Stewart v. Metropolitan Elevated Railway Co.

The case on appeal contains a statement that “the case is conceded to contain the substance of the testimony offered by either side upon the trial of this action. ” Plaintiff testified that she was the owner of and resided in the house in question, fronting on Fifty-Third street, and being 18 feet, 9 inches, in width on the street. The fact of ownership, and that the premises abutted on the street, must be presumed to have been proved by competent evidence. A photograph of the house in question was received in evidence, but is not printed with the case. There is no evidence to show how Fifty-Third street in front of the premises in question was opened as a street, or as to the ownership of the fee of the street. The abutting owners were therefore presumed to own the fee of the street. See Wager v. Railroad Co., 25 N. Y. 529 , where Smith, J., in delivering the opinion of the court, says: “It is an established inference of the common law that the proprietors of the land adjoining a public highway are the owners of the fee of said highway; that the rights of the public therein and thereto are no higher or other than those of a mere easement; and that the proprietors on each side presumptively own the soil in fee to the center of the highway. There is no distinction in this respect between the streets of a city and highway in the country. " The plaintiff being presumed to be the owner of the fee of Fifty-Third street, the erection of the defendant’s structure on the street was an encroachment upon her freehold, and a trespass. Wager v. Railroad Co., supra. It was therefore no error to deny the motion of the defendant to dismiss the complaint, and the motion to direct a verdict for nominal damages only. As the only exceptions that appear in the case are the exceptions to these rulings,

Freedman, J. concurred.