#### Henry E. Hood, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Third Department,

September 23, 1914.

Real property — easement — right of way over railroad property acquired by prescription — parties —suit by one of several tenants in common—waiver of failure to j oin parties —action by trustee — agreement not creating tenancy in common.

Where a railroad company by condemning aright of way cut off the plaintiff’s predecessor from all means of ingress to or egress from his lands to a highway, except over the lands of adjoining owners, and constructed on property owned by it a gate in the fence line for the express use of the plaintiff’s predecessor so that he could reach the highway by a well-defined road not used for railroad or public purposes, and the plaintiff and his predecessor used said way for over thirty years under a claim of right, he acquires a right of way by prescription. And this is so, although the railroad company and its successors at times sought to obstruct the way, if the plaintiff asserted his rights and forced a passage.

*It seems,*that a right of way can be obtained by prescription within the right of way of a railroad company, where the facts are sufficient to *834warrant the finding, and especially as to such portions of the way as have not been dedicated to public use.

The defendant railroad company waives the objection that the plaintiff was a tenant in common and should have joined the other tenants in common as parties to the action, where the objection was not taken by demurrer or answer.

*It*seems, that as the parcel of land was conveyed to the plaintiff as “trustee,” he may bring action without joining with him the other persons interested.

*It seems,*that where the plaintiff took title with the understanding that he was to pay other persons certain sums of money and has done so, or made arrangements to do so, the relation between them is not that of tenants in common, though the person unpaid may have an equitable lien.

Motion "by the appellant, The New York Central and Hudson Elver Eailroad Company, for a reargument of its appeal herein from a judgment of the Supreme Court, entered in the office of the clerk of the county of G-reene on the 10th day of January, 1914, and in the event of the denial of said motion for leave to appeal to the Court of Appeals.

*Amos Van Etten,*for the appellant.

*N. A. Calkins,*for the respondent.

Lyon, J.:

The judgment appealed from permanently enjoined the appellant from obstructing a prescriptive right of way claimed by respondent over land of which the appellant is the lessee, the title to which was acquired by the grantor of the lessor through condemnation proceedings. In 1864 the Saratoga and Hudson Eiver Eailroad Company thus acquired a right of way for railroad purposes through the village of Coxsackie, N. Y., upon which a railroad was built which in time became the property of the West Shore Eailroad Company, and some years since was leased by that company to the appellant by whom it has since been operated. The railroad right of way divided a lot of three acres which fronted on Whitbeck street, leaving one acre thereof, which was conveyed to the respondent’s trustee in 1898, on the east side of the railroad property, wholly cut off from a highway, which could only be reached by trespassing upon lands of other individual owners, or by crossing the railroad right of way and a portion of the three-*835acre parcel to Whitbeck street on the west, or by crossing a lot owned by the railroad company, known as the Conine lot, lying between the one-acre parcel and Mansion street on the south. A house was built on the one-acre parcel in 1883 which has been occupied ever since it was built, and a barn was also built on the parcel in which horses have been kept, which was standing until within the last year or two. The Saratoga and Hudson River Railroad Company constructed, and the railroads have since maintained, a fence between the two properties in which it placed a double gate ten feet in width through which, and along the east side of the Conine lot, the occupants of the one-acre parcel have at all times been accustomed to pass on foot and with teams, between the one-acre parcel and Mansion street. In recent years, however, objection has been made by the railroad owner or lessee to such passing over the Conine lot, and the company has sought to prevent it by fastening the gate and erecting fences, but the owner or occupant of the one-acre parcel has immediately forced a passage through to Mansion street. Recently the appellant constructed a fence across the Conine lot on or near the Mansion street line for the purpose of preventing the respondent passing between the parcel and Mansion street. The appellant also posted a notice forbidding all persons from trespassing on the Conine lot under the penalty of the law, but the respondent at once removed sufficient of the fencing to allow him to pass, and has continued to use the driveway as before. The relief sought in this action is an adjudication that the respondent has a right of way from said acre parcel to Mansion street, and enjoining the appellant from obstructing the same. The answer denies that such right of way exists, and that the respondent has the right to cross the Conine lot on such alleged right of way.

