
    JOHN H. WATSON, Respondent, v. METROPOLITAN ELEVATED RAILWAY COMPANY et al., Appellants.
    
      Action for injunction and damages for construction and operation of railway in front of premises of plaintiff—-Easements of parties owning real estate on the line of streets after their opening—Suspension of injunction after award by commissioners to condemn the property and payment of the award.
    
    In this case the plaintiff acquired title to the property and easements from one Love, after defendants had taken the easements which plaintiff claims to be his property. Love was in possession and the owner of the premises at and before the time the railway was built, and he was entitled to the easement of light, air, access, etc., from the street as appurtenances. The street was opened under the Act of 1813, and the consequences of such opening were that the fee of the bed of the street vested in the city, and the . owners of the abutting lot had, appurtenant to such ownership, the easements, and in the absence of proof that this appurtenance had been extinguished, the presumption would be that it was attached to the lot as owned by Love, and when the defendants took a part of these easements, there was no presumption that they had given due compensation, and it was necessary that defendants should affirmatively allege and prove that they had given due compensation. In the absence of explanation the result of the testimony as given was, that when the plaintiff acquired title from Love, the defendants were wrongfully holding the easement.
    The finding of the court below, made at the request of the defendants, to the effect that defendants before the trial of this action instituted proceedings in the Supreme Court, pursuant to statute, for the condemnation of so much of the privilege, easement or other interest, in West Fifty-third street, as was taken, appropriated or interfered with by defendants, belonging to or claimed by the plaintiff and appurtenant to the lot and premises No. 121, West 53rd street, etc., is an admission that the defendants held their position in front of plaintiff’s premises in subordination to the right of plaintiff for compensation.
    In the absence of explanation, the result of the testimony as given would be, that when the plaintiff acquired title to the premises, the defendants were wrongfully holding the easement. The defendants were not entitled to a provision in the judgment, that the injunction given by it should cease to be operative when any award given in the condemnation proceedings had been paid as directed by statute. They had no absolute right to a provision for a contingency that would occur after the judgment should be given.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided January 6, 1890.
    Appeal from judgment entered upon findings made at special term.
    
