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FIRST DEPARTMENT, JANUARY TERM, 1903.
consented conditionally, as, for instance, that a majority should also execute such consent, or upon payment of a certain sum, or upon condition of the payment of such damages as he might prove he would sustain from the existence of the road. In this case, however, there is absolutely no condition stated or claimed. There is the unconditional consent to the building of the road, and upon the assumption that it was signed by all the owners or duly authorized by them, it must be regarded as an abandonment pro tanto of the easement in that street as already described, especially after the consent has been acted upon by the company, with the possible limitation hereinafter to be mentioned. Perhaps the consenting party might withdraw his consent if he had given it without any valuable consideration, and if the other party had done nothing under it so that its position would not be unfavorably affected by such withdrawal. This is not such a case, because the company have proceeded to build their road and they would be unfavorably affected by just the amount they must pay if the consent be regarded as withdrawn." The validity of such consent, it will be seen, was placed upon the voluntary abandonment by an owner of his easement so far as the same would be affected by the construction of the road, and, although voluntary and without consideration, which would entitle the owner to withdraw it, it becomes binding when the railroad has acted upon it and constructed the road.
Although this case has been followed in several cases to which attention will be called, it is the only case which has discussed the principle upon which such a consent will be deemed to be a relinquishment by the owner of abutting property to his right in the street. And to give this consent this effect it must appear to be, it seems to me, what the consent in the White case was, a consent that the road as proposed be built; and to prevent a person giving such consent from withdrawing it, it must appear that the road has acted upon the faith of it in constructing its road. This consent, as presented to Shaw for signature, was a consent to the construction and operation of an elevated railroad over, through and along Forty-second street. There is here no distinction between the sidewalk and the roadway of the street, and undoubtedly such a consent would authorize the construction of the railroad upon the sidewalk as well as in the middle of the street. Was this consent signed by Shaw? Did he,
FIRST DEPARTMENT, JANUARY TERM, 1903.
[Vol. 78. by what he put upon that paper, consent to the erection and operation of an elevated railroad over, through and along said street? None of the other property owners had signed this instrument. When or under what circumstances it was presented to Shaw for signature does not appear. We simply have the paper, which in form was a consent to construct this road over, through and along this street, upon which Shaw had written these words: "I am in favour of an elevated road over the middle of the street, but not on the walk. James E. Shaw." Was this signing the consent, or, hy the execution of this statement of his views, did he indicate an intention to consent that the road should occupy the whole of the roadway with the structure? Whether this signature was or was not such a consent must be determined by the intention of the parties to it and the intention of Shaw when he signed it.
Upon that question we have evidence of the acts of the railroad company. The railroad company having failed to acquire the consent to the construction of the road of a majority of the property owners, made an application to the General Term of the Supreme Court for the appointment of commissioners to determine whether or not the road should be built, notwithstanding the objection of the property owners. They were required to base that application upon evidence that the property owners had refused their consent, and the railroad company presented to the General Term of the Supreme Court a petition verified by the president of the company, which stated that an application had been made to the owners of the property bounded on the portions of the streets and avenues through which the road was to run, for their consent to the construction and operation thereof, over, through and along the route so designated; "and the consent of such owners to the extent of one-half in value of such property cannot be obtained, neither of the owners of property bounded on the whole line aforesaid, nor of such owners of the property bounded on any one of said streets, and such consent was refused by the owners of more than one-half in value of the property bounded on each of said streets, and portions of streets, as appears by the proofs hereto annexed." Annexed to that petition was an affidavit of one Taylor, who swore that he had made diligent inquiries of the persons in possession, and claiming to own the several lots or parcels of land on both sides of
FIRST DEPARTMENT, JANUARY TERM, 1903.
Third avenue, between the Bowery and Forty-second street, and on both sides of Forty-second street, between Third and Madison avenues; and that the Schedule A annexed to the affidavit includes and accurately states all the property on said portion of Third avenue and on said portion of Forty-second street; that "I requested each of the owners of said lots and property on said portion of Third avenue, opposite to whose names is written in said Schedule 'A' annexed hereto, the words 'consented' or 'declined to consent' to sign a certain paper of which a copy is hereto annexed, marked Schedule B,' and to consent to the construction and operation of an elevated railway over, through and along said avenue, and each of the owners of said lots and property on said portion of said Forty-second street, opposite to whose names is written in said Schedule 'A' hereto annexed the words 'consented' or 'declined to consent' to sign a certain paper of which a copy is hereto annexed marked 'C,' and to consent to the construction and operation of an elevated railway over, through and along said street. * Each of such owners and persons, excepting those opposite to whose names in Schedule 'A' is written the word 'consented' refused to consent to the construction or operation of said railway or to sign said paper so presented." Annexed to this affidavit is a schedule which contains a proposed consent in the same form as that to which is affixed Shaw's name to which attention has been called. In that schedule Shaw is put down as the owner of lots 67, 68 and 69, block 335, but there is no indication that Shaw had consented to the construction of the road; and it is upon this petition and affidavit that the court acted in appointing commissioners under whose authority the road was subsequently built.
