Greenwood Lake & Port Jevis Railroad v. New York & Greenwood Lake Railroad

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..

(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 *29cash, 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, *30they 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.