
    City of Oswego v. Oswego Canal Company.
    
      Dedication of public highways.
    
    Lands dedicated by the owner to public use, as streets, do not become public highways, until accepted as such by the public authorities. •
    * Appeal from the general term of the Su- ,r ^gg preme Court, in the fifth district, where a judg- *- ment of nonsuit had been affirmed.
    This was an action on the case, brought by the President and Trustees of the Village of Oswego against the Oswego Canal Company, to recover damages for the obstruction of Seneca and Cayuga streets, in the said village, by the construction of the defendants’ canal across the same, without bridges; and to recover the expenses incurred by the village in building bridges across the said canal, and keeping them in repair, after a refusal of the defendants to do so. The defendants pleaded the general issue, and the statute of limitations. The City of Oswego was incorporated, after the judgment below, and succeeded to the rights of the original plaintiffs.
    On the 9th April 1811, the lands on the east side of the Oswego river (now part of the city of Oswego) were included in the town of Fredricksburgh (after-wards Scriba), and belonged to the state. On that day, an act was passed, directing the surveyor-general to lay out a part of those lands into streets and house-lots, and so as to form, in the most convenient place, a public square, and to make a map thereof; and the commissioners of the land-office were directed, from time to time, to sell so many of the said lots, as they should deem most advantageous to the state. In 1814, the lands were resurveyed; and in 1815, several of the lots, thus laid out, were sold by the state to individuals.
    The Oswego Canal Company was incorporated in 1825, with power to construct a canal, under the superintendence of an engineer to be appointed by the canal commissioners; and for that purpose, to enter upon and take the necessary lands, paying the damages thereby occasioned to owners of property. The act, however, imposed no duty upon the company, to build or maintain bridges across the canal. The canal was completed in 1826; and in its construction, it passed across the streets in question, which were laid down upon the map made in pursuance of the directions of the act of 1811.
    In 1828, the village of Oswego was incorporated, including the canal within its territorial limits; and by the act of incorporation, all the streets laid out for public use, as designated in the plot thereof filed in the office of the secretary of state, were declared to be public highways, The plot referred to was the map made in pursuance of the act of 1811.
    On the trial, before Gridley, J., the plaintiffs were nonsuited; and a motion for a new trial, made upon a bill of exceptions, having been denied by the general term, and judgment perfected in favor of the defendant, the City of Oswego took this appeal.
    
      Marsh, for the appellant.
    
      Beardsley, for the respondent.
   *Ruggles C. J.

— Any individual may lay out -* a way or thoroughfare through his, own land; and may dedicate it as such to the public use; but such dedication does not impose upon the towns in which the lands lie, the duty of improving, or of keeping in repair as a public highway, the land so dedicated. This will conclusively appear from a reference to the provisions which have been in force in our highway acts for half a century.

The power of laying out, altering and discontinuing highways has been conferred exclusively on the commissioners of highways *of the respective towns. It „ has been their duty to cause to be described and recorded in the town-clerk’s office all public highways not already on record; to assess the highway labor upon the inhabitants of the town; to divide the town into road districts; and to assign a due proportion of the labor to each district. It was the evident intent of these statutes, that the labor assessed should be bestowed exclusively upon the highways established by the town authorities, and recorded in the town-clerk’s office. The duty of causing roads to be described and recorded evidently applied to such roads as had previously been laid out by public authority, and to such as had been used as highways for twenty years; and not to roads which had been laid out by individuals on their own lands. The whole structure of the highway acts forbids the idea, that the town is bound to adopt and to keep in repair every road which an individual may think proper to open through his own land, although he may dedicate it to public use in such manner as to preclude himself from shutting it up. Streets and roads dedicated by individuals to public use but not adopted by the local public authorities, or declared highways by statutes, are not highways, within the meaning of the highway acts; and there is no law by which any one can be compelled to keep them in repair.

The English cases cited by the plaintiff’s counsel on this point are inapplicable. In Underwood v. Stuyvesant (19 Johns. 186), Petrus Stuyvesant had surveyed and laid out a tract of land within the city of New York, into city lots and streets, and had sold or leased part of the lots, with reference to the survey. Mr. Justice Platt, in delivering the opinion of the court, said, “We must intend that every person knew that those streets could not be established as public street of the city, unless they were sanctioned by the corporation, or other public agents.” But it is unnecessary to look for authorities beyond the highway acts; they point out the only mode by which highways chargeable upon the public can be created.

