
    City of Cohoes v. Delaware & H. Canal Co., (two cases.)
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Dedication—Extent of Right.
    In an action to restrain defendant from laying railroad tracks in an alleged street of plaintiff, it appeared that a map made by the town-site company, which originally owned the land, showed, along the west side of the street, an open canal, 30 feet wide, which was to be used for private purposes. The canal was never made, and the town-site company subsequently conveyed all its interest in the street to defendant. Held, that as plaintiff acquired no rights except such as the town-site company had given the public, and as no adverse user had been shown to modify the terms of the dedication, plaintiff could not restrain defendant’s occupation of the 30 feet designated as a canal.
    2. Same—Abandonment.
    In April, 1851, the town-site company authorized its president and agent to agree with defendant’s grantor in respect to the location of a railroad. In 1853, with the consent of the town-site company, railroad tracks were laid on the street in question, occupying SO feet thereof, and they have been maintained there ever since. Since that time, also, a freight-house has entirely blocked the so-called street at one point. The railroad tracks and the reserved 30 feet for a canal take up the whole width of the street. Held-, none of the grantees of the town-site company complaining, and no acceptance of the highway by the officers of plaintiff city being shown until 20 years after the occupation of the street for railroad purposes, that this amounted to a revocation of the dedication made by the town-site company by the designation of the street on its map.
    S. Highways—Failure to Work.
    The street, which originally was a country highway, had never been opened or worked. On its incorporation, the city never assumed any care or responsibility over it. Held, that the street had ceased to be a public highway, under Laws N. Y. 1861, c. 311, providing that a highway not opened and worked within six years shall cease to be a road.
    Appeal from special term, Albany county.
    The first action was brought to restrain defendant from laying tracks in certain portions of an alleged'Van Rensselaer street, in Cohoes. The second was brought to restrain the construction of a freight-house in said alleged street. The two actions were tried before the court without a jury, and a decision in each action was rendered for the defendant. The plaintiff appeals. The facts are substantially the same in each action, and, as found by the court, are briefly as follows: In 1833 the Cohoes Company became the owner of a considerable tract of land, within which is the alleged street. A map, known as the “Olmstead Map, ” purporting to be a map of the village of Cohoes, has been kept in the office of said company since 1857. A similar map is on file in the county clerk’s office of Albany county, having on the margin, “July, 1835.” The Index-Book of Maps in said office indicates that to be the date of making the map. In that map the land known as “Van Rensselaer Street” was designated as such street. In 1847 the Cohoes Company sold a lot bounded, “Beginningat the north-west corner of Ontario and Van Rensselaer streets, ” etc., and referring to a map, which is the aforesaid map on file. Another map, called the “Frost Map, ” made by Frost, the civil engineer of said company, dated 1845, has been in the office of the company since 1857, which map lays down said Van Rensselaer street as one of the streets of said village. Each of said maps lays down an open canal, about 30 feet wide, extending most of the way from Ontario to Oneida street, on the -west side of and within the alleged Van Rensselaer street. Said canal was never opened or used. The strip designated as “Van Rensselaer Street” is 80 feet wide from Mohawk street to the Mohawk river, intersected nearly at right angles by Oneida, Ontario, and Pine streets. In 1858 the Cohoes Company conveyed a lot described as bounded by the west line of Van Rensselaer street; and so, also, another lot, in 1861. The Albany Northern Railroad Company, to whose rights defendant has succeeded, filed a railroad map in 1853, which designates Van Rensselaer street in the same manner as the othermaps; and in thatyear said company constructed its railroad the whole length of Van Rensselaer street. It is about 50 feet wide, as at present occupied, and is along the easterly side of the street, except the so-called “Plaisdell Side Track. ” About that year said company constructed a freight-house near the corner of Oneida street and partly in Van Rensselaer street, about 52 feet long, extending in width entirely across that part of the alleged Van Rensselaer street not occupied by the tracks; the northerly end being about 30 feet south,of Oneida street. This was continuously occupied for railroad purposes till 1887. From 1845, people having occasion to travel that way passed with teams and vehicles over the line of said alleged street, about where the tracks afterwards were. Afterthe tracks were laid, people in like manner passed over the street west of the tracks. After the freight-house was constructed, they passed around that house through a vacant lot, and so back to the street. They drove to and from the freight-house, in delivering and receiving freight, on the west side of the tracks in said street. In June, 1874, the common council of Cohoes passed a resolution that Van Rensselaer street, from Oneida to Mohawk street, be declared a public street, and graded. It is not shown that any work has been done by the plaintiff on the street between Oneida and Ontario; and the work between Ontario and Pine is but trifling. No real attempt to grade is shown to have been made. It is found in the first action that in November, 1886, the defendant attempted to lay down an additional track between the present tracks and the west line of Van Rensselaer street, north of Pine; and in December, 1886, the defendant attempted to lay a similar track north of Ontario. No part of Van Rensselaer street had ever been worked, within the meaning of chapter 311, Laws 1861, prior to June 4, 1880, or within six years after the resolution aforesaid. The court further found in both actions that the Cohoes Company, by its acts aforesaid, expressed an equivocal and qualified intent to permit the use of the said strip of land as a public highway, subject to the right of revocation; that the action of the company in permitting defendant, or the Albany Northern Company, to lay its tracks and build its freight-house expressed an intent to revoke such dedication; that there had been no such public uses as to constitute the strip of land on public highway. It was also found in the second action that in December, 1887, the defendant began to excavate for the foundations of a new freight-house, extending 34 feet further south and 30 feet further north than the old. In 1883 the Cohoes Company conveyed to defendant all its interest in Van Rensselaer street.
    Argued before Learned. P. J., and Landon and Putnam, JJ.
    
