De Witt v. Village of Ithaca

22 N.Y. Sup. Ct. 568

• Court: New York Supreme Court
• Decided: November 15, 1878
• Status: Published

Opinion

Bockes, J.:

The question presented on this appeal relates solely to the law

of dedication, and the facts are clearly, and, as we think, sufficiently certified to us for an application of well-settled principles. First. In regard .to the rectangular piece of land described in the complaint, and known as “Washington Park,” it seems that the premises formed part of a farm or considerable tract of land owned by Simeon DeWitt, the father of the plaintiff, lying within the limits of the village of Ithaca; and that in 1831 such owner laid out a portion of the promises into lots, blocks and streets, and made a map thereof and numbered the lots, and also designated thereon the rectangular piece above referred to, very manifestly for public enjoyment as a village park. Mr. DeWitt, until his death, which occurred a few years thereafter, recognized the map, and made it a basis for conveying lots thus laid out and plotted; and afterwards, to the present time, those having charge of and owning the premises immediately surrounding said park have recognized it in its public use, and have conveyed lots as designated on the map, referring thereto in the conveyances, and this has been the general action of those claiming title from and through Mr. DeWitt, the original owner. So, too, as early as 1848 or 1850 the municipal authorities assumed possession and control of the plot for public use, and continued such possession and use to the present time, having ornamented and improved it, and in all respects controlled it and used it as a public square or park. Now, the settled rule of law applicable to the case is this, that when the owner of a tract of land lays it out into village lots, intersected with streets and alleys, and with public squares, such streets alleys and squares are thereby dedicated to public use, to the extent and as designated on the map, where conveyances are made having reference to such designation. So it was said in Post v. Pearsall (22 Wend., 425, 435), that where the owner of land has laid out village lots intersected with roads and public squares, it has been repeatedly held, and very justly, by various judicial tribunals, that such roads and public squares are dedicated to public use. (See cases cited on page 435.) In the case of conveyances referring to the map, the latter becomes an essential part of the deed itself; and as between the parties to. the conveyance the use of the streets, alleys and squares laid down on the map, becomes an easement annexed to the estate granted. (Taylor v. Hopper, 62 N. Y., 649, and cases there cited.) As between the parties, the dedication is complete ou the delivery of the conveyance. As to the public, there must be an acceptance ; and this will be held effectual on adoption and user by the public authorities. (Matter of Ingraham, 11 N. Y. Sup. Ct., 4 Hun., 495 ; Strong v. City of Brooklyn, 68 N. Y., 1; Niagara Falls Susp. B. Co., v Bachman, 66 N. Y., 269.) Here the acceptance by the municipal authorities seems quite conclusive before there was any revocation ; and indeed there is nothing before us indicating an intended revocation by any one before bringing this •action. Wo think the case very conclusively against the plaintiff’s right of action as regards the plot known as “ Washington Park.”

And so as to the other two plots known as La Fayette Park and Clock Factory Park, they were laid down on the map made in 1835, by It. V. DeWitt, executor of the last will and testament of Simoon DeWitt, deceased, who thereafter made conveyances of lots designated thereon, under a power of sale conferred on him by the will. After the making and filing of this map, the plaintiff, William L. DeWitt, by several conveyances, recognized the map and made grants with particular reference thereto. These acts, as wo have seen by the above authorities, operated as a dedication binding on him of those plots laid out on the map for public use as parks, and the dedication became binding and conclusively operative upon him so soon as the municipal authorities accepted of the dedication and adopted them by public use. Even if there were others interested in the property, he was concluded from gainsaying the effect of his own acts. We have no difficulty in reaching the conclusion that there was a dedication of the three ■plots to public use; and further, as the referee has found, that by the acceptance of such dedication by the village authorities, the same became perfected and irrevocable against any and all claim which the plaintiff can make, affecting, the easement to be enjoyed by the public.

We have not found it necessary to examine the question whether there was not a legal and effectual dedication of the second and third plots described in the complaint, by the action of the executor in his execution of the power of sale conferred on him by Simeon DeWitts’ will. It is urged that, admitting a valid and effectual dedication, then the plaintiff should have judgment for the possession, subject to the easement, and we are cited to authorities in support of this position. But it will be found that when such judgment has been allowed, there has been some unauthorized or unlawful action by the defendant against the plaintiff’s rights, some occupation greater than an exercise of lawful use of the ■premises by the defendant. Certainly here, as it was found, there .was no unlawful entry, no trespass upon the plaintiff’s proprietary rights, no unlawful occupation or withholding of posses.sion. The right of action in ejectment was not, therefore, established.

We are of the opinion that the complaint was properly dismissed, and that the judgment should be affirmed.

Learned, P. J., concurred; Boardman, J., not acting.

Ordered accordingly.