(78 Hun, 535.)

#### CURVIN v. ROCHESTER RY. CO.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Street Railroads—Granting of Easements by Abutting Owners.

A grant to a street railroad of the right to lay a track on each side of the roadway in a certain street, signed by plaintiff and the other owners of the property abutting on such street, does not authorize the company to lay its track outside the limits of the street, entirely on plaintiff’s land, at a point where the street is too narrow to accommodate the tracks.

Appeal from special term, Monroe county. -

Action by Ann Curvin against the Rochester Railway Company. From a judgment restraining defendant from operating and maintaining its railroad on premises belonging to plaintiff, in the city of Rochester, and requiring defendant to remove its tracks and trolley poles therefrom, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Theo. Bacon, for appellant.

T. D. Wilkin, for respondent.

DWIGHT, P. J.

All the rights of the parties which are at issue in this action depend upon the effect to be given, as against the plaintiff, to an instrument in writing, executed in July, 1890, under their hands and seals, by a large number of property owners on both sides of Plymouth avenue, among whom was the plaintiff, of which this is a copy:

> “For value received, I hereby grant to the Rochester Railway Company the right to construct, maintain, and operate a double-track railroad upon Plymouth avenue, from the bridge over the abandoned Genesee Valley canal to the southerly end of Plymouth avenue; such railroad to consist of a single track upon each side of the roadway, and to be operated by electricity as motive power.”

All the other facts making up the narrative which follows are of importance only as descriptive of the situation in which the parties and the premises stood at the time the instrument was executed by the plaintiff. Her premises, consisting of about three-fourths of an acre of land, are included in the southwesterly angle of what were formerly two highways in the town of Gates, one of which, known as the “River Road,” ran along the west bank of the Genesee river, in a direction nearly north and south, and the other, beginning at the west line of the first, ran therefrom in a directum nearly west, the two inclosing the angle above mentioned. Both were duly laid out, and recorded in the town clerk’s office as roads four rods in width. Several years before 1890, the limits of Rochester being extended in a southerly direction, both of these highways were adopted as streets of the city,—the River road as an extension of Plymouth avenue, and the other highway under the name of “Brooks Avenue;” but this was done without any proceedings on the part of the city to acquire the right to appropriate any land of the plaintiff used for that purpose, or the payment to her of any compensation for such use. Opposite the premises of the plaintiff *522the river makes a bend to the eastward, and the effect of its current —strong and rapid in seasons of high water—had been gradually to encroach upon its left or west bank, until it had worn away the entire width of the Eiver road, as originally laid out, and pushed the track of the highway, as used by the public, more and more onto the premises of the plaintiff, until, before the year 1890, it had come to be wholly on those premises, throughout their entire frontage on the river road. Some time before 1890 the state built a retaining wall, covering the whole of that frontage, along the west bank of the river, which put. a stop to the encroachments of the stream. This wall fixed permanently the extreme eastern boundary of the land available for use as a highway, and at that time the western edge of the traveled track in actual use was within about 20 feet of the buildings on the plaintiff’s lot. Some time before 1890 the city surveyor undertook to “establish” the lines of the two streets— Plymouth and Brooks avenues—at the corner of the plaintiff’s premises; and he indicated what he chose to regard as the intersection of the west line of the former with the south line of the latter by a stone monument planted in the ground four feet outside of each line, as so located by him. All this was done without the consent, and, so far as appears, without the knowledge, of the plaintiff; and no change in the use, as a highway, of either of the streets, followed such location. But the west line of the traveled track of Plymouth avenue continued to be, as before, 20 feet easterly from the plaintiff’s buildings, lío sidewalk was ever laid out on the Plymouth avenue side of the lot. In the year 1890 a movement was made by the defendant to extend one of the lines of its electric railroad through the southerly part of Plymouth avenue, and the consent of a sufficient number of the property owners on that street was obtained for that purpose, in the form of grants as given above, and this was the purpose of the instrument signed by the plaintiff.

It is very apparent that this instrument was not to be taken literally, in respect to the plaintiff and her premises. There could be no double track railroad on Plymouth avenue, along her premises, with a single track on each side of the roadway. There was barely room on the street, west of the retaining wall, as occupied by the public, for the meeting and passage of teams. It is evident that the form was devised for use in obtaining the consent of property owners where there were such on both sides of the street, and where the street was of something like the regular width.

