
    S. Fleet Speir et al. as Executors, etc., App’lts, v. The Town of New Utrecht, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Easement in land—How established by use ok prescription.
    To establish an easement in lands by use or prescription, the occupation and use of the land must be plainly for the purpose in view under an unequivocal claim, and if not actually adverse, at least under circumstances having the owner at all times free to resist the invasion.
    5?. Same — Coincidental use by tbe public of a private way does not RAISE PRESUMPTION OF GRANT TO PUBLIC.
    The coincidental use by the public of a private way which the owners maintain principally for their own convenience, is permissive or by license, and lacks the essential characteristics of the use required to work a presumption of grant or title in the public for a public highway.
    <5. Same—Effect of occupation of the way by railroad.
    Where the occupation of the way by the railroad is physically and actu" ally exclusive, the way cannot, as matter of fact, be deemed occupied by another and distinct easement.
    4. Same—Effect of agreement of adjoining owners not to close WAY WITHOUT NOTICE.
    The fact that an owner had agreed with another owner of land bordering upon the land in question not to close it without the latter's consent has no force upon the question of dedication, neither does it raise any presumption that • only nominal damages could be awarded for taking the land for a public use. An intent to dedicate must be deliberate, decisive and unequivocal to effect a dedication..
    5. Eminent domain—Land taken by right of eminent domain—Presumption AS TO OWNERSHIP
    Where in proceedings in inritum no award has been made, or attempted to be made, for a person’s land, but on the contrary, those lands have been thrown out of all consideration, it cannot be said, as matter of legal inference, that such lands have been acquired by the public and lost to the owners despite the constitutional provision that private property cannot be taken for public use without compensation.
    Appeal from a judgment in favor of the defendant entered in the Kings county clerk’s office upon the decision rendered in this case at the Kings county special term.
    Certain lands of the plaintiffs had been sold for the nonpayment of assessments for the opening, grading and improving of Cropsey avenue, in the town of New Utrecht, and these actions are brought to have the assessments declared void, and to enjoin the defendant from collecting the same, and to procure tbe sales and certificates of sales to be cancelled.
    Proceedings for the opening of Cropsey avenue were instituted by a resolution of the board of supervisors, passed May 29, 1884, pursuant to chapter 554 of the Laws of 1881; and the commissioners included within the lines of said avenue, which was to be eighty feet wide, a pre-existing sixty-foot roadway. No awards were made for any of the lands _ which constituted a part of this old road. The plaintiffs claim to be the owners of the fee in a portion thereof; and, because they have received no compensation for the land, they allege that the attempted opening of Cropsey avenue has proved ineffectual, and hence that the assessments imposed for such opening are invalid. This sixty-foot roadway was originally opened in 1853, and was used by the public generally. In 1862 the Brooklyn, Bath & Coney Island Railroad Company laid a track in the middle of the road, and from that time ran trains over it daily until 1886. The width of the track did not,exceed ten feet. In 1880, another track was laid on the road, making the width of the whole railway line about twenty-two feet. On each side of the railroad a space remained wide enough for the use of vehicles; and the public continued to use the road on each side of the railway line to drive on. There was also a foot-path on each side. According to the agreed state of facts upon which these cases were tried, “ the said railroad company was authorized by law so to construct and operate its road on the sixty-foot roadway as aforesaid.” Property owners, whose lands adjoined the road, executed a written consent to the construction, maintenance and operation of the railway. James Cropsey and Robert Spier repeatedly declared, at the time the roadway was opened, and during subsequent years, that it was a private way belonging to them, and the other owners of the lands lying upon it, and that they had a right to close it whenever they saw fit.
    
      William C. DeWitt, for appl’ts; c. Furgueson, Jr., for resp’t. William Sullivan, of counsel.
   Pratt, J.

Chancery welcomes parties who submit their controversies irrespective of technical questions concerning the form of action or regularity of proceedings, and it was the clear duty of the trial judge under the waiver and stipulation made at the outset of the trial to give all the rights and issues presented full and final determination. Bank of Utica v. City of Utica, 4 Paige’s Chancery 399; Grandin v. Le Roy, 2 id., 309.

We cannot see that there was twenty years user of the land in question as a public highway. During ten of thoss twenty years, a portion of the land, at one time ten feet in width, and at another twenty feet in width, and running throughout the whole, was occupied under a licensefrom. the owner, by a steam locomotive railway, the cross-ties of' which were on a level with the surface, the tracks of which. projected above the surface, and the trains of which were passing and repassing with great frequency during the larger portion of the year.

