The fair interpretation of the allegations of the third defense is that the whole basement front of the building projects into the street *345seven inches. The statement that this is not a necessary part of the building and can be easily removed at a nominal expense is a mere conclusion of the pleader not admitted by the demurrer and manifestly inaccurate, because its removal would necessitate shaving off the entire front wall from the water table to the foundation stone. The agreement of the parties that the encroachment on Fifth avenue should not exceed one inch ought to be given effect, and an encroachment admittedly seven times as great as the parties agreed upozi cannot be treated as iznmaterial.
I do not understand the right to maintain an encroachment in a street can be acquired by prescription either as against the public or an adjacent owzier. An encroachment upon a public highway is a public nuisance. A municipality cannot grant the right to maintain it (Ackerman v. True, 175 N. Y. 353), nor can such a right as against the public be acquired by prescription. (21 Am. & Eng. Ency. of Law [2d ed.], 733.) Title through prescription presupposes a grant. An abutting owner could not grant to another abutting owner the right to maintaizi an encroachznent in the street. An abutting owner havizzg no right to make such a grant it cannot be presumed. The nuisance being a public .one no right by user can be acquired to maintain it. (Mills v. Hall, 9 Wend. 315.)
The rule in the elevated railroad cases has no application. The elevated railroad companies were not trespassers in the highway nor were the structures which they erected nuisances. They were izi the street lawfully and wrongfully appropriated the easeznents of light, air and access of abutting owners, and had the right to condemn such easements or purchase them, and hence adverse user on its fact could ripen into title. (Bly v. Edison Electric Ill. Co., 172 N. Y. 1, 7.) The Lotus Club building does not occupy the same legal position as the elevated railway and cannot invoke title by prescription to maintain its nuisance upon the street as against adjacent and abutting owners.
I have very grave doubts respecting the constitutionality of chapter 646 of the Laws of 1899, which creates a short statute of limitations against the city for the rezno val of encroaehznezits upon streets. But whether it is effective against the city or not, abutting owners still retaizi their rights, as this court has recently held *346in People ex rel. Cross Co. v. Ahearn (124 App. Div. 840), to demand the yemoval of encroachments. To my mind the plea states no defense, and I think the interlocutory judgment should be reversed.
Interlocutory judgment affirmed, with costs. Settle order on notice.