Wells v. Village of Croton on Hudson

The street known as “Mt. Airy road” was originally a part of the land owned by the said Van Cortlandt, and later by his nephew, Philip G. Van Wyck. The longest recollection of the plaintiffs’ oldest witness was that the street had been used as a public thoroughfare for 60 years, and .that during all of that time the water pipes in question were laid in the said street, and carried water from the said spring to the abutting lands, owned by the said Van Wyck and his grantees and descendants.

The defendant now threatens to take up and remove the said water pipes," and thereby deprive the plaintiffs of their sole supply of water to nine dwelling houses owned by them along and abutting upon the said highway, and this action is brought by the plaintiffs to restrain such threatened action by the defendant. There is no public water system in said village. It is admitted—at least, it is not disputed—that the street-in question has been opened and used by the public for more than 60 years, although there is no town or other record of any dedication or acceptance thereof, nor is there any record of the laying out of such highway, and since at least 1849 the said water pipes have rested beneath the surface of the said street, and carried water to the dwelling houses and other buildings upon the lands owned by the plaintiffs and their predecessors in title, and it is likewise admitted that the fee of the said street was originally owned by the plaintiffs’ predecessors in title, and has never been conveyed to or acquired by the town of Cortlandt, in which town the said highway was located before the defendant was incorporated; nor has the defendant become the owner of the fee of the said highway.

Subsequent to the laying out of the said highway by Philip Van Wyck or his predecessors in title, and the placing of the said water pipes therein by the said Van Wyck, for the use of himself and his tenants and assigns, .he made certain conveyances of land abutting on said street, in which he asserted his ownership to the said spring, the fee of the said street, and the water pipes therein, and since his death his heirs, devisees, executors, and assigns, including the plaintiffs, have continued to claim the ownership thereof.

The questions presented by the issues in this action are:

Eirst. Is-the spring and are the water pipes an illegal obstruction or incumbrance to said highway and the public easement therein?

As to the spring, it came down to the plaintiffs from their common sources of title, Van Cortlandt, and was owned by them until 1906', when they conveyed it to one R. W. Tryme, reserving, however, to themselves and their assigns the right to use the water from the said spring as it flows through the said water pipes; and the evidence of the plaintiffs’ witnesses and the measurements of the highway made in my presence at the time of the trial, as well as my observation of its location with respect to said highway, made with the consent and in the presence of the parties and their attorneys, establish the fact that it is not within the said highway, nor an encroachment thereupon, or an obstruction thereof. On the contrary, it is altogether on one side of the highway, and entirely clear of the beaten track or traveled part thereof, leaving the highway entirely clear of the said spring more than two rods in width.

The water pipes in question are two or more feet under ground, and do not interfere with the use of the surface of the- street by the public. The defendant’s claim is that, under the village law and the town law as it was in force before the deféndant was incorporated, water pipes could not be laid in a public street without the consent of the municipality, and that there is no proof of such consent, and, if the consent of the town is to be implied, that such consent is now revocable by the village.

It was not until 1873 that there was a statute (Laws 1873, c. 64) authorizing the town authorities to give permission to a resident to lay and maintain water pipes within the bounds of a public highway,-for the purpose of supplying a dwelling house or farm premises with water. Prior to that time there was no statute on the subject, and 'under the common law the owner of property abutting on a public highway, who owned the fee thereof, had a right to lay water pipes under the surface of the street, for the purpose of carrying water to his dwelling house or farm property: and the plaintiffs’ grantees, while owning the spring and the fee of the highway in question, and the property abutting thereon, had a lawful right to lay the pipes in question from the said spring, through and under the surface of the said street, to their respective properties; and when the town of Cortlandt, without an express dedication and acceptance of the said street as a public, highway, assumed control of it, and worked and used it, said town and the public acquired only an easement therein, and the right to use it as a public highway, and the fee remained unimpaired in the owners of the land, who were the plaintiffs’ grantors. People et al. v. Kerr, 27 N. Y. 188 ; 3 Kent, Com. §§ 432, 433; Bloomfield Gaslight Co. v. Calkins, 62 N. Y. 386 ; Robert v. Sadler, 104 N. Y. 229 , 10 N. E. 428 , 58 Am. Rep. 498 ; Eels v. A. T. & T. Co., 143 N. Y. 133 , 38 N. E. 202 , 25 L. R. A. 640 .

