
    Mary E. Hughes, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 27, 1891)
    
    1. Railboads—Elevated — Damage to easement — Title oe abutting owneb—Evidence as to.
    On the trial of an action for injury to plaintiff’s premises, she introduced without objection four deeds, by which the lot was conveyed to her. She showed that she had resided thereon since March, 1879, and defendants called forth on cross-examination that one Hughes had previously owned the lot and that it had been conveyed to plaintiff. Defendants also found that one of the predecessors in plaintiff’s title had given a mortgage thereon, and by paroi that the house and lot was sold by the said mortgagor to plaintiff’s grantor and by the latter to plaintiff. Held, that there was evidence sufficient to sustain a finding that plaintiff had title to the lot in fee simple.
    3. Same.
    The right of an owner of a lot abutting on a public street in a city to use and enjoy the light, air and access afforded by the street is an appurtenance of his lot and is property for which, in case it is taken for purposes inconsistent with street uses, such as an elevated road, compensation must be made.
    15. Same—“Abutting lot.”
    An abutting lot is one bounded on the side of a public street in the bed or soil of which the owner of the lot has no title, estate, interest or private rights except such as are incident to a lot so situated.
    •4. Same.
    The fact that for three years before plaintiff acquired title the light, air and access had been continuously interrupted by the M. El. road, and that said road had begun proceedings to condemn said property, is no rebuttal of the presumption of plaintiff’s title.
    5. Same.
    In the petition filed by said M. El. road, it set forth that it had been unable to agree upon a price as the owner would not sell for a reasonable price, etc. Held, that this was a very clear admission upon the part of the defendants that they d:d not own the easements or have the right to interfere with their use or enjoyment by plaintiff.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of .the plaintiff entered on a decision of a special term.
    
      This action was begun November 16, 1887, to recover a judgment (1) for the damages to the rental value of No. 138 West Fifty-third street, alleged to have been occasioned by the construction and operation of the defendants’ elevated railroad in the street in front of the premises, and (2) restraining them from thereafter continuing their road in front of the premises. The construction of the road was begun in this street in July 1878 ; it was finished in that street in November of that year and was put in operation in June, 1879. It does not appear who owned or was in possession of the premises when the road was begun and completed.
    In 1838 the city of New York acquired the title to the land upon which West Fifty-third street was in that year opened as one of the public streets in the city, pursuant to chap. 115, Laws of 1807, and chap. 86, Laws of 1813.
    Lot No. 138 is bounded on the north by the south side of Fifty-third street, and its owners have never had any title or estate in the soil of that street and no interests or private rights therein except such as are incident to lots so situated. December 31, 1878, Augusta A. Eising assumed to convey No. 138 West Fifty-third street to James R. Breen, Alfred G. Nason and George W. Hughes. In March, 1879, the plaintiff entered into possession and has since remained in possession of the premises. October 4, 1880, Breen and Nason conveyed their interest in the lot to George W. Hughes, plaintiff’s husband, who, November 29, 1881, conveyed his interest in them to Fitzsimmons, who, on the same day, conveyed his interest to the plaintiff. Such is the paper title. The record does not disclose who assumed to own or was in possession of the lot at any time prior to December 31, 1878, the date of the deed of Augusta A. Eising.
    The answer in the main is a denial upon information and belief of the allegations of the complaint, and presents as affirmative defenses that on the sixth day of March, 1868, Augusta Eising executed a mortgage upon the premises to Henrich Wiener, and which said mortgage is owned by Eliza Wiener. The answer further alleges that the defendants’ road was constructed and operated before the plaintiff owned or occupied the lot and house and while they were owned and occupied by another, “ and that if any damages were inflicted upon said premises, or if any destruction or loss of easements has been occasioned ” * * * the said damage was then inflicted, or said loss or destruction of easements then took place, and that the plaintiff herein is not the owner of the cause of action for such damages. The answer also sets up the six and ten year statutes of limitations, and that plaintiff and her predecessors in title made no objection to the construction or the running of the road. The answer also sets up that on April 14, 1888, the Metropolitan Elevated Railroad Company began proceedings to acquire by condemnation the rights appertaining to the premises, and belonging to the plaintiff, which were interfered with by the construction and operation of the road. The pendency of these proceedings was set up in the answer as a defense to this action. The cause was tried in December, 1888, and upon the decision rendered a judgment was entered June 7, 1889, awarding (1) $8,500 damages for the injury caused to the rental value of the premises between November 16,1887 (the date when the action was begun); and (2) and a perpetual injunction restraining the continuance of the road in front of the premises, unless the defendants paid to the plaintiff $9,000, found to be the value of the rights appurtenant to the lot which had been entered on by the road.
    