In 1909 the appellant sought to induce the respondent to enter into a lease of the right of way, evidently that he might be estopped from claiming that he had an easement by prescription. The respondent inserted in the proposed lease a clause reserving any right which he might have to pass from the parcel to Mansion' street, and the appellant thereupon refused to accept the lease. The trial justice found among *836other things, “that said driveway from Mansion street to said premises is open and visible, and the use of the same as a means of ingress to and egress from said premises now of the plaintiff, has been used openly, notoriously, visibly and under a claim of right, and undisputedly up to about the year 1909, when the defendant undertook to make a lease of the right to use said roadway with the plaintiff, but no lease of the same was perfected and accepted by the plaintiff or defendant.” As conclusions of law the trial justice found that the plaintiff and his predecessors in ownership, by open, visible, notorious, uninterrupted and undisputed use of the roadway under a claim of right, and the necessity therefor, for more than twenty years prior to the defendant’s interference therewith had acquired a right of way over said roadway by prescription; and that the respondent was entitled to a judgment and decree permanently enjoining the appellant from obstructing the said right of way. From the judgment entered upon such decision this appeal has been taken.

The findings and conclusions of the trial justice are fully sustained by the evidence. It may be fairly assumed, as stated by the appellant in its brief, that as the Saratoga and Hudson Biver Bailroad Company placed this gate in the line fence, leaving the Conine lot unfenced at the street, the privilege was given by the railroad company to the owner of the one-acre parcel to pass from that property to Mansion street. Whether that right was given for the purpose of avoiding the possible claim by the owner of the one-acre parcel of a right of way by necessity across the railroad right of way and the remaining portion of the three-acre parcel to Whitbeck street, is not disclosed, but it is undisputed that the respondent and his predecessors in title have claimed and exercised the right to pass on foot and with teams from the one-acre parcel to Mansion street for nearly fifty years, and although at times some successor in title or occupancy of the Saratoga and Hudson Biver Bailroad Company has endeavored to obstruct the passage, the owner or occupant of the one-acre parcel has asserted his claim of right and forced a passage over the disputed right of way.

In confirmation of the suggestion that the right of way was *837given by the Saratoga and Hudson Eiver Eailroad Company, although claimed not to be binding upon the appellant, is the statement in each of the deeds of the one-acre parcel made in 1885, 1892 and 1898 that there is also conveyed by each deed whatever right or privilege of a way the parties of the first part have or possess to and from said premises to the public highway.

A case very much relied upon by appellant is that of *Concklin*v. *New York Central & H. R. R. R. Co.*(149 App. Div. 739), in which the appeal to the Court of Appeals was dismissed upon the ground that the Appellate Division had unanimously decided that the findings of fact were supported by the evidence and that the exceptions presented no reviewable question. (207 N. Y. 752.) In some respects that case is similar to this, but in that case the right of way claimed was along the side of the railroad premises and across the same in front of the station to the highway, and the court held that a user of grounds thrown open to the public, in connection with the use of a public or quasi-public building, was ordinarily to be considered permissive and not adverse, unless there was some distinctive act indicating a separate and exclusive use under a claim of right sufficient to notify the owner not only of the user *but of the claim, of right.*The court said: “The record contains no evidence of any decisive act upon the plaintiff’s part indicating a separate and exclusive use from which knowledge of a claim of right could be presumed by the respondent.” Hardly a greater contrast could exist between the facts of that case and of the case at bar, where the railroad company constructed a double gate in the line fence for the express use of the occupant of the acre parcel with his teams in passing along the east side of the Oonine lot, which lot, excepting near the street line, was much wider than the ordinary right of way of the railroad, and which evidently was not needed and certainly was not used for railroad or public purposes. Apparently during the first thirty or forty years the railroad company fully acquiesced in the use of the right of way by the owners and occupants of the acre parcel, and knowledge during the whole period of user that the use was -under claim of right was not wanting. The first objec*838tion to the use of the right of way was evidently made during the last few years by the appellant, although the date of its acquiring its leasehold interest does not appear.

