Appellants' points. by connecting himself with a known source of title. He could not rely upon adverse possession as proof of title, as (he) might if title to land were in question, for the easements were not susceptible of possession, nor was their enjoyment ever adverse to any one, so that an action might have been maintained against her if it was wrongful. Burbank v. Fay, 65 N. Y. 57; Wheeler v. Clark, 58 Ib. 267. Any grantor of Watson may have acquired title to the premises themselves by adverse possession, and yet Watson may not be entitled to the full enjoyment of these easements, as against defendants, who are in possession before Watson. This essential fact could of course be shown by presumptive as well as by direct evidence, but in some manner it must have been made to appear, or the complaint should have been dismissed. There appears to arise no presumption of the existence of the conveyance from the owner in 1838 to Watson or to Watson's grantor. The presumption of a conveyance which has been lost or for some other reason cannot be produced, is well known to the law, and the rules of law regarding the making of such presumptions are exceedingly well defined. The first requisite of such presumption is a great lapse of time. In Jackson v. Moore, 6 Cow. 706, the court said: "A grant of land will never be presumed unless the lapse of time is so great as to create the belief that it was actually made; or unless the facts and circumstances in the case show that the party to whom it is presumed to have been made was legally or equitably entitled to it." This statement is quoted and adopted in Demeyer v. Legg, 18 Barb. 22. In Schauber v. Jackson, 2 Wend. 13, Chancellor WALWORTH said: "There are two kinds of presumption in favor of a grant or conveyance of real estate. The one is in favor of those who are entitled to a conveyance from trustees of others, in conformity to the trust, or in Appellants' points. pursuance of some contract or agreement to give such conveyance * * * The other is in favor of a person who is in possession of property, or in the enjoyment of some privilege or easement under a claim of right; in which case, under certain circumstances and after a great lapse of time, a conveyance of the land or grant of the privilege or easement will be presumed, on the principle of quieting the title or possession." The phrase, "a great lapse of time," is technical and is always used in this connection. Russell v. Jackson, 22 Wend. 276; 1 Greenleaf on Evidence, § 46. Some of the times held sufficient to raise the presumption, are the following: Jackson v. Lunn, 3 Johns. Cas. 109.-35 years; Demeyer v. Legg, 18 Barb. 22.-66 years; Dutch Church v. Mott, 7 Paige, 77.-140 years; Van Dyck v. Van Bueren, 1 Cai. 84.-50 years; Jackson v. Murray, 7 Johns. 5.-120 years; Jackson v. McCall, 10 İb. 377.-41 years; Jackson v. Matsdorf, 11 Пb. 90.-38 years; Jackson v. Moore, 13 Ib. 513.-32 years; Russell v. Jackson, 22 Wend. 276.-90 years. The above list of New York cases is very nearly complete. The courts have seldom been asked to presume a conveyance made since the recording acts went into operation, and, so far as is known to us, never with success. See 1 Greenleaf on Evidence, 14th Ed., p. 63, note 4. The decisions are to the effect that such a presumption will arise only in support of a possession of at least twenty years' duration. Jackson v. Moore, 6 Cow. 706, 723; Downing v. Ford, 9 Dana, 391; Anderson v. Smith, 2 Mack. 280. The evidence in this case does not tend to show any possession by the plaintiff prior to 1880, or about four years before the action was brought. There has been a complete failure on the part of the plaintiff to establish privity with the covenant or trust which he seeks to enforce. It is immaterial of what nature may have been any author Appellants' points. ity from the then owners of the easements in question, even though it consisted in a mere license, as soon as it became executed by the erection of a permanent structure for railroad purposes, worked an extinguishment pro tanto of the easements affected. by the structure and its use. This is conclusively established by the decisions. 