#### In the Matter of the Application of the New York Central Railroad Company for the Appointment of Commissioners to Appraise Certain Lands belonging to the Buffalo, New York and Erie Railroad Company.

(Argued May 3, 1872;

decided May 21, 1872.)

Where a railroad company leases its road and all its lands, upon or across which the road or any part thereof, or its machine shops, warehouses, freight or passenger depots, or buildings, are constructed, such lease includes all lands acquired for use in operating the road, and without which the use of the road or any part thereof will he less convenient and valuable.

*Accordingly,—Reid,*that where a railroad company had, prior to the execution of such a lease, acquired title to a piece of land for the purpose of use as a street in connection with its road, which use would be highly beneficial to and convenient for its business, that the land was included in the lease, although such use had not been actually obtained at the time of the execution of the lease; and that where the land was condemned and taken under the statute by another railroad, the lessee was entitled to the use of the money awarded as damages for such taking during the continuance of the lease.

Appeal by the Erie Railway Company from an order of the General Term of the Supreme Court in the eighth judicial district, reversing an order of the Special Term, entered on the report of a referee, made in a special proceeding.

The special proceeding was an application to the Supreme Court, by the Mew York Central Railroad Company, for the appointment of commissioners to appraise certain lands belonging to the Buffalo, Mew York and Erie Railroad Company, situated in the city of Buffalo. The land taken was a strip thirty feet in width, extending easterly from Michigan street to Chicago street, in the city of Buffalo. The commissioners awarded $14,500 therefor. Their award was confirmed, and the money was deposited in the Erie County Savings Bank, at Buffalo, for the benefit of the persons interested in the premises so taken, or entitled to the compensation allowed therefor, to be determined by the further order *415of the court, upon the application of the parties interested therein.

The Buffalo, Hew York and Erie Railroad Company, as owner of the fee of the land taken, made application, by petition, to the Supreme Court for the money.

The Erie Railway Company also applied, by petition, to the Supreme Court for the money, on the ground that it was lessee, in possession of the Buffalo, Hew York and Erie Railroad Company, under and by virtue of a lease made to it on the 27th day of February, 1863, for the term of 490 years.

Messrs. George C. Satterlee and John Ganson were trustees, each of a mortgage on the real estate of the Buffalo, Hew York and Erie Railroad Company, to secure the payment of bonds which had been issued and were still outstanding.

The Supreme Court, at Special Term, made an order, on the petitions, referring the matter to Orsamus H. Marshall, Esq., to take proofs of the matters relating to the various interests in the money in question, and to report the proofs taken before him, together with the facts found by him, and his opinion thereon.

Mr. Marshall, on the third day of Hovember, 1866, made his report, by which he determined that the Erie Railway Company was entitled to the use of so much of the money as would remain after paying certain costs and expenses, by him specified, during the continuance of its lease from the Buffalo, Hew York and Erie Railroad Company, subject to the rights of the trustees of the mortgages aforesaid, in case of a breach of the condition thereof.

This report was confirmed, on motion, by the court at Special Term, so far as the ownership and the right to the tase of the money was concerned. The only modification of the report related to the mode of investing the principal sum.

The Buffalo, Hew York and Erie Railroad Company appealed to the General Term from the entire order confirming the referee’s report, save that portion thereof which related to the allowances for costs and expenses.

*416The General Term reversed that portion of the order of the Special Term which confirmed the finding and decision of the referee, that the lease of the Erie Railway Company embraced the lands taken, for which the award of $14,500 was made, and which held that the Erie Railway Company was entitled to an interest in that money.

The General Term put in its decision on the ground that the land taken, for which the award was made, was no part of the premises demised to the Erie Railway Company.

*John Ganson*for the Erie Railway Company, appellant.

If there be doubt as to the tenor of a written instrument, that construction is to be adopted which is most beneficial to the covenantee. *(Marvin*v. Stone, 2 Cow., 781, *806; Doe*v. Dixon, 9 East., 15; Comyn on Landlord and Tenant, p. 53.)

*Shermcm S. Rogers*for the respondent.

That construction shall be made of words, if it can, to support that which seems the intent of the parties. (Com. Dig., Title, Parols A., 23; 2 Pars. on Con., 11, 20; Bacon’s Max., 1 Req., 3.)

Grover, J..

Whether the appellant is entitled to the use of the money paid by the Hew York Central Railroad Company for the land, condemned for its use during the term of the lease from the respondent to the appellant, depends upon the question whether the land, or the title of the respondent thereto, was embraced in the lease. The land was a strip thirty feet in width, extending easterly from Michigan street to Chicago street, in the city of Buffalo, a distance of about 110 feet. At the time of giving the lease by the respondent to the appellant, the former owned lands adjoining the strip in question on the north, and lying south of Exchange street, upon which was located its passenger depot. The strip in question runs along south of these lands of the respondent, and in the rear of its depot.

