Here, again, the intent is expressed with primary, even sole, reference to the widening and extending of the road. All this precedes the granting clause of the instrument, and all of it shows an obvious intent to grant merely such an interest as was necessary for the purposes in hand. In the absence of any instrument, there could be no possible question, under the authorities, that, no matter how broad or unqualified the language of the statutes, an easement only would have been acquired. How has the instrument given anything more?, It was made as the result of a prolonged consideration of a proposed improvement whose object was generally known-certainly to the corporation and the grantors-to acquire such an easement in the highway, as, under existing law, the city could and would take. The city did not seek the fee, and did not require it. The grantors gave with reference to the statute under which the road had been "regulated, laid out and continued." They gave for a nominal consideration. It is difficult to conceive of any reason why they should have intended to give more than that which, under recognized construction of the statutes, the city must be deemed to have intended to take. The owners "grant, release and forever quitclaim" so much of their lands as shall be necessary for the public road. It is given to be held "for the sole and only use of a public road forever." While it is quite true that the habendum clause, standing alone, would not cut down what would otherwise be a grant in fee, or at most a fee upon condition subsequent, yet I think we may here properly refer to the habendum as consistent with, and additionally expressive of, an intent characteristic not only of every part of the instrument, but of the precedent acts leading up to its execution. While the words of the habendum clause, considered alone, cannot, under the cases, be construed as a reservation of any part of the title, they are not to be disregarded when we seek to glean the intent from the entire instrument. If this were a regular, formal deed between parties for a valuable consideration, containing covenants, and passing a fee by the granting clause, then words limiting the use in the habendum would not convert the fee into an easement, but, at most, into a condition subsequent, for the breach of which there would be the right of entry in the grantor or his heirs. Nicoll v. N. Y. & E. R. Co., 12 N. Y. 127; Vail v. Long Island R. Co., 106 N. Y. 283, 12 N. E. 607, 60 Am. Rep. 449; Upington v. Corrigan, 151 N. Y. 143, 45 N. E. 359, 37 L. R. Â. 794. Such, however, is not the condition in the case at bar. The habendum does not cut down a grant in fee, but carries out the general intent of the deed.

Indirect support for the general conclusion I have reached is found in the case of Deering v. Reilly, 167 N. Y. 184, 60 N. E. 447.

It has already been pointed out that the title acquired where land is taken in invitum and by voluntary conveyance is to all intents identical. See supra. We have also seen that the proceedings by which the city acquired its rights under the instrument of 1795 were part of the general plan under which the lands of Molenor and Meyer were taken in invitum. Molenor and Meyer owned lands to the north of Striker, and refused to join in the "release" to the city. In Deering v. Reilly the Court of Appeals considered the nature of the title ac

86 N.Y.S.-49

and 120 New York State Reporter

quired by the city by the proceedings resulting in the assessment of damages before the mayor's court in 1795. In that case there was a stipulation that the city by its proceedings for extending Bloomingdale Road obtained only a right of way over the land taken. Gray, J., however, brushed the stipulation aside, saying:

"Even without this stipulation in the case, I do not think that the proceedings to continue and extend Bloomingdale Road over Molenor's lands could be said to have had any other effect than to create an easement over them for the use by the public as a highway. The city acquired an easement only, and not the fee, which it would acquire in the case of lands taken for the purpose of a street Subject to the public's right of way acquired by the city, the title and possession were always in the original owner and his successors in interest." Pages 191, 192, 67 N. Y., page 448, 60 N. E.

or an avenue.

*

I have examined the original record in the Deering Case, and find that the minutes of the common council hereinbefore referred to were before the court, together with the order for the warrant awarding substantial compensation to Molenor and Meyer "for their respective lands taken." This "taking" the Court of Appeals has held to have been the appropriation of an easement merely. If the eminent domain proceedings, pursuant to which Molenor's lands were taken, are held to have resulted in the acquisition of an easement only, I fail to see how the carefully framed instrument of 1795, with its, to me, clearly indicated intent, and its nominal consideration, and made as part of the one uniform scheme to improve and extend the road, should be held to grant something more, and something beyond the requirements or purposes of the city.

The plaintiff seeks to derive comfort from language in Deering v. Reilly, which says:

"Had Molenor conveyed the land to the city for or upon condition that it should be used as a highway, or had the city taken the land by eminent domain. a different question might be presented as to the title when the use of the land as a highway had ceased." Page 193, 167 N. Y. [page 449, 60 N. E.].

