Spring, J. :
. The land in dispute at an early date was owned by the Holland Land Oompany. -The map received in evidence .of that company pertaining to this territory shows the present Main street which was designated thereon as Willinks avenue. It also shows an unnamed street extending easterly from Willinks avenue, abutting on, Buffalo creek, which stream is called in the testimony interchangeably Big Buffalo creek, or Buffalo river. There is no street appearing on this map westerly of Willinks avenue and north of the river until. Little'Buffalo creek is reached, which is a tributary of the river. [491] The lot on the easterly of Willinks avenue, and of which the disputed strip forms a part, is Ho. 78, while on the other side of the avenue it is designated as lot 84, and that lot extends to the Little Buffalo creek. From that creek Water street appears on the map extending along the front of the river to its mouth and also northeasterly abutting on Little Buffalo creek. This map obviously is the one to which reference is made in the deeds from the Holland Land Company. There was also produced a map made by Tobias Witmer, which is made evidence by an act of the Legislature (Laws of 1850, chap. 221). This map purports to be a part of an atlas of the city of Buffalo, transcribed from the original deed book or records of the Holland Land Company. This map also outlines a street, designating' it as Water street, one chain in width, extending along easterly from Willinks avenue and abutting on the river. Ho street is shown on this map as a continuation of Water street on the westerly side of the avenue. The town of Buffalo was created in 1810 (Laws of 1810, chap. 2) and by chapter 35 of the Revised Laws of 1813, authority was given to choose three commissioners of highways of the town, and by chapter 33 thereof these commissioners were empowered to enter of record in the town clerk’s office the roads of the town not already described and recorded. Pursuant to this statute a map was made and filed in the town clerk’s office following the Holland Land Company’s map referred to and delineating the street easterly of Main street -or Willinks avenue, but none on the westerly side of Main. In 1826, and after the village of Buffalo had been incorporated, the trustees of the village passed a resolution changing the name of the street easterly of Main street and abutting on the river to Front street and narrowing it to two rods in width. Along from 1842 to 1849 a surveyor named Lovejoy prepared a subdivision map of several of the wards of the city of Buffalo, and by resolution of the common council passed in February, 1849, one of its committees was authorized to purchase this map “ to be a sample for the remaining wards,” and this map was in accordance with this resolution filed as one of the maps of the city and subsequently used as a guide in making assessments. This map shows Front street extending along the northerly banks of the Buffalo liver and each side of Main street embracing all the lands which are the subject [492] of controversy in this action. By resolution of the hoard of trustees of the village before the incorporation of the city, as well as-subsequently, there has been some reference to and recognition of Front street as extending westerly of Main and fronting on the river. There are also other maps which were received in evidence portraying Front street as a street extending both sides of Main and including the disputed territory. These maps were.made and filed from 1840 to 1856, and were used and recognized to a greater or less degree by the city authorities. There also appear in the record copies of many maps which are denominated' assessment maps commencing back in 1842, extending through that and the .succeeding decade, which show Front street delineated on both sides of Main street and which were of service to the assessors in spreading the expenses for local improvements throughout the ■respective taxing districts benefited thereby. '
There is no claim that Front street or any other covering the land in dispute was ever laid out as a public street or highway. The contention of the plaintiff is that as to that portion of Front street lying east of .Main street, the making and filing of the map was a dedication of the easement to the public, and the maps referred to and the action of the municipal authorities indicate an acceptance of this dedication on the part of the town and village, and later of the city of Buffalo, as the village from its incorporation accepted the streets as they- existed in the town, and the city also succeeded to the like rights and assumed the burdens of its municipal predecessor. . There are other resolutions and public proceedings on behalf of the public authorities, both of the village and of the city, which are referred to by the plaintiff as evincing a claim of ownership for street purposes to this property by the municipality. These extended down to 1853. It seems that early in the history of this property docks were constructed by the abutting owners covering the alleged streets, and these were, from the earliest period of which we have any knowledge, maintained and used by these owners, ignoring apparently any public right. The municipal authorities assumed to exercise control and dominion over these docks to the extent of regulating somewhat their construction, but more particularly requiring that they be kept in repair but always at the expense of the abutting owners.
