I concur, in an affirmance of the judgment in favor of the plaintiff Matthew M. Goggin, but I do not think the infancy of the one *648tenant in common suspended the running of the Statute of Limitations as to the adult cotenants. It is true there is a legal distinction • between the title to land obtained by adverse possession, and the prescriptive title. to an .easement acquired by adverse user. Both, however, are interests in land acquired in the same general manner and the time within which.title ripens is the samé. There appears to be no reason why a like rule of limitation or suspension of limitation should not be applied to each, or why the rule.as to disabilities enunciated in Scallon v. Manhattan R. Co. (185 N. Y. 359, 363) should not be applied. • The interests of a tenant in common in land may be acquired by adverse possession by a stranger (Baker v. Oakwood, 123 N. Y. 16) and also by his cotenant after proper ouster. (Culver v. Rhodes, 87 id. 348.)
There appears to be a curious dearth of authority on the effect of the disability of one tenant in common upon the running of the statute as to the cotenant. In England, as early as' the case of Roe d. Jangdon v. Rowlston (2 Taunt. 441) it was held that if an estate descend to parceners, one of whom is under a disability which continues more-than twenty years and the other does not . enter within twenty years, the disability of the one does not preserve the title of the other. This holding does not appear to be from any peculiar statute, and is stated as the general rule in Blanshai’d Lim; *22. To the same effect is Thomas v. Machir (7 Ky. [2 Bibb] 412) and Floyd's Heirs v. Johnson (12 id. [2 Litt.] 109). Logically this must be so, for each tenant in . common can convey his undivided interest and lose it from adverse possession ; and there is no reason why the disability of one of. the co-owners should save the individual rights'of the other from the operation of the statute.
It is claimed, however, that there is a wide difference between taking actual title'away from a tenant in common by adverse possession and obtaining prescriptive title to an e_asement as against him ; for although he may convey what title he has, he cannot alone grant an easement. It is true he cannot convey an easement as to the whole property, or grant one in any sense complete, but he can create one good" as against himself. Such result of his conveyance is expressly recognized in Crippen v. Morss (49 N. Y. 63) and in Edridge v. Rochester City & B. R. R. Co. (54 Hun, 194), relied upon by appellants. In White v. Manhattan R. Co. (139 N. Y. 19) a *649consent to the construction and operation of an elevated railrpad signed by one tenant in common was held not binding upon the owners of the land “ other than the one who signed it and his grantees with knowledge.” The title of a,tenant in common is not joint but several, although of an undivided part; and I see no reason why prescriptive title may not be gained as against his interest in the land, even though no complete easement is acquired. An abutting, owner by his acts may abandon his easement of light, air and access if he sees fit (Ward v. Met. Elev. R. Co., 152 N. Y. 39) and lack of prosecution within the prescribed time would seem to be one method of doing so. If the statute was not suspended by the infancy of the one cotenant, there is no question that the full twenty years had run against the appellants when the action was begun, and that if prescriptive title could be gained at all it had conclusively ripened as adverse user for the full period of time necessary; Notwithstanding the dower of the mother had been admeasured and she occupied the property they, as remainder-men, had an immediate right of action. (Thompson v. Manhattan R. Co., 130 N. Y. 360.)
The present action is not to recover real property held adversely, in which the rule is that the statute does not commence to run until the determination of a prior estate. In such case there is no right of possession until the prior estate is terminated. The action which plaintiffs instituted is one to restrain a continuing trespass, and it arose as early at least as when the defendants began to operate their railroad. (Hindley v. Manhattan R. Co., 185 N. Y. 335.) If any injury resulted to the land, it was one daily “ done to the inheritance” which section 1665 of the Code of Civil Procedure expressly gives a remainderman a right of action for, notwithstanding any. intervening estate for life or for years. The appellants could, therefore, have brought action at any time within the twenty years, and if the infant cotenant could or would not join with them as plaintiffs they could have made him a defendant. (De Puy v. Strong, 37 N. Y. 372.) By their failure to do so, I think they have lost what rights they had, either because the Statute of Limitations of twenty years is a bar or because their claim is a stale one which the court should not entertain, and that the dismissal of the complaint as to all the plaintiffs, except the *650one who was an infant at the time the cause of action accrued, was proper, and that the judgment should be affirmed.
Laughlin, J., concurred.
On defendants’ appeal, judgment affirmed; on plaintiffs’ appeal, judgment reversed, new trial ordered with one bill of costs to plaintiffs to abide event. Settle order on notice.