
    The Farmers’ Loan and Trust Company, as Trustee under the Last Will and Testament of Charles Bouton, Deceased, and Others, Respondents, v. The New York Elevated Railroad Company and Others, Appellants.
    First Department,
    May 17, 1912.
    Railroad — elevated railroad, city of New York — action for damages for injury to easement — when railroad acquires title hy adverse user — provisional consent to erection of railroad—when no recognition hy railroad of owner’s title.
    Where before the construction of an elevated railroad in the city of New York the company applied to the owner of abutting property and obtained a consent to the erection of the structure, provided “that the road be erected in the center of the street,” the consent became null and void where the railroad, contrary to the proviso, erected its road along the curb, and it must be deemed to have built its road without the consent of the abutting owner.
    Hence, where more than twenty years have elapsed since the erection of the railroad, the company has acquired an easement by prescription as against such abutting owner and his successors who cannot, after the lapse of such period, maintain an action for damages to incorporeal rights.
    • The railroad by obtaining such consent from the abutting owner did not enter upon his easements in subordination to and in recognition of his rights', which had not been created by statute at the time the consent was obtained.
    Moreover, a petition signed by some of the property owners addressed to the Supreme Court commissioners advocating a particular location of tne railroad was not a consent binding upon the railroad which was not a party to the petition.
    
      Appeal by the defendants, The New York Elevated Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of March, 1909, upon the decision of the court rendered after a trial at the New York Special Term.
    
      J. Osgood Nichols, for the appellants.
    
      J. W. Bermant, for the respondents.
   Scott, J.:

This is the usual abutter’s action against an elevated railroad company, with the usual judgment for fee and rental damages. The action was not begun until more than twenty years after the construction and the commencement of the operation of the railroad, and the defense principally relied upon is that, by virtue ■ of the lapse of time, the defendants have acquired a prescriptive title to the' easements for the destruction of which damages are claimed!. This plea would seem to be a conclusive answer to plaintiffs’ claim under the principles laid down in Lewis v. N. Y. & Harlem R. R. Co. (162 N. Y. 202) and Hindley v. Manhattan R. Co. (185 id. 335), but for a single circumstance which, it is insistently argued, serves to differentiate the present case from those cited. This circumstance is the fact that before the construction of the railway the company then about to erect it applied to the owners of the property in respect of which the plaintiffs sue and obtained from them or one of them a qualified consent to the erection. The property abuts upon the Bowery, ■ a very wide street. The consent which was signed by one of its then owners was thus qualified, “Provided only the road.be erected in the center of the street.” The road was not erected in the center of the street, but. along the curb on either side. This entirely nullified the consent, so that it became of no effect, and the company having refused to comply with its conditions must be deemed to have built its road without the consent of the abutting owner. (Shaw v. New York Elevated R. R. Co., 187 N. Y. 186.) The case up to this point, therefore, is exactly as if the railroad company had constructed its road along the curb in front of the plaintiffs’ prem- ■ ises without any consent at all on the part of the owner. It is said, however, that defendant entered upon the abutter’s easements in subordination to the title óf the owner, because by the act of applying to the owners of the abutting property for their consent to the erection of the railway it recognized their ownership of easements in the street, and, therefore, although it did not obtain an effective consent, it must be deemed to have erected its road in subordination to the owners’ incorporeal interests in the street, and not in derogation of them. It is not to be presumed that either the owners or the railway company lmew when the consent was applied for that the construction of the road would destroy or impair property rights in the street appurtenant to the abutting property, and to which a money value would attach. (Hindley Case, supra.) It can scarcely be said, therefore, with justice, that the company’s application to the abutting owners for their consent to the building of the road involved a conscious recognition of the owners’ street easements. Did it amount to such recognition as matter of law ? What the railway company sought from the owners was not any portion of their property rights but merely their consent which was required by the State Constitution of 1846, as amended in 1874 (Art. 3, § 18) and the then existing Rapid Transit Act (Laws of 1875, chap. 606). By the terms of the act (§ 4) it was necessary that an attempt should be made to obtain the consents of the abutting owners before application could be made to the General Term for the appointment of commissioners, and the act of the- company in applying to plaintiff’s predecessors in title for a consent should, in my opinion, be given no greater significance than to be regarded as an admission that the persons applied to were owners of property “bounded on” the street. It certainly should not be treated as a recognition of property rights at that time undreamed of. The paper signed in behalf of the owner's of the property either was a consent or was not. Since it was fettered with a condition to which the company never acceded it certainly was not a consent, and the road was not built under it. (Shaw Case, supra.) Consequently the road was built without the consent of the owners of the abutting property, and in open denial of and hostility to any property rights which said owners then had in the street. In my opinion the case is not to be distinguished in principle from the liindley and Lewis cases. The petition signed by some of the owners of the property and addressed to the Supreme Court commissioners advocating a particular location for the road was not a transaction with the company, but simply an appeal to the discretion of public officers not representing nor controlled by the company. (Koehler v. N. Y. El. R. R. Co., 9 App. Div. 449; affd., 159 N. Y. 218.) It did not operate as a consent by the property owner, and, since the company was not a party to it, certainly did not amount to a recognition by the company of any rights of any one.

In my opinion the judgment should be reversed and a new trial granted, with costs to.the appellants to abide the event..

Ingraham, P. J., Laughlin, Clarice and Miller, JJ., concurred.

Judgment reversed, new.trial ordered, costs to appellants to abide event.  