New York, Ontario & Western Railway Co. v. Western Union Telegraph Co. , 43 N.Y. Sup. Ct. 205 ( 1885 )


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  • Barnard, P. J.:

    There is no reason given why this order should be reversed. The New York and Oswego Midland Railway Company erected a line of telegraph poles upon its land and fastened thereon two wires for telegraphic purposes. This line was operated by the Atlantic and Pacific Telegraph Company. This telegraph company placed a third wire upon the poles. ' A foreclosure action was brought against the railroad company, and pending the foreclosure the receiver of the railroad made an agreement with the defendant, who had succeeded to the rights of the Atlantic and Pacific Company, whereby the defendant took the line to operate from the receivers, and paying compensation therefor to the receivers. By the terms of the contract with the Atlantic and Pacific Company, the railroad company was bound to buy the additional wire. No steps have ever been taken under this part of the agreement. If the case ended here, the rights of the railroad company are supreme to the line. It was erected by the company and was part of its real estate. The additional wire became real estate, with a power bo enforce compensation. If the company fails to obtain this by reason of the insolvency of the railroad company, that would not change the legal condition of the parties. A company which had improved the real estate of another company could not collect the cost of the improvement. The non-payment did not make the real estate personal. The decree in foreclosure passed the title to the line to the plaintiff. The Atlantic and Pacific Telegraph Company was a party. It set up a claim to the telegraph line. Judge Blatohford held that the telegraph company had no rights which were not subordinate to the mortgage, and the decree directed the sale of the railroad property without reserve in respect to the telegraph wires. The decree directed a sale of “ all the rights of the said railroad company to the telegraph erected and used along the aforesaid railroad.”

    The order should be affirmed, with costs and disbursements.

    Pratt, J., concurred.

    Order continuing injunction affirmed, with costs and disbursements.

Document Info

Citation Numbers: 43 N.Y. Sup. Ct. 205

Judges: Barnard, Pratt

Filed Date: 5/15/1885

Precedential Status: Precedential

Modified Date: 2/4/2022