132 N.Y.S. 441 | N.Y. Sup. Ct. | 1911
The action is brought to restrain the defendant from interfering’ with, or molesting’ the plaintiffs in the use of the premises described in the complaint as a public park. The defendant claims to be the owner in fee of the premises, free from any rights or easements in the plaintiffs. The individual plaintiffs claim that as to them the property was dedicated for park purposes by the predecessor-in title to the defendant, who laid out the park and surrounding premises on a map. The portion which is now claimed as a park was thereon designated as a park and the surrounding premises were laid out in lots and streets. The streets are still open, have been accepted by the village as public streets, and are used as such by the public. All the lots laid out on the map, or maps (as the subsequent owner filed another which was the same as the former one), were sold by reference to such maps and conveyances given which referred to said maps. These plaintiffs were the grantees in those deeds, or the successors in title of the grantees in those deeds. The
The premises were originally laid out in lots upon a map which .did not show a park. Upon the foreclosure of a mortgage upon the property one Henry Dnbois purchased the premises. He caused a map to he made which shows the park in question. This map was filed in the office of the clerk of the county of Queens, in which county said property was then located. Subsequently the county of Queens was divided and the property is now in the county of Nassau. The proof shows that at the time when Henry Dubois made the map in question there was at least one person holding a contract to purchase some portion of the premises embraced in the designation of a "park upon said map; that Henry Dubois procured him to surrender his contract and accept lots in another portion of the premises, upon the representation that he intended to create a park where those premises were situated. He then laid out streets surrounding this park which, as I have said before, have been accepted and used. He then placed a row of trees along the outer edge of the sidewalk. Then he placed another row of trees twenty feet or more inside of that row and some distance inside of the sidewalk surrounding the park. He then built an ornamental fence, consisting of-turned chestnut or locust posts, connected the same with ribbon wire, leaving an opening in each corner, in which he placed a turnstile. With the premises in this condition and with the map on 'file as before stated, he sold lots by reference to that map and made deeds of those lots, referring to such map.
If this question had not been passed upon I would feel that a complete and irrevocable dedication of these premises for park purposes had been made by the then owner, Henry Dubois. But the question, it seems to me, is not a new one. It has already been passed upon by the Appellate Division when a demurrer was. interposed to the complaint aAd the law of the case laid- down by that decision. That case apparently holds that if the facts alleged are true a dedication has been made. White v. Moore, 139 App. Div. 269.
■ In Johnson v. Shelter Island Grove & Camp Meeting Assn., 122 N. Y. 330, 334, the court, speaking of a map of the lands of the defendant in that case, with reference to which the conveyances had been made, s-ays: “ Now, as to so much of the lands designated upon said map as appropriated to the use of the Shelter Island Community as public grounds, whether designated as streets, avenues, parks or places, each purchaser of a lot aeguired therein distinct and
In an action brought by the predecessor in title of the defendant against one of the lot owners upon said map Mr. Justice Dickey found and decided that said “Frederick Wellenbrock acquired an easement in said park by implied covenant as appurtenant to the premises granted. The said park could not be used for any other purposes than park purposes.”
The attorney for the defendant, with commendable industry, has found many cases which he claims hold to the contrary of the cases above cited, but most of them upon examination are found to be based upon an entirely different set of facts. One upon which he places a great deal of stress is Johnson v. Shelter Island Assn., 47 Hun, 374. This was reversed in the decision above quoted by me (Johnson v. Shelter Island Grove & Camp Meeting Assn., 122 N. Y. 330), and so far as the law. is stated in 47 Hun the Court of Appeals holds absolutely to the contrary. Bissell v. New York Central R. R. Co., 26 Barb. 630, is reversed in 23 N. Y. 61.
It seems to me, therefore, that as to the individual plaintiffs a dedication has been made out beyond peradventure.
As to the plaintiff village, the case is not entirely free from difficulty, but bearing in mind the fact that under the law as stated in Porter v. International Bridge Co., supra, only an easement passed by the dedication in question, the acts and claims of the predecessors in title of the defendant become more consistent with the theory of the plaintiff. The claim of the village is that the'premises were dedicated by the map above mentioned and the laying out as above stated, and that its acceptance has been shown by user. The defendant, on the other hand, claims that there was no dedication to the village by means of this laying out or mapping and that the village never accepted. The immediate predecessor in title of the defendant claims that an offer of dedication upon condition was made by her husband, the then
But leaving that aside for a moment, I think that the laying out of the property and mapping it constituted a dedication and the use made of it by the village people from that time on indicated its acceptance- It is well known that in sparsely settled neighborhoods public parks, squares and village greens are left open with but very little care or attention, and I am of the opinion that this square received the care and attention and was subjected to all the uses which public places in a village of that size and character would be. In this idea I find strong support in the testimony of Mr. Doncourt, a son-iri-law of Mrs. Dubois, who testified as to the erection of a fence around the property by Mr. Dubois and then says that after that no use■ was made of it “ except people going there and sitting there and- going through there and used the same as any other Sea Cliff parks are used now, I suppose.” As time passed and the village grew in size it had more use for parks and commenced to pay more attention to this park and from that time on it was used for baseball games by the village children, later by the uniformed baseball clubs, grand stands were erected, the
Tinder all these facts I think a case of dedication and acceptance has clearly been made out.
The plaintiffs are entitled to judgment as prayed for in the complaint, with costs. '
Judgment for plaintiffs.