      Davies & Rap alio, attorneys, and Edward S. Rapallo, and Edwin D. Worcester, Jr., of counsel, for appellants, argued :—
    I. The court erred in denying the defendants’ motion to dismiss the complaint, and in finding that he was entitled to easements for which he should receive compensation. The court has stated in the case of Pappenheim against these defendants that a serious question is presented as to the right to recover under such circumstances as those disclosed in the case at bar, where the plaintiff has “ acquired title to the premises, to which the easements are claimed to be appurtenant, three or four years after the construction and the commencement of the operation of the elevated railway,” and has failed to connect with the street opening proceeding in which the easements originated, or with the title of some one who, as owner of the premises, had the right to easements prior to the construction of the elevated railroad. In the case of Watson this question is especially brought to the attention of the court by the motion to nonsuit. The grounds stated are in effect that the plaintiff purchased after the road was built and in operation, and with full knowledge of the same; that the evidence failed to show that the railroad was constructed and put in operation there without the consent of the owner at the time of'the construction. The court in ruling upon the motion, says: It seems to me that the plaintiff presents himself in the attitude of one having a paper title to the premises in question, with evidence also of occupation. * * * Now, anything that happens between the grantor of the plaintiff in the way of acquiescence or the abandonment of his claim, that is, of what occurred during his possession and occupation, it would seem to me that that would be a matter to be shown by the defense. In the case at bar the evidence is that the plaintiff acquired title to the property in 1880, at which time defendants’ railway was constructed and the defendants were in possession of the street in front of the owner’s premises, with the consent of the city, in whom the title of the street had previously vested in trust. In considering the validity of the objection it should first be observed that this is an action in which the plaintiff must recover, if at all, by the strength of her own title and not by the weakness of that of the dedefendants. The land upon which the- defendants maintain and operate their railway has been found by the trial judge to belong, not to the plaintiff, but to the city of New York. The right to maintain and operate their railway has been granted them by the owner of the fee as fully as legislative and municipal authority could grant it. With this maintenance and operation the plaintiff attempts to interfere, upon the strength of a covenant made by the owner of the fee with his alleged predecessor in title. It is not a case of trespass upon land of which plaintiff is in possession. The defendants’ possession antedates his. The defendants’ possession began in 1879, and the plaintiff’s in 1880. It is the case of an attempted assertion of easements over land, as against one in possession of the land by authority of the owner of the fee. In such a case it is evident that the plaintiff must succeed, if at all, only by reason of the goodness of his title to the easements which he claims. His position is certainly no stronger than that of a plaintiff in an ejectment suit. He ought certainly to show that he owns the property which he seeks by injunction to compel the defendants to purchase. The easements here in question originated in the opening of the street in 1838, under the Act of 1813, and the payment of an assessment for the benefit of having the street remain open for street purposes by some one who then owned the lot. The reason for the existence of this easement is expressed in forcible and carefully chosen language by Chief Judge Huger in the Lahr Case (104 N. Y 268), and it has never been found necessary or desirable for any court to attempt to restate the doctrine in any other words than those there employed. The learned judge said: “We are of the opinion that no legal difference exists, with reference to the interest acquired by abutting owners in a public street, between that afforded by a title conferred under such a deed as Story had, or that acquired through a serious of mesne conveyances from the original owner, whose property had been taken by proceedings in invitum instituted by the municipality, under a public statute to acquire land for street purposes, which' statute provided that the land thus taken should be held ‘in trust, nevertheless, that the same be appropriated and kept open for or as part of a public street * * * forever in like manner as the other public streets * * * in the said city are and of right ought to be.’ Such proceedings created not only a valid trust in the city for the purposes expressed, which precluded it from authorizing any other use of the land acquired than that expressly described in the statute (Cooley on Const. Limitations, 331), but also constitute a contract between the public and the abutting owners severally, by which the liabilities, rights and interests of the respective parties are to be measured, and the enjoyment of their respective interests in the property (retained as well as acquired) regulated and determined. The covenant implied from the language of the statute, and the proceedings taken thereunder, was made with and intended for the benefit, among others, of abutting owners, and is a covenant which runs with the land, and inures to the advantage of each successive grantee as he succeeds to the title.” The proposition does not admit of argument, that in order to maintain this action upon the theory of the Lahr case, it was necessary for the plaintiff to show that he had “ succeeded to the title ” of the person at that time owning the lot; that he was one of the “ successive grantees ” of these premises; that his title was “ acquired through a series of mesne conveyances from the original owner.” In order for him to enforce the “ trust,” “ covenant,” or “ contract” referred to, he must put