Hindley v. Manhattan Ry. Co.

• Decision Date: 12 June 1906
• Citation: 185 N.Y. 335,78 N.E. 276
• Parties: HINDLEY v. MANHATTAN RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 335

78 N.E. 276

HINDLEY

v.MANHATTAN RY. CO. et al.

Court of Appeals of New York.

June 12, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John H. Hindley against the Manhattan Railway Company and another. From a judgment of the Appellate Division (93 N. Y. Supp. 53,103 App. Div. 504), affirming a judgment for plaintiff entered on a decision after a trial at Special Term (85 N. Y. Supp. 561), defendants appeal. Reversed, and new trial ordered.

This action was commenced on the 22d of July, 1901, by an abutting owner on the west side of Sixth avenue in the city of New York, to recover damages from the defendants, as the owners and operators of an elevated railroad in said avenue, for an unlawful interference with his easements of light, air, and access, and also to restrain the defendants from further maintaining or operating said road. The complaint was in the usual form in such cases, and the answer also, except that the defendants pleaded as a defense a prescriptive right to maintain their railroad, founded upon open, continuous, and hostile occupation for a period of more than 20 years before the commencement of the action. It was alleged in the complaint, and admitted by the answer, that the elevated road in question was constructed in 1879, and that it has been maintained ever since in the avenue in front of the plaintiff's premises; that it is in the nature of a long iron trestle, extending lengthwise through the street, built by erecting foundations of brick or stone embedded in the earth, with iron columns about 20 feet high resting thereon and supporting a frame of girders and cross-girders, upon which two sets of railroad tracks are laid, and that since the construction of the road it has been operated as a passenger railway by means of locomotives drawing trains of cars upon the elevated structure every day up and down in front of the premises of the plaintiff. The trial court found the facts substantially as alleged in the complaint, and found, as a fact, that the defendants had no prescriptive right to maintain or operate their road in Sixth avenue in front of the plaintiff's premises. The damages already accrued were assessed at the sum of $1,534.65 and judgment was directed therefor against the defendants. The damages to accrue from the permanent operation of the road were assessed at the sum of $3,000 and an injunction was awarded against further maintenance or operation unless the defendants should pay that amount to the plaintiff within forty days after notice of judgment. The Appellate Division unanimously affirmed the judgment entered accordingly, and the defendants appealed to this court.Julien T. Davies and John F. Dillon, for appellants.

Charles F. Brown, for respondent.

William W. Goodrich and W. G. Peckham, for interveners.

VANN, J. (after stating the facts).

As the facts found by the trial court support the conclusions of law, the rule of unanimous affirmance prevents us from reviewing any questions except those relating to the admission of evidence and to the effect of erroneous rulings made in that regard. Those questions as argued before us were as follows: (1) Were settlements made by the defendants with other owners, and proceedings to condemn other property competent evidence for the plaintiff with respect to his property? (2) Were certain petitions presented by the defendants to the state board of tax commissioners in order to secure a reduction of the special franchise tax for the years 1900 and 1901 competent evidence in behalf of the plaintiff?

1. The first of these questions was raised by the admission, subject to objection and exception, of evidence as to all settlements ever made by the defendants, or either of them, with property owners on Sixth avenue from Carmine street to Fifty-Ninth, whether with or without suit, or with or without proceedings in condemnation. These settlements, ranging over a period of 12 years, were nearly 200 in number. A few were voluntary, but nearly all were made after suit brought or proceedings to condemn instituted, and many not until after judgment was rendered. There were numerous settlements in some localities, but few in others, and in others still none at all. Not one related to the block on which the property of the plaintiff is situated. There was no evidence as to the amount paid in any case, or as to the circumstances surrounding the transaction when the settlement was made, or to show that any property sought to be condemned, or embraced in any settlement was ever owned by the plaintiff or his grantors. Neither he nor any predecessor was ever a tenant in common with any owner whose easements were condemned or paid for.

