People v. . Underhill

39 N.E. 333, 144 N.Y. 316, 11 N.Y. Crim. 17, 63 St. Rep. 710, 63 N.Y. St. Rep. 710, 99 Sickels 316, 1895 N.Y. LEXIS 532

Opinion

PECKHAM, J.

In the view we take of this case it will not be necessary to determine whether the state prison inspectors could legally have laid out by dedication on the part of the state a public highway through the land which they were authorized to sell for the state. They assumed to do so, and in the map filed by them this so-called Lafayette avenue is laid out. In their deed to Nelson and others they expressly reserve the right of way over the land designated on the map as new streets and dedicate such land to the public as a public highway, for the benefit of the public and for the owner and purchasers of the adjoining lots. The grantees in that deed themselves recognized these various new streets and made a map which is ■called the Cartwright map, upon which the strets are laid out, and in their deed to Mr. Everitt, when describing the land, they use language, “beginning at the Albany post road and Lafayette avenue, as designated on the map now on file,” etc., and they continue their description and bound the land conveyed in that deed “along the center of said avenue 651 feet to the said Albany post road.” These parties as grantees from the inspectors and as owners of the land certainly would have had the right to open streets through it and they could dedicate such streets to the public. Laying down upon the map made by themselves certain lands as avenues or streets and conveying other lands as bounded by them, amounts to a dedication a® has been held in very many oases. In the Matter of the Application for an Extension of Lewis Street, 2 Wend. 472; Livingston v. The Mayor, 8 id. 85; Wyman v. The Mayor, 11 id. 487; Willoughby v. Jenks, 20 id. 94; Lord v. Atkin, 138 N. Y. 184; 52 St. Rep. 155.

We think the evidence in this case was sufficient to show a dedication by the proper parties of Lafayette avenue as a public street. The criticism made that the deeds from Nelson and ■others to Everitt, and from Everitt to Underhill, make no mention of Lafayette avenue as being a public street, we think is ■not well founded. Both deeds refer to Lafayette avenue and they refer to it as designated on the map then on file in the office of the register of the county of Westchester, and they bound their land along the center of the avenue. It is not necessary we think under these circumstances to state that they mean by the word “avenue” a public street. The word, ■ as used in the deeds and upon the map, furnishes evidence of a dedication and implies a public street, and the intention to dedicate the land for a public street would not be made plainer by adding that they mean by the word “avenue” a public street, to be called Lafayette avenue.

We are of the opinion, however, that there was no sufficient evidence 'of an acceptance of this dedication either by way of user or by any formal or conclusive action on the part of those public authorities of the village of Sing Sing who would have the authority to accept a dedication to the public. The trial ■court eliminated one way of showing acceptance by the user of the street, and, we think, properly so. There was really no evidence of user as a street. The street merer has been used and is not now used as a public highway for the passage of mien and vehicles from Highland avenue to Spring street. The 'Only user proved was a couple of hundred feet east from Spring street, and that was used by the people who were building houses and for their accommodation only, and it was almost an impossibility to drive or ride from that point east to Highland avenue; indeed, Cartwright himself had a fence across Lafayette avenue. There being no user, there must have been proof of an acceptance by some formal and unambiguous action on the part of the authorities of the village having that power and showing unmistakably an intention to accept the .land thus dedicated and for the purpose to which it was to be put.

