By the Court, James C. Smith, J.
This was an . action for trespass on lands. The defendant justified, as street commissioner of the city of Rochester, claiming that the' premises were a public street. The cause has been tried twice. On the first trial, the jury, under the direction of the court, rendered a verdict for the defendant, which was set aside at general term. (49 Barb. 176.) On the second trial, the case was submitted to the jury, and resulted in a verdict for the defendant. A motion was made for a new trial, on the judge’s minutes, which was granted, and an appeal was taken from the order, on which the cause now comes on to be heard.
The plaintiff" proved that the premises in question were conveyed by William J. McCracken to Milton Ingersoll, by quit-claim deed, dated the 14th November, 1850; that soon afterwards, Ingersoll placed a house on the premises and rented it; that on the 8th August, 1857, he executed a mortgage, which was assigned to the plaintiff on the 21st February, 1865, and foreclosed, and the premises bid in by him on the 20th May, 1865; and that the plaintiff was in possession in the spring of 1865, when the defendant tore down the fences. The deed to Ingersoll referred [445] to a map of McCrackenville, made by John Barbean, as surveyor, December 18, 1826. The defendant proved said map, which was signed by David McCracken and Charles Perkins, who were admitted, by the plaintiff, to have then been the proprietors of the tract, and was recorded in Monroe county clerk’s office, the 18th September, 1827. The tract covered by the map was laid out thereon into village lots and streets, and the premises in question were included in what was designated on the map as a street, called Burns street, which was adjoined on the west by several of said lots, and which was intersected by Brisbane, Champion and Perkins streets on the west, and Factory street on the east. It was admitted, that David McCracken died, in 1842, intestate, and leaving eight heirs at law, of whom the said William J. McCracken was one. The defendant then examined several witnesses, whose testimony, he claimed, tended to show that Burns street, or a portion of it, as laid down on the map, was used as a public street, continuously, from 1832 to the time when Ingersoll erected the house, which was about the year 1853; that the house occupied but a part of the width of said street, and the part not so occupied, continued to be so used until the year 1858, when the public authorities of the city of ¡Rochester, having charge of the streets, tore down said house, with the consent of Ingersoll or his agent, and worked and improved the street, including the premises in question, and had the same under their control until the plaintiff took possession in the spring of 1865. The.testimony in respect to its use by the public, showed that it was principally used as a means of passage between Factory street on the east, and Perkins and Champion streets on the west, and that the portions of the street not necessarily traversed in such passage, were used but very little, if at all. The premises in question were situated between Perkins and Champion streets, and nearly opposite the point where Factory street entered Burns. They were [446] necessarily crossed in going, from Perkins street to either Champion or Factory street by way of Burns, and there was evidence tending to show that in going from Champion to Factory street it was necessary to traverse a part of the premises in question.
The judge charged the jury that the acts of the proprietors in plotting the ground and recording the map, constituted a proposed dedication of all the ground specified as streets to the public; that if the street was formally accepted by the city authorities, or if it was open and used as such by the public, that was an acceptance of such dedication; that the proprietors could revoke the dedication at any time before the public had acquired rights to the proposed street by some corporate or official act, or by user; that the user in such case ought to be for such a length of time that the public accommodation and private rights might be affected by a revocation; and that if Burns street was used and occupied for any continuous period of time, by distinct and unequivocal use of it on the part of the public at large, then it would become a street, and that would amount to an adoption of the dedication.
The court further charged that it was not a sufficient user of this piece of ground to make it a public highway, to cross it, or in going from Champion to Factory street to turn down through it, or to use it as a practical extension of Champion street, but that the jury must find it was used its entire length as a street ; not that every part and parcel of the street must be used, but it must be used and regarded as a street.
The court further charged that the statute of 1813, (2 R. L. p. 277, ch. 33, § 23,) is applicable to this case, and that the street must have been opened and worked within six years after its dedication, to make it a public highway, and that if not so opened and worked, it ceased to be a highway. ■
[447] The two portions of the charge last above stated, were excepted to by the defendant’s counsel.
Upon the case stated, it is obvious that the question raised by the motion for a new trial, and involved in this appeal, is whether the testimony, in any proper view of it, warrants the conclusion that there was, at any time, an acceptance, by public user or official action, of the proposed dedication. But before discussing that question it is necessary to decide upon the correctness of the charge, that the street must have been opened and worked within six years after its dedication, to make it a public highway, as if that instruction is right, it limits the discussion to a very narrow range.
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By the Court, James C. Smith, J.
This was an . action for trespass on lands. The defendant justified, as street commissioner of the city of Rochester, claiming that the' premises were a public street. The cause has been tried twice. On the first trial, the jury, under the direction of the court, rendered a verdict for the defendant, which was set aside at general term. (49 Barb. 176.) On the second trial, the case was submitted to the jury, and resulted in a verdict for the defendant. A motion was made for a new trial, on the judge’s minutes, which was granted, and an appeal was taken from the order, on which the cause now comes on to be heard.
