
    EMILY STEWART, Respondent v. THE METROPOLITAN ELEVATED RAILROAD COMPANY, Appellant.
    
      Streets in a city, as to ownership of the fee, presumption as to—Encroachment by an erection in the street, as to entitling to substantial damages.-^Case on appeal, effect of embodying in it a statement that it contains the substance of all evidence.
    
    An owner of premises abutting on a street in the city of New York, there being no evidence how the street was opened as a street, or as to the ownership of the fee thereof, is presumed to own the fee; and the erection of a permanent structure of an elevated railroad in such street in front of such abutting owner’s land, is an encroachment on his freehold and a trespass—and entitles him to recover such substantial damages as the evidence warrants.
    Where the case on appeal contains a statement that “The case is conceded to contain the substance of the testimony offered by either side upon the trial,” it will be presumed that the facts of the ownership of a particular house and lot, and that it abutted on a street, were proved by competent evidence when the record discloses on these points that the plaintiff testified orally, without objection, that she was the owner of and resided in the house and that it fronted on the street, giving the width of the lot on the street, and that a photograph of the house was received in evidence (not printed in the appeal book) and nothing further.
    
    Before Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    
      Appeal by the defendant from judgment in favor of plaintiff for $3,540 damages, entered upon verdict of a jury, with costs, and also from order denying motion for a new trial upon the usual grounds.
    . The plaintiff claiming to be the owner of the property No. 156 West Fifty-third street, brought this action for the damages claimed to have been sustained by her in consequence of the maintenance and operation of defendant’s railway in front of her property. The appeal book showed that evidence was admitted without objection to the effect, that the rental value of plaintiff’s-abutting property had been greatly diminished in consequence of such maintenance and operation.
    Other facts sufficiently appear in the opinion.
    
      Davies & Sapallo, attorneys, and of counsel for the appellant, argued:—
    Upon the trial, there was no evidence whatever of any right appurtenant to plaintiff’s premises in Fifty-third street. In fact the only proof of ownership of the premises was the verbal statement of the witness, to the effect, that she owned and resided in the house in question, fronting on Fifty-third street. No deed of the property was offered in evidence, and even if this oral testimony be sufficient to prove title to the premises in the absence of any objection, it is insufficient to show any of the dimensions of the lot, except those mentioned, to wit, eighteen feet nine inches in width on the street, and it is wholly insufficient to show any easement or property rights in Fifty-third street. No evidence was offered that the street was opened under the act of 1813, or as to the title of the land forming the bed of the street, and there was no evidence-of any property rights or easements appurtenant to the premises. The record shows that the balance of the plaintiff’s case was made up of testimony to the effect that the maintenance and operation of the road in the street diminished the rental value of the premises. The record does not show that any evidence was offered that the light, or the air, or the access was in any way interfered with; nor that cinders, nor other substances were thrown upon her lot. The whole case, therefore, rests upon the bare assertion that the plaintiff owns a house fronting, upon Fifty-third street; that the defendant constructed, maintained and operated a road through the street whereby the rental value, of her premises was lessened. Under these circumstances we claim that no cause of action was shown by the evidence offered by the plaintiff.
    As shown by the decision in the court of appeals, in the case of Story, the whole foundation for the action is the proposition that some distinct right in the street owned by the plaintiff has been, without compensation, taken or interfered with by the defendant.
    
      A. P. & W. Man, attorneys, and Henry H. Man of counsel, for respondent, argued:—
    I. It was proved without controvérsy or objection that the plaintiff was in possession and ownership of the property; that it fronts on Fifty-third street in the city of New York. It has been determined again and again that the maintenance and operation of an elevated railroad in one of the public streets of New York is a use of the street for other than the lawful street purposes, and constitutes an interference with the easements of light, air and access to which property, abutting on a street in the city of New York, is entitled. Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268.
    II. There could be no direction of a verdict for nominal damages, in the face of testimony by the defendant’s own witnesses that the plaintiff had sustained substantial damage. By reason of a decrease in the rental value of her property of from $150 to $200 a year through the maintenance and operation of its railroad.
    III. The general rule has been laid down again and again that abutting owners on public streets in cities have easements of light, air and access appurtenant tó their property and are entitled to protection against interference with their enjoyment. This rule is laid down in Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268, as having been decided by Story v. El. R. R., see page 287 of the Lahr case. See also page 289, where the court deals with the attempt to distinguish the facts of that case from those in the Story case. The Lahr case was one involving property abutting on a street opened under the act of 1813 applicable to all street openings in the cities of the state of New York. The same rule was laid down as applicable where the street was dedicated by a prior owner. Natl. Ex. Bank Case, 53 N. Y. Super. Ct. 511. Glover Case, 51 Ib. 1.
    IV. The presumption in the absence of proof is that the street exists in accordance with the law of the state of New York. This is the common law of England as modified by the act of 1813.
    If there are any different rights in any street in the city than those existing under the common law as so modified by statute, it must be by virtue of peculiar circumstances sufficient to make the case exceptional. Such circumstances will not be presumed to exist. The defendant should have proved (if it claimed) that they existed.
    By the common law a city street, like any other highway, exists only as a place over which the public has the right to pass and repass lawfully. An elevated railway is an unauthorized encroachment upon the right of an abutting owner on such a street. Matter of 17th St., 20 Johns. .262, 270 ; Jackson v. Hathaway, 15 Ib. 448; Cortelyou v. Van Brundt, 2 Ib. 357, 363.
    
      
       This is not to be regarded as intimating that ownership of realty cannot be proved by proper and sufficient evidence of possession under claim of ownership, but only as holding that it was to be presumed that there was proper and sufficient evidence of possession under claim of ownership to establish prima facie the fact of ownership.
    
   By the Court.—Ingraham, J.

The case on appeal contains a statement that The case is conceded to contain the substance of the testimony offered by either side upon the trial of this action.”

Plaintiff testified that she was the owner and resided in the house in question fronting on Fifty-third street and being eighteen feet nine inches in width on the street. The fact of ownership, and that the premises abutted on the street, must be presumed to have been proved by competent evidence. A photograph of the house in question was received in evidence, but is not printed with the case.

There is no evidence to show how Fifty-third street in front of the premises in question was opened as a street, or as to the ownership of the fee of the street. The abutting owners were, therefore, presumed to own the fee of the street. See Wager v. Troy Union R. R. Co., 25 N. Y. 529, where Smith., J., in delivering the opinion of the court says, “It is an established inference of the common law, that the proprietors of the land adjoining a public highway are the owners of the fee of said highway; that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side presumptively own the soil in fee to the centre of the highway. There is no distinction in this respect between the streets of a city, and highways in the country.”

The plaintiff being presumed to be the owner of the fee of Fifty-third street, the erection of the defendant’s structure on the street was an encroachment upon her freehold and a trespass. Wager v. Troy Union R. R. Co., supra.

It was, therefore, no error to deny the motion of the defendant to dismiss the complaint and the motion to direct a verdict for nominal damages only.

As the only exceptions that appear in the case are the exceptions to these rulings, no other question is presented.

The judgment should therefore be affirmed with costs.

Freedman, J., concurred.  