
    Frank R. Stillman, Plaintiff, v. City of Olean, Defendant.
    (Supreme Court, Cattaraugus Equity Term,
    May, 1911.)
    Highways: «Creation, requisites and incidents — How established in general—Abandonment or revocation of dedication: Abandonment and discontinuance — Extinguishment of right in highway by adverse possession.
    Where a map was filed in 1836, laying out a tract of land into blocks of building lots bounded by streets, and subsequent conveyances of portions thereof were made with reference to such map, such acts amounted to a dedication of the land within the lines of the streets as designated on such map for street purposes, and the subsequent adoption in 1910 by the common council of the city in which the lands lay of a resolution approving, a petition of adjoining lot owners to open a portion of one of the streets was an acceptance of it and constituted the same a highway.
    Under such circumstances the mere lapse of time from 1836 to 1910 did not effect an abandonment or revocation of the dedication, nor did the occupation at the time of the acceptance and for more than twenty years before it of the lands constituting the portion of the street so accepted, by one claiming under a deed of it which did not refer to the map filed, defeat the public right.
    Action for an injunction restraining defendant from opening Thirteenth street and removing a dwelling-house owned by plaintiff.
    Dana L. Jewell, for plaintiff.
    Henry Donnelly, for defendant.
   Brown, J.

On July 12, 1845, the Olean Land and Hydraulic 'Company executed a conveyance to William S. Miller of “All those twenty certain lots, pieces or parcels of land, situate in the Village of Olean, in the County of Cattaraugus, and known and described upon a certain map of the said village, made by J. T. Gosselien, surveyor, and filed in the office of the Clerk of the County of Cattaraugus, on or about the 28th day of December, 1836, as lots numbered from one to twenty, inclusive, in the block hounded on the north by State street and east by King street * * * Also block numbered * * """ 112, 113, * * * on the said map and all the streets bounding the said blocks on the north and east "* * * Also block numbers 92, 93 * * * on said map and all the streets bounding the said block on the east side, * * Upon the Gosselien map there referred to, block numbered 92 was bounded on the north by State street; on the east by Thirteenth street; on the south by Henley street; on the west by Fourteenth street. Block numbered 93 was bounded on the north by State street; on the east by Twelfth street; on the south by Henley street; and on the west by-Thirteenth street. Block Ho. 112 was bounded on the north by Henley street; on the east by Thirteenth street; on the south by Irving street; and on the west by Fourteenth street'; and Block Ho. 113 was bounded on the north by Henley street; on the east by Twelfth street; on the south by Irving street; and on the west by Thirteenth street. By several mesne conveyances, all of which conveyed a portion of said blocks, 92, 93, 112 and 113, “ described on the map of said village made by T. J. Gosselien,” L. F. Lawton on the 23d day of January, 1888, acquired title to a part of each of said blocks by a' description commencing in the center of Block 92, five chains and ninety-nine links south of State street; thence east parallel with State street fourteen and three-quarter rods; thence south parallel with the center line of Block 92, thirty and twenty-eight one hundredths rods; thence west parallel to State street fourteen and three-quarter rods; thence north on center line of Block 92 to place of beginning, which description includes the land indicated on the Gosselien map as Thirteenth and Henley streets, between Blocks 92, 93, 112 and 113. Shortly after the date of this last conveyance, and on May 17, 1888, there was filed in the office of the clerk of Cattaraugus county a map of this last described parcel of land, entitled “ E. E. Alderman & Co’s. Subdivision of part of Blocks 92, 93, 112 and 113, Clean Village,” in and by which map substantially all the land set apart on the Gosselien map -as Thirteenth street was appropriated or divided into lots, -and a street crossing Henley street through the center of such lands, forty feet wide, was indicated, named Prospect avenue. On June 21, 1890, Law-ton conveyed all the lands purchased by him January '23', 1888, to one Colwell, “ described on the map of said village by T. J. Gosselien,” excepting lots 2, 3, 10 and two feet off the east side of lot 4, according to the map of the Garvey (Alderman) subdivision. On March 12, 1909, Helen M. Lawton Wood, who took title through the last will and testament of L. F. Lawton, executed a quitclaim deed to the plaintiff of lots 2, 3, 10 and two. feet off the east side of lot Ho. 4, according to the Alderman map of subdivision of parts of Blocks 92, 93, 112 and 113 of the Gosselien survey. Lot 3 of this subdivision is entirely within the lines of Thirteenth street, as delineated on the Gosselien map. There is standing on this lot 3 a dwelling-house that has been thereon for twenty-two years. On September 3, 1910, the common council of defendant adopted a resolution approving a petition made by owners of lots on each side of Thirteenth street south of, and adjoining, the Alderman subdivision, asking that Thirteenth street be opened from Ilenley street to Irving street, and served a notice upon the plaintiff requiring him to remove his dwelling-house from Thirteenth street within thirty days, and notifying him that unless he did so the same would be removed by the superintendent of streets of defendant, at plaintiff’s expense, to restrain which act the plaintiff brings this .action. The contention of the plaintiff is that the lands within the lines of Thirteenth street, as indicated on the Gosselien map and occupied by the plaintiff, have never been dedicated and accepted as a street; that if there ever was a dedication of such lands it has been abandoned by lapse of time and the acts of the various owners, through whom all the petitioners and he himself take title. The fact that every conveyance from 1845 down to the plaintiff’s grantor has not only recognized the Gosselien map, but used it as a part of the description of the parcels of land conveyed, and the fact that the conveyances to the petitioners were made with 'reference to that map, show enough to establish in the petitioner a right to have Thirteenth street kept open from Irving street to Henley street as a village or city street, as indicated, defined and delineated on the Gosselien map. The setting apart of the lands designated Thirteenth street on that map as a street and the acceptance of conveyances referring to this map by every holder of the title have created in the petitioners an easement or right to use the lands claimed by the plaintiff as a street or highway; and, when the common council of the defendant decided to open the street from Henley to Irving, it was as an acceptance of the dedicated lands for such a purpose. While it is true that the plaintiff’s lands and those formerly occupied by Dickinson to the south have never been used by those owning this easement or right of way, and the plaintiff’s lands have been occupied exclusively for residence purposes for more than twenty years, yet such facts do not prevent the defendant from accepting the offer of dedication, taking possession of the land claimed by plaintiff, removing the buildings therefrom and actually opening a street thereon. The right to have this land in question kept open as a street was acquired by the petitioners by deed expressly recognizing the existence of a street. Such right cannot be destroyed by non-user. There has been no adverse possession by plaintiff and his predecessors in interest for twenty, years. The fact is that there has been no claim of title adverse to the rights of adjoining property owners in the lands delineated on the Gosselien map for any length of time. The possession of -the grantors of the plaintiff was subservient to, and in recognition of, the right of lot owners to have Thirteenth street opened as shown on the Gosselien map. The fact that Garvey or Lawton, taking title by deed referring to the Gosselien map, saw fit to subdivide their purchase and eliminate Thirteenth street could not affect the right of Holmes, Foley and other petitioners to have the benefit of a street shown on a map referred to in their deeds. Such subdivision or map was not the basis of Lawton’s title. He and his wife held possession until March, 1909, under a deed in which the lands are stated to be described on the Gosselien map, and hence there has been no adverse possession prior to March, 1909, by Lawton or his wife under a claim of title-hostile to the rights secured by the Gosselien map and referred to in their deed. There has been no abandonment by non-user or otherwise. Hon-user for twenty years will not create an -abandonment of an easement when the easement is created by deed. Welsh v. Taylor, 134 N. Y. 450; Snyder v. Hastings, 22 id. 217: Village of Olean v. Steyner, 135 id. 341; Bridges v. Wyclcoff, 67 id. 390.

