Opinion
October Term, 1897.
William J. Kelly, for the appellant.
M.E. Harby, for the respondent.
The complaint in this action alleged that the plaintiff was lawfully seized and possessed in fee simple absolute of certain premises in Hempstead, on Cedar avenue. The premises were, prior to 1877, owned by one Seeley, who conveyed the same to one Ransom by a deed which contained a covenant that Cedar avenue, being sixty feet in width, should be opened as a street, and that the grantee, his heirs and assigns, should enjoy the privilege of using the same forever. In 1884, after several mesne conveyances, the premises were conveyed to the plaintiff by a deed which contained no covenant in respect to the use of Cedar avenue, but contained the following clause: "Together with the lands forming the streets and avenues opened or to be opened, lying and being in front of or adjoining said premises."
In 1892 the defendant constructed its railroad across Cedar avenue in such a manner as to incumber the plaintiff's access to and enjoyment of the premises, causing damage, as the plaintiff claimed, of some $6,000.
The action was tried at Special Term and the court decided that Cedar avenue did not appear to be a public highway, but that the plaintiff owned the fee to the middle line of the avenue; that the defendant's embankment was a serious obstruction and a nuisance, and directed judgment for the sum of $500 damages sustained up to the time of the trial of the action, and for its removal, and enjoined the defendant from maintaining the embankment in Cedar avenue unless it should pay the plaintiff within sixty days after notice of entry of the judgment the sum of $2,000, or unless within the time aforesaid it should construct across such embankment a proper farm crossing for the use of the plaintiff, over or under the railroad, and within sixty days institute condemnation proceedings to acquire the land of the plaintiff in said street. The defendant paid the judgment for $500 damages and erected a suitable farm crossing, but did not institute condemnation proceedings and did not remove the embankment.
The plaintiff commenced the present proceeding to punish the defendant as for a contempt in failing to obey the mandate of the court, and an order was subsequently made by the court inflicting a fine of $250. No appeal was taken from the judgment of the Special Term, and that judgment is res judicata. It finds that the plaintiff was the owner of the fee, that the defendant was guilty of erecting an obstruction and nuisance upon the premises, and directs its removal unless the defendant should institute proceedings in condemnation.
The defendant has disobeyed such order and cannot be heard to dispute its validity.
The order is affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.