The plaintiff" proved that the premises in question were conveyed by William J. McCracken to Milton Ingersoll, by quit-claim deed, dated the 14th November, 1850; that soon afterwards, Ingersoll placed a house on the premises and rented it; that on the 8th August, 1857, he executed a mortgage, which was assigned to the plaintiff on the 21st February, 1865, and foreclosed, and the premises bid in by him on the 20th May, 1865; and that the plaintiff was in possession in the spring of 1865, when the defendant tore down the fences. The deed to Ingersoll referred [445] to a map of McCrackenville, made by John Barbean, as surveyor, December 18, 1826. The defendant proved said map, which was signed by David McCracken and Charles Perkins, who were admitted, by the plaintiff, to have then been the proprietors of the tract, and was recorded in Monroe county clerk’s office, the 18th September, 1827. The tract covered by the map was laid out thereon into village lots and streets, and the premises in question were included in what was designated on the map as a street, called Burns street, which was adjoined on the west by several of said lots, and which was intersected by Brisbane, Champion and Perkins streets on the west, and Factory street on the east. It was admitted, that David McCracken died, in 1842, intestate, and leaving eight heirs at law, of whom the said William J. McCracken was one. The defendant then examined several witnesses, whose testimony, he claimed, tended to show that Burns street, or a portion of it, as laid down on the map, was used as a public street, continuously, from 1832 to the time when Ingersoll erected the house, which was about the year 1853; that the house occupied but a part of the width of said street, and the part not so occupied, continued to be so used until the year 1858, when the public authorities of the city of ¡Rochester, having charge of the streets, tore down said house, with the consent of Ingersoll or his agent, and worked and improved the street, including the premises in question, and had the same under their control until the plaintiff took possession in the spring of 1865. The.testimony in respect to its use by the public, showed that it was principally used as a means of passage between Factory street on the east, and Perkins and Champion streets on the west, and that the portions of the street not necessarily traversed in such passage, were used but very little, if at all. The premises in question were situated between Perkins and Champion streets, and nearly opposite the point where Factory street entered Burns. They were [446] necessarily crossed in going, from Perkins street to either Champion or Factory street by way of Burns, and there was evidence tending to show that in going from Champion to Factory street it was necessary to traverse a part of the premises in question.
The judge charged the jury that the acts of the proprietors in plotting the ground and recording the map, constituted a proposed dedication of all the ground specified as streets to the public; that if the street was formally accepted by the city authorities, or if it was open and used as such by the public, that was an acceptance of such dedication; that the proprietors could revoke the dedication at any time before the public had acquired rights to the proposed street by some corporate or official act, or by user; that the user in such case ought to be for such a length of time that the public accommodation and private rights might be affected by a revocation; and that if Burns street was used and occupied for any continuous period of time, by distinct and unequivocal use of it on the part of the public at large, then it would become a street, and that would amount to an adoption of the dedication.
The court further charged that it was not a sufficient user of this piece of ground to make it a public highway, to cross it, or in going from Champion to Factory street to turn down through it, or to use it as a practical extension of Champion street, but that the jury must find it was used its entire length as a street ; not that every part and parcel of the street must be used, but it must be used and regarded as a street.
The court further charged that the statute of 1813, (2 R. L. p. 277, ch. 33, § 23,) is applicable to this case, and that the street must have been opened and worked within six years after its dedication, to make it a public highway, and that if not so opened and worked, it ceased to be a highway. ■
[447] The two portions of the charge last above stated, were excepted to by the defendant’s counsel.
Upon the case stated, it is obvious that the question raised by the motion for a new trial, and involved in this appeal, is whether the testimony, in any proper view of it, warrants the conclusion that there was, at any time, an acceptance, by public user or official action, of the proposed dedication. But before discussing that question it is necessary to decide upon the correctness of the charge, that the street must have been opened and worked within six years after its dedication, to make it a public highway, as if that instruction is right, it limits the discussion to a very narrow range.
The statute of 1813, on which the charge was based, was in these words : “ If any public highway, already laid out, or hereafter to be laid out, shall not be opened and worked within six years after the passing of this act, or from the time of its being so laid out, the same shall cease to be a public highway or road for any use, intent or purpose whatsoever.” The act, of which this provision is a part, is entitled “An act to regulate highways,” and it contains general provisions respecting the duties of town commissioners of highways, and among other things, as to the laying out of public highways, but it does not speak of highways dedicated to the public use. The language of the section above transcribed, as well as the context, very plainly indicates that the provision had no relation to highways dedicated by the owners themselves to the use of the public, but was intended to apply exclusively to those laid out by the proceedings authorized by the act, in which lands could be taken without the owner’s consent. (It appears to have been passed upon the idea, that in the case of a highway laid out by proceedings in invitum, it was but just that the land should revert to the owner, if not used by the public as a highway in a reasonable time, and the limit of such reasonable time was fixed at six [448] years; whereas, in the case of a highway by dedication, ' there was no need of such a provision, as the proprietor could revoke the proposed dedication, at any time before acceptance by the public.) The section was adopted in the revision of 1830, (1 R. S. 520, § 99;) and has continued without material alteration, until 1861, when it was ' amended, in several respects, and among others, by inserting after the words “already laid out,” the words “and dedicated to the use of the public.” This is a very explicit declaration by the legislature, that in their opinion the original section did not cover the case of a highway by dedication. Whether the section, in its present shape, applies to highways, by “dedication” in the technical sense of the term, may admit of a question, but it does not arise in this case, and therefore will not be considered.
