Folger, J.

This case was before us in 1875 (sub nom. Heard v. The City of Brooklyn, 60 N. Y., 242), and some of the points now made by the appellants are met by the opinion then rendered.

First. It is claimed that the Brooklyn and Jamaica Railroad Company acquired a determinable fee, and not a mere easement, in the lands in suit. It is then said, that the right of the plaintiffs is a reversionary interest, taking effect only when the estate of the railroad company has ceased. And it is insisted, that the right to a reversion will not support an action of ejectment.

It matters nothing, what the interest had by the railroad company is called, if that interest has ceased. And the decision of this case before, was put fairly upon the ground that it had, and that on that cessation the plaintiffs were entitled to resume possession. But it was further held, that the fee remained in the plaintiffs; that the right of the railroad was *9 a right to use, for the purpose of operating its road, and no more.

The appellant strives to make out, that the lands were not taken for a mere right of way or other easement, but that there was an appropriation of the lands. An examination of the charter of the railroad company, shows that it was authorized to appropriate the lands; yet only for its own use, for the purpose contemplated by the charter. That purpose was to maintain and continue a railroad for fifty years over a designated route. All the legal proceedings -for the taking of the lands, show that that was the appropriation made, and that the damages were assessed for such an appropriation. The right of appropriation was given and exercised, but it was only for a use limited in time, and in kind or purpose. The New York and Harlem Railroad Company v. Kipp (46 N. Y., 546) is not in point. The proceedings there taken were under the general raihoad acts which give power, in certain cases, to acquire the whole title to lands, for public use. Having held before, in this case, that the purpose and use for which the appropriation was made, and for which the damages were assessed and paid, had ceased by the acts of the raihoad company, we will adhere to that decision, until reason for change is shown in a new state of facts.

Second. The second point of the appellant was also disposed of by the former decision. It was distinctly held, that where lands are taken for use by a steam raihoad company for its purposes, it is not lawful to add to such use, that for street or highway purposes, unless additional compensation is made to the owner of the fee.

Third. The third point of the appellant is, that whether or not the raihoad company had a right to convey any title to the city to the lands; yet, that they were in the use of a railroad company, and so open as to be accessible on all sides, and liable to be made the means or occasion of violation of the city ordinances, and that the city had the right to exercise police and governmental power over the lands.

If this were all that the defendant had done, or sought to *10 do, and made no other claim, there would be slight necessity for a consideration of this case so often by the courts. The proofs show that the city assumed to take, and assumes to hold, a proprietary right in the lands (or some portion of them), to the exclusion of any present private right of, and possession in, the plaintiffs. The agreement between the city and the railroad company, is for an absolute ceding and conveyance of the strip of land, to be used for the purpose of a public street forever. This, however, is a condition which the railroad company might waive, or from which it might release the city. The railroad company agreed to grant absolutely and forever, and did as far as it was able, grant to the city all title to the lands, without restriction to that right which had been acquired from the plaintiffs’ ancestor, subject only to the condition above named. This' title was more than a right of possession for a term of years, excluding the plaintiffs for that time only. The city assumed to take the whole title to the extent of the conveyance, and claimed it before and at the commencement of this action.

In connection with this point the defendant claims that ejectment will not he against a city, because it assumes to treat private property as a street. And it may be conceded, that where the only claim made is that of a right of way over the lands, acknowledging the existence of the owner’s fee in the soil, and his right of immediate possession and use, subject to the right of way, ejectment is not the most proper action. The Revised Statutes (vol. 2, p. 304, § 4) say, that, to sustain an action of ejectment, there must be an actual occupancy by the defendant, or the exercise of acts of ownership, or claim of title or interest, at the commencement of the suit. And it is said by Denio, J., in Childs v. Chappel (9 N. Y., 246), that the claim of title must be such, that if reduced to possession or enjoyment it would constitute an actual occupation of the premises. We think the actual occupation meant is one as against the plaintiffs. Row, if the city had reduced its claim of title to actual possession, would it not exclude any present individual possession by the plain *11 tiffs ? They might use the lands for passage over them, as members of the public, but could have no personal or protracted right in them, so long as the city kept a possession as extensive as the claim. Cowenhoven v. City of Brooklyn (38 Barb., 9) is cited to show that' ejectment will not lie for lands held only as a highway. There, however, it does not appear that it was claimed by the city that the owner had no private right in the premises. Indeed, the case was put upon the ground that the owner of the fee, if he denied the right to an easement over his lands, could take possession and maintain trespass quare clausum for the disturbance of himself, in the use of the easement. Ejectment has been sustained, in prior decisions of this court, in favor of the owner of the fee in a highway or street against a railroad company, which had laid its tracks thereon and was operating its road. It was, as suggested by the appellant in one of its points, so held because of the setting up of a new proprietary interest in the highway. The city here seeks to keep up the proprietary interest once held by the railroad company in these lands. It will not do, as is done by the defendant, in one breath to say that by the conveyance from the railroad company, that proprietary interest has ceased, and the premises are now held only as a public street; and in another, we need not pay you as owner of the fee any compensation for taking your lands for use as a public street, for we have acquired the right to them which was in the railroad company, for which you have been paid. The latter was the claim of the defendant at the commencement of the action. Where there is a right of way in the public, the owner of the fee may maintain ejectment against one, who takes possession and claims to hold it excluding the owner. (Goodtitle v. Alker, 1 Burr., 133; Jackson v. Hathaway, 15 J. R., 447.) And the owner of the fee of land, over which another private person has a right of way, may maintain a writ of entry against the person having such right of way, who is occupying the entire possession, and denying demandant’s seizin. (Morgan v. Moore, 3 Gray, 319; Hancock v. Wentworth, 5 Metc., 452.) The defendant is in *12 an analogous position. It claims to hold the premises for the public use as a street; but it claims to hold them as occupying the entire possession, and denying the plaintiff any present right.

