Hamilton v. Village of Owego

42 A.D. 312, 59 N.Y.S. 103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1899
• Status: Published

Opinion

Herrick, J.:

There is no claim upon the part of the appellant in this case that the strip of land in question was ever dedicated by the owners as a public highway, or accepted as such by the village authorities. The claim is, that it became a highway by prescription.

I do not think that the evidence establishes a highway by prescription, or that there was sufficient evidence to justify a finding by the referee to that effect.

The use by the public was not adverse to the title of the plaintiffs or their predecessors in title. ¡

The most that the evidence establishes in regard to the way in question, is, that it was opened by the owners of the land through which it passes for their own use, and that they permitted people generally to travel over it for various purposes; that does not constitute it a highway by prescription, as has been held in Speir v. Town of New Utrecht (49 Hun, 294; affd. in 121 N. Y. 420; appd. in People v. Underhill, 144 id. 316, and Palmer v. Palmer, 150 id. 139).

The judgment should, therefore, be affirmed.

All concurred, except Parker, P. J., not sitting.

Judgment affirmed, with costs.