      E, Countryman, for appellant. Edwin Young, for respondent.
   Learned, P. J.

It is not important to inquire what rights the grantees of lots bounded on the alleged street may have acquired thereto. Bridge Co. v. Bachman, 66 N. Y., at 267. Such grantees are not before us. The question is, what are the rights of the city of Cohoes, claiming to act for the public? Many cases are cited by the plaintiff, such as Bissell v. Railroad Co., 23 N. Y. 62; Wiggins v. McCleary, 49 N. Y. 346; Cox v. James, 45 N. Y. 557, —showing that where a grantor has conveyed land, bounding the same upon a street laid out by him on some map, the grantee acquires a right to the use of such street. Such cases, however, only show the individual right of the grantee, not the right of the public. The grantee pays a consideration, and for that he acquires a right over the street laid out on the map. But the public have paid no consideration, and are ho parties to the transaction. Hence it is that, as to the public, the acts and declarations of the owner must be unmistakable in their- purpose and decisive in their character, (Washb. Easem. 182;) for, as to the public, the owner is not selling, but, as claimed, is making a gift.

Now, in the present case, the maps made by the company showed, along the west side of the street, an open canal of 30 feet wide. Evidently, then, that part of the street was not dedicated as a public highway; for that canal was to be used to supply water to mills, not for purposes of navigation. The public could take only what the owner gave; and, as the owner showed that this strip of 30 feet was to be, or might be, used as a canal, the public could not take that part as a highway. The case is similar to the Bachman Case, above cited. In that case, there was a note upon the maps reserving a discretionary power to say how much and what part of the streets should be used for canals. It was held that this negatived the intention of absolute and irrevocable dedication. In the present case, the owner did not reserve a right to be exercised in the future, but on the very map itself it showed that 30 feet of the so-called street was reserved for a canal. Whether or not the canal was afterwards built is immaterial on the question of the effect of the maps; for the public could claim nothing more under the maps than the maps gave. The plaintiff urges that the omission to build the canal does not authorize defendant to lay its track on the 30 feet. But that is a question between the defendant and the Cohoes Company. The plaintiff, to succeed, must show that the 30-feet strip is land over which the public have the right to travel; and the first step necessary is to show dedication by the Cohoes Company. In the Bachman Case no canal had been actually constructed; but the right to construct took away the claim of the public that there had been an absolute dedication. In 1883 the Cohoes Company conveyed all its rights in Van Rensselaer street to defendant. Let us suppose that before that date the Cohoes Company (or, after that date, the defendant) had commenced to construct a canal on this strip of 30 feet. On what ground could the plaintiff have objected? If it appealed to the maps for its right, the maps would have shown that the dedication, such as it was, was qualified by the canal shown on the maps; and the plaintiff has never acquired any rights, except such as the Co-hoes Company had given to the public. No user by the public, or formal acceptance by the city, would modify the terms of the dedication. Certainly not, unless the user could be shown to be adverse to the right reserved in the dedication. That is not shown here. Burbank v. Fay, 65 N. Y. 65.

