Lehigh & Hudson River Railway Co. v. Village of Warwick

New York Supreme Court

Lehigh & Hudson River Railway Co. v. Village of Warwick

78 Misc. 1, 137 N.Y.S. 658

DecidedOctober 15, 1912

StatusPublished

This text of 78 Misc. 1 (Lehigh & Hudson River Railway Co. v. Village of Warwick) 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

Lehigh & Hudson River Railway Co. v. Village of Warwick, 78 Misc. 1, 137 N.Y.S. 658 (N.Y. Super. Ct. 1912).

Pincite

Opinion

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 [2]*2by 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.

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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 [2]*2by 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.

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Bluebook (online)

78 Misc. 1, 137 N.Y.S. 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lehigh-hudson-river-railway-co-v-village-of-warwick-nysupct-1912.

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