
    Mary P. Iselin, Appellant, v. The Village of Cold Spring and Henry Metcalfe and Others, as Trustees of the Village of Cold Spring, Respondents.
    Second Department,
    June 14, 1907.
    Municipal corporation—real property—public easement by adverse user — evidence — burden of proof.
    In an action for an injunction to restrain the-construction of a sewer through the plaintiff’s lands, her title was not attacked, but the municipality claimed that it was a public street. The plaintiff traced .title to a grant of lands under . water made in 1811. The lands were not filled in until 1886, nor .a dock constructed until 1842, but from that time they had been recognized and taxed as property of the plaintiff. The defendants assert a public easement. Evidence examined and held, to be insufficient to establish a public easement. ■
    Assuming that a public right cannot be extinguished by adverse user, the fact that a private owner- and her predecessors have been in uninterrupted and ' exclusive possession for more than sixty years, and that the public authorities have repeatedly recognized this right to possession, is entitled to great weight, and the municipality is under the burden of establishing a public easement.
    The provisions of the Revised Statutes confirming the act of commissioners of highways in laying out.roads of which a survey had been filed and recorded, give probative force to the record only when'the highway was then in use' or had been theretofore laid out and allowed by law, and a - municipality cannot claim a publió easement oyer private property without proof of either of said facts.-
    Hookeb, J., dissented.
    Appeal by the plaintiff,.Mary P. Iselin, from a judgment of -the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of -Putnam on- the 23d day of May, 1906, upon the decision of the court, rendered after a trial at the Orange Special Term; dismissing the complaint, and also from an order entered in said clerk’s office on the 2d,day of December, 1905, vacating an injunction pendente lite theretofore granted to the plaintiff.
    
      Charles F. Brown [Louis M. Sonnenberg with him on the brief], for the appellant.
    
      Joseph A. Greene [Eybert V. Nelson with him on the brief], for the respondents.
   Miller, J.:

The action is for an injunction to restrain the construction of a sewer through property claimed by the plaintiff, consisting of a dock built into the Hudson river at the foot óf Main street in the village of Cold Spring. The plaintiff’s title is not attacked, but the defendants claim that the locus in quo is a public street.

The plaintiff traces her title to a grant of lands under water made by the State in 1811 to her predecessors in title who were the owners of the upland, The lands so granted were-not filled in until about 1836. A dock appears to have been constructed upon the site of the'present dock as early as'1842, since when it has continue ously been recognized as the private property of the plaintiff and her predecessors. The village has assessed it as. far back as the village records show, it has paid rent for the use of it, and now for the first time asserts a public easement.

The defendants rely upon the doctrine that a union between easements on land and on navigablé waters once made cannot be broken by subsequent changes in the land, whether made by natural or" artificial means. (People v. Lambier, 5 Den. 9; Matter of City of Brooklyn, 73 N. Y. 179.) In order to invoke ■ this doctrine the defendants had to show that before the land was filled in, as Stated supra, Main street extended to the waters of the Hudson river.

It may be assumed that a public right cannot be extinguished by adverse user, but the fact that the plaintiff and her predecessors have had uninterrupted and exclusive possession for more than sixty years and that the public" authorities have repeated!y recognized ■ their right to possession, is entitled to great weight. The burden was on the defendants to establish the easement which they Asserted. In the absence of record evidence,- it is difficult if not impossible to show precisely what the conditions were seventy years ago, and it is necessary to consider every fact and circumstance that can possibly have any legitimate bearing on the fact to be proven, but the difficulties of the case being due to the long acquiescence of the defendant village, the court should not accept vague and uncertain testimony as proof.

There is no proof of the terminus in 1811 of what is now Main street, except that furnished by the map filed in the office of the " Secretary of State with the application for the grant which was ' then. made. Said map indicates several buildings between the terminus of said, road , and the shore line, and. had there then been a road extending to. the water it is extremely probable that the Commis- . sioners of the Land Office would have restricted said grant so as to protect the public easemenh The defendants rely on a record in .the town clerk’s office of Philipstown made in 1817, purporting to be.the .record of. a survey made by Jacob Lent, surveyor, by the direction of two commissioners of the- highway of • said town, the material part of which I quote: “Beginning, at the westerly end and centre "of' the Philipstown Turnpike at Cold Spring Landing,. Bearing a course of South fifty-four degrees west.to the verge of the flats on the easterly edge of the Channel of said river and producing a distance from the low water mark of about Six chains and fifty links, to the'edge of thé said channel, and from the centre of the- said Turnpike to the extremity .of said road completing in all a distance of eight chains or thereabouts,”'

