text:
    The Prospect Park and Coney Island Railroad Company, App’lt, v. The Coney Island and Brooklyn Railroad Company, Resp't.

      (Court of Appeals,

      Filed December 11, 1894.)

    1. Contract—Construction.
    Under a contract which, contains a provision that, in case defendant should use steam as a motive power on its line, either party can terminate the contract on six months’ notice, the use of the trolly system of running cars by electricity cannot be regarded as the use of steam as a motive •power, so as to bring the case within the above mentioned provision.
    2. Same.
    A lease and conveyance by defendant of its road, which were made expressly subject to the contract in question and reserved all of defendant’s rights thereunder, do not justify his breach of said contract.
    3. Same—Specific performance.
    The fact that, under a contract having a long time to run, there may he such a change of conditions as will unfavorably affect one of the parties, offers no reason for refusing specific performance, unless subsequent events have made performance by the defendant so onerous that the enforcement would impose great hardship upon him and cause little or no benefit to the plaintiff.

      4. Same.
    A contract is to he judged as of the time at’which it was entered into, and, if fair when made, the fact that it has become a hard one by the force of subsequent circumstances or changing events, will not necessarily prevent its specific performance.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.

      George W. Wingate, for app’lt; William A. Dylcman, for resp’t.

       Reversing, 50 St. Rep. 862.

   Bartlett, J.

The parties to this action entered, into a contract June 1, 1882, and the plaintiff seeks to compel its specific performance.

The special term rendered judgment for plaintiff; the general term reversed the judgment, and the plaintiff comes here under the usual stipulation in case of affirmance.

The reversal was for error, both of law and fact, and the failure to insert a certificate that the case contains all the evidence having been cured by the amendment of the return by the supreme court, we are called upon to review the facts as well as the law.

At the time of making the contract the plaintiff owned a steam surface railroad, usually known as “ Culver’s Coney Island Railroad,” which extended from Coney Island to a depot at the corner of Ninth avenue and Twentieth street, in the city of Brooklyn and adjoining Greenwood Cemetery; the plaintiff also owned certain horse-car railroads, which were entirely distinct from the steam railroad, extending from the depot to Fulton ferry; the plaintiff also owned a charter entitling it to construct a horse car line from the depot to Hamilton ferry and other points.

The defendant, at the time of executing the contract, was operating certain horse-car lines which ran from Hamilton, Pulton and other ferries and from the East river bridge to Ninth street and Ninth avenue, and through Ninth avenue to Fifteenth street, on Fifteenth street to Coney Island avenue, and thence to Coney Island; these lines were operated wholly by horses.

By the contract the plaintiff granted the defendant the right to use its tracks on Ninth avenue from Fifteenth street to the depot at Ninth avenue and Twentieth street, free-of charge for twenty-one years from June 1, 1882.

The defendant covenanted to run during the spring, summer and fall months to plaintiff’s depot cars to connect with the ferries and all plaintiff’s trains to and from Coney Island.

The plaintiff agreed to furnish defendant necessary terminal facilities at the depot.

This contract was obviously advantageous to both parties; the plaintiff secured passengers to Coney Island from defendant’s lines, and the defendant greatly increased its travel by having a direct connection with steam transit to Coney Island.

The defendant's horse-car line to Coney Island could not successfully compete with plaintiff’s steam route.

The plaintiff provided defendant with the necessary terminal facilities as required, and the contract was acted upon by both parties until the month of October;- 1889.

At that time there was a change in defendant’s management, and the company contracted for an electrical equipment from the Parade Ground to Coney Island, commonly known as the trolley system.

■ The plaintiff, in May, 1890, finding that defendant was not running cars to the depot as required by the contract, requested performance, and was advised that the defendant was under no obligations to run the cars and did not intend to do it.

This action was commenced the following October.

It is insisted by the defendant that the adoption of the trolley ^system is in contemplation of law a use of steam under the clause in the contract which provides that if the defendant shall use steam as a motive power between Ninth avenue and Fifteenth street, in the city of Brooklyn and Coney Island, either party can terminate the contract on six months’ notice, and that the correspondence and answer in this case are equivalent to notice, and the contract no longer exists.

We agree with the special term that the electrical system adopted by the defendant cannot be regarded as the use of steam as a motive power. Hudson River Turnpike Co. v. Watervliet T. & R. R. Co., 135 N. Y. 393, 402; 48 St. Rep. 417. It would be in disregard of the natural and obvious meaning of language to hold otherwise.

We cannot agree with the general term that the use of the words “ steam as a motive power ” was "only another form of referring to rapid transit by whatever means accomplished. To so hold would be to make a new contract for the parties.

The defendant insists further that by reason of certain acts of plaintiff, and by changes in the surrounding circumstances, it would be inequitable and unjust to enforce a specific performance of the contract.

This leads us to consider some additional facts disclosed by the record.

On the 9th of December, 1885, plaintiff leased to the Atlantic .Avenue Railroad Company all its franchises to construct and operate horse-car railroads in the city of Brooklyn, and on May 27th, 1887, in pursuance of chapter 282 of the laws of that year, conveyed said rights and interests absolutely. The lease and conveyance were made expressly subject to the contract in question, and reserved all the defendant’s rights thereunder; they also required the Atlantic Avenue Railroad Company to operate the Vanderbilt Avenue Railroad Company as had been previously done by the plaintiff,

The defendant made no objection to this transfer until after its refusal to perform the contract.

Defendant urges that it was greatly damaged by the fact that the Atlantic Avenue Railroad Company had completed, under the franchise obtained from plaintiff, a horse-car line to the Hamilton Ferry.

We are unable to perceive how defendant has suffered any damage in view of the fact that it, purchased with full knowledge of plaintiff’s, franchise and its desire to dispose of the same.

It appears by the uncontradicted evidence that defendant sought to purchase of plaintiff this franchise to complete a route to the Hamilton Ferry either just before or about the time the contract was executed.

The defendant further contends that the plaintiff, under a proper construction of the contract, was not at liberty to sell out its street-car interests, although not restrained by any positive-provision.

This contention is based mainly on the alleged fact that the Atlantic Avenue Railroad Company is an active rival of defendant and did not have the same motive to deal fairly with defendant that plaintiff had while seeking to build up its Coney Island business.

The principal complaint against the Atlantic Avenue Railroad Company is based upon the manner- in which it performed the contract in regard to defendant’s terminal facilities at the depot, corner Hi nth avenue and Twentieth street.

The evidence does not satisfy us that there was any persistent effort to delay the cars of defendant at that point or to prevent passengers from the steam road selecting from the cars in waiting the one in which to ride without undue interference.

We think the contract was substantially performed by plaintiff and its grantee in regard to terminal facilities of defendant and even if this were not the case the defendant could have compelled the observance of its contract rights in every particular by resort to the court.

The fact already referred to, that defendant continued to act under the contract for more than four years after this lease to the Atlantic Avenue Kailroad Company, without objection, must be taken very strongly against it in a court of equity.

It seems to us very clear that when the management of defendant was changed in October, 1889, and the road from the Parade Ground to Coney Island was operated by electricity, it at once became an active and successful rival of the plaintiff in securing passengers to and from Coney Island, and had every motive to rid itself of the contract if it could be legally done.

We.agree with the learned trial judge, that while it is impossible, under the state of the proofs, to determine to what extent plaintiff has been damaged by defendant’s adoption of the trolley system, yet it is clear that it has suffered considerable loss.

It is of course entirely legitimate for defendant to secure to itself whatever share of the Coney Island travel it can by the exercise of proper business methods, but we are unable to perceive any reason, under the proofs as presented, why defendant should • be released from the obligations of a contract entered into in good faith by both parties, and that has been practically construed by years of performance.

It may very well be that under a contract having twenty-one years to run there may be such a change of conditions as will affect unfavorably the one party or the other, but this offers no reason for refusing specific performance, unless subsequent events have made performance by the defendant so onerous that the enforcement would impose great hardship and cause little or no benefit to the plaintiff. Trustees of Columbia College v. Thacher, 87 N. Y. 316, 317; Murtfeldt v. N. Y., W. S. & B. R. R. Co., 102 id. 703.

In the case at bar the plaintiff, we think, would be benefited by defendant running the transfer car in Ninth avenue from Fifteenth street to its depot at Twentieth street.

