Potteb, J.
There are two questions to be considered and decided upon this appeal: The first relates to the plaintifFs title to the premises described in the complaint, including the easements of access, air and light, or her right to damages in consequence of the alleged interference therewith by the structure and operation of the railroad by the defendants, and the second relates to the nature and measure of the damages the.
plaintiff may legally recover of the defendants and the mode of enforcing the judgment for any damages that may be awarded to the plaintiff.
It is quite manifest from a study of the record in this case that the question of damages formed the main contention in the court below. Still the question of title may be said to fairly arise upon this appeal and was fully discussed in the very able and elaborate brief of the appellants’ counsel.
It is insisted in behalf of the appellants that the courts below erred in holding the following propositions: (1) That the plaintiff established title to the lot and to the rights in the street appurtenant to the lot; (2) That the plaintiff is entitled to compensation for the diminution ($9,000) of the market value of the lot caused by the completion of the road before she purchased the premises and that the defendants be restrained from continuing the road unless that sum is paid.
The trial court found as facts: “ First. That the plaintiff is now and has been since the 29th day of November, 1881, seized of an estate of inheritance in fee simple absolute in premises No. 138 West 53rd street in the city of New York and in all the easements and hereditaments thereunto appertaining. To this finding the defendants filed the following exception :
“
To so much of the first finding of fact as finds that the plaintiff is seized of an estate of inheritance in fee simple absolute in the premises there mentioned.” This finding is now challenged as one “ without any evidence tending to sustain it.” (Code O. P. § 3.)
The question upon the record before this court is not simply whether the plaintiff had proved her title when she rested, upon the trial of the ease, but whether there was sufficient evidence introduced by plaintiff or defendant or by both when the evidence was finally closed and submitted, to support the finding of title in the plaintiff made by the trial court.
Four deeds, the first from Mrs. Eising, dated December 31, 1878, by which the grantor assumed to convey the lot in fee with the appurtenances, and under which the plaintiff claims to have acquired title, were received in evidence without objec
tian being taken that the grantors were not shown to have had title or possession of the subject of their grant at the date when they assumed to convey. Indeed none of the evidence, written, or oral, relating to the plaintiff’s title or possession was objected to by either of the defendants. It was proved and it remained undisputed that the plaintiff had resided on lot Ho. 138 since March, 1879. The learned counsel for the defendants proved by his cross-examination of George W. Hughes that he, Breen and Hason bought the lot from Eising in December, 1878, that they owned it, that Breen and Hason afterwards conveyed their two-thirds to him, and to quote the language of the witness, “ I became then the sole owner of the premises.” This witness, having title, conveyed the lot to Eitzsimmons Hovember 29, 1881, who, on the same day conveyed it to the plaintiff. Besides this evidence, the defendants introduced in evidence a mortgage upon the premises described in the complaint made by Augusta Eising (one of the predecessors in the plaintiff’s title) to John W. Stevens on December 31,1878, to prove that said mortgage was a lien upon said premises. Of course it could not be a lien unless the mortgagor had some title or interest in the premises. On the same day that the mortgage was made and presumptively subsequent to the making of it, Augusta Eising gave the deed in the chain of plaintiff’s title to Breen, Hason and Hughes.
The defendant proved the mortgage no doubt for the purpose of raising the question that the holder of the lien of the mortgage was a necessary party to the action.
But when this evidence was in the case it was in for any other purpose it might legitimately serve.
It served to show title in plaintiff’s grantors about a month before the road was completed and several months before it was operated by the defendants or either of them. And the
defendants also proved that this
house and lot was sold by Stevens to Eising in 1868 and that Eising was the grantor of Hughes. It is true this was proved by paroi, there being no objection by plaintiff to that mode of proof. It does not lie in the mouth of the defendants upon this appeal to raise any
question as to their o.wn mode of proving facts nor to the facts proved by their method. This sale of the lot in question
to Eising, grantor of Hughes <& Hason,
was ten years or so before the defendants began to construct the road. The plaintiff proved by witness John W. Stevens, without objection, that he owned the lot, built and sold the house in question in 1867 or 1868. This was some ten or eleven years before the defendants built or run the road and even before the road was chartered, which was in 1875 or 1876. This witness also testified, without objection, that he bought the lot and built the house in question and sold all his lots, including this one in question, previous to 1871.