In view of the record which was before the court, showing that what was appropriated was taken by eminent domain proceedings, it is clear that the word "land," in the preceding extract, is used as distinguished from "easement." The city did take the easement by eminent domain. What the court held was that those proceedings were ineffectual to give the land in fee.

I am also of the opinion that a construction of the instrument in question as granting an easement, merely, was necessarily involved in the decision of the Court of Appeals in De Peyster v. Mali, 92 N. Y. 262. The instrument was in evidence, but was not mentioned or referred to in the opinion. I deem it unnecessary further to lengthen this memorandum by going into an analysis of the facts of that case. Having argued the question here on principle, I content myself with stating my interpretation of the court's conclusion.

The authorities cited by the plaintiff in support of his claim that a fee was conveyed, I find not applicable. I have considered them all with care; going to the original records, where available, to examine the respective deeds. They are generally distinguished on the broad principle of intent. A word more may be said as to the two authorities on which he chiefly relies. Nicoll v. N. Y. E. R. Co., supra,

was a grant to a private corporation. Obviously, there is a distinction between a grant to a private corporation and to a public municipality acquiring an interest in lands under statutes that have been construed to contemplate the taking of an easement only. In Vail v. Long Island R. Co., supra, there was the clearest intent to convey a fee. There was a formal deed, the same as between any two private parties, for a valuable consideration expressly stated, and there were the usual covenants of warranty. There were no recitals showing a contrary intent, and the sole point relied on was that in the habendum clause the use was stated to be for a highway only. That under such circumstances the habendum alone could not cut down the fee, I have already pointed out. There was absolutely nothing else in the deed to indicate intent. There were no preliminary recitals, nor previous history, nor other surrounding facts and circumstances which in any wise indicated an intent to limit a fee plainly granted in terms.

There should be judgment in favor of the defendant, dismissing the complaint of the plaintiff. Judgment accordingly.

GRAY et al. v. YORK STATE TELEPHONE CO. et al.

(Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. EMINENT DOMAIN-TELEPHONE POLES IN HIGHWAY-ADDITIONAL SERVITUDE. The erection of telephone poles in a rural public highway is an added burden to the owners of the adjoining land, who own the fee in the highway, the right to impose which must be obtained either by consent of the owners or by condemnation proceedings.

2. SAME INJUNCTION.

The owners of the fee of a highway may prevent the erection of telephone lines thereon for permanent use by injunction.

Appeal from Special Term, Broome County.

Action by Richard A. Gray and others against the York State Telephone Company and another. From a judgment in favor of plaintiffs (83 N. Y. Supp. 920), defendants appeal. Affirmed.

Plaintiffs are the owners of certain real property situated in the town of Union, county of Broome, containing 140 acres, together with the highway adjoining said real property, subject only to the right of the public therein for highway purposes. The defendant the York State Telephone Company is a domestic corporation organized under the transportations corporations law (chapter 566, p. 1136, Laws 1890), and owns and operates a telephone system and telephone exchange in the cities of Binghamton and Elmira, respectively. Said defendants are erecting poles and constructing a line of telephone wire between the city of Binghamton and the city of Elmira for the purpose of connecting and extending the business of said defendant York State Telephone Company. In February, 1903, negotiations were had between the defendants and plaintiffs relating to the purchase of a right of way by the defendant York State Telephone Company for its telephone poles and wires over the said highway, the fee of which is owned by the plaintiffs, but they were unable to agree upon the compensation to be paid therefor. Defendants then attempted to construct its line over said highway so adjoining the plaintiffs' real property, and, when the defendants had the telephone poles, in part, erected, this action was commenced, and the defendants were enjoined from erecting and maintaining and operating a telephone line across said premises, and from taking or attempting to take or hold possession of any part of plaintiffs' said property,

and 120 New York State Reporter

and from erecting a telephone line thereon, and from digging holes, placing cross-arms, and stretching wires on said poles, and from doing any other act on said premises tending to encumber them, or to prevent the free and unobstructed use thereof by the plaintiffs as they were theretofore used and enjoyed by them. An answer was served by the defendants, and, after a trial of the issues joined thereby, judgment was directed and entered permanently enjoining the defendants from erecting and maintaining their poles and line on and over said property, from which judgment this appeal is taken. The highway is a rural public highway, and not within the bounds of a city or village.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Roberts, Tuthill & Rogers (Theodore R. Tuthill, of counsel), for appellants.

R. B. Richards (Richard H. Thurston, of counsel), for respond

ents.