[493] By deed, dated July 21, 1807, the Holland Land Company conveyed to Vincent Grant lot No. 78, which is easterly of Main street and north of the river. In 1815 Grant conveyed by warranty deed to Grosvenor, describing the premises by metes and bounds with its southerly boundary the north bounds of Water street, thus excluding the street. Title to this street was conveyed in 1829 by the Holland Land Company by quitclaim deed to one John W-Clark, who was then the owner of lot 78 in the line of deeds from Grant. A quitclaim deed of this strip had been, in 1825, given to Clark by the owners preceding him, accompanying a warranty deed of lot 78. That is, at this early date there may apparently have been no user of this so-called street by the public, but the fact that a street .had in some way been denoted in the deeds and on the map, deterred the transfer of the title to it by warranty deeds. In 1834 Clark parted with his title by warranty deed, including Front street in the conveyance and substantially by a separate description.' The conveyances follow this description until the title to a part of it was acquired in 1868 by the Western Transportation Company, which conveyed to the defendant’s lessor in 1891. In some of the conveyances prior to 1860 there .is a specific transfer of the wharf or dock, and in one of the conveyances in 1841 the following appears: “ subject to a street or highway called Front street, laid out, opened and used as a street lying between the building on Said premises and the Big Buffalo creek.” In the subsequent conveyance of the same year the clause is omitted, nor does it appear again, except that in one of the conveyances to the defendant in 1891 this clause appears:' “ Subject to the rights of the public, if any, in what was formerly known as Front street in front of said premises.”
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Spring, J. :
. The land in dispute at an early date was owned by the Holland Land Oompany. -The map received in evidence .of that company pertaining to this territory shows the present Main street which was designated thereon as Willinks avenue. It also shows an unnamed street extending easterly from Willinks avenue, abutting on, Buffalo creek, which stream is called in the testimony interchangeably Big Buffalo creek, or Buffalo river. There is no street appearing on this map westerly of Willinks avenue and north of the river until. Little'Buffalo creek is reached, which is a tributary of the river. [491] The lot on the easterly of Willinks avenue, and of which the disputed strip forms a part, is Ho. 78, while on the other side of the avenue it is designated as lot 84, and that lot extends to the Little Buffalo creek. From that creek Water street appears on the map extending along the front of the river to its mouth and also northeasterly abutting on Little Buffalo creek. This map obviously is the one to which reference is made in the deeds from the Holland Land Company. There was also produced a map made by Tobias Witmer, which is made evidence by an act of the Legislature (Laws of 1850, chap. 221). This map purports to be a part of an atlas of the city of Buffalo, transcribed from the original deed book or records of the Holland Land Company. This map also outlines a street, designating' it as Water street, one chain in width, extending along easterly from Willinks avenue and abutting on the river. Ho street is shown on this map as a continuation of Water street on the westerly side of the avenue. The town of Buffalo was created in 1810 (Laws of 1810, chap. 2) and by chapter 35 of the Revised Laws of 1813, authority was given to choose three commissioners of highways of the town, and by chapter 33 thereof these commissioners were empowered to enter of record in the town clerk’s office the roads of the town not already described and recorded. Pursuant to this statute a map was made and filed in the town clerk’s office following the Holland Land Company’s map referred to and delineating the street easterly of Main street -or Willinks avenue, but none on the westerly side of Main. In 1826, and after the village of Buffalo had been incorporated, the trustees of the village passed a resolution changing the name of the street easterly of Main street and abutting on the river to Front street and narrowing it to two rods in width. Along from 1842 to 1849 a surveyor named Lovejoy prepared a subdivision map of several of the wards of the city of Buffalo, and by resolution of the common council passed in February, 1849, one of its committees was authorized to purchase this map “ to be a sample for the remaining wards,” and this map was in accordance with this resolution filed as one of the maps of the city and subsequently used as a guide in making assessments. This map shows Front street extending along the northerly banks of the Buffalo liver and each side of Main street embracing all the lands