In the face of this undisputed evidence and in the absence of any assertion during the trial or request to find that the plaintiff was without title to Ho. 138, or that any other person owned or claimed to own it, it cannot be held that the finding that the plaintiff had title to the lot in fee simple was without any evidence tending
tp
sustain it.
The finding above quoted contains two independent propositions ; one relating to the title to the lot and the other to the title to the street rights appertaining to the lot. The exception above quoted, which was the only one filed to this finding, relates solely to the title to the lot. But the court also found as facts:
“
Six. That attached to the plaintiff’s premises above described and as a part thereof, was and is an easement of light, air and access over said Fifty-third street and appurtenant thereto, in front of and adjoining said premises, of which easement the plaintiff has been possessed since Hovember 29, 1881.” “ Seventh. That plaintiff acquired with said premises that right to have said Fifty-third street kept open and used as a public street and highway.” The defendants filed exceptions to these findings and requested the court to find the converse, which was refused, to which refusal the defendants excepted. These exceptions raise the question whether there is any evidence tending to sustain the finding that the plaintiff acquired title to the rights in the street.
(Roberts
v.
Tobias,
120 N. Y. 1.)
Free access — add to your briefcase to read the full text and ask questions with AI
Potteb, J.
There are two questions to be considered and decided upon this appeal: The first relates to the plaintifFs title to the premises described in the complaint, including the easements of access, air and light, or her right to damages in consequence of the alleged interference therewith by the structure and operation of the railroad by the defendants, and the second relates to the nature and measure of the damages the.
plaintiff may legally recover of the defendants and the mode of enforcing the judgment for any damages that may be awarded to the plaintiff.
It is quite manifest from a study of the record in this case that the question of damages formed the main contention in the court below. Still the question of title may be said to fairly arise upon this appeal and was fully discussed in the very able and elaborate brief of the appellants’ counsel.
It is insisted in behalf of the appellants that the courts below erred in holding the following propositions: (1) That the plaintiff established title to the lot and to the rights in the street appurtenant to the lot; (2) That the plaintiff is entitled to compensation for the diminution ($9,000) of the market value of the lot caused by the completion of the road before she purchased the premises and that the defendants be restrained from continuing the road unless that sum is paid.
The trial court found as facts: “ First. That the plaintiff is now and has been since the 29th day of November, 1881, seized of an estate of inheritance in fee simple absolute in premises No. 138 West 53rd street in the city of New York and in all the easements and hereditaments thereunto appertaining. To this finding the defendants filed the following exception :
“
To so much of the first finding of fact as finds that the plaintiff is seized of an estate of inheritance in fee simple absolute in the premises there mentioned.” This finding is now challenged as one “ without any evidence tending to sustain it.” (Code O. P. § 3.)
The question upon the record before this court is not simply whether the plaintiff had proved her title when she rested, upon the trial of the ease, but whether there was sufficient evidence introduced by plaintiff or defendant or by both when the evidence was finally closed and submitted, to support the finding of title in the plaintiff made by the trial court.
