23 Barb. 103 | N.Y. Sup. Ct. | 1856
This cause was tried before me as a referee, and
the judgment from which the defendants appeal was entered by my direction. I have bestowed upon the argument made by the learned counsel for the appellants, and upon the authorities which he has adduced, careful examination and reflection, without being able to come to any different conclusions from those which I reached when the cause was tried. Perhaps I shall not be able to ’add any thing to 'the reasons which I then assigned
There were two questions- of fact in the cause: first, whether the Gouverneur heirs had done any thing, and what, to dedicate the strip of land in controversy to any public use; second, whether the public had done any thing, and what, to indicate their acceptance of the dedication. I had supposed that both these issues were disposed of at the trial, and the facts found clearly and explicitly, so that the ease might be decided upon its legal principles. So the counsel for both parties evidently thought, and therefore nothing but the conclusions of the referee are included in the case, and none of the evidence is put in by either party. I do not see how we can go behind those conclusions, or dispose of the present appeal except upon the basis of the facts found in the court below, and assuming these to be the facts of the case. Now these facts are, as to the dedication by the Gouverneurs, in the first place, that this strip of land was marked and mapped by their consent and direction as a public street by the name of Morris avenue, upon a map of the village of Cold Spring, made by one Bevan in 1850. There was no pretense that this map was made by or for the defendants or any public officers. That is no part of the case. Whether it was made by Bevan on his own account, or in the employment and by the direction of the Gouverneur family, is quite immaterial. As to this street it was their map; because this piece of ground was marked out and designated upon it as “ Morris avenue” by their direction; and that was as much their act as if Bevan had been solely employed by them or had made a map of their property only. There was another map of the village, earlier than Bevan’s, which is mentioned in' the pleadings and was introduced at the trial. What effect this might have had, or indeed what effect it ought to have had upon the questions in controversy here, it is impossible for us to determine, and cer
For in the next place, at or about the date of this map made by Be van, the Grouverneurs fenced this strip of land as a street and threw it open to public use, and so it remained until the plaintiff shut it up, in 1853. I think now, as I thought at the trial, that the evidence in the ease clearly established that this strip of land -was fenced and thrown open to public use, as well as designated upon a map as a public street, by these owners, with the intention of abandoning their entire dominion over it, and of bestowing upon the public the right to its use as a highway. Whether I was right then or now in this conclusion is not, I apprehend, a question, on the present appeal; because the act, and the intent which is a part of it, are acts expressly found as facts, and there are not only no exceptions to these conclusions, but none of the evidence before us from which to ascertain whether they are correct. Besides, I do not choose to rest my judgment upon a presumption drawn from principles of law purely, and in direct contradiction, not only to the facts found by the court below, but to what was manifestly the real intention of the parties. I do not choose to decide this case upon a presumed design not to make this a public street or highway, to be forced as it were upon the Grouverneurs and their acts by legal rules or inferences resulting from the situation of the lands. The fact is, I think, unquestionable, that they not only had, but manifested in the most explicit manner, the intention to open and dedicate this as a public street. I prefer to admit this, and to hold that their attempt was ineffectual, in conse
. Hor is there any more doubt as to the facts of the case bearing upon the second issue—the acceptance of this dedication or attempted dedication. It was fonnd, and decided by the referee, that this strip of land “ was used by the public, by walking and driving upon the same, and by going up to the enclosure of George P. Morris and returning over the same until it was closed by the plaintiff.” This user was by the public, by any body and every body. It was not, as has been suggested, by the occupants of adjoining lands, for there were none until the plaintiff built, and then shut up the road. It is said the answer and reply show that the road did not in fact run to George P. Morris’s land, because the one alleges and the other admits that it stopped at a point sixteen feet' from his line. As the evidence is not in the case I am unable to say which is correct, the answer or the report. If the question had been considered of any consequence it would have been pointed out at the trial, and now, I take it, we must assume the referee’s report to be
