Hynes v. New York Central Railroad ( 1919 )

Putnam, J.:

The complaint alleged defendant’s neglect in improperly erecting, constructing and maintaining its poles and appurtenances and the wires attached thereto, and in failing to secure said wires and repair the poles, appurtenances and wires, with the result that the same fell.

The learned court rightly held that the deceased was a trespasser. The plank was part of defendant’s property, and was so annexed as to become part of the realty. Decedent’s entry upon defendant’s close from the waters of the ship canal was an unlawful intrusion. On this plank, he was still a trespasser — even when he stepped outward across defendant’s technical boundary line and stood near the outer end, over the waters of the Ship canal.

Appellant’s point that defendant did not own the extremity of this plank, because it projected over the waterway, is against ancient doctrines, that such an object supported from the place of annexation carries the title to the whole thing so annexed, even if it protrudes over and across a vertical boundary line. This applies to tree branches which overhang a neighbor’s land. (Masters v. Pollie, [1619] 2 Rolle’s Rep. 141.) In Hoffman v. Armstrong (48 N. Y. 201) such an instance of an overhanging branch led the court to declare that “ if an adjoining owner should build his house so as to overhang it, such an encroachment would not give the owner of the land the legal title to the part so overhanging ” (p. 203). In support of which is cited Aiken v. Benedict (39 Barb. 400), which held that ejectment would not lié in such case. While the owner of land so overhung may cut off the branches above his land (Lemmon v. Webb, L. R. [1895] A. C. 1), he cannot, in removing the nuisance, appropriate the materials, and convert to his use the severed branches, or fruit thereon. (Mills v. Brooker, L. R. [1919] 1 K. B. 555.)

The plank cannot be held an unlawful interference with navigation, in view of the apparent shallowness of the water and the circumstance that neither the Federal nor the State authorities had taken any steps for its removal. (1 Farnham Waters, § 95.)

The owner of a wharf, pier or like projection, even if run out beyond the proper exterior line, has a good right against all private intruders or trespassers. (Wetmore v. Atlantic White Lead Company, 37 Barb. 70; Wetmore v. Brooklyn Gas Light Co., 42 N. Y. 384, 392.) As Grover, J., said in the case last cited, the State may have a remedy, but this “ gives the plaintiff no right of entry upon such land for any purpose ” (p. 393). The same was laid down in Crooked Lake Navigation Co. v. Keuka Navigation Co. (26 Wkly. Dig. 145; affd., 115 N. Y. 667).

In another view, an argument that the extremity of such plank was not defendant’s property cannot aid the plaintiff, since, for all that here appears, the entire plank was in defendant’s possession; and such possession, even without legal title, is good against an intruder committing a trespass. (Jackson v. Harder, 4 Johns. 202; Cutts v. Spring, 15 Mass. 134; Beardslee v. New Berlin L. & P. Co., 207 N. Y. 34, 41.)

This complaint was for breach of duty whereby the poles and wires broke and “ fell to the ground.” The suggestion that plaintiff might recover in analogy to a like accident to a boy swimming in the canal, I think cannot apply. The duty toward persons passing in the fairway, whether in vessels or swimming, is widely different from the duty to one intruding against warning signs, and wrongfully occupying defendant’s property.

Therefore, the fall of defendant’s wires, not being a willful or wanton injury, violated no duty which defendant owed to the deceased.

The order setting aside the verdict for plaintiff and granting a new trial should be affirmed, with costs.

Jenks, P. J., and Kelly, J., concurred; Jaycox, J., read for reversal, with whom Blackmar, J., concurred.