On the other hand, it may be assumed that the defendant, by cheaper fare and its ability to carry passengers to Coney Island without transfer, will be able to secure its full share of the passengers to and from the seashore.

The result of compelling the specific performance of this contract will be to afford the general public an opportunity when traveling over the line of defendant’s from the ferries, to make choice of the route they will take to Coney Island when arriving at Ninth avenue and Fifteenth street.

While it may be somewhat to the disadvantage of defendant to perform its contract under the present circumstances, when active competition exists between plaintiff and defendant, yet that fact presents no legal reason for discharging it from the obligations of its contract.

As a final- point the learned counsel for the defendant insists that equity will not enforce the specific performance of a contract having some years to run which requires the exercise of skill and judgment and a continuous series of acts.

While there is some conflict in the cases, and all are not to be reconciled, yet the great weight of authority permits specific performance in the case at bar.

The special term enjoined the defendant from operating any of its cars unless it performs its contract with the plaintiff.

The provisions of this contract are neither complicated nor difficult and are such as a court of equity can enforce in its discretion.

A few of the cases may be referred to as illustrating the power vested in a court of equity to compel the specific performance of contracts similar to the one at bar.

In Storer v. Great Western Railroad Co., 2 Young & Coll. N. R. 48, the court compelled the defendant to construct and forever maintain an archway and its approaches. The court said there was no difficulty in enforcing such a decree.

In Wilson v. Furniss Ry. Co., Law Rep., 9 Equity Cases 28, the defendant was compelled to erect and maintain a wharf, flee, also, Green v. West Cheshire R. R. Co., Law Rep., 13 Equity Cases 44.

In Wolverhampton & W. R. R. v. London & N. W. R. R., L. R., 16 Eq. 433, the agreement between the two companies was that the defendant should work the plaintiff’s line, and during the continuance, of the agreement develop and accommodate the local and through trade thereof and carry over it certain specific traffic.

The bill was filed to restrain the defendant from carrying a portion of the traffic which ought to have passed over the plaintiff’s line by other lines of the defendant.

The point was made that the court could not undertake to enforce specific performance, because it would require a series of orders and a general superintendence to enforce the performance, which could not conveniently be administered by a court of justice. The injunction issued and Lord Selbobne said (p. 438): “ With regard to the argument that upon the principles applicable to specific performance no relief can be granted, Í cannot help observing that there is some fallacy and ambiguity in the way in which in cases of this character those words specific performance are used. * * * The common expression, as applied to suits known by that name, presupposes an executory as distinct from an executed agreement. * * * Confusion has sometimes arisen from transferring considerations applicable to suits for specific performance, properly so called, to questions as to the propriety of the court requiring something or other to be done in specie. * * * Ordinary agreements for work and labor to be performed, hiring and service and things of that sort, out of which most of the cases have arisen, are not, in the proper sense of the word, cases for specific performance; ’ in other words, the nature of the contract is not one which requires the performance of some definite act, such as the court is in the habit of requiring to be performed by way of administering superior justice, rather than to leave the parties to their remedies at. law. * * * The question is whether the defendants, being in possession, they are not at liberty to depart from the terms on which it was stipulated that they should have that possession.”

The American cases are equally clear.

In Lawrence v. Saratoga Lake Ry. Co., 36 Hun, 467, the defendant was, among other things, to erect a depot at which all • trains were to stop. Specific performance was decreed, the court holding that, although under the agreement the defendant could not be compelled to run trains upon its road, yet it might properly be enjoined from running any regular trains which did not stop at the station.

The objection that the judgment in this case involves continuous acts and the constant supervision of the court is well met by the reasoning in Central Trust Co. v. Wabash, St. Louis & P., 29 Fed. Rep. 546, being affirmed as Joy v. St. Louis, 138 U. S. 1, 47, 50, where Judge Blatchford wrote the opinion.

As to inconvenience or circumstances which affect the interest of one party alone constituting a reason why performance should not be decreed, the case of Marble Co. v. Ripley, 10 Wall. 339, 358, furnishes a clear discussion of the general principles involved.

The rule established by the above and kindred cases is that a contract is to be judged as of the time at which it was entered into, and if fair when made the fact that it has become a hard one by the force of subsequent circumstances or changing events will, not necessarily prevent its specific performance. See, also, Stuart v. London & N. W. Ry. Co., 15 Beavan, 513; Mortimer v. Copper, 1 Bro. C. C. 156; Jackson v. Lever, 3 id. 605; Paine v. Miller, 6 Ves. 349; Paine v. Hutchinson, L. R., 3 Eq. 257; Franklin Tel. Co. v. Harrison, 145 U. S. 459, 472, 473.

A large number of other cases might be cited sustaining the power of the court to decree the specific performance of this contract, but we do not deem it necessary.

There can be no well-founded doubt as to the power of the court in the premises, and- the important question is whether in the exercise of a wise discretion and in view of all the circumstances specific performance should be decreed.

After a most careful consideration of this case we have reached the conclusion that the plaintiff is entitled to have the contract specifically performed.

The order of the general term is reversed and the judgment of the special term is affirmed, with costs in all the courts.

All concur, except Andrews, Oh J., who dissents on the ground that plaintiff having established a rapid transit road, although the propulsion is by electricty, has met the condition of the contract which entitle it to terminate such contract, or at least has placed itself in such a position that a court of equity will not enforce specific performance.

Ordered accordingly.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Leslie M. Saunders et al., Resp’ts, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Court of Appeals,

      Filed December 4, 1894.)

      1. Real estate—Accretion.
    In order to give a littoral proprietor title to land by accretion, the increase must be by such imperceptible degrees that, though persons are 1 Modifying and affirming 64 St. Rep. 364. able to perceive from time to time that the land has increased on the water line, they could not perceive the progress of the accumulation at the time it was made.
    3. Same.
    The filling up- of a bay, by cutting down the banks and bluffs above the shore, will not give title by accretion within this rule.
    3. Same.
    The owner of the adjoining uplands cannot acquire title by filling up lands under water belonging to the state.
    4. Same—Grant from state.
    A grant from the state of land under water cannot be impeached collaterally, unless it is void on its face.
    5. Same—Commissioners of land office.
    The legislature has confereed upon the commissioners of the land office power to make grants of land under navigable waters for railroad purposes.
    6. Same.
    No limitation of such grants to the adjacent riparian owner is found in § 35 of the Act of 1850, authorizing grants for railroad purposes.
    7. Same.
    The defendant’s patent from the state was valid and effectual to vest it with all the rights that the state had in the land in question.
    8. Same.
    But it could not extinguish or impair the easement or riparian rights of the owners of the uplands and bank of the river.
    9. Same.
    Where the roadbed, upon such land, passes between the uplands and the usual place of access to the river and cannot be conveniently crossed, it is the duty of the company, at its own expense, to construct and maintain convenient passes or roads across, or under, its road for the passage of persons, cattle, carriages and teams from the uplands to the river front.
    Appeal from judgment of the general term of the supreme court in the second j udicial department, entered upon an order which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special term.

      Hamilton Harris, for app’lt; Ralph M Prime, for resp’ts.
   O’Brien, J.

