
    Delecta H. Woodruff et al., App’lts, v. Sophronia M. Paddock, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed February 9, 1892.)
    
    Highways—Easements—Adverse possession.
    Prior to 1846 the owners of lots 43 and 45 had acquired easements over and title in fee of one-half, respectively, of a certain alley,which was a public highway subject to the rights of the public. The alley was abandoned by the public and one 0., the owner of lot 43, closed the alley, and erected' a gate in front of it, planted trees and erected a coal shed upon it between that time and 1850. 0. became the owner of lot 45 in 1856 and plaintiffs in 1884. At the time of its conveyance by C., he was in possession of the alley, claiming to own the same to the knowledge of his grantee. Held, that plaintiffs had lost their private rights in the alley, as their existence had been denied and the alley exclusively possessed by defendant for more than twenty years, she claiming to own the fee of the street.
    Appeal from a judgment of the general term of the supreme court of the fifth judicial department, which affirmed a judgment-dismissing the complaint entered on a report of a referee.
    This action was begun May 2, 1889, to recover a judgment to-perpetually restrain the defendant from excluding the plaintiffs from using as a way a strip of land one rod in width, extending-along the east side of their premises (lot 45), and damages for-having prevented them from having so used the strip before the action was begun. Their alleged cause of action was based on. two grounds: (1) That the plaintiffs are the owners in fee of one-half of said alley subject to the right of way of the abutting owners and the public. (2) That the strip of land was laid out by its former owner and' of the adjoining lots contiguous thereto-for an alley for the use of the grantees of the abutting lots.
    In 1826 Josiali Bissell, Jr., owned land now within the city of Rochester, which he sub-divided into lots and designated them by numbers. The relation of these lots to each other, to the streets, and to the alley in dispute, is shown by this diagram:
    
      
      
    
    A map of the land so sub-divided was recorded in 1826 in the -office of the clerk of Monroe county. August 27, 1830, Bissell conveyed to Peter Lynch lot 45 by a deed in which it was described as No. 45 as designated on the map so recorded. A reference to the diagram shows that this lot was bounded on the north by Tremont street. Through mesne conveyances, simply describing the lot by its number, and referring to the map, John Connolly became, April 7, 1856, its owner in fee. February 1, 1860, John Connolly conveyed it to Cornelius C. Dickson by the description contained in the previous deeds. March 15, 1884, the plaintiffs became the owners of this lot by mesne conveyances in which it was described as in the preceding deeds.
    May 1, 1827, Josiah Bissell conveyed to Bartholomew Travers lot No. 42, designating it by its number and referring to the map. December 9, 1839, Travers conveyed it to Patrick Quigley, describing it by its number and referring to the recorded map, and also bounding it on the west by the east line of the alley. October 13, 1845, Quigley conveyed No. 42 to John Connolly, describing it by its number, by reference to the map, and also describing the west line as follows : “ On thé west by the line of the alley, being the same premises conveyed to said Patrick Quigley by Bartholomew Travers.”
    In 1888 Connolly died seized of lot 42 and left a will, which was duly probated November 2, 1888, by which he devised all of his real estate to Henry Anstice. November 10, 1888, Henry Anstice conveyed to the defendant the west half of No. 42 by a deed designating the lot by its number, referring to the map, and also describing it as beginning “ fifty feet west of the northeast corner of the lot of land conveyed to John Connolly by Patrick Quigley. * * * Thence southerly, parallel with the west line of said lot No. 42, to the south line of said lot No. 42; thence westerly, along the south line of said lot No. 42, and the same produced to the east line of lot No. 45 of said tract as laid down on said map ; thence northerly, along said east line of said lot No. 45, to the said south line of Tremont street; thence easterly, along the south line of said Tremont street, to the place of beginning, being the west part of said lot No. 42, and so much of the alley west of and adjoining the lot 42 as laid down on said .map as is included "between the north and south lines of said lot 42 produced westward to the east line of said lot 45, with appurtenances, etc.”
    Under this deed the defendant entered into possession of the land therein described and begun the erection of a building on the disputed strip.
    
      Edward F. Wellington, for app’lts; F. F. Drake, for resp’t.
    
      
       Affirming 30 St. Rep., 461.
    
   Follett, Ch. J.

The referee found that from 1826 to 1846 the alley was used by the public, and by such use became a public way, but that its use had been abandoned by the public for more than forty years before this action was begun. He also found that between 1846 and 1850 a fence stood on the boundary line between lot 45 and the alley, and that between these dates John Connolly kept the alley closed by a gate at the Trernont street end, planted trees, erected a coal shed thereon, and that from 1850 to-the date of his death in 1888, he was in the actual, exclusive and notorious possession of the land, claiming to own it.

The widow of a former owner of lots 43 and 44, who was sworn on behalf of the plaintiffs, testified, and she was not contradicted, that about fifty years before the trial of this action her husband, bought those lots, moved on them, and shortty after extended the fences across the alley, planted trees thereon, since which the alley had been shut up the most of the time, and before they left those lots the alley had been all closed up for thirty years. For at least thirty-nine years before this action was begun the alley from end to end had been enclosed by fences, occupied and cultivated by the owners of lots 42, 43 and 44.

None of the deeds in the plaintiffs’ chain of title purport to convey any interest in the fee of this strip, and the referee also found that in 1860, when Connolly conveyed lot 45 to Mrs. Dickson, the former was in possession of the alley, claiming to own it; that she took her deed with knowledge of these facts, and that the grantor did not intend to convey, nor the grantee to acquire any title or easement in the alley. Neither the plaintiffs nor any of their grantors have acquired title to the locus in quo, nor to any part of it Simmons v. Cloonan, 81 N. Y., 557.

Clearly the grantees of Bissell, by the map and by the mode in which the lots abutting on the alley were conveyed, acquired rights of way in favor of their respective lots. And it is equally clear that the plaintiffs are now possessed of a right of way unless-lost by the non-user of their predecessors and by the adverse possession of Connolly and his successors.

It is settled that under the statutes of limitation of this state the legal title to land may be lost by its true owner, and be acquired by one holding it adversely for twenty years. Baker v. Oakwood, 123 N. Y., 16; 33 St. Rep., 223. So an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion, from the enjoyment of it for twenty years. Snell v. Levitt, 110 N. Y., 595; 18 St. Rep., 611; Wash. Eas., 4th ed.,. 718; Yeakle v. Nace, 2 Whart., 123.

.These rules are decisive of this action unless the period within which the plaintiffs may maintain an action is, as is claimed in their behalf, enlarged by the fact that this alley was a public way from 1826 to 1846.

An abutting owner has two distinct kinds of rights in a highway or street. A public one, which he enjoys in common with all other citizens; and certain private rights, which arise from his-ownership of property contiguous to the highway or street. These special rights increase the value of his abutting premises, are private property, and if they are destroyed or greatly injured without due process of law, damages may be recovered for the injury. But a- person cannot maintain an action for an injury to public rights without showing that he has special or private rights which, have been invaded. Abendroth v. Manhatttan R. R. Co., 122 N. Y., 1-14; 33 St. Rep., 475; Lansing v. Smith, 8 Cowen, 146; S. C., 4 Wend., 10; Wood on Nuisances, 655.

An abutting owner’s private rights in a public street may be-lost in case their existence is denied, and they are exclusively possessed for more than twenty years by one who claims to own the fee of the street as against the world. It follows that in no aspect of the case are the plaintiffs entitled to recover.

Entertaining these views, it is quite unnecessary to determine in what time a public street or highway ceases to be such as against the public by its non-user.

The judgment should be affirmed, with costs.

All concur.  