Opinion of the Court, per VANN, J.

it would be cogent if not conclusive proof of that strict necessity, which does not create the easement, but is simply evidence as to the intention of the parties. If, on the other hand, it appeared that owing to the slight declivity the accumulation of water was insignificant and that the mill property was worth substantially as much without the right in controversy as with it, there would be no proof of "necessity" and nothing upon which an implication in favor of the mortgagor or grantor could rest. Even the dimensions of the pond are not furnished us, and we cannot compare its extent with and without the two acres, although it appears to extend partly across one lot and entirely across another before it reaches the lands of the plaintiff. When it is claimed that an easement exists by necessity, evidence of the necessity must be given. (Stuyvesant v. Woodruff, 47 Am. Dec. 156; Gayetty v. Bethune, 14 Mass. 49, 55; Elton v. Pitman, 98 id. 50.)

While absolute physical necessity need not be shown, as in the case of land-locked premises, or the support of a wall, there must be a reasonable necessity, as distinguished from mere convenience. (Root v. Wadhams, 107 N. Y. 384; Hollenbeck v. McDonald, 112 Mass. 250; Berry v. Brown, 6 Caldw. 98; Cooper v. Maupin, 35 Am. Dec. 464, note.)

But in the case before us, where certainty is required, all is conjecture. There is neither finding nor evidence that, in order to run the mill with substantially undiminished efficiency, it is necessary to maintain the dam at such a height as would cause the water to flow over the plaintiff's land.

Upon the facts as found, we think it would be unreasonable to hold that the mortgagor intended to reserve any right in the nature of an easement over the mortgaged premises, or that the mortgagee understood when he accepted the security that it was cut down in extent and reduced in value by the fiction of an implied reservation.

The judgment should be affirmed, with costs.

All concur, except HAIGHT, PARKER and LANDON, JJ., dissenting.

Judgment affirmed.

Statement of case.

THE PORT JERVIS, MONTICELLO AND NEW YORK RAILROAD COMPANY, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

It seems that, under the provision of the General Railroad Act (§ 28, chap. 140, Laws of 1850), authorizing a corporation organized under it to intersect, join and unite its railroad with any other railway," upon the grounds of the company owning the road so intersected and requiring the latter company "to grant the facilities" needed for the purpose, the right so provided for is an interest in lands and can only be created by a written instrument; a verbal agreement attempting to create it is void,. under the Statute of Frauds.

In an action to recover damages sustained by means of the alleged unlawful severence by defendant of the connection of its railroad with that of the plaintiff, to compel defendant to restore the connection and to restrain further interference therewith, it appeared and was found that the original connection between the two roads was under a temporary parol agreement between the companies then owning them by which the owner of plaintiff's road was permitted to make the connection and to use the tracks, depot, yard and turn-table of the other company without charge; subsequently fifty dollars per month was charged for such use; when plaintiff took possession and asked permission of defendant to make use of the accustomed facilities, permission was granted upon plaintiff's agreement to pay $100 per month, which was paid. Defendant thereafter notified plaintiff that, after a date specified, the use of such facilities could not be continued unless plaintiff would pay $300 per month therefor, which, not having been paid, defendant, after giving notice to plaintiff to discontinue, itself severed the connection between the two tracks. Held, that the complaint was properly dismissed.

(Argued March 15, 1892; decided April 26, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 12, 1890, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.

This was an action to recover damages from the defendant for unlawfully severing the connection between its railroad track and that of the plaintiff at the village of Port Jervis; to compel the defendant to restore such connection and to restrain further interference therewith.

Statement of case.

On the 2d of September, 1869, the Monticello and Port Jervis Railway Company was organized to construct and operate a railroad from Monticello, in the county of Sullivan, to Port Jervis, in the county of Orange, a distance of about twenty-three miles. The road thus projected was subsequently built, and on the 25th of August, 1875, passed with the rights of the original company, through the foreclosure of a mortgage, to a new corporation organized under the name of the Port Jervis and Monticello Railroad Company. In November, 1886, the road and all its appurtenances was sold by a receiver and conveyed to the plaintiff, which was authorized by its charter to maintain and operate it and also to build an extension thereof.

The defendant is a railroad corporation, operating a railroad extending from the city of New York to Lake Erie, passing through the village of Port Jervis. Said road was owned by the Erie Railway Company from 1868 until 1875, when it passed into the hands of a receiver, and in 1878, it became the property of the defendant through the process of foreclosure.