himself in privity with it. If he was to prove title to the alleged easements at all, he could do it only by connecting himself with a known source of title. He could not rely upon adverse possession as proof of title, as (he) might if title to land were in question, for the easements were not susceptible of possession, nor was their enjoyment ever adverse to any one, so that an action might have been maintained against her if it was wrongful. Burbank v. Fay, 65 N. Y. 57; Wheeler v. Clark, 58 Ib. 267. Any grantor of Watson may have acquired title to the premises themselves by adverse possession, and yet Watson may not be entitled to the full enjoyment of these easements, as against defendants, who are in possession before Watson. This essential fact could of course be shown by presumptive as well as by direct evidence, but in some manner it must have been made to appear, or the complaint should have been dismissed. There appears to arise no presumption of the existence of the conveyance from the owner in 1838 to Watson or to Watson’s grantor. The presumption of a conveyance which has been lost or for some other reason cannot be produced, is well known to the law, and the rules of law regarding the making of such presumptions are exceedingly well defined. The first requisite of such presumption is a great lapse of time. In Jackson v. Moore, 6 Cow. 706, the court said: “A grant of land will never be presumed unless the lapse of time is so great as to create the belief that it was actually made; or unless the facts and circumstances in the case show that the party to whom it is presumed to have been made was- legally or equitably entitled to it.” This statement is quoted and adopted in Demeyer v. Legg, 18 Barb. 22. In Schauber v. Jackson, 2 Wend. 13, Chancellor Walworth said: “ There are two kinds of presumption in favor of a grant or conveyance of real estate. The one is in favor of those who are entitled to a conveyance from trustees of others, in conformity to the trust, or in pursuance of some contract or agreement to give such conveyance * * * The other is in favor of a person who is in possession of property, or in the enjoyment of some privilege or easement under a claim of right; in which case, under certain circumstances and after a great lapse of time, a conveyance of the land or grant of the privilege or easement will be presumed, on the principle of quieting the title or possession.” The phrase, “a great lapse of time,” is technical and is always used in this connection. Russell v. Jackson, 22 Wend. 276; 1 Greenleaf on Evidence, § 46. Some of the times held sufficient to raise the presumption, are the following: Jackson v. Lunn, 3 Johns. Cas. 109.—35 years; Demeyer v. Legg, 18 Barb. 22.—66 years; Dutch Church v. Mott, 7 Paige, 77.—140 years; Van Dyck v. Van Bueren, 1 Cai. 84.—50 years; Jackson v. Murray, 7 Johns. 5.—120 years; Jackson v. McCall, 10 Ib. 377.—41 years; Jackson v. Matsdorf, 11 Ib. 90.—38 years; Jackson v. Moore, 13 Ib. 513.—32 years; Russell v. Jackson, 22 Wend. 276.—90 years. The above list of New York cases is very nearly complete. The courts have seldom been asked to presume a conveyance made since the recording acts went into operation, and, so far as is known to uss; never with success. See 1 Greenleaf on Evidence, 14th Ed., p. 63, note 4. The decisions are to the effect that such a presumption will arise only in support of a possession of at least twenty years’ duration. Jackson v. Moore, 6 Cow. 706, 723 ; Downing v. Ford, 9 Dana, 391; Anderson v. Smith, 2 Mack. 280. The evidence in this case does not tend to show any possession by the plaintiff prior to 1880, or about four years before the action was brought. There has been a complete failure on the part of the plaintiff to establish privity with 'the covenant or trust which he seeks to enforce. It is immaterial of what nature may have been any authority from the then owners of the easements in question, even though it consisted in a mere license, as soon as it became executed by the erection of a permanent structure for railroad purposes, worked an extinguishment pro tanto of the easements affected by the structure and its use. This is conclusively established by the decisions. 2 Washburn on Real Property, 284; Washburn on Easements, Chap. 5, Sec. 7; Cartwright v. Maplesden, 53 N. Y. 622; St. Vincent Orphan Asylum v. City of Troy, 76 Ib. 113; Dyer v. Sandford, 9 Metc. 395; Winter v. Brockwell, 8 East., 308; Morse v. Copeland, 2 Gray, 302. Therefore, the easements, if any, which passed to the plaintiff by the deed from his immediate grantor were those which such grantor had at that time, viz., easements which had been abridged, by the owner’s consent, to such" an extent as to permit of the construction and operation of the railway.
    II. The court erred in permitting a judgment to be entered enjoining the defendants from operating their railway upon the condition that defendants should pay for the property taken $12,000, and in refusing to direct that the injunction should become inoperative in case the defendants ' should pay the award of the commissioners in the condemnation proceedings which the court found had been commenced and was still pending. The court made a finding to the effect that such proceedings had been instituted and were still pending undetermined in the supreme court. The court was requested to so frame the decree that the proceedings might be continued and the injunction obviated by the payment of the award of the commissioners in those proceedings. The Court of Appeals in the case of Henderson v. The New York Central R. R. Co., in passing upon a similar decree in an equity action, decided that in the case of a decree containing an injunction which declared that such injunction should not be operative in case a certain sum found to be the value of the property taken was paid by the defendant, the payment of such sum found was not obligatory upon the defendant, but that the defendant, possessing the power of eminent domain, might exercise the statutory right irrespective of the finding end might obviate the injunction by acquiring the property in the method pointed out by the statutes.
    
