#### Matthew M. Goggin and Others, Appellants, Impleaded with Matthew M. Goggin, Appellant, Respondent, *v.*Manhattan Railway Company and Interborough Rapid Transit Company, Respondents, Appellants.

First Department,

March 6, 1908.

Real property — injury to easements by elevated railroad — when ■ period of prescription begins to run — extension of time by infancy — cotenants — release of easements — infancy of cotenant — estoppel.

When, at the commencement of the operation of an elevated railroad one of the tenants in common of abutting lands was an infant fourteen years of age, he is entitled to add the remaining period of infancy, or seven years, to the time when his right to sue for injuries to easements in light, air and access would have been barred if he had been, an adult when the operation of the road commenced. Thus, if he sue within twenty-seven years from the commencement of the operation of the road, his action is not barred.

An action brought by a landowner for loss of easements in light, air and access' caused by the operation of an elevated railroad is barred, if at all, not by the Statute of Limitations, for the trespass and injury are continuous, but by prescription which rest's upon the presumption of a lost deed or grant after adverse, use and enjoyment for twenty years.

One tenant in common, or any number less than all, cannot grant an easement over common property or release an easement appurtenant thereto. Hence, when at the commencement of injuries to easements in light, air and access • caused by the operation of an. elevated railroad one of the tenants in common was an infant and unable to convey by reason of such disability, no pre sumption'of a release or grant by his adult cotenants can begin to run until the infant attains his majority, and an action by such adults for injury to their interests is not barred until the expiration of twenty years from their cotenant’s majority, in the absence of proof of an actual grant or release by them.

*It seems,*that although individual cotenants cannot release easements appurtenant to the lands held in common, they may,- by actually making such release, become personally estopped so as to prevent a recovery of damage for injury thereto.

Ho.ughton and Laughlin, JJ., dissented in part, with opinion.

Separate appeals by the plaintiffs, Matthew M. Goggin and others, and by the defendants, the Manhattan Bailway Company and another, from various parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of blew York on the 9th day of July, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

*645*Charles 11.*Strong, for the .plaintiffs:

*Sherrill JBabooelc,*for thé defendants.

Scott, J.:

Plaintiffs and defendants both appeal from the judgment herein, and most unnecessarily present their appeals upon two distinct, but identical records. The action .is the usual abutter’s action against an elevated railway. The plaintiffs are tenants in common of the premises known as No. 229 West Broadway, in the city of New York. The court below has found that the erection and operation of the railway has resulted in no loss of rental value, but that it has reduced the fee value, and the judgment in favor of the plaintiff Matthew M. Hoggin awards him the customary alternative injunction unless the defendants shall pay the sum of $600, with interest. He is also awarded costs. As to the other plaintiffs, the court has found that their claims are barred by lapse of time, and as to them, the complaint has been dismissed, with costs.

