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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 77 Whether we hold the instrument in question, to which the plaintiff affixed his seal and signature, to be a license, or an agreement for an easement, is not very material to the decision, in my opinion; for the reason that, in either *Page 80 holding, it was quite inadequate to confer a right to make use of the street for railroad operations to an unlimited extent. If it should be construed to be a license, which creates no title in the licensee and which, in law, is revocable by the licensor, the fact of performance by the licensee under its authority, in the expenditure of large sums of money in constructing its railroad plant, would move a court of equity to protect the latter's rights against revocation. (Wiseman v. Lucksinger, 84 N.Y. 31;Cronkhite v. Cronkhite, 94 ib. 323; Greenwood Lake Pt.J.R.R. Co. v. N.Y. G.L.R.R. Co., 134 ib. 435.) But it is quite obvious that such protection would be extended only to acts, the performance of which had been clearly warranted by the licensor under the terms of his consent. If the instrument is construed as an agreement for an easement in land, then its operation would be limited to that which was actually the subject of the grant and, if in general, or indefinite, terms, the situation and the contemporaneous acts of the parties would be referred to, for the purpose of discovering their intention and of ascertaining if the instrument had been given a practical construction. (Onthank v. L.S. M.S.R.R. Co., 71 N.Y. 194.) In my opinion, this instrument was an agreement to give a release of the plaintiff's interest in the soil of the street and, as such, equity would enforce it for the protection of the rights of the railroad company. Its consideration was that the company should locate the road in the street and it was under seal. The terms of the obligation, as to each party, were plainly expressed and the only indefiniteness in the instrument would be in the extent of the company's right to make use of the street for railway purposes. It was an agreement to release to the company the plaintiff's rights and to permit it to construct and operate a railway upon the street in front of his premises. Its intent was that the right to use his land should pass to the company, and while more formal words of grant would have been appropriate, nevertheless, equity will construe it as effecting it. What dispute exists as to the limitation upon the easement granted, with respect to the number of tracks which might be laid, or as to their location, *Page 81 is to be resolved by getting at the understanding of the parties. That is best done by considering the surrounding circumstances at the time when the instrument relied upon was obtained. Notwithstanding that the instrument bore date in May, 1868, effect is to be given to it as of the time when the plaintiff actually executed it; for only then did he agree to convey any right to burden his land. That was in the fall of 1869 and after the company had constructed a single track, substantially, in the center of the street. He then knew, or was chargeable with the knowledge, that the village authorities had formally permitted the railroad company to "make, grade and lay the track of their railroad and operate the same" in Second street. The maps filed by the company delineated a single red line in the center of the street. But one track had been constructed, which was in the center of the street, and which left it still practicable for street uses on either side. By the terms of the instrument, the plaintiff's agreement was qualified by the added words of "for right of way in the street only" and the company was to make "no unnecessary obstruction of the street," and was "to make the access to plaintiff's lots as easy and convenient as practicable." In the light of these facts, it is not easy to see how the company was in a position to claim that it had gained from the plaintiff the right to utilize the street for as many tracks, or for such sidings or switches, as it might deem necessary in the accomplishment of its corporate purposes. Nor was it in any position to define the easement by the powers conferred by the General Railroad Act of 1850 and, under the consent, to take all such land as it might require for corporate purposes. While a railroad corporation is given the general power "to lay out its road, not exceeding six rods in width and to construct the same," it was required, before any work of construction, to make a map and a profile of the route adopted by it. The only attempt at compliance, in the present case, with the statutory condition as to a map was to indicate upon the maps which were filed the proposed location of the railroad through Second street by a red line, appearing to be, *Page 82 substantially, in the center of the street. Such a map, in my opinion, was a defective compliance with the statute. Delineating the railway by a single red line furnished no indication whether the line was the center, or an exterior, line of the proposed route, nor of its width. The amount of land to be taken did not appear even inferentially. The object of the statute was to provide, by a public record, such information by maps, as would disclose to all persons interested in the construction of the road its true location and boundaries. (Matter of N.Y. BostonR.R. Co., 62 Barb. 85; Matter of Boston, H.T. W.R.R. Co., 10 Abb. [N.C.] 104; N.Y. Albany R.R. Co. v. N.Y., West Shore B.R.R. Co., 11 Abb. [N.C.] 386.) The same principle would seem to have obtained in Massachusetts. (Housatonic Railroad Company v. Lee and Hudson Railroad Co., 118 Mass. 391.) It is a necessary, if not a logical, inference that the map, which is to be filed before any construction, shall show something more definite and descriptive than a single red line. If nothing more definite appeared upon the map to show the railroad to be constructed, the plaintiff might reasonably infer that but one track was contemplated; which inference he might consider as confirmed by the actual construction, at the time that his consent was sought. In consideration of the advantages, which might accrue to him from the operation of such a railway through his street, he might be willing to agree to such a use of his land; with provisos against unnecessary obstruction and with the burden of but one track in the middle of the street. The representation upon the map, the language of the village consent and the appearance of the constructed track, when considered with the wording of the plaintiff's agreement, negative the idea that he was granting the unlimited privilege to change, or to add to, the then existing track.
I reach the conclusion that, the location, or route, of the proposed railway being indefinitely described upon the map and by the plaintiff's agreement, the principle of construction, which obtains in the cases of grants of easements made in general terms, should govern here and, applying it to the established *Page 83 facts, the court should hold that the track, as located in the center of Second street, was unchangeable and that the railway could not be added to upon the plaintiff's land without his further permission, or the acquisition of the right through statutory condemnation proceedings. (Washburn on Easements, 225, 240; Onthank v. Lake Shore M.S.R.R. Co., supra; Jennison v.Walker, 11 Gray, 423.) When the railroad company undertook to change, and to add to, its tracks, in the ways described, it became a trespasser as to the plaintiff. It rendered itself liable to be restrained in its operations and to a recovery of damages for any injuries sustained. So far as the ordinary and necessary operation of its railroad upon the one track through the street would cause annoyance, or constitute a nuisance, affecting the enjoyment and use of his property, the plaintiff could not complain. No recovery of consequential damages could be had, which were occasioned by the injuries resulting therefrom. They would be the incidents of the right granted, as to which the defendant would be released. But, so far as it was a trespasser upon plaintiff's land, the defendant could be compelled to acquire further easements therein, if needed for its corporate purposes, by purchase, or through condemnation proceedings, under the penalty of being restrained in its operations, if it failed to do so; and, so far as damages had been sustained through defendant's wrongful acts, to the extent that they may be separately established as resulting therefrom, they can be recovered by the plaintiff. That any appreciable damage resulted from the slight change in the location of the passenger and freight depots is not apparent upon the proofs. They were necessary incidents to the operation of the railroad as authorized.
For these reasons, I advise a reversal of the judgment and that a new trial should be ordered, with costs to abide the event.
PARKER, Ch. J., MARTIN, CULLEN, WERNER, JJ. (and BARTLETT, J., in result), concur; HAIGHT, J., absent.
Judgment reversed, etc. *Page 84