
    Augusta M. Palmer, Respondent, Appellant, v. The East River Gas Company of Long Island City, Appellant, Respondent, and The T. A. Gillespie Company, Appellant.
    Second Department,
    November 28, 1906.
    Highway — dedication of lands for streets by private owners — dedication evidenced by deed of former owner — acceptance of dedication by municipality — newly-discovered evidence showing acceptance by municipality.
    A public highway may be created by dedication through offer and acceptance, and when a conveyance of property bounds it upon a street which has actual form and is in use for obtaining access to abutting premises, the deed is evidence of an offer to dedicate. The amount of property so designated by a grantor is , immaterial, and it is not necessary that other owners also dedicate their lands so as to constitute a whole street. .
    When a gas company is sued by a private owner to restrain'it from laying gas mains, such owner claiming that the rights of the public in the abutting street have been lost by over six years’ non-user as provided in section 99 of the Highway Law, it is error to refuse to allow the defendant to open the case and introduce newly-discovered evidence of a recent resolution of the board of estimate and apportionment, showing a change of grade of ther street and the map filed therewith. Such evidence tends to show acceptance by the municipality of a prior dedication of the street by a prior owner.
    (Per Miller, J.): Section 99 of the Highway Law has no application to a city street. . .
    (Per Gaybor, J.): A street, dedicated by a private owner need not be accepted by a municipality, for the dedication may become irrevocable by public user Without official acceptance, and such streets do not cease to be highways by official neglect.
    The only effect of official acceptance is to lay the municipality under a duty to keep the street in repair.
    Moreover, there may be an official acceptance of such dedicated street at any time, which acceptance is evidenced by a municipal permit giving a gas company the right to lay mains.
    Appeal by the defendants, The East River Gas Company of Long Island City and ahother, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 6th day of October, 1905, upon the decision of the court, rendered after a trial at the Queens County Special Term, and also from an intermediate order, entered in said clerk’s office on the 6th day of October, 1905, denying the defendants’ motion to reopen the case for the purpose of offering additional evidence.
    Also an-appeal by the plaintiff, Augusta M. Palmer, from so much of said judgment as authorizes the defendant, The East River Gas Company o,f Long Island City, to institute condemnation proceedings.
    
      Franklin Pierce, for the plaintiff.
    
      John A. Garver, for the defendants.
   Hooker, J.:

The defendant gas company, through the agency of the defendant T- A. Gillespie Company, which did the actual construction, was in the act of laying sixty-inch gas mains in that part of Hancock and Sanford streets in what was formerly Long Island City, now a part of the city of Mew York, immediately in front of premises owned by the plain tiff, when this action was commenced to restrain the defendants from further operations and to compel them to restore the streets or ways to their former condition.

The plaintiff owned to the center of these two so-called streets, and claimed to be entitled to maintain the action for the reasons, first, that the grant of the privilege of laying mains formerly given to the assignor of the defendant gas company was not assignable; and hence the right did not pass, and the defendant gas company was a naked trespasser; second, that if such right did pass by assignment it conferred no privilege to lay such mains as those in question whose office was not to supply abutters but to convey gas from its place of manufacture to distant storage tanks, and, third, that the grant of this privilege to lay mains in Hancock and Sanford streets was worthless because these had ceased to be public streets, and the municipality of course had no power to endow the gas company with the privilege so to use a private way. The argument to sustain this last theory is that since neither of these two streets had, for over six years after their dedication and acceptance as public thoroughfares, about 1875, been worked or made passable as highways through their respective lengths, they ceased to be public highways perforce of the Highway Law.

Section 99 of the law provides that “ every highway that shall not have been opened and. worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway.” (See Laws of 1890, chap. 568, § 99, as amd. by Laws of 1899, chap. 622.)

With the reasoning and the conclusions of the learned Special Term as to the first and- second questions just mentioned we are content. In the view we take of this appeal it is unnecessary, and would hardly be profitable, to discuss the third.

By the judgment from which an appeal is taken it was determined that the defendants had no right to lay the mains in question, and this act was- a continuing trespass and should be enjoined, unless the' defendant gas company instituted proceedings to condemn.

