279 A.D. 1033 | N.Y. App. Div. | 1952
Plaintiffs purchased lots facing an avenue laid out on a map of a tract of land, which map was filed in the recording office in Westchester County by the developer of the tract. Defendants conceded at the trial that there had been no dedication of the avenue to the defendant town for public use. It has been found that there has not been, at the time of the trial, use of the area in front of plaintiffs' premises by the public for twenty years; and, therefore, it had not become by user a public highway. That finding of the Official Referee is supported by the evidence. In reliance on the case of Hennessy v. Murdock (137 N. Y. 317), the Official Referee found that the plaintiffs had title to the center of the avenue as it was laid out on the map. The determination in that ease justified the finding. Subsequent to that decision, the Court of Appeals in Matter of City of New York (209 N. Y. 344), where the boundaries of a lot were not dissimilar to that in Hennessy v. Murdock (supra) held that the purchaser obtained no title to the land in the street. In Matter of City of New York (supra), the case of Hennessy v. Murdock was urged upon the Court of Appeals. Later cases, however, cite Hennessy v. Murdock as authority for holding that the purchaser of a lot bounded by a street laid out on a map by a developer has a private easement in the street for access. (Dalton v. Levy, 258 N. Y. 161, 165.) Such an easement is property which equity can protect by injunction. (Cunningham v. Fitzgerald, 138 N. Y. 165.) Therefore, even though plaintiffs did not have title to the center of the street, the defendants in the absence of an accepted dedication or public user for twenty years, had