#### Jean Baron *et al.,*Resp’ts, *v.*Isidore S. Korn, App’lt.1

*(Court of Appeals, Second Division,*

*Filed June 2, 1891.)*

Nuisance—When a private nuisance gives a right to relief in equity —Adverse possession.

Upon one side of plaintiffs’ lot was an alleyway which had been used by plaintiffs for more than forty years, and since 1883 for the purpose of carrying barrels from the street to the rear of plaintiffs’ property. Defendant’s easterly wall formed the westerly boundary of the alleyway, and plaintiffs’ cistern extended to the west line of defendant’s house; the door of the alley on the street was locked, plaintiffs having the key. *Held,*that as these facts justified a finding that plaintiffs had acquired a title by adverse possession, the court in equity could interfere and prevent defendant from erecting new buildings, the foundation of which encroached upon the alley in such a way as to prevent the bringing in of barrels without requiring plaintiffs to first establish their title by an action at law.

Appeal from an order of the general term of the supreme court, first department, reversing a judgment which dismissed plaintiffs’ complaint.

*Lewis*Sanders, for app’lt; *Carlisle*Norwood, Jr., for resp’ts.

1

 Affirming 21 N. Y. State Rep., 62.

Parker, J.

This is a suit in equity brought to restrain the defendant from erecting a portion of a building on lands to which plaintiffs asserted title; to compel the removal of so much of the foundation wall as had been constructed at the time of the commencement of the action; to cause the land to be restored to its former condition, and for damages occasioned by the action of the defendant.

The defendant challenged plaintiffs’ assertion of title, and alleged title in himself.

The *locus in quo*is a narrow strip of land nine inches in front on Bleecker street, by seventy-five feet deep, and constituted a part of an alleyway, two feet and eleven and one-half inches in width, occupied and used by the plaintiffs and their predecessors in title for many years prior to the commission of the acts by defendant of which plaintiffs complain.

The plaintiffs' lot and defendant’s lots were formerly a part of the Bayard farm, which was surveyed and laid out into lots prior to 1818. On Bleecker street, between MacDougal and Sullivan streets, there were eight lots, with a frontage on Bleecker street each of twenty-five feet, and a depth of 100 feet.

The record title established by plaintiffs commenced with a deed dated April 22, 1818, by which was conveyed four of such lots, commencing at MacDougal street, and being a plot 100 feet square. The trial court has found that this deed did not convey any portion of the nine inches in controversy.

The defendant is the owner of the four remaining lots, and derives his title through John Oothout, to whom they were eon*141veyed by deed, bearing date June 4, 1824, in which they were described as being bounded easterly by Sullivan, and southerly by Bleecker street, “ containing together 100 feet on each of the four sides thereof.”

Now, while it is found that the deed of 1818, through which plaintiffs derive title, did not convey the lands in dispute, it appears from the opinions both at special and general term that those courts regarded the facts as establishing title thereto in the plaintiffs by adverse possession, and with that view we concur.

As has already been stated, John Oothout acquired title to the lots, now owned by the defendant, in 1824. Thereafter, and on October 25, 1838, plaintiffs’ lot was conveyed to Leavina Post; the dimensions given were twenty-five feet front on Bleecker street, with a depth of seventy-five feet, and its easterly boundary was described as being a lot of ground of John Oothout This description was followed in the several succeeding conveyances, down to and including the deed to plaintiffs, which bears date March . 20, 1883. A two-story mansard roof, brick front house had for more than forty years stood on the lot, its width on Bleecker street being twenty-two feet and one-half inch; and the alleyway between it and the easterly wall of defendant’s building was two feet eleven and one-half inches in width, together constituting a frontage of twenty-five feet, which accords with the frontage of said lot on Bleecker street, as given in all the deeds, including and subsequent to the deed of 1838.

