The plaintiff brings this action to restrain the defendant from violating certain building restrictions which are alleged to burden with reciprocal easements the properties of plaintiff and defendant at Averne-by-the-Sea, located át Eockaway Beach in the county of Queens. The premises involved in the controversy are situated along-the seashore, and some years ago were* divided in two primary divisions, known as the western and eastern divisions, and these in turn . were subdivided into lots. Lot No. 1 of the eastern division is owned, by the defendant, and the plaintiff owns lots adjacent, where she has. erected an expensive summer residence. The deed under which the defendant holds his premises, and both the plaintiff and defendant derive title from the same source, provides “ that neither the* said party of the second part nor his heirs or assigns shall at any time hereafter erect, maintain or permit any mechanical or mercantile business or any stable or any building other than a dwelling-house on the portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Eailroad of Long Island,” etc. At the time of making this original deed in. 1885, in a voluntary partition, the covenant to run with the land,, there was' a single, line of railroad running parallel with the ocean beach, 'and at a short distance therefrom, and the evident purpose* of this covenant was to prevent the construction of business places; between this railroad and the beach. Subsequently this line of rail*595road was abandoned, or transferred a considerable distance to the north of the old line, and between the original line and the new line a boulevard was constructed. The defendant’s premises front upon this boulevard, running back toward the beach and crossing the line of the original railroad, and the plaintiff, whose premises are likewise located upon the boulevard, seeks by this action to prevent the defendant maintaining an automobile station or garage, the building fronting upon the boulevard, and the larger part of the same being eoncededly outside of the restrictive covenant. .The important question in the case is what is meant by the provision that buildings other than dwelling houses should not be constructed “ on the portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Bailroad of Long Island ? ” It appears from the evidence that the Bockaway Bailroad Company, the predecessor of the South Side Bailroad Company, did not acquire title through the premises now owned by the defendant by condemnation proceedings, but on both sides of the same it did acquire a right of way by condemnation proceedings, and in both instances this right of way was ninety-nine feet in width; and if this width constituted the “ strip thereof now occupied by the tracks of the South Side Railroad of Long Island ” no part of the defendant’s building would be south of the strip, and it seems to us that the language of the covenant, as well as its spirit, is satisfied by this construction. A railroad occupies more than the space of its tracks; it occupies not only the ground actually used for the tracks and its supports, but the land ordinarily necessary in making repairs, storing materials, building tool houses, flag stations, etc., and when this covenant spoke of the “ portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Railroad” it can hardly be doubted, that the parties had in mind so much of such strip as might be lawfully used by such railroad. In other words, the owner of the fee would not be permitted to build, in the absence of this covenant, within forty-nine and one-half feet of the center line of this railroad on the south; an attempt to do so would undoubtedly have been regarded as limiting the railroad in its occupation of the strip, and would have resulted in condemnation proceedings or other means of keeping the space clear, and the covenant could not have been understood as meaning anything more than *596that the owner of the premises should not go. south of this strip necessary for the operation of the railroad and construct a building for business purposes. The learned court at Special Term has,' however, taken a more restricted view of the language, and has construed it to mean the land in the physical occupation of the tracks of the old railroad, and has held this, to involve about twenty-one feet of the rear of plaintiff’s premises, making allowances for the width of the supporting grading materials. Taking this most favorable view of the language for the plaintiff, the learned court has found as a matter of fact, and this finding has support in the evidence, that “ no portion of defendant’s building is within; the restricted area" except the extension on the southerly side thereof,” and as to this he finds that the use to which this extension is devoted, that of a kitchen, bathroom and stairway leading to the dwelling apartments above, is not in violation of the restrictive covenant. The learned court concludes, and in this we fully agree, that the defendant is entitled to judgment dismissing the complaint, but without costs.
. It was urged by the plaintiff, in addition to the above proposition, that the maintenance of an automobile station along this bouleyard, outside of the restricted, portion of the premises, was a common-law nuisance; but the learned court has found to the contrary, and we have no doubt of the correctness of this conclusion. The business of the- defendant appears perfectly lawful and legitimate; he is not violating the covenant restricting the use of the premises, and the plaintiff, having had the most favorable construction of the language in support of her contention, is not entitled to the reversal of this judgment, which might be supported upon yet other grounds.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.