
    (67 Hun, 546.)
    PEOPLE v. KELLOGG.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Streets—Dedication—Conveyances According to Map.
    Though the owner of land in a village has it surveyed, and staked off into lots and streets, and makes a map of the same by which lots are sold from time to time, during a period of 10 years, bounded by the streets as shown by such map, such acts are not so unmistakable in their purpose, and decisive in their character, as to constitute a dedication of the streets indicated on such map to the public use.
    2. Same—Acceptance.
    Though the acts of the owner of the land indicate a willingness and intent at the time of the survey to dedicate the streets marked off and shown on. the map to the public, there is no dedication, in the absence of an acceptance of the same by such village.
    8. Same—Acceptance after Death of Owner.
    The death of the owner is a revocation of any proffered dedication of such streets, and an acceptance thereafter by the village gives it no right therein.
    Appeal from court of sessions, Montgomery county.
    Dayton S. Kellogg was convicted of obstructing an alleged public street or highway in the village of Ft. Plain, and appeals.
    Reversed.
    Argued beiore MAYHAM, P. J., and PÜTNAM and HERRICK, JJ.
    George E. Phillips, (A. M. Mills, of counsel,) for appellant.
    Charles S. Nisbet, for respondent. «
    
   MAYHAM, P. J.

The principal question on this appeal is whether the locus in quo upon which the alleged obstruction was erected by the defendant was, by dedication by the owner of the land, and acceptance by the municipal authorities of the village of Ft. Plain, a public highway. There is no claim on the part of the respondent that the land upon which this obstruction was placed by the defendant had ever been condemned, and taken by the public authorities for a public street, under the power of eminent domain. But it is insisted that the facts proved on the trial established, in law, a dedication by the owner, and an acceptance by the municipality, of the land in dispute, so as to constitute it a public street.

The case shows that Hannah Kellogg, prior to and during the year 1881, owned the land then and now known as “Prospect Hill,” and that in November of that year, at the request of this defendant, an engineer laid out part of Prospect Hill into lots, and staked out streets, drove stakes at the corners of each lot, and marked out to show where the streets were to be located, and, after that was done, made a map of it. At the time of making this survey and map, the land known as “Prospect Hill” was all a part of the farm of Hannah Kellogg, and used as meadow and pasture lands by her until December, 1881, when she, with her husband, this defendant, deeded to one Edwards lots designated in such conveyance as “Lots Nos. 1 & 2 in section on map of village lots made by E. H. Putnam, civil engineer, for Dayton S. Kellogg, in the month of November, 1881.” This conveyance bounded the lots on the east by Clinton avenue, and north by Henry street, conveyed the fee of Clinton avenue, subject to the right to the public to use said street, and reserved the right in the grantors to make such improvements on such street or avenue as they may deem advisable, in the interest of lot owners. In 1885 Dayton S. Kellogg and Hannah Kellogg conveyed lots No. 3 and 4 by deed with similar reference to the survey and "map, and with like reservations, and & May, 1886, lot No. 8, with like reference and reservations. Several other deeds were executed in 1885 by the same parties, containing similar reference to the map and survey, and containing substantially the same reservations. These deeds were all put in evidence by the people, under the defendant’s objection. There is no direct evidence in the case that the corporation at the time, or near the time, of making this map and survey, did any act to adopt such survey, or the streets platted on it as streets of the village. Nor is there any evidence to which my attention has been directed, or that I can find in the record, that any highway or street labor has ever been applied on the streets, designated on that survey or map, before the passage of a resolution lay the common council of the village of Ft. Plain on the 27th of July, 1891. That resolution or ordinance is as follows:-

“Whereas, Hannah Kellogg, deceased owner, did in the year 1881 lay out certain streets in the village of Ft. Plain, commencing at or near the bridge at the Red Mills, in said village, naming said streets as ‘Kellogg Avenue,’ ‘Clark Avenue,’ ‘Gilbert Avenue,’ ‘Clinton Avenue,’ ‘Henry Avenue.’ and ‘Edward Avenue,’ as per map made and filed in Montgomery county clerk's office, therefore, resolved, that said village accept of said streets above named as laid out and dedicated by said Hannah Kellogg, deceased landowner; that said streets retain the same names, and be known and named as originally named by said landowner. ”