The Monticello and Port Jervis Railway Company built its own road but did not operate it, having arranged with the Erie Company to manage it and to furnish the rolling stock therefor, in consideration of a certain sum per mile. The track of the former company was connected with one of the tracks of the latter at a point on its land, about 2,200 feet easterly of its passenger station at Port Jervis. The frog for the connection was furnished by the Erie and has been kept in repair by that company and its successors. The trains, after leaving the Monticello road, passed upon the track of the Erie to its passenger and freight station and to its turn-table, where the engines were turned. They also remained in the Erie yard during the interval between their arrival and departure. This method of operation continued until the first of plaintiff's predecessors disappeared through foreclosure proceedings and the second was organized. During this period no charge was made by the Erie Company for the use of its tracks, depot, yard or turn-table. When the Port Jervis and Monticello

Statement of case.

Company came into possession it provided its own rolling stock and operated the road itself. It was permitted by the receiver then in charge of the Erie to use the same facilities that had been extended to its predecessor, without charge, except for the use of the turn-table. When the defendant was organized and took possession of the Erie road permission to use its tracks, yard and depot without charge was withdrawn and the sum of $50 per month was charged for such use and, although payment thereof was not exacted owing to the financial condition of the plaintiff's predecessor, it formed a part of the monthly statement of the accounts between the two companies. Certain payments, however, were made by the Port Jervis and Monticello Company to various agents of the defendant at Port Jervis until the sale and reorganization in 1886, when the plaintiff took possession, and thereupon asked permission from the defendant to make use of the accustomed facilities. Permission was granted "under an agreement, whereby the plaintiff was to pay the defendant the sum of $100 per month for such use thereof and was thereafter to make no payments to agents of the defendant for services in connection with the business at Port Jervis." Payments were made at that rate until March, 1888. In the meantime the plaintiff had projected an extension of its road from a point about four miles from Port Jervis to Summitville, where it intended to connect with the Ontario and Western railroad, which was a competitor of the defendant. The plaintiff was notified by the defendant, prior to March 1, 1888, that after that date use of said facilities could not be continued unless the plaintiff would pay $300 per month therefor. No payment has been made for such use since March, 1888, although the user has continued, except during a short interval, the same as before. June 21, 1888, after a second notice to discontinue had been given, the defendant severed the connection between its track and that of the plaintiff, but on July 20, 1888, the connection was restored pursuant to the terms of a temporary injunction and since then until the trial of this action, the plaintiff has used said facilities, for which it has paid nothing. SICKELS-VOL. LXXXVII. 56

Statement of case.

The extension to Summitville has been completed and is substantially ready for operation. No written agreement was ever made for the use by the plaintiff or either of its prede cessors of the tracks, yard, depot or turn-table in question, with the defendant or its predecessor.

The trial judge, after finding the foregoing facts, in substance, found as conclusions of law, that the right to use the tracks, etc., was an interest in real estate that could be granted by a written instrument only; that the permission to use said facilities, whether with or without charge, was a license revocable at the will of the defendant and that such license having been lawfully revoked, the plaintiff could not maintain this action. The complaint was dismissed without costs, but the temporary injunction was continued for sixty days to enable the plaintiff to move for a commission under the statute to fix the points and terms of connection between the two roads.

The affirmance by the General Term was placed upon the ground that the evidence, which was to some extent conflicting, abundantly sustained the decision of the trial court and that even if it were conceded that an understanding was reached that terminal facilities should be accorded without charge, no time was specified during which that arrangement should

continue.

Further facts are stated in the opinion.

T. F. Bush for appellant. The original intersection which was established by mutual arrangement between the then exist ing corporations, was in strict conformity to the statute which created, regulated and defined the rights, privileges and franchises of both corporations. It was a practical location of the terminus of the plaintiff's road, and the rights of the parties were thereby permanently established. The law relating to estates or interests in real property arising out of private contracts, has no application whatever to this case; the whole matter is governed by the Railroad Act. (Laws of 1850, § 28; In re N. Y., L. E. & W. R. R. Co., 44 Hun, 215; Att.-Gen. v. N. A. Ins. Co., 82 N. Y. 172; In re Kerr, 42 Barb. 119;