#### George W. Coster, plaintiff, *vs.*John R. Peters, defendant.

1. Where a lessee of premises constructs, at his own expense, under a license from the street commissioner, a vault under the -sidewalk and roadbed in front of the premises, which vault is built as a part of the buildings erected on the land, the inside wall thereof being the outside wall of the house, the the lessor, at the termination of the lease, is entitled to recover possession of • the vault, as a part of the demised premises.

2. An uninterrupted possession of the demised premises by the lessor, for over twenty years, is enough, in the absence of any proof of a superior title, to enable him to recover the same, or any portion thereof.

3. Upon proving title to the premises, every thing which is collateral to the title will be intended, without proof.

(Before McCunn, J., at Trial Term,

February 21, 1868.)

This action was brought by the plaintiff, as owner of the premises ifo. 539 Broadway, now occupied by Barnum’s museum, running through from Broadway to Mercer street, to recover the possession of a vault adjoining his rear building on Mercer street, built under the sidewalk and roadbed of that street, being twenty feet wide, twenty feet deep and twenty-five feet long, and damages for its detention for five years, from 1858 to 1863, under the following circumstances: The plaintiff, in 1848, leased the

premises to the defendant for ten years, and the lease provided that the tenant should, during his term, erect and complete upon the lot a building fronting on Mercer street, of certain specified dimensions and description, which did not include a vault, and that at the end of his term the lessor should pay him the then value of the building so agreed to be erected, at a price to be fixed by appraisement. The defendant erected the building, and, desiring to manufacture his own gas for use therein, procured a license in his own name from the street commissioner permitting him to construct the vault in question, built it in pursuance *621of the license and erected his gasometer there. When the lease expired the defendant claimed to be paid for the vault as well as for the building; but the appraisers under instructions, as was claimed, from the plaintiff, and not finding the vault provided for in the lease, excluded it from their valuation, and appraised the building, without the vault, at $18,000, which was paid by the plaintiff, who took possession of the building; but the defendant refused to give up possession of the vault, and this action was brought. The plaintiff' proved the lease, the license, and the corporation ordinances, and claimed that the permit was given to Peters only as tenant and representative of the property, and although it was to him personally, it nevertheless enured to the benefit of the estate, and gave him no right to maintain adverse possession of the vault after his lease expired. But the defendant insisted that, inasmuch as the fee of the street was in the corporation, and the plaintiff showed no title there, he was in his own right tenant or grantee of the corporation, as to the vault, and could not be ejected. The case was first tried before the late Judge White and a jury, in 1863, and the court instructed the jury that the plaintiff, as owner'of the building to which the vault was appurtenant, was entitled to the vault, and a verdict was given for $200 damages for the detention. The defendant appealed to the general term, which reversed the rulings of Judge White, holding that as the plaintiff showed no title in the street, he could not recover the vault under it, but that the tenant might hold and occupy the vault adversely after surrendering the adjoining building, and ordered a new trial. On this trial the plaintiff, in addition to his former evidence, proved the deed of the premises to John Q-. Coster in 1832, bounding on the easterly line of Mercer street, and undisturbed possession under it for over twenty years, and that the vault was actually built as a part of the house, the wall *622of the house being one wall of the vault; and gave further proof of the value of the vault in connection with the house, by the testimony "of real estate dealers, and by the fact that the vault was used by Barnum as the place of safe keeping for his elephant," in connection with his menagerie.

*Evarts, Southmayd & Choate,*for the plaintiff

*E. P. Wheeler,*for the defendant.

McCunn, J.,

held that the new proof as to the title and construction of the vault, so far varied the case from that which was presented to the general term, as to require him again to instruct the jury that the plaintiff was entitled to the vault as a part of the building erected on his land. The following were the rulings of the judge:

I hold that without any show of written title on the part of the owners of this easement or right, other than that which has in this case been proven to be acquired by the plaintiff, to wit, the uninterrupted possession for over twenty years; this alone was enough, in the absence of a superior title, Nto enable the plaintiff to recover; and, moreover, I will state that, upon proof of this title to the land in front of this highway, in the absence of a better title, the right of the plaintiff to the property or easement is presumed; in other words, upon proof of title every thing which is collateral to the title will be intended without proof. Therefore I think the'plaintiff herein should recover. " It is also made clear, on this trial, that the vault is a part of the premises, the inside wall of the vault being the outside wall of the house, and being part of the fee. This question was left to the jury the last time improperly, and I therefore .withhold it. The case, as presented now, is different from the case presented at the general term. Here *623the deed to the Coster family is put in evidence; in the other action it was not. The deed shows uninterrupted possession for over twenty years.

The jury, under the new proof of value, rendered a verdict for damages at the rate of $200 per annum, amounting to $966. Leave was given to the defendant to make a case, for the purpose of again carrying the questions involved to the general term and to the Court of Appeals, which will finally determine whether such a vault is part of the house' and belongs to the owner and landlord, or whether the tenant building it under a license procured by himself may retain it after his lease expires, and* carry on in it a separate business in front of his landlord’s premises.