102 N.Y.S. 454 | N.Y. Sup. Ct. | 1907
This action was brought to restrain the defendants from maintaining or operating their elevated railroad in front of the plaintiff’s premises, situate at No. 849 Third avenue, in the borough of Manhattan, New York city, and for fee and rental damages. The complaint-is in the usual form in such cases and the answer, among other things, sets up a prescriptive right to maintain and operate their railroad in front of the premises in suit by reason of an open, continuous and hostile occupation as against the plaintiff and his predecessors in title for a period of more than twenty years before the commencement of the action. The construction of the elevated railroad in front of the premises in suit was begun and completed by the New York Elevated Railroad Company in 1878, and operation was commenced thereon on December 30, 1878, and has been continued to the present time. The New York Elevated Railroad Company subsequently made and executed a lease of its railroad to the defendant Manhattan Railway Company. In 1878 the New York Elevated Railroad Company entered upon and took possession of Third avenue, in front of and adjoining the premises in question, for the purpose of constructing and operating their elevated railroad, and upon completion thereof commenced the operation of the railroad in front of the said premises on the 30th day of December, 1878. Brior to the commencement of this action the New York Elevated Railroad Company and the defendants, under claim of right adverse to the plaintiff and his predecessors in title, and exclusive of every other right,-have been in possession of Third avenue in so far as the same is and has been required for the purposes of such railroad. Since such completion the said elevated railroad has been continuously maintained and operated by various comnapies
Judgment accordingly.