Earl, J.
Oropsey avenue was planned, mapped and laid out under the act, chapter 670 of the Laws of 1869, and it was opened to the width of eighty feet, and graded and mapped under certain resolutions adopted by the board of supervisors of Kings county, by authority of the act, chapter 554 of. the Laws of 1881. Under those resolutions, opening commissioners were appointed by the Supreme Court, who estimated the damages caused to the owners of lands taken, for the avenue, and made awards therefor to such owners, and assessed such damages upon the lands which, in their judgment, were benefited by the opening of the avenue. Subsequently grading commissioners were appointed under the same resolutions, and they opened, graded, constructed and improved the avenue, and assessed the expense thus incurred upon the lands which, in their judgment, were benefited by the improvement; and it is this assessment of which the plaintiffs complain. They •assail it on the ground that the old sixty-foot road was not a highway; that the land embraced therein was private property •and was not taken or condemned by the opening commissioners, and that, therefore, the work thereon by the grading commissioners constituted a trespass, for the expense of which no assessment could be legally made. If they are right in their contention that the sixty-foot road was not a public highway, we see no reason to doubt that this action can be maintained.
The sixty-foot road never having been laid out as a highway prior to the action taken under the , act of 1869, could become a highway in only one of two ways, either by dedication or user. There was much proof that the sixty-foot strip of land had been dedicated by the owners for a highway. It was opened and fenced and used; by the public generally for'
travel for more than twenty years. It was mentioned as a road in various deeds and maps. But it is admitted that Cropsey and Spier, who owned -the land and opened the road, at the time of the opening and during subsequent years, repeatedly declared that the road was a private way belonging to them and the other owners of land lying upon it, and that they had the right to close it whenever they saw fit. It- does not appear under what circumstances these declarations were made. They could not have been made later than Hovember 15, 1861, as Cropsey died at that date. Hor does it appear that the public authorities accepted the dedication, or in any way adopted the road as a highway by working it or forming it into of annexing it to a road district. The trial judge was, therefore, justified, in holding that it was not a highway by dedication.
(Holdane
v.
Trustees of the Village of Cold Springs,
21 N. Y. 474;
Cook
v.
Harris,
61 id. 448 ;
Niagara Falls Suspension Bridge Co.
v.
Bachman,
66 id. 261;
People
v.
Loehfelm,
102 id. 1;
Badeau
v.
Mead,
14 Barb. 328;
Clements
v.
Village of West Troy,
16 id. 251.)
The trial judge found that the .sixty-foot road became a highway by user under the ¡Revised Statutes (1 ¡R. S. 521, § 100), which provides that
“
all roads not recorded which have been or shall have been used as public highways for twenty years or more, shall be deemed public highways.” The full scope and meaning of the words “ used as public highways” are not quite certain. The user need not be adverse, and under such circumstances as would be required to give an individual a right of way by prescription. If such had been the intention, other language would, we think, have been used. All we have here is that “ the road was used by the public generally.” But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway; and the. burden of' making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge and
adopted by the public authorities. We think, all this is implied in the words
“
used as public highways.” Although the owner of land may not dedicate it for a public highway, and may not intend or assent that it shall become such, yet if he permits it to be used in the way just indicated for twenty years it would be deemed a public highway, and he will not be permitted to question the public night. The views of judges as to the proper construction of the statutory provision quoted have not been harmonious. •
(Galatian
v.
Gardner,
7 Johns. 106;
Wiggins
v.
Tallmadge,
11 Barb. 457;
Village of Jordan
v.
Otis,
37 id. 50
; Devenpeck
v.
Lambert,
44 id. 596;
Vandemark
v.
Porter,
40 Hun, 397;
In re Bridge,
100 N. Y. 642;
Rozell
v.
Andrews,
103 id. 150;
Strong
v.
Makeever,
102 Ind. 578;
Potter
v.
Safford,
50 Mich. 46.) Here there is no proof of the circumstances under which the public traveled upon this road, and it does not appear that the public authorities kept it in repair or adopted it, or in any way recognized it as a highway. A private way opened by the owners of the land through which it passes for their own uses does not become a public' highway merely because the public are also permitted for many years to travel over it.
(Shellhouse
v.
