Stewart v. Metropolitan Elevated Railroad — 21 N.Y. St. Rep. 472

Majority

p. 472

Emily Stewart, Resp’t, v. The Metropolitan Elevated Railroad Co., App’lt.

(New York Superior Court, General Term,

Filed January 7, 1889.)

Headnote

Streets—Owner in fee.

The proprietors of lands abutting on a public street are presumed, in the absence of evidence to the contrary, to own the fee of the street, and any erection on such street is an encroachment on the freehold and a trespass.

Davies & Rapallo, for app’lt; Henry H. Man, for resp’t.

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 and resided in the house in question, fronting on Fifty-third- street, and being eighteen feet, nine 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.

p. 473

A photograph of the house iu 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. Troy Union R. R. 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 centre of the highway.

1 ‘ There is no distinction in this respect between the street of a city and highways 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. Troy Union R. R. 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, no other question is presented.

The judgment should therefore be affirmed, with costs.

Freedman, J., concurs.