#### Bridget Monohan, Plaintiff, *v.*The New York Central and Hudson River Railroad Company, Defendant. Rosa Thoman, Plaintiff, *v.*Same, Defendant.

(Supreme Court, Onondaga Special Term,

May, 1900.)

Adverse possession — Untenable, where original entry was under license.

A railroad corporation occupying a city street as successor to another railroad which, in 1871, entered upon it solely under a resolution and license of the common council, must, in the absence of evi*620deuce of hostile possession, be deemed at all times to have occupied in subordination to the legal title, and, therefore, an abutting owner, whose title extends to the center of the street and whose premises are encroached upon by the tracks, is entitled to damages for the trespass, and the defense of adverse possession for twenty years is untenable.

Actions by abutting owners to restrain the defendant from using a street in Syracuse and for damages.

E. O. Wright, for plaintiffs.

L._ L. Waters, for defendant.

'Hiscock, J.

These actions are similar in their nature and in the evidence submitted therein. In each case plaintiff is the owner in fee of a lot upon Canal street, in Syracuse, extending to the center of the street. The defendant, or its predecessors, with a main and switch track, is, and for a long time has been, occupying part of that half of the street to which plaintiffs hold the title. It has never made any compensation for, or acquired as against plaintiff (unless by adverse possession hereinafter discussed) the right to such use. These actions are brought to restrain defendant from using the street, and to recover damages, etc.

The actions are similar to others that have heretofore been brought by owners of property upon the same street against defendant or its predecessors in interest, for similar relief. Upon the-trial the amount of damages and compensation was fixed to which each plaintiff would be entitled if allowed to recover at all, and all other questions were disposed of in accordance with the rule established in preceding cases, save one which is now here and will now be discussed.

Upon the trial defendant amended its answer in each case by setting up that it and its predecessors had acquired against plaintiffs a title by adverse possession to that portion of the street occupied by it.

The main track operated by the defendant has been laid and operated where it is for over twenty years. There was some dispute as to whether the switch track was laid more than twenty years ago, or only about fourteen years ago. Upon this question *621I am of the opinion that the latter date is more apt to be the correct one. It is admitted by the pleadings and otherwise that the main track was laid in 1871 by the Syracuse and Chenango Valley Railroad, under a resolution and license adopted and granted by the common council of Syracuse, and that defendant by various devolutions of interests as the successor to and in place of said railroad company.

It does not appear under just what circumstances the switch track or siding was laid, but under the view adopted as to the date when that was first laid, this is not very material upon the question now being discussed. It is expressly admitted by defendant that its predecessor “ did construct its road as allowed by said license.'"’ There is no evidence upon which to find that defendant or its predecessors ever made any claim to the street occupied by it, or to the right to be therein, except under and in accordance with the license granted to it by the city of Syracuse. There is no evidence of any acts by defendant or its predecessors amounting to a claim of title and possession adverse to plaintiffs, unless the same is to be presumed from mere occupation.

In my opinion the presumptions and inferences to be drawn from the facts in these cases are against defendant’s contention that it has established a right of way over plaintiffs’ lands by adverse possession.

The only claim of a right to be and operate tracks in.this street has been based upon and under the aforesaid license. That did not purport to, as it could not legally, give any rights against plaintiffs or their grantors. Neither defendant nor its predecessor’s have ever made any claim as against plaintiffs of title thereunder or otherwise, except by mere occupation. It is one of the essentials to the establishment of a title by adverse possession that the person holding possession should do so in open hostility to the rights of the true owner. Heller v. Cohen, 154 N. Y. 299, 311.

This certainly involves a knowledge or belief by the party holding possession that someone else may have a title to the property, and an intent upon the part of the former to assert a possession and rights in hostility thereto. When defendant’s predecessor went into possession of this street it treated with the city of Syracuse as the only one having an interest in or control over this public street. It is scarcely to be presumed (as a matter of law, at least) that it intended to commit a trespass. It may have been *622ignorant of plaintiffs’ title to the center of the street, or may have assumed that the city had such control over its streets as to have power to grant a license to do what it did do. At least, I think it is a fair inference and presumption to hold against it that, having obtained this license, it went into possession under it, and it alone; that it laid its tracks in the streets upon the theory and claim that the .resolution fully authorized it so to do; that it did not intend to force itself into and take possession of the street in hostility to the rights of any one; that its claim and possession in the street is to be regarded as under and co-extensive with the license and not in hostility to, but subordinate to, rights not covered thereby.

As a general rule, to establish title by adverse possession it must be shown that the person holding possession did so in open hostility to the rights of the true owner. The presumption is that the possession is in subordination to the actual title. Here undisturbed possession for twenty years is not sufficient. Heller v. Cohen, 154 N. Y. 299, 311; Doherty v. Matsell, 119 id. 646.

To constitute a possession adverse to the true owner there must be a claim of title and the claim must be of the entire title. It must be such as necessarily to- exclude the idea of title in any other person. Howard v. Howard, 17 Barb. 663.

The case of Broiestedt v. S. S. R. R. Co., 55 N. Y. 220, seems to be • entirely applicable as an authority to these cases. There a railroad company had entered into possession of a street by the license of a statute, and the question arose whether its possession was to be deemed adverse to that of a property owner owning to the center of the street who was not a party to, or compensated for, such occupation. The court held that “the possession w'as not adverse, but was under license by act of the legislature, which only extended to the rights of the public. The entry under this license is presumed to have been in subordination to the rights of the owner and there is no evidence against this presumption.”

Defendant’s counsel, upon his brief, seeks to avoid the authority of this case by urging that, although the original entry of the defendant’s predecessors into the street might be presumed to be under the license, and so not hostile to the plaintiffs, a different presumption would arise after user and occupation for twenty years. I am not able to draw this distinction. Assume the original entry to have been under the license and not hostile, and in the absence of evidence indicating some change, it will not be presumed that *623the character of the possession has changed from that of a licensee' to a hostile and adverse claimant of title.

Findings and judgment may be prepared in each case in accordance with the views stated here and upon the trial in favor of plaintiff, with costs.

Judgment for plaintiffs, with costs.