      Edwin M. Felt, for resp’t; John F. Dillon and Julien T. Davies, for app’lts.
    
      
       Affirming 29 N. Y. State Rep., 516.
    
   Potter, J.

There are two questions to be considered and decided upon this appeal. The first relates to the plaintiff’s title to the premises described in the complaint, including the easements of access, air and light, or her right to damages in consequence of the alleged interference therewith by the structure and operation of the railroad by the defendants, and the second relates to the nature and measure of the damages the plaintiff may legally recover of the defendants, and the mode of enforcing the judgment for any damages that may be awarded to the plaintiff.

It is quite manifest from a study of the record in this case that the question of damages formed the main contention in the court below. Still the question of title may be said to fairly arise upon this appeal and was fully discussed in the very able and elaborate brief of the appellants’ counsel.

It is insisted in behalf of the appellants that the courts below erred in holding the following propositions:

(1) That the plaintiff established title to the lot and to the rights in the street appurtenant to the lot; (2) That the plaintiff

is entitled to compensation for the diminution ($9,000) of the market value of the lot caused by the completion of the road before she purchased the premises, and that the defendants be restrained from continuing the road unless that sum is paid.

The trial court found as facts: First, That the plaintiff is now and has been since the 29th day of November, 1881, seized of an estate of inheritance in fee simple absolute in premises Number 138 West Fifty-third street in the city of New York, and in all the easements and hereditaments thereunto appertaining.” To this finding the defendants filed the following exception: “ To so much of the first finding of fact as finds that the plaintiff is seized of an estate of inheritance in fee simple absolute in the premises there mentioned.” This finding is now challenged as one “ without any evidence tending to sustain it.” Code Civil Proc., § 993.

The question upon the record before this court is not simply whether the plaintiff had proved her title when she rested upon the trial of the case, but whether there was sufficient evidence introduced by plaintiff or defendant, or by both, when the evidence was finally closed and submitted, to support the finding of title in the plaintiff made by the trial court.

Four deeds, the first "from Mrs. Eising, dated December 31,1878, by which the grantor assumed to convey the' lot in fee with the appurtenances, and under which the plaintiff claims to have acquired title, were received in evidence without objection being taken that the grantors were not shown to have had title or possession of the subject of their grant at the date when they assumed to convey. Indeed none of the evidence written or oral, relating to the plaintiff’s title or possession, was objected to by either of the defendants. It was proved and it remained undisputed that the plaintiff had resided on lot Mo. 138 since March, 1879.

The learned counsel for the defendants proved by his cross-examination of George W. Hughes that he, Breen and Mason bought the lot from Eising in December, 1878; that they owned it; that Breen and Mason afterwards conveyed their two-thirds to him, and to quote the language of the witness: “ I became then the sole owner of the premises.” This witness having title, conveyed the lot to Fitzimmons Movember 29, 1881, who, on the same day, conveyed it to the plaintiff. Besides this evidence, the defendant introduced in evidence a mortgage upon the premises described in the complaint, made by Augusta Eising (one of the predecessors in the plaintiff’s title) to John W. Stevens on December 31, 1878, to prove that said mortgage was a lien upon said premises. Of course it could not be a lien unless the mortgagor had some title or interest in the premises. On the same day that the mortgage was made, and presumptively subsequent to the making of it, Augusta Eising gave the deed in the chain of plaintiff’s title to Breen, Mason and Hughes.

