In the absence of such a finding the trial court's conclusion of law, to the effect that the complaint should be dismissed, is not warranted by the facts found. The case of Kennedy v. Mineola, H. F. Traction Co. ( 178 N.Y. 508) is not in conflict with the views here expressed. In that case there was an affirmative finding that the plaintiff was not the owner of the highway in front of his premises, and it was, therefore, properly held that this court could not look into the record to ascertain whether there was any evidence to support that finding.
As the abutting owner did not own the fee of the roadbed, he could not recover more than nominal damages. ( Kennedy v. Mineola, H. F. Traction Co., 178 N.Y. 508.) In the matter at bar, one Boylan, the present appellant, was the abutting owner. It had been held in Mayne v. Nassau Electric Railroad Co. ( 151 App. Div. 75; affd., 210 N.Y. 607) that where the abutting owner acquired the fee to the roadbed of the street, even by a conveyance separate and subsequent to that by which he had acquired the ownership of the abutting property, the union in him of the two titles would justify a recovery by him of substantial damages in an action in equity to enjoin a continuous trespass. Some months after the filing of the notice of lis pendens in this proceeding, and the entry of the order permitting the petitioner to enter and remain in possession of Mrs. Cabot's property, and also of the order appointing commissioners of appraisal, Mrs. Cabot released by a quitclaim deed to Boylan, the abutting owner, for the consideration of "One Dollar and other valuable consideration," all her interest in the property in question.
A deed from one not in possession or not proved to be the owner does not establish title. The rule seems to be so stated in Miller v. Long Island R. Co. ( 71 N.Y. 380, at p. 383); Greenleaf v. Brooklyn, F. C.I. Ry. Co. (141 id. 395, at p. 398); Kennedy v. Mineola, H. F. Traction Co. ( 77 A.D. 484, 491, 492; affd., 178 N.Y. 508). I shall now consider the claim of Marsh and Rourke.
Plaintiffs assert that defendants have failed to prove title in themselves, in that their chain of paper title does not go back to the original patentee. This contention seems to be borne out by Miller v. Long Island R.R. Co. ( 71 N.Y. 380); Greenleaf v. Brooklyn,F. C.I.R.R. Co. (132 id. 408); Greenleaf v. Brooklyn, F. C.I.R. Co. (141 id. 395); Kennedy v. Mineola, H. F. Traction Co. ( 77 A.D. 484; affd., 178 N.Y. 508); Rainforth v. City of New York, 183 N.Y.S. 629.)