Paige v. Schenectady Ry. Co. — 82 N.Y.S. 192

Majority

p. 192

PAIGE v. SCHENECTADY RY. CO. LANSING v. SAME. VAN EPPS v. SAME. BEATTIE v. SAME. THOMPSON v. SAME. WHITMYRE v. SAME.

(Supreme Court, Appellate Division, Third Department.

May 6, 1903.)

Headnote

1. Streets—Title of Abutting Owners.

Where a patent to certain land abutting a street was granted by a Dutch governor of New York, and thereafter patents to the same land were granted by English governors in confirmation of the previous grant, conveying the lands by the same description, such subsequent grants operated to transfer the title to the center of the street, though the street was laid out during a time when it was subject to the Dutch law, by which the fee of the streets was in the sovereign.

Kellogg, L, dissenting.

Appeal from Special Term, Schenectady County.

p. 193

Actions by Janet Franchot Paige, Caroline Paige Lansing, Belle Van Epps, Isabella Beattie, Louise A. Thompson, and Charles L. Whitmyre against the Schenectady Railway Company to restrain defendant from laying its tracks over a certain avenue of which plaintiffs claimed to be the owners in fee. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

Argued before PARKER, P. J., and SMITH, KELLOGG, CHASE, and CHESTER, JJ.

Hun & Parker (Marcus T. Hun, Learned Hand, James A. Van Voast, and Judson A. Landon, of counsel), for appellant.

Edward Winslow Paige, for respondents.

Every question now presented was before this court on the former appeals from the orders refusing an injunction. 77 N. Y. Supp. 889 ; 79 N. Y. Supp. 266 . We have carefully examined the evidence produced on the trials, and, while it is somewhat changed from that before this court on the former appeals, we are of the opinion that the changes do not affect the result as then expressed. Even assuming that Washington avenue was laid out prior to August 27, 1664, and that under the Dutch law the fee of the streets was in the sovereign, and also that some of the plaintiffs can trace their title back to a patent granted by a Dutch governor, we are of the opinion that the patents subsequently granted by English governors in confirmation of said grants, and conveying the lands by the same description, resulted in transferring to the grantors the title to the center of the street.

Judgment affirmed, with costs.

KELLOGG, J., dissents.