Goggin v. Manhattan Railway Co.

Scott, J.: Plaintiffs and defendants both appeal from the judgment herein, and most unnecessarily present their appeals upon two distinct, but identical records. The action .is the usual abutter’s action against an elevated railway. The plaintiffs are tenants in common of the premises known as No. 229 West Broadway, in the city of New York. The court below has found that the erection and operation of the railway has resulted in no loss of rental value, but that it has reduced the fee value, and the judgment in favor of the plaintiff Matthew M. Hoggin awards him the customary alternative injunction unless the defendants shall pay the sum of $600, with interest. He is also awarded costs. As to the other plaintiffs, the court has found that their claims are barred by lapse of time, and as to them, the complaint has been dismissed, with costs. The premises affected were owned by one Michael Hoggin, who died on November 8, 1865, intestate, and leaving a widow and four children. His widow died in 1901. It is found that her dower was admeasm'ed by parol, b,ut it- does not appear when this was done. The operation of. the elevated railway in front of the premises began in June, 1878,- at which time three of Michael Hoggin’s children, whose interests are now vested in the plaintiffs, other than Matthew M. Hoggin, were of full age. Matthew was then fourteen years of age, having been born in May, 1864. This action wás begun on December 19, 1902. At all times since the commencement of the operation of the railway the property has been owned in common, and Matthew M. Hoggin has been one of the ten-an ts in common. Thus it appears that Matthew M. Hoggin was under the disability of infancy for seven years after the operation of the road began, that is to say, from June, 1878, until he came of age in May, 1885. Under section 375 of the Code of Civil Procedure, as construed in Howell v. Leavitt (95 N. Y. 617), he was entitled to add this period of seven years to the time that his right to sue would have run if he had been an adult when the operation of the road commenced. If he had been an adult, his right to sue would have been barred by prescription in twenty years, or in June, 1898, For [646] seven years lie had been under a disability, and his timé to sue was thereby extended by seven years or until June, 1905. He did sue well within that time, and the court below was right in finding that his claim had not been barred by lapse of time. The appeal of plaintiffs, other than Matthew Goggin, presents the question whether or not their right of action can he barred by prescription resting upon the presumption of a grant by them during Matthew’s disability. He came of age,.as has been said, in 1885, seven years after the commencement of the operation of the road and only sevente'en years before the commencement of this action. ' During the whole period of his disability, and indeed down to the time of tidal, he was one of several tenants in common of the property. An abutter is barred of his action for the loss of his easements of light, air and access, if barred at all, not by the' Statute of Limitations, for the trespass and injury are continuous, but by prescription which rests upon the presumption of a lost deed or grant after adverse use and enjoyment for twenty years. (Lewis v. N. Y. & Harlem, R. R. Co., 162 N. Y. 202, 223; Hindley v. Manhattan R. Co., 185 id. 353.) .Ho actual grant or release was shown to-have been executed by either of the plaintiffs, and if they (other than Matthew) are to be held barred of their action, it can only be upon the presumption that at some time after the operation of the road was commenced, and more than twenty years before their action was begun, they made a valid, effectual grant of the easements which the defendants appropriated. Manifestly, if they were incapable of making such a grant, no such presumption can be indulged in.. It is well settled that one tenant in common, or any number less than all, cannot grant an easement over the common property or release an easement which is appurtenant to it. “ Ho one can, by his sole act, even by his express, grant, create an easement in premises of which' he owns no more than a right held in common with others.” (Crippen v. Morss, 49 N. Y. 63, 67; Washb. Ease. [4th ed.] 46; 3 Kent’s Comm. 436; Herb. Presc. 73, 74; Gibbons Lim. & Presc. 225; Jones Ease. § 224.) It follows, therefore, that there can be no presumption that a valid, effectual grant of the.easements appurtenant to the plaintiff’s property was made while MattKeiy Goggin, one of the tenants in common, rested under the disability of infancy. (Edridge v. Rochester City & B. R. R. Co., 54 Hun, [647] 194; Watkins v. Peck, 13 N. H. 360, 377, 381; 2 Washb, Real Prop. [4th ed.] 302; Washb. Ease. [4th ed.] 180; Thomson v. Gaillard, 3 S. C. 418; 45 Am. Dec. 778; Freem. Coten. [2d ed.] § 185; Faysoux v. Prather, 1 Nott & Mcc. [S. C.] 296.) If it '■ appeared that the plaintiffs, or any of them other than Matthew Goggin, had actually executed a grant or release to the defendants respecting the easements which they had appropriated, while such grant would not have been effectual as a grant, by reason of the non-joinder of Matthew, it might have operated to prevent the recovery of damages by the cotenants who joined in it, but this would have been by way of estoppel. (Edridge v. Rochester City & B. R. R. Co., supra; White v. Manhattan R. Co., 139 N. Y. 19.) There is no principle, however, which will permit a party to be estopped from asserting his rights upon a mere presumption that he has, at some time, parted with those, rights, and hence the plaintiff appellants cannot be estopped to recover their lost easements upon the bare presumption arising from lapse of time, that they executed some kind of a grant or release which has been lost and cannot be produced. Since,, therefore, no actual grant or release from the plaintiff appellants has been proven, and no valid effectual grant or release could have been made during Matthew Goggin’s minority, it follows that the period of time necessary to raise a presumption of 'a grant did not begin to run until Matthew Goggin became of age, and thus became capable of joining in a grant. , That was less than twenty years before the commencement of this action. The plaintiff appellants have not, therefore, been barred of the right to ' enforce their easements, and the judgment should have run in their favor, as well as in favor of their 'cotenant. The judgment, in so far as appealed from by defendants, is affirmed, and in so far as appealed from by plaintiffs is reversed and a new trial granted with one bill of costs to plaintiffs to abide the event. . Patterson, P. J., and McLaughlin, J., concurred; Laughlin and Houghton, JJ., dissented in part.