State,
110 Ind. 509.) Hence, the trial judge erred in holding that the sixty-foot road became a public highway by user.
The trial judge also held that the order of the Supreme Court confirming the report of the opening commissioners, is an adjudication binding upon these parties, and as such, constitutes a bar to this action; and in this, we think he erred. The commissioners made no adjudication as to the sixty-foot road, and had no right to make any in reference thereto, and that road was in no way brought into litigation by their report or upon the confirmation thereof. They simply took land on each side of the sixty-foot strip so as to make an avenue eighty feet wide, and it was only the land so taken that was involved in that proceeding. ' They made no award for the sixty-foot strip of land, and there was no adjudication in reference thereto that binds anyone.
The trial judge seemed to be of the opinion that if the sixty-foot road was a mere private way, and so the land was burdened with a permanent and perpetual easement of way for the benefit of the different land owners, the owners of the fee in the sixty-foot strip could not complain of the entiy thereon, and the improvement thereof as a public highway; and in this he erred. Clearly, if the land Avas burdened Avith only such a private easement, it could not be taken and condemned for a public highway Avithout some compensation to the OAvners of the fee.
The fact that some of the owners of land assessed paid their assessments, does not estop the plaintiffs from assailing the assessments in question, or forbid the maintenance of this action. No facts are shoAvn upon which an estoppel can be based.
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Earl, J.
Oropsey avenue was planned, mapped and laid out under the act, chapter 670 of the Laws of 1869, and it was opened to the width of eighty feet, and graded and mapped under certain resolutions adopted by the board of supervisors of Kings county, by authority of the act, chapter 554 of. the Laws of 1881. Under those resolutions, opening commissioners were appointed by the Supreme Court, who estimated the damages caused to the owners of lands taken, for the avenue, and made awards therefor to such owners, and assessed such damages upon the lands which, in their judgment, were benefited by the opening of the avenue. Subsequently grading commissioners were appointed under the same resolutions, and they opened, graded, constructed and improved the avenue, and assessed the expense thus incurred upon the lands which, in their judgment, were benefited by the improvement; and it is this assessment of which the plaintiffs complain. They •assail it on the ground that the old sixty-foot road was not a highway; that the land embraced therein was private property •and was not taken or condemned by the opening commissioners, and that, therefore, the work thereon by the grading commissioners constituted a trespass, for the expense of which no assessment could be legally made. If they are right in their contention that the sixty-foot road was not a public highway, we see no reason to doubt that this action can be maintained.
The sixty-foot road never having been laid out as a highway prior to the action taken under the , act of 1869, could become a highway in only one of two ways, either by dedication or user. There was much proof that the sixty-foot strip of land had been dedicated by the owners for a highway. It was opened and fenced and used; by the public generally for'
travel for more than twenty years. It was mentioned as a road in various deeds and maps. But it is admitted that Cropsey and Spier, who owned -the land and opened the road, at the time of the opening and during subsequent years, repeatedly declared that the road was a private way belonging to them and the other owners of land lying upon it, and that they had the right to close it whenever they saw fit. It- does not appear under what circumstances these declarations were made. They could not have been made later than Hovember 15, 1861, as Cropsey died at that date. Hor does it appear that the public authorities accepted the dedication, or in any way adopted the road as a highway by working it or forming it into of annexing it to a road district. The trial judge was, therefore, justified, in holding that it was not a highway by dedication.
(Holdane
v.
Trustees of the Village of Cold Springs,
21 N. Y. 474;
Cook
v.
Harris,
61 id. 448 ;
Niagara Falls Suspension Bridge Co.
v.
Bachman,
66 id. 261;
People
v.
Loehfelm,
102 id. 1;
Badeau
v.
Mead,
14 Barb. 328;
Clements
v.
Village of West Troy,
16 id. 251.)
The trial judge found that the .sixty-foot road became a highway by user under the ¡Revised Statutes (1 ¡R. S. 521, § 100), which provides that
“
all roads not recorded which have been or shall have been used as public highways for twenty years or more, shall be deemed public highways.” The full scope and meaning of the words “ used as public highways” are not quite certain. The user need not be adverse, and under such circumstances as would be required to give an individual a right of way by prescription. If such had been the intention, other language would, we think, have been used. All we have here is that “ the road was used by the public generally.” But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway; and the. burden of' making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge and
adopted by the public authorities. We think, all this is implied in the words
“
used as public highways.” Although the owner of land may not dedicate it for a public highway, and may not intend or assent that it shall become such, yet if he permits it to be used in the way just indicated for twenty years it would be deemed a public highway, and he will not be permitted to question the public night. The views of judges as to the proper construction of the statutory provision quoted have not been harmonious. •
(Galatian
v.