The premises affected were owned by one Michael Hoggin, who died on November 8, 1865, intestate, and leaving a widow and four children. His widow died in 1901. It is found that her dower was admeasm'ed by parol, b,ut it- does not appear when this was done. The operation of. the elevated railway in front of the premises began in June, 1878,- at which time three of Michael Hoggin’s children, whose interests are now vested in the plaintiffs, other than Matthew M. Hoggin, were of full age. Matthew was then fourteen years of age, having been born in May, 1864. This action wás begun on December 19, 1902. At all times since the commencement of the operation of the railway the property has been owned in common, and Matthew M. Hoggin has been one of the ten-an ts in common. Thus it appears that Matthew M. Hoggin was under the disability of infancy for seven years after the operation of the road began, that is to say, from June, 1878, until he came of age in May, 1885. Under section 375 of the Code of Civil Procedure, as construed in *Howell*v. *Leavitt*(95 N. Y. 617), he was entitled to add this period of seven years to the time that his right to sue would have run if he had been an adult when the operation of the road commenced. If he had been an adult, his right to sue would have been barred by prescription in twenty years, or in June, 1898, For *646seven years lie had been under a disability, and his timé to sue was thereby extended by seven years or until June, 1905. He did sue well within that time, and the court below was right in finding that his claim had not been barred by lapse of time. The appeal of plaintiffs, other than Matthew Goggin, presents the question whether or not their right of action can he barred by prescription resting upon the presumption of a grant by them during Matthew’s disability. He came of age,.as has been said, in 1885, seven years after the commencement of the operation of the road and only sevente'en years before the commencement of this action. ' During the whole period of his disability, and indeed down to the time of tidal, he was one of several tenants in common of the property. An abutter is barred of his action for the loss of his easements of light, air and access, if barred at all, not by the' Statute of Limitations, for the trespass and injury are continuous, but by prescription which rests upon the presumption of a lost deed or grant after adverse use and enjoyment for twenty years. *(Lewis*v. *N. Y. & Harlem, R. R.*Co., 162 N. Y. 202, 223; *Hindley*v. *Manhattan R. Co.,*185 id. 353.) .Ho actual grant or release was shown to-have been executed by either of the plaintiffs, and if they (other than Matthew) are to be held barred of their action, it can only be upon the presumption that at some time after the operation of the road was commenced, and more than twenty years before their action was begun, they made a valid, effectual grant of the easements which the defendants appropriated. Manifestly, if they were incapable of making such a grant, no such presumption can be indulged in.. It is well settled that one tenant in common, or any number less than all, cannot grant an easement over the common property or release an easement which is appurtenant to it. “ Ho one can, by his sole act, even by his express, grant, create an easement in premises of which' he owns no more than a right held in common with others.” *(Crippen*v. Morss, 49 N. Y. 63, 67; Washb. Ease. [4th ed.] 46; 3 Kent’s Comm. 436; Herb. Presc. 73, 74; Gibbons Lim. & Presc. 225; Jones Ease. § 224.) It follows, therefore, that there can be no presumption that a valid, effectual grant of the.easements appurtenant to the plaintiff’s property was made while MattKeiy Goggin, one of the tenants in common, rested under the disability of infancy. *(Edridge*v. *Rochester City & B. R. R. Co.,*54 Hun, *647194; *Watkins*v. *Peck,*13 N. H. 360, 377, 381; 2 Washb, Real Prop. [4th ed.] 302; Washb. Ease. [4th ed.] 180; *Thomson*v. *Gaillard,*3 S. C. 418; 45 Am. Dec. 778; Freem. Coten. [2d ed.] § 185; *Faysoux*v. Prather, 1 Nott & Mcc. [S. C.] 296.) If it '■ appeared that the plaintiffs, or any of them other than Matthew Goggin, had actually executed a grant or release to the defendants respecting the easements which they had appropriated, while such grant would not have been effectual as a grant, by reason of the non-joinder of Matthew, it might have operated to prevent the recovery of damages by the cotenants who joined in it, but this would have been by way of estoppel. *(Edridge*v. *Rochester City & B. R. R. Co., supra; White*v. *Manhattan R. Co.,*139 N. Y. 19.) There is no principle, however, which will permit a party to be estopped from asserting his rights upon a mere presumption that he has, at some time, parted with those, rights, and hence the plaintiff appellants cannot be estopped to recover their lost easements upon the bare presumption arising from lapse of time, that they executed some kind of a grant or release which has been lost and cannot be produced. Since,, therefore, no actual grant or release from the plaintiff appellants has been proven, and no valid effectual grant or release could have been made during Matthew Goggin’s minority, it follows that the period of time necessary to raise a presumption of 'a grant did not begin to run until Matthew Goggin became of age, and thus became capable of joining in a grant. , That was less than twenty years before the commencement of this action. The plaintiff appellants have not, therefore, been barred of the right to ' enforce their easements, and the judgment should have run in their favor, as well as in favor of their 'cotenant.

The judgment, in so far as appealed from by defendants, is affirmed, and in so far as appealed from by plaintiffs is reversed and a new trial granted with one bill of costs to plaintiffs to abide the event. .

Patterson, P. J., and McLaughlin, J., concurred; Laughlin and Houghton, JJ., dissented in part.

