
    The Lehigh and Hudson River Railway Company, Appellant, v. Village of Warwick, Respondent.
    Second Department,
    October 16, 1914.
    Beal property—dedication of railroad lands for street purposes — proof necessary to establish dedication and acceptance.
    A dedication of real estate for use as a public street rests upon an estoppel in pais. It is a question of intent and the evidence thereof may be direct or circumstantial. When it is based upon acts or declarations the conduct of the one who dedicates must be clear and decisive, showing a positive and unequivocal intention on his part to permanently abandon the property to the public. Mere non-action on the donor’s part unless so long continued as to be equivalent to an affirmation will not raise an implication of an intention to dedicate lands to public use nor will it estop the owner to deny such intention.
    In the case of corporations engaged in public service, such as a railroad corporation, more definite and distinct acts of admission are necessary to establish a dedication of unfenced property appurtenant to that actually used for corporate purposes, even though such property may be openly and commonly frequented by the general public, than are required to raise a presumption to a right of way over property devoted solely to private purposes.
    A dedication for street purposes of property owned by a railroad corporation and used in connection with its station cannot be established by evidence tending to show that the president of the corporation intended to use part of the railroad lands for a village street. This, because such evidence shows merely a future purpose, not a present intent, and also because the president of the railroad had no authority to make such dedication without the consent of the board of directors, there being no proof that his act was subsequently ratified.
    Suit by a railroad corporation to restrain an incorporated village from interfering with and committing trespass upon land claimed to have been dedicated by the plaintiff to street purposes. Evidence examined, and held, insufficient to establish either a dedication of the lands by the plaintiff or an acceptance thereof by the defendant.
    Appeal by the plaintiff, The Lehigh and Hudson River Railway Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 15th day of December, 1913, upon the decision of the court after a trial at the Orange Special Term.
    
      Charles F. Brown [Alfred Fly, Jr., with him on the brief], for the appellant.
    
      M. N. Kane, for the respondent.
   Burr, J.:

In February, 1861, Samuel C. Welling conveyed to the Warwick Valley Railroad Company, the predecessor in title and interest of plaintiff, about three acres of land in the village of Warwick. It was bounded on the west by Main street, afterward called Oakland avenue, and on the south by a strip of land thirty feet in width, dedicated by said Welling as a public highway, and subsequently known as Railroad avenue. This land was conveyed “ solely for the use and purpose of constructing and maintaining thereon a Rail Road and a Depot, Engine house, turning table, wood sheds, and buildings or erections necessary for the use of said Road (Excepting that no dwelling house is to be erected or maintained thereon). The said lands are to be used for the purpose of receiving and storing freight and piling ties and wood on the same for the use of said Road Company. The Depot to be erected on said lands shall be erected and located on the same at a point not less than three hundred feet from the said highway adjoining said lands and shall be completed by the first day of January, eighteen hundred and sixty two said Depot to be kept and maintained for the reception and transmission of Passengers and Freight on said Rail Road and for other purposes properly connected with the running and operating said Rail Road and for no other purpose whatever.”

In September, 1912, defendant tore up and removed a sidewalk constructed by plaintiff upon said premises, contending that a strip of land included within the boundaries of said conveyance, and which is about nine feet in width, running along the southerly fine thereof, and also a triangular piece of ground lying to the north of the intersection of the northerly boundary line of said strip with the easterly line of Oakland avenue, and containing about 136 square feet of land, had been dedicated to public use, and had become a part of the streets of said village. Plaintiff thereupon brought this action in equity to restrain defendant from interfering with said land and from committing continuous trespass thereon, and from a judgment in defendant’s favor plaintiff appeals.

