Executors v. Town of New Utrecht

Chancery welcomes parties who submit their controversies irrespective of technical questions concerning the form of action or regularity of proceedings, and it was the clear duty of the trial judge under the waiver and stipulation made at the outset of the trial to give all the rights and issues presented full and final determination. Bank of Utica v. City of Utica, 4 Paige’s Chancery 399; Grandin v. Le Roy, 2 id., 309.

We cannot see that there was twenty years user of the land in question as a public highway. During ten of thoss twenty years, a portion of the land, at one time ten feet in width, and at another twenty feet in width, and running throughout the whole, was occupied under a licensefrom. the owner, by a steam locomotive railway, the cross-ties of' which were on a level with the surface, the tracks of which.

This railroad bed was, as is found by the court below unsuitable to ordinary highway purposes, and as matter of actual obvious fact this portion of the land in question was not used as and for an ordinary highway. -

It is elementary law that to establish an easement in lands by use or prescription, the occupation and use of the land must be plainly for the purpose in view under an unequivocal claim, and if not actually adverse, at least under circumstances leaving the owner at all times free to resist the invasion.

The coincidental use by the public of a private way which the owners maintain primarily for their own convenience is permissive or by license, and lacks the essential characteristics of the use required to work a presumption of grant or title in the public for a public highway.

The authorities in support of these propositions are too numerous for citation, nor do we think the case of Devenpeck v. Lambert ( 44 Barb., 596 ), wherein the use in question was primarily and wholly by the public as and for a public highway, and it was held to be sufficient under the statute, even if not adverse (a matter still in doubt In re Bridge, 100 N. Y., 643 ), militates against the fundamental rules above stated.

But in any event here, there was not twenty years use of the land for a public highway, as a matter of fact.

It might be that the bare insertion of the tracks of a horse railway, and the operation of its cars upon the lands, would be so far consistent with the easement of an ordinary highway as not to work an interruption of such a use (although we think the court of appeals has negated the doctrine of the inclusiveness of easements in such a case). Heard v. Brooklyn ( 60 N. Y. 242 , and Strong v. Brooklyn, 68 N. Y., 1 ); but where the occupation of the way by the railroad is physically and actually exclusive, the way cannot, as matter of fact, be deemed occupied by another and distinct easement.

This strip of twenty feet was actually and exclusively occupied by the railroad- as if a building had been erected thereon.- It is clear, therefore, that the so-called sixty foot strip did not become a public highway by such use for a, period of twenty years. It is, however, just as fatal to the case of the respondent if only the ten of twenty feet was not acquired by prescription, as in that case, even the street has never been acquired by the public, and that for which the assessment in question was laid, never had an existence.

The difficulty here is that the evidence established and the court found the fact against him.

From the form and character of the way in question and from the acts and declarations of the parties, the trial judge has found that it was not dedicated to the public but reserved to private use and control, and there is no visible ground upon which this finding can be reversed. Besides; the case does not contain any evidence of acceptance by the public even if a dedication could be presumed.

The fact that an owner had agreed with another owner of land bordering upon the land in question not to close it without the latter’s consent has no force upon the question of dedication neither does it raise any presumption that only nominal damages could be awarded for taking the land for a public use. Robert et al. v. Sadler, 104 N. Y., 234 ; 5 N. Y. State Rep., 594.

It was an agreement between private parties and when both parties consented the way could be closed. The usual accompaniments of a dedication are wholly wanting. No map was ever filed by the owner and no lots sold as bounded upon a public way and the public authorities never worked or kept in repair the way or exercised any jurisdiction over it.

The_authorities all hold that an intent to dedicate must be deliberate, decisive and unequivocal to effect a dedication. Holdane v. Cold Spring, 21 N. Y., 477 ; Cook v. Harris, 61 id., 448; N. F. Bridge Co. v. Bachman, 66 id., 269.

Touching the question of estoppel by former adjudication we think the appellant clearly right.

The commissioners for the opening of the avenue did not in any way pass upon the question involved in the present action. Throughout their proceedings they ignored entirely the sixty foot private way. They assumed it to be and treated it as already a public road, omitted it from the parcels of land to be by them acquired, and left the public to defend a title which they regarded as already acquired by prescription.

The matter is not adjudicated by that proceeding because it was eliminated from the proceeding, or in other words it was never taken into the proceeding.

Besides, we think the decision of the court of appeals in Dolan v. Mayor ( 62 N. Y., 472 ), is not applicable to the present case. The assessment before the court in that case was governed by a special act of the legislature passed in 1813, and was protected by statutory provision from attack upon the technical grounds advanced.

For these reasons we cannot concur with the judgment of the trial court. It will not be necessary, however, to order a new trial. There being no dispute of fact, the judgment below should be reversed and judgment entered for the plaintiff with costs.

Dykman, J. concurs; Barnard, P J., dissents.