Burnet v. Bagg — 67 Barb. 154

Majority

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Burnet vs. Bagg.

Headnote

When a piece of land in a city is dedicated by the owners to the public for the purposes of a park or square, the city, if it accepts the dedication, becomes seised of it, not in fee, but in trust for the public, charged With the duty of preventing its appropriation to aúy other uses than such as the donors intended, and of securing to the public the enjoyment of the benefits which it was designed to confer.

Unless a private person, living in a corporation in which land has been dedicated for a public use, has acquired in soine legal way an interest in such easement, from the person dedicating the land, he cannot maintain an action against a person or corporation interfering with or disturbing such easement ; unless he sustains thereby some special and peculiar damage, which is not sustained by the great mass of the inhabitants.

It would be a breach of the trust under which a city holds land, dedicated to the public for the purposes of a park or square, to permit it to be appropriated to private use; much more to expressly permit such appropriation. A breach of trust is never presumed. Per Mtjllin, J.

The benefits afforded by a public park or square, are those of light, air, prospect and of a public promenade. Inclosing and planting trees upon land so dedicated, does not interfere with the enjoyment by an individual of any of the benefits the laying out of a park or square was intended to confer.

A triangular piece of land in the city of Syracuse having been, by the owners, dedicated to the public for the purposes of a park or square, and accepted by the city, the defendant asked, and obtained permission, from the common council, “ to set shade-trees on, and to indlose, a portion of the triangle with a suitable fence.” Held, that if, under this permission, the defendant should attempt to appropriate the triangle to his own use, an individual citizen could maintain an action against the defendant and the city, to prevent it. But that until that was done, or attempted, he could not maintain such an action.

PPEAL, by the plaintiff j from a judgment entered at a Special Term, on a trial by the court without a jury, dismissing the complaint in this action.

The triangular piece of ground which is the subject of controversy in this suit, was owned in fee by the Syracuse Company, so called. That company conveyed all the land owned by them in the city of Syracuse, including the triangle in question, to the plaintiff and Grideon Hawley, in trust for the said owners, and the plaintiff was authorized to sell and convey said lands. The plaintiff laid out said lands into lots and streets, and finding

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that the triangle in question would be of more value to the owners if set apart as an open square, park or highway, did dedicate and set it apart for that purpose. The defendant owns the land on the east side of it, and the west wall of his dwelling house comes up to the east line of said triangle. Hawley street bounds said lot on the west and south, and James street on the north. The plaintiff owns a lot on the west side of Hawley street, on which his dwelling house is erected, and he owns a lot south of the triangle, lying between Hawley and Townsend streets, which come together just south of said triangle. On the last mentioned lot, the plaintiff has erected a barn, which is used by himself and his son.

This triangle, together with the land now occupied by the defendant, was for many years uninclosed and unoccupied except as a pasture for cattle running at large in the streets. While it was thus lying open as a common, and after the defendant had inclosed his lot, the triangle was travelled over by teams and people on foot, in all directions, at pleasure. The defendant, desiring to make it somewhat ornamental, applied to the common council of Syracuse for permission to inclose it with a fence, and to plant trees upon it, and it was granted; and he was proceeding to inclose and plant it with trees when this action was commenced and a temporary injunction obtained.

The plaintiff, in his complaint, alleges that this triangle was dedicated to the public for the benefit of the surrounding lands owned and sold by the Syracuse Company, and that to inclose it will deprive the plaintiff of the right to travel over it in going to and from Hawley and Townsend streets, and greatly injure the value of his lands in that vicinity, for business purposes.

The court found, as conclusions of law:

1. That the defendant was duly authorized by law to make the improvements contemplated by him, and that

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the said improvements were consistent with the use for which said grounds were dedicated.

2. That if said improvements were unauthorized, yet the plaintiff could not maintain this action, for the reason that he would sustain no special damage, in case said improvements were made.