One other fact, or series of facts, is found by the trial judge, which, though of later date than the execution of the grant, seems to be regarded by the defendant as of importance, as bearing upon the construction to be given to that instrument, as executed by the plaintiff. It appears that in September, 1891, the plaintiff joined with other property owners on Plymouth avenue in a petition to the common council for an improvement of that portion of the street which included the plaintiff’s frontage by the laying of an asphalt pavement on its roadway. An ordinance was accordingly passed for the improvement of that portion of the street described “by the construction of an asphalt pavement therein, with *523a line of Medina stone curb on each side thereof, * * * the width of main roadway between curb lines to be, generally, twenty-five feet,” and the pavement was laid accordingly. When the curb line was first located on the west side of the roadway, it was placed on a line nearly four feet further to the west than the westerly line of the roadway as it had been used by the public; but upon the objection of the plaintiff that location was changed, and the curb was finally set, substantially, on the westerly limit of the public use. The defendant laid its track and set its trolley poles west of the curb, as finally located, and wholly outside of what had ever been used by the public as a street; thus occupying substantially the whole of the small remainder of the plaintiff’s land, which the action of the river and the user of the public had left to her on the east side of her buildings. This is the continuous trespass of which the plaintiff complains in this action, and which the judgment appealed from restrains. We are unable to see that the facts embodied in the foregoing narrative constitute a defense to the action, or indicate any error in the conclusions of law found by the court at special term, substantially as follows: That the action of the city authorities, in assuming to locate a west boundary of Plymouth avenue, did not have the effect of a practical location, and did not affect the rights of the plaintiff; that the land lying between the west curb of the roadway and the plaintiff’s buildings is no part of the highway, or of the street known as “Plymouth Avenue;” that the poles and track of the defendant are on the premises of the plaintiff; and that she is entitled to the judgment of the court, restraining their use in that place, and requiring their removal therefrom. The defendant relies upon the grant executed by the plaintiff. But there is no room to contend that this grant gave any right to lay and operate a railroad outside the limits of the street. The language is “upon Plymouth avenue, * * * upon each side of the roadway;” so that it really became the only question for the court, “Where was the westerly limit of Plymouth avenue at this time?” Originally, it was east of where the retaining wall is now; and, as the street was washed and worn away, it was moved, by the necessary use of the public, further and further to the westward, but was never moved beyond the limit of the actual use. Walker v. Caywood, 31 N. Y. 51-63; Wakeman v. Wilbur (Sup.) 4 N. Y. Supp. 938. Here, the finding is, and the evidence shows, that the actual use by the public never extended beyond a line 20 feet from the buildings. Indeed, the evidence shows that this space, of 20 feet in width, was occupied by a bank with a rise of about 2 feet from the edge of the roadway to the buildings, and that the defendant cut away and leveled down this bank to make room for its tracks. Clearly, this space had not become a part of the street by user.

Equally unfounded is the contention that it had become so by practical location, namely, by the action of the city surveyor or other city authorities in assuming to locate the boundaries of the two streets at their intersection. So far as appears, this action was wholly arbitrary and gratuitous. The surveyor seems to have *524planted his monument at a point where he thought it would be well to have it, without the sanction either of record, monument, or tradition. Of course, no effect is to be claimed for such a location, except by the aid of an estoppel, and there is no evidence whatever in this case upon which to base the claim of an estoppel. It is not even made to appear that the plaintiff knew that the stone was planted, and, if she did, she was not taken into the counsels of the city surveyor, nor informed of the purpose or significance of the act.

neither is there any room in this case for the argument ex necessitate. As we have said, it is plain that the form of this grant was not devised for this particular case. It was never intended to lay two tracks, one on each side of the roadway, in this part of Plymouth avenue. It is evident that a general form made use of in procuring the consent of property owners on both sides of the street, where it was of ordinary width, was also used in the case of the plaintiff; and it must have, in her case, such practical operation as the case permits. If there cannot be two tracks at this point, the defendant must be content with one; and, if that one cannot be laid outside the traveled track of the highway, it must be laid on the traveled track, or the defendant must forego the advantage of laying a track at all over this portion of the road. The grant received from the plaintiff was not a grant of lands, nor of an easement in lands, outside the limits of Plymouth avenue. It was in her case, as in that of all the other property owners, the grant of an easement in the street additional to that involved in its use as a highway,—in other words, their consent to impose an additional burden upon the land constituting the street. We think the judgment was entirely correct, and must be affirmed. All concur. Judgment appealed from affirmed, with costs.