We have, therefore, the fact that, although a consent to the construction of the road was presented to Shaw, upon which he indiIcated that he was in favor of the construction of a road over the roadway or middle of the street, the defendants, when they made their application for the appointment of commissioners, stated to the court that Shaw had either not consented to the construction of the road, or that no request had been made to him for such consent. This would seem to show that neither Shaw nor Taylor, who was engaged in getting consents for the construction of this road in Forty-second street, understood that Shaw consented to the con
FIRST DEPARTMENT, JANUARY TERM, 1903.
[Vol. 78. struction of the road as requested. The paper itself is certainly ambiguous. The consent is not signed. Shaw had annexed to it a statement of what he favored, but I do not think that such a statement could be considered a consent to the construction and operation of the road, especially where it appears that the writing was not acted upon as a consent, or that the defendants had considered that the owner of the property had consented thereto. The effect of the indorsement of Shaw was an indication of his willingness to consent to a restricted right to build the road if his consent for such a restricted right was asked for. There is not in this, as there was in the White case, a consent in writing to the construction and operation of an elevated railroad in the street fronting his property. There is no formal consent to do what the road wanted to do; and what Shaw signed did not purport to be such a consent, but only purported to be an expression of what he favored; and the utmost that could be claimed for it, it seems to me, is an expression of willingness to sign a consent much more restricted than they then asked for if such a consent was presented to him for signature. And we have further in this case the evidence that the railroad company never acted upon this consent and never built its road relying in any sense upon it. In this case, when the plaintiffs' testatrix acquired the title to this property, there was no railroad in this street. This instrument, claimed to have been signed by Shaw, was not recorded and plaintiffs' testatrix had no notice, so far as appears, that Shaw had ever signed any instrument affecting her easements in the street. The railroad was not in possession of any part of the street, and upon the record of the deed to her under the Recording Act she took the property free from any consent or incumbrance imposed upon the property by Shaw.
The White case has been followed by several other cases in the Court of Appeals to which it is proper to call attention. In Foote v. Elevated Railroad (147 N. Y. 367) the abandonment of the easement claimed by the plaintiff was claimed to have been effected as the result of certain agreements entered into between the railroad company and a prior owner of the land. The court, in discussing the White case, stated: "The peculiar features in the White and Snell* cases, which have been referred to, were, in the
* Snell v. Levitt (110 N. Y. 595).
App. Div.] FIRST DEPARTMENT, JANUARY TERM, 1903.
one, an express authorization to build the elevated railroad, and, in the other, an express relinquishment of an easement to conduct water, upon both of which agreements the parties favorably affected thereby had acted;" and after describing the agreements under which it was sought to effect such an abandonment in the case then under consideration, it was held that nothing there could effect such an abandonment. What was said by the court in that case is, I think, quite applicable to the case at bar. "I think the plaintiff was under no obligation to look beyond the records for anything affecting his title to the land he was about to purchase. As matter of fact, the defendants were trespassers, with no right as yet to occupy the easements of the abutting owner. The argument that Lathrop's demand in the action, however irrevocable, was equivalent to an election to abandon the easements does not commend itself. At most, it could be regarded as amounting to a conditional declaration of an intention to abandon. That would be insufficient, * * * and it cannot be said that the defendants had seasonably acted upon it. Moreover, the importance of discovering from the circumstances the intention of the person who is claimed to have abandoned his rights is in its explaining and determining the significance of the act."
In Ward v. Metropolitan Elevated R. Co. (152 N. Y. 39) it appeared that the plaintiff's grantor, in consideration of $3,300 paid to her by the defendants, released to them the easements or rights belonging to the premises which had been taken and were affected by the maintenance and operation of their road, and all causes of action therefor, past and future, and consented to a perpetual maintenance and operation of such road in front of the premises. It was held that this instrument was sufficient within the White case, based upon a valuable consideration, to convey the easement in the street; and although this instrument was not recorded, as the railroad was in actual possession of the easements, that possession was notice to all persons purchasing the abutting property as to the rights that the railroad actually had. But as the railroad was not in actual possession of this street when the plaintiffs' testatrix acquired her title, this does not apply.
In Heimburg v. Manhattan Ry. Co. (162 N. Y. 352) it is stated in the opinion that it was admitted that in October, 1875, the plain