She then brought the second of these actions to restrain the defendant from erecting or maintaining a fence along the south side of its right of way in front of plaintiff's premises. For a considerable period of time, Hill had maintained a sidewalk on the south side of the railroad right of way in front of his house, but it had rotted away and disappeared some time prior to the commencement of these actions.

During the years from 1855 the public also used for a short cut the railroad right of way to pass from Park street to Main and Jay streets, the latter streets being northeasterly of the premises in question, using for that purpose in the main the southerly side of such right of way and from the "isolated lot" westerly the same way used by Hill and his grantees.

The extent to which the paths across the tracks were used by those · occupying the "isolated lot" is not clearly shown in the evidence, nor does it clearly appear as to the extent the way was used from the "isolated lot" to Park street. The evidence, however, discloses that these ways were well-defined and showed clear and marked indications of travel upon the ground.

[1] Upon these facts we turn to a consideration of the rights of the parties. The plaintiff contends that there was a way by necessity reserved to Hill, and which has passed to her over the premises granted by him to the railroad company, and for that purpose invokes the rule of law that if A. conveys land to B., leaving other land of A. to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant. It is not necessary to consider here the reason for this rule. It has been too long settled to need discussion. Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; Dales v. Ceas, 5 Wk. Dig. 400; Wilmurt v. McGrane, 16 App. Div. 412, 45 N. Y. Supp. 32; Jones on Easements, § 306; 14 Cyc. 1176. The fact that the grantee is a railroad corporation, it has been held, does not change the rule.

"When a sale is made of a narrow strip of land through the center of a farm, the presumption that the parties do not intend to leave the grantor with no means of reaching or using the land beyond the strip sold is certainly as strong as when land is sold in other shapes which would require a way of necessity of much greater length." N. Y. & N. E. R. R. Co. v. Ry., Coms., 162 Mass. 81-84, s. c., 38 N. E. 27, 28.

[2] The authorities, however, limit the rule in its application to cases only where the burden is apparent, continuous, and strictly necessary for the enjoyment of land retained by the grantor. Outerbridge v. Phelps, 58 How. Prac. 77; Pettingill v. Porter, 8 Allen (Mass.) 1; s. c., 85 Am. Dec. 671; Jones on Easements, § 315; Buss v. Dyer, 125 Mass. 287-291; Wells v. Garbutt, supra. The fact was, and this must have been apparent to the grantee when it purchased its right of way of Hill, that the one parcel of land of which the plaintiff now owns a part was so isolated by such purchase as to leave no way to pass to and from the same except over the land granted. Sufficient necessity, perhaps, existed in favor of the "isolated lot" to entitle Hill to a way over the land granted, and if that were the sole question in these cases, it might perhaps be solved without great difficulty. The way to Park street, however, claimed by plaintiff, as we have seen, passes along the

south side of defendant's right of way, and not only over the land granted by Hill to the railroad company, but also that subsequently purchased by the company of Symonds. Plaintiff is therefore here. claiming something further than that contained in the rule stated. The rule limits the way by necessity to the lands granted, and it has never been held that a way of necessity can be claimed in favor of a grantor of lands over lands not granted by him, nor over the lands of a stranger. Richards v. Attleborough Ry. Co., 153 Mass. 120, 26 N. E. 418; Tracy v. Atherton, 35 Vt. 52; s. c., 82 Am. Dec. 621; Oliver v. Hook, 47 Md. 301; 13 Am. Dec. 747, note; Jones on Easements, § 314. So far, therefore, as the claim of the plaintiff is made to a way by necessity to Park street, it is clear that she must fail.

