Majority
Headnote
The question as to whether a public highway has been created by dedication and acceptance, is one of fact; it necessarily involves the intent and acts of the owner and acceptor." This is an action in equity asking to have the defendant, a municipal corporation, perpetually enjoined from removing or interfering with a store-house of the plaintiff Flack, located as alleged in the complaint, upon land of the plaintiff, the Delaware and Hudson Canal Company, and near its railroad, and leased to plaintiff Flack, and declaring the title thereto to be in the said Delaware and Hudson Canal Company, subject to no easement for highway and other purposes. ' ‘
The answer alleged that plaintiff Flack erected the storehouse upon the lands forming a part of Paine and .Lafayette streets, in the village of Green Island, and covering. 1,700
The issue thus presented was whether the land occupied by the store-house, or a part of it, was a street or public highway.
Questions of this character have frequently arisen and the principles upon which they have been decided are quite familiar to the legal profession.
In a large proportion of such controversies the principal question to be decided has been, as in this case, whether the place in dispute has been dedicated by the owner to the use of public travel and whether the same has been accepted for such purpose.
Such an issue necessarily involves the intent and acts of the owner and the intent and acts of the acceptor. The evidence of such intent may rest in writing or oral declarations, or in the acts of the parties concerned. Where such intents are not evidenced by acts, the mere intent of' one or even both the' parties signifies nothing. The intent of the respective parties must be followed by appropriate and characteristic acts upon the part of each party. The intent of the owner to give must be followed by an abandonment of his exclusive enjoyment of the thing, and the intent to accept the thing must" he followed by the use and appropriation of it.
Dedication is essentially of the nature of a gift. There can be no gift without a surrender of the subject by the one and acceptance of it by the other.
These views are sanctioned and illustrated by numerous reported cases. It will serve the purposes of the case under consideration to refer to but few of them.
Upon the point of an intent to dedicate and the specific evidence to support such intent, reference is made to the case (which in some respects is a leading case upon this subject) of Cook v. Harris ( 61 N. Y. 448 -454). “ The owner’s acts aqd declarations should be such as to manifest an intention to abandon or devote his property to the public use.” “No particular length of time is essential to make a dedication valid and irrevocable.” “ The dedication and acceptance may both occur on a single day. All that is needed in any case is
The case of Bissell v. N. Y. C. R. R. Co. ( 23 N. Y. 61 ), is also a leading case upon the subject of dedication. In that ■case the grantor^ in a conveyance, referred to a street, and it was held that as to his grantees, he dedicated it as a street; that as to whether the public ever accepted it or not, and regarding the public generally, it did not become a street or highway until there had been an acceptance, either by formal act of public authority or by common user, under such circuim stances as to show an intention to accept it. The same doctrine was held in Story v. N. Y. E. R. R. Co. ( 90 N. Y. 122 ). And the same doctrine is further illustrated in Newman v. Nellis ( 97 N. Y. 285 ).
To the same effect is Hunter v. Trustees of Sandy Hill ( 6 Hill, 407 ), where it was held that lapse of time is not an essential ingredient, but the dedication may be established by acts on the part of the owner and the public, unequivocal in their character, though occurring on a single day. “ Long continued and uninterrupted use of land by the public, however, furnishes strong evidence of dedication.”
Upon-the point of acceptance, and the kind and sufficiency of the evidence to prove acceptance, reference may be had to the following cases in addition to the cases above cited: In Holdane v. Trustees of Cold Spring ( 21 N. Y 474 -479), it is said: “ To complete the dedication of a highway, if there has been no formal act of acceptance by public authority, the acceptance may be made by common user as a highway of the land dedicated.”
It is plain from the cases cited, and many more that might be cited, as well as from the essential nature of the issue itself, that is, whether there has been a dedication and acceptance of the land for a public highway is a question of fact. (People v. Loehfelm, supra.)
The defendant introduced evidence of various kinds and force, and recognized by the reported cases, and which may be referred to in a summary manner to sustain the contention that the place was a public highway. The defendant gave evidence tending to prove that the Rensselaer and Saratoga Railroad Company, the lessor of the Delaware and Hudson Canal Company, one of the plaintiffs in this action, had given numerous conveyances from 1846 to 1871, which recognized and adopted the map made by S. A. Beers in 1838 and 1845, which divided this plat of fifteen acres into streets and lots, and numbered the lots, and which grants or conveyances referred to the two streets in question as the boundaries of the lots being conveyed. The same railroad company, the Rensselaer and Saratoga, was also shown to have received conveyances of lots out of this tract of fifteen acres referring to the number of the lots as made upon Beers’s map, and to the streets as laid down upon that map. The defendant also gave evidence tending to show user for many years of these streets by the public, and acquiesence by the plaintiff, the Delaware and Hudson Canal Company, and its predecessor, the Rensselaer and Saratoga Railroad Company.