The plaintiffs are the owners of certain uplands on the easterly shore of the Hudson river at Yonkers, and they brought this action to enjoin and restrain the defendant from maintaining or operating its railroad over or upon a parcel of land sixty feet in width and about one hundred feet in length, situated below the original high-water mark and in front of their uplands. The courts below have sustained the action upon the ground that the plaintiffs have the title to the disputed parcel, and that the possession and use of the same by the defendant is wrongful. The important questions of law involved cannot be discussed or clearly understood without an accurate knowledge of the material facts. Omitting many that are merely incidental and collateral, the following facts, as to which there is no dispute, lie at the basis of the controversy. The defendant’s present corporate organization dates from the year 1869, when the Hew York Central and Hudson River railroads were consolidated into one corporation, under the authority of the statute passed in that year It absorbed these two corporations, and succeeded to all the rights, powers and franchises that either or both possessed, or could exercise, and became capable of acquiring additional rights, franchises and powers in conformity with law. The Hudson Eiver Eailroad Company was incorporated by chapter 216 of the Laws of 1846. Power was conferred upon it to enter upon any land or water for the purpose of locating its road and making surveys and maps. The location of the road at the point in question was fixed by a map filed in September, 1847. It extended from two points of land across a considerable bay formed by the river, quite a distance from the shore and below high-water mark, requiring a width of seventy-three feet, in the bed of the river. At that time one Ethan Flagg was the owner of the uplands on the easterly shore of the bay, and opposite the land under water which the railroad required. He owned to high-water mark, with such incidental rights in the shore and river as pertain to riparian ownership. In August, 1847, he granted to the railroad for the consideration of $100, a strip of land under the waters of the river, below high-water mark, seventy-three feet wide, just westerly from and adjoining the parcel in question. Subsequently, and not later than the year 1849, the railroad was constructed by building a solid embankment of earth across the bay, upon the 3and under water so granted, and that part of the river east of the embankment became, as described in the findings, a land-locked bay, except that at a point north of the lands of Flagg a small culvert was constructed under the roadbed, through which only small boats could pass at half tide. While this opening permitted the flow of the water to some extent into the bay, yet it is plain that the bay was substantially cut off from the channel of the river except so far as communication was possible across the railroad. It is important here to get a clear understanding of the respective rights of Flagg and his grantee, the railroad company, and the changes, if any, which this grant worked upon his riparian rights, since the plaintiffs have succeeded only to his rights. There was no stipulation in the deed binding the railroad to construct any culvert or other means of access by water from the bay to the channel of the river, but the deed reserved all the rights of the grantor to all lands below high-water mark in the river except the portion taken by the railroad for its use as then located. The railroad was released from all damages which the grantor might sustain by reason of the construction of the road through his lands and premises, during the construction of the same in front of his premises. The railroad covenanted in the deed that Flagg, his heirs and assigns, might at any time erect a wharf or wharves into the river, and connect the same with the property line of the road, and that the company should make and prepare the way over its track for free passage of the grantor, his heirs and assigns, to the wharf or wharves whenever erected.

The railroad was, therefore, built in the bed of the river, across' the bay, in front of the grantor’s uplands, with his consent, and, -except as specially provided in the deed, his original riparian rights were thereby cut down and diminished to such extent as was reasonably necessary for the maintenance and operation of a railroad upon the seventy-three feet granted. This proposition, I think, is not denied, and there is really no controversy as to the right of the defendant to maintain and operate its road within the lines of the original grant. The plaintiffs’ contention rests upon subsequent acts which must now be stated.

The plaintiffs have succeeded to Flagg’s title to the uplands through various mesne conveyances, and, except their claim to accretion by filling up the bay east of the railroad, which will be referred to hereafter, they have his title and no other. In June, 1868, the defendant resolved to change its line, or rather, it seems, to make the roadbed wider, and for that purpose to acquire more land. The necessary surveys and maps for that purpose were made and filed, which included the parcel in question, a strip east of and adjoining the seventy-three feet, which extended the roadbed towards the shore and the upland sixty feet, but all below original high-water mark. The defendant procured a patent of this strip from the commissioners of the land office December 26,, 1873, under the provisions of the general railroad act. Laws of 1850, chap. 140, § 25. This is the grant upon which the defendant’s claim of title is founded. But the plaintiffs also claim title, and their claim rests upon the following facts: In the year 1869, and again in 1887, they or their grantors obtained from the state, through the commissioners of the land office, patents for a strip of land under .water westerly of the original exterior line of the railroad, about 120 feet wide and adjoining the railroad, as was apparently contemplated by the Flagg deed, but these patents did not embrace any part of the parcel in question, which is wholly easterly of the roadbed as originally constructed. In the year 1853, one of the plaintiffs’ predecessors in title of the uplands filled in the bay between the original shore and the railroad by depositing therein earth taken from the banks and bluffs on the uplands, but this filling did not entirely reclaim the submerged land, as the water, especially at high tide, continued to flow over it to some extent. But in the jrnar 1870, when the defendant was about to increase the width of its roadbed, it made extensive additional filling on the strip in question and raised it up on a grade with its original roadbed and then laid down additional tracks upon it, and, having obtained the grant from the state of December 26, 1873, has since substantially operated its railroad upon a roadbed 133 feet in width. The plaintiffs have no grant whatever from the state or otherwise of the parcel, but rest their claim of title, aside from their general riparian rights, upon the reclamation of the land by filling up in 1853.

Accretion is undoubtedly one of the modes by which a title to-land may be acquired, but whether any title vested in the plaintiffs or any of their grantors in that way, under these circumstances, must be considered. The general rule is that, in order to give a littoral proprietor title to land by accretion, the increase must be by such imperceptible degrees that, although persons are able to perceive from time to time that the land has Increased on the water line, they could not perceive the progress of the accumulation at the time it was made. Mulry v. Norton, 100 N. Y. 424. The filling up of the bay by cutting down the banks and bluffs above the shore certainly did not give title by accretion within this rule. The case of Steers v. City of Brooklyn, 101 N. Y. 51, does not, I think, sustain the plaintiffs’ contention. When the opinion in that case is examined in connection with the facts in the record and with the statutes under which the plaintiff claimed, it will be seen that the defendant simply built a pier upon lands,, the title to which was in the plaintiff, and the decision was to the effect that the pier thus built became the property of the plaintiff upon whose lands it was located. It may be true that when a man builds a structure upon his neighbor’s land it becomes attached to and a part of the freehold upon which it stands and inures to the benefit of the owner of the soil in the absence of some agreement, express or implied, to the contrary.

But that principle has no application to this case, for the reason that here no one filled up any land to which the plaintiffs or any of their grantors had title, and the plaintiffs’ grantors could not acquire title by filling up lands under water that belonged to the state. The plaintiffs’ contention in this respect is answered by the remarks of Earl, Oh. J., in the case of the People ex rel. Blakeslee v. The Commissioners of the Land Office, 135 N. Y. 447; 48 St. Rep. 432, where, after discussing some other claims of the relator, he says: “ But he seems to place some reliance upon other facts. A few years before the grant to the company, he, being president of the company, caused the refuse of its foundries to be deposited in the water west of the railroad upon some of the land under water, subsequently granted to the company, and by this deposit the land was raised above the water. He certainly acquired no title to the land by thus entering upon it without any right and filling it up, and he did not thus become the proprietor of the 1 adjacent land,’ within the meaning of the statute above quoted. As between him and the state, it still legally remained land ‘under water,’ to be dealt with as such.”

There is not, I think, any authority in this state to sustain the propostion that an adjacent owner can acquire title to lands under the waters of the Hudson river below high-water mark by filling it up, and the contention certainly has no foundation in reason or justice. ITo rights vested in the upland owner in virtue of these acts that he did not possess before.

This conclusion necessarily leaves the plaintiffs without any right to the parcel in question that can be derived from its title or ownership and goes far to defeat the action, since they can succeed only upon the strength of their own title and not upon the weakness or defects of the defendant’s. But to rest here would leave open for "further controversy some important, questions that are raised by the objections urged against the title of the defendant, and which are necessary to decide in order to define with accuracy the rights of the parties. The learned counsel for the plaintiffs insists that the grant from the state to the defendant of the parcel in question by the patent of December 26, 1873, is absolútely void for reasons which require some consideration. Before examining these objections, however, it may be well to observe that the plaintiffs cannot impeach this grant collaterally unless it is void upon its face. It must be assailed, if at all, by a direct proceeding to review the determination of the commissioners of the land office, or by an action in equity to set it aside, and the recitals in it are prima facie evidence of its regularity and of compliance with the preliminary requisites of the statute. Blakeslee Mfg. Co. v. Blakeslee Sons' Iron Works, 129 N. Y. 155; 41 St. Rep. 178; N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83; 48 St. Rep. 373; DeLancey v. Piepgras, 138 N. Y. 26; 51 St. Rep. 680. It is not and cannot well be claimed that this action, though in equity, is to set aside the patent. It is to restrain a trespass upon the plaintiffs’ rights of property. If the commissioners had the power to make the grant upon any state of facts their action concludes the plaintiffs, and this brings us to the objections urged against it by them.

The main assault is based upon the proposition that the state had title to this land, not as proprietor, but as sovereign and trustee for the public. The contention as to the nature of the title cannot be denied, but the conclusion sought to be drawn from the fact does not follow. The question was decided in this court in Langdon v. The Mayor, 93 N. Y. 129, and Mayor v. Hart, 95 id. 443, and has recently been examined with great learning by the supreme court of the United States in the case of Illinois Central R. R. v. Illinois, 146 U. S. 387.

