Pitkin v. Long Island Rail-Road , 2 Barb. Ch. 221 ( 1847 )

The Chancellor.

The complainant claims the relief asked for in his bill, under an alleged agreement, by parol, made with him by one of tire officers of the rail-road company, to establish and maintain a permanent turnout track and stopping place in the neighborhood of his property; and to stop there with the freight trains and passenger cars of the company. And the consideration for the alleged contract, was the labor which he was to perform in excavating and grading the land at that point upon the rail-road.. I think, with the vice chancellor, that the complainant failed to establish an agreement which was binding upon the company, even if it was- competent for him to establish an agreement of this kind by parol. There is no sufficient evidence of the authority of Blydenburgh to make such an agreement for the company. Neither does his testimony show that the stopping place was to be continued there during the existence of the charter of the company, or for any definite time; though Blydenburgh and the complainant undoubtedly supposed it would be continued there, unless the interest of the company and the convenience of the public should require its removal to some other place.

Again; I think the. agreement, which the complainant claims to have been made, could not be made by parol, under the provisions of the common law and of the statute of frauds. It was, in substance, the grant of an easement or servitude, which was to be binding upon the property of the rail-road company, as the servient tenement, for the benefit of the complainant, and those who should succeed him in his estate, as the owner of the adjacent property. (1 Pardessus Traite des Servitudes, ch. 1.) For the complainant has no .legal interest in having a turnout track and stopping place permanently established there, except as it may benefit him as such owner. The right claimed by him therefore, under the parol agreement with Blydenburgh, is a negative easement in the property of the rail-road company. That is; the power to restrict the company, as the owners of the servient tenement, in the exercise of general and natural rights of property; and to compel them to use it in a particular way, by keeping certain erections thereon and stopping with their trains at a particular place, for his use and benefit as the owner of the adjacent land, as the dominant tenement. It is therefore an incorporeal, hereditament; the right or title to which can only pass by grant, or deed under seal, or be acquired by prescription. In the case of Fentiman v. Smith, (4 East's Rep. 107,) Lord Ellenborough states the principle, distinctly, that the right to have water pass over the lands of another, by a tunnel, could not be acquired by a parol license, without deed. In the case of Hewlins v Shippam, (7 Dow. & Ryl. 783 ; 5 Barn. & Cress. 221, S. C.) the defendant, for a valuable consideration, had assented to the making of a drain, in his lands, by the defendant, and the latter had made it at considerable expense. The defendant was sued for stopping up the drain. And the court, upon a full examination of all the cases, decided that an easement in the land of another was an uncertain interest in land, within the statute of frauds, and ‘could not be acquired by a parol agreement.

The provision of the revised statutes on this subject is, that no estate or interest in lands, or any trust or power over or concerning lands, or in any manner relating thereto, shall be ereated, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance, &c. (2 R. S. 135, § 6.) And' it is sufficiently broad to exclude the idea of acquiring an easement in land by a verbal agreement merely.

And as a mere executory agreement between the complainant and the company, that the latter should continue to stop with their cars at that place, as a permanent arrangement, the agreement made by Blydenburgh for the company was void; because, from the nature and terms of the agreement it was not to be performed by the company within one year from the making thereof. (See 2 R. S. 135, § 2, sub. 1.)

The complainant, therefore, was not entitled to the relief prayed for in his bill, nor to any other relief, upon the pleadings and proofs in this case. His bill was properly dismissed; and the decree appealed from must be affirmed with costs.