#### John H. Watson, Resp’t, *v.*The Metropolitan Elevated R. R. Co. *et al.,*App’lts.

*(New York Superior Court, General Term,*

*Filed January 6, 1890.)*

Trespass — Elevated railroad — Presumption against consent of owner.

Where it appeared that plaintiff’s grantor was in possession of premises shutting on a street át and before the railway was built in front of them, and that since that time the railroad company has instituted proceedings to condemn the easements claimed by plaintiff, *Held,*that in the absence of explanation the presumption would be that when plaintiff acquired title the railroad company were wrongfully holding the easement.

Appeal from judgment entered upon findings made at special term.

*Davies & Rapadlo,*for app’lts; *Edwin M. Felt,*for resp’t

Sedgwick, Ch. J.

This is an action for an injunction against the defendants running their elevated railway in front of premises of plaintiff and for damages.

The only point that calls for particular attention is based upon the fact that the plaintiff acquired title by conveyance from one Love after the defendant had taken the easement which the plaintiff claims to be his property. On the trial and on this appeal, the defendants claimed that there was no evidence that the railroad was constructed and put in operation there without the consent of the owner at the time of construction.

To this two answers may be made. The first is that it appears that Love, the grantor of plaintiff, was in possession of the premises at and before the time the railway was built and that Love was then entitled as owner of the lot to the easements as appurtenances. This title would exist upon common law rules, if there were not proof that the street had been opened under the act of *5141813. The consequences of this opening were that the fee of the hed of the street went to the city and the owners of the abutting lot had appurtenant to them the easements. In the absence of. proof that these appurtenances had been extinguished or conveyed, the presumption would be that they were attached to the lot as owned by Love. When the defendants took part of these easements, when owned by Love, there was no presumption that they had given due compensation. They appeared to be trespassers, and to show that the contrary was the fact, it was necessary for the defendants to affirmatively allege and prove that they had given due compensation. This seems to me to be strengthened by the second answer to the defendant’s proposition.

The second answer is that the defendants, as found at their request, before the trial of this action instituted proceedings in the supreme court, pursuant to statute, for„ the condemnation of so much of the privilege, easement or other interest in West Fifty-third street as is taken, appropriated or interfered with by the construction and maintenance of their railroad belonging to or claimed by the plaintiff and appurtenant to the lot and premises Ho. 121 West Fifty-third street, etc.

This is an admission that the railroad holds their position in front of the plaintiff’s premises in subordination to the right of plaintiff to compensation. In the absence of explanation, the result of the testimony as given would be that when the plaintiff acquired title the defendants were wrongfully holding the easement.

The court below was justified in holding that the defendants were not entitled to a provision in the judgment that the injunction given by it should cease to be operative when any award given in the condemnation proceedings already referred to should be paid as directed by the statute. The defendants had no absolute right to a provision for a contingency that would occur after the judgment should be given. At that subsequent time, the defendants might assert and enjoy all the advantages given by the law with regard to the facts as they should then appear.

The judgment should be affirmed, with costs.

Freedman, J., concurs.