
    The People of the State of New York, Respondents, v. Clara M. Underhill et al., Appellants.
    To constitute a public highway by dedication there must not only be an absolute dedication, but an acceptance and formal opening by the proper authorities, or a user.
    Upon trial of an indictment for maintaining a nuisance in obstructing a highway these facts appeared: Pursuant to an act of the legislature providing for the sale by the inspectors of state prisons, of a farm in-the village of Sing Sing, owned by the state, which farm was bounded on the east and west by streets, said inspectors caused a map to be made of it and then sold and conveyed it. On the map a street was laid out running through the farm from east to west. The deed reserved a right of way over said street which it was stated was forever to be kept open “for the purposes of a public street or highway for the benefit of the owners and purchasers of the adjoining lots.” This street was subsequently named Lafayette avenue. In 1866 the grantees sold six and a half acres of said farm to E., the boundaries as described in the deed beginning at the street which bounded said farm on the east, then called Highland avenue, and Lafayette avenue as designated on a map on file in the office of the register of the county. The map referred to laid out the farm in lots and streets, including Lafayette avenue. At the time of the delivery óf the deed that avenue had never been opened or worked, but was simply farm land, and there were no fences or other monuments indicating the line thereof, except near its westerly end where a few lots had been sold, bounded on Lafayette avenue; as sold from time to time the fence across the avenue was moved further east. E. remained in possession as owner until November, 1889, when he conveyed his land to defendant. Up to that time and thereafter the portion of the farm lying west of defendants’ land remained open and unmarked by any boundaries showing the line of said avenue west of the lots so sold, and fences had been and were maintained across it. No work had ever been done on said avenue east of said lots until a short time before the finding of the indictment, when the owner of the portion of the farm west of defendants’ land graded on said avenue up to her west line. There was no evidence of any user of the avenue or of any work done thereon by the village east of the lots sold, or that the work which was done, was done by such authority as might bind the village on the question of acceptance. It appeared that a map had been made by the village laying out a system of se.werage on which map Lafayette avenue appeared, and that a sewer and water pipes had been laid in front of the lots sold but not extending east therefrom; also, that electric lights had been placed in that portion of the avenue. The lands along the avenue were assessed as lying thereon, and the village authorities having directed signs to be placed at the corners of all the village streets, signs were put up at each end of the avenue giving its name. Held, that the evidence was sufficient to show a dedication of the avenue as a public street, but failed to show an acceptance thereof east of the lots sold; and so, failed to show defendants guilty of the offense charged.
    
      People v. Underhill (69 Hun, 86), reversed.
    (Argued December 17, 1894;
    decided January 15, 1895.)
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made Hay 8, 1893, which affirmed a judgment convicting defendants upon an indictment for maintaining a nuisance in obstructing a highway, entered upon a verdict of the Court of Sessions of Westchester county.
    
