
    William Broiestedt, Respondent, v. The South Side Railroad Company of Long Island, Appellant.
    (Submitted December 3, 1873;
    decided December 9, 1873.)
    The possession of a highway by a railroad company, under a license given by statute, is presumed to be subordinate to the rights of the owner of the soil. A deed thereof, therefore, by such owner, to a third person, is not void because of adverse possession.
    Under the Code the legal rights of an owner of land may he established, • and the equitable remedy, by injunction restraining interference therewith, obtained in the same action.
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon the decision of the court at Special Term.
    This action was brought to restrain defendant from running its trains and maintaining its track over a certain portion of Broadway, in Brooklyn, E. I).
    Plaintiff owned land on the northerly side of said street; his title extended to the center of the street. Prior to plaintiff’s deed the Broadway Railroad Company, under authority of an act of the legislature, had laid down, maintained and used a track upon the portion of plaintiff’s land, in the street. 3STo provision for compensation to the owners of the soil was made. Defendant was operating the road under an agreement with the Broadway Railroad Company. The court below decided that plaintiff was entitled to a perpetual injunction, and judgment was entered accordingly.
    
      
      Edgar M. Cullen for the appellant.
    If plaintiff was not in possession of the street used by the Broadway Railroad Company, and subsequently by defendant, he cannot maintain trespass. (Frost v. Duncan, 19 Barb., 569.) The occupation of the street by the railroad company was a possession of the highway adverse to the owner. (Craig v. Rochester City R. R. Co., 39 N. Y., 404; Carpenter v. O. and Syr. R. R. Co., 24 id., 655; Wager v. T. U. R. R. Co., 25 id., 526.) The Broadway Railroad Company had an adverse possession, as against plaintiff’s grantor, and the deed to plaintiff was void. (R. S. [Edmonds’ ed.), 690, § 147.)
    
      Roger A. Pryor for the respondent.
    This action can be maintained. (Douglass v. Wiggins, 1 Johns. Ch., 435 ; Livingston v. Reynolds, 2 Hill, 157; S. C., 26 Wend., 115; Livingston v. Livingston, 6 Johns. Ch., 497; Corning v. Lowerre, id., 439 ; Wetmore v. Story, 22 Barb., 415 ; Davis v. Lambertson, 56 Barb., 480; McKeon v. See, 51 N. Y., 300; Williams v. N. Y. Central R. R. Co., 16 id., 97, and per Selden, J., 111; Willard’s Eq. Jur., 388, et seq. ; 2 Story Eq. Jur., § 925, et seq. ; Bonaparte v. Camden, etc., R. R. Co., 1 Baldw. Ch. R., 226, et seq.; The Mohawk, etc., v. Artcher, 6 Paige, 83; Milhau v. Sharp, 28 Barb., 228; Davis v. Mayor, 14 N. Y., 506 ; Mayor v. Teaster, 2 McCord Ch. R., 143; Knox v. The Mayor, 55 Barb., 404.) It is not found as a fact that respondent was out of possession, non constat, but respondent had resumed possession of the locus in quo before suit brought. (Adams v. The Fort Plain Bank, 36 N. Y., 265; Grant v. Morse, 22 id., 323; Thurston v. Cornell, 38 id., 283; Chapman v. City of Brooklyn, 40 id., 379; Pierce v. Tuttle, 1 S. C. R., 139.) The order and judgment are right on the merits. (Craig v. The Rochester and Brighton R. R. Co., 39 N. Y., 404; Williams v. N. Y. Central R. R. Co., 16 id., 97; Wager v. The Troy Union, etc., R. R., 25 id., 529 ; Mahon v. N. Y. Central R. R., 24 id., 658; Carpenter v. Oswego, etc., id., 655; Presbyterian Society, etc., v. The Auburn, etc., 3 Hill, 567; Fletcher v. 
      The Auburn, etc., 25 Wend., 462; Davis v. The Mayor, etc., 14 N. Y., 506.)
   Church, Ch. J.

The injunction restrained the defendant from using the street for its tracks and running its trains over them, north of the center of the street, to which the plaintiff’s title extended. The defendant makes two points:

1. That the deed to the plaintiff was void, because its possession was adverse at the time. This is not tenable; the possession was not adverse but was under license, by act of the legislature, which only extended to the rights of the public. The entry under this license is presumed to have been in subordination to the rights of the owner, and there is no evidence against this presumption.

2. It is urged that the legal right must be first established by an action at law. This was formerly necessary if the legal title was at all doubtful, but, since the Code, this court has held that the legal right may be established and the equitable remedy, by injuction, obtained in the same action. (Corning v. The Troy Iron and Nail Factory, 40 N. Y, 191.)

This case, which we are not inclined to disturb, is decisive against the defendant upon this point. The judgment must be affirmed.

All concur.

Judgment affirmed.  