People v. Underhill — 52 N.Y. St. Rep. 731

Majority

p. 731

The People, Resp'ts, v. Clara M. Underhill and William J. Underhill, App'lts.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Highways—Acceptance—Dedication.

Certain land owned by the state was mapped ont and sold in 1859, the map designating certain streets, of which the street in question was one.

p. 732

The trustees put up the map name at the corner of the street, worked it for part of its distance and put water and lights upon it so far as houses were "built, and included it among its public highways on a map for a system of sewers. The street was not worked its entire length, but travel by pedestrians was frequent and constant. Held, that these facts were sufficient to show a dedication and acceptance of the land as a street.

Appeal from judgment of the Westchester court of sessions, Convicting defendants on indictment for a nuisance in obstructing R highway known as Lafayette avenue in the village of Sing Sing by erecting and suffering to remain therein a building and shed.

Calvin Frost, for app’lts; W. Popham Platt dist. atty., for resp’ts.

In 1859 the of the state of New York Owneds land adjacent to the Sing Sing prison. By chapter 470 of "the laws of that year the legislature authorized a sale of a portion of this lands and to make a map of the portion to be sold. The authorities of the state made a map of the lands, divided them into lots and designated streets thereon.' The map was filed and the lands sold with reference to this map. Houses have been built upon the street, but it has never been made a good street for public travel. As between the persons who have purchased the lots on the street and those who have bought with reference to the map, the street should, and must legally, remain an open street for its map width of fifty feet. The defendants, who are bound by the plan, have shut up one-half of the street so far as it adjoins their lot on the avenue which crosses the termination of Lafayette avenue, the street in question. The proof of dedication of Lafayette avenue is complete. The state so called it on the map by which they sold. The authorities had power to open the street so far as to bind all purchasers. A highway must be accepted, and this is the debatable question in the case. There is no formal resolution by the village of Sing Sing; but an acceptance may be inferred from other proof. The trustees put up the map name of Lafayette avenue at the corner of the street. The trustees worked the street for some three hundred and fifty feet and put water and lights upon it so far as the houses were built upon it. The trustees made a map for a system of sewers and this Lafayette avenue was included among the public highways of the village.

This evidence uncontradicted is sufficient to uphold the verdict of the jury that the street was accepted. There is no proof to show a revocation of the dedication. The village did not proceed very fast in improving the whole street; but the travel over it by pedestrians was frequent and constant.

The defendant bought in 1889 and his grantor in 1886. The road was used when they bought and has never ceased to be used in its whole width so far as needed, until the defendants fenced in half of it

The conviction and judgment should he affirmed.

Dykman and Pratt, JJ., concur.