New York, Ontario & Western Railway Co. v. Crawford

Majority

p. 1134

NEW YORK, O. & W. RY. CO. v. CRAWFORD et al.

(Supreme Court, Appellate Division, Third Department.

November 16, 1910.)

Headnote

Appeal from Judgment on Report of Referee. Action by the New York, Ontario & Western Railway Company against Malcom S.' Crawford and others. Judgment for defendants, and plaintiff appeals. Reversed, and new trial granted.

Samuel H. Fancher (Charles L. Andrus, of counsel), for appellant. Arthur G. Patterson, for respondents James A. Crawford and others. J. I. Goodrich, for respondents M. S. and Blary Crawford.

The depot and the fence standing for many years on the east opposite it fairly locate the plaintiff’s right of way. The premises sought to be acquired are described as contiguous and adjacent to said railroad, and it is difficult to see how it can be determined that they are not contiguous and adjacent. This part of the description necessarily controls the location. A reasonable effort to acquire the property failed. The judgment is therefore reversed upon the law and the facts, the. referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concur.

SEWELL, J., not sitting.