
    The City of Buffalo v. Hoffeld et al.
    
    (Superior Court of Buffalo—Equity Term,
    March, 1893 )
    "When a road is laid out as an entirety and only a part is opened and worked, and the remainder remains entirely closed, the public loses its rights therein after the lapse of six years, and such rule is applicable to a city street where an easement only is acquired.
    The action is brought, as stated by plaintiff, to compel the removal of obstructions erected within the boundaries of a certain street- The determination whether the structures complained of, and admitted to exist, constitute an obstruction to the street, involves an inquiry into the legality of the street’s existence where the obstacles are. The testimony and the admitted facts establish one Reuben B Heacock as the common source of title through which both parties claim. Plaintiff claims title to the street by dedication and acceptance thereof by the public authorities, and also by eminent domain proceedings.. This claim is based upon certain deeds and maps, not necessary to recite, from which it appears that there was a street in existence known as North Canal street extending for some distance westerly of the premises in dispute, and that such portion was an open worked street with buildings fronting thereon and many street improvements existing therein, and which continue to exist, That as early as 1835 Heacock conveyed a part of the premises to one George, describing the same by reference to a road fifty feet wide, a part of the present claimed street. That thereafter, in 1835, George caused to be made and filed a certain map showing a street called “ North Canal street,” fifty feet wide, with lots fronting thereon, and sold and deeded some lots bounding thereon This map, however, does not extend the street over the premises now in dispute, but stops at Little Buffalo creek, then a stream of water, but since filled in and obliterated. With the stream filled in, the line of the street laid out, extended easterly, would embrace the disputed premises.. Subsequently, and on December 11,1848, Heacock acquired title to the property of a company called the “Hydraulic Association,” on the northerly bank of which, and upon the property conveyed, ran the proposed street Heacock likewise filed a map showing the street as existing on the George map. It does not appear that the city accepted the proposed street or took any action thereon until May 7, 1850, when a committee of the common council reported that it did not appear that the street had ever legally been laid out, at least not as matter of record, and adopted a resolution directing the surveyor to survey said street, as originally dedicated and laid out by the owners of the land. Subsequently a report of the surveyor was made showing the street as originally laid out, and upon such report the city adopted a notice of intention to take and open up the street, followed by a resolution of determination to appropriate the lands necessary to open up North Canal street, in each instance describing the lands appropriated. Commissioners were appointed to appraise the damage, who reported, and the report was thereafter confirmed December 24, 1850. In 1853 like proceedings were taken by the city to widen said' street ten or ten and one-half feet, resulting in a confirmation of the report of commissioners appointed to assess the damages, and the payment of awards made to various parties, of whom one was Heacock, by local assessment. Record of these proceedings was entered in a book kept by the city, except that relating to the opening of the street fifty feet wide, of which nothing is recorded except the resolution of determination. No record of these proceedings, or any other relating to the street, taken by the 'city, was ever recorded in the clerk’s office of Erie county. In 1853-Heacock commenced an action against the city to restrain the ' grading .or interference with the street. This action, upon demurrer to the complaint, was decided in favor of the city, and judgment thereon was entered. The name of the street has been twice changed, first to North Swan, then to Seymour, by which it is now known. It has been opened as far as Lord street, now called, and is at present used as a street to this point. In 1876 grade of the street was ordered made to Smith street, which intersects it, and August 22,1881, grade was adopted. Ho other act having reference to this street has been taken by the city except such as relate to a notice to remove the obstructions about 1885. It was conceded by the city that there is no record that the street has ever been opened or worked east of Lord street, which embraces the part in dispute It is also established that this portion of the street has never been opened, worked or traveled; that during all the time it has been continuously occupied by the defendant and his grantors with buildings and bark piles and other structures; that in 1875, prior to defendant’s purchasing the premises, a fence was constructed around the property, piles of lumber and buildings existed thereon, and there was nothing from the appearance of the ground indicating the existence of any street, or that there had ever been one, and a search of the records showed a chain of title then complete in defendant’s grantor. In 1870 Jacob Getz and others were the owners of these premises and executed a mortgage thereon to their grantors, Wilhelmiua and John Pfill, which mortgage was thereafter assigned to Thomas Edmonds, who foreclosed the same, making the city a party. Judgment of foreclosure and sale was ordered, the city making default, and the premises were thereafter sold by the sheriff and bid in by one Haines, through whom defendant makes title. About 1883 one Garretson, president of the defendant furniture company, learning that it was proposed to extend Seymour street, inquired at the office of the city engineer with respect thereto, and the lines of the proposed extension. He was there shown a map of the proposed extension from Lord to Smith streets, which showed the contemplated extension in straight lines, the street as originally proposed containing a sharp angle; thereupon he caused a survey to he made of such proposed extension, located the line upon the ground and erected thereon permanent brick buildings which are now in the line of the street sought to be opened. They constitute a' part of the obstructions complained of. Ho notice of any change in the proposed extension has ever been given, except the notice to remove all obstructions. Upon these facts the plaintiff asks judgment.
    
      W F Mackey, for plaintiff.
    
      Frank C. Laughlin, for defendant.
    
      
       Received, too late for insertion, in proper place.— [Reporter.
    
   Hatch, J.