which are the subject [492] of controversy in this action. By resolution of the hoard of trustees of the village before the incorporation of the city, as well as-subsequently, there has been some reference to and recognition of Front street as extending westerly of Main and fronting on the river. There are also other maps which were received in evidence portraying Front street as a street extending both sides of Main and including the disputed territory. These maps were.made and filed from 1840 to 1856, and were used and recognized to a greater or less degree by the city authorities. There also appear in the record copies of many maps which are denominated' assessment maps commencing back in 1842, extending through that and the .succeeding decade, which show Front street delineated on both sides of Main street and which were of service to the assessors in spreading the expenses for local improvements throughout the ■respective taxing districts benefited thereby. '
There is no claim that Front street or any other covering the land in dispute was ever laid out as a public street or highway. The contention of the plaintiff is that as to that portion of Front street lying east of .Main street, the making and filing of the map was a dedication of the easement to the public, and the maps referred to and the action of the municipal authorities indicate an acceptance of this dedication on the part of the town and village, and later of the city of Buffalo, as the village from its incorporation accepted the streets as they- existed in the town, and the city also succeeded to the like rights and assumed the burdens of its municipal predecessor. . There are other resolutions and public proceedings on behalf of the public authorities, both of the village and of the city, which are referred to by the plaintiff as evincing a claim of ownership for street purposes to this property by the municipality. These extended down to 1853. It seems that early in the history of this property docks were constructed by the abutting owners covering the alleged streets, and these were, from the earliest period of which we have any knowledge, maintained and used by these owners, ignoring apparently any public right. The municipal authorities assumed to exercise control and dominion over these docks to the extent of regulating somewhat their construction, but more particularly requiring that they be kept in repair but always at the expense of the abutting owners.
[493] By deed, dated July 21, 1807, the Holland Land Company conveyed to Vincent Grant lot No. 78, which is easterly of Main street and north of the river. In 1815 Grant conveyed by warranty deed to Grosvenor, describing the premises by metes and bounds with its southerly boundary the north bounds of Water street, thus excluding the street. Title to this street was conveyed in 1829 by the Holland Land Company by quitclaim deed to one John W-Clark, who was then the owner of lot 78 in the line of deeds from Grant. A quitclaim deed of this strip had been, in 1825, given to Clark by the owners preceding him, accompanying a warranty deed of lot 78. That is, at this early date there may apparently have been no user of this so-called street by the public, but the fact that a street .had in some way been denoted in the deeds and on the map, deterred the transfer of the title to it by warranty deeds. In 1834 Clark parted with his title by warranty deed, including Front street in the conveyance and substantially by a separate description.' The conveyances follow this description until the title to a part of it was acquired in 1868 by the Western Transportation Company, which conveyed to the defendant’s lessor in 1891. In some of the conveyances prior to 1860 there .is a specific transfer of the wharf or dock, and in one of the conveyances in 1841 the following appears: “ subject to a street or highway called Front street, laid out, opened and used as a street lying between the building on Said premises and the Big Buffalo creek.” In the subsequent conveyance of the same year the clause is omitted, nor does it appear again, except that in one of the conveyances to the defendant in 1891 this clause appears:' “ Subject to the rights of the public, if any, in what was formerly known as Front street in front of said premises.”
By deed bearing date June 19,1819, the Holland Land Company conveyed to Isaac Davis outer lot No. 84 which is the tract westerly of Main street and includes the strip in controversy on that side of Main street. The next conveyance is by the sheriff of one acre of the Davis tract, describing it by metes and bounds, with the southerly boundary Big Buffalo creek, which is the other name for Buffalo river. All the subsequent conveyances in the Davis line are bounded by the river, and no mention is made of any street or highway, and the defendant’s lessor acquired title through mesne conveyances from Davis in 1882 and 1883.