Further, on the question of dedication, it appears by a resolution of the Co-hoes Company in April, 1851, that the president and agent were authorized to agree with the Albany Northern Railroad Company in respect to the location of the railroad, and the damages; and that in 1853 the tracks of the company were laid as they have ever since been, and now are. And from the same time the freight-house has entirely blocked the so-called street at one point. These acts, it is just to conclude, were done with the, consent of the Cohoes Company. The railroad tracks of 50 feet wide, and the reserved 30 feet for a canal, take the whole width of the street; and the construction of the tracks and freight-house show that at that time, at least, there was -no Intention on the part of the Cohoes Company to dedicate this street to public travel. Even then, if we assume that by the maps the Cohoes Company dedicated the so-called Van Rensselaer street as a highway, reserving the 30 feet for a canal, still the dedication must be deemed to have been revoked in 1853, if revocation was possible. It is evident, on principle, that the owner of land, by laying out a street thereon upon a map, and even by opening and working such street, cannot make it a public highway; for, if it is a public highway, a duty lies on the public authorities to take care of it, and such duty cannot be imposed on them by the mere act of the owner. There must be an acceptance. Holdane v. Trustees, 21 N. Y. 474. Such acceptance may be formally made by the public authorities; and in the present case a formal acceptance was made by the plaintiff, June 3, 1874. At that time, however, the defendant and its predecessor had been for more than 20 years in possession of the tracks and the freight-house; and the defendant could not, by that acceptance, be deprived of any rights it had acquired by the consent of the Cohoes Company. The plaintiff did not assume to declare only the 30 feet west of the railroad track a public highway, but declared the whole street such, and directed that it be graded. This resolution of the common council declaring Van Rensselaer street a public highway might be considered an acknowledgment by the plaintiff that up to that time the street had not been a public highway. Certainly, there had been no acceptance by the public authorities prior to that time.

But the plaintiff relies on user by the public as showing an acceptance. It will be seen, on examining the ease, that prior to 1853 there is very little proved which can be called a public use. A few persons drew manure from private property. After 1853, any user was restricted to such part as was not occupied by the tracks and the freight-house. Persons passed along at the side of the tracks, and then back of the freight-house, upon private property, and then returned to the alleged street, so that a part of such travel was over land Where it was not claimed that any street existed. Much, too, of the travel was to the freight-house, for the purpose of delivering and receiving freight; and this would not necessarily show use as a public highway. It might show only such access to the freight-house as the defendant would naturally permit for its own good.