The statute of 1813, being inapplicable to the case, the question to be considered is, whether there is any evidence of an acceptance of the dedication. It may be examined under two heads. (1st.) Public use. (2d.) Formal acts of the officers of the corporation.
In determining whether there is sufficient evidence of user to amount to an acceptance, it is to be borne in mind that this is not a case in which it is necessary to show an acquiescence on the part of the owner, in the free use and enjoyment of the way as a public road, for a sufficient length of time, to raise the presumption of a grant or dedication. The evidence of a dedication consists of clear, unequivocal and decisive acts of the proprietors, amounting to an explicit manifestation of their will to make a permanent abandonment and dedication of the land, which of themselves, are sufficient to establish a dedication, without any intermediate period. Under such circumstances, (to quote from the charge of the judge,) “if the land dedicated, was used and occupied for any continuous period of time, by distinct and unequivocal use of it on the part of the public at large, that would [449] amount to an adoption of the dedication,” or, as was also said in the charge, “the user in such case ought to be for such a length of time, that the public accommodation and private rights might be affected by a revocation.”
In view of these rules, it can hardly be held as matter of law that there was no evidence whatever before the jury, of an acceptance by public user. There was abundant testimony, tending to show a continuous use of Burns street as a public highway, from 1832, to the very time of the erection of the fence in 1865, the removal of which is the alleged trespass complained of. It is said, however, that most of the travel proved, was confined to that portion of the street which was necessary for transit from Champion to Factory street. That is true; but for that purpose, the line of travel was not directly across Burns street. It was necessary to turn into that street, and go along it a distance of from twenty-five t.o seventy feet, according to the various estimates of the witnesses, south of the south line of Champion street, before turning into Factory street. Besides, for aught that appears, Burns street was open its whole length, as mapped, and the testimony tends to show that for some distance, it was fenced out, and that other portions of it besides that lying between Champion and Factory street were used as occasion required. The structures erected by Ingersoll did not block up the street; they merely encroached on it, and the travel went on as before. That portion of the street, which constitutes the locus in quo, was used as a highway continuously until 1853, when Ingersoll put his house on it, and subsequently that part of the premises not occupied by him, continued to be so used till 1858, when the house was removed by the city authorities, with his consent. Under these circumstances, the jury were justified in finding an acceptance of the dedication by public user. ■The testimony, instead of showing that Burns street was [450] used as a mere continuation of Champion street proves the existence of the former street as conclusively as that of the latter, or of any other street in the map. There may have been less travel on Burns street than on either of the others, but that circumstance goes merely to the weight of the testimony.
As to the formal action of the corporate authorities, the testimony shows that in 1858, the common council caused the obstructions that had been placed in the street by Ingersoll and those occupying under him to be removed with their consent, and the street to he improved, since which time it has been used till the plaintiff put up his fence. It is claimed by the plaintiff that this action of the city did not operate as an acceptance, for the reason that Ingersoll by occupying the street years before, had revoked the dedication. Ingersoll could not revoke, unless he had succeeded to the title of the original proprietors. By the quit-claim deed from William J. McCracken, he acquired only one undivided sixteenth, or at most one eighth of the interest of McCracken and Perkins to the premises therein described. His deed referred to the map on which the land in question was dedicated as Burns street, and it may well be questioned whether the grant to him was of any thing more than the fee subject to the public easement. But passing that question, and also the point whether the owner of an undivided portion of the estate, could revoke a dedication by the owners of the whole, it is manifest that the question of revocation by Ingersoll, is one of fact, depending on the circumstances of the case. The jury were authorized to find, upon the testimony, that the acts of Ingersoll were not intended by him as a revocation, and did not amount to it. He was told when he put up the house, that it was on the street; he admited that it was, and said that if the street was ever improved, the house would have to be removed, and he set it on blocks, and put no cellar under it. The verdict [451] has settled this question in favor of the defendants, and that being the case, there is no answer to the position that the action of the city authorities in 1858, was a clear acceptance of the dedication, even if the previous user was not.
[Monroe General Term,
June 1, 1868.
E. D. Smith, Johnson and J. G. Smith, Justices.]
For these reasons the order granting a new trial should be reversed, and judgment should be ordered for the defendants, on the verdict.
All the judges concurring,
Ordered accordingly.