
    George Jacob Hochhalter, Resp’t, v. The Manhattan R. Co. and The Metropolitan Elevated R. Co., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    Highways—Presumption or title or adjoining owner to tee to CENTRE OE STREET.
    There is nothing so universal or invariable in the manner in which streets in the city of New York have been opened as to raise a counter presumption to that of tile common law, that owners of land adjoining a public highway are owners of the fee of the highway.
    Appeal from a judgment at special term after the trial of the issues by the court without a jury.
    The judgment awards to the plaintiff damages and costs, and contains an injunction restraining the defendants from the further-maintenance and operation of their railway in South Fifth avenue in front of the premises known as No. 96 South Fifth avenue, unless they pay to the plaintiff, within ninety days, the sum of $5,000 for the right to maintain and operate their present elevated railway upon that portion of South Fifth avenue which lies in. front of said premises.
    
      Edward S. Bapallo and Brainard Tolies, for appl’ts; JE. W. Tyler, for resp’t.
   Barrett, J.

The single question raised upon this appeal is ■with regard to the plaintiff’s title to the westerly half of Laurensstreet in front of his premises now known as No. 96 South Fifth avenue. The plaintiff purchased in 1851, from one John Storms. He so purchased by warranty deed purporting to convey the premises in question by a description which, as defendants concede, would have conveyed all the land in front of such premises to the center of Laurens street, if Storms had owned such land. The defendants claim that there is no presumption of ownership in fee to the center of the streets in this city, for the reason that the laws as to the opening of our streets have, for a long time past, required the acquisition by the city of title in fee to land taken for street purposes. It has, however, been held that the common law presumption, that proprietors of land adjoining-a public highway are the owners of the fee of said highway, applies to the streets of this city as well as to highways in the country. Stewart v. The Metropolitan Elevated Company, 21 N. Y. State Rep., 472, following Wager v. The Troy Union R. R. Co., 25 N. Y., 526. The burden of overthrowing this presumption was upon the defendants. There is no presumption with regard to the city’s title. It may have opened streets over lands originally owned by the municipality, or it may have accepted the dedication of private owners. Streets, too, have been opened over new ground along the water fronts. There is nothing, at all events, so universal or invariable in the manner in which streets have been opened as to raise a counter-presumption to that of the common law. But even where streets are opened by proceedings under the statute, the fee thus acquired is only a qualified fee, in trust for street uses; and there is a remainder left in the owner, from whom the qualified fee is taken, for all other uses what might be enjoyed therein. Lahr v. Met. El. R. R. Co., 104 N. Y., 291; 4 N. Y. State Rep., 340. The question now raised is not, therefore, in any proper sense decisive of the plaintiff’s rights.

For, assuming that the street referred to was laid out under the act of 1813, or even under still earlier statutes, the presumption of the public trust for street uses attaches; and the plaintiff, as the last successive grantee of the original owner, has been deprived of “ what remained in and resided with ” such original owner after the transfer of the qualified fee to the municipality.

And further, as an abutting owner, the plaintiff, upon the authority of the Lahr case, as applied to the facts established and found below, had an easement in the street, resulting from a contract to that effect between the city and the original owner; which contract is implied from the statutory proceedings, and runs with the land.

It follows that the judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Bartlett, J., concur.  