Remsen v. New York, Brooklyn & Manhattan Beach Railway Co.

Hooker, J.

(dissenting):

The complaint herein alleges that the New York, Bay Ridge and Jamaica Railroad Company, the predecessor of the defendant, the New York, Brooklyn and Manhattan • Beach Railway Company, went into possession of a piece of property some forty-four feet wide and over eighteen hundred feet long in 1877 under an oral license from plaintiff’s father, and that the defendant, the Manhattan Beach Railway Company and its lessee, the Long Island Railroad Company, have continued in possession until the present time. . The complaint also alleges ownership of the property by the plaintiff and revocation of the license and continued and wrongful possession by the defendants. It is also alleged that the plaintiff owns mortgages upon property adjoining the strip on which the railroad tracks still exist; that the defendants contemplate the erection of a viaduct thereon and that the plaintiff has no adequate remedy at law. .The prayer for judgment is that the defendants surrender to the plaintiff the quiet and undisturbed use and possession of the strip of land; that they remove therefrom all tracks, ties, sleepers, fences and other appurtenances, and that they be enjoined and restrained from continuing in the use and occupation of the lands for a steam railroad or any other purpose hostile to the plaintiff’s right' of quiet and undisturbed possession.

The court below has held that this is an action at law to recover the possession of real property triable by a jury. The appellant insists that it is not an action in which a trial by jury is a matter of . right. If the appellant is correct the order must be reversed and the case restored to the calendar of the Special Term for the trial of issues of fact. ‘ '

The plaintiff claims a right to recover possession of his land. Were the lands not burdened by the tracks, ties and other appurtenances of the defendants, the railroad companies, a mere allegation of ownership by himself and wrongful possession by the defendants is .all that would be required, and this would lead to a simple judgment for the recovery of the real property. The action would then be what is commonly known as an action of ejectment, and the sheriff under the execution would put the plaintiff in possession. The facts, however, are such that the plaintiff is justly warranted ■ in . alleging more. He says that the lands are burdened with *416appurtenances incident to the construction and operation of a railroad, the fair inference being that it will not be practicable for him or the sheriff to remove them. He claims, inasmuch as the possession by the defendants is wrongful, that they should be required to surrender up the premises unburdened in that manner, and that the removal of the appurtenances should be by the defendants tliemselves, for without such removal there could be no real transfer of possession. His complaint alleges sufficient facts to justify equitable relief, and he is warranted in demanding relief that the defendants remove their tracks and appurtenances and be enjoined and restrained from continuing in the use and occupation of the land as and for steam railroad purposes. The action is, therefore, not a pure action for the recovery of real property, and hence triable by jury, but becomes an action in equity. ' (Corning v. Troy Iron & Nail Factory, 40 N. Y. 191; Broiestedt v. South Side Railroad Co. of Long Island, 55 id. 220; Hahl v. Sugo, 169 id. 109.)

The order should be reversed, with costs.

' Order affirmed, with ten dollars costs and disbursements.