
    George J. Klug, Respondent, v. Lewis Jeffers and Catherine Jeffers, Appellants.
    
      Dedicatiqn of'land, for a street—who must make it—what does not estop an Owner from, denying the efficiency of an alleged dedication of his land by its delineation as a street ón a map made and filed, by an owner of adjoining land.
    
    Charles P. Sanders, Jr., and L. Ten Broeck Sanders acquired in 1890 title in severalty to two adjoining pieces of land. In 1891 and 1892 L. Ten Broeck Sanders caused maps to be made and filed in the county clerk’s office designating as>a street a strip of land belonging to Charles P. Sanders, Jr., and adjoining the premises of the said L; Ten Broeck .Sanders. The latter also executed two deeds in which he located the lots conveyed by reference to the alleged street,
    Charles P. Sanders, -Jr., was an attorney, and under the employment of his brother, L. Ten Broeck Sanders, drew some of the deeds which referred to the ■alleged street.. He also filed one of the maps before referred to in the clerkis office. He testified, however, that he acted for his brother in whatever he did concerning the maps and that he never consented to the alleged street being opened.
    
      The space embraced in the alleged street was always fenced and was never in fact opened or used as a street. Charles P. Sanders, Jr., never made any conveyances with reference to the maps in question or referring to the open space shown on the maps as a public street. In 1900 he conveyed the land embraced in the alleged street to a third party by a warranty deed.
    
      Held, that a dedication of land for street purposes must, in order to be effectual," be made by the owner of the land, and that an intent on the part of such owner to make the dedication must clearly and satisfactorily appear;
    That there had been no dedication of the land in question for street purposes by Charles P. Sanders, Jr., the owner of such land, and that the evidence was insufficient to create an estoppel binding either upon him or upon the persons to whom he conveyed the alleged street from denying the efficacy of the dedication made by L. Ten Broeck Sanders.
    Smith and Houghton, JJ., dissented.
    Appeal by the defendants, Lewis Jeffers and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the ' office of the clerk of the county of Schenectady on the 26th. day of May, 1902, upon the report of a referee.
    
      Robert J. Landon, for the appellants.
    
      John D. Miller, for the respondent.
   Chester, J.:

The action is in equity to restrain the defendants from building on a lot claimed by the plaintiff to be a public street adjoining premises owned by him in the village of Scotia. The defendants deny that the lands on which they are building is a public street and that the plaintiff has any interest or easement therein. The issue was tried by a referee who reported that the land, 50 feet wide by 150 feet deep, upon which defendants were commencing to build, was a public street and that the plaintiff, as owner of the adjoining lot, was entitled to an injunction restraining the defendants from building upon such lot and requiring them to remove the foundation walls and other portions of their building therefrom. From the judgment entered upon that report the defendants have appealed.

The premises owned by the' plaintiff, as well as the alleged street lot, both formerly belonged to one Charles P. Sanders, the father of Charles P. Sanders, Jr., and L. Ten Broeck Sanders. In December, 1890, the lot occupied and owned by the plaintiff, with other premises, was conveyed by a referee’s deed in foreclosure to L. Ten Broeck Sanders, and the premises upon which the defendants are building, with other premises, were conveyed .by another referee’s deed in foreclosure to Charles P. Sanders, Jr. The division line between the lands of L. Ten Broeck Sanders and the lands of Charles P. Sanders, Jr., which -they respectively acquired under such referee’s deeds, is the westerly line of the premises claimed by the plaintiff to be a street and the easterly line of the premises owned by the plaintiff. The plaintiff and his wife derived their title in February, 1899, from one Osborne, who procured it from one Hardin, who received it under a deed from L. Ten Broeck Sanders, dated March 27, 1897. Ho one of these deeds referred in any way to the property being bounded by a street on the easterly side, but each of the. deeds referred to the lot as being a portion of lot 46 as designated on a map of the C. P. Sanders property in the village of Scotia, filed in -the Schenectady county clerk’s office. The plaintiff’s wife having died, he is the sole owner of the premises as survivor. Charles P. Sanders, Jr., conveyed the lot claimed by the plaintiff to be a public street to the defendants by warranty deed, dated Hovember 26, 1900. Jj. Ten Broeck Sanders never owned the lot so conveyed, and Charles P. Sanders, Jr., never owned lot Ho. 46. The plaintiff seeks to show that the lot occupied by the defendants has been dedicated to the public as a street and that the plaintiff is entitled to have it kept open as such. It is urged that it was designated as a street on certain maps filed as public records, and that the owner has made conveyances of lots designated upon such maps with reference to such á street thereon. This claim is based upon two maps and two deeds. One map, designated Map of lots belonging to the C. P. .Sanders property in the village of Scotia,” was filed January 26,. 1891; and the other, bearing the same designation, was • filed March 21, 1892. / In each of these maps an open space 50 feet wide by 150 feet deep is indicated upon the easterly side of the premises now owned by the plaintiff. Although this open space is not called a street and is -not named as such on either of the maps — notwithstanding on each of them streets are designated by name—yet an inspection of the maps would- naturally indicate to an observer that the open space was intended by- the draftsman to represent a street. However, to show that the open space was intended to represent a street and not a lot, as claimed by the defendants, the surveyor who made the map was permitted to swear over the objection of the defendants that the open space was intended to show a street. Two deeds, each of a lot shown upon the first of these maps, were received - in evidence, one made in 1892 and one in 1893. They were each given by L. Ten Broeck Sanders and located the lots conveyed by reference to this alleged street. Neither of them, however, were given to the plaintiff o.r his predecessors in title.

