
    Patrick Skelly, Respondent, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants; Alma L. Coddington, Defendant.
    
      Easements in possession of elevated railroads — a plaintiff seeking to restrain such use must prove title anterior thereto.
    
    Where an action is brought against the elevated railroad companies of New York for an injunction to restrain their operation in a street in which they are in possession of certain easements, and for rental damages, the plaintiff must show that he had good title to the premises in question anterior to the commencement of the railroad companies’ possession.
    
      
      It seems, that in order that a decree may be made requiring the payment of damages upon the delivery of a deed by the plaintiff to the railroad company, it is necessary that the plaintiff establish a title anterior in time to the railroad company’s occupation of the premises.
    Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Superior Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of May, 1895, upon the decision of the court rendered after a trial at an equity term of said court.
    
      Sidney Smith, JulÁen T. Davies and J. G. Eushby, for the appellants.
    
      Eugene D. Hawkins, and E. W. S. Johnston, for the respondent..
   Van Brunt, P. J.:

This is an action brought for an injunction against the operation and maintenance of the elevated railway in front of the premises-known as No. 1222 Second avenue, and the premises in the rear thereof, and for rental damage to said premises.

The objection was taken upon the trial, and also by the exceptions filed to the decision of the court, to the right of the plaintiff to recover upon the ground that he had proved no title to the premises, to which the easements alleged to have been taken by the-appellants were adjacent, prior to the year 1889, the appellants’ road having gone into operation, and the easements having been taken by the appellants, in the year 1879. The only evidence upon the question of title is a statement of one of the witnesses, Joseph Kalish,. that he bought the premises, 1222 Second avenue, from a builder in 1884, and he showed that he was in possession of these premises up to the time that he conveyed the same to the plaintiff in 1889, which deed was offered in evidence.

It is to be observed that an injunction is ordered unless the appellants pay upon the tender of a deed conveying these easements. It necessarily follows that before the court can make a decree of this-description, independent of any other consideration, the party required to tender the deed should show that he had title to that which he was required to convey; and where it appears, as it does. in the case at har, that the title to the abutting lot certainly does not extend further back than 1884, and that at that time the defendants were in possession of the easements, it would seem that there was no evidence that he had a good title to tender, so as to comply with the condition upon which he would be entitled to the injunction.

That it is necessary, in order that there should be a recovery for these easements, that a title should exist and be proven in the plaintiff, seems to be established by the cases of Dean v. Elev. Ry. Co. (119 N. Y. 540), and Hughes v. Same (130 id. 14).

It seems to be assumed in too many of these cases that all that it is necessary to prove is that the plaintiff is the present owner of the abutting lot, and that the defendants are operating their elevated railroad, in order to entitle the plaintiff to recover. We think that the possession of the elevated railroad was notice to all the world of a claim upon the part of the defendant in respect of that property, as has been held in the case of Mitchell v. Met. El. Co. (56 Hun, 543), and in the same case (134 N. Y. 11).

The railroad being in possession, it was necessary to show, upon the part of a party seeking to disturb that possession, some title anterior to the commencement of the possession of the appellants.

These easements are matters which may be severed from the adjacent property, may be the subject of conveyance, or the subject of possession ; and as a result some title anterior to possession must be proven as the basis of an injunction, and a reasonably good title should be shown in order to entitle a party to payment as a condition of conveyance. The burden of establishing this proposition is clearly upon the plaintiff, and that burden not having been met in the case at bar, the recovery had cannot be sustained.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Rumsey, Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, costs to appellants to abide event.  