Said Philipstown. turnpike is now Main street,, and it is asserted • that said record furnishes sufficient proof of an existing highway pur- ■ suant to the Bevised Statutes (1 R. S. 520, § 98; Id. 521, § 100). Said section 98 confirmed the acts of commissioners of highways or any two, of them in laying out, altering or discontinuing any road or highway, provided such commissioners, or any two. of them, had caused a survey of such roads or. high ways to be. filed and recorded in the office; of the town clerk, of the town, and said section 100 provided, that “all public highways now in use, heretofore laid out. and allowed by any law of this State, of which a record shall have been made in the office of the clerk of the county or town * ' * *• shall be deemed public highways.” It. will- be noticed that the .probative' force of-.such a record depends upon one of two facts: (a) ' That the highway shall then be in use, or (b) that it shall have theretofore, been laid out and'allowed.-by lawi There is no proof of either of said facts. . Said survey does not purport to be incorporated in any order signed by the commissioners of highways, as -provided in the preceding section 55. (1 R. S. 513.) It purports to be signed by the surveyor.and not by the commissioners of highways, and there is no proof of any order signed by said' commissioners purporting to lay out said highway.. The statute was evidently designed to establish existing highways and to confirm proceedings of the highway commissioners in laying out highways in which there had, been irregularities. To permit proof of the acts of officers having limited jurisdiction by such a record as that relied on here, without any proof whatever of the facts upon which its validity depends, ignores long and well-settled rules of proving the acts of inferior courts or tribunals. In the case of Parker v. Van Houten (7 Wend. 145), relied upon by the defendants, the highway, of which the survey was recorded, was in actual use as a public highway at the time. It does not seem necessary to cite authority upon the proposition that the record of the survey is of no validity in the absence of proof of use, or of a laying out, but the proposition has many times been decided. (People v. Judges of Cortland County, 24 Wend. 491; Cole v. Van Keuren, 4 Hun, 262; Talmage v. Huntting 29 N. Y. 447; Miller v. Brown, 56 id. 383.) Moreover, the alleged survey does not comply with the statute because it is not a survey. ■ It. does not fix the bounds of the highway as the statute evidently intended. It simply describes its length and direction, and-even if it were properly received in evidence its probative force depends upon the location of the termini. The defendants rely upon proof that, allowing for the "changes in the declination of the needle since 1817, the distance and direction from a point at the intersection of the present Main and Market streets to the plaintiffs dock correspond with the distance and direction indicated by said survey, but the same distance and direction could be obtained from some other starting point, and as will be seen imfra it is not clear from the proof whether said Pliilipstown Turnpike ” terminated in 1817 at the present intersection of Main and Market streets, or whether its terminus was some distance to the north where ■ there was then a landing.

The respondents next rely on the descriptions contained in "deeds made by the plaintiff’s predecessors. As the land was filled in, lots were sold bounded upon the lines of Main street continued, and in many of the conveyances these lines are referred to as continuing into the river, but without referring to them in detail it is plain that they refer, not to an existing street or lines thereof extending into the river, but tó a continuation of existing lines, and, so far as they have any probative force at all, tend to indicate that the existing street did not extend into the water. It is plain, therefore, that the defendants’ case is not. aided in the slightest hy record evidence, but the judgment must be supported, if at all, by the testimony of living witnesses respecting conditions existing seventy years ago, and we are not at all surprised to find such testimony vague, Uncertain and conflicting.

From such testimony it appears either that Main'street terminated at its present intersection with Market street, and that the present Market street was then á highway paralleling the shore line, or that Main street formed two branches at said point, one extending southward to a foundry and the other northward to what was then Cold Spring Landing, and it is.quite immaterial which theoiy is accepted. It is certain that there was no reason for the street terminating in the waters of the river, at this point, as there was no landing there. The natural terminus of the street was either at the foundry or the landing referred to supra. It is clear from the testimony that, the shore line as it then existed was not far from Market street as . it now exists, but it is very uncertain whether any strip of land intervened between said highway and the-shore line. There is no proof of the width of these streets, and their existence as streets depended entirely upon user. Some witnesses say' that- the water came up to Market street as it now exists, but there is no proof that the highway as then used corresponded with the present width of Market street. Some say that there was access to the river at said point from the foot of Main street, but that does not disprove that there was an intervening- strip between the shore line and the highway over which said access was gained. There, is one important fact upon which' all of the witnesses agree, to wit, that there was a building between the river and the present intersection of Main and' Market streets. It appears that' at high tide the water came up under this building, but its presence and the fact that the landing was some 200 feet to the north are the two circumstances about which there appears to be no doubt, and which to my mind show' that Main street as it then existed did not terminate in the waters of" the- Hudson river at said point.

The defendants’ case rests 'wholly upon dedication and user. Undoubtedly the conveyances, bounded upon the street, made by the plaintiff s predecessors, granted easements to their grantees, and so far as the street was actually accepted, used and worked by the public, there was a dedication and acceptance-of á public easement, but such public easement was limited to the dedication actually made. (Matter of City of Yonkers, 117 N. Y. 564; Mark v. Village of West Troy, 151 id. 453.)

I advise that the judgment be reversed on the law and the facts.

Hirsohberg, P. J., Woodward ánd Jenks, JJ., concurred; Hooker, J., dissented.

Judgment reversed and new trial granted, costs to abide the final' award of costs. ' •  