It was shown also by the defendant that these streets were laid out, and the plat of fifteen acres was divided into lots, and the village of Green Island, the defendant, by resolution
(Jpon this evidence the referee has found as facts, among other things, substantially, that the defendant, through its board of trustees, has, since 1855, assumed the right and exercised the duty to grade, work and repair and care for said streets (at the point of the location of the store-house), and that during the same period the defendant had,.through its trustees, expended money in grading and repairing sidewalks, gutters and curbstones thereon. That the public used said streets during that period, and for more than twenty years previous to the commencement of this action, and that during the same period the land constituting Paine and Lafayette streets has not been assessed or taxed to the Rensselaer and Saratoga Railroad Company, or to any other person or corporation, and to that finding there is no exception taken by the appellant. That for more than thirty years prior to the commencement of. this action the lands designated on said map as Paine and Lafayette streets were dedicated to the public for the use of the public highway, and that such dedication 'was, at the time thereof, duly accepted by the public, and particularly by this defendant, the village of Green Island.
I do not perceive that any of these rules have been violated in this case, and, hence, find no ground for reversal in any of those respects.
.If therefore, the evidence presented in the case left any doubt whether the findings of the referee were sufficiently •supported, we should be constrained to presume other and sufficient evidence to sustain the judgment in the "absence of a certificate that the case presented all the evidence.
The contention of the appellant that the streets were abandoned by reason of not being opened and worked within six years from the. time of being laid out or dedicated, has no basis to rest upon. There is no finding that the streets in question were not opened and worked within six years from the time of the alleged dedication, and so the statute, as amended in chapter 311 of the Laws of' 1861, is not applicable. Indeed the learned referee, as we have seen, has found that these streets or highways were opened and worked and used for upwards of twenty years before the commencement of this action, and the fact so found would require that they be deemed public highways. (2 It. S. [8th ed.] 1383, §§ 99, 100.) From the findings of the referee tins case would seem to have been disposed "of upon the merits, and there is, therefore, no occasion to consider the other question raised by the defendant to the effect that if the land on which the store-house stands is the property of
We are, therefore, constrained to the conclusion that this judgment should be affirmed, with costs.
All concur.
Judgment affirmed.
Cases cited
- Holdane v. Trustees of Cold Spring 21 N. Y. 474 at 479 p. 108, p. 110, p. 114
- Badeau v. Mead 14 Barb. 328 p. 108
- Mayor of New-York v. Stuyvesant's Heirs 17 N. Y. 34 p. 108
- Carpenter v. Gwynn 35 Barb. 395 p. 108
- Clements v. Village of West Troy 16 Barb. 251 p. 109
- Strong v. City of Brooklyn 68 N. Y. 1 at 16 p. 109
- Jackson ex dem. Swartwout v. Johnson 5 Cow. 74 p. 109
- Wickham v. Conklin 8 Johns. 220 p. 109
- In re Rebuilding the Bridge across the Shawangunk Kill 100 N. Y. 642 p. 109
- Parker & Edgarton v. Foote 19 Wend. 309 at 313 p. 109
- Curtis v. Keesler 14 Barb. 511 p. 109
- Amsbry v. Hinds 48 N. Y. 57 p. 109
- Talmage v. Huntting 29 N. Y. 447 p. 109
- Rozell v. Andrews 103 N. Y. 150 p. 109
- Griffith v. McCullum 46 Barb. 561 at 569 p. 110
- People v. Loehfelm 102 N. Y. 1 at 4 p. 110, p. 111, p. 115
- Harrower v. Ritson 37 Barb. 301 p. 110
- Goldsmith v. Jones 43 How. Pr. 415 p. 110
- Howard v. Robbins 1 Lans. 63 p. 110
- Albany Northern Railroad v. Brownell 24 N. Y. 345 p. 110
- Cook v. Harris 61 N. Y. 448 at 454 p. 110, p. 113
- Livingston v. Mayor 8 Wend. 85 at 105, 106 p. 110
- Story v. New York Elevated Railroad 90 N. Y. 122 at 145, at 145, 165 p. 110, p. 111, p. 114
- Taylor v. Hopper 62 N. Y. 649 at 650 p. 110
- Clements v. Village of West Troy 10 How. Pr. 199 at 205, 206 p. 110
- McMannis v. Butler 51 Barb. 436 p. 111
- Pomfrey v. Village of Saratoga Springs 104 N. Y. 459 at 466 p. 111, p. 114
- Devenpeck v. Lambert 44 Barb. 596 p. 111
- United Insurance v. Scott & Seaman 1 Johns. 106 p. 111
- Amsbey v. Hinds 46 Barb. 622 p. 111
- Davis v. Mayor 14 N. Y. 506 p. 111
- Hart v. Mayor of Albany 9 Wend. 571 at 584, 596, at 581 p. 111, p. 112
- Walker v. Caywood 31 N. Y. 51 at 61 p. 112
- Driggs v. Phillips 103 N. Y. 77 at 82 p. 112
- Jerome v. Ross 7 Johns. Ch. 315 at 331 p. 112
- Raymond v. Richmond 76 N. Y. 106 p. 112
- Baldwin v. Doying 114 N. Y. 452 p. 112
- Porter v. Smith 107 N. Y. 531 p. 112
- Hickok v. Trustees of Plattsburgh 41 Barb. 130 p. 112
- King v. Whaley 59 Barb. 71 at 79 p. 112
- Post v. Mason 91 N. Y. 539 p. 112
- Newman v. Nellis 97 N. Y. 285 p. 114
- Aldridge v. Aldridge 120 N. Y. 614 p. 117