Denning v. Roome, 6 Wend. 651

Denning v. Roome

6 Wend. 651 | N.Y. Sup. Ct. | 1831

By the Court.

The defendant was an inhabitant of the city of New-Yorb, and an officer of the corporation, when he did the act which is charged in the declaration as a trespass. The plaintiff insists that the defendant acted as an agent of the corporation in committing the trespass, and that the court must consider him as defending in that character, and not in his individual capEtcity. If he acted as the agent of the corporation, it is said we are to regard that body as the parly, and to exclude their minutes as incompetent evidence to justify their own acts. What right has this court to select the character in which the defendant shall justify himself] If it be true in point of fact that he has a defence as a citizen, which he has not as the officer of the corporation, we cannot say he shall not stand before us in the former character. If, as one of the inhabitants of the city of NewYorb, the minutes of the corporation are admissible evidence in his favor, we cannot say he shall not use them for that purpose because he happens to hold an office under that body. Without recognizing the distinction adverted to, we proceed to consider the minutes, and proceedings of the corporation, as offered by the defendant in his defence, in his individual character. Were they admissible ]

The corporation of New-Yorb differs widely from a private corporation. It more nearly resembles the legislature of *656an independent state, acting under a constitution prescribing ¡tg p0Wer3i The acts of this corporation concern the rights of the inhabitants of the city ; it exercises a delegated power not for its own emolument, but for the interests of its constituents ; and while it keeps within the limits of its authority, the constituents are bound by the acts of the corporation. When the citizen wishes to shew those acts, he must resort to the authentic record of them, which is the original minutes of the corporation. These minutes, as the case states, were produced on the trial. The books of a public body are declared by the supreme court of the United States, Owings v. Speed, 5 Wheat. 424, to be the best evidence of their acts, and should be admitted, as that court decided, whenever those acts are to be proved. See also Rex v. Mathersell, Strange, 93. 12 Viner’s Abr. 90, pl. 16. The original minutes of the corporation were therefore properly received in evidence.

(The court then examined the evidence of the proceedings of the corporation, in relation to the widening of the street, and came to the conclusion, that the laws of the legislature, regulating the opening and altering of streets in the city of New-York had not been complied with, and that the defence on that ground failed. They then proceeded to en-quire whether the evidence in the case was such as would justify the presumption of a dedication of the premises as a street to the public, and observe :)

There has been great diversity of opinion among English judges on this subject; what facts shall amount to evidence of a dedication is still a matter of dispute among them. Chambre, J. thought time was not necessary to make a dedication, 5 Taunt. 137; and Lord Kenyon held that a period far short of twenty years, eight, or even six years of general use, would be evidence of a dedication. Other judges have regarded a much longer use essential, to make out right in the public. We will not say that an act on the part of the owner may not be so clear and unequivocal in its character as to constitute a dedication, if accompanied or immediately followed by public use, though the time of that use should be very brief; but where the act of dedication is to be *657presumed from general use alone, that'it must continue for a series of years, la the present case it is established by the testimony of four witnesses, that Washington street bad been opened, and used by the public as a street to its present width from twenty-five to thirty years before (he trial, which was in 1829. Perhaps we are not authorized to say from this testimony, taken in connection with the proceedings of the common council in 1804, that the street was opened before those proceedings were instituted, but that period may be fixed upon as the time when it xvas extended, so as to include the locus in quo. The plaintiff enclosed the part of the street to xvhich he claims title in 1823. The evidence shbxvs that uninterrupted enjoyment of this part of the street was had by the public nineteen years. Did this occupation debar the plaintiff from all right to take possession of the premises in question 1 It has not yet been determined what length of time individual property must be used as a public way to create a presumption of a dereliction of it to the public; and the reason why no precise time has been fixed, probably is, that the presumption does not depend alone on the length of time the use continues; other circumstances are to be brought into consideration, xvhich may extend or contract the period at which the presumption attaches. It is said by a late writer on presumptive evidence, that xvhere an intention is plainly and significantly shewn from the onset, submission to the public usage for six or eight years, or possibly even for a less period, would exclude the owner of the soil from re-asserting his ancient right. Matthews on Pres. Ev. 335, 6. Under circumstances most favorable to the owner of the soil, twenty years uninterrupted use xvould secure to the public a right to the street perpetually. Whether the right in the public attaches after five or six years, or not till the expiration of twenty, depends upon the circumstances of each particular case. The circumstances here are abundantly sufficient to warrant us in saying that the right to use Washington street to the full width of sixty feet, xvas acquired by the public before the plaintiff in 1823 made the fence, xvhich the defendant prostrated. Certainly nineteen years before that time, the land noxv claimed by the plaintiff xvas taken into *658the street, and used by the public as a part of it. In 1811, ^ie ancestor of the plaintiff then the owner of the land, saw the corporation pitch, pave and improve the same as a part of the public street; moreover, he actually paid an assessment, made on his adjoining property, for this very improvement. He, in his bill in chancery, and the present plaintiff in his testimony given in that suit, recognize the fact that the premises in question had become a part of Washington street; and the application to the common council, for payment for the land taken into the street, implied that the public had a right to it as a street. We are therefore clear in the opinion that we ought not to uphold the claim of the plaintiff to sustain the action which he has brought against the defendant for removing the obstruction placed in that part of the street, which the plaintiff claims as his private property.

Judgment for defendant.