This railroad bed was, as is found by the court below unsuitable to ordinary highway purposes, and as matter of actual obvious fact this portion of the land in question was not used as and for an ordinary highway. -

It is elementary law that to establish an easement in lands by use or prescription, the occupation and use of the land must be plainly for the purpose in view under an unequivocal claim, and if not actually adverse, at least under circumstances leaving the owner at all times free to resist the invasion.

The coincidental use by the public of a private way which the owners maintain primarily for their own convenience is permissive or by license, and lacks the essential characteristics of the use required to work a presumption of grant or title in the public for a public highway.

The authorities in support of these propositions are too numerous for citation, nor do we think the case of Devenpeck v. Lambert (44 Barb., 596), wherein the use in question was primarily and wholly by the public as and for a public highway, and it was held to be sufficient under the statute, even if not adverse (a matter still in doubt In re Bridge, 100 N. Y., 643), militates against the fundamental rules above stated.

But in any event here, there was not twenty years use of the land for a public highway, as a matter of fact.

It might be that the bare insertion of the tracks of a horse railway, and the operation of its cars upon the lands, would be so far consistent with the easement of an ordinary highway as not to work an interruption of such a use (although we think the court of appeals has negated the doctrine of the inclusiveness of easements in such a case). Heard v. Brooklyn (60 N. Y. 242, and Strong v. Brooklyn, 68 N. Y., 1); but where the occupation of the way by the railroad is physically and actually exclusive, the way cannot, as matter of fact, be deemed occupied by another and distinct easement.

This strip of twenty feet was actually and exclusively occupied by the railroad- as if a building had been erected thereon.- It is clear, therefore, that the so-called sixty foot strip did not become a public highway by such use for a, period of twenty years. It is, however, just as fatal to the case of the respondent if only the ten of twenty feet was not acquired by prescription, as in that case, even the street has never been acquired by the public, and that for which the assessment in question was laid, never had an existence. The counsel for the respondent, however, argued with j much force and erudition that the lands had become a high- ] way by dedication.

The difficulty here is that the evidence established and the court found the fact against him.

From the form and character of the way in question and from the acts and declarations of the parties, the trial judge has found that it was not dedicated to the public but reserved to private use and control, and there is no visible ground upon which this finding can be reversed. Besides; the case does not contain any evidence of acceptance by the public even if a dedication could be presumed.

The fact that an owner had agreed with another owner of land bordering upon the land in question not to close it without the latter’s consent has no force upon the question of dedication neither does it raise any presumption that only nominal damages could be awarded for taking the land for a public use. Robert et al. v. Sadler, 104 N. Y., 234; 5 N. Y. State Rep., 594.

It was an agreement between private parties and when both parties consented the way could be closed. The usual accompaniments of a dedication are wholly wanting. No map was ever filed by the owner and no lots sold as bounded upon a public way and the public authorities never worked or kept in repair the way or exercised any jurisdiction over it.

The_authorities all hold that an intent to dedicate must be deliberate, decisive and unequivocal to effect a dedication. Holdane v. Cold Spring, 21 N. Y., 477; Cook v. Harris, 61 id., 448; N. F. Bridge Co. v. Bachman, 66 id., 269.

Touching the question of estoppel by former adjudication we think the appellant clearly right.

The commissioners for the opening of the avenue did not in any way pass upon the question involved in the present action. Throughout their proceedings they ignored entirely the sixty foot private way. They assumed it to be and treated it as already a public road, omitted it from the parcels of land to be by them acquired, and left the public to defend a title which they regarded as already acquired by prescription.

The matter is not adjudicated by that proceeding because it was eliminated from the proceeding, or in other words it was never taken into the proceeding.

Besides, we think the decision of the court of appeals in Dolan v. Mayor (62 N. Y., 472), is not applicable to the present case. The assessment before the court in that case was governed by a special act of the legislature passed in 1813, and was protected by statutory provision from attack upon the technical grounds advanced.

On points confined to the regularity of the proceedings to •confirm, the order of confirmation might well be held conclusive But to say that such an order is final and conclusive in all cases where lands are sought to be taken for public use, however unconstitutional or invalid those proceedings may have been, would be to render them unassailable, and we do not know that they have been overthrown and declared void in a multitude of cases with the approval of our court of last resort. At all events, where in proceedings in invitum no award has been made or attempted to be made for a person’s land, but, on the contrary, those lands have been thrown out of all consideration, it cannot be said as matter of legal inference that such lands have been acquired by the public and lost to the owner despite the constitutional provision that private property cannot be taken for public use without compensation.

For these reasons we cannot concur with the judgment of the trial court. It will not be necessary, however, to order a new trial. There being no dispute of fact, the judgment below should be reversed and judgment entered for the plaintiff with costs.

Dykman, J. concurs; Barnard, P J., dissents.  