[3] Plaintiff's right of way claimed across the tracks of the defendant's road must also fail so far as such claim is based upon a way by necessity through her grantor in title, for reasons that we will now consider. As we have seen, the way claimed by plaintiff across the railroad tracks is an entirely different way from that used in connection with the Hill house. The necessity for a way must exist at the time of the conveyance and to the whole tract granted. If this necessity did exist, Hill exercised his right to select the way, and when this was done that right was exhausted. By dividing the lot and conveying away the different parcels, he could not give to his grantee rights which did not exist in himself nor attach to his lands. When he located one way, he could not burden his grantee with further ways. This "isolated lot" was not, so far as the proof shows, situated so as to have more than one way of necessity. While the rule preserves access, it does not give two modes of access and a double right of way, except possibly under most unique circumstances which do not exist in this case. Kings County Fire Ins. Co. v. Stevens, 101 N. Y. 411, 418, 5 N. E. 353; Nichols v. Luce, 24 Pick. (Mass.) 102, 105, 35 Am. Dec. 302. A way of necessity can be presumed to have been granted or reserved only when the necessity existed at the time of the grant. Jones on Easements, § 132. The necessity for a way to plaintiff's lot could not have existed at the time of the grant to the railroad company, for it was not until over ten years later that the "isolated lot". was divided and the conveyance made of plaintiff's lot by Hill to her father. While it could be seen at the time of the conveyance by Hill to the railroad company that the "isolated lot" was cut off from a way out, and that a way would have to be provided, yet it cannot be said to have been within the contemplation of the parties that more than one way should be given if it was to pass over the land granted. Plaintiff's lot was a part of the entire Hill lot, and was bound by the action of Hill in laying his right of way. He fixed such right across the tracks, if at all, immediately following the grant, and the plaintiff's property, then being a part of the "isolated lot," had the use of such right of way. When it was conveyed to plaintiff's father ten years later, such right of way still existed for the "isolated lot," but no further way could be given against the railroad company. Plaintiff's contention, therefore, to a right of way by necessity over the railroad lands must fail, and we turn to a consideration of the other and perhaps the more difficult question raised

by plaintiff's counsel that plaintiff is entitled to these ways by prescrip

tion.

[4] Attention is called to Treadwell v. Inslee, 120 N. Y. 458, 465, 24 N. E. 651; Parker v. Foote, 19 Wend. 309; Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202, 56 N. E. 540; Ward v. Warren, 82 N. Y. 265; Hammond v. Zehner, 21 N. Y. 118; Jones on Easements, § 186, and kindred decisions holding, in effect, that the visible, open, notorious, continuous, and uninterrupted use of a way for 20 years raises a presumption that the use was under a claim of right, and that the burden is upon the party alleging that the use has been by virtue of license or permission to prove that fact by affirmative evidence. These cases undoubtedly state the law correctly under the facts in each particular case. It is sufficient to say, however, with reference to these cases that none of them represents a case where a way is claimed by prescription over the tracks of a railroad company located and in use in a country district, but they are cases where the ways claimed were over property adapted to private purposes. The presumption noted, however, is not conclusive as against other and further facts. It serves only to shift the burden to the owner of the title to show the true character of the use, and where there are other facts, tending to justify a different inference and leading fairly to a contrary conclusion, they are to be taken into account. Colburn v. Marsh, 68 Hun, 269, 22 N. Y. Supp. 990; A. B. N. Co. v. N. Y. Erie Ry. Co., 129 N. Y. 252, 29 N. E. 302.

The diligence of counsel and my own effort have not enabled us to find a reported case in this state exactly parallel with the one at bar. In Concklin v. N. Y. C. & H. R. R. Co., 149 App. Div. 739, 134 N. Y. Supp. 191, there are many suggestions by the learned judge writing the opinion which support the contention of the defendant in this case. That case, however, was one where the way was claimed by plaintiff over property appurtenant to defendant's railroad station and used generally by the public to pass to and from the same. It was there held that plaintiff could not acquire an easement by prescription in the absence of some decisive act on her part indicating a use separate and exclusive from the general use by the public.

In Keller v. Erie Ry. Co., 183 N. Y. 67, 75 N. E. 965, the court said: "I think that it was not within the power of the defendant to permit, or to suffer, persons not in its employment to walk upon and along its tracks at a place where there was no highway and but an intersection of railroad tracks, and that no length of acquiescence in their doing so, under the circumstances of this case, could create a right of user, by license, or by sufferance. This ought to be clear from section 53 (83) of the Railroad Law * (Laws 1850, c. 140, § 44), which was intended to protect the traveling public as well as the railroad companies. It reads that: 'No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.' It is not easy, if at all possible, to see how any right, as by license, could be acquired through acquiescence to do something which was so clearly in violation of the statutory inhibition. An act expressly prohibited by the public statute is, in its inception and always must continue to be, unlawful."

While that was a negligence case, yet the court was considering, in the expression of its views, the right of individuals to walk along and

to cross railroads and of the railroad company to grant such right, which is the question presented for consideration in this case.

In Massachusetts, on the contrary, it has been repeatedly held that a right of way across the tracks of a railroad company may be acquired. by a private person by prescription and against a statute similar to that referred to, prohibiting persons walking or standing on any railroad tracks. Turner v. Fitchburg Ry. Co., 145 Mass. 433, 14 N. E. 627; Gay v. Boston & A. R. Co., 141 Mass. 407, 6 N. E. 236; Inhabitants of Deerfield v. Conn. Riv. R. R., 144 Mass. 325, 11 N. E. 105, 110; Fitchburg R. Co. v. Frost, 147 Mass. 118, 16 N. E. 773; McCreary v. Boston & M. Ry. Co., 153 Mass. 300, 26 N. E. 864, 11 L. R. A. 359..

