Christopher Betjemann, as Sole Surviving Executor and Trustee under the Last Will and Testament of John Bahrenburg, Deceased, Respondent, v. The Brooklyn Union Elevated Railroad Company and The Brooklyn Heights Railroad Company, Appellants

Christopher Betjemann, as Sole Surviving Executor and Trustee under the Last Will and Testament of John Bahrenburg, Deceased, Respondent, v. The Brooklyn Union Elevated Railroad Company and The Brooklyn Heights Railroad Company, Appellants. Second Department, June 12, 1908. Heal property— injury to easements by elevated railroad— adverse user — evidence rebutting presumption. Where in an action for damages to easements and to restrain the operation of an elevated railroad the defendant claims title by prescription, the plaintiff may refute the presumption of the lawful entry under a deed since lost, by putting in evidence the Us pendens, petition, judgment, etc., in condemnation proceedings brought by defendant’s predecessor live years after the road was built. On such evidence the trial court is j ustified in finding that there was no adverse user during the prescriptive period. That the railroad increased the length and number of its trains, changed from steam to electricity, laid a third rail and built a walk by the side of the elevated structure, is not such an increase or change of the character of the user as to be deemed an abandonment of any right acquired under the original entry. Appeal by the defendants, The Brooklyn Union Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining the defendants from maintaining and operating a certain elevated railroad structure along the side of the plaintiff’s premises, unless a certain sum be paid the plaintiff in lieu thereof. Charles L. Woody [George D. Yeomans with him on the brief], for the appellants. Cyrus V. Washburn, for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: This action is by an abutter for an injunction restraining the operation of the defendants’ elevated railroad and for damages occasioned by its construction and maintenance. The plaintiff proved title and damages. The defendants then showed that, more than twenty years prior to the commencement of the action the defendants entered upon the street under a charter from the rapid transit commission and under the acts of the Legislature and of the municipality of the former city of Brooklyn. This raised the presumption that defendants’ predecessors entered lawfully under a deed which has been lost. To refute this'presumption the plaintiff introduced, over the objection and exception of the defendants, a Us pendens and petition in condemnation proceedings by which one of the defendants’ predecessors sought to acquire title to real estate or a right of way in front of the premises in question, and also a judgment of condemnation and an order appointing commissioners in those proceedings, in which the property in question was described. These proceedings were instituted about five years after the erection of the elevated structure and the commencement of..the operation of ■trains thereupon; the judgment of condemnation and order appointing commissioners was entered seven months thereafter. We find here a solemn declaration by one of the defendants’ predecessors that it had not been able to acquire title to the privilege, easement or interest required for the erection and maintenance of its elevated structure; that it had offered the owner of the premises in question a sum of money for the purchase of this fight, but that he Would not sell." In addition to this it seéms that the condemnation proceeding itself, in which the court doubtless acquired jurisdiction upon the filing of' the lis pendens and petition, was necessarily a solemn and formal declaration of record that the title of this property was in some one other than the railroad company. These decía-' rations, it seems to me, were in absolute inconsistency with a claim of entry by right or under color of some title, and were competent and material upon this proposition. But slight evidence to overcome title by prescription is required. (Colvin v. Burnet, 17 Wend. 564, 568; Kellum v. Mission of Immaculate Virgin, 82 App. Div. 523 ; Cutting v. Burns, 57 id. 185.) The petitions to the State Board of Tax Commissioners which were admitted'in evidence in Hindley v. Manhattan R. Co. (185 N. Y. 335, 345) are not in the same category at.all; and further in that case the petition was made when the prescription had, after the twenty-year period, ripened into an estate. Tn our opinion the learned trial court was justified in finding as a fact from this evidence that defendants and their predecessors were not during the prescriptive period challenging the right of the true owner, and hence there was nothing upon which to found title by adverse possession. The plaintiff also proved that since the original entry the defendants had increased the length 'of their trains, their number, had changed the method of operation of their road from steam to electricity, and as an incident thereto had laid a third rail and built a walk by the. side of the structure. This, however, is not such an increase in the user or change of the character of that user to be deemed an abandonment of any right acquired under the original entry. (Bremer v. Manhattan R. Co., 191 N. Y. 333.) The judgment must be affirmed, with costs. J enks, G-atnor, Bioh and Miller, J J., concurred. Judgment affirmed, with costs.