Plaintiff contends that its title to the land in dispute was such that it was without power either to grant or dedicate the same for street purposes. (Rochdale Canal Co. v. Radcliffe, 18 Ad. & El. [N. S.] 287.) Although in the answer interposed by it defendant claimed title both by prescription and dedication, no evidence was introduced which would justify a finding in its favor upon the former ground. The learned court at Special Term rested its decision wholly upon dedication and acceptance made in the spring of 1894. As we do not consider that the evidence warrants this conclusion, it will he unnecessary to consider the character of plaintiff’s title, or if upon condition, the consequences thereof. Dedication rests upon an estoppel in pais. (Noyes v. Ward, 19 Conn. 250; City of Cohoes v. D. & H. C. Co., 134 N. Y. 397.) It is a question of intent, and the evidence thereof may be direct or circumstantial. When based upon acts or declarations the conduct of the one who dedicates must be clear and decisive, showing a positive and unequivocal intention on his part to permanently abandon the property to the public. (Town of West Point v. Bland, 106 Va. 792; City of Chicago v. Chicago, R. I. & P. Ry. Co., 152 Ill. 561.) Mere non-action on the donor’s part, unless so long continued as to be equivalent to affirmation, will not raise an implication of an intention to dedicate property to public use, nor will it estop the owner to deny such intention. (McKey v. Hyde Park, 134 U. S. 84.) Dedication must result from an active, not a passive state of the owner’s mind. (City of Chicago v. Chicago, R. I. & P. Ry. Co., supra.) In the case of corporations engaged in public service, such as railroad and wharfage companies, more definite and distinctive acts of admission are necessary to establish a right over unfenced property appurtenant to that actually used for corporate purposes, even though such property may be openly and commonly frequented by the general public, than are required to raise a presumption of a right of way over property devoted solely to private purposes. The presumption in such case is that the use by the general public is by way of license. To warrant a finfUng of dedication it must clearly appear that such use is under claim of right. (Concklin v. N. Y. C. & H. R. R. R. Co., 149 App. Div. 739; appeal dismissed, 207 N. Y. 752; New York Central & H. R. R. R. Co. v. Village of Ossining, 141 App. Div. 765; affd., 207 N. Y. 648; Weems Steamboat Co. v. People’s Co., 214 U. S. 345, 357; Hast v. Piedmont & Cumberland R. R. Co., 52 W. Va. 396; Williams v. New York & N. H. R. R. Co., 39 Conn. 509; City of Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488; affd., 178 N. Y. 561.)

It is our duty to apply these rules, which we deem to be well established, to the evidence in this case.

Prior to 1894 the main track of the railroad operated by plaintiff and its predecessor was located upon a part of the nine-foot strip in dispute, and the railroad station building was to the north of the track. There was some evidence that there was a small piece of fence, described as a pipe-line ” fence upon the Main street boundary of the land, but it would „ appear that this was only intended as a guard to keep travelers from straying from the highway. Its exact location and its length are not given, but it does appear that it continued but for a short distance, and that no part of the land was inclosed within it. The rest of the plot was open and unfenced, and people and vehicles passed over any part of it except such as was occupied by tracks and railroad buildings appurtenant to the station, at pleasure. That up to this time there was neither dedication nor acceptance is apparent. Prior to that date defendant seems to have placed upon the railroad grounds fire hydrants and a watering trough, but when requested to remove the same it did so at once and without asserting any claim of right. The finding of the trial court is that this dedication occurred in the spring of 1894. At that time the railroad company constructed a new station building, ornate in character. This building was located further south than the original one, and it then moved its tracks to the north side thereof. To the west of the station building plaintiff laid out a park and sodded the same, and it was beautified with shrubs and plants. The southerly line of this park was the northerly line of the strip in dispute. The remainder of such strip continued to be, as it had been, open, unfenced and unoccupied, and to the eye of the ordinary observer was a part of Railroad avenue. A gutter separated the south line of the park from the remainder of said strip. Defendant seems to have placed a catch basin, with a grating over it, in this gutter, and the surface water was carried by a drain across plaintiff’s property and under its tracks, and emptied in a little creek to the north thereof. No evidence of any express authority to construct this drain or install this grating and catch basin was given.

This being the physical situation and condition of the property, defendant sought to establish dedication at that time by direct evidence and by circumstantial evidence arising from use. It called two witnesses who testified to conversations at that time with Mr. G-rinnell Burt, who was then president of the road. To one of these witnesses Mr. Burt stated with reference to the fire hydrants and watering trough: “ They were on the railroad ground and that he was going to build a . park, and that they would have to be taken off. He would make a park up to within 7 to 9 feet of their line. * * * He said that it would narrow up the street some, but he would make a nice round comer at the end of the park on Oakland Avenue.” This witness also testified that • thereafter the park was laid out, and the curve referred to made. The other witness testified that Mr. Burt “came to my office one day and spoke about laying out the park in connection with the improvement that he had made by the building of the station, and as I recollect the conversation he said that he intended to make the park a complement to the station, and that he "considered the station a monument to his memory, something more than could be expected in a village the size of Warwick. The station was a very ornate affair, and to make a proper setting for the station he was going to make a fine park there. In fact, they were about building it then, partly building it, and I remember he spoke about the shrubs and ornaments in that fine that he expected to put in, and he also said that he intended to put part of what he said was railroad ground into the village street. "x" * * — into Railroad Avenue.”

It is doubtful if this evidence was competent. First, it is evidence of a future purpose rather than a present intent. Second, unless authorized so to do by plaintiff’s directors, the president of the railroad company could not dedicate its land to public use. (Niagara Falls Susp. Bridge Co. v. Bachman, 66 N. Y. 261; Town of West Point v. Bland, supra.) There is no evidence of such authority; nor can it be claimed that there was such ratification by defendant’s directors of his unauthorized act if his declared intention, followed by the construction of a park, under the circumstances hereinbefore disclosed, could be said to be evidence of actual dedication. To constitute ratification, there must be knowledge. Not only is there no evidence of any knowledge upon the part of plaintiff’s directors of Burt’s declarations, but the evidence is that as to the strip in dispute, both east and west of the station building, they constantly and consistently asserted their title to the whole thereof down to the time of the commencement of this action, and up to a very short tune prior thereto defendant seems to have acquiesced in rather than disputed its assertion.

