Frances M. Scallon (now Murphy) and Anna G. Scallon, Respondents, v. The Manhattan Railway Company and the Metropolitan Elevated Railway Company, Appellants

Frances M. Scallon (now Murphy) and Anna G. Scallon, Respondents, v. The Manhattan Railway Company and the Metropolitan Elevated Railway Company, Appellants. First Department, April 6, 1906. Real property — damages for taking easements in light and air by elevated. railway — res adjudicata — when award covers whole premises described in complaint — Statute of Limitations. Although in an action by a property owner against an elevated railway company for taking easements'in light, air and access, the complaint describes the plaintiff’s property as twenty-five feet by seventy-five feet, and the only .proof of damage is confined to.a portion of said lot twenty-five feet by fifty feet, as.to. . which portion an award of damages is made, there is no error prejudicial- to. the defendant, for there can be no future award for taking easements in the small area for which no award was actually made, because the award covers the whole premises. The Statute of Limitations does not bar plaintiff’s claim for the reasons stated'in Hindley v. Manhattan Ry. Co. (103 App. Div. 504). Appeal "by the defendants, The Manhattan Bailway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Mew York on the 5th day of July, 1905, upon the decision of the court rendered after a trial at the Mew York Special Term. This action was commenced on the 4th day of October, 1902, for the taking of easements of light, air, access, etc., by the defendants through the maintenance of elevated' railroad tracks on Second avenue in Mew York city. The plaintiffs recovered a judgment awarding an injunction or alternative fee damage of $1,800 and rental damage to the amount of $1,018.11. Julien T. Davies, for the appellants. Vincent P. Donihee, for the respondents. [MAJORITY — Patterson, J.:] Patterson, J.: It is urged by the appellants that what was decided by this court in Hindley v. Manhattan Railway Co. (103 App. Div. 504), while it is controlling in the case of Wohlers v. Manhattan R. Co. (112 App. Div. 911), does not apply to this case. That is a misapprehension of counsel. The Hindley case is directly in point and for the reasons stated in the opinion of Mr. Justice Hatch therein, we conclude that thé Statute of Limitations does not bar the plaintiffs’ right to relief. "We have carefully "examined the record with reférence to the awards of fee and rental value and find that there is sufficient evidence to sustain the judgment appealed from. It is contended, however, by the appellants that the court erred in its finding of fact and that an award was made with respect to a larger and somewhat different property than that to which the proof related. The plaintiffs’ premises are situated at the southwest corner of Forty-sixth street and Second avenue in the city of Mew York. The lot is twenty-five feet front and seventy-five feet deep and is so described in the complaint and in the deeds which are- in evidence. There is a fóur-story building fronting on Second avenue having a depth of fifty feet, with a store on the first floor and two'apartments of four rooms each on the three upper floors. Back of. that structure there is a small and apparently insignificant extension. All the evidence which was before the court'.and upon which it acted was confined to that much of the lot and the building thereon’ as was of the dimensions of twenty-five feet front by fifty deep arid the evidence shows that the estimates as to fee and rental yalue were confined thereto. The finding of the court with reference to dimensions, was evidently taken from the complaint and from the' deeds. The proofs upon which the court acted established that the property really involved was damaged to the amount found. The error in description in the findings of fact is of no importance, for the proofs were limited and there can be no recovery at any time for the taking of easements appurtenant to. this small area in the rear of the property, and for which n’o award was actually made. The award covers the' whole premises. The judgment should be affirmed,'with costs, O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred. [CONCURRENCE — Houghton, J. (concurring):] Houghton, J. (concurring): The case of Hindley v. Manhattan Railway Co. (103 App.Div. 504) is, in principle, I think, applicable to the present case. I, therefore,'feel, constrained to concur in the opinion of Mr.- Justice Patterson. But for this former decision, however, I should be of the opinion that the defendant could and had obtained prescriptive rights ágainst,abntting owners, and that its occupation of the streets became hostile before the decision of .the courts in. 1882,-adjudging that the rights of abutting owners had been invaded, and that the purchase or recognition of the' rights of one abutting owner on the route did not destroy defendant’s prescriptive rights against other abutters whose claims were not conceded. Although the defendant began its occupancy under grant fiom the State to the street only, yet from its manner of occupation, and "from its resistance to payment for invasion of the individual rights of abutting owners, it must be deemed, I think, to have occñpied under claim of right to use all that was necessary to the erection, maintenance and operation of its railroad. From the very nature of the structure, and from the necessary manner of operation, the light, air and access of abutting owners were appropriated. That the defendant believed it had the right to these under its grant from the State, or that it insisted that abutting owners had no redress for their invasion, did not change its rights or the'cliaracter of its occupation. That occupation was open and notorious and exclusive, either under claim of title or in hostility to the owner’s rights, and contained all the elements, it seems, to me, necessary for the ripening of prescriptive title. Wliilé the right of way is continuous, and in abroad sense must be treated as a whole, yet the invasion of individual rights is single ; and I see' no reason why such single right cannot be obtained by adverse possession, notwithstanding the rights of other abutters similarly situated may be recognized. The question in the present case as to whether or not the Statute of Limitations was suspended by the death of the owner and the descent of the real property to her infant heirs, would be important if defendant could obtain title by prescription, but under the decision as rendered it becomes immaterial. Because of the decision of this court in Hindley v. Manhattan Railway Co. (supra) I concur in an affirmance of the present judgment. Judgment affirmed, with costs. Order filed.