Barber v. Hudson River Telephone Co.

105 A.D. 154

Opinion

Smith, J.:

The right of way voucher, so called, purports to give to defendant an easement to maintain its telephone lines, with necessary poles, wires and guys, with the right to trim trees so that they shall not come in contact with its wires. The paper is signed and witnessed and is, therefore, sufficient to secure to the defendant the ■ easement which it purports to grant. From the nature of the right given that easement is one which is continuous, unlimited as to time. It does not contemplate the right' to string a single wire but so many wires as the defendant shall find necessary for the purpose of conducting its business.

The right to trim trees so that they shall not interfere with those wires is not, however, a right to destroy trees or to injure them unnecessarily. That right must be exercised with reasonable regard to the right of the landowner to the enjoyment of his trees. For any excessive cutting of the trees beyond such cutting as is reasonably necessary for the protection of defendant’s wires, defendant is liable to the plaintiff as for trespass.

I do not agree that the plaintiff is not bound by the granting of this easement. The right granted is good as against all future purchasers of the property, except as that right may have been lost by reason of the terms of section 241 of the Real Property Law.

* t This section reads: “ Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration from the same vendor, his heirs or devisees, of the same real property, or any portion thereof, whose conveyance is first duly recorded.” The plaintiff can claim no rights under this provision of the statute. He is not a purchaser in good faith. The defendant’s occupation by the existence of its wires and poles upon the farm was constructive notice of such rights as it might have in connection therewith. Moreover, the plaintiff has no conveyance wffiich has been first duly recorded — a condition precedent to the benefits given by the statute.

The plaintiff insists, however, that he has shown an excessive cutting of the trees beyond any right which may be claimed under the instrument signed by the former owner of the premises. This action was apparently tried at the Trial Term upon the theory that the defendant was a trespasser db initio and had mo right whatever to cut the trees. Upon this theory evidence was given of the value of the farm before the cutting and after. Part of the cutting was lawfully done. Plaintiff was asked upon the trial whether any of these branches that were cut came in contact with the wires on these crossarms before they were cut. His answer was, “ There were quite a few that did not come in contact.” It is for the excessive cutting only. that he has any right of action, and there is no attempted proof as to the damage caused to the premises by the excessive cutting alone. Without such proof plaintiff has established no cause of action and his complaint was properly dismissed.

The judgment should, therefore, be affirmed, with costs.

All concurred; Parker, P. J., in result; Houghton, J., not sitting.

Judgment affirmed, with costs.

Laws of 1896, chap. 547.— [Rep.