As was said in the case of Niagara Falls Susp. Bridge Co. v. Bachman, 66 N. Y. 261 at 269, “to constitute a public highway by dedication there must not only be an absolute dedication, a setting apart and a surrender to the public use of the land by the proprietors, but there must be an acceptance and a formal opening by the proper authorities, or a user.” In Holdane v. The Village of Cold Spring, 21 N. Y. 474, the same doctrine is announced, and it is there said that an acceptance of the dedication. either by user or by formal act of the public authorities, must be shown before a dedication becomes complete. To the same effect is the case of Speir v. The Town of New Utrecht, 121 N. Y. 420; 31 St. Rep. 414, although the question there was more in regard to the character of the user than to the formal action on the part of the public authorities. It was there held that the mere fact that a portion of the public had traveled over the road for twenty years would not make it a highway; that the user must be like that of highways in general and the ■road must not only be traveled upon, but it must be kept in repair, taken in charge and adopted by the public authorities. That was on the question of user. In this case no formal acceptance of this dedication on the part of the public authorities has been shown. The various items of proof referred to by the •counsel for the People for the purpose of showing something equivalent to a formal aceptance, we think, are wholly inadequate to meet that requirement. So far as working the street is concerned, the only evidence that the public authorities had ever worked it at all consists of the statement made by the clerk of the village that the village had laid a sewer in the street for a couple of hundred feet east from the line of Spring street, and he believed that some sidewalk had been there laid. Under what circumstances he did not say. The people who built the few houses along the western end of Lafayette avenue may have, asked the village to lay a sewer for their accommodation and also a sidewalk as far along the street as the houses continued to the east from Spring street. The authorities may have complied with their request. But that is no formal acceptance of a dedication of the whole street from Highland avenue to Spring street, a distance of nearly 1,300 feet, by any public authority of the village authorized to speak or act for it in such case and thus to bind the village by its action. There is no evidence of any such acceptance. The village has done no act from which an acceptance of this dedication can properly be inferred. It is claimed that a map of the street was made and filed. That mere fact is wholly immaterial. There was a map laying out a general system of sewerage for the southern portion of the village, and it would, in any event, very properly include the land in question which might be thereafter drained by the sewer, although such street was not then opened or accepted as a public highway. There is also evidence that electric lights had been placed in one portion of the street, but under what circumstances, or upon what conditions or how many, was not stated, and that water pipes had also been laid in the street the same distance as the sewer for the accommodation of those few houses above mentioned. It is seen that the village had done no work whatever en any portion of this street 'other than the 200 feet directly east from Spring street, and there is no evidence under what circumstances such work was done, or that it was done by such authority as might bind the village on a question of acceptance of a dedication of land for a street. The mere assessment by assessing, officers of lands which they described as being on Lafayette avenue is no evidence whatever of a proper acceptance, nor, under the circumstances, was the putting up of signs at each end of the street naming it Lafayette avenue. The authorities of the village had directed signs to he placed at the comers of all the streets in the village, without designating any particular street or In any manner deciding that Lafayette avenue was a public street of the village and the resolution had been referred to a committee to carry out its purposes. That committee referred it to the clerk, who employed a painter, who painted various signs, and among them he included Lafayette avenue, and the sign was put up. The directing of a sidewalk to be laid at the entrance of this street on Highland avenue is no evidence of an acceptance of Lafayette avenue. In fact, there is an entire absence of proof of any unequivocal act on the part of the village authorities showing a formal acceptance of the avenue in question from Spring street to Highland avenue.

What rights the abutting owners on the avenue may have as between each other and as against the defendant Mrs. Under-hill, as one of such owners, by reason of the various deeds from Thomas Nelson and others recognizing the existence of Lafay-" efte avenue, it is not necessary here to discuss or decide. They may have easements or rights of way as among themselves not touched by this proceeding. Hennessy v. Murdock, 137 N. Y. 317; 50 St. Rep. 717; Cunningham v. Fitzgerald, 138 N. Y. 165; 51 St. Rep. 840; Lord v. Atkins, 138 N. Y. 184; 52 St. Rep. 155. We simply say that the People in this criminal action have failed to show that the defendants were guilty of maintaining a nuisance by obstructing a public highway called Lafayette avenue at the place described in the indictment, and the jury should, therefore, have been instructed to acquit them.

We think the judgment should, therefore, be reversed and a new trial granted.

All concur, except HAIGHT, J., not sitting.

Judgment reversed.