101 N.Y.S. 347 | N.Y. App. Div. | 1906
The defendant gas company, through the agency of the defendant T- A. Gillespie Company, which did the actual construction, was in the act of laying sixty-inch gas mains in that part of Hancock
The plaintiff owned to the center of these two so-called streets, and claimed to be entitled to maintain the action for the reasons, first, that the grant of the privilege of laying mains formerly given to the assignor of the defendant gas company was not assignable; and hence the right did not pass, and the defendant gas company was a naked trespasser; second, that if such right did pass by assignment it conferred no privilege to lay such mains as those in question whose office was not to supply abutters but to convey gas from its place of manufacture to distant storage tanks, and, third, that the grant of this privilege to lay mains in Hancock and Sanford streets was worthless because these had ceased to be public streets, and the municipality of course had no power to endow the gas company with the privilege so to use a private way. The argument to sustain this last theory is that since neither of these two streets had, for over six years after their dedication and acceptance as public thoroughfares, about 1875, been worked or made passable as highways through their respective lengths, they ceased to be public highways perforce of the Highway Law.
Section 99 of the law provides that “ every highway that shall not have been opened and. worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway.” (See Laws of 1890, chap. 568, § 99, as amd. by Laws of 1899, chap. 622.)
With the reasoning and the conclusions of the learned Special Term as to the first and- second questions just mentioned we are content. In the view we take of this appeal it is unnecessary, and would hardly be profitable, to discuss the third.
By the judgment from which an appeal is taken it was determined that the defendants had no right to lay the mains in question, and this act was- a continuing trespass and should be enjoined, unless the' defendant gas company instituted proceedings to condemn.
After it had been submitted to the learned Special Term, but before decision, a motion was made to open the case to permit the
First. A resolution of the board of estimate and apportionment of the city of How York, dated September 30:, 1904, and approved by the mayor on October 24, 1904, changing the grade" of certain streets and avenues, among, which Were included Hancock and Sánford-strcets in accordance with a map made under direction of that board therein referred to. .
- Second. A certified copy of said map, which Was filed in the office of the president .of the borough of Queens on or about December 9, 1904.
The new evidence was evidently to meet the plaintiff’s proposition that the provision's of section 99 of the Highway Law applied . to city streets. The deeds to the plaintiff, which had been received in evidence before the close of the case, were dated in 1903* and Seemed to recognize Hancock and Sanford .streets, for in them the premises conveyed were bounded by those streets, and they conveyed to the center of the respective streets. The defendants, therefore, urge that by the deeds at least so much of these so-called streets as adjoined the plaintiff’s premises were dedicated to the city, and they were accepted as public streets by the conduct of the city’s agents, which, by their motion, they sought to prove as part of their- case.
The’ motion was, however, denied, and the defendants have appealed. In denying the motion the learned Special Term wrote : u In my opinion- the execution of a single Conveyance of .land or of a few isolated conveyances of land in which the property is bounded by a street, is not sufficient evidence of a rededication of the street as a public highway, after the street has ceased to be a public highway, because of the failure of the public authorities to open and work the same within six years after the original dedication and . acceptance.”
'Public highways may be created by dedication through offer and acceptance, and there seems to be no dispute upon the proposition that conveying property by bounding it on a street which has-aetual . form’and is In Use for obtaining access to abutting premises,'is evidence of an offer to dedicate.' The learned "Special Term evidently
The evidence the defendants, by their motion, seek to have considered in the case, therefore, becomes important, for it tends to prove the acceptance by the municipality of the offer. (People v, Underhill, 144 N. Y. 316, 324; Matter of Hunter, 163 id. 542, and cases cited.) And if the fact should be found, upon a consideration of all the evidence, that there had been a complete dedication and acceptance as a public street of so much of these thoroughfares as lay in front of the plaintiff’s premises, so much of the plaintiff’s position as stands on her ownership of the fee unimpressed with the public easement must fall.
The order appealed from must, therefore, be reversed.
Hirschberg, P. J., and Rich, J., concurred; Millee, J., concurred in result on the ground that section 99 of the Highway Law has no application to a city street.
Though a street used by the public generally be not an official one, so that the city is Under duty to keep it in repair, and liable
If we were to concede that section 99 of the Highway Law has reference to a street not only “ dedicated,” which is the only word it uses, but-also officially “ accepted,” and that its meaning is that such an accepted street may lose its official status by the failure of the city for six .years to work it or lay it out (which are the words of the statute), although it is actually mapped and laid out by fhe dedicator, and traveled by the public as a highway, it nevertheless remains that the city may, so long as the street continues an actual used public street, renew its acceptance by acts of official user, and thereby confer official character on it.
' But such a street may be' an irrevocable public street by dedicacation and general public user without official acceptance. It can be a public highway, in the sense that the public have and exercise the right of travel over it, without official acceptance. Such acceptance is unnecessary to make it a public highway, and unimportant, except that it imposes a duty on the body politic to keep the street in repair, for breach of which it may "be liable in damages. Such unofficial public streets may be made official at any time, and the findings of fact in. this case show that the street in question is an official street by continuous acts of official user.
The learned trial judge misinterpreted section 99 of the Highway Law. It provides that every 'dedicated highway. which has not been opened and worked, or laid out, within sijc years of the time of its dedication, shall cease to be a highway. This, does not cover
Judgment reversed, without costs, and new trial granted, costs to abide the final award of costs. Appeal from order dismissed, without costs.