Halleran v. Bell Tel. Co. — 71 N.Y.S. 685

Majority

p. 685

(64 App. Div. 41.)

HALLERAN v. BELL TEL. CO. OF BUFFALO.

(Supreme Court, Appellate Division, Fourth Department.

July 23, 1901.)

Headnote

1. Highways—Abutting Owners—Adverse Possession.

Where plaintiff’s deed conveyed up to a highway, and not to the center thereof, and he had never regularly cultivated the side of the road, he could not claim title therein by adverse possession, since Code Civ. Proc. § 372, provides that possession is held adversely only when the land is protected by a substantial inclosure, or is usually cultivated.

p. 686

2. Same—Rights in Highways—Telephone Poles.

When the owner of land adjoining a highway does not own any interest in the highway, and his rights as an abutting owner are not interfered with by the erection of telephone poles along the highway, he cannot maintain an action for their removal.

Appeal from special term, Genesee county.

Proceedings by Maurice J. Halleran against the Bell Telephone Company of Buffalo. From a judgment dismissing the complaint, the plaintiff appeals. Affirmed.

Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and RUMSEY, JJ.

Arthur E. Clark, for appellant.

John G. Milburn, for respondent.

This action was originally begun by Maurice Halleran, the plaintiff’s ancestor, who was the owner of certain lands situate on a public highway in the county of Genesee, to compel the removal of certain telephone poles erected by the defendant in front of his lands. It is conceded that the plaintiff has no record title to the land to the center of the highway, but that the property to which he has title extends only to the side of the road. The highway is 100 feet wide, and was laid out many years ago. The title to it, so far as appears, is in the Holland Land Company, which conveyed by deed to the defendant the right to erect its poles along the highway. It is found by the learned court below that the poles erected in front of the plaintiff’s land have not caused any substantial damage to any easement of light, air, and access which the owner of the land has in the highway. The learned court below dismissed the complaint. From the judgment entered upon his decision, this appeal is taken.

We have examined this case with considerable care, not because, in our judgment, there is any difficulty in deciding the questions presented, but because we were advised by the counsel for the appellant that many other cases involving the same questions are pending in the courts, and we desire to settle, so far as this court may do so, the rules which are applicable to these cases.

The plaintiff, although admitting that he has no record title to the highway in front of his premises, insists that he has acquired title thereto by adverse possession. It appears that the plaintiff and his predecessors in title have from time to time, as required by statute, cut down the weeds growing in the highway in front of his premises; that once in seven or eight years he has cultivated the land extending from the sides of the road out to the beaten track, sowed crops, and seeded it, and has taken off the crops from time to time, and cut the grass there growing. He has not in any way inclosed it, nor has his occupation of it been exclusive, or interfered with the rights of passage of any one desirous of traveling upon the highway clear up to his fence. Without, therefore, considering whether, under any circumstances, one can obtain an adverse title to a highway in front of his land, we think no adverse title has been ’acquired in this case; because, as the plaintiff admits that

p. 687

there was no written instrument conveying title, he could not haive - obtained title by adverse possession unless he had inclosed the lan&L, or customarily cultivated it (Code Civ. Proc. §§ 371, 372), and sucA cultivation must be notorious, hostile, and exclusive, and, unless the adverse possession has those qualities, it is never effectual as the foundation of a claim of adverse title.

The case must therefore be disposed of in view of the fact txx: the plaintiff has no title whatever to the highway, and he has m@. other or different right to it than has any one of the public, except, so far as being an abutting owner, it is necessary for Mj® to use the highway as a means of access to his premises. An encroachment, which does not interfere with the right of passage over: a highway, gives no right to a citizen, who is not to some ext ox:: inconvenienced by it, to interfere with it. It certainly gives Mee. no right to require its removal. If it constitutes a nuisance, an<S interferes with the general right of the public, the public alose can compel its removal; but no private individual can interfesi? with it, except so far as it constitutes as to him a private nuisanee. The finding is that the telephone poles do not interfere in any ¿feo gree with any right which the plaintiff has as an abutting owner. When that fact was made to appear, we are utterly unable to conceive of any reason why the plaintiff should be entitled to maintain this action. If the plaintiff were the owner of the land to tfe center of the highway, he would have his right of action either fox damages caused by the erection of the poles and the cutting of Ms trees, or perhaps would be entitled to an injunction to compeí tire removal of the poles. Eels v. Telegraph Co., 143 N. Y. 133 , 38 N. E. 202 , 25 L. R. A. 640 ; Dusenbury v. Telegraph Co., 11 Abb. PL. C. 440.

It is unnecessary to say whether, in view of the small amount sir damage suffered by the plaintiff, he could maintain an action A: compel the removal of the poles, or whether he would be remitteS to his action at law for damages or ejectment, but, if he were tse owner of the highway, he would have some right of action, 5b established by the cases just cited. But in the present case, except so far as the erection of the poles has interfered wfth the plaintiff’s right of access to his own land, he has not suffered aiay damage, and he cannot maintain an action to compel the removal! of the poles.

For these reasons, the judgment must be affirmed, with costs. All concur.

Cases cited

Eels v. American Telephone & Telegraph Co. 143 N. Y. 133 N.Y. 1894-10-09 p. 687