The case involved the title to a vast tract of land under the waters of Lake Michigan in and around the harbor of Chicago, ■extending a mile east of the extejior line of the original roadbed •of the railroad, which the state assumed to grant to that corporation in 1869. It was held that the- ownership, dominion and .-sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the public interests, and subject to the paramount right of ‘Congress to control their navigation so far as necessary for the regulation of commerce with foreign nations and among the states, and that the same rule was applicable to lands under the waters of the great lakes. That the original roadbed, two hundred feet wide, with the necessary sidings and crossings which had been granted to it by the state, under a prior grant and various ordinances of the city of Chicago, was a reasonable public use, and no ■encroachment upon the domain of the state, and was valid. But that the grant extending one mile easterly of the line of the roadbed amounted to an abdication of its sovereignty and control by' the state over the waters, and, in effect, a breach of the trust under which it held the same, and, therefore, revocable by the action of a subsequent legislature. The doctrine of that case, with respect both to what was sustained and what was condemned, amply supports the grant in this ease, even if there was any ground for .supposing that our own decisions do not completely settle the question, as I think they do. The land which a railroad corporation acquires in this state, though it may be technically called a fee, is for its use as a public highway, and this is a use for the benefit of the public, though perhaps the particular purpose for which the grant was made is not very material. Langdon v. Mayor, supra. While the state holds the title to lands under navigable waters in a certain sense as trustee for the public, it is competent for the supreme legislative power to authorize and regulate grants of the same for public, or such other purposes as it may determine to be for the best interests of the state, and the legislature has conferred power upon the commissioners of the land office to make such grants for railroad purposes. Shively v. Bowlby, 152 U. S. 1. Chapter 140 of the Laws of 1850 (§§ 25, 49) empower the commissioners to grant to any railroad company formed under that act any land belonging to the people of the state which may be required for the purposes of the road, upon such terms as may be agreed upon by them. This right vested in the defendant under the statute which authorized the consolidation, and applies to all railroads by section 49.

There is nothing in any of the cases in this court to the contrary. In fact the point was not involved in any of them. In the N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83; 48 St. Rep. 373, both the upland proprietor and the railroad bad a grant from the state of the same land under water, but that of the upland owner was four years earlier in point of time, and it was held that his was the superior title. Except for the prior grant the power to patent to the railroad was assumed. In the Rumsey case, when it first came before the second division, it was held that a railroad company that had constructed its roadbed alqng the shores of the river was not an “ adjacent owner ” within the meaning of the statute, and that an additional grant made to it by the state did not cut off the riparian rights of the upland owner. Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 423; 23 St. Rep. 928.

When the same case was here again 133 N. Y. 79; 44 St. Rep. 248; 136 N. Y. 543; 49 St. Rep. 683, it appeared that the railroad had cut off the plaintiff’s access to the river by building its road upon his land without any grant or condemnation proceedings, and we held he was entitled to damages. None of these eases question the right of the state to make grants of land to railroads for railroad purposes, and in all of them the right is recognized.

It it said that the commissioners were expressly prohibited from making grants of land under the waters of the Hudson river to any one but the adjacent riparian owner, and the defendant, not being such owner, could take no title by the grant. This proliibition is found in the Eevised Statutes, passed at a time when grants for railroad purposes were not contemplated (1 R. S. 208, § 67); but no such limitation is to be found in section 25 of the act of 1850, authorizing grants for railroad purposes. To hold that a railroad company could not take from the grant of the state in such cases, unless it was an upland proprietor, would render the statute practically inoperative. That was a subsequent and independent enactment for a special purpose, enlarging the power of the commissioners, and the restrictions, qualifications and limitations contained in the Revised Statutes as to upland ownership were not imported into it. The defendant’s patent from the state was, therefore, valid and effectual to vest it with all the rights that the state had in the parcel in question. But it could not extinguish or impair the easement or riparian rights which the plaintiffs or their grantors had as owners of the uplands and bank of the river.

What these rights are has been decided in the Rumsey Case, 133 N. Y. 79; 44 St. Rep. 248, and since that decision re-affirmed in the case of the Illinois Central Railroad v. Illinois, supra. They embrace the right of access to the channel or navigable part of the river for navigation, fishing and such other uses as commonly belong to riparian ownership, the right to make a landing wharf or pier for his own use or for that of the public, with the right of passage to and from the same with reasonable safety and convenience. But the trial court has found that the title to this parcel of land was not in the defendant but in the plaintiffs, and, so far as the judgment rests upon these findings, it cannot be sustained. It practically deprives the defendant of all use or possession of the land for any purpose, and requires it to wholly discontinue the operation of its railroad upon it. We have already seen how the rights of the upland owner were affected by the grant from Flagg, under which the defendant acquired the right to operate its road upon the original seventy-three feet. The only ground of complaint that the plaintiffs have is with respect to such additional obstructions to the enjoyment of their riparian rights as have since that time been created by the defendant’s acts in adding to the width of its roadbed in the manner described and in the manner of its use. The plaintiffs cannot complain of the operation of the road by.the passage of trains, since their remote grantor consented to it by his grant to the defendant, without limitation or restriction of any kind. Whether any additional obstruction to the enjoyment of the rights incident to upland ownership have been created by the defendant since it obtained the grant of Dec. 26, 1873, was, I think, under the circumstances, a question of fact.

The fact that the defendant is now operating its road upon a bed sixty feet wider than before the grant, but upon its own land,, does not furnish any substantial ground for equitable interference. The trial court has found, however, that the rails and ties placed by the defendant on its roadbed so project above the surface of the ground as to impede the passage of men, horses and carriages over the road, and to obstruct access to the river from the upland, and that at times it maintains standing cars thereon, thus interfering with the plaintiffs’ riparian rights. This does not warrant that part of the judgment wiiich enjoins the defendant absolutely from operating its road upon the sixty feet, and requires it to remove the track and ties and never to replace them, but it does entitle them to some measure of relief. The defendant, under the covenant in the deed from Flagg, as well as by its general relations and obligations to the plaintiffs as riparian owners, is bound to construct and maintain a suitable, safe and reasonably convenient way or ways over its- railroad which will furnish access to the water front for all such purposes as the plaintiffs have the right to resort to it as a public highway. Moreover, substantially the same duties and obligations have been imposed upon the defendant by the law of its creation. Laws of 1846, ch. 216, §§ 14, 15, 16. Wherever it crosses bays or streams it must, so far as practicable, restore them to their former usefulness. The owners of docks or water rights upon the river, outside the railroad, are protected by requiring the defendant to extend and improve the same when cut off, and generally to restore and preserve all property rights, so far as practicable.

Where the roadbed passes between the uplands and the usual place of access to the river, and cannot be conveniently crossed, it is the duty of the corporation, at its own expense, to construct ■and maintain convenient passes, or roads, across or under the railroad for the passage of persons, cattle, carriages and teams from the uplands to the river front. The findings in this case are to the effect that the defendant has not performed these duties and obligations, so far as the plaintiffs are concerned, and that it has interfered with the enjoyment of their riparian rights to the extent and in the particulars mentioned. The extent of the relief to which they are entitled is that the defendant shall be required by the judgment to perform these duties and obligations.

This result is in harmony with the doctrine of the Rumsey case, supra. There is a marked difference between that case and this, at least in the form of the action. In the former the plaintiff attempted to protect his riparian rights by an action to recover damages. In this case there is no claim made for damages sustained, but the owner has asked simply equitable relief against any future invasion of his easements. In the former case we held, that so far as the owner had sustained damages in consequence of any encroachments by the defendant, that he was entitled to recover. In this case we hold that in so far as the facts found justify the conclusion that the defendant has invaded the plaintiffs’ rights, or is invading them, they are entitled to relief. In that case it had been adjudged in previous actions that the defendant was obstructing access to the river without any' right or title whatever as against the upland owner. In the present case we hold that the defendant has a valid grant of the land from the state, good against all the world, except the plaintiffs’ right of access to the river, and that, so far as. necessary for the protection of these rights, the plaintiffs aré entitled to prevail.

The judgment should, therefore, be modified in such manner as to give to the plaintiffs this relief, and this alone. The order should be so framed as to accomplish this result, and, if its terms cannot be agreed upon by the parties, then it must be settled by one of the judges of this court.

This judgment, as thus modified, should be affirmed, without ■costs to either party.