Fourth. The point raised, upon the evidence of a dedication of the premises to public use, shown by the conveyances of the plaintiffs’ ancestor, and the maps therein referred to, was considered, as to some of that evidence, in the former decision. It was held that the evidence then in the case did not make proof of a dedication. The deeds then in evidence, it was said, did not recognize Atlantic avenue as more than seventy feet in width. Those deeds were in 1844. It was not until 1855 or after, that the premises now in question, became any part of Atlantic ayenue. The deeds not then produced, but in evidence on the last trial, were also in 1844, and they convey no part of, or interest in, the premises in question, unless they do so by the mention of Atlantic avenue as laid down on the maps in the deeds referred to. These deeds and these maps were made before 1855, while the railroad was still in the possession of the premises, and before they had been made a part of the widened Atlantic avenue. The deeds then, referred to the narrower Atlantic avenue, and did not affect the strip of land in question. For the reasons given in our former decision, no proof is furnished by those deeds and maps of a recognition of the widened avenue, or of a dedication of this strip as a part of it.

Fifth. Another point made is, that the plaintiffs can recover no more of the land appropriated by the railroad company than what has been since abandoned by it. It does appear in proof, that when the rails of that company were taken up from the south side of the strip, and laid down again with the intention of putting them in the center of the widened Atlantic avenue, they were so laid, as that they were upon the premises described in the plaintiffs’ complaint, four feet at one end of the premises and two feet four inches at the other. The judgment recovered by the plaintiffs is for the possession of the whole strip of fifty feet wide, and if literally *13 carried out will put them into possession of one or more rails of the railway track along the avenue. If it he conceded that the railroad company, or its successor in actual use, the Brooklyn Central Railway Company, have a right to use, for railway purposes, the piece of land on which the south rail is laid, this would not debar the plaintiffs of their judgment against the city. It might still be, as is a judgment of the owner of the fee in lands subject to a way, against the owner of the right of way who has set up an exclusive possession. The owner has judgment against the trespasser, of possession of the premises, but subject to the easement; or, if the way was a public highway, the judgment would be one of possession of the lands, subject to the public easement. So here, the judgment might be for possession of the premises, subject to the right therein of the railway company. (Perrin v. N. Y. C. R. R., 36 N. Y., 120.) But the plaintiffs contend that there is no right in the railroad company, or its successors in use, to occupy this small piece of the fifty feet strip-. It is claimed by the plaintiffs that the railroad company conveyed to the city the entire strip of fifty feet, and thereby abandoned the use of it for railroad purpose, and lost all right in it. Bor answer to this the defendants say, that the railroad company did not convey to the city that portion of the fifty feet strip upon which the rails lay, but excepted that from the conveyance and retained it. We do not find that in the appeal book which sustains this position of the defendants. The agreement between the railroad company and the city is given at length. It is to cede and convey to the latter, the strip of land described, in the act of April 13, 1853 (Laws of that year, chap. 220, p. 42, § 92; see also, Laws of 1855, chap. 475. p. 854, §§ 4-8), upon the condition that the railroad company have the right to use and occupy a space of thirty feet wide in the center of the avenue, after it has been widened. The city agrees to accept the cession of the strip, in pursuance of that act, and to grant to the railroad company the right to use and occupy the thirty feet wide. There is no limitation of time in either instrument. Turning *14 to the acts above cited, and we find that the power conferred by them, is to cede to the city all the strip of land owned by the railroad company south of the south line of Atlantic avenue, as it then was, unwidened. The deed which was made by the railroad company, in pursuance of that act, and of the agreement, is not given in full in the appeal-book, and its exact terms we do not know. It is stated to have been in pursuance of the agreement and in virtue of the acts, and to convey a strip of land fifty feet in width, and we may presume it contained the same conditions as are found in the agreement. The acts of the legislature provide for a cession to the. city by the railroad company; that there shall he a complete cession to the city of the whole strip, and of all the right of the railroad company in it; and that any interest which the company may have in it, is to be by conditions of the cession agreed upon between them. The agreement with the city expresses the condition, and it' is to be presumed that the deed to it does the same. One of the conditions is, that the railroad company shall have the right to use and occupy a space thirty feet wide in the center of Atlantic avenue, after it is widened; and the city on its part agrees to grant to the railroad company the right to occupy and use. It is to be observed that there is nothing here of a reservation of the rights of the railroad company. There is a conveyance, with no exception therefrom, of the premises and all its rights therein, without limit of time or quantity, to which there is affixed a condition that it shall have the use and occupation to a certain extent. It may be doubted, whether this transaction preserved to the railroad company, any of its rights acquired by the appropriation of the lands for its use, and the payment of the damages therefor. But we may not pass upon this question here to the detriment of that company or its successor in use, as they are not parties before us. It is enough to say, that the facts stated do not defeat the plaintiffs’ action against the city, and could only affect the form of the judgment. ■

