Stockwell v. Dunckel — 159 N.Y.S. 32

Majority

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(174 App. Div. 481)

STOCKWELL v. DUNCKEL.

(Supreme Court, Appellate Division, Third Department.

May 3, 1916.)

Headnote

1. Tenancy in Common <§=>40—Dedication—What Constitutes.

Where one of the tenants in common of land gave consent to opening of a street, and the street, which was fenced, was open for 20 years, there was an acquiescence on the part of all the owners, though some did not consent in writing, which amounted to a dedication.

[Ed. Note.—For other1 cases, see Tenancy in Common, Cent. Dig. § 120; Dec. Dig. <@=>4CK]

2. Dedication <§=>38—Modes oe Dedication.

Dedication may be by paroi or acquiescence, and cannot be revoked after a street is opened and worked.

[Ed. Note.—For other cases, see Dedication, Cent. Dig. §§ 77, 78; Dec. Dig. <@=>38.]

3. Dedication <@=>35(2)—Acceptance—'What Constitutes.

A resolution accepting a street is unnecessary; and a village, by working the street, buying portions of it, and treating the whole as a public highway, accepts a dedication.

[Ed. Note.—For other cases, see Dedication, Cent. Dig. § 70; Dec. Dig. <@=>35 (2).]

4. Municipal Cobpobations <@=>654t-Existence of Street—Evidence.

Failure to reserve the right of a street in conveyances of lots is not conclusive proof that no street exists.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1428; Dec. Dig. <§=>654.]

5. Municipal Cobpobations <@=>657(3)—Streets—Fences.

That, for convenience, a person was allowed to put bars across a street to keep stock in, does not show that there was no street; the public being allowed to pass by removing the bars.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 1429, 1496; Dec. Dig. <@=>657(3).]

6. Municipal Corporations <@=>657(3)—Streets—Opening.

Where a street had been opened, traveled, and used as a public highway up to a time within 6 years of the beginning of the action, it was still a highway; the rights of the public not having been lost by nonuser.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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Appeal from Trial Term, Montgomery County.

Action by George E. Stockwell against Lewis A. Dunckel. From a judgment for defendant, plaintiff appeals. Affirmed.

The opinion of Van Kirk, J., at Trial Term, is as follows:

This action is brought to recover a judgment restraining the defendant from entering on plaintiff’s premises and tearing down plaintiff’s fence, or in any way damaging plaintiff’s fence or property, and for §200 damages.

The question presented is whether or not what has been called an extension of West street in the village of Ft. Plain is a public street or highway. In 3883 a petition was presented to the board of trustees of the village by some 47 freeholders, asking that West street be extended from its then terminus at Spring street to the southerly line of lands owned by William Lipe, over lands of Dorinda Snell, James and Sadie Williams, Emma J. Austin, and William Clark. This petition was dated August 2d, and filed with the village board August 7, 1888. Five hundred dollars was raised hy subscription and §300 raised by the village, and the whole paid for the right of way across the lands of Derinda Snell. James II. Williams, one of the tenants in common of one piece of the property, executed and filed with the village clerk a paper by which he agreed to release all damages for lands owned by him within the proposed street, and agreed to procure the consent of Sarah J. Williams and Esther A. Williams, the other tenant in common, and the widow having a dower right. Emma J. Austin filed with the village clerk an agreement in writing to release to the village the right of way over her premises. This street was fenced upon both sides, and was worked by the village officers and employes, and remained open, used by whomsoever wished to use it, until December, 1903, when, by consent of this defendant a barway was constructed across the street to restrain a cow or cows being pastured upon adjoining premises. For some years this barway remained; people who desired to pass through being able to do so by removing or lotting down the bars. Within 6 years last past the plaintiff constructed a permanent fence across this street. This has been a number of times torn down by the defendant and, at least until very shortly before the beginning of this action, whomsoever desired passed over this street, and it was used as a public street, from time to time being worked by the village authorities.

[1,2] Although it does not appear that all the parties owning an interest in the Williams lot ever gave their consent in writing, yet the consent having been given by one of the tenants in common, and the street having been opened, and each side of the street having been fenced across the lot, and this condition having existed for more than 20 years, there was an acquiescence upon the part of parties owning an interest in the Williams lot in the dedication of this land for a public street. It is not necessary that a consent be in writing. It may be by paroi, or by acquiescence, and cannot be revoked after the street is opened and worked. Marble v. Whitney, 28 N. Y. 307 . The plaintiff, Stockwell, has succeeded to the Williams lot, and the defendant has succeeded to the Austin lot.

[3] I think it should be held that the street, as it was worked, fenced, and used for many years, by act and consent of the owners, was dedicated to the public, and that the village, by working, buying part of it, placing it upon the map of village streets, and entering a description of it in the public records, recognized it and accepted it as a public street. A resolution formally accepting it was unnecessary; it has been accepted by official acts. Matter of Hunter, 163 N. Y. 547 , 57 N. E. 735 , 79 Am. St. Rep. 616 ; City of Cohoes v. D. & H. Co., 134 N. Y. 397 , 402, 31 N. E. 887 ; Mangam v. Sing Sing, 26 App. Div. 466 , 50 N. Y. Supp. 647 ; Marble v. Whitney, 28 N. Y. 297 , 306.

[4, 5] I cannot hold that the failure to reserve the right of the street in the conveyances of lots is conclusive proof that no street exists. The title was conveyed by the deeds, but the street existed at the time of the conveyances and still exists. It is not uncommon to convey lands by a description which includes a street or highway, without specifically reserving the street or highway; indeed, it is quite uncommon in deeds to reserve highways. A public street may be a cul de sac. The fact that a cross-fence was constructed for

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convenience of property owners, with bars for passing by the public, did not divest the road of its public character. McCarthy v. Whalen, 19 Hun, 507 , 508.

[6] The street had been opened, and had been traveled and used as a public highway to a time within 6 years before the beginning of this action. It has not ceased to be a highway. People v. Marlette, 94 App. Div. 592 , 88 N. Y. Supp. 379 ; Beckwith v. Whalen, 65 N. Y. 322 , 330.

The complaint must be dismissed, with costs. A decision accordingly may be submitted.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.

Wendell & Sponable, of Et. Plain (J. D. Wendell, of Ft. Plain, of counsel), for appellant.

Bronner & Ward, of Little Falls (George W. Ward, of Little Falls, of counsel), for respondent

Judgment unanimously affirmed, with costs, on the opinion of Van Kirk, J., at Trial Term.

Cases cited

City of Cohoes v. President of the Delaware & Hudson Canal Co. 134 N. Y. 397 N.Y. 1892-10-01 at 402, 31 p. 33
Marble v. Whitney 28 N. Y. 297 N.Y. at 306 p. 33
Beckwith v. Whalen 65 N. Y. 322 N.Y. Comm'n App. at 330 p. 34