Peckham, J.—The court below and the counsel for the plaintiff upon the argument before us have as its seems to me misconceived the extent and nature "of the decisions .of this court in the Rumsey and Aldridge cases, 114 N. Y. 423; 23 St. Rep. 928, and 135 N. Y. 83; 48 St. Rep. 373. While concurring in the views set forth in the very satisfactory opinion of Judge O’Brien, I only desire to say a word specially regarding those two cases. The point therein decided was that the ancestors or grantors of the individual parties to those actions had not by their grants to the railroad company of the strips of land under water or along the line of and below and above high-water mark, deprived themselves of or clothed the railroad company with the character of riparian owners. We accordingly held that these individual parties could in their character of riparian owners still take title to lands under water which were adjacent to their upland, and the intervention of the railroad embankment did not form an obstacle. We did not decide that the railroad company, under the provisions of §§ 25 and 49 of the General Railroad Act of 1850, could not take a grant of the title of the state for the purposes of the road from the commissioners of the land office covering land under water upon such terms as they might agree to. In both of the cases there was a grant to the individuals of land under water and they claimed title under their patents from the state. In the Rumsey Case the defendant had no pretense of title and relied upon the defense that the plaintiffs were not ' riparian ownei's, and, therefore, obtained no title by virtue of the patent from the land commissioners. • In the Aldridge Case the defendant had a patent which was attacked as not carrying any title because it was asserted the defendant was not a riparian owner and could take no title by such patent to the lands under water. Although the plaintiff in-the Aldridge Case had a patent it was subsequent to the one granted to defendant. In both cases the patents to the individuals were held good because the patentees were, notwithstanding the grants to the railroad company, held to have continued to be upland proprietors within the meaning of the statute. In the case at bar the plaintiffs have no patent from the state granting" to them the title to any lands under water, and they never had any title to such and have none now. They simply have those rights as riparian owners which Judge 0,’Brien, has described, while the defendant has obtained the title of the state to the lands under a patent good by reason of the provisions of the Railroad Act of 1850.

All concur. Judgment accordingly.


author: Per Curiam.

text:
    Charles Rosenberg, App’lt, v. Jonas Salomon et al., Impleaded, etc., Resp’ts.

      (Court of Appeals,

      Filed December 4, 1894.)

    1. Parties—Replevin
    So much of § 453 of the Code, as is a literal re-enactment of § 133 of the former Code, applies only to equitable actions.
    3. Same.
    The added provision of said § 453 is not so limited.

      3. Same.
    But it operates only where persons not sued make the application in their own behalf.
    4. Same.
    In replevin against a sheriff by a person claiming title to property levied upon, the court has power to grant an order, upon his application, allowing him to come in and defend.
    Appeal from order of the general term of the city court of Brooklyn, which affirmed an order of special term which granted a motion of Emanuel Wolf and Jonas Salomon to be made parties defendant in this action.

      A. B. Berriclc, for app’lt; Ira Leo Bamberger, for resp’ts.
   Per Curiam.

We agree with the general term in its affirmance of the order granting the application of Solomon & Wolf to intervene as parties defendant; although we put our concurrence not upon the ground of an inherent power in the court, but upon the express permission of § 452 of the Code. So much of that section as is a literal re-enactment of the old § 122 applies only to equitable actions. We so held in Chapman v. Forbes, 123 N. Y. 532; 34 St. Rep. 351, but did not extend that construction to the new and added provision of § 452, which in terms permits persons not made defendants on their own application to come in and defend when they have an interest in the subject of the action the title to which may be affected by the judgment. On the contrary, we cited the case of People v. Albany & Vermont R. R. Co., 77 N. Y. 232, which was a legal action in the nature of a quo warranta to forfeit a corporate charter, and which did not hesitate to apply the new provision of § 452. We met that by showing that it operated only where persons not sued made the application in their own behalf, and not to a motion to compel the plaintiff to bring in other parties, which was the question then at issue. Here the plaintiff has brought replevin against the sheriff. The latter took the property by virtue of an execution against Salomon & Wolf, and can defend only upon their title. The plaintiff claims that the levy was upon his property and must show title as against that of the judgment debtors. They have an interest in the subject of the action, first, to have their property go in discharge of their own debt, and next to save and retain any possible surplus beyond, and it is their title which is involved.

We think, therefore, that the power to make this order was given by the Code, and it should be affirmed, with costs.

All concur. Order affirmed.


text:
    Warner E. Sprague, App’lt, v. William B. Cochran, Resp't.

      (Court of Appeals,

      Filed December 4, 1894.)

    1. Appeal—Court op Appeals—Discretion.
    An order of the general term., where the application is addressed to the discretion of the court below, is not reviewable in the court of appeals.

      2. Mortgage—Equitable.
    Where one party advances money to another upon the faith of a verbal agreement by the latter to secure its payment by a mortgage upon certain lands, which is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purposes of its execution, equity will impress upon such land a lien in favor of the creditor for the security and satisfaction of his debt.
    3. Same.
    Such lien attaches upon the payment of the money and, in the absence of an express or implied waiver," remains and is enforceable so long as the debt itself may be enforced.
    4. Same—Waiver.
    Ho waiver can be implied from the act of the creditor in receiving'a mortgage which, by reason cf fraud, inadvertance or mistake, is not effectual to secure a specific lien on the lands or any part of them.

      5. Same—Merger.
    Such lien is not merged in any such instrument, subsequently executed.
    6. Same—Statute of frauds.
    Such transaction or agreement need not be in writing, in order to take it out of the operation of the statute of frauds.
    *7. Same—Specific performance.
    An action to compel the specific performance of the verbal agreement to give a mortgage, or to reform a d fective one, is not necessary, where no claim of an innocent third party intervenes.
    APPEAL from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which modified, and affirmed as modified, a judgment in favor of plaintiff entered upon the report of a referee.

      T. F. Bush, for app’lt; George H. Carpenter, for resp’t.

       Reversing 53 St. Rep. 617.

   O’Brien, J.

Before reaching the real question in this case it is necessary to clear away some complications resulting from the practice adopted. The action was begun in September, 1887, to foreclose a mortgage. The complaint alleged that on the 9th of February, 1876, the defendant delivered his personal bond to one Antoinette Appley to secure the payment of $3,000 on the first of June, 1881, with annual interest, and as collateral to this bond, a mortgage upon certain lands described which was duly recorded; that this bond and mortgage had been assigned to the plaintiff, and that neither the principal nor the interest, or any part thereof, had ever been paid, hnd the usual judgment on foreclosure actions was demanded.

The answer, in substance, was that at the time of the loan and the delivery of the bond and mortgage the defendant and the mortgagee, Mrs. Appley, were partners in business, she having succeeded her husband, who had been a member of the firm for several years prior to his death in 1875 ; that the money advanced by her was for the purpose of paying debts of the firm of which she was a member, and of the old firm of which her husband had been a member, and which in some form were a charge upon the property which she took under his will; that upon an 'accounting, concerning the partnership affairs, between her and the defendant, there was due to the firm and to the defendant more than sufficient to pay and satisfy the mortgage, and that the assignment to the plaintiff was without consideration and subject to this equity.