About the year 1847 the several owners of the strip in *417question conveyed by deed to the Attica and Buffalo Railroad Company the use and occupancy of the strip, to be devoted to the public as a highway and street, which that company agreed to pave in two years from that time. The right of the latter company was afterward acquired by the New York Central Company. That company took possession of the strip and used it for railroad purposes, and never paved or opened it as a street. In the year 1857 the respondent acquired thé fee of that portion of the strip condemned, subject to the right of the New York Central Company. The strip continued in the possession of the New York Central Company, the respondent never having had actual possession, but claiming the right to use the same as a street. Before the execution of the lease by the respondent to the appellant, in February, 1863, the former commenced an action against the New York Central Company to compel it to pave and open the street for its and the public use, which action was pending at the time of the execution of the lease; and the New York Central Company had, at the same time, proceedings pending for appraisal of the land and acquiring title for the purposes of its road, free from its obligation to open it as a street. The description of the property demised is as follows: “ The railroad of the party of the first part, including its branch freight track, and all the land of the party of the first part situate within and from the city of Buffalo to and within the village of Corning, in the county of Steuben, upon and across which its said railroad, or any part thereof, or its machine shop, warehouses, freight or passenger depots or buildings, are constructed within and between the places aforesaid, and all the right, title and interest which the party of the first part has in and to the use of any wharves or docks in said city, or in or to any other branch track or tracks used'by it in connection with its said railroad, together with the appurtenances thereunto belonging during said term.”

The case shows that the respondent acquired title to the land lying north of the strip in question, and erected its *418depot thereon, relying upon the use of the strip in question as a street; and that the value of the use of such land will be much lessened for the purposes for which it was acquired if deprived of such use of the strip. The benefit to the respondent to be derived from such use, together with the commencement of the suit by it against the New York Central Company to secure such use, show that the respondent acquired its title to' the strip to enable it to compel the New York Central Company to pave and open the street over the strip, to enable it to operate its railroad in a more advantageous and convenient manner than it otherwise could do. In other words, that the title to the strip was acquired for the purpose of securing its use as a street in connection with the railroad; and that use was highly beneficial to and convenient for the business of the respondent in the operation of its railroad. It is true that such use had not actually been obtained at the time of the execution of the lease to the appellant; but the right thereto had been acquired, and legal proceedings to enforce it had been instituted and were then pending.

It is not material to determine whether the New York Central Company could have been compelled to pave and open the street; a question somewhat discussed by counsel. As, if it could not, its right of occupying the strip for any purpose would terminate upon its refusal so to do ; and thus the estate of the respondent in the land would become absolute, and it could then enjoy it as a way to and from its depot as owner of the fee. Neither is the fact' that the respondent had not acquired title to the entire strip, subject to the right of the New York Central Company, at all material. It had acquired title to all that part of it embraced in the present proceeding, and which was sufficient to secure the use of the entire strip as a street, or the damages sustained by being deprived of such use in case of its being taken for other purposes by the New York Central Company. The opinion of the General Term conclusively shows that the strip of land in question cannot pass, under the lease, to the *419appellant as appurtenant to the other land demised; that easements or servitudes only can so pass; it being a maxim of the common law that land cannot be appurtenant to other land. But it is equally well settled that the intention of the parties, as ascertained from the language used in the instrument, is to govern their rights; and that, in construing every written instrument, it is proper to look at all the surrounding circumstances, the pre-existing relation between the parties; and then to see what they mean when they speak. *(Blossom*v. *Griffin,*3 Kernan, 569.) Applying this rule to the present case, we find that at the time the respondent gave the lease to the appellant, it had acquired the right to use the strip as a street along side of its passenger depot, and grounds connected therewith, or to its damages if deprived thereof. That such use was convenient and advantageous thereto; that, deprived of such use, the depot and grounds would be of less value for railroad purposes; that the interest in the strip had been acquired for this purpose, and, in case the Hew York Central Company paved and opened it as a street, was of no value to the respondent for any other purpose. Under these circumstances the respondent leased its railroad, running from Buffalo to Corning, to the appellant. I think this not only included the railroad track and depots, but all land acquired for use in operating the road, the use of which was advantageous and beneficial in connection therewith; the being deprived of which would render the use of the road or any part of it less convenient and valuable.

There is nothing in the residue of the description restricting this general language by the application of the maxim, that the expression of one excludes the other. It is insisted by the respondent that the use of this strip as a street, or otherwise, is not necessary for the use of the railroad. This is true, in the sense of being absolutely necessary, because the road has been, and still is, operated without it. But in the sense in which the word is construed in taking land for the use of roads, under the statute, against the will of the owner, it is necessary, because it appears that the road can be operated *420more conveniently and beneficially with than without such use. It was condemned in behalf of the New York Central Company for the reason that its use by that company was more essential to it and the public than to the present parties. The New York Central Company was compelled to pay not only the value of the land taken, but the damages caused thereby to the other lands of the owner. This, in the present case, was the injury to the depot, etc., by being deprived of the use of this strip. It is the lessee and not the lessor that suffers this loss during the term. Upon principles of equity, as well as upon the true construction of the lease, I think the referee and Special Term were right in holding that the appellant was entitled to the use of the money during the term of its lease, and that the General Term erred in reversing the order of the former. The order of the General Term must be reversed, and that of the Special Term affirmed.

All concur.

Ordered accordingly.