'It is not essential to determine whether the city ever acquired any rights in this property by dedication, for whether it came by dedication or by eminent domain proceedings the character of the right obtained would be the same. The law as it existed at the time the street proceedings were instituted, as well as those taken to widen the proposed street, only authorized the acquiring of an easement therein, the fee thereto still remaining in the owner. Laws 1847, chap. 364, §2 ; Laws 1848, chap. 101, §1. These statutes make no mention of a fee, and are in all respects similar to the language used in general statutes authorizing the acquirement of lands for highway purposes in the country. It has been many times held that thereunder only an easement is acquired, and this in accordance with the well-settled rule of law that no greater estate or interest will be deemed taken than is absolutely necessary to satisfy the requirements of the statute authorizing the appropriation. Matter of Water Commissioners of Amsterdam, 96 JST. Y. 351; Wash. Cemetery v. P. P. & C. I. B. Co., 68 id. 591.

It was not until the revised charter was adopted (Laws 1853, chap. 23, §§10, 18) that just compensation was required to be made for lands taken for street purposes under which a fee was acquired. The present proceedings, as the record shows, were instituted and conducted to the end under the prior statutes; consequently, only an easement in the land was or could be obtained. So far as the proceedings instituted by the city to lay out the street fifty feet wide are concerned, the proof is insufficient to show a compliance with the statute, for by its provisions (Laws 1847, chap. 364, § 2 ; Laws 1848, chap. 101, § 1) the city was required to cause all streets laid out by "them to be surveyed, described and recorded in a book to be kept by the clerk, the same to become public highways when •opened and made. This street, so far as these premises are •concerned, has never been opened and made, and it is conceded that the only record ever made of such proceeding was the resolution of determination. There is, therefore, a fatal •defect both as to the act and its evidence by record. Marvin v Pardee, 64 Barb. 353 ; Satterly v. Winne, 101 N. Y. 223 ; Prescott v. Beyer, 34 Minn. 493; Elliott on Roads and Streets, 293.

It is probable that in the widening proceedings the record might be upheld. If, however, the claim of dedication and acceptance by act of the city, as evidenced by the owners •of the land, and the proceedings taken, could be upheld, I do not think plaintiff would be aided for other reasons. As already observed, these premises constituting one end, the entire width of the street has never been opened, worked or traveled, and no attempt has ever been so made until notice to remove obstructions was given. ' By provision of law existing when this street was laid out, amended by Laws of 1861, •chapter 311, it was provided that every public highway laid •out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being laid out, shall cease to be a road for any purpose what■ever. 2 R. S. (8th ed.) 1382.

Plaintiff insists that this statute has no application to this ¡street and was only designed to affect country highways, not .streets of cities. To uphold this contention he cites Vanderbeck v. City of Rochester, 46 Hun, 87; Matter of Lexington Avenue, 29 id. 305.

Tliese .cases are without application. They both arose under .statutes and proceedings which vested the fee of the streets in the city, and the reasoning of the court proceeds upon the theory that as a fee was taken the statute was inapplicable, as it related to cases in which an easement only was acquired. When such is the character of the right obtained it is manifest that there is no reason excluding a city street from its operation, and so are the authorities. Beckwith v. Whalen, 9 Hun, 408; 70 N. Y. 430; Ludlow v. City of Oswego, 25 Hun, 260; Woodruff v. Paddock, 56 id. 288.

It is further insisted that even though the statute he applicable, yet that the road having been opened for a portion of the way that there was compliance with the law, and that the city could delay opening the remainder until the public need demanded it, without impairing in any respect its rights therein. This claim is answered m Beckwith v Whalen, 70 N. Y. 435. “A highway cannot be said to be opened and worked unless it is passable for its entire length.”

There is nothing in the cases cited conflicting with this view

In Marble v Whitney, 28 N. Y. 297, the highway was ojiened for its entire length, although difficult of travel.

In Walker v. Caywoocl, 31 N. Y. 51, the road was opened its entire length but not its entire width, and it was held the statute did not prevent its being opened the entire width after the statute had run, although thirty years had elapsed.

In Vandemark v. Porter, 40 Hun, 397, the road was dedicated and laid out, but only opened and worked part of the way. The attempt was to destroy the existence of that portion of the road opened, because not opened the entire length as laid out. It was held a road to the extent opened. 1 think there can be no doubt that when a road is laid out as an entirety, and only a part opened and worked, and the remainder remains entirely closed, the public loses its right therein after the lapse of six years, and that such rule is applicable to a city street where an easement only is acquired. This result disposes of this case in favor of the defendant. The careful and able brief submitted by plaintiff’s attorney has received careful and attentive consideration, and the cases cited have been examined. I refrain from further detail of discussion, and announce the result reached upon each question. The evidence authorizes the conclusion that there was an abandonment of all rights acquired by the city in the street by nonuser. That the city was cut off from all rights in tins property under the Edmonds foreclosure. This, for the reason that when the city lost its rights in the street, the title remained in the owner of the soil, relieved of the easement burden, and Edmonds, being a grantee of such owner, had the title. For the same reason, the judgment obtained against Heacock is not a bar. It might well be that he could not successfully resist the claim of right in the city at that time, but when the city lost its rights therein, the fee remained in Heacock and his grantors I am also of opinion that defendant, being a purchaser in good faith, and for value, and there being nothing upon the ground to show the existence of the street, and the city not being in possession, is protected, under the recording acts, in his purchase, and that the city is estopped from now questioning his title. I am also of opinion that defendant has proved title by adverse possession. It follows that the complaint should be dismissed, with costs.

Complaint dismissed, with costs.  