On the 9th of April 1811, the lands on the east side of the Oswego river, now part of the city of Oswego, were * 265 1 Par* *^e town °f Frederi cksburgh (after- -* wards Scriba), and belonged to the state. On that day, an act was passed, directing the surveyor-general to lay out a portion of those lands into proper streets and house-lots, and so as to form, in the most convenient place, a public square, and to make a map thereof, &c., and the commissioners of the land-office were directed to sell, from time to time, so many of the lots as they should deem most advantageous to the state. ■ (Laws of 1811, c. 231.) In 1814, the lands were resurveyed, and in 1815, several of the lots thus laid out, were sold by the state to individuals. The streets were thus dedicated to the public use; but the statute directing the survey and sale, did not declare the streets so dedicated to be public highways, nor did the town of Scriba, by any act of its officers, adopt them as such. In laying out the village plot, and in selling the building lots, the state acted as the owner and proprietor of the land; and the effect of the survey and sale, in reference to the streets laid down on the map, was the same, as if the .survey and sale had been made by a single individual.

Under these circumstances, the Oswego Canal Company was incorporated in 1823. The objects of the incorporation were partly private and partly public. The company was authorized to construct the canal, under the superintendence of an engineer to be appointed by the canal commissioners, and subject to their direction. The company was empowered, after the completion of the canal, to sell, let, grant and convey its waters for mills or other hydraulic purposes. The state reserved to itself the right of adopting the canal as a part of the contemplated improvement between Lake Ontario and the Erie canal, and to make use of its waters for filling the locks that might be constructed to connect the canal with the lake, and thereafter the canal was to become the property of the state, without any compensation, except that the company was to be entitled to the surplus waters not necessary for filling the locks to be constructed by the canal commissioners. For the purpose of making the canal, the company was authorized to enter upon and take the necessary *lands; and the damages for lands thus taken, ^ or for lands injured by the necessary operations *- to complete the work, were to be paid by the company. The act imposed no duty upon the company to build or maintain bridges across it.

The canal was completed in 1826. It passed across a number of the streets, laid down upon the map made in pursuance of the directions of the act of 1811; but it does not appear by the case, to have crossed any public highway laid out by the authority of the town in which it lay. In 1828, the village of Oswego was incorporated, including the canal within its territorial limits. All the streets laid out for public uses therein, as the same were designated in the plot thereof, filed in the office of the secretary of state, were, by the 12th section of the act, declared public highways. The village was divided by the act into two road districts, with power to the trustees to subdivide them. The districts were exempted from the authority of the commissioners of highways of the towns of Oswego and Scriba; and the trustees of the village were clothed with the. powers, and charged with the duties, of the commissioners of highways. The map referred to in this section of the statute is understood to be the map made by Randall, in accordance with which the sales of the village lots were made by the state.

Cayuga and Seneca streets first became public highways when the village was incorporated; they were not so, when the canal was made. The construction of the canal was a lawful act. If any damage arose from it to the proprietors of the lands within the plan of the village as laid out by the surveyor-general, the 6th and 7th sections of the act incorporating the canal company provides a mode in which it might have been appraised and paid for. If the construction and maintenance of the canal deprived any of them of their easement in the land derived from its dedication, it was a proper subject of appraisal, and this appears to have been their only remedy. As respects the village subsequently incorporated, the canal is to be regarded, so far as respects the burden of building bridges across it, as if it had been a natural stream. It had an actual and lawful existence, when the village corporation was created, ^nd no new ^obligations were imposed upon the canal company by the village charter. 267 ]

Having thus come to the conclusion, that the plaintiffs were rightly nonsuited, upon the merits of the case, it is unnecessary to notice the other points made on the argument. The judgment of the supreme court should be affirmed.

Edmonds, J.

— I concur with the supreme court, and rest my opinion solely upon the third ground stated in their opinion, namely, that there is nothing to show that these streets were public highways, at the time the defendants were incorporated.

All there is upon that subject is, that the owner of the land sold it in lots, bounding them on those streets. This did not make those streets public highways; it gave, to be sure, certain rights to the purchasers of those lots, in respect to the strips of land thus called streets, but that was all. They were not highways, and it required something more than the mere dedication by the owner to a public use, to clothe them with the privileges and duties belonging to a public highway. That something more was not done, until the act of 1828, incorporating the village of Oswego, was passed; when, for the first time, the land thus dedicated by its owner, became public highways.

But it was before this, that the defendants were incorporated and had built their canal, so that, instead of their encroaching upon a public highway, whereby an obligation to restore it to and keep it in a passable condition might be inferred, the highway was laid out over their land, and no such obligation could in any respect rest upon them.

Judgment affirmed. 
      
       To the same point, see Wohler v. Buffalo and State Line Railroad Co. 46 N. Y. 686 ; Bridges v. Wyckoff, 67 Ibid. 130.
     