
    Robert Taggart, Jr., Plaintiff, v. Manhattan Railway Company and Interborough Rapid Transit Company, Defendants.
    (Supreme Court, New York Special Term,
    December, 1907.)
    Easements—Nature and creation — Creation by prescription: Length of user — Effect of infancy of owner of the fee; Creation as against tenants in common; Nature of user.
    Title to easements by prescription may be acquired only by adverse user within the same periods of time which apply to a claim of title by adverse possession and subject to the same limitations and exceptions.
    When the operation of defendants’ elevated railway opposite certain premises was commenced, June 5, 1878, the property was owned by a widow and five children; all of whom were of full age, except three of the children who became of age, respectively, in March, 1879, June, 1880, and May, 1890. Plaintiff took title through a sale in partition and succeeded to the interests of the former owners; and, in an action by plaintiff to restrain the operation of the railway, defendants claim that title to the easements of light, air and access in and to the public street by prescription had already accrued on June 10, 1898, when said former owners instituted a similar action. Held, that, under section 375 of the Code of Civil Procedure, the twenty-year Statute of Limitations is never to be cut down within the limit of ten years after attaining majority; the disabilities of the two children, who respectively became of age in 1879 and 1880, arising from their infancy, could not avail them as against the running of the period for title by prescription, when the injunction suit was commenced June 10, 1898, but that as to the child who became of age in 1890, the time requisite for the acquisition of a prescriptive right against him had not expired when said injunction suit was commenced.
    Defendant’s contention that the infancy of one of the children as tenants in common operated to destroy any claim to the easements by prescription upon the ground that a prescriptive right cannot be given,, without the concurrence of all the tenants in common and that the failure of one tenant in common to join in the express or implied grant of an easement render the supposed grant inoperative, not only as against him but as against his co-tenants who actually assent, is now untenable under the rule that a tenant in common can, for his part, release his title to easements such as are here involved and transfer that title to a railway in the street.
    Where the original talcing of the easements was for the purpose of running a railway upon a structure of a permanent character, the use of said structure for such purposes may ripen into title by prescription no matter whether more or less trains are operated at different times during the period of prescription.
    Action for injunction to restrain the operation of defendants’ elevated railway in the street opposite plaintiff’s premises, and for damages.
    Charles H. Strong, for plaintiff.
    Sherrill Babcock, for defendants.
   Bischoff, J.

The substantial questions presented upon the submission of this case have to do with the plaintiff’s points taken in answer to the defendants’ defense of title to the easements by prescription. The operation of the defendants’ railway opposite the plaintiff’s premises commenced June 5, 1878, at which time the property was owned by certain persons who derived their title through one George Shrady, and who were his widow, Martha, and five children. All these persons were of full age at the time when the railway was first operated, with the exception of Martha Louise Shrady, who became of age March 17, 1879, George Shrady, •who became of age June 11,1880, and Archibald M. Shrady, who became of age May 29, 1890. The plaintiff took title through a sale in partition and succeeded to the interests of the persons referred to; and the first question for deter-ruination is whether prescription could run against Martha, George and Archibald Shrady, in view of their infancy, and to what extent. On June 10, 1898, an action for an injunction and damages against the defendants was instituted by the Shradys; and it is at this last date* that the defendants’ claim of title by prescription must be determined. Since title by prescription may be. acquired, as it has been held, only by adverse user within the same periods which apply to a claim of title by adverse possession, and subject to the same exceptions and limitations (Scallon v. Man. R. Co., 185 N. Y. 359), thé question as to how far the disabilities of the three persons who were infants when the operation of the road was commenced are to affect their rights—and so, the rights of their successor in interest — depends, in the main, upon the provisions of section 375 of the Code of Civil Procedure, which provisions, in their operation upon the twenty years’ Statute of Limitations, are as follows: The time of such a disability is not a part of the time limited in this title, for commencing the action * * *; except that the time so limited cannot be extended more than ten years, after the disability ceases, or after the death of the persons so disabled.” This provision is practically identical with that of section 396 of the Code (except as to the period to be added) relating to the limitation of actions to recover a sum of moneyand the exception in favor of an infant under both provisions has been held to extend so far as to give the party the benefit of the extended period after the attainment of his majority, where the limitation falls within that period. Ten years after majority is always added, but not to a period fixed at a time after the date of majority -in such wise as to add ten years to that period. As these sections of the Code have been construed, a cause of action accruing to an infant on his eleventh birthday would be barred on his thirty-first birthday; a cause of action accruing at his birth would likewise be barred on his thirty-first birthday; and, where the cause of action accrued shortly prior to the attainment of his majority, he would be given the full twenty years from the time when that cause of action accrued. In other words, the twenty years’ Statute of Limitations is never to be cut down within the ten years’ limit; but the fact of infancy cannot add more than ten years to the twenty years’ limitation in any case. Matter of Rogers, 153 N. Y. 316, 321; Hyland v. N. Y. C. & H. R. R. R. Co., 24 App. Div. 417; Howell v. Leavitt, 95 N. Y. 617. Within this rule, prescription ran against Martha Louise Shrady on June 5, 1898, and against George Shrady at the same date; the full period of twenty years being thus given to each party, and the limitation falling at a time more than ten years after the attainment of majority by each. Therefore, the disabilities of these two persons by reason of infancy could not avail them as against the running of the period - for title by prescription when the injunction suit on behalf of the Shrady family was commenced on June 10, 1898. It is otherwise, however., as to Archibald Shrady, since he was entitled to ten years from May 29, 1890 — the date of his attaining full age — within.which to assert his rights; and the time so limited had not expired when the injunction suit was commenced. So far, the defense of prescription would apply as against all but a one-fifth interest in the property; but- the plaintiff claims that the fact, of infancy of one of these tenants in common operated to destroy any claim to the easements by prescription, upon the ground that a prescriptive right cannot be given without the concurrence of all tenants in common, and that the failure of one tenant in common to join in the express or implied grant of an easement renders the supposed' grant inoperative, not only „ as against him, but as against the cotenants who actually assented. While support for this doctrine may be found in some of the earlier cases, the question, s.o far as it applies to the abandonment of easements of light, air and access in and to the public street, appears to me to be no longer open to question; for it has been directly held that, in cases of this character, a tenant in common can, for his part, release his title to the easements and transfer that title to the railway in the street. White v. Manhattan El. R. Co., 139 N. Y. 18, 30.

