A map of the land so sub-divided was recorded in 1826 in the office of the clerk of Monroe county. August 27, 1830, Bissell conveyed to Peter Lynch lot 45 by a deed in which it was described as No. 45 as designated on the map so recorded. A reference to the diagram shows that this lot was bounded on the north by Tremont street. Through mesne conveyances, simply describing the lot by its number, and referring to the map, John Conolly, became April 7, 1856, its owner in fee. February 1, 1860, John Conolly conveyed it to Cornelius C. Dickson, by the description contained in the previous deeds. March 15, 1884, the plaintiffs became the owners of this lot by mesne conveyances in which it was described as in the preceeding deeds.

May 1, 1827, Josiah Bissell conveyed to Bartholemew Travers lot No. 42, designating it by its number and referring to the map. December 9, 1839, Travers conveyed it to Patrick Quigley, describing it by its number and referring to the recorded map, and also bounding it on the west by the east line of the alley. October 13, 1845, Quigley conveyed No. 42 to John Conolly, describing it by its number, by reference to the map, and also describing the west line as follows: "On the west by the line of the alley, being the same premises conveyed to said Patrick Quigley by Bartholemew Travers."

In 1888 Conolly died seized of lot 42 and left a will, which was duly probated November 2, 1888, by which he devised all of his real estate to Henry Anstice. November 10, 1888,

Statement of case.

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Henry Anstice conveyed to the defendant the west half of No. 42 by a deed designating the lot by its number, referring to the map, and also describing it as beginning, "fifty feet west of the north-east corner of the lot of land conveyed to John Conolly by Patrick Quigley ** Thence southerly parallel with the west line of said lot No. 42 to the south line of said lot No. 42; thence westerly along the south line of said lot No. 42 and the same produced to the east line of lot. No. 45 of said tract as laid down on said map, thence northerly along said east line of said lot No. 45 to the said south line of Tremont street, thence easterly along the south line of said Tremont street to the place of beginning, being the west part of said lot No. 42, and so much of the alley west of and adjoining the lot 42 as laid down on said map as is included between the north and south lines of said lot 42 produced westward to the east line of said lot 45, with appurtenances, etc."

Under this deed the defendant entered into possession of the land therein described and began the erection of a building on the disputed strip.

Further facts are stated in the opinion.

Edward F. Wellington for appellants. Title to land forming part of a public highway cannot be obtained by adverse possession, however long continued. (Gerring v. Barfield, 16 C. B. [N. S.] 597, 604; Burbank v. Fay, 65 N. Y. 57, 70; Walker v. Caywood, 31 id. 51, 64; S. V. O. Asylum v. City of Troy, 76 id. 114; Turner v. R. II. Board, L. R.. [9 Eq.] 418.) Abandonment of a public highway cannot be predicated upon its unlawful appropriation by an individual. Neither can it be accomplished by the omission or neglect of the public to use it, except in such cases as fall within chapter 311 of the Laws of 1861. (Driggs v. Phillips, 103 N. Y. 83.) Chapter 311 of the Laws of 1881 has no application to this case. (2 R. S. [5th ed.] 405, § 113; Marble v. Whitney, 28 N. Y. 305; McMannis v. Butler, 51 Barb. 448; Ludlow v. City of Oswego, 25 Hun, 260; Beckwith v. Whalen, 65 N. Y. 331; Lyon v. Munson, 2 Cow. 426; Vanderbeck

Statement of case.

v. City of Rochester, 49 Hun, 92; Laws of 1861, chap. 143, § 156; Amsbry v. Hinds, 48 N. Y. 59.) The action of the board of public works in 1874 was an assertion of the public rights to the alley within fifteen years after it was first obstructed, and constituted an unauthorized license to those in occupation, in no respect different from that given to the St. Vincent Orphan Asylum by the city of Troy. (76 N. Y. 112.) The public right has not been divested by a discontinuance of the highway. That could only have been accomplished by following the formal statutory regulations. (Laws of 1856, chap. 137; Laws of 1872, chap. 771.) The defendant is estopped by all the deeds down to Conolly and by his deed to Mrs. Dickson, which recognizes and asserts the alley. (Bridges v. Wyckoff, 67 N. Y. 122, 123; Driggs v. Phillips, 103 id. 83; Cook v. Harris, 61 id. 448; In re Ladue, 118 id. 213; Flack v. Vil. of Green Island, 122 id. 107.) The plain

tiffs, as individuals, can maintain this action to enforce the public right. It is an incident to the situation in respect to the highway in question. (Callinan v. Gilman, 107 N. Y. 360.)

F. E. Drake for respondent. The testimony of David Cory to conversation with John Conolly was properly excluded upon the objection taken upon the hearing. (Code Civ. Pro. $829.) The plaintiffs acquired no title to, interest in or right over the disputed premises by their deed of lot 45. (French v. Carhart, 1 N. Y. 96; Mott v. Mott, 68 id. 246; Lampman v. Micks, 21 id. 505; Voorhis v. Burchard, 55 id. 104; Simmons v. Cloonan, 81 id. 557; Phelps v. McDonald, 16 id. 82.) If, however, the conveyance from Conolly to Dickson shall be construed to carry title to the center line of the alley strip and pass, as appurtenant to lot 45, a right of way over the alleged alley, then such title to the disputed premises, and such right of way thereover, have been extinguished by the adverse possession of Conolly. (Doolitle v. Tice, 41 Barb. 181; Hammond v. Zehner, 21 N. Y. 118; Barnes v. Light, 116 id. 34; Coming v. Gould, 16 Wend. 531; Smiles v.

Opinion of the Court, per FOLLETT, Ch. J.

Hastings, 22 N. Y. 217; Snell v. Levit, 110 id. 595.) If the alleged alley ever was a public highway, it ceased to be so before the commencement of this action. (Laws of 1861, chap. 311, §§ 1, 99; Amsbry v. Hines, 48 N. Y. 57; Horey v. Village of Haverstraw, 124 id. 273; 46 Barb. 622; Ludlow v. City of Oswego, 25 Hun, 260; Vandemark v. Porter, 40 id. 297; Vanderbeck v. City of Rochester, 46 Hun, 91; 92 N. Y. 629 ; Laws of 1834, chap. 199, §§ 12, 19; City of Peoria v. Johnson, 56 Ill. 45; Winnetka v. Prouty, 107 id. 218; J. M. & I. R. R. Co. v. O'Connor, 37 Ind. 95; Fox v. Hart, 10 Ohio, 414; City of Hartford v. N. Y. & N. E. R. R. Co., 50 Conn. 250; 100 N. Y. 642; Driggs v. Phillips, 103 id. 77; 124 id. 273; Lyon v. Munson, 2 Cow. 426.) Even though the public right of way over the alley in question was not extinguished at the time of the commencement of this action, still the plaintiffs could not recover in this action on the ground that defendant's building was a public nuisance resulting in special damage to plaintiffs. (Stevens v. Mayor, etc., 84 N. Y. 296; Wright v. Delafield, 25 id. 266; Day v. Town of New Lots, 107 id. 149-154, 155; Dickenson v. Mayor, etc., 92 id. 584– 588; Code Civ. Pro. § 723; Reeder v. Sayre, 70 N. Y. 180; Davis v. N. Y. C. R. R. Co., 110 id. 646; Harris v. Tumbridge, 82 id. 92.)

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

Opinion of the Court, per FOLLETT, Ch. J.

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