
    James Roosevelt et al., as Trustees, etc., Plaintiffs, v. The N. Y. Elevated Railroad Company et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1908.)
    Easements — Nature and creation — Creation by prescription — Continuity of user — Interruption; Acquiescence.
    In establishing an easement hy prescription, a user of an elevated railroad with two tracks, one on each side of the street with an open space between them, for seventeen years is interrupted by the construction, at the end of that period, of a third track, erected between the original tracks, where the user began under legislative authority to construct, maintain and operate the two original tracks only, and where the third track was built so that the original tracks helped to support it and it became an integral part of a single structure composed of three tracks which enabled the company to run more trains and carry more passengers on the original tracks than was possible before the third track came into use and whereby the burden upon the servient estate was materially increased before the expiration of twenty years.
    Acquiescence, on the part of the owner of property affected hy the easement, in the use of the two original tracks for seventeen years, could not he availed of to cover their use when increased in weight, size and traffic capacity by a third track.
    Action for an injunction.
    Skinner & Bernant, for plaintiffs.
    Charles A. Gardiner, for defendants.
   Davis, J.

This action was begun August 21, 1902, and was brought to restrain the defendants from operating and maintaining an elevated railroad in front of the plaintiffs’ premises, ¡Nos. 29, 31, 33 and 35 ¡Ninth avenue, borough of Manhattan, ¡New York city, and to recover damages alleged to have been suffered by plaintiffs by the trespassing upon and the appropriating of the easements appurtenant to the plaintiffs’ premises on ¡Ninth avenue, in the constructing, maintaining and operating of a three-traclc elevated railroad by defendants. It appears that an elevated railroad with two tracks, one on each side of ¡Ninth avenue, with an open space between the tracks, was erected, maintained and operated in May, 1880. In 1897 a third track was erected between the original two tracks. This third track was used for express trains. The defendants claim that as the two tracks erected in 1880 had been continuously used for a period of over twenty years prior to the commencement of this action in August, 1902, it has acquired an absolute right by prescription to use the same without any liability to plaintiffs in this action, and that the only damages, if any, the plaintiffs can recover in this action are those suffered by reason of the construction, maintenance and use of the third track since 1897. Defendants’ entry and user began in 1880, and were made under legislative enactments and not under a general claim of title. Hindley v. Manhattan R. Co., 185 N. Y. 335, 350. This appears from defendants’ answer. Therefore, these legislative acts, being the origin of defendants’ user, determine the nature of the entry and the extent of the user. And it must be held that nothing was claimed by the defendants beyond and outside of this definite legislative grant. “ The right derived from user can never outrun or exceed the user in which it had its origin.” American Bank N. Co. v. N. Y. El. R. Co., 129 N. Y. 252, 266. Briefly, then, the defendants received legislative authority to construct, maintain and operate for public use and conveyance of persons and property an elevated railway of two tracks along ¡Ninth avenue on the opposite sides thereof and in front of plaintiffs’ premises, and each of said tracks was not to exceed five feet in width between the center of the rails. The right to use the open space between these tracks for a middle track was not included in this grant. Auchincloss v. Metropolitan El. R. Co. 69 App. Div. 63, 66, 74. The extent of defendants’ user being thus fixed it remains to determine whether the construction of the third track in 1897 was such an interruption of that use as to prevent the acquiring by prescription of a title to plaintiffs’ easement before the bringing of this action in 1902. The two original tracks had been in use about seventeen years before the third track was built. During that period and from time to time various additions had been made to these tracks in the way of platforms, switches and side pathways. Then the third track was built between the two outside tracks. The outside tracks helped to support this third track, which then became an integral part of a single structure composed of these three tracks, and thus the defendants were enabled to run more trains and carry more passengers on the original tracks than was possible before the third track came into use. The user here was materially changed in the seventeenth year after entry by enlarging the structure to one of three tracks. Thus the burden upon the servient estate was materially increased before the expiration of twenty years. Defendants’ right by prescription depends, among other thing’s, upon the acquiescence of the owner of the easement in defendants’ appropriation of it. In the case at bar it may be admitted that there was such acquiescence in the use of the two tracks without the third track for seventeen years, but such acquiescence cannot be availed of to cover the use of the two tracks increased in weight, size and traffic capacity by a third track. American Bank N. Co. v. N. Y. El. R. Co., 129 N. Y. 252. At the completion of this third track the structure should be regarded as a whole, whose effect upon plaintiffs’ easement it would be quite impracticable to dissect. Lahr v. Metropolitan El. R. Co., 104 N. Y. 268, 295. The defendants cite the case of Hindley v. Manhattan R. Co., 185 N. Y. 335, as authority for the claim that the prescriptive right acquired by the defendants was not affected by the fact that during the period of adverse user a third track was constructed upon the original structure, and that trains were run upon this track. But that case differs from the one at bar. The question of a third track was not involved there, nor was defendants’ user interrupted during 'the twenty years. It does not support defendants’ contention. Yor is the Lewis case authority for defendants’ claim. 162 N. Y. 202, 203. In that case the structure was a viaduct of masonry fifty-six feet wide and seven feet high, and had been used, every foot of it, by the railroad company uninterruptedly from 1873 to 1894. In the case at bar the structure claimed to have been used for twenty years is a metal structure of two tracks separated from each other by a wide open space which had never been used or occupied by the defendants. As already stated, the extent of defendants’ user is determined by the terms of the legislative grant, and these terms do not include the open space between the two original tracks now occupied by the third track. In the Auehincloss case, 69 App. Div. 63, 70, Justice Ingraham writes that There is no provision in this •act of 1867 which authorizes the construction or maintenance of a third track, or the appropriation or occupation of any portion of the street, except so far as was necessary to construct two tracks, one upon each side of the street, and the turnouts and connecting tracks between the two tracks authorized by section 5. * * * We have, therefore, an act by which a railroad company is authorized to erect in certain streets in the city of Yew York a track upon each side of the street, limiting the right of the company to the erection of two tracks, with no authority to construct in the street a third track.” Keeping in mind the difference between the using of this solid viaduct of masonry for railroad traffic and the use of these two elevated tracks, with no user of the space between, we can understand how certain language of the Lewis case (p. 224) applies to the viaduct, but not to the span between the two tracks of the elevated roads. Referring to the viaduct the court says: “ She could claim no damages on account of any new structure erected in the same place within the same lines and for the same purpose, which inflicted no more injury upon her property than the old.” But this third track is not erected in the same place within the same lines ” as the two original tracks. I have examined the Conabeer Case, 156 N. Y. 474, cited by defendants, and have failed to find therein any authority for holding that the building of this third elevated track during the period of adverse user in the year 1897 did not affect the defendants’ claim of title by prescription. I think that the building of this third track operated as an effective interruption of defendants’ original user and defeated the claim of prescriptive right. Fee damage is $30,000, and rental damage $1,800 yearly.

Judgment accordingly.  