He therefore directed judgment dismissing the complaint, and directing the injunction to be dissolved with costs,^[1]

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Mr. Burdick, for the appellant.

I. A man may dedicate lands for any lawful purpose that he may choose. 1. He may dedicate lands for a street; 2. He may dedicate land for a park; 3. He may dedicate it for a church or school house site; 4. For cemetery purposes;

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and, 5. For an open public square. By a park or cemetery an inclosure is contemplated, and is consistent with the dedication. Not so a street, or open square, highway easement. An inclosure defeats the object of the dedication, and is not consistent with it. ( 22 Wend., 472 ; note, p. 425; 11 id., 503 .)

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II. When a dedication is made, the purpose cannot The changed. For instance, if lands are dedicated for a park, the municipal authorities of a city or village have no power to change it to a school house or church, or other public building purposes, or a street, and espe

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daily without following the strict authority, and paying a just compensation to the owner of the fee, and then in a manner prescribed by law. ( 16 N. Y., 97 , 108, 109, 111; 12 Wend., 98 .)

III. The municipal authorities of the city of Syracuse neither had power to authorize, nor áre they in any way responsible for the acts of the defendant. The common council simply permitted, gave a license to defendant to make the inclosure and set the trees. They took no action or steps in the matter, but merely granted the prayer of defendant’s petition. The acts complained of are not within the authority conferred by the city charter on the common council. (Walker v. Caywood, 31 N. Y, 61 , 63. 2 Barb., 577 , 581.)

IV. The inclosing of this triangle was an individual act of the defendant, and for his own personal benefit. His petition is signed by no one but himself, does not ask it for any one but himself, and then for a temporary or uncertain time, only during the pleasure of the city. The city authorities do not lay it out as a park, or for any object as a public work. They neither order, locate nor direct it; neither assumed any control or responsibility in the matter, nor intended to ; they granted

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a license to the defendant, whose purpose was to annex the area of land to his residence, and excluding the plaintiff as well as others of the public therefrom.

V. If the city authorities intended to inclose these grounds and to exclude the plaintiff and others, and the public, we insist it is in conflict with and a subversion of the dedication, and they acted without authority; and the acts of the defendant are unjustifiable. He proposes permanently to continue to obstruct and prevent the free ingress and egress to and from the same by the plaintiff, and not only defeat the objects of the dedication, but arrogate to himself, and for his individual benefit, that part of the lands dedicated, and destroy the benefits to the property of the plaintiff. ( 19 N. Y., 256 .

VI. Any pecuniary injury to the plaintiff, no matter how small, by depriving him of a vested right, subjecting him to loss of time or money, imposing additional burdens, obstructing his right of way, is an injury to private right, and he is entitled to the aid of a court of equity to restrain the doing, and a continuance of illegal acts. ( 22 Barb., 414 , 420, 497.)

VII. The learned judge erred in his conclusions of law. 1. In holding that the common council had authority and power to authorize the defendant to do the act complained of. . They cannot change the width of a street by authorizing a number of feet to be inclosed for a court yard. Any person owning property on such street may restrain it by injunction. (2 Barb. R., 577. 4 Paige, 515.) Nor occupy it for any purpose, except that of travel. ( 11 Barb., 390 .)

VIII. The case made is clearly within the province of the court to grant the relief demanded. A threatened permanent or continuing injury is sufficient ground for an injunction. (2 Story's Equity, §§ 920, 923 and 927, p. 258.)

IX. The learned judge erred in finding there was an

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acceptance of the dedication. No evidence of any acceptance, or official action given on the trial. Neither the city nor village authorities ever took any action in relation to any acceptance of the dedication. ( 6 N. Y., 257 .

X. The fee of the triangle is in the plaintiff, and he is entitled to protect the reserved rights in the fee, and prevent any perversion of the objects of the dedication. ( 3 Hill, 483 .)

Chas. Andrews, for the respondent.