Appellant makes five points in its brief. 1. That the Conine lot having been taken by condemnation proceedings for public use cannot be again taken without legislative authority, and that a person traveling over a portion of the land cannot thereby acquire a greater interest than can the public. Among the cases cited is the *Concklin Case (supra),*in which the court held that the evidence was insufficient to create a prescriptive right of way. Several other cases are also cited which lay down the rule that no individual can gain for himself by prescription an easement on a highway, in which term the Erie canal is included. None of the cases cited, however, hold that a right of way cannot be obtained by prescription within the right of way of a railroad company, where the facts are sufficient to warrant the finding. It is said in Euling Case Law (Vol. 1, p. 737, Adverse Possession, § 56): “These principles [which prevent the acquisition of public property by adverse possession] have been most frequently invoked with respect to the right or power to acquire an adverse title to lands within the' right of way of a railroad company, and the great weight of authority is to the effect that title may be so acquired, and this is especially true as to such portions of the right of way as have not been dedicated to public use. On principle it seems that the reasons for exempting the acquisition of public highways by adverse possession are not applicable to a railroad right of way; for, even though such right of way may, in a sense, be devoted to a public service, it still remains private property the use of which is intended for private gain. Nor are sovereign rights involved.” A large number of cases in many States are cited as supporting this statement, and cases in California, Kansas and Nebraska are cited as holding otherwise. (So*uthern Pacific Co.*v. *Hyatt,*132 Cal. 240; *Missouri, K. & T. R. Co.*v. *Watson,*74 Kan. 494; *McLucas*v. *St. Joseph & G. I. R. Co.,*67 Neb. 603.) However, in Nebraska a railroad is made a public highway by the State Constitution (Neb. Const, art. 11, § 4), while the Kansas decision was controlled by the terms of the grant made by the United States *839government to the Union Pacific Railroad Company, and the California decision seems to be likewise controlled by a similar grant made to the Central Pacific Railroad Company. In the case -of *Sapp*v. *Northern Central Railway Company*(51 Md. 115) it was also held otherwise. Ho case in our courts has been cited, and I have found none, definitely deciding the question. Prescription rests upon the presumption of a lost deed after adverse use and enjoyment for twenty years. This period has been adopted by the courts as the prescriptive period from analogy to the Statute of Limitations. ' *(Lewis*v. *New York & Harlem Railroad Co.,*162 N. Y. 202, 223.) It does not seem to me that the deed of a right- of way which is presumed to have been lost must necessarily be the deed of an owner of the fee, but that the loss of a deed of a right of way by a party holding only an easement may he presumed which would be effective during only the existence of the easement.

2. Appellant’s second point assumes that the respondent accepted the lease of a right of way tendered by the appellant which was not the fact. Hence the subject need not be considered."

3. Appellant’s third point is that a complete determination of the controversy cannot be had without the presence of other parties, its claim being that the respondent was a tenant in common of the one-acre parcel, and that the other tenant in common should have been joined as a party to the action. The appellant not having taken the objection by demurrer or answer is deemed to have waived it. (Code Civ. Proc. § 499.) Furthermore, the parcel was conveyed to the respondent with the addition of the word *“*trustee,” which the appellant claims was simply *descriptio personae.*If the respondent held the parcel in trust he had the right to bring the action without joining with him the persons interested. It appears, however, that he took the title with the understanding that he was to pay two other persons certain sums, and that he had already paid one of them in full, and under the arrangement which was made could pay the other at any time. This relation did not constitute the parties tenants in common, but doubtless gave the remaining creditor an equitable lien.

4. The fourth point in appellant’s brief is that a right of way *840from necessity could only exist over the three-acre parcel to Whitbeck street. This is probably true, as is the statement that the owner of the one-acre parcel had also the right under the Bailroad Law* to insist upon a private crossing over the portion of the three-acre parcel taken by the railroad company. But neither is very material, excepting as together they indicate the reason for the Saratoga and Hudson Biver Bailroad Company placing the gate in the fence, condemning the whole of lot Ho. 4 (the Conine lot), and acquiescing in the passing of the occupants and owners of the one-acre parcel over that, lot to Mansion street. This right of way was evidently given by the railroad company in consideration of the relinquishment by the owner of the one-acre parcel of his claim of a right of way from that parcel to Whitbeck street. Whatever the fact may have been it is probable that it cannot now be definitely proven, as one of the witnesses testifies that the owner of the three-acre parcel, at the time of the condemnation, has been dead for probably thirty years.

5. Contrary to the statement in appellant’s fifth point, the evidence seems to establish an easement over the Conine lot.

The application for a reargument should be denied. The application for leave to go to the Court of Appeals should be dismissed as unnecessary.

All concurred.

Motion for reargument denied. Motion for leave to go to the Court of Appeals dismissed as unnecessary.

*

 See Gen. Laws, chap. 39 (Laws of 1890, chap. 565), § 32, as amd. by Laws of 1891, chap. 367, and Laws of 1892, chap. 676; Consol. Laws, chap, 49 (Laws of 1910, chap. 481), § 52.— [Rep.