FOLLETT, Ch. J.
The referee found that from 1826 to 1846, the alley was used by the public, and by such use became a public way, but that its use had been abandoned by the public for more than forty years before this action was begun. He also found that between 1846 and 1850, a fence stood on the boundary line between lot 45 and the alley, and that between these dates John Conolly kept the alley closed by a gate at the Tremont street end, planted trees, erected a coal-shed thereon, and that from 1850 to the date of his death in 1888, he was in the actual, exclusive and notorious possession of the land, claiming to own it.
The widow of a former owner of lots 43 and 44, who was sworn on behalf of the plaintiffs, testified, and she was not contradicted, that about fifty years before the trial of this action, her husband bought those lots, moved on to them, and shortly after extended the fences across the alley, planted trees thereon, since which the alley had been shut up the most of the time, and before they left those lots, the alley had been all closed up for thirty years. For at least thirty-nine years before this action was begun, the alley, from end to end, had been enclosed by fences, occupied and cultivated by the owner of lots 42, 43 and 44.
None of the deeds in the plaintiffs' chain of title purport to convey any interest in the fee of this strip, and the referee also found that in 1860, when Conolly conveyed lot 45 to Mrs. Dickson, the former was in possession of the alley, claiming to own it; that she took her deed with knowledge of these facts, and that the grantor did not intend to convey nor the grantee to acquire any title or easement in the alley.
Neither the plaintiffs nor any of their grantors have acquired title to the locus in quo, nor to any part of it. ( Simmons v. Cloonan, 81 N.Y. 557.)
Clearly the grantees of Bissell by the map and by the mode in which the lots abutting on the alley were conveyed, acquired rights of way in favor of their respective lots. And it is equally clear that the plaintiffs are now possessed of a right of way unless lost by the non-user of their predecessors and by the adverse possession of Conolly and his successors.
It is settled that under the Statute of Limitations of this state the legal title to land may be lost by its true owner, and be acquired by one holding it adversely for twenty years. ( Baker v. Oakwood, 123 N.Y. 16.)
So an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for twenty years. ( Snell v. Levitt, 110 N.Y. 595; Wash. Eas. [4th ed.] 718; Yeakle v. Nace, 2 Whart. 123.)
These rules are decisive of this action, unless the period within which the plaintiffs may maintain an action is, as is claimed in their behalf, enlarged by the fact that this alley was a public way from 1826 to 1846.
An abutting owner has two distinct kinds of rights in a highway or street. A public one, which he enjoys in common with all other citizens; and certain private rights, which arise from his ownership of property contiguous to the highway or street. These special rights increase the value of his abutting premises, are private property and, if they are destroyed or greatly injured without due process of law, damages may be recovered for the injury. But a person cannot maintain an action for an injury to public rights without showing that he has special or private rights which have been invaded. ( Abendroth v. Man. R. Co., 122 N.Y. 1-14; Lansing v. Smith, 8 Cowen, 146; S.C., 4 Wendell, 10; Wood on Nuisances, 655.)
An abutting owner's private rights in a public street may be lost in case their existence is denied and they are exclusively possessed for more than twenty years by one who claims to own the fee of the street as against the world. It follows that in no aspect of the case are the plaintiffs entitled to recover.
Entertaining these views it is quite unnecessary to determine in what time a public street or highway ceases to be such as against the public by its non-user.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.
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