149 N.Y.S. 378 | N.Y. App. Div. | 1914
In February, 1861, Samuel C. Welling conveyed to the Warwick Valley Railroad Company, the predecessor in title and interest of plaintiff, about three acres of land in the village of Warwick. It was bounded on the west by Main street, afterward called Oakland avenue, and on the south by a strip of
In September, 1912, defendant tore up and removed a sidewalk constructed by plaintiff upon said premises, contending that a strip of land included within the boundaries of said conveyance, and which is about nine feet in width, running along the southerly fine thereof, and also a triangular piece of ground lying to the north of the intersection of the northerly boundary line of said strip with the easterly line of Oakland avenue, and containing about 136 square feet of land, had been dedicated to public use, and had become a part of the streets of said village. Plaintiff thereupon brought this action in equity to restrain defendant from interfering with said land and from committing continuous trespass thereon, and from a judgment in defendant’s favor plaintiff appeals.
Plaintiff contends that its title to the land in dispute was such that it was without power either to grant or dedicate the same for street purposes. (Rochdale Canal Co. v. Radcliffe, 18 Ad. & El. [N. S.] 287.) Although in the answer interposed by it defendant claimed title both by prescription and dedication, no evidence was introduced which would justify a finding in its favor upon the former ground. The learned court at Special Term rested its decision wholly upon dedication and
It is our duty to apply these rules, which we deem to be well established, to the evidence in this case.
This being the physical situation and condition of the property, defendant sought to establish dedication at that time by direct evidence and by circumstantial evidence arising from
It is doubtful if this evidence was competent. First, it is evidence of a future purpose rather than a present intent. Second, unless authorized so to do by plaintiff’s directors, the president of the railroad company could not dedicate its land to public use. (Niagara Falls Susp. Bridge Co. v. Bachman, 66 N. Y. 261; Town of West Point v. Bland, supra.) There is no evidence of such authority; nor can it be claimed that there was such ratification by defendant’s directors of his unauthorized act if his declared intention, followed by the construction of a park, under the circumstances hereinbefore disclosed, could be said to be evidence of actual dedication. To constitute ratification, there must be knowledge. Not only is there no evidence of any knowledge upon the part of plaintiff’s directors of Burt’s declarations, but the evidence is that as to the strip
There remain, then, only the acts of plaintiff in connection with such strip of ground upon which to rest defendant’s claim. It is true that plaintiff allowed it to remain apparently a part of the street and to be used in connection therewith. It is true that after the park was constructed, persons in turning from Oakland avenue into Eailroad avenue were apt to encroach upon the land in the park, and to prevent this plaintiff put stones intended to act as buffer-blocks at the intersection of the park line with said avenue, and to create a graceful curve placed them a short distance back from the extreme line of its property. It was the placing of these buffer-blocks that apparently gave rise to defendant’s claim to the triangular piece of ground hereinbefore referred to at the intersection of the two streets. But such use is at least as consistent with a desire upon plaintiff’s part to afford easier access to its own property and the station building thereon for its patrons, as to abandon the use thereof to the public. There is evidence, not disputed, that after constructing the station building and park, plaintiff did some work upon this strip of ground and the gutter adjoining the same in keeping it clean and free from weeds. While defendant may have done more work of this character than plaintiff, the latter did some work thereon, and its acts in this regard are inconsistent with an intent to utterly abandon ownership thereof. But beyond that, there is one undisputed fact in this case which seems to us to clearly establish that the controlling purpose of defendant in leaving this strip open and unfenced was to benefit its patrons and facilitate them in the use of its property. On the south side of the station building there is erected a porte cochere through which vehicles approaching the station may pass, stopping and receiving passengers and permitting them to alight. This porte cochere extends across the strip in dispute, so that its exterior line is about four feet and three inches north from the southerly line thereof. In the second story of this extension there is a part
We conclude, therefore, that not only do the acts of plaintiff fail to furnish clear and decisive evidence of an unequivocal intention to abandon the use of this strip of ground to the public, but on the other hand precisely a contrary inference is to be drawn from the use made of the same, and that such use as the general public did make of the ground in dispute was by way of license and not in the assertion of a right thereto. If there is no sufficient evidence of dedication, it is unnecessary for us to consider evidence of acceptance on defendant’s part. But if we should consider the same, such evidence is equally weak and inconclusive. There is no evidence of express acceptance by formal action of the village authorities. It is true that in some instances acceptance of a dedicated highway may be established by evidence of repairs thereto and other acts of ownership by a municipality. (Smith v. City of Buffalo, 90 Hun, 118.) There is evidence that in the spring of the year, when the village authorities used the mud-scraper upon Eailroad avenue, they also used the same upon the nine-foot strip adjoining thereto. There is evidence that when gravel was scattered over the surface of this street, it was also spread upon the adjoining strip. There is no evidence of any appropriation of any sum of money for the care or improvement of this particular strip of ground as distinguished from the original street. There is not even evidence that when appropriations were made for the improvement or repair of Eailroad evenue, or contracts or directions given for work thereon, anything was said as to the width of such avenue, or whether the nine-foot strip was or was not included therein. It seems quite as likely that the work done upon this piece of ground was carelessly or thoughtlessly done as that it was done with the express sanction of the
It may be that upon a new trial of this action defendant will be able to introduce further evidence of dedication and acceptance. While the judgment appealed from must be reversed, we have concluded that it would be in the interests of justice to grant a new trial rather than to give affirmative judgment for the plaintiff. If, however, the parties feel that no further evidence can be introduced, an application will be entertained to direct judgment absolute for the plaintiff, in which case proper findings must be made to sustain such judgment. Our present decision is that the judgment appealed from be reversed upon questions of fact as well as of law, and a new trial be granted, costs to abide the final award of costs. The 7th finding of fact contained in the decision is reversed as contrary to the evidence.
Jenks, P. J., Oarr, Stapleton and Putnam, JJ., concurred.
Judgment reversed upon questions of fact as well as of law, and a new trial granted, costs to abide the final award of costs. The 7th finding of fact contained in the decision is reversed as contrary to the evidence.