I. The plaintiff stands in the same position, in respect to the remedy in this action, as though the deed of trust from James and others to the plaintiff and Gideon Hawley in 1825, had never been executed. The plaintiff can claim nothing in this action, under or through that conveyance.

1. That conveyance conveyed the lands embraced therein, to Moses- D, Burnet and Gideon Hawley, to be held in “ joint tenancy and not as tenants in common,” with power to Burnet to convey upon the written approval of Mr. James, during his life, and with a like power to Mr. Hawley after Burnet’s death. If an action could be maintained by the owners of the fee of the land to restrain any use inconsistent with the purpose of the dedication, yet, such action must be brought by the trustees jointly, and does not lie in favor of the plaintiff alone. (4 Kent's Com., 11th ed., 360. 5 Paige, 542.)

2. The action is not brought upon the theory that the plaintiff, by reason of ownership of the soil, has rights which have been invaded by the defendant. The plaintiff in his complaint asserts no claim as trustee or in behalf of the beneficiaries in the trust. No title to the locus in quo is alleged in the plaintiff. 3. The purposes of the trust having been accomplished, the legal estate has reverted in the grantors who created it. (Nicholl v. Walworth, 5 Denio, 385 .)

II. The complaint avers the dedication of the triangle

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in question to the public, ‘1 as public grounds, easement and highway. ’ ’ It devolved upon the corporate authorities of the city of Syracuse, as representatives of the public, to control and regulate the use, in any manner not inconsistent with the purpose of the dedication. (Trustees of Watertown v. Cowen, 4 Paige, 510. Commonwealth v. Albenger, 1 Wharton, 469 . 2 Smith’s Leading Cases, 218, 222. 5 Paige, 454.) This right would from necessity exist in the corporation without special statutory authority. It is also given by the charter. (Laws 1857, ch. 63.)

III. The authority given by the common council to the defendant, to improve the triangle in question, and to inclose it for the purpose of a public park, was consistent with the use for which the land was dedicated, and the defendant could lawfully exercise the authority granted, as the agent of the corporation. 1. The purpose of the dedication of the land in question, as alleged and proved, allows any use to be made which shall not interfere with its character as “public grounds, easement or highway.” 2. A public park or square is a highway, within the legal meaning of that term. (Com. v. Fish, 8 Met., 238 . State v. Wilkinson, 2 Verm., 480 . 2 Smith’s Leading Cases, 222. 2 Ohio Rep., 107 .) 3. It appears, by the complaint and by the proof, that the triangle is bounded by streets, and is not within the limits of any street as used and travelled. 4. The use to which public grounds may be appropriated may vary from time to time, as public convenience may require, so that the new use shall not be substantially inconsistent with the purposes of the dedication.

IV. If the common council had authority to authorize the proposed improvement, then no action can be maintained by the plaintiff, although he may be injured thereby. The common council having authority to act, the propriety of its action cannot be questioned. (Williams v. N. Y. Central R. R. Co., 18 Barb., 347 . Davis

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v. Mayor, &c., 4 Ker., 515. Chapman v. Albany and Schenectady R. R. Co., 10 Barb., 360 .)

Y. If, however, the proposed act of the defendant was unauthorized, yet the plaintiff cannot maintain this action, as it appears from the proof, and is found by the referee, that he will sustain no special damages therefrom. This fact must be alleged and proved, to entitle the plaintiff to an injunction. (Corning v. Lowerre, 6 John. Ch., 439. Dougherty v. Bunting, 1 Sand., 1. Parsons v. Travis, 1 Duer's R., 449. Davis v. Mayor, 4 Ker., 526. Lansing v. Smith, 8 Cow., 151 . Smith v. City of Boston, 7 Cush., 254 . 2 Story's Eq., §§ 924, 925. Washb. on Easem., § 569. 7 Cush., 510 .) Nor will the court interfere by injunction in a case of what may be regarded as an eventual or contingent nuisance. (Ld. Brougham in 3d Mylne & Keene, 169.)

