Long Island Railroad v. Fairchild

Headnote

Long Island Ii. li. Co. v. Fair child, 152 App. Biv. 723, affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 4, 1912, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in a proceeding to condemn land for railroad purposes.

The following questions were certified:

“1. Was the plaintiff at the time of the commencement of these proceedings bound by the provisions of the deed recited in the petition herein between the habendum clause thereof and the succeeding covenant by the grantors against incumbrances ?

“ 2. Were these appellants entitled to enforce these provisions ?

“ 3. Do these provisions create interests in parcel number 2 which may be acquired by the plaintiff in this proceeding ?

“4. Will those provisions be extinguished by such acquisition ?

“ 5. Does the deed of 1864 set forth in the petition by the legal construction of its language purport to provide such a condition against the subsequent appropriation to

public use which is contemplated in this proceeding as that, upon breach of such condition, the grantors or their heirs might re-enter ?

“ 6. Would such a condition be valid ?

“7. If the heirs of the grantors can enforce this condition because of the present appropriation, can the devisees of the grantors also have compensation because of such appropriation ?

. “ 8. Is the measure of compensation to which these appellants are entitled correctly stated by the court at Special Term in the seventh conclusion of law ? ”