Porter v. . International Bridge Co.

93 N.E. 716, 200 N.Y. 234, 1910 N.Y. LEXIS 1438

• Court: New York Court of Appeals
• Decided: December 16, 1910
• Status: Published

Opinion

Willard Bartlett, J.

In the consideration of this appeal I think it is essential at the outset to ascertain precisely what is the character of the action. The case has already been before this court twice: First, on an appeal from a judgment affirming an interlocutory judgment overruling a demurrer to the complaint for misjoinder of causes of action (163 N. Y. 79); and, secondly, on an appeal from an order reversing an order directing a jury trial of the issues involved in the action. (175 N. Y. 467.) Upon the first appeal, Judge Martin, speaking for the court, said : “ After a careful examination of the complaint, we are of the opinion that it is not to be regarded as stating more than one cause of action, viz., a cause of action in equity to determine and enforce the rights of the various parties to the property, which is the subject of the action, and that all the rights sought to be established and enforced arose out of the same transaction or transactions connected with the same subject of 'action, and their joinder in the same complaint was justified by the provisions of section 484.” (p. 86.) The view that the action is purely equitable in its nature was emphasized on the second appeal, where this court held that the defendants did not have a constitutional right to a trial by jury. It being thus settled that the case is one of equitable cognizance in what category of equity jurisprudence does it fall? The statement of Judge Martin that it is brought to determine and enforce the rights of the various parties to the property which is the subject of the action is quite general and does not help us much in the matter of classification. It is not an action to compel the determination of a claim to real property under the Code of Civil Procedure, for in such an action the complaint must set forth facts showing that the property at the commencement of the action was and for the one year next preceding has been in the possession of the plaintiff or in the possession of himself and those from whom he derives his title, either as sole or joint tenant or tenant in common with others. It is not a suit to remove a cloud upon title. There are no allegations in the complaint appropriate to a suit for such relief. The general rule is that a plaintiff out of possession holding the legal title will be left to his remedy by ejectment. (3 Pomeroy’s Eq. Juris. [1st ed.] § 1399n.) I think in view of our previous adjudications herein that it must be regarded as a suit to enjoin a continuing trespass, i. e., the occupation of Porter square by the bridge and railroad companies, on the theory that by reason of the abandonment of the premises by the city of Buffalo as a public square the easement of the public therein has ceased and all the rights of the original proprietors as owners of the fee before the dedication have been restored to the plaintiffs. To this extent and in this sense it is a suit “ to determine and enforce the rights of the various parties to the property which is tlie subject of the action,” as was suggested by this court upon the first appeal.

It will be most conducive to clearness to consider the questions submitted to us in a different order from that in which they have been certified. The second and third questions are closely related to one another. “ 2. Is the use of the premises in question by the International Bridge Company and the Grand Trunk Railway Company of Canada a public use or consistent with their use as a public square 1 3. Has the City of Buffalo abandoned the premises in question -as a public square ? ” The word or was probably inserted in the second question through inadvertence. That a railroad use is a public use is no longer seriously to be doubted. (1 Lewis on Eminent Domain [3d ed.], § 263; Buffalo & N. Y. City R. R. Co. v. Brainard, 9 N. Y. 100; Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y. 137; Erie R. R. Co. v. Steward, 170 N. Y. 172, 178.) The proposition under the fourth point of the respondent’s brief that a railroad use is not a public use is obviously unsound. The argument by which it is sought to be supported is really directed toward showing that a railroad use is not such a public use as is consistent with the devotion of the land to the purposes of a public square, which is quite a different thing. The correctness of the latter proposition is what we understand to have been submitted for our determination by the certification of the second question in this record.

