
    George W. Smyth, Respondent, v. The Brooklyn Union Elevated Railroad Company and The Brooklyn Heights Railroad Company, Appellants.
    Second Department,
    July 23, 1907.
    Railroad—release of damage to easements construed — grantee not bound thereby.
    • A written instrument under seal," but not acknowledged or attestéd, given by the owner of a fee in a. city street to an elevated, railroad, whicli at the time was ' operating'' along the street, providing that thé first party consents .that the ■ second party may operate its railroad as the same is now constructed without compensation to the party of the first part, and! releasing and discharging the second party from all claims for compensation, arising from or connected with the maintenance of the structure and the operation of the railroad as how con- ' structed- and operated, should he construed as a mere consent or license not creating an estate or' interest in the lands or releasing damage to accrue in the. future.
    Such license is revoked by a conveyance by the owner of the fee to a . third party, and the latter may maintain an action in equity to enjoin the operation of the -road in front of his property.
    Such license is not an abandonment of easements in light, air and access, if the licensor owns the fee of the street. •
    Appeal by the defendants, The Brooklyn Union 'Elevated R'ail-road Company and another, from a judgment of the Supreme Court'' in favor of the plaintiff, entered in the office of- the clerk of the county of Kings-tin the- 18th day of January, 1907,-upon the decision of the court rendered after, a trial at the. Kings- County Special Term. . •
    
      
      Charles L. Woody [George D. Yeomans with him on the brief], for the appellants. •
    
      Cyrus V. Washburn [George W. Sickels with him on the brief], for the respondent.
   Miller, J.:

This is an action in equity to enjoin the maintenance and operation of an elevated railroad in front of the plaintiff’s property. The plaintiff, who owns the fee to the center of the street, derived title from the Brooklyn City Railroad Company. The latter on J une' 3, 1893, gave to the ¡Kings County Elevated Railway Company, the defendants’ predecessor, a written consent, which, after reciting that said Kings County Elevated Railway Company then maintained and operated its elevated road in .front of said premises and that said Brooklyn City Railroad Company had agreed that the former might so maintain and operate its road, contained the following provisions:

“ ¡Now, therefore, in consideration of the premises and the sum of one dollar, paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged, said party of the first part doth hereby consent that the party of the second part may pass all depots, stables, power stations on the said above-described premises and. maintain its elevated railroad structure on and over said street, and operate its elevated railroad thereon, as the same is now constructed, without compensation. therefor to the party of the first part.
" And the party of the first part, for itself, its successors and assigns, hereby releases and discharges the party of the second part, its successors and assigns, from any and all claims and demands, for any such compensation arising from or connected with such maintenance of said structure, and the operation of its railroad, as. now constructed and operated.”

The consent is under seal but is not acknowledged or attested by subscribing witnesses. The trial court held that the consent was a mere license revoked by the conveyance to the plaintiff and hence that it was not a bar to the maintenance of this action.

I think it reasonably clear that, the instrument in question is not a grant. A" consent or license to do & tiling upon the lands of the licensor is not a grant and creates no estate or interest in said lands. The instrument in question only purports to be a consent or license. It contains no language appropriate to grant á right in perpetuity. .The clause containing the release does not purport to.- release damages to accrue in the future.- In fact, while the consent was operative, no damages would accrue, because the consent was that the licensee might operate its elevated railroad without compensation to the licensor, and it' must be assumed, that the damages released were such as had already accrued. When the consent was given, the defendants’ predecessor was a trespasser; damages for such trespass were releaséd, and so long as the consent remained . operative the occupancy of the street as to the party consenting .was rendered lawful. ' - .

But the appellants rely upon á line of authorities, commencing with White v. M. R. Co. (139 N. Y. 19), to establish the proposition that the consent amounted to an abandonment of the easements of light, air and access. ' To my mind it is only necessary to refer'' to a single element in this case to distinguish it . from those, cases.. The plaintiff owns the fee to the center of the street, whereas in the cases relied upon the- plaintiffs were abutters merely. While an easement which is appurtenant to land may be abandoned by acts clearly evidencing an intent to" abandon, I am unable to perceive how an easement can be acquired from a fee owner upon any theory of'.abandonment. The plaintiff in the case of Herzog v. N. Y. Elevated R. R. Co. (76 Hun, 486; affd. on opinion below, 151 N. Y. 665) was an abutter merely and did not own the fee to the center of the. street, as the appellant seems to assume. Her grantor, the city,-owned the fee of the street and consented to the construction of the road prior to the plaintiff’s- grant. ' The situation was the same as though the plaintiff herself as an abutter merely had given said consent prior to such construction.

We-need- not now determine what would have been the effect of the consent if the road had been constructed upon the faith of it.

The judgment must be affirmed.

Hirschberg, P. J., Hooker, Gaynor and Rich, JJ., concurred.

Judgment affirmed^ with costs.  