It cannot be doubted that when the owner of land lays it out into distinct lots with intersecting streets and sells the lots with reference to such streets, his grantee or successors cannot afterwards be deprived of the benefit of having such streets kept open, and the purchaser and his grantees have an easement in the street for the purposes of access, which is a property right. (Lord v. Atkins, 138 N. Y. 184.) But that is not this case. That is where the owner makes the dedication in that way, but ! know of no authority holding that an owner may, by making and filing a map showing a street over his neighbor’s land adjoining his property, dedicate such neighbor’s land to a public use. L. Ten Broeck Sanders never owned the land now claimed to be a public street, lying easterly of plaintiff’s lot, and hence could not dedicate any of that land as a street by mapping and selling with reference to the map. On the other hand, Charles P. Sanders, Jr., never owned plaintiff’s lot and never made any conveyances of property with reference to the maps filed or referring to the open space shown on the maps as a public street.

It is not seriously contended, however, that L. Ten Broeck Sanders could dedicate his brother’s property to a public use by filing maps and making conveyances with reference' to such maps. But it is urged that the conduct of Charles P. Sanders, Jr., with reference to the maps and the conveyances made by his brother, is effectual as an estoppel as against him and his grantees, and the referee undoubtedly decided the case in favor of the plaintiff upon that theory. The proof in support of that view on the part of the plaintiff is substantially that Charles P. Sanders, Jr., acted as attorney for his brother and drew some of the deeds under the employment of his brother, where reference has been made to the lot occupied by the defendants as a street; that he took the acknowledgment to some of them as a notary; that -he employed the surveyor to make one of the maps, and that he filed one of them in the clerk’s office.

The referee found as a fact that L. Ten Broeck Sanders caused the plot of land to be laid out in building lots and streets, and caused the map thereof to be filed in the clerk’s office. Charles testified that he acted for his brother in whatever he did concerning the maps; that he never authorized his brother to make a map which would embrace any part of his lands, or the lot in question, Or designate it as a public street, and that he never consented to a street being opened there. More than this, the evidence is clear that the lot was always fenced and was never in fact open to or used by the public or any one else as a street.

The dedication to be effectual must be by the owner of the land. (Dillon Mun. Corp. [4th ed.] § 635.) An intent on the part of the owner to. dedicate is absolutely essential, and to deprive the proprietor of his land the intent to dedicate must clearly or satisfactorily appear. (Id. § 636; Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261.) In the case last cited it was said: The acts and declarations of the land owner indicating the intent to dedicate his land to the public use must be unmistakable in their purpose and decisive in their character to have the effect of a dedication.”

Here there has been no dedication by Charles, the owner, and the evidence upon which an estoppel is claimed as against him is altogether insufficient, in the absence of dedication by him, in my opinionj to deprive his grantees of the title to the premises he conveyed to them or to subject their premises to the easement claimed by the plaintiff. ■

The judgment should be reversed on the law and on the facts, the referee discharged and a new trial granted, with costs to appellants to abide the event.

All concurred, except Smith and Houghton, JJ., dissenting.

Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellants to abide event.  