The effect of the dedication of the land designated as a public square on the map of the proposed extension of the village of Black Rock in 1830 was to create an easement in favor of the public, co-extensive with the purposes to which public squares in such localities are usually applied. In the case of such a dedication, as was well said by Selden, J., in Anderson v. Rochester, L. & N. F. R. R. Co. (9 How. Pr. 553), “ where there is a corporation to represent the public, and take charge of its interests, the easement vests in such corporation, which thus becomes the trustee of a use." (p. 559.) Here the easement vested first in the village of Black Rock and after ward in the city of Buffalo as its successor. It was not necessary that the fee of the land should pass in order to secure the easement to the public. (City of Cincinnati v. Whites Lessee, 6 Peters, 431.) The naked fee remained in the original proprietors and their successors in interest. This is not like a case where the acquisition of a fee is essential to carry out the purpose which the parties making the dedication had in view, or where land is taken in the exercise of the power of eminent domain under a statute which obviously contemplates obtaining the largest title possible. Such a case was Brooklyn Park Commissioners v. Armstrong (45 N. Y. 234) where it was held that the act of the legislature authorizing the city of Brooklyn to take lands for a public park was so worded that in condemnation proceedings thereunder the city acquired an absolute estate in the land taken under the statute and not merely an easement and that its title was free from any legally recognizable reversionary right in the former owners. Here the dedication did not deprive-the original proprietors of their title any more than would the dedication of land for a highway, evidenced by throwing it open and its acceptance by the public authorities, in which case it is well settled that the owner does not part with his title “ but only with the right to possession for the purpose of a highway.” (City of Cohoes v. D. & H. C. Co., 134 N. Y. 397.) In the early case of Pearsall v. Post (20 Wend. 111, 136) Cowbn, J., intimated that the doctrine of dedication applicable to streets and ways did not extend to public squares in cities or villages; but when the case reached the Court of Errors a contrary view was expressed by Chancellor Walworth who said that in ancient times in England the law of dedication, which was applicable to thoroughfares, was properly applicable to market places and promenades, although they were not highways in the ordinary sense of the term. (22 Wend. 425, 433.) “ It is now generally admitted,” says Mr. Justice Holmes in Abbott v. Cottage City (143 Mass. 521) “ that open squares in towns are as much within the principle referred to as highways, and it has been held in numerous decisions that such squares may be dedicated to public uses.”

A case which corresponds closely with the present case in the circumstances of the dedication is Trustees of M. E. Church of Hoboken v. Mayor, etc., of Hoboken (33 N. J. Law, 1). There the dedication was effected by the making of a map of the well-known Stevens tract in Hoboken on which the property in controversy was designated simply by the word “ Square,” and the owner subsequently executed conveyances referring to this map. The court discusses the meaning of square as thus used, saying: “ The word ‘ square ’ on this plot of ground, indicated a public use, either for purposes of a free passage, or to be ornamented and improved for grounds of pleasure, amusement, recreation or health. This is the proper and natural meaning of the term and its ordinary and usual signification. * * * The word ‘ square ’ as a term of dedication, imported a complete and unrestricted abandonment to the public uses above indicated.” In Cady v. Conger (19 N. Y. 256) the land was dedicated for a village green or public common ; and this court, in discussing the uses to which the premises might properly be put under such a dedication, mentioned that every part of this open space was used as a common passageway for foot passengers and teams passing from one road to another, and as a place for military parades and ball playing and other amusements. It appeared, however, that a part of it was used for storing lumber while a plankroad was being built along one of the adjoining highways; and Chief Judge Johnson said that this could hardly be supposed to be a rightful use, although it was temporary in its nature, and acquiesced in from a general desire to facilitate the making of the plankroad. Ear less is the occupation of Porter square, in the city of Buffalo, by the approach to the International bridge and the other structures placed and maintained there by the bridge and railroad companies with the sanction of the municipality consistent with the use of the property thus occupied for the purposes of a public square. However desirable this occupation may be even in the public interest — and the trial court has expressly found that the premises in question are a necessary approach to the International bridge — it is incompatible with what may be termed a public square use, which imports more openness and a greater freedom from obstruction than is permitted by the presence of a railroad bridge and depot.

