#### URIEL A. MURDOCK, Appellant, *v.*THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Respondent.

*Injunction*— *use of highway by railroad company*— *consent of owner thereto*— *effect of.*

In an action for an injunction, to prevent a railroad corporation from running its cars over a portion of a highway in front of plaintiff’s land, tie fee of which, subject to the public use, was in plaintiff, who had never received compensation for the use of said highway by the company, it appeared that the company was induced to construct its railroad upon said avenue by the express consent and license of the plaintiff. *Held,*that plaintiff was not entitled to an injunction.

Appeal from a judgment in favor of the defendant entered at the Kings County Special Term, brought by an owner of land on Gravesend avenue, in Brooklyn, to enjoin and restrain the defendant from going with its railway through, over or across any portion of the said owner’s land, and for damages for acts in this regard already committed by defendant. The justice before whom the action was tried found, among others, the following facts:

*599Tbat tbe defendant was a corporation duly organized and existing according to law; tbat tbe plaintiff was tbe owner of tbe lands and real estate described in tbe complaint, and tbat tbe defendant bas not made any compensation to tbe plaintiff for any portion of said land; tbat, under and in pursuance of chapter 670 of tbe Laws of 1869, and tbe acts amendatory thereof, and of chapter 531, Laws of 1873, and tbe acts amendatory thereof, an avenue known and called Gravesend avenue was opened, laid out and graded and regulated from Tenth avenue and Twentieth street, in tbe city of Brooklyn, to avenue X in tbe town of Gravesend, and was and bad been since on or about June 1, 1875, an existing public highway of tbe towns of Flatbusb, New TJtrecbt and Graves-end; tbat said avenue constituted a part of tbe route of tbe defendant’s raiboad, and tbe defendant’s road was built upon, and operated on and over said highway in said towns to avenue X, and tbe defendant was authorized by law to construct and operate its railroad with steam power over and upon said avenue, and that said avenue ran through tbe property of said plaintiff, described in tbe complaint; tbat commissioners were duly appointed pursuant to law and tbe statutes above referred to, to open, lay out, grade and regulate said Gravesend avenue, and tbat said commissioners did proceed to lay out, open,'regulate and grade said avenue, and to make awards to owners of lands taken for such avenue, and awards for all damages sustained by tbe owners by reason of tbe taking of said lands for said avenue; tbat tbe said commissioners did make an award to tbe plaintiff for such land so taken from him, and for his damages by reason of such taking, which award bad been confirmed by this court, and tbe plaintiff bad received tbe same; tbat tbe defendant entered upon tbe lands in said avenue with tbe express permission and consent and under a license from tbe plaintiff ; tbat, induced by tbe express consent and license of tbe plaintiff, tbe defendant did construct its raiboad in and upon said avenue, and bad expended large sums of money in said construction. (Tbe plaintiff in bis evidence stated tbat be bad never consented to tbe use of tbe road by tbe defendant.) As conclusions of law upon tbe foregoing facts, tbe justice decided: 1. Tbat tbe plaintiff’s complaint be dismissed. 2. Tbat tbe defendant recover of and from tbe plaintiff its cost of this action, including extra allowance of $100.

*600*Chittenden <& Fiero,*for the appellant.