In July, 1887, the defendant brought an action against Mrs. Appley, the mortgagee, and others, to which the plaintiff was subsequently made a party, to settle the partnership affairs, including the bond and mortgage in question. The complaint set forth various complicated transactions, not necessary to specify, and among them the execution and delivery of the bond and mortgage for the purpose substantially as alleged in the answer in this case, and asked that it be adjudged to be a partnership debt. Subsequently this action was consolidated' with the partnership action and referred for trial. The referee took proofs at length, very little of which appear in the record, and made and filed his report in which he held that the plaintiff was entitled to foreclose the mortgage, and made numerous findings of fact and law concerning the rights of the parties in the partnership action. It will not be necessary to refer to these findings éxcept so far as they relate to the mortgage in question, and as to these facts there was no dispute. It appears that the husband of the mortgagee and the defendant’s former partner had effected an insurance upon his life for $3,000, payable to his wife at death, and that upon his death, in 1875, or soon after, that sum was paid to her upon the policy; that the defendant requested her to loan it to him,, offering to secure the payment with interest by a mortgage on all his interests in real estate; that she consented to make the loan on this security and paid over the money to him; that he gave the bond referred to and procured a mortgage which both parties supposed covered the land intended to be included therein, but by mistake of the scrivener who drew the paper a portion of the land of considerable value, constituting a substantial part of the security upon the faith of which the mortgagor advanced the money, was "omitted from the description of the property conveyed. The mistake was not discovered until after the commencement of both the actions in question. The referee, in his report, directed thaf the description of the lands contained in the mortgage be amended so as to include the omitted parcel, which was a lot containing about seventy acres in lot number 27 of “ great lot No. 4 of the Hardenburgh patent.” The complaint in the action for the partnership accounting, as I understand it, alleged in substance that this land was embraced in the mortgage. After the report of the referee the plaintiff applied to the special term for leave to amend the complaint in the foreclosure suit by inserting an allegation .that this land was intended by both parties to be mortgaged as ' security for the debt, and both supposed it had been, but by mutual mistake had been omitted from .the description, and asking relief to the effect that the instrument be reformed by amending the description of the property in the mortgage, so as to cover it, and enforced accordingly. This motion was granted upon terms and upon the condition that the defendant should be allowed to amend his answer by interposing the statute of limitations as a defense. The pleadings were amended accordingly, the defendant alleging that more than ten years had elapsed since the cause of action had accrued up to the time of the commencement of the-foreclosure suit. Judgment was then entered upon the report, and the defendant in this action, who was plaintiff in the other-action, appealed to the general term from the order' allowing the amendment, and also from that portion of the judgment which decreed a reformation of the mortgage, and that court reversed the judgment, so far as appealed from, qn the ground that the statute of limitations was a defense, and also reversed the order allowing the pleadings to be amended, upon what ground or for what reason does not appear.

The order is not reviewable here since the application to amend was addressed to the discretion of the court below, and it would seem to be clear that when it was reversed the amendment to the pleadings which it authorized fell with it. This would leave the parties in the same position as they were in before any amendment was made. The testimony was all taken in the defendant's action to settle and close up the partnership affairs, and all the facts in relation to the mortgage came out without any objection, and then the parties entered into a stipulation before the referee that he should decide both cases in one report, upon the evidence thus taken, and there is but one report and one judgment, and that in the accounting case. The broad allegations of the complaint in the accounting case, which drew into that action every question concerning the mortgage, supplemented by the stipulation, left the pleadings in the foreclosure case without any important function to perform in the litigation. The pleadings in' the two actions, and the stipulation, when read together, furnished a sufficient basis for the referee to find all the facts, and to draw from them such legal conclusions as were necessary in order to adjust the rights of the parties. When both actions were submitted to the referee it was evi-1 dently the intention that he should decide every question arising upon the evidence, so far as it became necessary to a complete adjustment of all the rights of the parties, without regard to any nice questions of pleading or procedure. The questions concerning the plaintiff's right to have the mortgage reformed were attached to the case subsequently, but have again disappeared by the reversal of the order which introduced that element into the controversy. Even if that feature of the case still remained, the statute of limitations would probably be a sufficient answer to it. Code, § 388; Bruce v. Tilson, 25 N. Y. 194; Peters v. Delaplaine, 49 id. 365. So that the only question now is, whether, upon the findings, the mortgage must be considered in equity as covering the omitted parcel which both parties intended should be included and which they supposed all the time had been embraced in the description of the lands pledged as security for the debt. In other words, whether, as to that parcel, there was not in fact an equitable mortgage which the plaintiff could foreclose for the satisfaction of .his debt in the same action and by the same procedure that the other property was sought.to be applied.

There can be no doubt upon the authorities that where one party advances money to another upon the faith of a verbal agreement by the latter to secure its payment by a mortgage upon certain lands, but which is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purpose of its execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. This lien attaches upon the payment of the money and, unless there is a waiver of it, express or implied, remains and may be enforced so long as the debt itself may be enforced, and no waiver can be implied from the act of the creditor in receiving a mortgage which, by reason of fraud, inadvertance or mistake, is not effectual to secure a specific lien on the lands or any part of them, nor is this lien merged in any such instrument subsequently executed. De Peyster v. Hasbrouck, 11 N. Y. 582; Payne v. Wilson, 74 id. 348; Coman v. Lakey, 80 id. 345; Husted v. Ingraham, 75 id. 251; Perry v. Board of Missions, 102 id. 99; Chase v. Peck, 21 id. 581; Haverly v. Becker, 4 id. 169; Glacken v. Brown, 39 Hun, 294; Lansing v. Tompkins, 45 Barb. 308; Matter of Howe, 1 Paige, 125; Smith v. Smith, 125 N. Y. 224; 34 St. Rep. 857; Hoag v. Town of Greenwich, 133 N. Y. 152; 44 St Rep. 519.

Some of these cases hold that the lien of the party who has advanced money under such circumstances is analogous to that of the vendor of real estate for the unpaid purchase money. The vendor’s lien rests solely upon the doctrine of equity that it would be inequitable for the vendee who has received the legal title without payment of the purchase money to hold the estate discharged from the claim of the seller for its price, and it is certainly difficult to see any just distinction between the two cases. In one case a party receives the title to real property without paying for it, with or without an agreement- that his vendor shall be secured in the payment of the purchase price by a lien upon it by way of mortgage or otherwise. In the other case the party advances money under an agreement that its payment shall be secured by mortgage upon specific real estate, but which agreement has never been perfected. The right of the vendor and that of the person who has advanced the money are not essentially different, and each would seem to commend itself with equal force to the conscience of a court of equity. The doctrine of equitable mortgages is not limited to written instruments intended as mortgages, but which by reason of formal defects cannot have such operation without the aid of the court, but also to a very great variety of transactions to which equity attaches that character. It is not necessary that such transactions or agreements as to lands should be in writing in order to take them out of the operation of the Statute of Frauds for two reasons, first, because they,, are completely executed by at least one of the parties and are no longer executory, and, secondly, because the statute by its own terms does not affect the power which courts of equity have always exercised to compel specific performance of such agreements. 2 R. S. 134, § 10; Smith v. Smith, supra; Beardsley v. Duntley, 69 N. Y. 577.

Assuming, as I think we must, that an equitable lien attached to all the lands intended to be embraced in the mortgage in this case, at the moment of the payment of the money, in favor of Mrs. Appley, what has since occurred to change the situation or to disturb the lien ? It has not been discharged by payment. It has not, as we have seen, been waived nor merged, and, therefore, must have existed at the time of the commencement of this action. If this is so, then an action to compel the specific performance of the verbal agreement to give a mortgage, or to reform the defective one given, was not necessary, since the plaintiff could proceed to foreclose the existing lien by an application of the property, under the judgment of the court, to the satisfaction of the debt.

It is, no doubt, true that such actions are necessary in most cases, for the reason that a mere lien in equity is a somewhat precarious security to the creditor, liable to be defeated at any time by the intervention of the claims of innocent third parties, who may have dealt with the owner and the land upon the faith of his record title, and in ignorance of the equitable lien. In order to preserve and protect the lien against the rights of such parties, it is necessary, generally, to make it a matter of record, and that cannot be done except by means of a proper action for that purpose. But in this case, as presented, no such question arises. The controversy is between the original parties, who have rested during a long series of years upon the situation as it existed when the money was advanced and the mortgage given, until the loan has more than doubled by the accumulation of unpaid interest, both' supposing that the parcel in question had been pledged with the rest for its payment. The case is, therefore, as it seems to us, a peculiarly proper one for the application of the equitable doctrine referred to, and we think that the result of the trial before the referee was correct upon principle and authority.

The whole doctrine of equitable mortgages is founded upon that cardinal maxim of equity which regards that as done which has been agreed to be done, and ought to have been done. In order to apply this maxim according to its true meaning the court will treat the subject-matter, as to collateral consequences and incidents, in the same matter as if the final acts contemplated by the parties had been executed exactly as they ought to have been, and not as the parties might have executed them, always regarding the substance and not the form of the transaction. Story’s Eq. Juris. § 64g, § 156.

It follows that the judgment of the general term should be reversed, and that entered upon the report of the referee affirmed, with costs in all courts, and the appeal from the order involving the right to amend the pleadings should be dismissed.

All concur.

J udgment accordingly.


author: Earl, J.

text:
    John Turton, Resp’t, v. New York Recorder Company, App’lt.

      (Court of Appeals,

      Filed December 11, 1894.)

