
    Charles F. Mattlage, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Railboad—Elevated—Tbespass.
    Plaintiff was the owner of a four-story building adjoining a street, the title to which was in the city. Prior to the time plaintiff became the owner, and in 1870, the defendants erected their structure in front of said premises. There was a wooden awning extending from the building to and supported by the girders of the railroad. This action was brought in 1889 to restrain the operation of the road, and for damages sustained by the taking of plaintiff’s easements, and judgment was rendered for such damages, and an injunction granted unless defendants paid the value of such easements. Held, no error.
    
      Appeal from a judgment recovered at the special term.
    
      E. C. James and. Brainerd Tolies, for app’lts; Chas. D. Ridgway, for resp’t.
   Daniels, J.

The plaintiff in Hovember and December in the year 1880, by deeds of undivided interests, became the owner of premises on the easterly, side of Greenwich street, and the southerly side of Jay street, in the city of Hew York. They were bounded fifty feet on Greenwich by 100 feet on Jay street. At the time of the acquisition of the title by him a four story building had been erected upon the land, which he improved by adding another story. The Hew York Elevated Eailroad Company erected its elevated railroad on the easterly side of Greenwich street, in front of these premises, in or about the year 1870, and together with the other defendant, the Manhattan Eailroad Company, its lessee, have since used and operated the structure for running their trains and engines upon it. This use has interrupted the light and air derived by the premises from the street, and sent smoke, cinders and steam into their rooms and apartments. The land forming the bed of the street was conveyed by the corporation of Trinity Church to the mayor, etc., of the city of Hew York in June, 1797, in trust that it should be kept open as a street for the use of the citizens of Hew York forever. And from that time it has been so maintained as a street sixty-six feet wide, until the construction of the elevated railroad therein.

That this appropriation of the land followed by the use made of it entitled the owners of property fronting upon and bounded by it to the uninterrupted access over it to ana from their premises, and to the light and air passing therefrom to the building maintained thereon, has now become so definitely settled by the authorities as to dispense with particular reference to them. The right to these easements does not depend upon any title of the adjacent owner to the land of the street, but it arises out of the lawful creation and continuance of the street itself. The fact that the street bounds the properly entitles the owner to the use and enjoyment of these easements. And the prevention of that enjoyment by the erection and use of the elevated railroad in front of the premises entitled the owner to redress by way of action for the injury received in this manner from it by him. To maintain his action it is not necessary that evidence should be given by the plaintiff that the structure has been unlawfully placed in the street in front of his premises. But that is to be presumed from the fact that it has been there placed and afterwards maintained. It is a direct interference with the rights of another in the street, and it is for the party maintaining it to show, when that can be done, that it has the authority and sanction of the law for its existence. The presumption of the law is not favorable to the defendants, but it is that the street to be opened and used as the conveyance provided it should be has been unlawfully obstructed by the erection and use of this railroad. And the court acted on this condition of the law in directing judgment for the damages already sustained from it by the plaintiff, and restraining its future use and continuance, unless the defendants, within the time designated for that purpose, shall, upon receiving a proper conveyance and release, pay the plaintiff the sum of $5,500 and interest, found to be the value of the easements of the plaintiff, diverted and appropriated through the erection and use of this railroad.

The defendants objected that' the plaintiff had excluded himself from the right to this redress by the acquiescence of himself and the preceding owners of the premises in the erection and use of the railroad. But nothing whatever was shown to have been done by either from which that acquiescence could be inferred. At the most they did not interfere to prevent the erection of the railway and its subsequent use. And that placed the company erecting it at its own risk for the consequences of erecting it, and both itself and its lessee for those resulting from its use as a railroad.

This action was commenced on the 22d of May, 1889, and the defendants, by way of answer, interposed the six and ten years statute of limitations. But neither of these was the period within which this action might be commenced. Neither was any other provision of the statute applicable to, or controlling over this action, even if the defendants’ railroad is to be held to have been the successor of the cable road originally placed upon the same side of this street

At the time the plaintiff purchased these premises there was a wooden awning extending from them to, and supported by, the longitudinal girders of the structure supporting the railroad, and it has remained there during his ownership. Upon these facts it was claimed on behalf of the defendants that there had been an abandonment of the easements, so far as they had interfered with them. But what had in this manner been done was no more than an awning placed over the sidewalk between the front of the plaintiff’s store and the edge of the walk. And it is to bé inferred from the facts that it had been made to derive support from the railway structure for the reason that this structure stood in the way of, and prevented the use of posts commonly employed for that object This act presented no evidence of an intention to abandon the right to the easements, and could not deprive the plaintiff of his action for redress, especially as his enjoyment of these easements of light and air had been materially interrupted in the second and third stories of his building. When the structure was erected and devoted to the running of the defendants’ trains the right of action accrued, and the most they could claim from this support of the awning was the value of that support, by way of reducing the claims made by the plaintiff. If that had been intended to be insisted upon, the value should have been proved. And as it was not, the court was not placed in the situation where any allowance could be made on this account to the defendants.

The court should have found that the awning had in this way been attached to the railway structure, for there was no denial of the fact in the evidence. But as the findings would afford the defendants no benefit, the refusals to find cannot entitle them to a reversal of the judgment. This judgment did not exceed the amounts sustained by the evidence, and neither of the objections ■which have been urged appear to be capable of being supported. The judgment should, therefore, be affirmed, with costs.

YÁn Brunt, P. J., and Brady, J., concur in result only.  