Miller v. New York & North Shore Railway Co.

Werner, J. The first cause of action set forth in the complaint is founded upon the plaintiff’s alleged ownership of the fee in the southerly half of Fulton street in front of her premises. If she is such owner she can restrain the building of the defendant’s railroad in front of her premises, unless she has consented thereto or her title to the street has been acquired by the defendant. (Peck v. Schenectady Ry. Co., 170 N. Y. 298; Paige v. Schenectady Ry. Co., 178 N. Y. 102.) The decision of the trial court is in the short form, under section 1022 of the Code of Civil Procedure as it stood before its amendment by chapter 85 of the Laws of 1903. As bearing upon the first cause of action, the learned court found that the plaintiff is the owner in fee of premises situate on the southerly side of Fulton street, in the borough of Queens, Yew York' city, described as “ All that certain piece or parcel of land with the building and improvements thereon, situ *127 ated, lying and being in the town of Hempstead, Queens County, State of Hew York * * * described as follows, to wit, * * * beginning at the main road leading from Jamaica to Hempstead; from thence southerly * * * thence easterly (and by various metes and bound's * * * to a certain fence); thence along said fence as it now stands for a, division fence along said William Martins and Widow Highe’s land to the main road aforesaid; thence along the main road to the place of beginning, containing 35 acres, be the same more or less.” This is the only finding contained in the decision in any way relating to the first cause of action. When this finding is examined in the light of section 1022 of the Code of Civil Procedure, as that section stood before its amendment in 1903, it is evident that the learned trial court either failed to make any decision whatever upon the first cause of action ; or, on the contrary, arrived at a conclusion of law directly at variance with the fact found. The so-called “ short form ” ■decision was authorized by that part of section 1022 which permitted a court or referee to “ file a decision stating concisely the grounds upon which the issues have been decided.” It will be observed that the decision before us simply affirms the plaintiff’s ownership of her premises according to the description given, but it is silent upon the all-important question whether her title extends to the center of the street or not. If this silence is to be regarded as a failure on the part of the trial court to pass upon that question, then the judgment must be reversed because the plaintiff is entitled to have it decided and to have the grounds of the decision concisely stated. If, on the other hand, the finding of the description in Timo verba is to be treated as the equivalent of a finding that the plaintiff is the owner in fee of the southerly half of Fulton street in front of her premises, subject only to the easement of the public therein, then the judgment is unauthorized because the conclusion of law upon which it rests is irreconcilable with the fact found. The description, as set forth in the decision, carries the *128 plaintiff’s title to the center of the highway. “In this State, as between grantor and grantee, the conveyance of a lot bounded upon a street carries the land to the center, and there is no distinction in this respect between the streets of a city and country highways. The rights of the public in a street or highway are no higher or other than those of a mere easement, and the proprietors on each side presumptively own the soil in fee to the center thereof.” (Paige v. Schenectady Ry. Co., 178 N. Y. 102, 111, citing Bissell v. N. Y. C. R. R. Co., 23 id. 61; Wager v Troy Union R. R. Co., 25 id. 526, 529; White's Bank of Buffalo v. Nichols, 64 id. 65, 71; Wallace v. Fee, 50 id. 694 ; Holloway v. Southmayd, 139 id. 390.) The learned counsel for the respondent invoices the rule that when a judgment entered upon a short decision has been unanimously affirmed by the Appellate Division,' this court is bound to assume that the trial court found all the facts warranted by the evidence and necessary to support the judgment. (Amherst College v. Ritch, 151 N. Y. 321; People ex rel. Manhattan Railway Co. v. Barker, 152 N. Y. 435.) This rule has no application to the case at bar. As we have already stated, the court either decided the question of plaintiff’s title to the bed of the southerly side of the street, or it failed to decide that question. If it failed to make a decision upon that essential element of the case, it is obvious that this unanimous affirmance rule cannot be applied for the purpose of giving effect to a judgment that is void upon its face. And so, on the other hand, if we treat the question as having been decided, the unanimous affirmance rule is equally inapplicable. The description of plaintiff’s premises contained in the decision of the court, presumptively carries plaintiff’s title to the center of the street. The trial court has found no facts which tend to rebut the presumption that the plaintiff owns to the center of the street. In the absence of such a finding the trial court’s conclusion of law, to the effect that the complaint should be dismissed, is not warranted by the facts found. The case of Kennedy v. Mineola, H. & F. Traction Co. *129 (178 N. Y. 508) is not in conflict with the views here expressed. In that case there was an affirmative finding that the plaintiff was not the owner of the highway in front of his premises, and it was, therefore, properly held that this court could not look into the record to ascertain whether there was any evidence to support that finding. The judgment herein should be reversed and a new trial granted, with costs to abide the event. Cullen, Ch. J., Gray, Babtlett, Haight? and Vann, JJ., concur; O’Bbien, J., absent. Judgment reversed, etc.