105 N.Y.S. 184 | N.Y. App. Div. | 1907
The action is for an injunction to restrain the construction of a sewer through property claimed by the plaintiff, consisting of a dock built into the Hudson river at the foot óf Main street in the village of Cold Spring. The plaintiff’s title is not attacked, but the defendants claim that the locus in quo is a public street.
The plaintiff traces her title to a grant of lands under water made by the State in 1811 to her predecessors in title who were the owners of the upland, The lands so granted were-not filled in until about 1836. A dock appears to have been constructed upon the site of the'present dock as early as'1842, since when it has continue ously been recognized as the private property of the plaintiff and her predecessors. The village has assessed it as. far back as the village records show, it has paid rent for the use of it, and now for the first time asserts a public easement.
The defendants rely upon the doctrine that a union between easements on land and on navigablé waters once made cannot be broken by subsequent changes in the land, whether made by natural or" artificial means. (People v. Lambier, 5 Den. 9; Matter of City of Brooklyn, 73 N. Y. 179.) In order to invoke ■ this doctrine the defendants had to show that before the land was filled in, as Stated supra, Main street extended to the waters of the Hudson river.
It may be assumed that a public right cannot be extinguished by adverse user, but the fact that the plaintiff and her predecessors have had uninterrupted and exclusive possession for more than sixty years and that the public" authorities have repeated!y recognized ■ their right to possession, is entitled to great weight. The burden was on the defendants to establish the easement which they Asserted. In the absence of record evidence,- it is difficult if not impossible to show precisely what the conditions were seventy years ago, and it is necessary to consider every fact and circumstance that can possibly have any legitimate bearing on the fact to be proven, but the difficulties of the case being due to the long acquiescence of the defendant village, the court should not accept vague and uncertain testimony as proof.
There is no proof of the terminus in 1811 of what is now Main street, except that furnished by the map filed in the office of the "
Said Philipstown. turnpike is now Main street,, and it is asserted • that said record furnishes sufficient proof of an existing highway pur- ■ suant to the Bevised Statutes (1 R. S. 520, § 98; Id. 521, § 100). Said section 98 confirmed the acts of commissioners of highways or any two, of them in laying out, altering or discontinuing any road or highway, provided such commissioners, or any two. of them, had caused a survey of such roads or. high ways to be. filed and recorded in the office; of the town clerk, of the town, and said section 100 provided, that “all public highways now in use, heretofore laid out. and allowed by any law of this State, of which a record shall have been made in the office of the clerk of the county or town * ' * *• shall be deemed public highways.” It. will- be noticed that the .probative' force of-.such a record depends upon one of two facts: (a) ' That the highway shall then be in use, or (b) that it shall have theretofore, been laid out and'allowed.-by lawi There is no proof of either of said facts. . Said survey does not purport to be incorporated in any order signed by the commissioners of highways, as -provided in the preceding section 55. (1 R. S. 513.) It purports to be signed by the surveyor.and not by the commissioners of highways, and there is no proof of any order signed by said' commissioners purporting to lay out said highway.. The statute was evidently designed to establish exist
The respondents next rely on the descriptions contained in "deeds made by the plaintiff’s predecessors. As the land was filled in, lots were sold bounded upon the lines of Main street continued, and in many of the conveyances these lines are referred to as continuing into the river, but without referring to them in detail it is plain that they refer, not to an existing street or lines thereof extending into the river, but tó a continuation of existing lines, and, so far as they have any probative force at all, tend to indicate that the exist
From such testimony it appears either that Main'street terminated at its present intersection with Market street, and that the present Market street was then á highway paralleling the shore line, or that Main street formed two branches at said point, one extending southward to a foundry and the other northward to what was then Cold Spring Landing, and it is.quite immaterial which theoiy is accepted. It is certain that there was no reason for the street terminating in the waters of the river, at this point, as there was no landing there. The natural terminus of the street was either at the foundry or the landing referred to supra. It is clear from the testimony that, the shore line as it then existed was not far from Market street as . it now exists, but it is very uncertain whether any strip of land intervened between said highway and the-shore line. There is no proof of the width of these streets, and their existence as streets depended entirely upon user. Some witnesses say' that- the water came up to Market street as it now exists, but there is no proof that the highway as then used corresponded with the present width of Market street. Some say that there was access to the river at said point from the foot of Main street, but that does not disprove that there was an intervening- strip between the shore line and the highway over which said access was gained. There, is one important fact upon which' all of the witnesses agree, to wit, that there was a building between the river and the present intersection of Main and' Market streets. It appears that' at high tide the water came up under this building, but its presence and the fact that the landing was some 200 feet to the north are the two circumstances about which there appears to be no doubt, and which to my mind show' that Main street as it then existed did not terminate in the waters of" the- Hudson river at said point.
The defendants’ case rests 'wholly upon dedication and user. Undoubtedly the conveyances, bounded upon the street, made by the plaintiff s predecessors, granted easements to their grantees, and so
I advise that the judgment be reversed on the law and the facts.
Hirsohberg, P. J., Woodward ánd Jenks, JJ., concurred; Hooker, J., dissented.
Judgment reversed and new trial granted, costs to abide the final' award of costs. ' •