Emott, J.
This cause was tried before me as a referee, and
the judgment from which the defendants appeal was entered by my direction. I have bestowed upon the argument made by the learned counsel for the appellants, and upon the authorities which he has adduced, careful examination and reflection, without being able to come to any different conclusions from those which I reached when the cause was tried. Perhaps I shall not be able to ’add any thing to 'the reasons which I then assigned [116]*116for the judgment, and I do not purpose to enter upon any further discussion of the authorities.. But since, while the court now are all agreed that this judgment should be affirmed, we differ, and perhaps materially, in our views of the questions involved in the cause, I will state as briefly as possible the grounds on which I think our decision should rest.
There were two questions- of fact in the cause: first, whether the Gouverneur heirs had done any thing, and what, to dedicate the strip of land in controversy to any public use; second, whether the public had done any thing, and what, to indicate their acceptance of the dedication. I had supposed that both these issues were disposed of at the trial, and the facts found clearly and explicitly, so that the ease might be decided upon its legal principles. So the counsel for both parties evidently thought, and therefore nothing but the conclusions of the referee are included in the case, and none of the evidence is put in by either party. I do not see how we can go behind those conclusions, or dispose of the present appeal except upon the basis of the facts found in the court below, and assuming these to be the facts of the case. Now these facts are, as to the dedication by the Gouverneurs, in the first place, that this strip of land was marked and mapped by their consent and direction as a public street by the name of Morris avenue, upon a map of the village of Cold Spring, made by one Bevan in 1850. There was no pretense that this map was made by or for the defendants or any public officers. That is no part of the case. Whether it was made by Bevan on his own account, or in the employment and by the direction of the Gouverneur family, is quite immaterial. As to this street it was their map; because this piece of ground was marked out and designated upon it as “ Morris avenue” by their direction; and that was as much their act as if Bevan had been solely employed by them or had made a map of their property only. There was another map of the village, earlier than Bevan’s, which is mentioned in' the pleadings and was introduced at the trial. What effect this might have had, or indeed what effect it ought to have had upon the questions in controversy here, it is impossible for us to determine, and cer[117]*117tainly it is unnecessary to discuss. The point is not made or presented by any exceptions or otherwise. Besides, the subsequent acts and declarations of the owner of this land, if they are unequivocal and sufficient, must be decisive. If the first map published did not afford evidence of an unqualified design to ■ dedicate this street, yet if that deficiency was supplied when Sevan’s map was put forth, then the case is so far complete, and the tenor and effect of the first publication is immaterial. Especially is this so when this latter map is considered in connection with the contemporaneous action of the Grouverneurs, which I am next to mention.
For in the next place, at or about the date of this map made by Be van, the Grouverneurs fenced this strip of land as a street and threw it open to public use, and so it remained until the plaintiff shut it up, in 1853. I think now, as I thought at the trial, that the evidence in the ease clearly established that this strip of land -was fenced and thrown open to public use, as well as designated upon a map as a public street, by these owners, with the intention of abandoning their entire dominion over it, and of bestowing upon the public the right to its use as a highway. Whether I was right then or now in this conclusion is not, I apprehend, a question, on the present appeal; because the act, and the intent which is a part of it, are acts expressly found as facts, and there are not only no exceptions to these conclusions, but none of the evidence before us from which to ascertain whether they are correct. Besides, I do not choose to rest my judgment upon a presumption drawn from principles of law purely, and in direct contradiction, not only to the facts found by the court below, but to what was manifestly the real intention of the parties. I do not choose to decide this case upon a presumed design not to make this a public street or highway, to be forced as it were upon the Grouverneurs and their acts by legal rules or inferences resulting from the situation of the lands. The fact is, I think, unquestionable, that they not only had, but manifested in the most explicit manner, the intention to open and dedicate this as a public street. I prefer to admit this, and to hold that their attempt was ineffectual, in conse[118]*118quenee of the situation and character of the road which they attempted. to dedicate, and from the effect of what I consider to be well settled rules of law applicable to such a case. Then if I was in error as to these legal rules and principles, that error can be corrected, and the ' original intention of the owner of these lands effectuated^ or the cause retried by different rules. And it strikes me that to say that the Gouverneurs must be presumed not to have intended to dedicate a public street or highway because this piece of land which they opened, fenced and declared to be such, was not a thoroughfare, is only saying indirectly what was expressly and directly enunciated in the judgment below, that such a street is not susceptible of dedication to public use as a highway. The intention of the owners of these lands is a fact, and it is proved and determined as such in the case before us, as well as the manner in which it was manifested and der dared. Whether that intention, any more than a public user of a road, can make that a highway or confer upon the public the rights of a highway in that which will not answer the settled definition of a highway, is the real question which I think ought to be decided in this case.