And it is equally beyond dispute that there have been no formal acts of the public authorities, no laying out or recording by the commissioners of highways or the defendants acting as such, if any such acts are necessary to complete a dedication. The acceptance is made out here, if it is made out at all, by user on the part of the public. Upon this part of the case my conviction is clear and decided, that when there has been an unequivocal dedication by the owner of lands to the public, for use as a highway, manifested by acts and declarations, and the road so dedicated is susceptible of public use or passage, so as to be made or become a highway, and has been openly used in pursuance of the dedication, no formal act of acceptance by the public authorities is necessary to give to the public—to every person in the community—a right to its unrestricted use, and that not as an easement or appurtenance to adjoining lands, or as a private right, but as a public right, requiring no interest in the neighboring property, or even business with its occupants, to justify its exercise. The very able opinion of Mr. Justice Wright in the. case of Clements v. West Troy, (10 How. Pr. R. 199,) is entirely satisfactory to my mind upon this question, and I can add nothing to his reasoning. I will only observe that it is not the question now, any more than it was in that case, whether commissioners of highways can be compelled to maintain and repair a road which has become public only by the dedication of the owner, accepted by open and common use. There is a distinction between a free and public right of passage or way over lands, and a statutory highway, which the public authorities are bound to support. I understand such a distinction to be recognized in the Oswego case, (2 Selden, 257,) which was cited in the court below, and that the public officers are not bound to assume the burden because
I think the difficulty in the way of the defendants in this case is, that the road in question could not be made a highway, so that the public could acquire a right of free and indiscriminate passage, such as they could assert, or the defendants protect. It is, I suppose, settled that such a road could not be made a highway by laying out or other action of the public authorities. So it has certainly been held in this district. I cannot see how that which cannot be made a highway by the legal action of the public authorities, under the statutes, can become such by dedication. And it must be remembered that the right asserted by the defendants was a public right; the dedication which they claimed was of a highway, and no other right of a different character, or of a less ’ extent, could be invoked in this action, if any such exist. Whether the acts of the Gouverneurs were such as to give to any individual a right of passage over this land, or to have this so called avenue kept open and unobstructed, are questions which we are not now called to determine, and upon which our present decision will have no effect. The observation of an eminent English judge, to the effect that these closed passages or streets should not be allowed to become traps to catch trespassers, has undoubtedly great force, in its proper application. But that remark was made in reference to private rights alone, and where these only were in question. It is not necessary in order to protect individuals in any proper use of ingress and egress to lands or property adjoining such places, that the means of such access should be declared or become a public highway. On the
I do not purpose to enter into any detailed examination of the additional authorities furnished to the court, on this appeal, by the assiduity of the learned counsel for the appellants, and not adverted to in the opinion in the court below. It is enough to say that I do not discover in any of them, after an attentive examination, any assertion or decision that a road which is not a thoroughfare can be, or be made a highway.
For the reasons which I have thus rapidly given, I am satisfied that the decision was right. In the views which I have expressed the presiding justice concurs, and we are all agreed that the judgment should be affirmed. ^
Brown, P. J., concurred.
The referee finds that the former owner
of the strip of land now claimed by the defendants as a public highway, caused it to be opened and fenced with the intention of dedicating the same to the use of the public as a highway, and that the same was mapped and designated as a highway, by their consent and direction, upon the map of the village of Cold Spring, made by one Bevan. But whether the surveyor was employed by such owners or by the public authorities of the village, is not stated by the referee. The plaintiff alleges, in his reply, that the map was made by Bevan on his own private account. The evidence before the referee is not reported, and we have nothing definite to show whether the surveyor acted in a public, or in his private, capacity. We cannot, therefore, assume that his conduct evinced any determination on the part of the public, to accept the proposed dedication, if indeed any was designed.
Clearly, an intent to dedicate land to the public use is insufficient, of itself, to constitute a valid dedication. It must be accompanied by acts which designate and open the land for the public use. A mere designation in a private conveyance, is
But a proposed dedication is not, is my opinion, valid unless it is accepted by the public. There are many serious responsibilities upon the public officers having the charge of public highways, and when they are in cities or chartered villages, ppon the corporation, which cannot, and should not, be devolved
Without expressing any opinion upon the other question involved, I think that the judgment should be affirmed.
Judgment affirmed.
Brown, S. B. Strong and Emott, Justices.]