85 N.Y.S. 423 | N.Y. App. Div. | 1903
The action is in equity to restrain the defendants from building on a lot claimed by the plaintiff to be a public street adjoining premises owned by him in the village of Scotia. The defendants deny that the lands on which they are building is a public street and that the plaintiff has any interest or easement therein. The issue was tried by a referee who reported that the land, 50 feet wide by 150 feet deep, upon which defendants were commencing to build, was a public street and that the plaintiff, as owner of the adjoining lot, was entitled to an injunction restraining the defendants from building upon such lot and requiring them to remove the foundation walls and other portions of their building therefrom. From the judgment entered upon that report the defendants have appealed.
The premises owned by the' plaintiff, as well as the alleged street lot, both formerly belonged to one Charles P. Sanders, the father of Charles P. Sanders, Jr., and L. Ten Broeck Sanders. In December, 1890, the lot occupied and owned by the plaintiff, with other
It cannot be doubted that when the owner of land lays it out into distinct lots with intersecting streets and sells the lots with reference to such streets, his grantee or successors cannot afterwards be deprived of the benefit of having such streets kept open, and the purchaser and his grantees have an easement in the street for the purposes of access, which is a property right. (Lord v. Atkins, 138 N. Y. 184.) But that is not this case. That is where the owner makes the dedication in that way, but ! know of no authority holding that an owner may, by making and filing a map showing a street over his neighbor’s land adjoining his property, dedicate such neighbor’s land to a public use. L. Ten Broeck Sanders never owned the land now claimed to be a public street, lying easterly of plaintiff’s lot, and hence could not dedicate any of that land as a street by mapping and selling with reference to the map. On the other hand, Charles P. Sanders, Jr., never owned plaintiff’s lot and never made any conveyances of property with reference to the maps filed or referring to the open space shown on the maps as a public street.
It is not seriously contended, however, that L. Ten Broeck Sanders could dedicate his brother’s property to a public use by filing maps and making conveyances with reference' to such maps. But it is urged that the conduct of Charles P. Sanders, Jr., with reference to the maps and the conveyances made by his brother, is effectual as an estoppel as against him and his grantees, and the referee undoubtedly decided the case in favor of the plaintiff upon that theory. The proof in support of that view on the part of the plaintiff is substantially that Charles P. Sanders, Jr., acted as attorney for his brother and drew some of the deeds under the employment of his brother, where reference has been made to the lot occupied by the defendants as a street; that he took the acknowledgment to some of them
The referee found as a fact that L. Ten Broeck Sanders caused the plot of land to be laid out in building lots and streets, and caused the map thereof to be filed in the clerk’s office. Charles testified that he acted for his brother in whatever he did concerning the maps; that he never authorized his brother to make a map which would embrace any part of his lands, or the lot in question, Or designate it as a public street, and that he never consented to a street being opened there. More than this, the evidence is clear that the lot was always fenced and was never in fact open to or used by the public or any one else as a street.
The dedication to be effectual must be by the owner of the land. (Dillon Mun. Corp. [4th ed.] § 635.) An intent on the part of the owner to. dedicate is absolutely essential, and to deprive the proprietor of his land the intent to dedicate must clearly or satisfactorily appear. (Id. § 636; Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261.) In the case last cited it was said: “ The acts and declarations of the land owner indicating the intent to dedicate his land to the public use must be unmistakable in their purpose and decisive in their character to have the effect of a dedication.”
Here there has been no dedication by Charles, the owner, and the evidence upon which an estoppel is claimed as against him is altogether insufficient, in the absence of dedication by him, in my opinionj to deprive his grantees of the title to the premises he conveyed to them or to subject their premises to the easement claimed by the plaintiff. ■
The judgment should be reversed on the law and on the facts, the referee discharged and a new trial granted, with costs to appellants to abide the event.
All concurred, except Smith and Houghton, JJ., dissenting.
Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellants to abide event.