      Prior to 1859 the state of New York was the owner of a certain parcel of land in the village of Sing Sing, known as the prison or state farm. In that year the legislature passed an act providing for its sale hy the inspectors of state prisons. Pursuant to that authority the inspectors made a map of the farm and sold it to one Thomas Nelson and others on the 23d of November, 1859. On that map several streets were laid down as running through this farm and among them was a street without any name running from Highland turnpike to Spring street. The street was’ subsequently called Lafayette avenue. The deed from the inspectors of state prisons to Nelson and others, in conveying the farm, contained the following reservation: “ Also excepting and reserving to the public the right of way over said two new streets to the width of twenty-five feet south of said central line above described, a width of twenty-five feet on each side of the continuation of the southernmost of said central lines. Westerly to the said Spring street, which new streets are forever to be kept open to the width of twenty-five feet on each side of said center line from Spring street to the Highland turnpike for the purposes of a public street or highway for the benefit of the owners and purchasers of the adjoining lots.”
    Highland turnpike, subsequently called Highland avenue, runs north and south on the eastern boúndary of the farm. Spring street runs parallel with Highland avenue and is the western boundary of such farm and some 1,225 feet west of Highland avenue. They are both old public highways in Sing Sing village. Lafayette avenue runs from Highland avenue to Spring street.. On the first of September, 1866, Nelson and others -(the grantees from the state) conveyed to one Edward Everitfc 6 and 1-2 acres of this farm, and described the land as “ beginning at the Albany post-road ” (now Highland avenue) “ and Lafayette avenue as designated on a map now on file in the office of the register of the county of Westchester, entitled ‘ A map of a tract of land at Sing Sing, town of Ossining, county of Westchester, the property of Messrs. Nelson, Larkin, Gobb, Cartwright, Jr., and Jones, laid off in town lots and. gentlemen’s country seats, by Geo. W. Cartwright, Jr., O. E., July, I860.’ ” The description then continues and includes the six acres and describes the northern houndary as running “ along the center of Lafayette avenue 651 feet, to the said Albany post roy-d to the place of beginning.” On the Ytli of November, 1889, Edward-Everitt conveyed the same premises to the defendant, Clara- Mason Underhill, by the same description that is contained in the deed from Nelson and others to Everitt. At the time when this map, mentioned in the deed from Nelson and others to Everitt, ivas made and the deed executed, the land forming what is laid down on the map as Lafayette avenue was farm land, and that avenue had never been either opened or worked. It Avas farm land most of the way between Highland avenue and Spring street, and there Avere no fences or other monuments indicating to the eye the line of Lafayette avenue. When Everitt took title by deed from Nelson and others to a portion of the original state farm he ran his westerly line of fence north and south across the land constituting Lafayette avenue as laid down on the map. This Avesterly line was 800 feet east of Spring street. He remained in possession as owner from the time of the deed to him in 1866 until he conveyed to Mrs. Underhill, one of the defendants herein, in November, 1889, and the whole country west of his Avest line up to Spring street had been up to that time and thereafter remained open and unmarked by any boundaries shoAving the line of the street up to Avithin 200 feet east of Spring street. The grantors in the deed to Everitt themselves maintained fences across the land constituting Lafayette avenue Avest of the defendants’ west line and up to Avithin a few feet of Spring street, and as they from time to time sold off lots on either side of Lafayette avenue, and Avithin the space of a couple of hundred feet east of Spring street, they would take down the fence and remove it further to the east so as not to interfere with those who intended to build and live in the houses. There was never any work done east of the houses built along the Avesterly end of Lafayette avenue up to within a short time before the finding of this indictment, when Mr. Cartwright, one of the grantors in the deed to Everitt did some grading from Spring street up to the westerly line of defendants’ premises. There was no evidence of any user of Lafayette avenue by the public for any portion of its distance as laid down on the map, with the exception of the 200 -feet immediately east of Spring street and upon which, commencing in 1-872, about eleven houses had been built by the grantees of Nelson and others. Mr. Everitt himself, while the owner of the six acres, had done some work upon that portion of Lafayette avenue fronting his premises, but it was for his own convenience and to better enable him to reach his house from Highland avenue, which he had built on the north portion of his land. " The grade from the westerly boundary of his premises towards Spring street was quite steep and the top of the grade was about half way between his westerly line and the easterly line of Spring street. During these years, from the time when the land was conveyed to Nelson and others by the inspectors of state prisons up to the time of the finding of the indictment against the defendants, various-things had been done, as was claimed by the prosecution, by way of showing an acceptance On the part of the village of Sing Sing of the alleged dedication of this Lafayette avenue hy the prison inspectors as a public street. Upon the trial the prosecution claimed to have proved that the public authorities of' the village of Sing Sing had worked the street and made a-map of it; had permitted gas lights to be put up, and had made a map for a system of sewerage for the lower part of the village, which included the avenue; that they had also laid water pipes therein and caused gutters and sidewalks to be laid in it, and had assessed property as bounded by the avenue; had put up signs at each end, and caused a sidewalk or crosswalk to be laid at • the entrance of the avenue on Highland avenue. All these acts were alleged to have been done by the public authorities, and it ivas insisted that they constituted that kind of formal action on their part which was necessary in order to show an acceptance of the land in question for a. public highway. The prosecution also proved on the trial that the defendants obstructed this alleged highway by continuing their fence across it and by building a structure thereon which they refused to take down, either at the demand of Mr. Cartwright, one of the grantors in the deed to Everitt, or of the president of the village.
    On the trial the judge charged the jury that there was no proof of user sufficient to make a highway of Lafayette avenue, but he submitted to the jury the evidence on the question of the acceptance of the alleged dedication of Lafayette avenue with the instruction that if they found the facts in accordance with the People’s construction of the evidence a sufficient acceptance had been proved. Proper exceptions were taken to the ruling of the court, so as to raise the question whether there had been a dedication, and if so, whether there had been a proper acceptance by the public authorities of the village. The jury found a verdict of guilty, and judgment was thereupon entered, which was affirmed by the General Term. The defendants have appealed here.
    
      Galvin Frost for appellants.
    The doctrine of dedication rests, upon that of estoppel. (City of Cincinnati v. White, 6 Pet. 437; Noyes v. Wood, 19 Conn. 265; 2 Greenl. on Ev. § 552; Hobbs v. Smith, 19 Pick. 405.) The deed of the state prison, inspectors to Cartwright and others did not constitute a dedicar tian. (Laws of 1859, chap. 470.) There was no proof of the acceptance of the avenue in question as a public highway. (City of Oswego v. O. C. Co., 6 N. Y. 264; Bridges v. Wyckoff, 67 id. 132; Story v. N. Y. E. R. R. Co., 90 id. 145, 163, 165; Mervin v. Pardee, 64 Barb. 359; Vandermark v. Porter, 40 Hun, 400; Clements v. Village of West Troy, 16 Barb. 251; Spiers v. Trustees of New Utrecht, 121 N. Y. 429.) The village authorities, by their action in relation to sewers, only accepted the street gyro tanto. (Angell on Highways, § 157; State v. Trask, 6 Vt. 355.)
    
      
      W. Popham, Platt for respondents.
    The deed to Everett aforesaid clearly gives notice of the street called Lafayette avenue. (7 N. Y. 274; 15 id. 354.) The act of the state .authorities in laying out and dedicating Lafayette avenue .should be regarded of as much force as if laid out by commissioners of highway. (City of Oswego v. O. C. Co., 6 N. Y. 257; In re Dept. of Public Parks, 53 Hun, 556.) The jury properly found that the public authorities accepted the avenue. (Flack v. Village of Green Island, 23 N. Y. Wkly. Dig. 534; In re Ingraham, 4 Hun, 495.)
   Peckham, J.

In the view we take of this case it will not he 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 Helson 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 higlrway, for the benefit of the public and for the owners .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 streets 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 ns avenues or streets and conveying other lands as bounded by them amounts to a dedication as has been held in very many cases. (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. 96; Lord v. Atkins, 138 N. Y. 184.)

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 if elson 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 and 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 never has been used and is not now used as a public highway for the passage of men and vehicles from Highland avenue to Spring street. The only user proved was of 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), 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 acceptance, 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 has done no work whatever on 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 be placed at the corners 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., Undérhill, as one of such owners, by reason of the various deeds from Thomas Helson and others recognizing the existence of Lafayette 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; Cunningham v. Fitzgerald, 138 id. 165; Lord v. Atkins, Id. 184.) 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.  