owner of each separate subdivision or cross section of the original parcels would have the right to a separate crossing. It does not seem that such a result could have been in the contemplation of the parties to the original deed by Brandrcth to plaintiff’s predecessor of the right of way strip. The situation of such parties at the time of the conveyance must be .considered, as well as the language of the conveyance, in determining its intent and effect. Bridger v. Pierson, 45 N. Y. 601, 604.

While the evidence does not show the present condition of the parcels retained by Brandreth outside of defendant’s cross section thereof, still it appears that for many years, at least fifteen, the plaintiff, without objection, permitted the' defendant to have and use its present crossing. In the absence of such evidence as to the present condition of the entire original parcels, 2,135| feet in length, it seems to me that the fact of such long user of the crossing by defendant, with plaintiff’s acquiescence, warrants the finding that under the changed conditions such crossing has become reasonably necessary; and that such fact has been recognized and conceded by the plaintiff. I conclude, therefore, that the de fendant is entitled to have and use its crossing as the same now exists. •

As to the second question herein involved for determination, I think that, if defendant has a right of crossing, such right includes the right of laying and maintaining the proposed gas and water pipes. Such right seems to me to be within the meaning of the terms “ managing such lands ” contained in said section 16 of the charter of plaintiff’s predecessor.

It is well established that the use which may be made of a right of way or crossing may increase or diminish with changed conditions. It is now well known that water and gas are necessary in any such structure as defendant maintains, and indeed in almost any building, and the right of crossing should be held to include any right of transportation not interfering with plaintiff’s user. I do not perceive how defendant’s pipes, if properly laid, can so interfere, or how the laying of them, if superintended by the plaintiff or performed by it at its election, can so interfere.

Doubtless the plaintiff has the right to superintend the work or, at its election, to do the same at the expense of the defendant, and incidentally the right to establish and enforce reasonable regulations for the doing of the work and for the maintenance of the pipes and for changes thereof which may be required by the future needs of plaintiff. The crossing agreement which plaintiff required defendant to execute went beyond the imposition of such regulations in that it proposed to make defendant accept the pipe crossing as a privilege by plaintiff’s license and not as a right in the defendant, and also to make such privilege revolcable by plaintiff at will unon thirty days’ notice. Hence defendant was justified in refusing to execute the agreement. The defendant is therefore entitled to judgment:

(1) Dismissing the complaint with costs; and

(2) Upon its counterclaim, awarding to it twenty dollars damages, its expenses in laying the pipes which plaintiff removed, and stating its rights as above ’defined and enjoining the plaintiff from interfering with it in the exercise thereof.

The terms of the decision must he settled upon notice.

Judgment accordingly.  