This ordinance was received in evidence under the defendant’s objection. The survey, map, conveyances, and ordinance above referred to constitute all the evidence of a dedication and acceptance which I am able to find in the record. Without stopping here to consider the admissibility of the evidence by which this dedication and acceptance is sought to be established, I do not think it proves such a dedication and acceptance as is required to divest the owner of the lands embraced in these streets, or to invest the corporation with the title for street purposes. No act of the owner of this land has been proved, showing, or tending to show, an absolute surrender on her part, to the village or public, of her right, title, and control of these lands. Assuming that the survey and maps were made by her direction and authority, (which is not shown,) still that act would not be inconsistent with a purpose on her part to rétain title and control in herself of all these lands, subject only to the rights and privileges conferred by her grants on her grantees. It was in ‘no sense a dedication to" the public or the village, but simply a method of subdividing her own property, for her own convenience, in order to facilitate sales of the same in small parcels. To constitute a dedication to the public, which shall divest the owner of, and invest the public with, the right or title to land, something more is required than was done b.y her in this case. In Bridge Co. v. Bachman 66 N. Y. 261, it was held that “when the owner of lands lays the same out in lots and streets, makes and files a map or plat thereof, and sells and conveys lots by the map, bounded upon the streets as delineated thereon, this does not necessarily, and without other facts, make the streets so laid out public highways.” It was also held that, “to const}tute a public highway by dedication, there must not only be a setting apart, apd a surrender to the public use, of the land, by the owner, but also an acceptance and formal opening by the proper authorities, or a user. The acts and declarations of the owner must be unmistakable in their purpose, and decisive in their character, showing the intent to dedicate the land absolutely'and irrevocably to the public use.” In Holdane v. Trustees, 21 N. Y. 478, Wright, J., in discussing this question says:

“Throwing open land in a village, and fencing it on each side, and causing the way or avenue to he designated on a public map of the village, are acts tending strongly to show a design, presently or at some future time, to dedicate and devote it to the public use. But these acts are not conclusive to establish a present dedication, binding upon the owner of the land. One may fence off a strip of his own for the purpose of a passage way opening on a public street, or he ma)r lay out a street through it with a view of subserving his land, bounded upon it, into village lots, intending, upon the sale of such lots, to dedicate the street to the use of the public; but in such case, though the public may have occasionally, or indeed at all times, used the open way in passing to and from the inclosure of an adjoining proprietor, it could scarcely be pretended that the land had thereby become burdened with an irrevocable public servitude. ”

Tested by this rule, there was not such a dedication to the public by Mrs. Kellogg, in her lifetime, as to vest the right to these lands in the public as0a highway. But if the acts of Mrs. Kellogg could be construed into evidence of willingness on her part, at the time of this survey, to dedicate these streets to the public, still there was clearly atthat time no adoption by the municipality of such proffered dedication. The adoption of the ordinance of July, 1891, was a declaration or acknowledgment on the part of the municipality that up to that time there had been no adoption by it, and hence no dedication, (City of Cohoes v. Canal Co., 54 Hun, 558, 7 N. Y. Supp. 885, reversed 134 N. Y. 397, 31 N. E. Rep. 887,) and the law is well settled that there can be no dedication without an acceptance by the public, (Fonda v. Borst, *41 N. Y. 50; Bridge Co. v. Bachman, supra.) Before such acceptance, the village owed no duty to the public in reference to these streets; and, at the time of its adoption, the proffered dedication by Mrs. Kellogg, if any was ever made, was, it would seem, revoked by her death. Bridges v. Wyckoff, 67 N. Y. 132; Wallace v. Townsend, 43 Ohio St. 537, 3 N. E. Rep. 601.

If I am right in the above conclusions, there was no public highway or street at the point where the alleged obstruction was placed by the defendant, and his act was not a violation of section 385 of the Penal Code. Upon this view of the case, it is unnecessary to examine the other, exception taken by the defendant on the trial. The judgment of conviction mnst be reversed, and a. new trial ordered, under the provisions of section 543 of the Code of Criminal Procedure.

PUTNAM, J., concurs in result. HERRICK, J., not voting.  