The filing of the Alderman map, eliminating Thirteenth itreet thereon, and the building of plaintiff’s dwelling-house tviithin the lines of Thirteenth street by Lawton in 1888 was not a revocation of the dedication of such lands as a street by the Olean Land and Hydraulic Company in 1845. A revocation could only be' made by the power creating such dedication, viz., the original grantor. Matter of Commissioners of Public Parks, 53 Hun, 556. If the foregoing conclusions are sound the land between Henley and Irving streets, within the lines delineated on the Gosselien map, were offered as a highway by the holders of the title in 1845. Such offer never having -been revoked was in force September 3, 1910, at which time the common council of the defendant .took formal action to open the street. Such act was an acceptance of the offer, and the lands on which plaintiff’s dwelling stands became a highway. Matter of Hunter, 163 N. Y. 542. The plaintiff for more than fifteen years has known that the lot in question lies entirely within Thirteenth street. He is engaged in the real estate business and knows all about the Gosselien map and its relation to Blocks 92, 93, 112 and 113; and, at the time he took his conveyance, in March, 1909, he conversed with his grantor as to the probabilities of his losing the land, because it was in Thirteenth street. His then contemplated loss has arrived, his dwelling is in a legal highway and he is not entitled to an injunction restraining its removal.

Complaint dismissed, with costs.  