[494] The early maps of this part of the disputed land do not disclose any street, and there is, therefore, no pretense of a dedication by the Holland Land Company or by any of the early proprietors of the land. If the village or city acquired an easement which developed into a street or highway it has been by notorious, continuous and open user as a street, with the assent of the owners of the fee and by recognition, also open and intentional, by the public authorities. There are many resolutions and proceedings upon which the plaintiff relies as indicating its treatment, of this strip as a street, and as-they at times relate to the entire tract in controversy, we will consider them before taking up the conduct of the owners with reference to the piece extending from Main street westerly to what is" now known as Commercial street.
The village of Buffalo was incorporated in 1813 (Laws of 1813, chap. 106) and became a separate road district in 1826 (Laws of" 1826, chap. 162) and a city in 1832. November 30, 1827, one-Joseph Cleary, a. surveyor, was employed by the board of trustees tó ascertain .the location of Water street and other streets-along the northerly shore of Big Buffalo creek. Cleary made a report accompanying it with a map which was apparently adopted December 4, 1827, and Front street delineated thereon was declared to be a public street. The map is in evidence and shows Front-street west of the land now in controversy. • This is significant because the dedication, if any, made by the Holland Land Company, was long anterior to this time, and if there had been an acceptance of it and a user thereof, we should expect to find some acknowledgment of it or some indication that this was a street on this map or-survey instead of a formal location of Front street terminating at-its easterly boundary before the disputed strip is reached. This is further emphasized by the fact that Front street as portrayed on this map has been openly and confessedly used and occupied as a-public street from a very early-period. On the 20th of April, 1829, Certain streets in this locality Were laid out by resolution of the. board<6 in conformity to a plan annexed hereto.” The plan, while it shows Water street, Lloyd street and Prime street, all of which have been important in this litigation, does not depict any street-along the northerly shore of the river in this vicinity. Within a-month after the passing of. this resolution the Holland Land Com-[495] pony conveyed the fee of such street to Clark, who was the owner of lot 78 contiguous to the alleged street. A resolution of the trustees was passed March 20, 1830, providing that Front street and other streets “ be and are hereby laid out agreeable to the foregoing plan hereto annexed.” The plan shows Front street extending easterly along the north river - front, but no continuation of it west of Main street. A series of resoliitions were passed by the board of trustees March 20, 1830, permitting the-recording of certain conveyances providing the grantees undertook to construct a road in front of their respective premises along Big Buffalo creek. These resolutions are only significant as denoting that even then there was no highway on the ground along where Front street is now claimed to exist.
When Buffalo became a city the common council was vested with the control of its streets and of the wharves and docks within its limits. (Laws of 1832, chap. 179, § 31, subds. 1,13; Id. § 39.) By Laws of 1838, chapter 63, the charter was revised, section 13 thereof enlarging the authority of the common council hy giving that body “power to cause any wharf or dock in said city to be built, altered, repaired or rebuilt ” and assess the expense on the property benefited. After this there were many resolutions passed by that body regulating the construction and reparation of these docks. It early began to assert dominion over private docks to the extent of requiring their proper maintenance and repair. Even though owned by individuals these wharves were quasi-public in character in that they were used largely by the public and it was eminently proper that the municipal authorities should exercise supervision over them. We accordingly find frequent resolutions relating to the regulation of these docks, which action was entirely compatible with the ownership thereof by the abutting owners and which was intended for the better protection of the people who went upon this property. As a sample of these resolutions, one was passed December 22, 1837, directing that “ all the docks and wharves on the north side of the Big Buffalo Creek ” in this vicinity “ shall hereafter he built, constructed and repaired or rebuilt under the direction of the Common Council as a public highway.” The location of the front line and height of these docks is committed to the city surveyor and the street commissioner. If this resolution was in the exercise of the author. [496] ity of the common council to supervise the rebuilding or repair of these docks for the public welfare, it was within its power. If, however, by formal resolution, that body attempted to appropriate the property of the individuals for a street or for the use of the public, there was no warrant for the resolution, for the common council possessed no more power than a highway commissioner to wrest property from individuals. The charter (§ 41) provided a way by which a street could be established. Again, on April 19,1838, a resolution was passed by the common council directing a committee “ to inquire into the propriety of having the private docks on Buffalo Creek repaired,” which is a recognition of individual ownership in these wharves.
