Stewart v. Metropolitan Elevated Railroad

The Superior Court of New York City

Stewart v. Metropolitan Elevated Railroad

24 Jones & S. 377, 21 N.Y. St. Rep. 472

CourtThe Superior Court of New York City

DecidedJanuary 7, 1889

StatusPublished

This text of 24 Jones & S. 377 (Stewart v. Metropolitan Elevated Railroad) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stewart v. Metropolitan Elevated Railroad, 24 Jones & S. 377, 21 N.Y. St. Rep. 472 (N.Y. Super. Ct. 1889).

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Opinion

By the Court.—Ingraham, J.

The case on appeal contains a statement that “ The case is conceded to contain the substance of the testimony offered by either side upon the trial of this action.”

[381]*381Plaintiff testified that she was the owner and resided in the house in question fronting on Fifty-third street and being eighteen feet nine inches in width on the street. The fact of ownership, and that the premises abutted on the street, must be presumed to have been proved by competent evidence. A photograph of the house in question was received in evidence, but is not printed with the case.

There is no evidence to show how Fifty-third street in front of the premises in question was opened as a street, or as to the ownership of the fee of the street. The abutting owners were, therefore, presumed to own the fee of the street. See Wager v. Troy Union R. R. Co., 25 N. Y. 529, where Smith., J., in delivering the opinion of the court says, “It is an established inference of the common law, that the proprietors of the land adjoining a public highway are the owners of the fee of said highway; that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side presumptively own the soil in fee to the centre of the highway. There is no distinction in this respect between the streets of a city, and highways in the country.”

The plaintiff being presumed to be the owner of the fee of Fifty-third street, the erection of the defendant’s structure on the street was an encroachment upon her freehold and a trespass. Wager v. Troy Union R. R. Co., supra.

It was, therefore, no error to deny the motion of the defendant to dismiss the complaint and the motion to direct a verdict for nominal damages only.

As the only exceptions that appear in the case are the exceptions to these rulings, no other question is presented.

The judgment should therefore be affirmed with costs.

Freedman, J., concurred.

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By the Court.—Ingraham, J.

The case on appeal contains a statement that “ The case is conceded to contain the substance of the testimony offered by either side upon the trial of this action.”

[381]*381Plaintiff testified that she was the owner and resided in the house in question fronting on Fifty-third street and being eighteen feet nine inches in width on the street. The fact of ownership, and that the premises abutted on the street, must be presumed to have been proved by competent evidence. A photograph of the house in question was received in evidence, but is not printed with the case.

There is no evidence to show how Fifty-third street in front of the premises in question was opened as a street, or as to the ownership of the fee of the street. The abutting owners were, therefore, presumed to own the fee of the street. See Wager v. Troy Union R. R. Co., 25 N. Y. 529, where Smith., J., in delivering the opinion of the court says, “It is an established inference of the common law, that the proprietors of the land adjoining a public highway are the owners of the fee of said highway; that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side presumptively own the soil in fee to the centre of the highway. There is no distinction in this respect between the streets of a city, and highways in the country.”

The plaintiff being presumed to be the owner of the fee of Fifty-third street, the erection of the defendant’s structure on the street was an encroachment upon her freehold and a trespass. Wager v. Troy Union R. R. Co., supra.

It was, therefore, no error to deny the motion of the defendant to dismiss the complaint and the motion to direct a verdict for nominal damages only.

As the only exceptions that appear in the case are the exceptions to these rulings, no other question is presented.

The judgment should therefore be affirmed with costs.

Freedman, J., concurred.

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Bluebook (online)

24 Jones & S. 377, 21 N.Y. St. Rep. 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-metropolitan-elevated-railroad-nysuperctnyc-1889.