    1. Libel—Innuendo.
    An article in a newspaper headed “Savannah, Ga.,” and stating that plaintiff “has left the city with §8,500 of the Southern Bank’s money," and that he “ left Savannah on Sunday night, and it is supposed went to New York,” is libelous perse, aud an innuendo, explaining its meaning and application, is not necessary.
    2. Same.
    An allegation in the complaint that, by reason of the publication, plaintiff has been “ held up to the public, his business acquaintances and friends as a thief and a dishonest and untrustworthy man,” is a sufficient innuendo, if one is necessary.
    3. Same—Charge.
    Where the defendant was in such haste to publish the article that it made no inquiry whatever of any one as to the truth of the charges made therein, its publication is properly characterized by the trial judge as made “ wantonly, recklessly and with an utter disregard as to whether it was true or false.”
    4 Same—Offer of retraction.
    An offer made by defendant’s attorney to plaintiff’s attorney, seventeen days after the commencement of the action, to publish in said newspaper any retraction of the article which the latter would write, and the refusal of such offer, cannot be considered in mitigation of damages.
    5. Same.
    The mere offer to publish a retraction, without doing so, is of no benefit or advantage to defendant.
    Appeal from judgment of ,the general term of the court of common pleas for the city and county of New York, entered upon an order, which modified, and affirmed as modified, a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.
    In September, 1891, and for some years prior thereto, the plaintiff was a member of the firm of John Turton’s Sons, doing business in -the city of New York as exporters and dealers in rosin and turpentine. The plaintiff passed a part of each year in Savannah, Ga., looking after the interests of his firm there. In the afternoon of September 14th, 1891, he, being then in Savannah, was informed by telegram that his firm was in financial difficulty, and was requested to come to New York immediately. He left that night and was at his firm’s office in the city of New York on the 16th, 17th and 18th days of September. On September 17th the defendant published in the city of New York in the newspaper called the Recorder the following article:
    “Savannah, Ga., Sept. 16.—John Turton, a well-known naval stores operator, has left the city with $8,500 of the Southern Bank’s money. Turton drew on his New York firm on Monday through the Southern Bank and the draft was not honored. Yesterday the New York house failed. . Mr. Turton left Savannah on Sunday night, and it is supposed went to New York. He has been here for several years.”

      On September 18th the plaintiff’s firm failed and made an assignment for the benefit of its creditors.
    The plaintiff, claiming that the article published was libelous, on the 30th day of September commenced this action to recover damages for the libel. The answer of the defendant, after some denials, alleged that “the general commercial and personal reputation of the plaintiff was such that he was not injured by such publication,” and further alleged in mitigation of damages that the article was published without malice and with the belief that the same was true in all respects; that it was received by the defendant in the form of a dispatch from a regular news agent in Savannah; that at the time the dispatch was received and published it had no acquaintance with or knowledge of the plaintiff or his firm, and had no feeling of malice or ill-will toward him or any member of his firm; that the article was published as an item of public news, without malice, believing the same to be true.

      William H. Slayton, for app’lt; Lawrence E. Embree, for resp’t.

      Affirming, 52 St. Rep. 398.

   Earl, J.

It was claimed upon the argument before us that the alleged libelous article was of doubtful meaning and not necessarily libelous per se, and that, therefore, there should have been an innuendo in the complaint alleging its meaning and application. If an innuendo was necessary we find it in substance in the complaint, in which it is alleged that by reason of the publication the plaintiff has been “ held up to the public, his business acquaintances and friends as a thief and a dishonest and untrustworthy man." But we do not think the article is ambiguous. It is to be construed as it would ordinarily be understood by people generally, and we think no person of ordinary ability and intelligence could fail to understand it to charge the plaintiff with dishonestly and wrongfully, if not feloniously, obtaining $8,500 of the Southern Bank’s money, and going in the night with it out of the state to the city of New York. We think the trial judge did not err in holding that the article was libelous per se and refusing to submit its meaning and application to the jury.

At the commencement of the trial, the defendant requested permission to amend its answer so as to set up a justification of the charge contained in the alleged libelous article. The plaintiff’s attorney making no objection to such amendment, it was then stipulated that the answer might be deemed amended so as to set up a justification of the charge.

Upon the trial, there was no evidence whatever impugning the good reputation of the plaintiff, but, on the contrary, his character and reputation were shown to be good. No proof whatever was given or offered upon the trial to sustain the plea of justification. On the contrary, it was proved by uncontradicted evidence that the plaintiff, at the time he left Savannah, did not have a dollar of the money of the Southern Bank, and that he never had had, and that he had never in any way wronged that bank. There was, therefore, nothing for submission to the jury butthe question of damages, and all the objections made to evidence during the progress of the trial became wholly immaterial.

It is said that the trial judge, in his charge to the jury, gave an incorrect definition to the word libel. , That is wholly unimportant, as the article was, as matter of law, libelous. We think, however, that the criticism of the counsel for the defendant upon the charge in that respect is hypercritical, and that the learned trial judge defined libel with substantial accuracy.

The court did not transcend the bounds of a proper, judicial •discretion in saying to the jury that the article was published “ wantonly, recklessly and with an utter disregard as to whether it was true or false.” The article came to the defendant, and it was in such haste to publish it that it made no inquiry whatever of the plaintiff .or his firm, or of any one else, as to the truth of the charges made therein, and so its publication was properly characterized by the trial judge.

Upon the trial, plaintiff’s attorney admitted that on October 17th, seventeen days after the commencement of the action, defendant’s attorney wrote him a note offering to publish in the Recorder any retraction of the article that plaintiff’s attorney would write, which offer was declined bj' the attorney, and the ■court charged the jury that this fact, thus admitted, could not be considered in mitigation of damages. The claim is now made on the part of the defendant that in this regard the trial judge committed error. The defendant did not publish any apology or retraction. It simply made an offer to the plaintiff’s attorney to publish any retraction that he would write. The writing of such a retraction would not have been- within the line of the duty of plaintiff’s attorney as attorney in the action. If the defendant had procured him to write the retraction he would have acted as its agent, and not as the agent of the plaintiff. The plaintiff would in no way have been responsible for anything that was written by the attorney in response to the offer, and can in no way be affected by the refusal of the attorney to write. The offer and refusal was a transaction between the defendant and the plaintiff’s attorney which did not legally concern the plaintiff. But even if the defendant could have had the benefit of a retraction published after the commencement of the action, the mere offer to publish it gave it no benefit or advantage. It should have published the retraction in good faith promptly upon the commencement of the action, and then it would have been in a position to claim whatever benefit could legally flow from such publication. We are not prepared to say that a retraction published in good faith after the commencement of an action for libel can under no circumstances be proved in mitigation of damages. Where the suit was commenced as this was, without any request for the retraction of the libelous charge, if the defendant promptly after the suit was commenced published a fair and full retraction, we see no reason to doubt that such publication could be proved and submitted to the jury to be considered by them upon the question of exemplary damages. Under such circumstances a retraction after suit brought may be as valuable and effective as one published before, and there is the same reason for the submission to the jury of the one as the other.

It is the prevailing doctrine that the reiteration of a libel or slander after suit brought may be proved on the question of malice and damages, probably with this qualification, however, that the cause of action for the reiteration has been barred by the statute of limitations, or that the language subsequently reiterated is for some other reason not actionable. The authorities upon this point are not harmonious. Townshend on Slander and Libel (4th ed.), 653, et seq.; Stuart v. Lowell, 2 Stark. 98; Thomas v. Croswell, 7 Johns. 264; Inman v. Foster, 8 Wend. 602; Keenholts v. Becker, 3 Den. 346; Root v. Lowndes, 6 Hill, 518; Johnson v. Brown, 57 Barb. 118; Thorn v. Knapp, 42 N. Y. 474; Titus v. Sumner, 44 id. 266; Bassell v. Elmore, 48 id. 561; Frazier v. McCloskey, 60 id. 337; Daly v. Byrne, 77 id. 182; Cruikshank v. Gordon, 118 id. 178; 28 St. Rep. 784. No case holds that a repetition of a libel or slander after suit brought is in its nature not competent evidence on the question of malice and damage, and whenever it has been excluded as evidence it has always been upon the ground that it was an independent cause of action, and thus, if such evidence were received, that there would be danger of a double recovery. In The Evening News v. Lyons, 42 Mich. 549, it was held that a retraction of a libelous article published after suit is begun for the libel cannot be considered in mitigation of damages. That case does not appear to have been much considered, and there the retraction seems to have been published long after the suit was begun. If the plaintiff can give in evidence language published or uttered subsequently to the commencement of the action for the purpose of aggravating damages, it seems quite reasonable that the defendant ought to be permitted to give in evidence a fair and honest retraction of the charges promptly made, subsequently to the commencement of the action in mitigation of damages.

