106 N.Y.S. 125 | N.Y. App. Div. | 1907
It is'well settled bv the law of this State that in- order to constitute an effective and irrevocable dedication of private property for a public highway there must be an intention on the part of the owner to so dedicate and an unequivocal acceptance- of the same by or on behalf of the public. Whether or not a dedication has been consummated in a particular case is to be determined from the acts and declarations of the parties and all the attending circumstances. Where conflicting the force and effect of each should be considered and a conclusion reached in accordance with the weight of the evidence.
In the case of Cook v. Harris (61 N. Y. 448) the rule is stated in the opinion of the court, per Earl, 0., as follows (pp. 453, 454) : “ Land may be dedicated to the use of the public for a highway, without any writing; and a dedication oncemade and accepted cannot be revoked. It rests upon the doctrine of estoppel m pais. The dedication and acceptance may be proved by the acts of the parties and the circumstances of the case. The owner’s acts and declarations should .be such as to manifest an intention to abandon or devote his-property to the specific public use. In the case of a highway, the public. must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway. ' No particular length of time is essential to make a dedication valid and irrevocable. The dedication and acceptance- may both concur on a single day. All that is needed in any case is room for the estoppel- to operate.”
In the case of Flack v. Village of Green Island (122 N. Y. 107)
■ In the case at, bar the - ¡learned referee after considering all- the facts and circumstances disclosed by the evidence, concluded that the land in question, which is occupied by Newton street, had beén dedicated as a public, highway by the plaintiff and his. predecessors in interest and that it had been accepted as such by the public. We think that such findings of fact on the part of the referee cannot be said to be agamst the weight of the evidence; ’
Attention may be called briefly to the salient points in the evidence which, as we think, under the authorities referred to fully justify the conclusion reached by the referee. Stephen M. Newton,
It also appears that during such time at the request of plaintiff’s predecessor and of the persons to whom he had sold lots abutting upon such street, the city authorities authorized the laying of a water pipe in said street, connecting with its mains and which would furnish water to such property owners. It appears, however, that that was done upon the agreement of Newton that he would pay for the use of the water an amount sufficient to make a proper • return to the city upon the money expended in furnishing the same.
It appears that the city of Dunkirk had not worked upon or repaired the street to any considerable extent, but that practically all such work was done by Newton. It also appeal’s that shortly after the street was opened to the public Newton caused sign posts to be erected upon which it was stated that the street was private property. Those sign posts had fallen into decay and the printing thereon had become illegible many years before the commencement of this action. In fact, the evidence tends to show very conclusively that Newton did intend to dedicate Newton street to the uninterrupted use of the traveling public, but sought to hedge such
All the facts and circumstances disclosed by the evidence in this case made the question of dedication one of fact, and we are. not prepared to say that the finding of the referee that such dedication had. been consummated prior to the commencement of this action is contrary to or against the weight of the evidence.
It follows that the judgment appealed from should be affirmed, with costs.
All concurred. ■
Judgment affirmed, with costs.