Clow v. Van Loan

New York Supreme Court

Clow v. Van Loan

6 Thomp. & Cook 458, 11 N.Y. Sup. Ct. 184

DecidedApril 15, 1875

StatusPublished

This text of 6 Thomp. & Cook 458 (Clow v. Van Loan) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clow v. Van Loan, 6 Thomp. & Cook 458, 11 N.Y. Sup. Ct. 184 (N.Y. Super. Ct. 1875).

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Opinion

Boardman, J.

The act of 1855, chapter 347, was valid and constitutional. The legislature had the'power to create the turnpike company. By the same power it could authorize such company to sell or transfer its corporate rights and franchises. The various acts of the legislature in evidence show the existence of a legal company. Under the act of 1855, such company, by a deed good upon its face, conveyed to. Nichols the turnpike and all the company’s rights, franchises, etc., under its charter. This was in 1855. From that time until 1867 NichBls remained in the possession and use of said turnpike, collecting tolls thereon. I can see no rational principle upon which a doubt can be raised, either as to the power of the legislature to authorize such a sale to an individual, or the right of an individual to take and enjoy under such a sale. If it be- conceded that the deed was informal, or that the requisite number of stockholders did not consent, it will not benefit the defendant. A sale ivas made, possession was given, and Nichols used and enjoyed the property sold, under a color of title, claiming to own for over ten years. The defendant is not in a position to attack such an ownership, or do violence to such possession and user. If anybody could do so, it would be the stockholders of the company, but their laches and neglect would estop them. If Nichols acquired any title to the turnpike property and franchises he could convey them to plaintiff, just as the individual owner of a ferry franchise can sell it to another. Rights of this character maybe obtained by prescription, and become property in the owners. Wiswall v. Wandell, 3 Barb. Ch. 315. Whatever property a man possesses he may sell and convey, unless by its tenure it is forbidden. Adams v. Beach, 6 Hill, 271.

It results from these considerations, if just, that Nichols acquired the right from the turnpike company to demand, sue for and receive tolls, and that he had a right to sell and convey to plaintiff such turnpike and all the rights, privileges and franchises- incident to its ownership. When the company parted with the property it had no longer any right to receive tolls, or bring actions therefor. Such actions must be brought in the name of the real party in interest. Code, § 111. Nor is it of the slightest consequence in this case whether the turnpike company has been dissolved or still exists. It is sufficient if it appears to have divested itself of all interest in this action. So far as a forfeiture is urged, it is suffi[461]*461cient to say that the franchise must be forfeited by judicial proceedings, before an individual can avail himself of its misuser or omissions. Thompson v. N. Y. & Har. R. R. Co., 3 Sandf. Ch. 625; Adams v. Beach, 6 Hill, 271.

It is further urged by the appellant that the justice erred in not dismissing this action because the title to land came in question. This claim is not sustained by the evidence. Plaintiff produced his deed under which he claimed possession, and to connect himself with the charter whereby the right to tolls is given. The defendant did not dispute plaintiff’s title by proof. When a deed is put in evidence for a collateral purpose it does not bring in question the title to land.

All that the plaintiff was required to do was to establish his possession of the turnpike and the right derived from the company to collect the tolls. The controversy was not over title to lands, for it stands conceded that this turnpike had been occupied and used for such purpose for more than twenty years, and that for all that time tolls had been collected upon it. Ho one pretends it was not a turnpike upon which tolls were, and had long been, collected. But it is denied that plaintiff has shown himself in a position to sue for and collect penalties for non-payment of tolls. Showing himself in possession of the turnpike is presumptive evidence of ownership for the purposes of this action. The deed or transfer of the company rights is then given in evidence to show, not a title to the highway, but a right to pursue such remedies as by statute were given to the company for interference with his possession and presumptive title.

If the fofegoing reasoning is correct, the judgment of the Greene county court should be affirmed, with costs.

Judgment affirmed.

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Boardman, J.

The act of 1855, chapter 347, was valid and constitutional. The legislature had the'power to create the turnpike company. By the same power it could authorize such company to sell or transfer its corporate rights and franchises. The various acts of the legislature in evidence show the existence of a legal company. Under the act of 1855, such company, by a deed good upon its face, conveyed to. Nichols the turnpike and all the company’s rights, franchises, etc., under its charter. This was in 1855. From that time until 1867 NichBls remained in the possession and use of said turnpike, collecting tolls thereon. I can see no rational principle upon which a doubt can be raised, either as to the power of the legislature to authorize such a sale to an individual, or the right of an individual to take and enjoy under such a sale. If it be- conceded that the deed was informal, or that the requisite number of stockholders did not consent, it will not benefit the defendant. A sale ivas made, possession was given, and Nichols used and enjoyed the property sold, under a color of title, claiming to own for over ten years. The defendant is not in a position to attack such an ownership, or do violence to such possession and user. If anybody could do so, it would be the stockholders of the company, but their laches and neglect would estop them. If Nichols acquired any title to the turnpike property and franchises he could convey them to plaintiff, just as the individual owner of a ferry franchise can sell it to another. Rights of this character maybe obtained by prescription, and become property in the owners. Wiswall v. Wandell, 3 Barb. Ch. 315. Whatever property a man possesses he may sell and convey, unless by its tenure it is forbidden. Adams v. Beach, 6 Hill, 271.

It results from these considerations, if just, that Nichols acquired the right from the turnpike company to demand, sue for and receive tolls, and that he had a right to sell and convey to plaintiff such turnpike and all the rights, privileges and franchises- incident to its ownership. When the company parted with the property it had no longer any right to receive tolls, or bring actions therefor. Such actions must be brought in the name of the real party in interest. Code, § 111. Nor is it of the slightest consequence in this case whether the turnpike company has been dissolved or still exists. It is sufficient if it appears to have divested itself of all interest in this action. So far as a forfeiture is urged, it is suffi[461]*461cient to say that the franchise must be forfeited by judicial proceedings, before an individual can avail himself of its misuser or omissions. Thompson v. N. Y. & Har. R. R. Co., 3 Sandf. Ch. 625; Adams v. Beach, 6 Hill, 271.

It is further urged by the appellant that the justice erred in not dismissing this action because the title to land came in question. This claim is not sustained by the evidence. Plaintiff produced his deed under which he claimed possession, and to connect himself with the charter whereby the right to tolls is given. The defendant did not dispute plaintiff’s title by proof. When a deed is put in evidence for a collateral purpose it does not bring in question the title to land.

All that the plaintiff was required to do was to establish his possession of the turnpike and the right derived from the company to collect the tolls. The controversy was not over title to lands, for it stands conceded that this turnpike had been occupied and used for such purpose for more than twenty years, and that for all that time tolls had been collected upon it. Ho one pretends it was not a turnpike upon which tolls were, and had long been, collected. But it is denied that plaintiff has shown himself in a position to sue for and collect penalties for non-payment of tolls. Showing himself in possession of the turnpike is presumptive evidence of ownership for the purposes of this action. The deed or transfer of the company rights is then given in evidence to show, not a title to the highway, but a right to pursue such remedies as by statute were given to the company for interference with his possession and presumptive title.

If the fofegoing reasoning is correct, the judgment of the Greene county court should be affirmed, with costs.

Judgment affirmed.

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6 Thomp. & Cook 458, 11 N.Y. Sup. Ct. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clow-v-van-loan-nysupct-1875.

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