Bremer v. Manhattan Ry. Co.

• Decision Date: 03 March 1908
• Citation: 191 N.Y. 333,84 N.E. 59
• Parties: BREMER et al. v. MANHATTAN RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

191 N.Y. 333

84 N.E. 59

BREMER et al.

v.MANHATTAN RY. CO. et al.

Court of Appeals of New York.

March 3, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Samuel Parker Bremer and others, testamentary trustees under the will of John L. Bremer, deceased, and others, against the Manhattan Railway Company and another. From a judgment of the Appellate Division (113 App. Div. 905,99 N. Y. Supp. 1135), affirming a judgment of the Special Term in favor of plaintiffs, defendants appeal. Affirmed in part, and reversed and new trial ordered in part.

J. Osgood Nichols, for appellants.

J. Aspinwall Hodge, for respondents.

CULLEN, C. J.

This action is brought by an abutter to recover damages to his property occasioned by the construction and maintenance of an elevated railroad on West Broadway, in the city of New York. In addition to the usual features of such an action, it seeks to compel the removal of a portion of the defendants' station which extends into Franklin street beyond the line of West Broadway. The trial court awarded the plaintiffs a judgment for rental damages and an injunction against the maintenance of the railroad unless the defendants paid the plaintiffs the damages assessed for the fee, and also a mandatory injunction compelling the defendants to remove so much of the station as lay beyond the lines of West Broadway. The court found the damage caused to the plaintiffs' property by the station extension to be the sum of $1,500, but it gave the defendants no option to retain the structure on payment of said sum. The judgment having been affirmed unanimously by the Appellate Division, an appeal is brought to this court.

The defendants pleaded title by prescription; and it is undisputed on the evidence and found by the trial court that more than 20 years prior to the commencement of the action the defendants entere dupon West Broadway under the charter from the rapid transit commission and the acts of the Legislature, constructed their road, and have ever since maintained and operated it. To defeat the defendants' claim of title by prescription, and to show that defendants' entry was not in hostility to the rights of the plaintiffs to easements of light, air, and access, the plaintiffs proved, over objection and exception, the defendants' payment of damages to and settlements with other abutters, and also the returns made by them to the tax commissioners. The evidence was substantially the same as that offered in Hindley v. Manhattan Railroad Company, 185 N. Y. 335, 78 N. E. 276, for the admission of which we reversed the judgment in that case. Our former decision renders it necessary to make the same disposition of this case, unless the distinction sought to be drawn by the learned counsel for the respondents between the records in the two cases makes our previous decision inapplicable.

It is first urged that in the Hindley Case the only evidence to defeat the defendants' claim of prescription was the objectionable evidence referred to, while in this case there is other sufficient evidence to support the decision of the trial court. The circumstances of the entry, construction, maintenance, and operation of defendants' railroad was the same in both cases. The plaintiffs did, however, prove that since the original entry the defendants had increased the length of their trains, changed the method of operation of their road from steam to electricity, and for that purpose had laid a third rail, and made some trivial changes in the structure, such as a plank walk by the side of the tracks. On these facts it is contended that the defendants changed the character and increased the extent of the user. If this proposition were conceded, it would not support the judgment. The rule doubtless is that a right acquired by prescription is limited to the extent of the use and enjoyment of it during the period of prescription. At the same time, however, if, during the period of prescription, the user is increased, but has not been enjoyed for sufficient length of time to give title by prescription, this will not destroy the title acquired to the lesser use. In Baldwin v. Calkins, 10 Wend. 167, it was held that, where after flowing lands of another for 10 years by means of a dam of a certain height the party by a new dam raised the water higher and flowed more land, he would be justified to the extent of the original flowage after the lapse of 20 years from the erection of the first dam. See, also, Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197. In the present case the plaintiffs have recovered damages for the total user, not merely for the increased user. In truth, however, we do not regard the increase in the length or frequency of the trains or in the change of motive power as an increase of user within the doctrine stated. Doubtless an easement to maintain a culvert to drain six acres will not justify the drainage of 60 acres through it; nor will a grant of a right of way to one farm authorize its use as a way to other farms. By improvements on the six acres the flow through the culvert might be rendered much greater and also by improvements on the farm the travel over the right of way might be increased. In neither of these cases, however, would there be, in a true sense, any increase of the user. In the case before us the right asserted and exercised by the defendants was the construction and operation of an elevated railroad track as an entity. The operation and length of the trains...