We think this evidence was incompetent, because there was no privity between the plaintiff and any landowner with whom a settlement was made. It was received to meet the defendants' claim of prescriptive right, but it had no bearing on that defense, for an adjustment with A. does not tend to destroy the presumption of a grant from B. The easements appurtenant to A.'s lot are separate and distinct from those appurtenant to B.'s lot, and there can be no community of interest in the easements unless there is a like interest in the lots themselves. Such easements are not coterminous with the street, but, in the absence of special circumstances, of which there was no proof in the case before us, are confined to that portion of the street which is directly in front of the property affected. We regard this proposition as so well settled that the citation of authorities is not required. The question in every case is whether the owner of the particular lot under consideration has actually released the easements appurtenant to that lot, or whether the presumption of a release arises from the lapse of time and the other facts upon which the doctrine of prescription is founded. If a railroad company, in occupation of a right of way through a tract of wild land owned by a dozen persons, should settle with one in order to avoid ejectment, it would be no recognition of any right, real or supposed, of the others, and would not be competent evidence in an action brought by them. When there is no connection, except that of mere location, between the properties of owners settled with and those not settled with, there is no logical basis upon which to admit proof of settlement. Could evidence of settlements with two hundred abutting owners, who were strangers to the title of the plaintiff,be received in his behalf, unless evidence that the defendants had refused to settle with as many more in the same situation could be received in their behalf? Other collateral issues would arise, resembling those which we condemned in the Jamieson and Witmark Cases, and the court would be left to try as many indirect issues as there were separate parcels of property. Jamieson v. Kings Co. Elevated Ry. Co., 147 N. Y. 322, 325,41 N. E. 693; Witmark v. N. Y. El. R. R. Co., 149 N. Y. 393, 398,44 N. E. 78.

The claim that the evidence was competent to show the character of the defendants' entry and the nature of their possession of the easements is not well founded, because prescription rests on the presumption of a lost deed and the right is measured by the extent of the open and notorious user, as to which no question arose in this case. While the presumption is not conclusive but may be rebutted, it cannot be rebutted by proof of settlement with those who never were connected with the particular lot of land in question. An admission that no grant had been made by the plaintiff's neighbors would have no effect on the presumption of a grant from the plaintiff himself. If he were one of those who consented in advance to the construction of the road, how would it benefit him to show that the defendants had settled with some abutting owners who had not consented? White v. Manhattan Ry. Co., 139 N. Y. 19, 34 N. E. 887. His situation, however, if prescription has actually run against him, is the same as if he had in fact given his written consent and the writing were lost. Settlements with other parties who had no community of interest with him would be competent in neither of the cases supposed, and they were not competent in the case be fore us, because an admission of liability to one or to many strangers is not an admission of liability to the plaintiff. The defendant's title may have been perfect as against some owners but imperfect as against others, and hence a settlement with the latter would admit nothing with reference to the former. Moreover, if a suit was threatened or imminent, settlement may have been made, because an action would destroy the prescription, not yet complete. Such settlements do not tend to show that the defendants made no hostile entry in front of the plaintiff's premises, or that they admitted his title to the easements in controversy. The general admission by the defendants that street easements taken by them were subject to individual ownership and that some were still so owned, did not admit that the easements appurtenant to the land of the plaintiff had not been abandoned by him or acquired by them. The acknowledgment of title in Tom and Dick is not an acknowledgment by implication of title in Harry, even if they all owned parcels of land on the same street, for that would imply that all titles on the street had the same history.

2. The second question was raised by the admission in evidence, subject to objection and exception, of portions of a petition in the name of the Manhattan Elevated Railway Company, signed and verified by its vice president on the 9th of April, 1900, and presented to the state board of tax commissioners for the purpose of securing a cancellation or reduction of the assessment upon its special franchise for the year 1900; also portions of a like petition signed and verified by the same officer on the 15th of April, 1901, and presented to...