Borden v. South Side Railroad

Headnote

Adverse possession — oceupcmcy by permission does not constitute.

Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term.

The Flushing Railroad Company, in 1853, commenced proceedings to acquire title to the land for the recovery of which this action is brought, but subsequently abandoned them and entered

into possession under an, agreement with Bliss and Sneden, the owners, to occupy them temporarily and then to remove their tracks to another location. In 1860 the land was conveyed by Bliss and Sneden to the plaintiff.

Nothing was done by the company in performance of the verbal agreement. In 1858 the road and its appurtenances were sold under foreclosure, and Abraham S. Hewett became the purchaser, and subsequently conveyed to the New York and Flushing Railroad Company. The defendant succeeds to this company and claims that the deed from Hewett to the New York and Flushing Railroad Company gave that company such a color and claim of title that the deed from Bliss and Sneden was void under our statute. The General Term held, that there were two answers to this : First, Bliss and Sneden permitted the Flushing Railroad to occupy and the railroad company accepted the occupancy by permission of them. {Luce v. Garley, 24 Wend., 451 .) In the second place, the deed from Hewett to the New York and-Flushing Railroad Company, and from the referee to him, were not intended to convey the lands in question.