Houghton, J. (dissenting in part):

I concur, in an affirmance of the judgment in favor of the plaintiff Matthew M. Goggin, but I do not think the infancy of the one *648tenant in common suspended the running of the Statute of Limitations as to the adult cotenants. It is true there is a legal distinction • between the title to land obtained by adverse possession, and the prescriptive title. to an .easement acquired by adverse user. Both, however, are interests in land acquired in the same general manner and the time within which.title ripens is the samé. There appears to be no reason why a like rule of limitation or suspension of limitation should not be applied to each, or why the rule.as to disabilities enunciated in *Scallon*v. *Manhattan R. Co.*(185 N. Y. 359, 363) should not be applied. • The interests of a tenant in common in land may be acquired by adverse possession by a stranger *(Baker*v. *Oakwood,*123 N. Y. 16) and also by his cotenant after proper ouster. *(Culver*v. *Rhodes,*87 id. 348.)

There appears to be a curious dearth of authority on the effect of the disability of one tenant in common upon the running of the statute as to the cotenant. In England, as early as' the case of *Roe d. Jangdon*v. *Rowlston*(2 Taunt. 441) it was held that if an estate descend to parceners, one of whom is under a disability which continues more-than twenty years and the other does not . enter within twenty years, the disability of the one does not preserve the title of the other. This holding does not appear to be from any peculiar statute, and is stated as the general rule in Blanshai’d Lim; *22. To the same effect is *Thomas*v. *Machir*(7 Ky. [2 Bibb] 412) and *Floyd's Heirs*v. *Johnson*(12 id. [2 Litt.] 109). Logically this must be so, for each tenant in . common can convey his undivided interest and lose it from adverse possession ; and there is no reason why the disability of one of. the co-owners should save the individual rights'of the other from the operation of the statute.

It is claimed, however, that there is a wide difference between taking actual title'away from a tenant in common by adverse possession and obtaining prescriptive title to an e_asement as against him ; for although he may convey what title he has, he cannot alone grant an easement. It is true he cannot convey an easement as to the whole property, or grant one in any sense complete, but he can create one good" as against himself. Such result of his conveyance is expressly recognized in *Crippen*v. *Morss*(49 N. Y. 63) and in *Edridge*v. *Rochester City & B. R. R. Co.*(54 Hun, 194), relied upon by appellants. In *White*v. *Manhattan R. Co.*(139 N. Y. 19) a *649consent to the construction and operation of an elevated railrpad signed by one tenant in common was held not binding upon the owners of the land “ other than the one who signed it and his grantees with knowledge.” The title of a,tenant in common is not joint but several, although of an undivided part; and I see no reason why prescriptive title may not be gained as against his interest in the land, even though no complete easement is acquired. An abutting, owner by his acts may abandon his easement of light, air and access if he sees fit (*Ward*v. *Met. Elev. R. Co.,*152 N. Y. 39) and lack of prosecution within the prescribed time would seem to be one method of doing so. If the statute was not suspended by the infancy of the one cotenant, there is no question that the full twenty years had run against the appellants when the action was begun, and that if prescriptive title could be gained at all it had conclusively ripened as adverse user for the full period of time necessary; Notwithstanding the dower of the mother had been admeasured and she occupied the property they, as remainder-men, had an immediate right of action. *(Thompson*v. *Manhattan R. Co.,*130 N. Y. 360.)

The present action is not to recover real property held adversely, in which the rule is that the statute does not commence to run until the determination of a prior estate. In such case there is no right of possession until the prior estate is terminated. The action which plaintiffs instituted is one to restrain a continuing trespass, and it arose as early at least as when the defendants began to operate their railroad. *(Hindley*v. *Manhattan R. Co.,*185 N. Y. 335.) If any injury resulted to the land, it was one daily “ done to the inheritance” which section 1665 of the Code of Civil Procedure expressly gives a remainderman a right of action for, notwithstanding any. intervening estate for life or for years. The appellants could, therefore, have brought action at any time within the twenty years, and if the infant cotenant could or would not join with them as plaintiffs they could have made him a defendant. *(De Puy*v. *Strong,*37 N. Y. 372.) By their failure to do so, I think they have lost what rights they had, either because the Statute of Limitations of twenty years is a bar or because their claim is a stale one which the court should not entertain, and that the dismissal of the complaint as to all the plaintiffs, except the *650one who was an infant at the time the cause of action accrued, was proper, and that the judgment should be affirmed.

Laughlin, J., concurred.

On defendants’ appeal, judgment affirmed; on plaintiffs’ appeal, judgment reversed, new trial ordered with one bill of costs to plaintiffs to abide event. Settle order on notice.