. Hor is there any more doubt as to the facts of the case bearing upon the second issue—the acceptance of this dedication or attempted dedication. It was fonnd, and decided by the referee, that this strip of land “ was used by the public, by walking and driving upon the same, and by going up to the enclosure of George P. Morris and returning over the same until it was closed by the plaintiff.” This user was by the public, by any body and every body. It was not, as has been suggested, by the occupants of adjoining lands, for there were none until the plaintiff built, and then shut up the road. It is said the answer and reply show that the road did not in fact run to George P. Morris’s land, because the one alleges and the other admits that it stopped at a point sixteen feet' from his line. As the evidence is not in the case I am unable to say which is correct, the answer or the report. If the question had been considered of any consequence it would have been pointed out at the trial, and now, I take it, we must assume the referee’s report to be [119]*119true. But it certainly is entirely immaterial whether this road stopped at the line of George P. Morris or sixteen feet south of it, or in the lands of the plaintiff, or of the Gouverneurs, or of any body else, so that it stopped short of reaching and running into another highway.
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Emott, J.
This cause was tried before me as a referee, and
the judgment from which the defendants appeal was entered by my direction. I have bestowed upon the argument made by the learned counsel for the appellants, and upon the authorities which he has adduced, careful examination and reflection, without being able to come to any different conclusions from those which I reached when the cause was tried. Perhaps I shall not be able to ’add any thing to 'the reasons which I then assigned [116]*116for the judgment, and I do not purpose to enter upon any further discussion of the authorities.. But since, while the court now are all agreed that this judgment should be affirmed, we differ, and perhaps materially, in our views of the questions involved in the cause, I will state as briefly as possible the grounds on which I think our decision should rest.
There were two questions- of fact in the cause: first, whether the Gouverneur heirs had done any thing, and what, to dedicate the strip of land in controversy to any public use; second, whether the public had done any thing, and what, to indicate their acceptance of the dedication. I had supposed that both these issues were disposed of at the trial, and the facts found clearly and explicitly, so that the ease might be decided upon its legal principles. So the counsel for both parties evidently thought, and therefore nothing but the conclusions of the referee are included in the case, and none of the evidence is put in by either party. I do not see how we can go behind those conclusions, or dispose of the present appeal except upon the basis of the facts found in the court below, and assuming these to be the facts of the case. Now these facts are, as to the dedication by the Gouverneurs, in the first place, that this strip of land was marked and mapped by their consent and direction as a public street by the name of Morris avenue, upon a map of the village of Cold Spring, made by one Bevan in 1850. There was no pretense that this map was made by or for the defendants or any public officers. That is no part of the case. Whether it was made by Bevan on his own account, or in the employment and by the direction of the Gouverneur family, is quite immaterial. As to this street it was their map; because this piece of ground was marked out and designated upon it as “ Morris avenue” by their direction; and that was as much their act as if Bevan had been solely employed by them or had made a map of their property only. There was another map of the village, earlier than Bevan’s, which is mentioned in' the pleadings and was introduced at the trial. What effect this might have had, or indeed what effect it ought to have had upon the questions in controversy here, it is impossible for us to determine, and cer[117]*117tainly it is unnecessary to discuss. The point is not made or presented by any exceptions or otherwise. Besides, the subsequent acts and declarations of the owner of this land, if they are unequivocal and sufficient, must be decisive. If the first map published did not afford evidence of an unqualified design to ■ dedicate this street, yet if that deficiency was supplied when Sevan’s map was put forth, then the case is so far complete, and the tenor and effect of the first publication is immaterial. Especially is this so when this latter map is considered in connection with the contemporaneous action of the Grouverneurs, which I am next to mention.