The defendant proved the mortgage no. doubt for the purpose ■of raising the question that” the holder of the lien of the mortgage was a necessary party to the action.

But, when this evidence was in the case, it was in for any other-purpose it might legitimately serve.

It served to show title in plaintiff’s grantors about a month before the road was completed, and several months before it was ■operated by the defendants, or either of them. And the defendants also proved that this house and lot was sold by Stevens to Eising in 1868, and that Eising was the grantor of Hughes. It is true this was proved by paroi, there being no objection by plaintiff to that mode of proof. It does not lie in the mouth of the defendants upon this appeal to raise any question as to then-own mode of proving facts, nor to the facts proved by their method. This sale of the lot in question to Eising, grantor of Hughes and Nason, was ten years or so before the defendant began toy construct the road. The plaintiff proved by witness John W. Stevens, without objection, that he owned the lot, built and sold the house in question in 1867 or 1868.. This was some ten or ■eleven years before the defendants built or run the road, and even before the road was chartered, which was in 1875 or 1876. This witness also testified, without objection, that he bought the lot, and built the house in question, and sold all his lots, including this one in question, previous to 1871.

In the face of this undisputed evidence and in the absence of any assertion during5 the trial, or request to find that the plaintiff was without title to Ho. 138 or that any other person owned or claimed to own it, it cannot be held that the finding that the plaintiff had title to the lot in fee simple was without any evidencetending to sustain it.

The finding above quoted contains two independent propositions : one relating to the title to the lot, and the other to the title to the street rights appertaining to the lot. The exception above quoted, which was the only one filed to this" finding, relates solely to the title to the lot. But the court also found as facts, Sixth.. That attached to the plaintiff’s premises above described, and as a part thereof, was and is an easement of light, air and access, over said Fifty-third street and appurtenant thereto, in front of and adjoining said premises, of which easement the plaintiff has been, possessed since Hovember 29, 1881.”

11 Seventh. That plaintiff acquired with said premises the right to have said Fifty-third street kept opón and used as a public street and highway.” The defendants filed exceptions to these findings and requested the court to find the converse, which was refused, to which refusal the defendants excepted. These exceptions raise the question whether there is any evidence tending to sustain the finding that the plaintiff acquired title to the rights in the street. Roberts v. Tobias, 120 N. Y., 1; 30 N.Y. State Rep., 189.

The right of an owner of a lot abutting on a public street in a city to use and enjoy the light, air and access afforded by the street is an appurtenance of his lot and is property for which, in case it is taken for purposes inconsistent with street uses, compensation must be made; and in case it is not taken but is injured by such uses, the damages sustained, if any, may be recovered. The use of a street by an elevated road for carrying passengers within the city is held to be a use which is inconsistent with the purposes for which city streets are designed. Kane v. N. Y. El. R. R. Co., 125 N. Y., 164; 34 N. Y. State Rep., 876. These street rights of an abutting owner are not originated by grant in terms of such incidental rights, and their existence need not be established by conveyances in specific terms conveying such right, for there are none, nor by adverse possession by an abutting owner, for the right is incapable of such possession as against the city. Driggs v. Phillips, 103 N. Y., 77; 3 N. Y. State Rep., 69; Elliott R. & S., 665,et seq.