    
      Edwin M. Felt, for respondent, argued :—
    I. The conveyance to plaintiff from Samuel Love and wife dated August 16, 1880, was a full warranty deed, and contained the following recital: “Being lot numbered 63, conveyed by James Bo we and Mary C., his wife, to the said Samuel Love, by deed dated December 18,1849, and recorded in the office of the Register of Deeds of the city, and county of New York, in Liber 533 of Conveyances at page 403, January 29th, 1850.” This shows that Love claimed to hold the premises by paper title since 1849. Love was also in possession and occupation of the lot prior to the building of the road in 1879. These findings, as requested.by the defendants, are as follows : Fourth, that on or about August 16th, 1880, after said railroad was erected and in operation, the plaintiff took a deed of the premises, No. 121 West 53d street, from Samuel Love and wife, who were in occupation thereof, for the consideration of $7,000, which he paid. Said premises were bounded in said deed by the side line of the street. Fifth, that said Love had been living in a frame house on said premises for several years prior to the date of said conveyance to the plaintiff, and renting part of said premises, but what title, if any, he had thereto is not proven. Now the law presumes the party in possession to be the owner. He is presumed to have the best title known to the law, namely, seizin in fee. Hill v. Draper, 10 Barb. 454; Bowen v. Bowen, 30 
      N. Y. 519; Bogardus v. Trinity Church, 4 Sand. Ch. 633. The law presumes that Love’s title was good. Blunt v. Aiken, 15 Wend. 522. So that we have Love in possession several years before August, 1880, with a presumptively good title, and in addition his covenant in his deed to plaintiff that the premises he sold were the same premises which were conveyed to him by Rowe in December, 1849. The occupation of this street by the defendants, being pursuant to legislative grant or license, which only gave them what the public owned, entry under this license is presumed to have been in subordination to the rights of the -owner. Broistedt v. South Side R. R., 55 N. Y. 220. The facts in the above case were that the plaintiff purchased after the road was running and filed his bill to enjoin them on the ground that they were running over his property. The Court of Appeals sustained the injunction. The opinion of this court in Clover v. The Manhattan R’y Co., 51 Super. Ct. 1, on pages 12 and 13, sustain the theory that as long as these easements belonged to the abutting property on a street, an owner could recover the damages sustained since he became the owner; it says, “ It can make no difference at what time he became the owner of the •property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendant appropriated it or on the day before the commencement of the action.”
    II. The question who could maintain such an action as this against the defendants was fully raised and discussed in Story v. The N. Y. Elevated, 90 N. Y. 122. On pages 130 and 131 of that case the court will find that counsel contended for two propositions, which we understand were sustained by the court. 1st. The plaintiff as a mere abutting owner has an absolute right to protect the street in front of him for ordinary street uses. 2d. The interest of the abutting owner, his right to light and air and ventilation, and freedom of access, his exemption from annoyance is property, and it can only be taken from him by legal process and for just compensation. It being conceded in this case that 53d street was opened under the act of 1813, the plaintiffs deed and possession constitute him an abutting owner, and he can maintain such an action as the present one against any one who unlawfully deprives him of his property during the time he so. owns, irrespective of what it did to prior owners. In Glover v. Manhattan, 51 Super. Ct. 1, the defendants claimed that Grlover (who purchased after the road was built) could not recover as the damage was done before he purchased. In reply to this proposition Mr. Justice Ingraham says : “ The building of the road is not complained of, the use of the road before plaintiff purchased is not complained of, but the occupation and use of plaintiff’s property in the future is what the plaintiff asks the court to restrain, and for the use of such property since he purchased it, plaintiff asks compensation.” As this street was therefore opened under the Act of 1813 it was charged with the trust specified in the statute, which ensued not only to the benefit of the owner of the adjoining land at the time of the opening, but to every subsequent abutting owner. The only way for the defendants to have acquired these easements was either by purchase, or proceedings under the statute; they do not claim to have acquired them by either of these two methods ; had they done so it would have been a defence and their answer would have shown it. As they claim to have acquired them by legislative grant, and that could only give them what the public owned, their use of the street is presumed to be in subordination to the rights of the owner. Broistedt v. South Side R. R., 55 N. Y. 220 ; Pond v. Metropolitan Ry. Co., 112 Ib. 178 ; Hussuer v. Brooklyn City R. R., 114 Ib. 433.
   By the Court.—Sedgwick, Oh. J.