In Sapp v. N. C. Ry. Co., 51 Md. 115, the facts showed that for a period of 25 years persons, including the plaintiffs, walked to and from their houses, which fronted on the defendant's railroad, on the company's ground alongside of the company's tracks as their footway when going to and from their houses to North avenue, and that such user had been continuous and uninterrupted during that period, and had never been interfered with by any one connected with the railroad. No other footway from the house was feasible, and the same was used as a right, and not as a favor from the company. It was held by the court that a railroad corporation had no power or right to grant an easement of footways for persons to walk along their tracks or by the side of them; that if such power existed and were exercised, it would be subversive of the very purposes for which railroad charters are granted.

[5] In the case under consideration, I do not deem it important to determine whether a private way may be acquired across the tracks of a railroad in this state by prescription, despite the statute referred to in the Keller Case. Independent of the statute and its effect, the plaintiff is not entitled to succeed in this action.

To determine in the present case whether the use made of the right of way was adverse, although concededly for the prescribed period and open and notorious so far as the plaintiff and her grantor are concerned, we must consider the parties, the nature of the use made of the railroad property, and of plaintiff's alleged rights of way, with all the facts and incidents which challenge the character of the claim to adverse use and the claim of right to the ways in the plaintiff.

It is a matter well understood that in the early days when this right of way was acquired, there was no considerable demand for a railroad in the territory through which it passed. Facilities at the beginning were provided to meet the public demand as needed from time to time. It and other agencies have developed the country through which it passes so that there is increased demand for its use and its development, and it may well be that in the near future more tracks will be needed over its right of way.

It would be unreasonable to hold that by the mere nonuser of a part of a railroad location side by side with the part in actual use rights could be acquired by a citizen's using the same even for a right of way, because they had enjoyed the permissive and not a hostile use of such part of the railroad company's lands. The construction of the track

or tracks upon a part of the location throughout its length is the best assertion of right to the entire width that could, in the nature of railroad construction, operation, and development, be demanded.

The defendant and its predecessors in title have never, so far as the proof shows, disclaimed ownership to any part of the ground originally purchased of Hill. It cannot be assumed that in order to maintain its title, it must cover its whole extent of right of way with tracks or erections or object to the use of its right of way by trespassers, otherwise it shall subject such right of way to ways by prescription. Ordinarily, as is well understood, a railroad actually occupies with its tracks only a part of the width of its right of way. It cannot be urged that because it does not use the entire distance it has lost its right to the ground adjacent to its tracks on either side by such an omission to occupy. The presence of the railroad tracks constantly in use was a defiant badge of ownership. It is the only practical assertion of title and user that can be made by a railroad company of its right of way in country districts. The fact that the right of way is not bound by railroad ties and rails over its entire space, and that such space may not within its entire distance be literally bound with an iron grasp, does not prove that a railroad company is not in the exclusive occupation of its entire right of way. There was no exclusive use of the ways on the part of the plaintiff; no use of such ways which interfered at all with the use of its entire right of way by the railroad company in the manner in which such ways are used. There was no use by the plaintiff of any ways which seems to have been brought home to any officer of the company. The fact that a few board steps were used to get down to the ditch from the embankment on the side of the track was not such a use in itself as would naturally have attracted the attention of any of defendant's officials passing over the road unless they made a particular examination. Nothing was done by the plaintiff which was in any wise hostile to the use of its right of way by the company. The roadbed proper was not covered with any planks at which it is claimed the plaintiff had a way across its tracks such as is usually provided for crossings.

The plaintiff's use of the ways so far as it was exercised was undoubtedly visible, open, and notorious, in that she and others passed openly over or along the tracks of the company from time to time. Such use would undoubtedly have arrested, and should have arrested, the attention of an individual owner of property, but it might well be questioned whether it would or should be held to attract the attention of railroad officials charged with the duties of looking after and protecting hundreds of miles of railroad. Such use might, in the ordinary case between individuals, be held to import knowledge, but in the present case I am of the opinion that it is not sufficient. Not only do the facts and the situation presented support the theory of a lack of knowledge of the use of the ways by plaintiff, but that the use was of such a character as is commonly made of railroad property in the country without any thought or question that it will ripen into a claim. If there was no such visible, open, or notorious use of the ways by plaintiff as against the defendant such as to create the presumption of knowledge, then the plaintiff, to succeed, must establish that the use and claim of