The triangle in question was dedicated to .the public for the purposes of a park or square, and the city of Syracuse, if it accepted the dedication, became seised of it, not in fee, but in trust for the public, charged with the duty of preventing its appropriation to any other uses than such as the donors intended, andvof securing to the public the enjoyment of the benefits which it was designed to confer. (Village of Watertown v. Cowen, 4 Paige, 510. Anderson v. Rochester &c. R. R. Co., 9 How. Pr. Rep., 553 .)

Unless a private person, living in a corporation in which land has been dedicated for a public use, has acquired in some legal way an interest in such easement, from the person dedicating the land, he cannot maintain an action against a person or corporation interfering with or disturbing such easement; unless he sustains thereby some special and peculiar damage, which is not sustained by the great mass of the inhabitants. (S ee cases cited, supra.)

In Anderson v. Rochester &c. R. R. Co. ( 9 How.,

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561 ) the defendant had instituted proceedings under the general railroad act, to acquire the right to lay its track through a public square in the city of Rochester, a part of which had been dedicated to the public for the purposes of a public square, and a part had been purchased by the city, for the same purpose. A large portion of the price had been assessed upon the owners of lots fronting on the square. The plaintiffs were such owners, and commenced the action to restrain the defendant from- laying its track on the square, upon the ground that it would be injurious to the property of such owners. It was also claimed by the plaintiffs that if the track should be laid in the square it could only be upon payment to the plaintiffs of damages for the injury they should sustain thereby. An injunction was granted, but on appeal to the General Term it was vacated. Seldew, J., lays down the following propositions, which apply, in all their force, to the case before us.

1st. That when land is dedicated to the public use the fee remains in the original proprietors, and the public acquire an easement, merely, coextensive with the purposes to which they were intended to be appropriated ; and if there is a corporation to represent the public, the easement vests in such corporation, which thus becomes a trustee of a use.

2d. That the owners of lots fronting on the square not having had conveyed to them an interest or easement in the square, acquired, no interest or easement therein, separate and distinct from that held by the corporation in trust for all the citizens.

3d. If the trustee in trusts of a public nature violates its duty by authorizing an encroachment upon the rights of the public, any of the citizens as cestuis que trust, may institute a suit against such trustee, to enforce the trust. But none of the beneficiaries of the trust can proceed in their own names, against a stranger

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to the trust, except when the acts of such stranger are productive of some special injury to the parties complaining not common to all the. cestuis que trust.

4th. That the location of the track of the defendant’s road in the public square was not such a special injury to the plaintiffs as entitled them to maintain the action.

5th. That the benefits afforded by a public square are those of light, air, prospect and of a public promenade; and that the track of the defendant, if laid and used by its engines and cars, was not such an interference with the enjoyment of either of these benefits as a court of equity would prohibit by injunction. (Lawrence v. Mayor &c. of New York, 2 Barb., 577 . Corning v. Lowerre,. 6 John. Ch., 439. Drake v. Hudson River R. R. Co., 7 Barb., 508 .)

In the Fishmongers' Co. v. East India Co., (1 Dick., 164,) the Lord Chancellor dismissed the plaintiff’s bill, filed to procure an injunction restraining the erection of a statue of George the 3d on a triangular piece of land in front of the plaintiff’s premises in the city of London, where several streets met, as calculated to lessen the value of the plaintiff’s premises. The chancellor held that the statue would not be a public nuisance, as it did not obstruct the carriage way; that- it would be beneficial to the public. It was quite immaterial, he said, whether a majority of the inhabitants of the neighboring houses do or do not object to the erection of the statue—that if its erection did lessen the value of property fronting on the triangle, it was not such a description of private nuisance as would justify the interference of the court on that ground.

If the cases cited be law, the plaintiff cannot maintain this action, because,

1st. Inclosing, and planting trees upon, the land in question does not interfere with the enjoyment by the plaintiff of any of the benefits the laying out of the square was intended to confer.