But, for reasons stated, the trial judge was right in holding that the mere offer to publish such a retraction as plaintiff’s attorney would write was incompetent for any purpose. The defendant’s offer to publish a retraction and to make what reparation to the plaintiff it could, seems not to have been very sincere. It alleged in its answer, in substance, that the plaintiff’s reputation was so bad that he could not be injured by the publication, and yet did not give a particle of evidence to sustain the averment. Even upon the trial, after it knew all the facts and that the charge contained in the article published by it was utterly without foundation, it amended its answer by setting up a justification of the charge, and then made no attempt whatever to prove the justification.

We find no error in the record, and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    London and Lancashire Fire Insurance Company, Resp’t, v. The Rome, Watertown and Ogdensburg Railroad Company, App’lt.

      (Court of Appeals,

      Filed December 18, 1894.)

    1. Carriers—When liability begins.
    The liability of a common carrier for- goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception, when they are in a fit and proper condition and ready for immediate transportation.
    2. Same.
    This rule applies, though the carrier may not be able promptly to transport it, and there may be long storage of the property until cars can be furnished.
    3. Same.
    This is true though, by agreement of the parties, it is the duty of the shipper to load it on the cars when furnished.
    4. Same.
    But, in such case, the carrier is not liable, where the delay in the shipment is caused by some fault of the shipper.
    Appeal from judgment of the general term of the supreme court in t'he fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict.

      D. G. Griffin, for app’lt; A. E. Sawyer, for resp’t.

      Affirming, 52 St. Rep. 581.

   Earl, J.

This action is brought to recover damages against the defendant for the destruction by fire of a large quantity of hay, alleged to have been delivered to it as a common carrier for ’ transportation.

It is admitted that if, at the time of the destruction of the hay, it was in the possession of the defendant as a common carrier, it. is liable in this action; and the sole question for our determination is whether the hay had been so delivered to the defendant and placed in its custody as to make it liable as a common carrier. The.plaintiff sues as assignee of the shippers and stands in their place.

The hay, at the "time of its destruction, was in the defendant’s freight house at Cape Vincent, and had been placed there by the plaintiff’s assignors with the consent and under the direction of the defendant’s freight agent at that place. It was delivered in-bales, and it was the usage and the regulation of the defendant, known and assented to by the shippers, that they were to load it into the defendant’s cars. The claim of the defendant is that its responsibility as a common carrier had not attached to it at the time of the fire, for the sole reason that the duty of loading the hay into its cars rested upon the shippers, and that its duty as a common carrier could not attach Until the hay was thus loaded.

There is no doubt that it is the duty, generally, of a railroad company to load the freight delivered to it for transportation into its cars, and that it cannot generally devolve this duty by any regulation upon the shipper; and that it cannot legally, as a condition of transportation generally, exact from the shipper a contract to place the freight into its cars. But we know from our own observation that as to hay, lumber, saw-logs, live animals and other bulky freight, the shipper usually loads the freight into the cars. We need not, however, now decide whether a railroad company can, as to such bulky freight, make a regulation that the shipper shall load it, because here the shippers acquiesced in the regulation and undertook the duty of loading. But we do not think that the fact that the shipper undertakes to load the freight into the cars necessarily postpones the time when the railroad company takes on the character of a common carrier. The rule as to the responsibility of the carrier is laid down in varying phraseology in a variety of cases, as follows: To render a common carrier liable for goods to be carried by him, the fact that the goods were actually delivered to him, or to some person authorized to act in his behalf, must be established. His liability attaches only from the time he accepts the goods to be carried. To complete the delivery of goods to the carrier it is essential that the property be placed in a position to be cared for, and under the control of the carrier or his agent, with his knowledge and consent. The liability of a railroad company as common carrier of goods delivered to it attaches only when the duty of immediate transportation arises. So long as the shipment is delayed for further orders as to destination of the goods, or for the" convenience of the owners, the liability of the company is that of warehouse-men. The liability of a common carrier for goods received by him begins as soon as they are delivered to him, his agents or servants, at the place appointed or provided for their reception when they are in a fit and proper condition and ready for immediate transportation. If a common carrier receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage and for the purpose of facilitating it, his liability as a carrier will commence with the receipt of the goods. But, on the contrary, if the goods when so deposited are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done or some further direction is given or communication made concerning them by the owner, or consignor, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver until some change takes place will be responsible only as a warehouseman. The party bringing the goods must first do whatever is essential to enable the carrier to commence, or to make needful preparations for commencing the service required of him, before he can be made liable or subjected to responsibility in that capacity. Where goods are delivered to a common carrier to await further orders from the shipper before shipment, the former, while they arc in his custody, is only liable as warehouseman, and his only responsibility as carrier is where goods are delivered to and accepted by him in the usual course of business for immediate transportation. The duties and the obligations of the common carrier with respect to the goods commence with their delivery to him, and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation between the carrier and the owner of the goods. It must rest entirely upon the one or the other, and until it has become imposed upon the carrier by a delivery and acceptance, he cannot be held responsible for them. The entire weight of the responsibility rigorously imposed by law upon a common carrier fall upon him contemporaneously (eo instanti) with a complete delivery of the goods to be forwarded, if accepted, with or without a special agreement as to reward, for the obligation to carry safely on delivery carries with it a promise to keep safely before the goods are put in itinere. Judson v. Western R. R. Co., 4 Allen, 520; Baron v. Eldridge, 100 Mass. 455; Grosvenor v. N. Y. C. R. R. Co., 39 N. Y. 34; O'Neill v. N. Y. C. R. R. Co., 60 id. 138; Redfield on Carriers, 80; Angell on Carriers, § 129. In Wilson v. Atlanta & Charlotte R. R. Co., 82 Ga. 386, a case somewhat relied on by defendant’s counsel, a quantity of wood was piled along the line of the defendant’s railroad for the purpose of having it transported thereon, and the shipper was to place the wood in the defendant’s cars. There the action was brought to recover damages on account of unreasonable delay in transporting some of the wood, and, also, for the loss of some portion thereof. The plaintiff failed to recover on the ground that upon all the facts in that case the wood had not been delivered to and accepted by the railroad company for immediate shipment; and no principle was laid down in that case which can be invoked for the -protection of the defendant in this. Here the hay was delivered to the defendant for immediate shipment, and it was accepted by it and placed :in its freight house. It was not stored for the accommodation and convenience of the shippers. They were there ready, willing and anxious to put the hay into the cars as fast as the defendant would furnish them. There was no delay whatever by the request of the shipper or on account of any act or omission on their part. Whatever delay there was in the shipment was due exclusively to the omission of the defendant to promptly furnish cars for the transportation. Although a railroad company may not be able promptly to transport freight delivered to it, and there may be considerable delay and even long storage of the freight until cars can be furnished,' nevertheless it takes on the character of a common carrier the moment the property is delivered and received by it for immediate transportation. It can make no difference whether the railroad company was to place this hay in its cars or whether the shippers were to do that work. Whoever was to load the hay into the cars, it was delivered and received for immediate shipment, not for storage, not to be kept for the shippers, and not subject to their control, and it was not in their custody. It was simply left in the freight house of the railroad company until it could furnish cars for its transportation. It was there for immediate shipment, with nothing more to be done than to place it in the cars, and whether that work was to be done by the railroad company or by the shippers can make no difference in reason or principle. If, however, in such a case the delay in the shipment is caused by some fault of the shippers, if they are not ready to place the freight in the cars when they are furnished, and thus shipment is delayed until the property, without the fault of the carrier, is destroyed, the loss would then fall upoh the shippers, because it was due to their default.

In this case, at the time of the fire, the property was stored for the convenience of the carrier and not for the convenience of the shippers, and its destruction was due to its default, and in no way to any default on their part.

We, therefore, see no reason to douht that this recovery was right, and that the judgment should be affirmed, with costs.

All concur (Peckham and Bartlett, JJ., in result), except O’Brien, J., taking no part.

Judgment affirmed.