#### WRIGHT v. SYRACUSE, O. & N. Y. R. CO. et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Powers—Informal Execution—Validity.

A conveyance by one empowered by will to execute it is not ineffectual to pass title because he signs his individual name, without addition, where the instrument itself shows the source of his authority.

2. Railroad Companies—Unlawful Occupation of Street—Injunction.

Where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center of the street, may maintain an *902action for an injunction. Syracuse Solar Salt Go. v. Rome, W. & O. R. Co., 22 N. Y. Supp. 321, 67 Hun, 161, followed.

Appeal from special term, Onondaga county.

Action by Edward C. Wright against the Syracuse, Ontario & New York Railroad Company and the New York Central & Hudson River Railroad Company, as lessees of the West Shore Railroad, to recover damages for the unlawful occupancy of a street with its tracks, and to enjoin its further use. Judgment for plaintiff, and defendants appeal.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Ashbel, Green & Waters and McLennan & Waters, for appellants.

E. 0. Wright, m pro. per.

HARDIN, P. J.

It was found by the trial court that plaintiff owns “the land in what is now known as ‘Canal Street’ between the center line thereof and the south line thereof.” Upon studying the maps used at the trial and the evidence produced during the progress of the trial, we are of the opinion that the finding of fact is supported by the evidence. In re Ladue, 118 N. Y. 213, 23 N. E. 465; 2 Am. & Eng. Enc. Law, p. 507, subd. 6; Syracuse Solar Salt Co. v. Rome, W. & O. R. Co., 67 Hun, 153, 22 N. Y. Supp. 321. The court properly found as matter of fact that the plaintiff, “at the time of the commencement and of the trial of this action, was, and for a long time had been, the owner in fee and entitled to the possession of the parcel of land particularly described in the findings of fact, being the same lands described in the plaintiff’s complaint.” When the state assumed to grant the lands in question, it acted as proprietor of the land, and the effect of its conveyance is to be ascertained and declared as though the grant was made by a private individual. City of Oswego v. Oswego Canal Co., 6 N. Y. 265; Smith v. City of Rochester, 92 N. Y. 473. It was competent for the plaintiff to become a purchaser of the lands, and take a deed thereof from Newell at the time he received the conveyance, and in doing so we are of the opinion he did not violate the provisions of section 130 of the Penal Code. That statute evidently was aimed to shut off purchasers of pretended titles. Joseph Newell, deceased, had title to the premises described in his deed, and he died leaving a will creating a trust, and authorized his son, George, to execute the trust, and to convey at public or private sale any lands owned by him. In making such conveyance we are of the opinion George A. Newell did not violate the statute to which reference has been made. The possession of the lands constructively was in Joseph Newell at the time of his death, and subsequently in his trustee. Bliss v. Johnson, 94 N. Y. 235. We think the conveyance executed by George A. Newell in virtue of the power given to him in the will of Joseph Newell was sufficient to pass to the plaintiff all the right, title, and interest in the premises theretofore held and owned by Joseph Newell.

Appellants call our attention to Townsend v. Corning, 23 Wend. 435. In looking into that case, we find that the facts are quite unlike those found in the case before us, and that the case does *903not sustain the contention of the appellants. We think it. quite obvious that the testator intended to give George A. Newell power to convey any real estate left by the deceased, and his power to convey is derived from the will, and the conveyance refers to the will as the source of the power for its execution. Bradstreet v. Clarke, 12 Wend. 603; 1 Rev. St. p. 737, § 124. In Myers v. Insurance Co., 32 Hun, 321, affirmed 99 N. Y. 1, 1 N. E. 33, it was held that, where the power of attorney described the party “as executrix and sole legatee under the will of M.,” and the executrix signed it simply in her own name, “and the description was sufficient to show that it was executed by her as executrix, the failure to add her official character to the signature did not impair its effect.” We think the instrument executed by George A. Newell was sufficient to carry to the plaintiff all the right, title, and interest in the premises theretofore held by the testator, Joseph Newell. We are of the opinion that the defendants have failed to show a right to maintain the tracks, switches, and obstructions upon the plaintiff’s land, and that the plaintiff, as an adjacent owner, is entitled to maintain this action according to the doctrine laid down by us in Syracuse Solar Salt Co. v. Rome, W. & O. R. Co., 67 Hun, 161, 22 N. Y. Supp. 321. In the opinion there delivered it was said:

> “Where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center, it would seem, has three remedies: (1) He may bring successive suits to recover his damages; (2) he may bring an action in equity to restrain the operation of the road; or (3) when the highway has been exclusively appropriated, he may maintain ejectment. Uline v. Railroad Co., 101 N. Y. 98, 4 N. Y. 536. That in cases like this a.suit in equity may be maintained to restrain the defendant from unlawfully using the plaintiff’s land, and for damages sustained by such use, is well established by the authorities in this state.”

Upon the evidence before the court, the damages were assessed at 6 cents and the value of the property at $50.- We think the assessments are moderate, and ought not to be disturbed on account of the amount thereof.

We think no prejudicial error was committed in receiving evidence as to the value of the premises affected by the occupation of the defendants. The case before us differs widely from Roberts v. Railroad Co., 128 N. Y. 455, 28 N. E. 486, as in that case a question was held to be improper which called for an opinion of an expert “as to what would have been the value of plaintiff’s property had defendants’ road not been built and operated.” During the progress of the trial an admission was made in the following language: “The defendant admits, for the purposes of this trial, the incorporation of defendants as alleged in the complaint, and the operation of the roads, tracks, and sidings as alleged in the complaint.” Under that admission and the evidence which was received relating to the several acts of the defendants in the premises, we are of the opinion that there was no error in awarding relief against both defendants.

Our attention is called to Prouty v. Railroad Co., 52 N. Y. 363. That was an action brought to recover a balance of certain dividends on certain guarantied 10 per cent, stock, and is quite different from the case now before us. Plaintiff was very moderate in his demand *904for damages, "on the argument before the trial term having waived all claim for actual past damages.” The award was made of six cents only, and the court finds that on the argument at the trial term,' the plaintiff limited his "request for future damages to $50,” and therefore only that sum was found in favor of the plaintiff against the defendants. By the second conclusion of law the defendants are given the option to pay the $50 “in full for the value of so much of the plaintiff’s interest in his land aforesaid in said street as is necessary to maintain the tracks and structures they are using therein, and to store, use, and operate engines and cars in the same manner as-heretofore has been done.” In the event the option is availed of, the plaintiff is required to execute, acknowledge, and deliver a deed at his own expense to the defendants, or such parties as they may desire, releasing his interest in the land in the street. The judgment seems to be in accordance with the justice of the case as revealed by the evidence.

Judgment affirmed, with costs. All concur.