Majority
p. 658(78 Misc. Rep. 1.) LEHIGH & H. R. RY. CO. v. VILLAGE OF WARWICK. (Supreme Court, Special Term, Orange County. October 17, 1912.)
Headnote
Injunction (§ 38*)—Preliminary Injunction—Railroad Station Grounds —Use by Village.Where plaintiff railroad company acquired certain land by deed requiring plaintiff to use it exclusively for railroad purposes, and since 1861 it had been used by plaintiff and its patrons in going to and from a station and freight buildings, such use by the public, together with the removal of a water trough and hydrant therefrom by the village, did not show a dedication of the land to public use, so as to deprive the railroad company of the right to a preliminary injunction restraining the village from further work on the land during the trial of the question of right on the.merits.
[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 86-90; Dec. Dig. § 38.*]
►For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Suit by the Lehigh & Hudson River Railway Company against the Village of Warwick. On motion for a preliminary injunction.
Granted.
Agar, Ely & Eulton, of New York City, for plaintiff.
Kane & Stage, of Warwick, for defendant.
I think the motion for an injunction pendente lite should be granted, and the defendant restrained from any further
p. 659
work upon the lands claimed to be owned by the plaintiff, until the trial and determination of the action upon the merits. The land in question was acquired by the plaintiff in 1861, by a deed which requires the plaintiff to use it exclusively for railroad purposes, and ever since it has been used by the plaintiff for general railroad purposes, and by the patrons of the plaintiff’s railway, in going to and from the station and freight buildings, and incidentally by the general public. But such use of the railroad station grounds, permitted by the owner of the fee, cannot be construed as a dedication and acceptance of such lands as a village highway. In other words, by allowing the public to use the land in question as an approach to its station, the plaintiff did not relinquish its title thereto. Such use is permissive only. N. Y. Central R. R. Co. v. Village of Ossining, 141 App. Div. 765 , 126 N. Y. Supp. 517 ; Concklin v. N. Y. Cent. & H. R. R. Co., 149 App. Div. 739 , 134 N. Y. Supp. 191 , and other cases.
It may be that, at the trial of this action, the defendant will prove facts showing a dedication to the public of the strip in question; but the facts presented on this motion, in respect to the removal of the water trough and hydrant, etc., are not sufficient, in my opinion, to establish an intention on plaintiff’s part to entirely surrender its land to the village for public use.
Motion granted.