Gardner,
7 Johns. 106;
Wiggins
v.
Tallmadge,
11 Barb. 457;
Village of Jordan
v.
Otis,
37 id. 50
; Devenpeck
v.
Lambert,
44 id. 596;
Vandemark
v.
Porter,
40 Hun, 397;
In re Bridge,
100 N. Y. 642;
Rozell
v.
Andrews,
103 id. 150;
Strong
v.
Makeever,
102 Ind. 578;
Potter
v.
Safford,
50 Mich. 46.) Here there is no proof of the circumstances under which the public traveled upon this road, and it does not appear that the public authorities kept it in repair or adopted it, or in any way recognized it as a highway. A private way opened by the owners of the land through which it passes for their own uses does not become a public' highway merely because the public are also permitted for many years to travel over it.
(Shellhouse
v.
State,
110 Ind. 509.) Hence, the trial judge erred in holding that the sixty-foot road became a public highway by user.
The trial judge also held that the order of the Supreme Court confirming the report of the opening commissioners, is an adjudication binding upon these parties, and as such, constitutes a bar to this action; and in this, we think he erred. The commissioners made no adjudication as to the sixty-foot road, and had no right to make any in reference thereto, and that road was in no way brought into litigation by their report or upon the confirmation thereof. They simply took land on each side of the sixty-foot strip so as to make an avenue eighty feet wide, and it was only the land so taken that was involved in that proceeding. ' They made no award for the sixty-foot strip of land, and there was no adjudication in reference thereto that binds anyone.
The trial judge seemed to be of the opinion that if the sixty-foot road was a mere private way, and so the land was burdened with a permanent and perpetual easement of way for the benefit of the different land owners, the owners of the fee in the sixty-foot strip could not complain of the entiy thereon, and the improvement thereof as a public highway; and in this he erred. Clearly, if the land Avas burdened Avith only such a private easement, it could not be taken and condemned for a public highway Avithout some compensation to the OAvners of the fee.
The fact that some of the owners of land assessed paid their assessments, does not estop the plaintiffs from assailing the assessments in question, or forbid the maintenance of this action. No facts are shoAvn upon which an estoppel can be based. Mere delay in the commencement of this action, during Avhiclx some of the others voluntarily paid their assessments, not choosing to contest them, does not deprive them of their remedy. There might be circumstances but of Avhich an estoppel could arise, but they do not appear here.
We do not agree Avith the General Term that the existence of the railroad upon the road, during a portion of the twenty years, defeats the claim of a highway by user. The railroad Was built upon the road, and it Avas a public use for travel. But, it was a new burden superinduced upon the prior easement, and hence required the consent of the owners of the fee. It did not change the essential character of the road. It still remained a road and Avas used for public travel, the centre" being used by the railroad tracks. The strip of land was open to the public, and travelers could pass over every part of it, except that it Avas not practical for vehicles to pass OAer the tracks. If the user was otherwise sufficient to constitute the road a highway, the presence of the railroad tracks was an immaterial circumstance.
Our conclusion, therefore, is that the judgment of the Special Term was properly reversed. But judgment should not have been given for the plaintiffs, and a new trial should have been ordered. Upon the new trial, the facts may be
more fully brought out. It will be open to the plaintiffs to produce new evidence upon the question of dedication. Upon that question, the declarations of Cropsey and Spier, which now appear in the record, will not necessarily be decisive. The case may be such that, upon all the evidence, it will be a, question of fact whether there was a dedication and acceptance thereof by the public authorities within the rules of law upon the subject. So, too, upon the new trial, other and fuller evidence may be given as to the user of the road, and it may be shown that there was such a user within the principles above laid down as to show that in law this road became a public highway by user.
The judgment of the General Term should, therefore, be modified, so as to order a new trial, costs to abide the event.
All concur.
Judgment accordingly.