We have reached the conclusion in this case that the plaintiff must be deemed the owner of the fee to the center of Washington avenue. The claim by the defendant that the original patent under which the plaintiff claims bounded her premises on the west by such street, and that, therefore, being from the sovereign, it operated to convey only to the east line of such street, is not, in our opinion, a correct exposition of the law applicable to her case. The circumstances under which such patent was issued are quite different from those controlling the case of Graham v. Stern (168 N. Y. 517). They are rather controlled by the rule laid down in Cheney v. Syracuse, Ontario & New York R. R. Co. (8 App. Div. 620; affd., 158 N. Y. 739), and we do not consider that such case was overruled, or at all weakened, by the Stern case.
It is sufficient to state our conclusion upon this question without giving an extended analysis of the argument by which we reach it.
Assuming that the plaintiff is such owner to the middle line of the street, the other questions which the case presents have been already decided by this court. In Peck v. Schenectady R. Co. (67 App. Div. 359) we decided that Peck, who was an adjacent owner upon this street, was entitled to an injunction against this defendant, forbidding it from building or operating its line upon her property. And we further decided that the trial court did well in refusing to substitute for such an injunction an order that the amount of Peck’s compensation for such taking by this defendant be ascertained and awarded in that action. Such decision sustains the plaintiff’s right in this case to the injunction which the court below has vacated, and in this respect our decision was approved by the Oourt of Appeals. (Peck v. Schenectady R. Co., 170 N. Y. 298.) The same reasons which induced us to concur with the action of the trial court in the Peck case induce us to, continue the injunction in this case. And more than that, and aside from the question whether the plaintiff can under the Constitution (Art. 1, § 7) be compelled to submit the question of her damages to the decision of the Special Term, the plaintiff’s counsel upon this argument distinctly claimed that this defendant had no right to take the plaintiff’s lands even by condemnation proceedings, but he declined to then argue such question, because it was not presented by the record in this case. We *573see no reason why he should not be allowed to present that question upon a direct proceeding to condemn. Although the defendants have proceeded to construct their line through this street, they knew that if the plaintiff was the owner to the center thereof they were trespassers in so doing. They deliberately expended their money, and took the risk of establishing that the plaintiff had no such ownership. It is not quite accurate to claim that they were compelled to build on each owner’s land in order to get the question of ownership before the court. A threat to build, or very slight and inexpensive work, on the land of any one of such adjacent owners would have compelled a suit to enjoin it, and the moment such action was commenced the question of ownership as to all could have been tried and determined. We discover no particular equity in the position which the defendant has assumed in this case, and while we are not disposed to grant a mandatory injunction requiring it to remove from the plaintiff’s land what it has already unlawfully placed thereon, we do restrain it from using the same, or from any further entry thereon.
Although the parties agree that this record contains all the evidence either has bearing upon the question of the plaintiff’s ownership to the center of the street, yet we cannot, on this appeal, order a final judgment in the action. Our injunction, therefore, must necessarily be a temporary one, operating only until such final judgment shall be rendered.
All concurred, except Kellogg, J., dissenting.
Order reversed, with ten dollars costs and disbursements, and motion to vacate injunction denied, with ten dollars costs.