That under special act of the legislature, chapter 531, Laws of 1869, and the act amendatory thereof, under which defendant claims to be authorized to appropriate Gravesend avenue for its railway, an easement only was taken for the public use; the fee remains in plaintiff, subject to the right of the people to use the land as a street or highway. ' Therefore, defendant could not take possession of this street or highway without making compensation to the plaintiff. *(The Washington Cemetery*v. *The Prospect Park and Coney IslcndR. R. Co.*[7 Hun, 655]; *WilUamsr.K. Y. C.R. R. Co.,*16 N. Y., 97; *Masonr. FT. Y. C. R. R. Co.,*21 id., 658; *Carpenter*v. *Oswego R. R.,*id., 655; *Wager*v. *Troy Union R. R.,*25 id., 526 ; *Broistedt r. Southside R. R.,*55 id., 220.) The laying out of a highway gives the public a mere right of passage with the powers and privileges incident to such right, and the owner of the soil over which the road passes is not thereby divested of his title to the land. *(The Trustees of the Presbyterian Society in Waterloo*v. *The Aub. and Roch. R. R.*[opin. by Nelson, Ch. J.], 3 Hill, 567; *Kelsey*v. *King,*33 How., 39 ; *Crcdg*v. *Roch. and B. R. R.,*39 N. Y., 101.) The legislature must expressly provide for the taking of the fee, or the road must pay damages consequent on the additional burden to property owners. (Laws of 1813, 2 Rev. Stat., 109; *People*v. *Kerr,*27 N. Y., 188.) The following decisions are against the right claimed by defendant: *Miller*v. *The Auburn and Syracuse RaMroad Compcmy*(6 Hill, 61); *Mumford*v. *Whitney*(15 Wend., 380); *Bridges*v. *Purcell*(1 Dev. & Batt., 192; see, also, 1 Chit. Gen. Rr., 336-310). In *HewUns*v. *Slvippan*(5 Barn. *&*Cress., 221) it was held that an easement could not be granted *byparol license. (Eggleston*v. *Ff. Y. and Harlem R. R.,*35 Barb., 162; *Mumford*v. *Whitney, supra*/ Browne on Statute of Frauds, 29, 30; *Cook*v. *Stearns,*11 Mass., 533.) A mere license is personal to the licensee, and is not assignable. *(Mendenhall*v. *Kl/inck,*51 N. Y., 216; Gerard on Titles to Real Estate [2d ed.], 662, and authorities there cited; Hillard on Real Prop., 16; *Babcock*v. *Utter,*1 Keyes, 397, and 32 How., 139; 1 Wash. Real Prop., Ill; 1 Sandf. Oh., 72.)

*John H. Bergen,*for the respondent.

The license by the plaintiff to the defendant to construct the road is proved and is admitted *601by tbe plaintiff. This constitutes a perfect defense. *(Ma/rble*v. *Whitney,*28 N. Y., 297; *People*v. *Goodwin,*1 Seld., 568; *Selden*y. *Pel. and Hud. Oanal Go.,*29 N. Y., 684; *Muller*y. *Auburn, etc., B. B.,*6 Hill, 61; *Eggleston*v. *JSr. Y. and H. B. B.,*35 Barb., 172 [opin. per Emott, J.].) Tbe right granted by the license to the defendant was more than an easement; it was a qualified interest in the land, or a right of *profit a prendre. {Senhouse*y. *Christian,*1 Term. B., 560; *White*y. *Qrcmford,*10 Mass., 188; *Goodrich*y. *Bwbank,*12 Allen [Mass.], 459 ; *Bowen*y. *Gormor,*6 Cush., 137; *Bailey*y. *Stephens,*12 Com. Bench [N. S.], 110; *Muskit*v. *Hill,*35 Eng. Com. L., 371, 694; *Borst*y. *Empie,*1 Seld., 33, and cases cited.) It is clear from all the cases that until the license is revoked no action will lie. *{Selden*v. *H. and P. Gandí Co.,*29 N. Y., 639.) The statute of frauds does not apply to such a license. *{People*v. *Good/win,*1 Seld., 568.) The road haying been constructed under the license of plaintiff, he is estopped from denying the legality of the act. *{Manble*v. *Whitney,*28 N. Y., 307.) Under the act of 1873 the land was taken concurrently for the two *uses of co highway and rañl/road,*and the award made for all the purposes of the act, which plaintiff has accepted. *{In the Matter of the Prospect Pa/rk and O. I. B. B. Co.,*Ot. of App. [opin. of Eolger, J.].)

Pratt, J.:

It is found by the court at Special Term that the acts of defendant, now complained of, were done in accordance with the expressed wish of the plaintiff, and that finding was warranted by the testimony. Upon that state of facts no trespass was committed.

Haying induced the defendants to expend large sums of money in building the road, it would be contrary to all principles of equity to enjoin its operation.

The judgment must be affirmed with costs.

Present — Barnard, P. J., Pratt and Dykman, JJ.

Judgment affirmed, with costs.