More than forty years prior to this action, five houses were erected on the plot of ground now belonging to the defendant, the most easterly wall thereof constituting during such period the westerly boundary of the alleyway, as maintained and used by the plaintiffs and their predecessors. Such boundary was further maintained by a fence, which was a continuation of the line of the wall extending from the house towards the rear of the lots, and to the easterly side of a shed, occupying the rear of the lot claimed by plaintiffs. Within the shed there was a partition wall built in line with the fence, commencing at a point inside the shed opposite the point where the fence met the shed on the outside. Back of the alleyway was a cistern on plaintiffs’ premises, which extended easterly up to the line of the wall of defendant’s house. There was a door at the entrance to the alleyway on Bleecker street, adjusted to a door frame; the westerly side of the door frame was a strip of wood fastened to the defendant’s house; the door had a lock, and when locked the bolt went 'into such strip of wood. When the plaintiffs took possession under their deed, the key of the alley-way door was given to them, and thereafter kept in their exclusive possession and control. The wall, fence and alley-way door left the defendant without means of access to any portion of the premises constituting the alley-way.

We have thus briefly alluded to some of the facts found by the trial court, which, as we think, are adequate to justify a finding that title to the alley-way had, prior to the commencement of this action, been acquired by adverse possession.

*142While the trial court entertained the same view, it found, as a conclusion of law, “ that this court, sitting in equity, has no j urisdiction of the cause of action sought to -be proved in this suit," and, therefore, directed judgment for the defendant.

Assuming plaintiffs’ title to be established, the authority of the court in a suit in equity to interfere and prevent an appropriation of their lands to the use of another for building purposes cannot be longer questioned, not only for the purpose of avoiding multiplicity of actions, but also because they were without adequate remedy at law.

The plaintiff, Jean Baron, was a wholesale wine merchant and im • porter of wines, which he purchased in casks, using the alleyway for the purpose of conveying the casks from the street to the rear of the yard, thence they were taken into his cellar for bottling, and this the erection of defendant’s wall would wholly prevent.

This special injury could not well be provided for by any rule of damages. Again, it would be impracticable, if not impossible, for the plaintiffs in ejectment to regain actual possession of that portion of the alleyway occupied by the wall.

The sheriff might not regard it as his duty to deliver possession by taking down the wall, which would burden him. with the risk of injury to other portions of defendant’s building not included within the nine inches. But in equity the obligation to remove can be placed directly on the party who caused the wall to be erected, and it frequently affords preventive relief against the commission of trespasses, such as the excavation of complainant’s soil by an adjoining owner, the destruction of his wall in building operations on adjacent premises, and the encroachment on his rights by the diversion of a stream of running water from its natural channel. Story’s Eq. Jur., §§ 928, 929; High, on Injunctions, §§ 704 and 707; *Creely*v. *Bay State Brick Co.,*103 Mass., 514; *Corning*v. *Troy Iron & Nail Factory,*40 N. Y., 191; *Fox*v. *Fitzsimons,*29 Hun, 574; *Wheelock*v. *Noonan,*108 N. Y., 179; 13 N. Y. State Rep., 110; *Avery*v. *N. Y. C. & H. R. R. R. Co.,*106 N. Y, 142 ; 8 N. Y. State Rep., 612.

It appears to have been the view of the trial court that the circumstances of the case made it proper to refuse plaintiffs relief in equity until after their right to the *locus in quo*had been established at law. Such is the general rule in courts of equity, but it has exceptions. *T. & B. R. R. Co.*v. *B., H. T. & W. R. R. Co.,*86 N. Y., 128. Judge Finch, speaking for this court in *Wheelock*v. *Noonan,*supra, said that “the modern system of trying equity cases makes the rule, less important * * * Indeed, I am inclined to deem it more of a rule of discretion than of jurisdiction.”

If the question whether the plaintiff ought to have been required to establish his title in an action at law were properly reviewable here it need not be considered, because the defendant did not by his answer object that the plaintiffs had an adequate remedy at law. After parties have submitted to the jurisdiction of the court, the plaintiff will not be turned out to seek his remedy elsewhere, when the objection is taken for the first time at the trial. *Grandin*v. *LeRoy,*2 Paige, 509; *Wiswall*v. *Hall,*3 id.,, *143313; *Leroy*v. *Platt,*4 id., 77; *Cox*v. *James,*45 N. Y., 557; *Town of Menta*v. Cook, 108 id., 504; 13 N. Y. State Rep., 845. The order should be affirmed.

All concur.