Besides, I think it must be assumed that the town of Cortlandt consented to the laying of the pipes. At all events, the town acquiesced therein for a long period of years, and, neither the town nor the village

In the case of City of Cohoes v. D. & H. Canal, 134 N. Y. 397 , 31 N. E. 887 , our Court of Appeals said:

. “In the absence of an actual conveyance, the owner does not part with the title to his land, but only with the right to possession, for the purpose of a highway. * * * An offer to dedicate land for the purpose of a highway may be qualified or made subject to a certain burden, and if it is accepted cum onere the burden continues, but the land becomes a highway notwithstanding.”

The use by the plaintiffs of the highway in question for the carrying of their, water pipes, is not inconsistent with the full and complete use of the land in question by the public for highway purposes, and does not interfere with the public easement therein. If the commissioners of highways of the town of Cortlandt had proceeded under the highway law as in force long prior to 1847 to lay out and record this strip of land as a town highway, they could have done no more than to describe and enter it in the town clerk’s office in the condition that it was in at the time. That highway law made it the duty of the commissioners of highways “to cause such of the roads used as -highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” And while this provision of the statute was not complied with, as far as the town clerk’s records -show, yet, if it had been, the highway commissioners would have been limited to ascertaining' and describing the boundaries of this road, as it had been in actual use for the 20 years preceding, and they could not have altered or enlarged its boundaries, ánd would have taken it subject’to the existing lawful rights of the owners of the fee.

It has already been noticed that prior to 1873 no permission was necessary' for the laying of private water pipes in the public highways of the town. In that year an act was passed by the Legislature authorizing highway commissioners of a town to grant permits to residents of their districts to lay and maintain water pipes within the bounds of a public highway, for the purpose of supplying dwelling houses and farm premises with water. Nothing is said in this act concerning pipes that had already been laid. In 1890 chapter 568 was enacted, providing (section 14):

“The commissioners of highways may, upon written application of any resident of their town, grant1 written permission to lay and maintain water pipes and hydrants under ground within the portion therein described, of any highway within the town, but not under the travelled part of the highway, except

across the same for the purpose of supplying premises with water, and upon condition that such pipes and hydrants shall be so laid as not to interrupt or interfere with the public travel upon the highway, and the applicant shall replace all earth removed, and leave the highway in all respects in as good condition as before the laying of such pipes.”

This statute was in force in 1898, when the defendant was incor- = porated as a village, and does not except villages from the provisions thereof. No right is here given to revoke any existing permits, or to remove pipes already laid, and I doubt even that such legislation, if enacted, would have been effective to accomplish the removal of pipes that had been laid, before any consent was required, by persons who at the time owned the fee of the street and the lands abutting thereon, especially where there had been no express grant or dedication of the land for highway purposes.

I have examined all of the cases -cited by defendant’s counsel, and none of them seems to apply to the facts of this case. The defendant argues that, if a consent by the town is to be implied, it is revocable by the defendant. I do not think so. The pipes have been in the street for at least 60 years, maintained and used by the plaintiffs and their grantors during all that time, and that would seem to give them a prescriptive right to their continuance, if they had no other.

In the case of Deshong v. City of New York, 176 N. Y. 475 , 68 N. E. 880 , cited by defendant’s counsel, the court held that “no length of time will render legal a private interference with a street which is a nuisance.” That is not this case. The pipes here do not interfere with the public easement, nor do they constitute a nuisance. A consent or license is only revocable where the revocation leaves the parties in statu quo. Here the dedication of the plaintiffs’ land for street purposes was subject to their right to maintain their water pipes therein, and if such right should now be taken from them they would lose not only that right, but the land in the street as well. But my decision rests upon the broader ground that no permission or consent was necessary for the laying of the pipes, and that the town and village took the street subject to that right, and, if that is so, then there is no consent or license to be revoked.

My conclusions therefore, are:

First. That the plaintiffs’ ancestors and predecessors in title to what is now the public street and the lands adjoining on both sides thereof,including the spring, had a lawful right to lay the water pipes in question, and that the town of Cortlandt and the village of Croton, each in turn, acquired an easement only in the said street subject to the pre-existing rights of the owners of the fee to maintain the said water pipes.

Second. That the said water pipes and spring do not constitute an encroachment upon or obstruction of the said street, or interfere with the use of the same by the public.

Third. That the defendant cannot lawfully remove the said water pipes, and can only acquire them by purchase from the plaintiffs, or by condemnation proceedings for the purpose of establishing a municipal waterworks system.

Fourth. That the plaintiffs are entitled to judgment herein, with costs.