dissenting. When this action was in this court, on appeal from a judgment dismissing the complaint, a new,trial was granted, and it was held and decided that the action was not barred by the statute of limitations; that the doctrine of lateral support, incident to adjoining lands, was applicable; and that the defendant was liable in damages to the plaintiff for the consequences of the excavation made by defendant upon its own lands; and that, even if defendant was not absolutely liable for such damages, it would be, if negligently and unskillfully done; and that such negligence and want of skill should have been submitted to the jury, to be passed upon by it as a question of fact. Ludlow v. H. R. R. R. Co., 6 Lans. 128. Such decision covers all the propositions relied upon by the appellant upon this appeal, except one. Upon the former trial the defendant rested entirely upon the production of plaintiff’s deed of the premises (whereon the excavation was made) “for materials,” “for the uses and purposes of said railroad, and for no other or different purposes.”
Now the defendant has introduced, in addition, certain proceed*426ings, whereby it obtained title to said premises by the right of eminent domain, under the statute for taking lands for railroad purposes. By such proceedings it appears that. this piece of land, outside the line of the road, was “needed for material for the construction of said road, and the maintenance thereof,” and was appraised and condemned to the use of said railroad.
This court has lately held, that a railroad company cannot acquire title to real estate, without the owner’s consent, simply for the purpose of removing materials therefrom for the construction of the road. Matter of N. Y. & C. R. R. Co. v. Gunnison, 3 N. Y. Sup. 632.
If that decision be sound the defendant acquired no title to the lands outside of the roadway by such joroceedings. But in any event the title so acquired did not essentially change the relations of the parties or diminish defendant’s duties and obligations.
These considerations would lead to the affirmance of the judgment, without further remark, were we not referred to an opinion of Lott, C. C., in the case of Ryckman v. Gilles, lately delivered in the Commission of Appeals. The opinion of the learned judge raises grave doubts of the correctness of this court’s decision upon the former appeal. There is, however, this marked distinction between the two cases: In Ryckman v. Gilles, by the deed, the land was conveyed, and the right reserved to the grantor to enter upon a certain part of the land granted, and “to dig and take therefrom the clay and sand that may be found thereon fit for brick-making.”
In the case at bar the plaintiff conveys to defendant, its successors and assigns, the right of way for track, describing it; and adds, “ together with a piece for materials,” describing the land on which this excavation was made, after which follows the usual clause, with all and singular, etc.; and adds, “to have and to hold the same, with the appurtenances, unto the said party of the second part, its successors and assigns, for the uses and purposes of said railroad, and for no other or different purpose. ” In the former case the grantor retained no title to the land. If the reservation did not amount to a severance of the clay and sand so as to constitute it personal property, as in the case of growing trees, it was yet only an irrevocable license to enter, dig and carry away. The grantee alone held the title. ’ Hence, the grantor and grantee were not adjoining owners.
*427But in the present case the defendant has title in the land conveyed to it by plaintiff. While that title remains the plaintiff has no right of entry thereon. Any interference by her with defendant’s possession would be a tort, for which trespass would lie.
Concede that defendant’s right of use is limited and not absolute. It is a title to land which the law tolerates, and the defendant is the possessor of such title and land.
The doctrine of lateral support can only apply to adjoining owners of land. If such adjoining ownershij) does not exist the doctrine cannot be applied. It did not exist in Ryckman v. Gilles, but it does here. The use of the land is restricted to railroad purposes. But does that give to defendant any greater rights of use of the soil for railroad purposes than it Would-possess if no restriction were contained in the deed? If it does, then a restriction inserted in a deed, to limit the use, will operate as a grant of a right which a full covenant deed would not give. The precisq question having been decided in this court itLlshould be held res adjudícala, and it should be left to a higher court to correct our error if it be an error.
For these reasons I think the judgment and order should be affirmed.
Judgment reversed and new trial ordered.