Hart v. Benton-Bellefontaine Railway Co.

Lewis, P. J., delivered the opinion of the court. Under an execution in plaintiff’s favor against theBellefontaine Railway Company, the sheriff levied on “ the roadbed, rails, and right of way” of the defendant in execution. Plaintiff, claiming . to have become the purchaser at a sale made in pui'suance of the levy, instituted this suit for damages, as for' a conversion by defendant of his personal property. The road-bed, rails, and right of way belonging to a railroad company are in no sense personal property. Farmers' Loan and Trust Co. v. Hendrickson, 25 Barb. 493. It is immaterial that the right enjoyed by a street-railway corpora 447 tion is a mere easement in the use of the streets. Easements are classified among incorporeal hereditaments which lie in grant. The record in this case fails to show a valid sheriff’s sale, whether the property sold were personal or real. It nowhere appears that there was a public sale by auction, nor is it shown by what number of handbills, if any, the sale was advertised. It is not pretended that the requisites for an execution sale of real estate were observed. The Circuit Court did rightly in excluding the sheriff’s bill of sale, and in sustaining the demurrer to the evidence. All the judges concurring, the judgment is affirmed.