This view requires a negative answer to the second question regarding the word or as omitted therefrom, so as to make it read: “ Is the use of the premises in question by the International Bridge Company and the Grand Trunk Railway Company of Canada a public use [or] consistent with their use as a public square ? ”

The third question, “ Has the City of Buffalo abandoned the premises in question as a public square ? ” has been answered affirmatively by the trial judge in the thirty-fifth finding as a question of fact. In framing the question, however, we assume that it was the intention of the Appellate Division to ask whether the conduct of the city in sanctioning the permanent occupation of the dedicated property by the structures of the other defendants did not amount in law to an abandonment of the easement which had vested in the municipality as the trustee of a use, by reason of the dedication. As thus construed it seems clear that the question must be answered in the affirmative. “ An easement may be abandoned,” said Earl, J., in Roby v. N. Y. C. & H. R. R. R. Co. (142 N. Y. 176, 181), “by unequivocal acts showing a clear intention to abandon, or by mere non-user, if continued for a long time; ” and citing numerous cases, he continued: “ Under these authorities, the acts claimed to constitute the abandonment of an easement must show the destruction thereof, or that its legitimate use has been rendered impossible by some act of the owner thereof, or some other unequivocal act showing an intention to permanently abandon and give up the easement.” In Campbell v. City of Kansas (102 Mo. 326) a square was marked “ donated for graveyard ” on an original plat filed with the recorder of titles by one of the proprietors of the town site, who subsequently used the plat at a public sale of lots. Prom this fact and the acquiescence of the other proprietors in the plat and the use of the square for interments a dedication was inferred. This dedication was held to have been abandoned by the action of the municipality in passing an ordinance vacating the land for graveyard purposes and “changing it into a park with the acquiescence of the public. It was further held that the land there upon reverted to the donor who might recover in ejectment against the municipality.

The acts evidencing an intention to abandon the easement for use of the premises as a public square could hardly be more unequivocal or conclusive than they are shown to be in this case. There is an express finding that the premises in question are a necessary approach to the International bridge. This fact, in addition to the permanent character of the structures thereon, shows that the property thus occupied has been diverted from the purposes of the dedication beyond any prospect or hope of restoration. The public may not enjoy the land for the uses which the original owners contemplated, and the bridge and railroad company have taken it without making compensation therefor.. The condition of things is precisely as though the original owners had said to the city: “ We will give you this property in trust to use in a particular way for the benefit of the public;” and the city, having accepted it for that particular purpose, turns it over to two transportation companies to be employed for all time for a wholly different purpose. It is argued in behalf of the city that even so, the dedicated land does not revert to the original owners, but the only remedy is a suit in equity to compel the removal of the obstructions and the execution of the trust, citing 2 Dillon on Municipal Corporations (4th ed.), § 653; Barclay v. Howell's Lessee (6 Peters [U. S.], 498), and Goode v. City of iSt. Louis (113 Mo. 257). The authorities relied upon, however, to sustain this proposition concede that property dedicated to a public use without any provision for forfeiture reverts to the dedicators upon a misuse thereof, when the use contemplated in the dedication becomes impos sible. (See, also, Williams v. First Presbyterian Society in Cincinnati, 1 Ohio St. 478.) Such is the case here. If the existing occupation is necessary for the approach to the International bridge, as has been found by the trial court and as seems to be undisputed, it is practically impossible ever to apply the land again to use for the purposes of a public square. It is further argued in behalf of the appellants other than the city that no sound reason exists for holding that there has been a reversion because the plaintiffs are not abutting owners, and assuming that they have a naked fee, the evidence shows that the fee is worth more and not less by reason of the erection of the bridge upon the premises. I have already tried to show how the plaintiffs, as representatives of the original owners, have suffered damage. The original owners gave an easement to the city. The city has abandoned that easement and turned the property over to third parties. When the easement was thus effectually abandoned, the rights of the original owners became precisely what they were prior to the dedication. They or their successors in title could thereafter deal with it as owners in fee simple absolute and they were damaged by the gratuitous occupation of the premises by the bridge and railroad company. They seek in effect by means of this action to put an end to the continuing trespass unless the trespassers will acqnire their title at a fair price. It is objected, that inasmuch as the easement dedicated was for the benefit of the public, the city of Buffalo, as trustee of the easement, could not by any alleged acts of abandonment destroy the public right; and reference is made to the case of Board of Commissioners v. Young (59 Fed. Rep. 96, 107), where Burton, J., writing for the United States Circuit Court of Appeals, in discussing the alleged abandonment of an easement dedicated to the village of Youngstown, said: “The council of the village of Youngstown were the trustees holding the legal title and protecting the use. The people of Youngstown were the beneficiaries under the trust.- The council, in their character as trustees, could do no act to defeat the beneficial interest of the public. A court of equity would take cognizance, and restrain any act calculated to defeat the use. As trustees the council could not, without the voluntary acquiescence of the cestui que trust abandon the use or defeat the estate.” In the present case, however, the acquiescence of the public in the acts of the city of Buffalo constituting the abandonment was expressed by the legislature by the enactment of chapter 753 of the Laws of 1857 which in terms empowered the International Bridge Company “to use any of the streets, squares, lanes or alleys of the City of Buffalo, or lands in said city, owned by the people of the State of New York, for the erection of such bridge and the works or approaches thereto appertaining, provided the consent of the common council of the said City of Buffalo shall first be obtained.” (Section 20.) Under an act passed in the following year (Chapter 291 of the Laws of 1858) the question whether the city should guarantee the payment of interest on $2,-500,000 capital stock of the bridge company to which this power to occupy the public streets and squares had been given was submitted to the people of Buffalo and such guaranty was approved by a vote of 5,128 in the affirmative to 3,375 in the negative. These circumstances establish the acquiescence of the public in the abandonment of the easement in such portion of Porter square as the common council consented should be occupied by the bridge company and any railroad operated over the bridge.