The private rights appurtenant to abutting lots arise by operation of law from contiguity, like rights for the adjacent and subjacent support of land, and their existence is presumed. Kane v. N.Y. El. R. R. Co.,125 N. Y, 164, 185; 34 N. Y. State Rep., 876. To prevent a misapplication of this rule it will be well to define the term “abutting lot.” It denotes a lot bounded on the side of a public street, in the bed or soil of which the owner of the lot has no title, estate, interest or private rights except such as are incident to a lot so situated. The presumption existing in favor of the abutting lot may be rebutted by showing that the rights have been parted with in any of the modes by which incorporeal hereditaments may be transferred, surrendered or lost. The burden of rebutting the presumption is on him who claims to have acquired such right. Haight v. Price, 21 N. Y., 241; Wash. Ease., 221 (2d ed.), 283. To rebut this presumption the defendant proved that for three years before the plaintiff acquired title to the lot the light, air and access from the street had been corf3, tinuously interrupted by the Elevated roacPAi the smne mamf"' •and substantially to the same extent as it was, when the actum was begun. They also proved that the Metropolitan Railway Company had begun 'proceedings which were tl,1R fk. • to acquire from the plaintiff by condemnation the rigtíi/'as lot, to maintain and ppr ate the Elevated road in frai ■premises. In the petition filed, which was served on t1 ntiff, the right sought to be acquired by condemnation is thus ' bribed: “Also so much of the privilege, easement or other interest in said Eifty-tliird street as is interfered with by the construction and maintenance of the elevated road of the petitioner herein, belonging to or claimed by Mary E. Hughes and Henry Wiener, or appurtenant to the lot and premises known as No. 138 West Fifty-third street, and bounded and described as follows: * * * being the same premises conveyed to said Mary E. Hughes by a deed of Thomas Fitzsimmons,' dated the 29th day of November, 1881; * * * that your petitioner, upon information and belief, has not been able to acquire title to the aforesaid lands, tenements, hereditaments and appurtenances.” The petition was signed by the Metropolitan Elevated Railway Company and verified by the assistant secretary and treasurer of both corporations and was introduced in evidence in behalf of both defendants. Under this state of the evidence it cannot be held that there is none tending to sustain the finding that the plaintiff owns the street rights.

The petition also set forth that the defendants had been unable to agree upon a price for the purchase of these easements from the owner of them for the reason that the owner would not sell them to the defendant for a reasonable price. The defendants set forth fully these proceedings and their pendency in a court having jurisdiction to transfer the title to these easements to the deiendants upon payment or deposit of the compensation to be awarded to the plaintiff for the deprivation of them.

The trial court found as a fact that such proceedings had been taken by the defendant; that the plaintiff had been duly served and brought into court in the proceeding and that the proceeding was pending at the time of the trial of this action.

This it seems to me is a very clear admission upon the part of the defendants that they did not own these easements or have the right to interfere with their use or enjoyment by the owner; for it is not usual or reasonable that either individuals or corporations should take legal proceedings to compel a sale to them of property and the payment of an award by them for property they already own, and justifies the remark of the court in its opinion in Watson v. The Met. El. Co.. 29 N. Y. State Rep., 513: “This is an admission that the railroad holds their position in front of the plaintiff’s premises in subordination to the right of plaintiff to compensation.”

The real and substantial contention in this case was whether the plaintiff was entitled to recover the $9,000 awarded to the plaintiff for the damages to the fee of the premises as a condi- ■* on of defendants being allowed to continue the structure and e operatiup, of the .ilroad.

The injury from which this species of damage arises was cominea ed when the defendant began to erect the structure and has been cry "'‘¿l increased by subsequent use of the easeménts " T<f ' _,,b ffa.... There is no occasion for any further discus- . 'jS. grantee’s right to recover tíi« permanent or fee damages . the time of the erection of the structure and the operation ó.; , .road to the time of the trial of this action.

This court has recently affirmed such right in the case of Lena Pappenheim v. The Met. E. R. Co., 40 N. Y. State Rep., 445, in a very able and exhaustive opinion by Judge Peckham in which all the members of the court concurred. The action in that case was the same in form, brought for the same relief, and involved "the same questidns as the case under consideration.

The appellants’ counsel have not discussed any exceptions to the rulings in relation to the reception or rejection of evidence and I do not think any of them require consideration.

The judgment should be affirmed, with costs.

All concur.  