This is an action for an injunction against the defendants running their elevated railway in front of premises of plaintiff and for damages.

The only point that calls' for particular attention is based upon the fact, that the. plaintiff acquired title by conveyance from one Love, after the defendants had taken the easements, which the plaintiff claims to be his property. On the trial, and on this appeal,'the defendants claimed that there was no evidence that the railroad was constructed and put in operation there without the consent of the owner at the time of construction.

To this two answers may be made. The first is, that it appears that Love, the grantor of plaintiff, was in possession' of the premises at and before the time the railway was built, and that Love was then entitled, as owner of the lot, to the easements as appurtenances. This title would exist upon common law rules if there were not proof that the street had been opened under the act of 1813. The consequences of this opening were that the fee of the bed of the street-went to the city, and the owners of the abutting lots had, appurtenant to them, the easements. In the absence of proof that this appurtenance had been extinguished or conveyed, the presumption would be that it was attached to the lot, as owned by Love. When the defendants took part of these easements, when owned by Love, there was no presumption that they had given due compensation. They appeared to be trespassers; and to show that the contrary was the fact it was necessary for the defendants to affirmatively allege and prove that they had given due compensation. This seems to me to be strengthened by the second answer to the defendants’ proposition.

The second answer is, that the defendants, as found at their request before the trial of this action, instituted proceedings in the Supreme Court, pursuant to statute for the condemnation of so much of the privilege, easement or other interest in West Fifty-third street, as was taken, appropriated or interfered with by the construction and maintenance of their railroad belonging to or claimed by the plaintiff and appurtenant to the lot and premises No. 121 West Fifty-third street, etc. This is an admission that the railroad holds their position in front of plaintiff’s premises in subordination to the right of plaintiff to compensation. In the absence of explanation the result of the testimony, as given, would be that when the plaintiff acquired title, the defendants were wrongfully holding the easement.

The court below was justified in holding, that the defendant was not entitled to a provision in the judgment that the injunction given by it should cease to be operative, when any award given in the condemnation proceedings, already referred to, should be paid as directed by the statute. The defendants had no absolute right to a provision for a contingency that would occur after the judgment should be given. At that subsequent time the defendants' might assert and enjoy all the advantages given by the law with regard to the facts as they should then appear.

The judgment should be affirmed with costs.

Freedman J., concurred.

Same case.

Same term.

Appeal oy defendants from order denying their motion to permanently suspend the operation of the injunction given by the judgment.

Same counsel.

By the Court.—Sedgwick, Ch. J.

The judgment referred to, is the judgment that has just been affirmed.

The motion asked that the injunction be suspended permanently or perpetually. The ground of the motion was, that since the judgment an award had been made in proceedings taken to condemn the property of plaintiff, which was the easement that the court found in the judgment had been appropriated by the defendants, and that such award had been paid into court as directed by the statute.

There was no objection made by the plaintiff as to the regularity of the proceedings. The motion was resisted on two grounds. One was, that the judgment had adjudicated that the value of the property taken was greater than that awarded in the condemnation proceedings. The other was, that the judgment had adjudicated that the defendants were not entitled to a dissolution of the injunction upon payment of an award in condemnation proceedings.

It is true that for the purpose of determining when the injunction in the judgment, might, as a privilege to defendants, be put at an end, the court found the value of the easement taken. This, however, was to be the cpnsideration for which the plaintiff was to convey to the defendants the property. The substantial provision was that when the plaintiff ceased to own, and the defendants became owners, the injunction should not be continued further. The judgment did not intend that if the defendants became owners, on whatever terms, they should not enjoy the legal consequences of being owners.

I do not think that there was any adjudication in the action that, upon the payment of the award in the future, the defendants would not have a right that .the injunction be ended. The whole force of the refusal to find as requested by the defendants on that subject, was that in the then condition of the facts such a provision should not be made. The question was not raised as to what would be the rights of the defendants, after an award was in fact paid.

No objection was taken as. to the propriety of the remedy invoked, if the merits were with the defendants. There seems to be no objection to such relief being had upon motion.

In my judgment, if in fact the defendants have become the owners of that part of plaintiff’s easement which the injunction prevented them from further using, the plaintiff has ceased to have a right to an injunction. And the only question to be answered is, Have the defendants become such owners ?

The 18th section of the General Railroad Act, passed April 2, 1850, declares that “ on the payment or deposit by the company of the sums to be paid as compensation for the land, and for costs, expenses and counsel fees, as aforesaid, and as directed by said order, the company shall be entitled to enter upon, take possession and use the said land for the purposes of its incorporation during the continuance of its corporate existence, * * and all persons who have been made parties to the proceedings shall be divested and barred of all right, estate and interest in such real estate, during the corporate existence of the company.”

The order appealed from should be reversed and the motion should be granted. Neither side has adverted to the proper terms or conditions of such an order. Suggestions of both sides will be heard upon the settlement of the form of the order which is to be upon notice.

Freedman, J., concurred.  