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The only possible enjoyment which inclosing and planting trees could interfere with would be that of prospect. Those of light, air and promenade are in no respect interfei-ed with. And as to the prospect, it seems to me quite obvious that, so far from its being injured, it is largely improved.

But very little, if any, benefit would be conferred by dedicating to the public a piece of ground to be left uninclosed —• to be travelled over ad libitum by persons and carriages—a common resort for all the stray cattle of the vicinage. Such a place would soon become impassable — offensive to the senses. It would be, in itself, a public nuisance.

The length of this triangle on James street is, I believe, about seventy-five feet; Hawley street is sixty feet; making, together, 135 feet. If this space is to be kept open as a street over which persons may pass at pleasure, and the city should accept it for that purpose, it would be its duty to keep it in repair. It would be no small burthen to keep such a street in proper condition for travel; and I very much doubt whether any corporation would accept of such a gift, charged with such a burthen.

But it was never intended, by those who dedicated this triangle to the public, that it should be so used. It was their purpose to furnish a place which might be inclosed and protected against the inroads of cattle, planted with trees, shrubbery and flowers—a spot pleasant to the eye and an ornament to the street. If the streets in the vicinity had been so narrow as to require for the accommodation of the public or adjoining owners, a larger space for travel, it might be inferred that the object of the dedication was to enlarge the passage way for teams, &c.; but there is no such necessity apparent or proved. And in the absence of evidence of such a purpose on the part of those dedicating the land, we must presume that they intended that it might and wmuld become a beautiful

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park, a place affording pleasure to all who might look upon it or enjoy its shade, and not a disgrace to those who gave it, and the people for whose benefit it was given.

It is suggested that the city, in granting the request of the defendant for leave to inclose the triangle, gave him the right to appropriate it to his own use, to the exclusion altogether of the public.

I do not think that the transaction between the defendant and the city is open to such a construction. The defendant’s request was, to be permitted “to set shade trees on, and to inclose a portion of the triangle with a suitable fence. ’ ’ And this was the permission granted.

It would be a breach of the trust under which the city holds the land in question to permit it to be appropriated to private use; much more to expressly permit such appropriation. A. breach of trust is never presumed. (1 Cowen & Hill’s Notes, 298, 367-8.)

The presumption may be fairly and reasonably, consistently with the language of the request on the one side, and the resolution granting it on the other, construed to mean a permission to the defendant to inclose, and plant trees upon, said triangle to be used as a public park, for the benefit of the public ; and that the defendant’s reason for making the request and assuming the expense, was to render a place adjoining his dwelling house, that from the mere want of improvement was not pleasant to the eye, and therefore lessened the enjoyment to be derived from his own premises, a pleasant little public park. If the defendant thus improved it, the public derive the same benefit from it they would have done had the city performed the same service; and they were relieved from the expense.

But if, under the permission thus granted, the defendant should attempt to appropriate this triangle to his own use, the plaintiff could maintain an action against the defendant and the city, to prevent it. But until

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that is done, or atttempted, he cannot maintain such an action. (See cases cited.)

[Onondaga General Term,

April 2, 1867.

The court finds that the plaintiff has not sustained any such special damage as entitles him to maintain this suit. While this is rather a finding of a matter of law than a fact, still, within the cases cited, his finding is right. Being compelled to walk or drive a few rods further, by reason of inclosing this triangle, is not an injury which the plaintiff sustains alone. Every person passing from Townsend or Hawley street has the same additional distance to pass over. The depreciation of property is not of itself sufficient to enable the plaintiff to sustain the action. If so, there is no improvement of modern times, the erection or construction of which may not be prevented; as there is none which does not injuriously affect the pecuniary interests of some persons more than others.

As these are the only grounds suggested for sustaining the action, I the judgment of the Special Term was right, and should be affirmed.

Judgment affirmed, with costs.

Morgan, Bacon, Foster & Mullin, Justices.