Ward v. Metropolitan Elevated Railway Co.

Martin, J. The opinion of the learned General Term, in which all the questions involved in this case are fully considered, renders any extended discussion of them unnecessary, and we need do little more than to announce our conclusions. The first question to be determined is whether the release executed hv the plaintiff’s grantor to the defendants effected an abandonment of her easement of light, air and access afforded by the street in front of the premises. Relying upon the case of White v. Manhattan R. Co. (139 N. Y. 19), the courts below held it did. We think the doctrine of that case, which was approved in Foote v. Met. Elevated R. Co. (147 N. Y. 367), fully supports their decisions and they should be upheld. The plaintiff, however, claims that even if that wras the effect of the release, still it was a conveyance which falls within the provisions of the Eecording Act, and as the plaintiff’s deed was first recorded, he acquired a better title than his grantor possessed when such conveyance was made. If it be assumed that the release to the defendants was a conveyance within the meaning of the Eecording Act, which we do not decide, yet, as the defendants were in open, visible and notorious possession of all the rights acquired by or released to them and their possession was inconsistent with the title in the plaintiff’s grantor to a full right to the easements of light, air and access afforded by the street, it operated as a notice to the plaintiff of the defendants’ rights therein. (Phelan v. Brady, 119 N. Y. 587; Page v. Waring, 76 N. Y. 463, 470; Brown v. Volkening, 64 N. Y. 76; Holland v. Brown, 140 N. Y. 344, 347.) That principle applies to easements in the possession of an elevated railway as well as to other property. (Mitchell v. Met. El. R. Co., 134 N. Y. 11, 14.) There was no proof in this case that the plaintiff, when he *44 purchased the premises, possessed any knowledge that the defendants, when they entered upon the street and erected their road, were trespassers as to that property. The most that can be properly claimed is that he may have had some general knowledge or understanding that in many cases'the defendants entered upon streets and built their road without consent of the abutting owners. Notwithstanding these facts the plaintiff still contends that as the defendants, when they first obtained possession, were, to some extent, trespassers as against the plaintiff’s predecessors in title, the law raised a presumption, upon which the plaintiff had a right to rely, that they continued in possession as such trespassers, and not otherwise. We think there was no such presumption upon which the plaintiff could properly depend. (Brown v. Bowen, 30 N. Y. 519, 531; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 126; Pappenheim v. M. E. R. Co., 128 N. Y. 436, 451; Galway v. M. E. R. Co., 128 N. Y. 132, 156; Wharton on Evidence, § 1332.) But suppose such a presumption existed, did it relieve the plaintiff from the effect of the notice arising from the defendants’ possession? The presumption contended for was, at most, one of fact, and only prima facie evidence thereof. It was conclusive as to no one. The defendants might overcome it by proving the true character of their possession and the right under which it was held. If the plaintiff, with knowledge of the defendants’ possession which constituted such notice, and, consequently, imposed upen him the duty of ascertaining upon what their possession was founded, instead of making actual inquiry of the defendants, whereby he would have ascertained their rights or estopped them from asserting them, chose to omit such inquiry and to rely upon a mere presumption that might be dispelled by proof, he did so at his peril. He cannot charge the defendants with the result of his own neglect, but must himself bear the consequences thereof. The judgment should be affirmed, with costs. All concur.. Judgment affirmed.