2 Washburn on Real Property, 284; Washburn on Easements, Chap. 5, Sec. 7; Cartwright v. Maplesden, 53 N. Y. 622; St. Vincent Orphan Asylum v. City of Troy, 76 Ib. 113; Dyer v. Sandford, 9 Metc. 395; Winter v. Brockwell, 8 East., 308; Morse v. Copeland, 2 Gray, 302. Therefóre, the easements, if any, which passed to the plaintiff by the deed from his immediate grantor were those which such grantor had at that time, viz., easements which had been abridged, by the owner's consent, to such an extent as to permit of the construction and operation of the railway. II. The court erred in permitting a judgment to be entered enjoining the defendants from operating their railway upon the condition that defendants should pay for the property taken $12,000, and in refusing to direct that the injunction should become inoperative in case the defendants should pay the award of the commissioners in the condemnation proceedings which the court found had been commenced and was still pending. The court made a finding to the effect that such proceedings had been instituted and were still pending undetermined in the supreme court. The court was requested to so frame the decree that the proceedings might be continued and the injunction obviated by the payment of the award of the commissioners in those proceedings. The Court of Appeals in the case of Henderson v. The New York Central R. R. Co., in passing upon a similar decree in an equity action, decided that in the case of a decree containing an injunction which declared that such injunction should not be operative Respondent's points. in case a certain sum found to be the value of the property taken was paid by the defendant, the payment of such sum found was not obligatory upon the defendant, but that the defendant, possessing the power of eminent domain, might exercise the statutory right irrespective of the finding end might obviate the injunction by acquiring the property in the method pointed out by the statutes. Edwin M. Felt, for respondent, argued : I. The conveyance to plaintiff from Samuel Love and wife dated August 16, 1880, was a full warranty deed, and contained the following recital: "Being lot numbered 63, conveyed by James Rowe and Mary C., his wife, to the said Samuel Love, by deed dated December 18, 1849, and recorded in the office of the Register of Deeds of the city and county of New York, in Liber 533 of Conveyances at page 403, January 29th, 1850." This shows that Love claimed to hold the premises by paper title since 1849. Love was also in possession and occupation of the lot prior to the building of the road in 1879. These findings, as requested by the defendants, are as follows: Fourth, that on or about August 16th, 1880, after said railroad was erected and in operation, the plaintiff took a deed of the premises, No. 121 West 53d street, from Samuel Love and wife, who were in occupation thereof, for the consideration of $7,000, which he paid. Said premises were bounded in said deed by the side line of the street. Fifth, that said Love had been living in a frame house on said premises for several years prior to the date of said conveyance to the plaintiff, and renting part of said premises, but what title, if any, he had thereto is not proven. Now the law presumes the party in possession to be the owner. He is presumed to have the best title known to the law, namely, seizin in fee. Hill v. Draper, 10 Barb. 454; Bowen v. Bowen, 30 Respondent's points. N. Y. 519; Bogardus v. Trinity Church, 4 Sand. Ch. 633. The law presumes that Love's title was good. Blunt v. Aiken, 15 Wend. 522. So that we have Love in possession several years before August, 1880, with a presumptively good title, and in addition his covenant in his deed to plaintiff that the premises he sold were the same premises which were conveyed to him by Rowe in December, 1849. The occupation of this street by the defendants, being pursuant to legislative grant or license, which only gave them what the public owned, entry under this license is presumed to have been in subordination to the rights of the owner. Broistedt v. South Side R. R., 55 N. Y. 220. The facts in the above case were that the plaintiff purchased after the road was running and filed his bill to enjoin them on the ground that they were running over his property. The Court of Appeals sustained the injunction. The opinion of this court in Glover v. The Manhattan R'y Co., 51 Super. Ct. 1, on pages 12 and 13, sustain the theory that as long as these easements belonged to the abutting property on a street, an owner could recover the damages sustained since he became the owner; it says, "It can make no difference at what time he became the owner of the property, but he is entitled to be protected against an unauthorized appropriation, whether it was acquired by him before the defendant appropriated it or on the day before the commencement of the action." II. The question who could maintain such an action as this against the defendants was fully raised and discussed in Story v. The N. Y. Elevated, 90 N. Y. 122. On pages 130 and 131 of that case the court will find that counsel contended for two propositions, which we understand were sustained by the court. 1st. The plaintiff as a mere abutting owner has an absolute right to protect the street in front of him for ordinary street uses. 2d. The in |