CHASE, J. The appellants contend that erecting telephone poles in a rural public highway, and stringing wires thereon, is not an added burden to the owners of adjoining real property, having the title to the fee of the highway within the bounds of which the poles are set, and over which the wires are run. A discussion of the subject in this court seems unnecessary, for the reason that the Court of Appeals, in Eels v. A. T. & T. Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640, has clearly held against the appellants contention. The material facts in that case are very similar to the facts in this case, and the court in that case held that a telephone and telegraph company had no right to appropriate a public highway to its own special and continuous use by erecting poles therein and stringing wires thereon, without the consent of the owner of the fee of the highway, and without acquiring the right so to do by condemnation proceedings. See, also, Peck v. Schenectady Ry. Co., 67 App. Div. 359, 73 N. Y. Supp. 794; Id., 170 N. Y. 298, 63 N. E. 357; Paige v. Schenectady Ry. Co., 77 App. Div. 571, 79 N. Y. Supp. 266.

An injunction may be issued at the suit of the owners of the fee of a highway to prevent persons or corporations from erecting a telephone line on and over the same for continuous and permanent use. Paige v. Schenectady Ry. Co., supra; Peck v. Schenectady Ry. Co., supra.

Even if the court has a discretion in regard to granting an injunction in a case where the facts are substantially undisputed, such discretion in this case has been exercised by the Special Term in favor of granting the injunction, and there is nothing before us to show that such discretion was improperly exercised or abused.

The judgment should be affirmed, with costs. All concur.

ALBANY COUNTY BANK v. PEOPLE'S CO-OPERATIVE ICE CO. et al. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) 1. NOTE-INDORSEMENT-DISCOUNT-HOLDER IN DUE COURSE.

Placing the proceeds of a discounted note to the credit of an indorser at a bank is not a payment therefor, so as to render the bank a holder in due course, within Laws 1897, p. 732, c. 612, § 96, providing that a holder in due course takes a negotiable instrument free from any defenses available to prior parties among themselves, and section 93, providing that, where the transferee receives notice of any infirmity in the instrument before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount paid. 2. SAME-DISHONOR-DEFECT IN TITLE-NOTICE.

Where a bank discounted a note by simply placing the proceeds thereof to the indorser's credit, dishonor of the note by the maker at maturity, and before the indorser had drawn the full amount of the credit, entitles the maker to set up the defense of failure of consideration as against the bank, under Laws 1897, p. 732, c. 612, § 93.

Chester, J., dissenting.

Appeal from Trial Term, Albany County.

Action by the Albany County Bank against the People's Co-operative Ice Company and another. From a judgment on a directed verdict in favor of plaintiff, and from an order denying a new trial, defendant People's Co-operative Ice Company appeals. Reversed. This action is brought on a promissory note of which the following is a copy: "New York, May 20, 1902.

"$1,000. Five months after date we promise to pay to the order of Edward McCabe One thousand dollars at Union Square Bank N. Y. with interest value received. The People's Co-Operative Ice Company. "S. Mehrbach, Prest.

"S. C. Blake, Treas."

There is no dispute about the execution of the note and its delivery to the payee. Edward McCabe, the payee, had been a regular customer of the plaintiff for eight or ten years. He kept an account at the bank, and always had a balance to his credit. On the 16th day of October, four days before the note became due, McCabe, at plaintiff's bank, presented the note to the cashier and asked him to discount it; and the note was accepted without further conversation, and McCabe's account was credited with the amount of the note, less 68 cents discount. When the note became due, it was duly presented for payment at the Union Square Bank, N. Y., and payment demanded, which was refused, whereupon the note was duly protested for nonpayment. On the 17th day of November, McCabe again called at the bank, and produced another note, exactly the same in every respect as the one previously discounted, except that it was payable six months after its date, instead of five months after its date, and asked the cashier to discount it; and such note was accepted without further conversation, and McCabe's account was credited with the amount, less 52 cents discount. On October 16th, at the time the first note was discounted, McCabe had to his credit with the plaintiff $1,580.14. The amount placed to his credit on discounting said note was $1,024.32, making the amount to his credit with the plaintiff on that day $2,604.46. That amount remained without further deposits, and without any checks being paid therefrom, until the day the second note was discounted. When the second note was discounted, the amount placed to the credit of McCabe as the proceeds of such note was $1,029.48. On that day-whether before or after the credit of the second note does not appearone check of $15 was paid by plaintiff. McCabe then had a balance of $3,618.94 to his credit. On October 29, 1902, the plaintiff sued the defendant appellant and said McCabe on said first note.