Four deeds, the first from Mrs. Eising, dated December 31, 1878, by which the grantor assumed to convey the lot in fee with the appurtenances, and under which the plaintiff claims to have acquired title, were received in evidence without objec
tian being taken that the grantors were not shown to have had title or possession of the subject of their grant at the date when they assumed to convey. Indeed none of the evidence, written, or oral, relating to the plaintiff’s title or possession was objected to by either of the defendants. It was proved and it remained undisputed that the plaintiff had resided on lot Ho. 138 since March, 1879. The learned counsel for the defendants proved by his cross-examination of George W. Hughes that he, Breen and Hason bought the lot from Eising in December, 1878, that they owned it, that Breen and Hason afterwards conveyed their two-thirds to him, and to quote the language of the witness, “ I became then the sole owner of the premises.” This witness, having title, conveyed the lot to Eitzsimmons Hovember 29, 1881, who, on the same day conveyed it to the plaintiff. Besides this evidence, the defendants introduced in evidence a mortgage upon the premises described in the complaint made by Augusta Eising (one of the predecessors in the plaintiff’s title) to John W. Stevens on December 31,1878, to prove that said mortgage was a lien upon said premises. Of course it could not be a lien unless the mortgagor had some title or interest in the premises. On the same day that the mortgage was made and presumptively subsequent to the making of it, Augusta Eising gave the deed in the chain of plaintiff’s title to Breen, Hason and Hughes.
The defendant proved the mortgage no doubt for the purpose of raising the question that the holder of the lien of the mortgage was a necessary party to the action.
But when this evidence was in the case it was in for any other purpose it might legitimately serve.
It served to show title in plaintiff’s grantors about a month before the road was completed and several months before it was operated by the defendants or either of them. And the
defendants also proved that this
house and lot was sold by Stevens to Eising in 1868 and that Eising was the grantor of Hughes. It is true this was proved by paroi, there being no objection by plaintiff to that mode of proof. It does not lie in the mouth of the defendants upon this appeal to raise any
question as to their o.wn mode of proving facts nor to the facts proved by their method. This sale of the lot in question
to Eising, grantor of Hughes <& Hason,
was ten years or so before the defendants began to construct the road. The plaintiff proved by witness John W. Stevens, without objection, that he owned the lot, built and sold the house in question in 1867 or 1868. This was some ten or eleven years before the defendants built or run the road and even before the road was chartered, which was in 1875 or 1876. This witness also testified, without objection, that he bought the lot and built the house in question and sold all his lots, including this one in question, previous to 1871.
In the face of this undisputed evidence and in the absence of any assertion during the trial or request to find that the plaintiff was without title to Ho. 138, or that any other person owned or claimed to own it, it cannot be held that the finding that the plaintiff had title to the lot in fee simple was without any evidence tending
tp
sustain it.
The finding above quoted contains two independent propositions ; one relating to the title to the lot and the other to the title to the street rights appertaining to the lot. The exception above quoted, which was the only one filed to this finding, relates solely to the title to the lot. But the court also found as facts:
“
Six. That attached to the plaintiff’s premises above described and as a part thereof, was and is an easement of light, air and access over said Fifty-third street and appurtenant thereto, in front of and adjoining said premises, of which easement the plaintiff has been possessed since Hovember 29, 1881.” “ Seventh. That plaintiff acquired with said premises that right to have said Fifty-third street kept open and used as a public street and highway.” The defendants filed exceptions to these findings and requested the court to find the converse, which was refused, to which refusal the defendants excepted. These exceptions raise the question whether there is any evidence tending to sustain the finding that the plaintiff acquired title to the rights in the street.
(Roberts
v.
Tobias,
120 N. Y. 1.)
The right of an owner of a lot abutting on a public street in a city to use and enjoy the light, air and access afforded by the street is an appurtenance of his lot and his property for which, in case it is taken for purposes inconsistent with street uses, compensation must be made; and in case it is not taken, but is injured by such uses, the damages sustained, if any, may be recovered. The use of a street by an elevated road for carrying passengers within the city is held to be a use which is inconsistent with the purposes for which city streets are designed.
(Kane
v.
N. Y. E. R. R. Co.,
125 N. Y. 164.)
These street rights of an abutting owner are not originated by grant in terms of such incidental rights and their existence need not be established by conveyances in specific terms conveying such right, for there are none; nor by adverse possession by an abutting owner, for the right is incapable of such possession as against the city.
(Driggs
v.
Phillips,
103 N. Y. 77; Elliott R. & S. 665.) The private rights appurtenant to abutting lots arise by operation of law from contiguity, like rights for the adjacent and subjacent support of land, and their existence is presumed.
(Kane
v. N.
