26 Barb. 630 | N.Y. Sup. Ct. | 1858
Eo exceptions having been taken to any decision of the judge upon any question of law, and no request made to him to submit the case to the jury upon any question of fact, 'his direction to them to find a verdict for the plaintiff cannot he matter of objection or exception here. The questions now presented to the court should therefore be considered as upon a case without exceptions. If we can see upon the whole case that the verdict for the plaintiff was not warranted by the law or the evidence, it will he our duty to order a new trial. What the jury would have been bound to find upon the evidence we must assume to be true, and proved, for the purposes of the examination of the case which the court is now called upon to make. It should he assumed, therefore, I think, that William W. Mumford, the plaintiff’s testator, was seised in fee of the premises in question, at the time of his death, unless his title was divested by the dedication thereof to the public, as claimed by the defendants. It appears that Mumford owned one half of a block of ground situated in the city of Rochester, surrounded on all sides by streets open and used as public highways; that he projected the plan of opening a new street through the center of this block of ground, cutting his own land in the center and the land of the adjoining owners also in the center ■; that he proceeded to map and plot his portion of the block, and in his plot or map laid out such proposed street across his own and the adjoining land; that his portion of such block was laid out into city lots on each side of such proposed street, and fronting thereon; that he proceeded to sell, and did sell, all of such lots by their numbers on said plot, but without any distinct mention of, or reference to, such proposed street by name; that his grantees entered upon such lots and built thereon, and the strip designated as a street was used by them for access to their lots, and was opened so far as Mumford’s land extended but never was opened through the other half of such block. It does not appear that the owner of the other half of such block ever plotted his ground into city lots, or
The inquiry then is, whether this strip of land, called Erie street, ever became a public street or highway. And this is the only real point in the cause, as the case is presented to the
I think the case was rightly disposed of at the circuit, and that a new trial should be denied.
Hew trial denied.
Johnson, Welles and Smith, Justices.]