
    Bernard Curry, Plaintiff, v. Manhattan Railway Company and Interborough Rapid Transit Company, Defendants.
    (Supreme Court, New York Special Term,
    December, 1907.)
    Easements — Nature and creation — Creation by prescription: Length of user —Effect of infancy' of owner of the fee; Creation as against tenants in common; Nature of user.
    The use of a single track structure with a “ spur ” track and the operation of trains thereon does not constitute a use which for the purposes of prescription the user of the present two track structure, first operated May 1, 1880, can include.
    Where, in an action commenced June 22, 1900, to restrain the operation of an elevated railroad opposite plaintiff’s premises, it appears that one of plaintiff’s predecessors in title was at the time of defendants’ entry upon the premises, May 1, 1880, under age and did not attain majority until the 20th of November following, it will be held that defendants had acquired her rights in the easements by prescription.
    The fact that in 1894 a third track upon which trains were run was constructed upon the original structure in no way affected defendants’ prescriptive right tp the use of two tracks; but, the third track having been originally built without lawful authority, plaintiff was entitled to damages proved to have resulted from the operation of trains upon that part of the structure, though as to the balance of the structure his claim was barred.
    Action for injunction to restrain the operation of defendants’ elevated railway in the street opposite plaintiff’s premises, and for damages.
    Charles H. Strong, for plaintiff.
    Frederick J. Moses and Theodore L. Waugh, for defendants.
   Bischoff, J.

TJpon the question of the effect of infancy of one of the plaintiff’s predecessors in title on the defense of prescription, my opinion in the case of Taggart v. Manhattan Ry. Co., ante, page 184, covers this case.

I do not find that the defendants’ claim of an entry in the month of ¡November, 1876, is supported by the evidence. True, an elevated railway was built opposite the premises in suit at that time; but it was a. single track structure, with a spur ” track; the operating track was placed differently from the present westerly line, and it was afterward removed, and the present structure substituted. The structure, as it now exists, was thus of an entirely different character from that originally maintained; and, within the reasoning employed in the case of American Bank Note Co. v. New York El. R. R. Co., 129 N. Y. 252, the erection of the earlier structure and the operation of trains upon it did not constitute a use to which, for the purpose of prescription, the period of the user of the present structure could relate hack. Therefore, I take the date of entry to be May 1, 1880, when the two track structure, which was continuously operated, was first used.

This action was commenced on June 22, 1900; but it appears that one of the plaintiff’s predecessors in title, Sarah Fullam, was, at the time of the defendants’ entry, under lawful age, and that she did not attain her majority until ¡November 20, 1880. In accordance with the rule of limitations, to which I have referred in my opinion in the Tag’gart case, the period of prescription had run against this prior holder on May 1, 1900; hence, on June 22, 1900, when the action was commenced, the defendants had acquired her rights in the easements by prescription.

By reason of these facts, the plaintiff is not entitled to recover damages to the extent of this one-third of the value of the easements taken. The remaining two-thirds of the property were, at the time of the entry, in the ownership of adult parties; and the defendants’ claim of title by prescription is not affected by the fact that as to one-third the title was in trustees. Scallon v. Man. Ry. Co., 185 N. Y. 359.

The prescriptive right acquired by the defendants (Hindley v. Manhattan R. Co., 185 N. Y. 335) was not affected by the fact that, during the period of adverse user, and in the year 1894, a third track was constructed upon the original structure, and that trains were run upon this third track. The entry was for the purpose of maintaining a railway for the running of trains; and, in accordance with the rule announced in Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202, 223, and Conabeer v. N. Y. C. & H. R. R. R. Co., 156 id. 490, a difference in the extent of the running of additional trains, whether upon the same or a greater number of tracks within the confines of a structure of the same dimensions, would not interrupt the.continuity of use for the purposes of prescription. This third track was, however, unlawful, in that it was originally built without legal authority; and the plaintiff is entitled to damages, as an alternative to an injunction, so far as damages have been proved to have "resulted from the operation of trains upon so much of the structure. Knoth v. Manhattan R. Co., 187 N. Y. 243. The evidence before me indicates the fact of some damage from the maintenance of this track, and I have, therefore, made the award stated below.

As to the structure generally, the claim of the plaintiff is barred, except as to the third track (Stephens v. N. Y. O. & W. R. R. Co., 175 N. Y. 72), for the reasons which I have stated in this memorandum.

There should be judgment for the plaintiff, with costs, and an additional allowance of five per cent, of the gross award for fee and rental damages. Fee damage, $300; rental damage, $30 per annum.

I have noted upon the proposed requests to find, submitted by the defendants, my disposition thereof.

Form of decision and judgment may be presented upon notice of settlement.

Judgment accordingly.  