160 N.Y.S. 83 | N.Y. App. Div. | 1917
Jenks, P. J., Thomas, Stapleton, Rich and Blackmar, JJ., concurred.
The following is the opinion delivered at Trial Term:
I think the proofs establish the fact that Wildey street was originally laid out, opened, worked and used to the Hudson river, but that part of it in question in this suit, namely, the part west of the present gates, ceased to be a part of the public highway several years prior to commencement of this action. The statute provides that “ Every highway that shall not
In the same case it was further held: “ Where defendant for more than six years had obstructed a public highway with its buildings, some of which entirely blocked it, and others only encroached upon it, and the plaintiffs and public authorities acquiesced in such obstructions, which prevented use of the highway in certain places, the highway was abandoned under Highway Law, .§ 234, as to the portions entirely obstructed, but still existed as to other portions.”
Applying this statute and the case just cited, which was very recently decided by the Court of Appeals, it is perfectly obvious that the portions of Wildey street west of the Dinkel & Jewell Co. gates ceased to be a part of the public highway several years ago. The following facts are practically undisputed: Long prior to 1892 there was a gate about ten or fifteen feet east of the river which shut off all access to the wharf and river, and- which remained in that position until about eight years ago. In about 1892 or 1893 another gate was put up across Wildey street near the present office of the plaintiff, which gate was about fifty-five feet west of the present gate, and completely shut off all approach to the river. The gate
■This appropriation of what was a part of Wildey street, and the obstructions placed thereon by the plaintiff and its predecessors, apparently consented to and acquiesced in by the vil- . lage authorities, if not expressly, by their silence and failure to take proper proceedings to preserve the highway, must be regarded under the statute and the authorities above referred to as a closing up and abandonment of that part of the public highway.
Besides, it appears without substantial dispute that not for many years has any public street work been done west of the plaintiff’s office, which is near the present gate, nor has the public used it for many years. Extracts from the minutes of the village board tend to show that the village authorities as long ago as 1900 recognized the fact that Wildey street did not extend beyond the-easterly line of the plaintiff’s coal yard. Many entries in these minutes covering a period of several years indicate an understanding on the part of the village authorities that Wildey street extended only to the plaintiff’s coal yard and not to the wharf or river. The single instance in 1907, when an iron culvert and catch-basin were put in by the village inside of the gates in question to take the-drainage water from the north side of Wildey street, the village authorities obtained the plaintiff’s consent to do the work inside the said gate, and the materials used in that work were furnished by the'plaintiff.
. I have. given very careful attention to the very able brief submitted by counsel on behalf of the village, and I agree with
If a village highway is obstructed and shut off, it is the duty of the village authorities to remove the obstruction and to preserve the highway for the use of the public, and where they fail to do that, and permit it' to be obstructed and closed for more than six years, and the public during that period of time are excluded from it, and no public work is done upon it, it, under the law, ceases to be a public highway.
The proof of obstruction and abandonment in this case is very much stronger than that in the case of Meyer v. Village of South Nyack, decided by this court at Special Term some time ago, and recently affirmed by the Appellate Division of the Second Department. (173 App. Div. 984.)
The plaintiff is entitled to judgment for the relief demanded in the complaint, with costs.
See head note to ease in 112 N. E. Rep. 926.—[Rep.