There remain, then, only the acts of plaintiff in connection with such strip of ground upon which to rest defendant’s claim. It is true that plaintiff allowed it to remain apparently a part of the street and to be used in connection therewith. It is true that after the park was constructed, persons in turning from Oakland avenue into Eailroad avenue were apt to encroach upon the land in the park, and to prevent this plaintiff put stones intended to act as buffer-blocks at the intersection of the park line with said avenue, and to create a graceful curve placed them a short distance back from the extreme line of its property. It was the placing of these buffer-blocks that apparently gave rise to defendant’s claim to the triangular piece of ground hereinbefore referred to at the intersection of the two streets. But such use is at least as consistent with a desire upon plaintiff’s part to afford easier access to its own property and the station building thereon for its patrons, as to abandon the use thereof to the public. There is evidence, not disputed, that after constructing the station building and park, plaintiff did some work upon this strip of ground and the gutter adjoining the same in keeping it clean and free from weeds. While defendant may have done more work of this character than plaintiff, the latter did some work thereon, and its acts in this regard are inconsistent with an intent to utterly abandon ownership thereof. But beyond that, there is one undisputed fact in this case which seems to us to clearly establish that the controlling purpose of defendant in leaving this strip open and unfenced was to benefit its patrons and facilitate them in the use of its property. On the south side of the station building there is erected a porte cochere through which vehicles approaching the station may pass, stopping and receiving passengers and permitting them to alight. This porte cochere extends across the strip in dispute, so that its exterior line is about four feet and three inches north from the southerly line thereof. In the second story of this extension there is a part of the office building of defendant, reached by stairs passing up from the ground level. It is perfectly clear, therefore, that the principal use that can be made of the greater portion of this strip of ground is by patrons of plaintiff desiring to approach the railroad station, and that the general public. passing up and down Eailroad avenue would not only have no occasion to drive over this strip, but it would be for its inconvenience to divert from the main portion of the traveled highway and pass over this strip of ground and through the porte cochere.

We conclude, therefore, that not only do the acts of plaintiff fail to furnish clear and decisive evidence of an unequivocal intention to abandon the use of this strip of ground to the public, but on the other hand precisely a contrary inference is to be drawn from the use made of the same, and that such use as the general public did make of the ground in dispute was by way of license and not in the assertion of a right thereto. If there is no sufficient evidence of dedication, it is unnecessary for us to consider evidence of acceptance on defendant’s part. But if we should consider the same, such evidence is equally weak and inconclusive. There is no evidence of express acceptance by formal action of the village authorities. It is true that in some instances acceptance of a dedicated highway may be established by evidence of repairs thereto and other acts of ownership by a municipality. (Smith v. City of Buffalo, 90 Hun, 118.) There is evidence that in the spring of the year, when the village authorities used the mud-scraper upon Eailroad avenue, they also used the same upon the nine-foot strip adjoining thereto. There is evidence that when gravel was scattered over the surface of this street, it was also spread upon the adjoining strip. There is no evidence of any appropriation of any sum of money for the care or improvement of this particular strip of ground as distinguished from the original street. There is not even evidence that when appropriations were made for the improvement or repair of Eailroad evenue, or contracts or directions given for work thereon, anything was said as to the width of such avenue, or whether the nine-foot strip was or was not included therein. It seems quite as likely that the work done upon this piece of ground was carelessly or thoughtlessly done as that it was done with the express sanction of the village authorities, and in furtherance of a deliberate intent to accept a dedication of this land and to impose upon defendant a liability in connection with the care thereof.

It may be that upon a new trial of this action defendant will be able to introduce further evidence of dedication and acceptance. While the judgment appealed from must be reversed, we have concluded that it would be in the interests of justice to grant a new trial rather than to give affirmative judgment for the plaintiff. If, however, the parties feel that no further evidence can be introduced, an application will be entertained to direct judgment absolute for the plaintiff, in which case proper findings must be made to sustain such judgment. Our present decision is that the judgment appealed from be reversed upon questions of fact as well as of law, and a new trial be granted, costs to abide the final award of costs. The 7th finding of fact contained in the decision is reversed as contrary to the evidence.

Jenks, P. J., Oarr, Stapleton and Putnam, JJ., concurred.

Judgment reversed upon questions of fact as well as of law, and a new trial granted, costs to abide the final award of costs. The 7th finding of fact contained in the decision is reversed as contrary to the evidence.  