The first and fourth certified questions remain to be considered.

“ (1) Upon the facts found can Peter A. Porter individually and as grantee maintain this action for the recovery of his interest in the premises in question ? ” This question cannot be answered categorically in view of the character of the action as construed by this court upon the second appeal. It is not an action “ for the recovery of his interest ” or it would have been triable by a jury, and we held that it was not. It is, however, a suit in equity which Peter A. Porter may maintain.

“ (4) Have either of said, defendants acquired prescriptive rights to the premises in question or any part thereof % ” By said defendants is meant the International Bridge Company and the Grand Trunk Railway Company of Canada. As to this question it is enough to say that neither the evidence nor the findings suffice to warrant the conclusion that either of these defendants has acquired a title by prescription against the plaintiffs.

As is apparent from what has been said we are satisfied that the result reached by the learned judge at Special Term is substantially correct. The form of the judgment, however, requires amendment. Every one of the findings has been incorporated in the judgment, not simply by way of recital, but preceded in each instance by the words “ It is ordered, adjudged and decreed that,” etc. This is not proper practice, nor is it in accord with the direction for judgment given by the trial judge himself at the conclusion of the findings, in compliance with section 1022 of the Code of Civil Procedure, that he shall “direct the judgment to be entered thereon.” The judgment must, therefore, be modified by striking therefrom all the adjudications except those which conform to the five directions for judgment given by the trial judge at the end of the decision. As thus modified it should be affirmed, with costs to respondents. The answer to the first question is that Peter A. Porter individually and as grantee can maintain this action. The answer to the second question is that the use of the premises by the International Bridge Company and the Grand Trunk Railway Company of Canada is not a public use consistent with their use as a public square. The third question is answered in the- affirmative and the fourth question in the negative.

Cullen, Ch. J., Gray, Werner, Hiscock and Chase, JJ., concur.

Judgment accordingly.