For in the next place, at or about the date of this map made by Be van, the Grouverneurs fenced this strip of land as a street and threw it open to public use, and so it remained until the plaintiff shut it up, in 1853. I think now, as I thought at the trial, that the evidence in the ease clearly established that this strip of land -was fenced and thrown open to public use, as well as designated upon a map as a public street, by these owners, with the intention of abandoning their entire dominion over it, and of bestowing upon the public the right to its use as a highway. Whether I was right then or now in this conclusion is not, I apprehend, a question, on the present appeal; because the act, and the intent which is a part of it, are acts expressly found as facts, and there are not only no exceptions to these conclusions, but none of the evidence before us from which to ascertain whether they are correct. Besides, I do not choose to rest my judgment upon a presumption drawn from principles of law purely, and in direct contradiction, not only to the facts found by the court below, but to what was manifestly the real intention of the parties. I do not choose to decide this case upon a presumed design not to make this a public street or highway, to be forced as it were upon the Grouverneurs and their acts by legal rules or inferences resulting from the situation of the lands. The fact is, I think, unquestionable, that they not only had, but manifested in the most explicit manner, the intention to open and dedicate this as a public street. I prefer to admit this, and to hold that their attempt was ineffectual, in conse[118]*118quenee of the situation and character of the road which they attempted. to dedicate, and from the effect of what I consider to be well settled rules of law applicable to such a case. Then if I was in error as to these legal rules and principles, that error can be corrected, and the ' original intention of the owner of these lands effectuated^ or the cause retried by different rules. And it strikes me that to say that the Gouverneurs must be presumed not to have intended to dedicate a public street or highway because this piece of land which they opened, fenced and declared to be such, was not a thoroughfare, is only saying indirectly what was expressly and directly enunciated in the judgment below, that such a street is not susceptible of dedication to public use as a highway. The intention of the owners of these lands is a fact, and it is proved and determined as such in the case before us, as well as the manner in which it was manifested and der dared. Whether that intention, any more than a public user of a road, can make that a highway or confer upon the public the rights of a highway in that which will not answer the settled definition of a highway, is the real question which I think ought to be decided in this case.
. Hor is there any more doubt as to the facts of the case bearing upon the second issue—the acceptance of this dedication or attempted dedication. It was fonnd, and decided by the referee, that this strip of land “ was used by the public, by walking and driving upon the same, and by going up to the enclosure of George P. Morris and returning over the same until it was closed by the plaintiff.” This user was by the public, by any body and every body. It was not, as has been suggested, by the occupants of adjoining lands, for there were none until the plaintiff built, and then shut up the road. It is said the answer and reply show that the road did not in fact run to George P. Morris’s land, because the one alleges and the other admits that it stopped at a point sixteen feet' from his line. As the evidence is not in the case I am unable to say which is correct, the answer or the report. If the question had been considered of any consequence it would have been pointed out at the trial, and now, I take it, we must assume the referee’s report to be [119]*119true. But it certainly is entirely immaterial whether this road stopped at the line of George P. Morris or sixteen feet south of it, or in the lands of the plaintiff, or of the Gouverneurs, or of any body else, so that it stopped short of reaching and running into another highway. That is all that is material, and that is beyond dispute.
And it is equally beyond dispute that there have been no formal acts of the public authorities, no laying out or recording by the commissioners of highways or the defendants acting as such, if any such acts are necessary to complete a dedication. The acceptance is made out here, if it is made out at all, by user on the part of the public. Upon this part of the case my conviction is clear and decided, that when there has been an unequivocal dedication by the owner of lands to the public, for use as a highway, manifested by acts and declarations, and the road so dedicated is susceptible of public use or passage, so as to be made or become a highway, and has been openly used in pursuance of the dedication, no formal act of acceptance by the public authorities is necessary to give to the public—to every person in the community—a right to its unrestricted use, and that not as an easement or appurtenance to adjoining lands, or as a private right, but as a public right, requiring no interest in the neighboring property, or even business with its occupants, to justify its exercise. The very able opinion of Mr. Justice Wright in the. case of Clements v. West Troy, (10 How. Pr. R. 199,) is entirely satisfactory to my mind upon this question, and I can add nothing to his reasoning. I will only observe that it is not the question now, any more than it was in that case, whether commissioners of highways can be compelled to maintain and repair a road which has become public only by the dedication of the owner, accepted by open and common use. There is a distinction between a free and public right of passage or way over lands, and a statutory highway, which the public authorities are bound to support. I understand such a distinction to be recognized in the Oswego case, (2 Selden, 257,) which was cited in the court below, and that the public officers are not bound to assume the burden because [120]*120the public enjoy the benefit. At all events, here is no attempt to force such a burden upon these officers; they come in voluntarily and attempt to protect the right of the public to the use of what they claim has become a public highway by dedication. It might perhaps admit of some doubt, whether the defendants are clothed with right and authority to interpose to enforce the rights of the public in a road not strictly within the jurisdiction of commissioners of highways. But that is a question not, I think, now before us, and upon which I do not intend to pass.