There are many resolutions of the' common council extending down to 1878, although after 1854 they are not numerous, relating to the construction or repair of the wharves, the lighting of Front street, the renumbering of the buildings thereon, and other matters pertaining to the safety of the public. Whenever repairs were directed to be made the expense thereof was invariably charged to the abutting owner. These resolutions at times recognized the docks as private property and at other times they were inconsistent with any private right. By resolution passed April 30, 1839, the street commissioner was directed “ to ascertain the width of space, if any there be, between the right of each individual or company "by deed, or otherwise, and the outer line established for the building of wharves on the north side of Big Buffalo Creek within this City, and report to the Council as soon as practicable.” Pursuant to this.resolution the street commissioner presented “a map and ■survey of the line of the lots on the northerly bank of Buffalo •Creek between Main and Commercial Streets.” A resolution was thereupon passed by the common council March 17,1840, declaring that this space “ is and the same be hereby declared a public highway, the same to he a continuation of Front Street.” Down to that time, so far as the. map and survey disclosed, lot 84 had ■extended to the river brink and no street was outlined. The action •of the common council was not a dedication of the land for a street because the essence of a dedication is the appropriation of the land for a specific purpose by the owner. The municipal body possessed no authority to take the land from the owner without compensa[497] tian and by proceedings which were defined by the statutes of the State.
These' resolutions and the action of the common council from time to time are of little aid- in arriving at the true status of this land unless we read them in connection with its actual user. "We will first consider the strip westerly of Main street to Commercial slip or street. As far back as the recollection of the witnesses extends there were docks and wharves strung along these pieces of land abutting on the river and constructed, maintained and used by the individuals who claimed to be riparian owners. As traffic on the lake increased, the importance of the harbor and of these docks was augmented. Early in the history of Buffalo the principal freight shipped by lake and railroad at these docks was flour, high wines and hides.. From 1850 to 1860 this business subsided and the shipments were of grain. The strip of land then became known as Central wharf, and it was the chief mart of the city. The Board of Trade had its office in a building on this wharf, and •during the season of lake navigation the business transacted was extensive and the dock was thronged with men during the hours of business. Each wharf extended to the river brink, and each lot owner operated and maintained his own dock as exclusively as the character of the business permitted; ■ his own craft landed at his own dock, or if other vessels used it that user was to unload freight consigned to him, or to take, on whatever he desired to ship. The whole alleged street was taken up with the wharves, which were twenty-five to thirty feet in width. As the business increased, a balcony was erected, and in the second stories of the buildings opening on this balcony the commission men had their offices and the business of the Board of Trade was conducted. Stairs led up from the docks to the balconies, those of the Board of Trade being wider than the others, and the veranda used by it was also extended out beyond that occupied by the individual owners. The heavy freight unloaded from the boats was piled up on the docks, leaving only a .small irregular space for people to walk along. The snubbing posts to which the hosts were tied extended into the wharf from two to -six feet, and with the freight and the stairways, and with the posts which supported the veranda, interfered with the. use to any extent [498] of these wharves by teams or vehicles. In fact, such user was rare. The .space claimed as Front street was, therefore, entirely taken up-with the docks, each contiguous or abutting owner apparently being-vested with the same title and occupancy as to'his building. Further along the wharf Prime slip was reached, which the street, if any. there was, crossed. There was no bridge for teams over this slip, and the only means of crossing at this point was a narrow foot bridge, which was not constantly kept up. The driving of carriages on the wharf was casual and intermittent, as must be obvious from the nature of the business and the manner of carrying