Goldstrom v. Interborough Rapid Transit Co.

O’Brien, P. J.: This action was commenced January 28, 1901, by the plaintiff as owner of the fee against-the elevated railroad. By stipulation the Interborough Rapid Transit Company was joined as a party defendant. It was shown that the operation of the railroad and the running of the first train in front of the property occurred on March 1, 1880, so that this action was commenced twenty.years after the above entry. . • The main question upon this appeal is as to whether the defendants have acquired the right to maintain and operate their railroad by prescription. This question was directly presented in Hindley v. Manhattan Railway Co. (103 App. Div. 504), and in following it the' learned judge at Special Term decided in favor of the plaintiff. Subsequently- the Ilindley case" was appealed and has been [324] decided^by the Court of Appeals reversing this court (185 N. Y. 335) and finally settling this long-mooted question by holding that' the elevated railroad may acquire easements of abutting Owners by prescription. There is no "distinction in principle between the Hindley case and the case at bar. Weare, therefore, bound by the decision- of the' Court of Appeals, unless there are facts in the present case calling for the application óf a different rule. ' It is insisted that the cases are distinguishable because 'of a suit brought by a tenant-within the twenty years against the railroad company, which, as contended, interrupted the running of the statute against the owner of the fee. This, necessarily, requires a determination of whether Or not the tenant can be said legally to have represented the landlord in bringing the action, or, in other words, did the action brought by the tenant inure to the benefit of the--landlord ?. The. solution, we think, depends upon the answer to be given as to whether different prescriptions may exist in favor of different persons in respect to thé same land,. or, differently - expressed, are the interests of a landlord and tenant :so identified and similar as to have .the' rights of one affected by the course or conduct of the other ? Washburn, in his work on'the Law of Easements and Servitudes-' (4th ed. p. 165), stated what the' decisions' confirm, that “different, prescriptions may exist in favor of different persons in respect to the same land. That is, one may have a prescriptive right for one purpose and another may have a like right, but-for another purpose.” . Moreover, we find' in this elevated railroad litigation a number of cases Which hold that the right of action as between the landlord and tenant is separate and distinct,, being based upon the separate and distinct estate which each enjoys. (Storms v. Manhattan R. Co., 178 N. Y. 493; Kearney v. Met. Elev. R. Co., 129 id. 76; Witmark v. N. Y. Elev. R. R. Co., 149 id. 393.) In Kernochan v. Manhattan R. Co. (161 N. Y. 345) Judge Gray thus clearly expresses the opinion of the Court of Appeals: “ There is no principle of law that limits the number of actions which may be brought against a wrongdoer by those who have suffered -from his acts. If the wrong is one .committed upon the rights of the lessor of property by an injury done to the reversion, he may have his remedy. If it is one which diminishes- the enjoyment by the tenant. [325] of tlie possession of the premises leased,' lie, also, may have his remedy. As it was said in the lime’s Oase * (128 N. Y. 571): ‘ In either case it is a matter of proof as to the damage sustained by the particular complainant, and neither litigant is the representative of the other in an action of trespass.’ ” As correctly urged by the appellant, therefore, to each separately is open and available a protection from wrong and a remedy for injury, and each may both actually grant and be presumed to grant a separate right. They are not privies in title, for “ the term £ privity ’ denotes mutual or successive relationship to the same rights of property.” (1 Greenl. Ev. [16th ed.] § 523.) And the same author (Vol. 2 [16th ed.], § 545) thus states the law: “ The claim of a prescriptive right may be defeated by evidence showing that it has been interrupted within the legal period ; but this must be an interruption of the right, and not simply an interruption of the use or possession.” And again lie says : ££ The acquiescence of the owner, however, may be inferred from circumstances, and where the time has once begun to run. against him, the interposition of a particular estate does not stop it.” (See, also, Washb. Ease. & Serv. [4th ed.] 148; Wood Lim. [3d ed.] § 270.) Without attempting to quote at length from text writers or the decisions in other jurisdictions, it is sufficient to say upon the question of wliat does and does not stop the running of the statute, that as between the landlord and tenant, though the cause of action in favor of the landlord and that in favor of the tenant may. be for the same wrong and for similar relief, an action by the latter cannot be held legally to stop or interrupt the statute when it has once been set running'as against the landlord. It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event. Patterson, Ingraham, Laughlín and Clarke, JJ., concurred. Judgment reversed and new trial ordered, with costs to appellants to abide event. Footnotes [*] Hine v. N. Y. Elev. R. R. Co.— [Rep.