I think the difficulty in the way of the defendants in this case is, that the road in question could not be made a highway, so that the public could acquire a right of free and indiscriminate passage, such as they could assert, or the defendants protect. It is, I suppose, settled that such a road could not be made a highway by laying out or other action of the public authorities. So it has certainly been held in this district. I cannot see how that which cannot be made a highway by the legal action of the public authorities, under the statutes, can become such by dedication. And it must be remembered that the right asserted by the defendants was a public right; the dedication which they claimed was of a highway, and no other right of a different character, or of a less ’ extent, could be invoked in this action, if any such exist. Whether the acts of the Gouverneurs were such as to give to any individual a right of passage over this land, or to have this so called avenue kept open and unobstructed, are questions which we are not now called to determine, and upon which our present decision will have no effect. The observation of an eminent English judge, to the effect that these closed passages or streets should not be allowed to become traps to catch trespassers, has undoubtedly great force, in its proper application. But that remark was made in reference to private rights alone, and where these only were in question. It is not necessary in order to protect individuals in any proper use of ingress and egress to lands or property adjoining such places, that the means of such access should be declared or become a public highway. On the [121]*121other hand, the danger is that by such an application of the doctrine of dedication as is here contended for, such places, or “ courts,” as they are sometimes called in cities, may become traps for their owners or purchasers. There are estates in the city of New York, or perhaps the union of lots of two or three owners, fronting on and opening into great thoroughfares, extending back for a very considerable distance, built up around three sides of an open court or square thus formed, leaving the fronts open to the street for the convenience of the te.nants of the various offices and apartments in the buildings. Are we prepared to decide that the acts of the owners of such property have made these lots a part of the public street, dedicated them as a highway and forfeited the right to their occupation or control ? Why not, however, if such a cul de sac as this can become a public highway by opening and common use ? The persons traversing such a court or place in a great city are a thousand-fold more numerous, more constant and diversified than will ever enter the street in question. Here the opening is as free and unqualified without obstruction to a public thoroughfare, and it is designated by a name indicating the express purpose of common user. Where does the analogy fail, unless in the want of marking and naming as an “avenue” on a published map, which we have in the case at bar? But I think we should hesitate to hold, in any such case, that any designation by the name of a court' or public place, any opening to public or private convenience, any use of such a court by all who might be attracted by business or curiosity to the buildings or apartments to which it gave access, would deprive the owner of the land of the right, upon extinguishing all private rights of passage and all estates to which any such right* might be appurtenant, to resume his dominion of his property, to close up entirely the court or square, or to erect upon it any building which he saw fit. And if so there, why not here ? The true ground upon which these cases are to be put is, that in them all is wanting one thing that is essential to a public right or a public use of a road or way, and that is, that it should be a thoroughfare; that it should not be the means merely of access to the property of [122]*122private persons, but the means of passage for the whole community from one public place to another. Without this, whatever private privileges may be created, no public rights arise.
I do not purpose to enter into any detailed examination of the additional authorities furnished to the court, on this appeal, by the assiduity of the learned counsel for the appellants, and not adverted to in the opinion in the court below. It is enough to say that I do not discover in any of them, after an attentive examination, any assertion or decision that a road which is not a thoroughfare can be, or be made a highway.
For the reasons which I have thus rapidly given, I am satisfied that the decision was right. In the views which I have expressed the presiding justice concurs, and we are all agreed that the judgment should be affirmed. ^
Brown, P. J., concurred.