It is also urged by the plaintiff that the defendants have so substantially increased their use of the street, in the running of more trains upon this structure, as to amount to a new -user in excess of the use to which the abutting owners’ easements were subject at the time of the original entry, and that, therefore, the prescriptive right, initiated at the time of the' original taking of possession, was lost. This presents no new question; and, within the authorities, I take the point to be settled" that, where, as in this case, the original taking of the easements was for the purpose of running a railway upon a structure of a permanent character, the use of the structure for the purpose of such a railway can ripen into title by prescription, no matter whether more or less trains are operated at different times during the period of prescription. Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202, 223; Conabeer v. N. Y. C. & H. R. R. R. Co., 156 id. 490 ;Hindley v. Manhattan R. Co., 185 id. 335, 353. Prescription may be lost through an interruption of continuity in the user, where the interruption relates to the character as distinguished from the exact extent of the use (Washb. Ease., 279, 280; Belknap v. Trimble, 3 Paige, 577, 605) ; and this distinction is illustrated m the rule applied by the court in the cases above referred to and in the case of American Bank Note Co. v. New York El R. R. Co., 129 N. Y. 252.

I find, in the evidence presented, sufficient prima facia proof of the defendants’ suceessorship in title and interest to the rights acquired by the corporation which originally r made the entry so far as the easements appurtenant to the plaintiff’s property were taken; and the defense of title by prescription is supported, within the rules announced in the case of Hindley v. Manhattan R. Co., 185 R. Y. 335,.except as to the one-fifth interest originally possessed by Archibald M. Shrady, and to which this plaintiff has succeeded.

Certain evidence was offered in the form of the minutes of a meeting of directors of the Gilbert Elevated Railway Company and was received, subject to the court’s conclusion as to its competency, relevancy and materiality, upon the issue tendered by the defense of prescription. I have concluded to grant the motion to strike out this evidence, because not sufficiently connected with the premises in suit to afford proof upon the issue of prescription, and because the evidence does not actually show any characterization of the entry by the defendants’ predecessors as in subordination to the title of the abutting owner; except so far, therefore, as this evidence relates to the actual date of entry, and as proving the fact of that date, the motion to strike out is granted. The portion not stricken out, because relevant to the fact of the date of entry, is to be found at pages 282 and 283 of the stenographer’s minutes.

There should be judgment for the plaintiff, with costs, and an additional allowance of five per cent, of the gross fee and rental damages awarded. Fee damage, $800; rental damage, $75 per annum.

I have noted upon the proposed requests to find, submitted by the defendants, my disposition thereof.

Form of decision and judgment may be presented upon notice of settlement.

Judgment for plaintiff.  