The case of Hindley v. Manhattan Railway Co. (103 App.Div. 504) is, in principle, I think, applicable to the present case. I, therefore,'feel, constrained to concur in the opinion of Mr.- Justice Patterson. But for this former decision, however, I should be of the opinion that the defendant could and had obtained prescriptive rights ágainst,abntting owners, and that its occupation of the streets became hostile before the decision of .the courts in. 1882,-adjudging that the rights of abutting owners had been invaded, and that the purchase or recognition of the' rights of one abutting owner on the route did not destroy defendant’s prescriptive rights against other abutters whose claims were not conceded.
Although the defendant began its occupancy under grant fiom the State to the street only, yet from its manner of occupation, and "from its resistance to payment for invasion of the individual rights of abutting owners, it must be deemed, I think, to have occñ*265pied under claim of right to use all that was necessary to the erection, maintenance and operation of its railroad. From the very nature of the structure, and from the necessary manner of operation, the light, air and access of abutting owners were appropriated. That the defendant believed it had the right to these under its grant from the State, or that it insisted that abutting owners had no redress for their invasion, did not change its rights or the'cliaracter of its occupation. That occupation was open and notorious and exclusive, either under claim of title or in hostility to the owner’s rights, and contained all the elements, it seems, to me, necessary for the ripening of prescriptive title. Wliilé the right of way is continuous, and in abroad sense must be treated as a whole, yet the invasion of individual rights is single ; and I see' no reason why such single right cannot be obtained by adverse possession, notwithstanding the rights of other abutters similarly situated may be recognized.
The question in the present case as to whether or not the Statute of Limitations was suspended by the death of the owner and the descent of the real property to her infant heirs, would be important if defendant could obtain title by prescription, but under the decision as rendered it becomes immaterial. Because of the decision of this court in Hindley v. Manhattan Railway Co. (supra) I concur in an affirmance of the present judgment.
Judgment affirmed, with costs. Order filed.