S. B. Strong, J.
The referee finds that the former owner
of the strip of land now claimed by the defendants as a public highway, caused it to be opened and fenced with the intention of dedicating the same to the use of the public as a highway, and that the same was mapped and designated as a highway, by their consent and direction, upon the map of the village of Cold Spring, made by one Bevan. But whether the surveyor was employed by such owners or by the public authorities of the village, is not stated by the referee. The plaintiff alleges, in his reply, that the map was made by Bevan on his own private account. The evidence before the referee is not reported, and we have nothing definite to show whether the surveyor acted in a public, or in his private, capacity. We cannot, therefore, assume that his conduct evinced any determination on the part of the public, to accept the proposed dedication, if indeed any was designed.
Clearly, an intent to dedicate land to the public use is insufficient, of itself, to constitute a valid dedication. It must be accompanied by acts which designate and open the land for the public use. A mere designation in a private conveyance, is [123]*123not enough to constitute a dedication, at least in rural districts. (Badeau v. Mead, 14 Barb. 328.) Why it should be considered as having that effect in cities, I could never understand. A private conveyance will undoubtedly confer rights upon the parties, but not upon strangers, (and as to that the public are strangers,) except by way of remainder. It may evince an intention, but that is all, so far as the public is concerned. Throwing the land open by fencing it on each side, and not enclosing it by gates, would, unexplained, go far towards establishing a dedication. But even those circumstances might not be conclusive ; and it seems to me that they were not, in this case. The supposed avenue did not extend entirely through the land of the owners. It stopped some 16 feet before reaching the land of General Morris. It did not cover, or extend to any public highway or street. It did not touch the land of any other person. The inference from this would seem to be that the proposed avenue was designed for the use of those only who should purchase lots bordering upon it. This inference would seem to be supported by a memorandum upon a lithographed map of the village, made previous to the spring of 1852. That states that the lands designated thereon for streets, avenues, public squares and other public purposes, are owned by the proprietors as private property, with the right of changing or discontinuing such streets, &c. But when a lot is sold fronting on any street not opened, the purchaser will be entitled to a right of way over the same from said lot to the nearest public highway; the right of sale being in all cases retained when not specially conveyed. This map anteceded Sevan’s, and is at least as reliable, to show the intent of the land owners. It was competent for them to throw their lands open for private or public use, and if that was done purely for private use, it would not create a public right.
But a proposed dedication is not, is my opinion, valid unless it is accepted by the public. There are many serious responsibilities upon the public officers having the charge of public highways, and when they are in cities or chartered villages, ppon the corporation, which cannot, and should not, be devolved [124]*124upon them solely by individual action. It would be an anomaly if private individuals could, by their own act, create a public right, and thus coerce a public duty. There must be something more—sufficient at least to indicate the., assent of the public. Such assent would be clearly manifested by the exercise of a control over the dedicated property by the officers selected and entrusted by the people to manage and superintend congenial subjects. So, too, it would be indicated by common user under circumstances, and in a manner, evincing a claim of right, as distinguished from a mere license. But the circumstances should be strong to show that what is done is under title, and not by permission, in order that what has been allowed from kindness should not be converted into a thankless and irrelievable burthen. The referee finds that the strip of land in question was used by the public from the time it was opened and fenced, by walking and driving upon the same, and going up to the inclosure of Greorge P. Morris, and returning over and by the same, until it was closed by the plaintiff. He does not explain, and it is difficult to conceive, how it could be used up to the land of Greorge P. Morris, when it is admitted in the defendants’ answer that it did not reach that land by a distance of sixteen feet. And as to any other usage, it may have been, and probably was, by the owners of the adjoining lots, who claimed under those who are alleged to have opened the avenue. There is no pretense that any public officer entrusted with the management of the public highways in the village, ever interfered in the matter. I conceive, therefore, that if any dedication was designed by the owners of the land, there is not sufficient to show that it was accepted, by or in behalf of the public, and that it was therefore incomplete, and it was competent for the owners to resume the entire property.
[Kings General Term,
October 14, 1856.
Without expressing any opinion upon the other question involved, I think that the judgment should be affirmed.
Judgment affirmed.
Brown, S. B. Strong and Emott, Justices.]