Sixth. The same may be said as to the Atlantic Avenue ¡Railroad Company, and its possession of the premises or any *15 part of them. By the mortgage to trustees and the foreclosure thereof, and the purchase at mortgage sale, that company obtained no more than the Brooklyn and Jamaica Railroad company had to convey. Yet, it obtained all that the latter had to convey. If that was all the right which the latter had in the premises, by virtue, of the original appropriation of them, then the city acquired no right by the acts of the legislature, and the agreement and the deed above noticed. The plaintiffs are still the owners of the fee, subject to the right to use of the railroad companies, and may maintain this action against the city, and take judgment of possession, and against the city, subject to the right to use of the railroad companies. It is not needed, nor is it useful, that we now inquire what rights in the premises are held by corporations, not parties to this action, and who cannot be affected by our judgment; nor is there need that the form of the judgment rendered in the court below be modified, for it will not debar nor preclude persons or corporations not parties to this action.

Seventh. An act of the legislature, passed in 1862, (Laws of 1862, chap. 63, p. 182, § 41), provided that “all streets, and avenues in said city, which have been or may be thrown out to public use, and have been or may be used as such for five years continuously, shall be deemed public streets and avenues,” and the city and its officers were given “ jurisdiction and power in respect thereto, the same as if such streets and avenues have been or shall be opened by proceedings had for that purpose. * * * ”

It is claimed by the defendants that there was testimony in the case, which tended to show that the plaintiffs, or then’ predecessors in interest, had so acted or omitted to act, as that they had evinced an' intention to throw out the premises to public use. It is not conceded by the plaintiffs that there was such an intention. The statement of facts by the General Term is, that there was not a throwing out of the land to public use, nor any dedication of it. If there be the testimony in the case which the defendant claims, the only way in which it is available to it here is, upon the *16 exception taken to the refusal of the trial court, “ to submit the case to the jury on the question of intent to dedicate, and generally.” We think that a correct interpretation of this act, requires that there should be an intention on the part of the owner, that his lands should become permanently subject to the public use for a street, before he can be said to have thrown them out thereto in the purview of the statute. We think further, that the intention must be evinced by some affirmative act of his, and that merely permitting his land to lie open, unfenced against intrusion, or without claim made of a right to private exclusive possession, will not be taken for such an act. It is to be observed that the law does not say that all lands, which shall be thrown out to public use; it says all streets and avenues. At the time when thrown out, and for the term of five years continuous use, the premises must be in the shape and for the purpose of streets. It is not unusual, that in the vicinity of cities and villages tracts of land lie unfenced, open to the common use for many years, and that well-defined ways of passage are gradually formed across them. It would not be held that in such case, after five years of such use, a municipality with such a provision in the charter, would have the same right to the ways thus formed, as if they had been laid out by proceedings had for that purpose. The purpose of the statute evidently is, to provide for the case of an owner of a tract of land in the city, who had laid it out into lots, and planned and marked out streets upon it, and had thus and by other like measures, invited the public use of them, without in any more technical or formal manner investing the city government with a right to take them into possession and control. And the initiatory act of the throwing out to the public use, must be an indication by the owner that for such length and width over his premises, a street or way is accorded for the public use. Like the Brooklyn statute, is that of the city of Rochester, which came under notice in Requa v. City of Rochester (45 N. Y., 129). A reference to the opinion in that case, shows that some act of the owner inviting or yielding to public use, is needful for an opening or throwing open to *17 the public, and that it is the opening of a street as a street or way, that is intended by the statute. The act is not a statute of limitations, which debars the maintenance of a right, because the possessor of that right has slept upon it for a given length of time. It is a statute which makes definite and decisive in favor of the municipality, action which was not at first mutual. A dedication of a way does not become final and conclusive upon the owner, until there is acceptance of it, by the public or a private person interested to accept. This statute comes in place of an acceptance by the public authorities, when five years have elapsed of continuous proffer by the owner and of use by the community. (See The Atty-Genl. v. M. & E. R. R. Co., 4 C. E. Greene [N. J.], 386.) It is plain that in this case there was no such act upon the part of the plaintiffs, or their ancestor. The premises have been, so far- as they were concerned, in the actual possession of the railway company, or in actual usé by the public, with the assertion of authority over them by the city or its official agents. There has been no opportunity for the plaintiffs to do any act, which would express the throwing out to the public use, contemplated by the statute. As there was no evidence upon which a jury could find such an act, it was not error to refuse the request of the defendant, to go to the jury upon that question.

We think that the plaintiffs must recover.

All concur except Church, Ch. J., and Andrews, J., not voting.

Judgment affirmed.