it on. Mr. Manning, a witness on behalf of the plaintiff, in describing this use, testified: “I have seen a horse and buggy of a man that had an office there. He would drive the horse in there and put it in his store, or probably in the store that was unoccupied, if he had permission to do it from the owners. He would put it in there and keep it there until he wanted to go home- to dinner. But no strangers were in the habit of driving in there. It was not used as a means of thoroughfare going from any point to any point at all. The only horses that were driven in there were horses that were owned by the occupants of one of these offices, who wanted to take care of it until he wanted to take it to go away again.” • Mi*. Hazard, who' had been prominently identified with business on that wharf from 1847, testified :' “I don’t think I ever saw a dray on Central. Wharf, or an omnibus, or a carriage of any kind. There might have been at the extreme point at Main Street a few feet there, per^ haps 40 or 50 feet, where vessels might discharge rolling freight, and the drays back up from Main Street and take it on. But as to Central Wharf proper, in common or any part of it, the vicinity of the Board of Trade, which was about the center of it in distance, 50 feet below Main Street, I don’t think I ever saw a dray there, or any kind of a vehicle.” And again : “ When I first came here this property from Main Street to Prime Slip I knew as Central Wharf. It was known in the speech of people as Central Wharf altogether. I never heard Front Street mentioned until within the last two or three years, when this question seems to have been agitated. Prior to that time I never had heard of Front Street anywhere; not in that location. I can’t recollect where, if I heard it at all. I think it was started within the last two or three years.”
[499] Freight that was shipped to merchants or people other than those occupying these docks was unloaded at the public wharves at the foot of Main or Washington street, or at some other public wharf, and the passenger traffic was also carried on at these public wharves. The docks which comprise Central wharf were used as already stated by the owners and not by the public, except as incidental to the extensive business carried on upon them. The use of the so-called street, east of Main' street to Washington, differed but little from that already described relating to Central wharf, except that it was not so extensive. East of Main it was built in with permanent docks to the river’s edge, and they were occupied by the individual . owners to the exclusion of any use as a highway in the ordinary acceptation of that term. That people traveled over these docks without let or hindrance is true. That would be so over any dock whether public or private. The travel of the multitude along the platform of a railroad station does not impair the company’s title to the lands on which the station rests or burden the dominant estate with a servitude in favor of the public. The use is necessary to the passenger traffic which the company invites.
In 1868 the Western Transportation Company acquired title to a considerable portion of this land between Main street and Washington street, which is next east of Main. The traffic it carried on was extensive and its occupancy of the dock was exclusive. About 1883 the Board of Trade was transferred to another part of the city, and the business which for years had been so conspicuously identified with it ceased in a large measure. Upon the concentration of ownership of this long strip in the defendant’s lessor the docks were rebuilt at great expense and have since been used in connection with defendant’s railroad transportation business.
We cannot assent to the proposition that the plaintiff has acquired an- easement by prescription in this property west of Main street. For more than half a century the riparian owners have occupied this land repairing and maintaining the wharves. The chief value of each lot was due to its accessibility to this navigable river. It never dawned upon these owners during all this period that the city could destroy their wharves and prevent the use of this strip of land except for the passage of the traveling public. The city authorities never asserted any such right; never sought to inter[500] fere with the exclusive use to the river by each owner of the premises to the full width of his lot. The common council did ■ assume to regulate somewhat the repair of the docks. This it had a lawful right to do. (Langdon v. Mayor, 93 N. Y. 130; Matter of Application of Union Ferry Co., 98 id. 139, 156.) In the Langdon case the court says (at p. 161): “ The dock department under the act of 1871