Before considering the question of the length of time which user must continue in order to give the public right to a highway, we notice one position taken by plaintiff, resting upon language used in Holdane v. Trustees, 23 Barb., at 119. That is that there is a difference between a public right of passage over lands and a highway which the public authorities are bound to keep in order. That case was afterwards heard in the court of appeals, (21 N. Y. 474,) and nothing is there decided to sustain this view. The doctrine there was that the land in question was not charged with a perpetual public burden, although the public had enjoyed free and indiscriminate passage over it. And, while an owner of land, by opening a street and selling lots bounded thereon, may thereby give to the owner of said lots the right of access thereto over the street for themselves, and all persons having business with them, yet the street does not thereby become, in the true sense, public. Nor do we think that there can be a full right of passage for all the public, with teams and vehicles, over a piece of land which is not a highway, with the care of which the public authorities are charged. In the case of In re Bridge, 100 N. Y. 642, the report of a referee had held the town of Crawford liable to rebuild one-half of the bridge across the Shawangunk kill, a boundary between the towns of Crawford and Shawangunk. The road which crossed the stream at the bridge was opened, and the bridge built at private expense. The general term reversed the order entered on the report. The question was whether there had been an acceptance by the town; and the court of appeals, in affirming the order of the general term, said: “Here the use of the road by the public was only for about four years; and, if mere user by the public, without any action of the town authorities laying out or recording or improving or accepting the road can make a highway, (a point we do not determine,) such user must continue at least twenty years. ” This case came up under chapter 639, Laws 1857. It was not a matter for a jury. It wras for the court to determine whether the town was liable. The referee and the special term had held that the town was liable. It therefore was necessary for the court of appeals to decide this point; and, in saying that 20 years was necessary, it gave the reason why 4 years was not enough. We cannot consider this remark to be obiter. In People v. Loehfelm, 102 N. Y 1, 5 N. E. Rep. 783, the court, speaking on this matter, say, “long public use,” which is not inconsistent with the case just cited. The same expression, “long public use,” is found, in Cook v. Harris, 61 N. Y. 454. In. Wiggins v. Tallmadge, 11 Barb. 457, there was over 20 years’ user; but it was said that authorities differed as to the requisite time. So in McMannis v. Butler, 51 Barb. 436. In Wilrick v. Hager, 10 N. Y. St. Rep. 768, the road had been opened and worked by the public authorities. The Hunter Case, 6 Hill, 407, was where a burial-ground had been dedicated, and had been used for 36 years. The peculiar uses of the land might well justify the holding that much less than 36 years would have been an acceptance. With the recent case in our highest court above cited to control us^it does not seem profitable to examine the decisions of other states, or of other countries. There is very little use in reporting the decisions of the court of appeals, unless they are to be held decisive of the law, at least until that court shall reverse them.

The dedication under which the plaintiff claims must have been made in 1835 or 1845. If 20 years’ user by the public is needed to show acceptance, the street could not become a highway until 1855 or 1865. By chapter 311, Laws 1861, a highway not opened and worked within six years shall cease to be a road. In Ludlow v. Oswego, 25 Hun, 260, this is held applicable to dedicated highways. This would require the working and opening of the road by 1861 or 1871. It is stated, and we may take notice of the fact, that the plaintiff was incorporated in 1869. In the case last cited, and in Horey v. Haverstraw, 47 Hun, 356, it was held that this statute was applicable to “streets,” strictly so called. The contrary was held in Vanderbeck v. Rochester, 46 Hun, 87. Without considering whether or not the statute would apply to a street laid out or dedicated in a city, we must notice that when this street, as claimed, was dedicated the city did not exist. It is stated in plaintiff’s brief that the village was organized in 1847 or 1848, but no evidence of this is given. At any rate, the so-called street was originally a mere country highway. The city, when organized, did not take this street by any proceeding for that purpose, nor did the city proceed to have the street opened and worked before the six years had elapsed. And, certainly, the city could not, without some action on its part, be required to assume the care and responsibility of every disused highway within the city limits. In Beckwith v. Whalen, 70 N. Y. 430, it was said that, to be worked and opened, the highway must be passable for its entire length. It does not appear that this street was ever worked during the time in question, and it was completely obstructed by the freight-house.

The defendant, as has been already seen, is now the owner of the fee. It has the right, therefore, to use the land as it chooses, unless the plaintiff can assert for the public a highway over the part west of the tracks. Of the part occupied by the tracks and by the freight-house, the defendant has had for many years undisputed possession. There is nothing to indicate that its obstruction of the whole street was limited by anything but its own convenience. Travel along the side of the tracks did not interfere with its business, and was to a great extent connected'with it. The plaintiff does not put itself in the position of having purchased, or taken by proceedings in invitum, this street, or of having expended labor or money upon it; nor does it show that it, or any one whom it represents, ever accepted the gift tendered by the Cohoes Company. We are of opinion that the judgments should be affirmed, with costs. 
      
       3 N. E. Rep. 679.
     