Y. E. R. R. Co.,.
125 N. Y. 164, 185.) To prevent a misapplication of this rule it will be well to define the term
“
abutting lot.” It denotes-a lot bounded on the side of a public street, in the bed or soil of which the owner of the lot has no title, estate, interest or private rights except such as are incident to a lot so situated. The presumption existing in favor of the abutting lot may be .rebutted by showing that the rights have been parted with in any of the modes by which incorporeal hereditaments may be transferred, surrendered or lost. The burden of rebutting the presumption is on him who claims to have acquired such right.
(Haight
v.
Price,
21 N. Y. 241; Wash, on Eas. [2d ed.] 221, 283.) To rebut this presumption, the defendant proved that, for three years before the plaintiff acquired title to the lot, the light, air and access from the street had been continuously interrupted by the elevated road in the same mannfer and substantially to the same extent as it was when the action was begun. They also proved that the Metropolitan Eailway Com-
pony had begun, proceedings, which were then pending, to acquire from the plaintiff by condemnation the right, as against this lot, to maintain and operate the elevated road in front of these premises. In the petition filed, which was served on the plaintiff, the right sought to be acquired by condemnation is thus described: “ Also so much of the privilege, easement or other interest in said 5'3d street, as is interfered with by the construction and maintenance of the elevated road of the petitioner herein, belonging to or claimed by Mary E. Hughes and Henry "Wiener, or appurtenant to the lot and premises known as number 138 "West Fifty-third street, and bounded and described as follows * * * being the same premises conveyed to said Mary E. Hughes by a deed of Thomas Fitzsimmons, dated the 29th day of November, 1881; * * that your petitioner, upon information and belief, has not been able to acquire title to the aforesaid lands, tenements, hereditaments and appurtenances.” The petition was signed by the Metropolitan Elevated Eailway Company and verified by the assistant secretary and treasurer of both corporations, and was introduced in evidence in behalf of both defendants. Under this state of the evidence, it cannot be held that there is none tending to sustain the finding that the plaintiff owns the street rights.
The petition also set forth that the defendants had been unable to agree upon a price for the purchase of these easements from the owner of them for the reason that the owner would not sell them to the defendants for a reasonable price. The defendants set forth fully these proceedings and their pendency in a court having jurisdiction to transfer the title to these easements to the defendants upon payment or deposit of the compensation to be awarded to the plaintiff for the deprivation of them.
The trial court found as a fact that such proceedings had been taken by the defendant; that the plaintiff had been duly-served and brought into court in the proceeding, and that the proceeding was pending at the time of the trial of this action.
This, it seems to me, is a very clear admission upon the part of the defendants that they did not own these easements, or have the right to interfere with their use or enjoyment by the owner; for it is not usual or reasonable that either individuals or corporations should take legal proceedings to compel a sale to them of property, and the payment of an award by them for property they already own, and justifies the remark of the court in its opinion in
Watson
v.
Met. E. R. Co.
(29 N. Y. S. R. 513):
“
This is an admission that the railroad holds their position in front of the plaintiff’s premises in subordination to the right of plaintiff to compensation.”
The real and substantial contention in this case was whether the plaintiff was entitled to recover the nine thousand dollars awarded to the plaintiff for the damages to the fee of the premises as a condition of defendants being allowed to continue the structure and the operation of the railroad.
The injury from which this species of damage arises was commenced when the defendants began to erect the structure, and has been continued and increased by subsequent use of the easements by the defendants. There is no occasion for any further discussion of the grantee’s light to recover the permanent or fee damages from the time of the erection of the structure and the operation of the road to the time of the trial of this action. This court has recently affirmed such right in the case of
Pappenheim
v.
Met. E. R. Co.
(128 N. Y. 435), in a very able and exhaustive opinion by Judge Peckham, in which all the members of the court concurred. The action in that case was the same in form, brought for the ¡same relief, and involved the same questions as the case under consideration.
The appellants’ counsel have not discussed any exceptions to the rulings in relation to the reception or rejection of evidence, and I do not think any of them require consideration.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. .