Excelsior Brick Co. v. Village of Haverstraw

Headnote

Villases—Discontinuance and alteration of streets—Estoppel.

A mere resolution of village trustees discontinuing a highway and substituting a way to which the village has no title, without application therefor, release of damages, certificate of freeholders or opportunity to the owners of property to be heard, is inoperative and void, and the village is not estopped thereby from claiming that such street still exists.

Appeal from judgment dismissing the complaint

This is an action brought to obtain an injunction to restrain the defendant from filling in or interfering with “ Division street ’’ in the village of Haverstraw.

The defendant is incorporated under the general law -in relation to the incorporation of villages. 2 R S., 8th ed., 982.

Division street is one of the public streets of the village, unless it ceased to be so by reason of the order of the board of trustees adopted June 14, 1887.

Such order was adopted without calling any jury to pass on the question whether the street had become unnecessary, and without any notice to or hearing of the parties interested.

The plaintiff claims within a year or two past to have taken possession of Division street. But the deeds to plaintiff and his grantors run to and along the outer lines of the street, and exclude the street, and it affirmatively appears that the plaintiff has no title to the land embraced in the street.

This is the second appeal herein to the general term. On the former appeal the defendant’s contention that the order of the board of trustees of J une 14, 1887, is void, was fully sustained and a new trial was ordered which resulted in a judgment for the defendant from which the plaintiff has brought this appeal. The case differs in nothing from that presented on the first appeal, except that the complaint has been amended by setting up an estoppel.