After it had been submitted to the learned Special Term, but before decision, a motion was made to open the case to permit the defendants to -introduce the following additional evidence, whose éxistéhcé Vvás not discovered ‘ Until after the trial,' although there seetiis; to' have been exercised reasonable diligence to discover it, iíámely: ■ • . 1' 1 ' ' '

First. A resolution of the board of estimate and apportionment of the city of How York, dated September 30:, 1904, and approved by the mayor on October 24, 1904, changing the grade" of certain streets and avenues, among, which Were included Hancock and Sánford-strcets in accordance with a map made under direction of that board therein referred to. .

- Second. A certified copy of said map, which Was filed in the office of the president .of the borough of Queens on or about December 9, 1904.

The new evidence was evidently to meet the plaintiff’s proposition that the provision's of section 99 of the Highway Law applied . to city streets. The deeds to the plaintiff, which had been received in evidence before the close of the case, were dated in 1903* and Seemed to recognize Hancock and Sanford .streets, for in them the premises conveyed were bounded by those streets, and they conveyed to the center of the respective streets. The defendants, therefore, urge that by the deeds at least so much of these so-called streets as adjoined the plaintiff’s premises were dedicated to the city, and they were accepted as public streets by the conduct of the city’s agents, which, by their motion, they sought to prove as part of their- case.

The’ motion was, however, denied, and the defendants have appealed. In denying the motion the learned Special Term wrote : u In my opinion- the execution of a single Conveyance of .land or of a few isolated conveyances of land in which the property is bounded by a street, is not sufficient evidence of a rededication of the street as a public highway, after the street has ceased to be a public highway, because of the failure of the public authorities to open and work the same within six years after the original dedication and . acceptance.”

'Public highways may be created by dedication through offer and acceptance, and there seems to be no dispute upon the proposition that conveying property by bounding it on a street which has-aetual . form’and is In Use for obtaining access to abutting premises,'is evidence of an offer to dedicate.' The learned "Special Term evidently Supposed that the offer of dedication, evidenced by the deeds; con'* templated so small a part of the whole extent- of the streets that it might be entirely disregarded. The fallacy of the--reasoning is apparent, for it must be'obvious that the extent of the -land offered has nothing to do with the case; the owner Of the-land may do what he pleases as to its disposition, and may offer little Or much, as he wills. He may dedicate what is in front of part of his premises, and his offer is valid so far as it goes ; if the offer is accepted the dedication is complete and the street is public to that extent; or the owner of part of the premises abutting on the street may offer all in front of his property and.still the offer is valid; acceptance works a complete dedication of so much. It goes without saying that one owner, by his offer to dedicate, has no power to affect thé rights of his neighbors in the private way in front of their properties, and hence the plaintiff’s grantor, by dedicating what was1 in front of his premises, could not accomplish a dedication of the whole street. But this case deals, not with the rights others may have by virtue of their ownership to the center of these streets, buf rather as to whether the particular land, the fee to which is-in the plaintiff, is subject to the right of the public to use it as a street.

The evidence the defendants, by their motion, seek to have considered in the case, therefore, becomes important, for it tends to prove the acceptance by the municipality of the offer. (People v, Underhill, 144 N. Y. 316, 324; Matter of Hunter, 163 id. 542, and cases cited.) And if the fact should be found, upon a consideration of all the evidence, that there had been a complete dedication and acceptance as a public street of so much of these thoroughfares as lay in front of the plaintiff’s premises, so much of the plaintiff’s position as stands on her ownership of the fee unimpressed with the public easement must fall.

The order appealed from must, therefore, be reversed.

Hirschberg, P. J., and Rich, J., concurred; Millee, J., concurred in result on the ground that section 99 of the Highway Law has no application to a city street.

Gaynor, J.:

Though a street used by the public generally be not an official one, so that the city is Under duty to keep it in repair, and liable for damages for dangerous defects in it, it may nevertheless be a public street in the sense that the public have and exercise the right of travel over it, such right being conferred by the owner of the land in the street by dedication, such as granting the land abutting on it by conveyances bounding on the street as shown by a map. Such is the character of the streets in question here. In respect of such an actual street or road the city may by either a formal acceptance, or an official act which amounts to an acceptance, make it official at any time. * The permission of the city to the gas company to lay mains in the streets was such an act of acceptance, just as much so as though the city laid the mains itself, Moreover it is found by the trial judge that the city has long maintained gas lamps in the streets, and lighted them, which is an act of acceptance. The judgment should therefore have been for the defendants.

If we were to concede that section 99 of the Highway Law has reference to a street not only “ dedicated,” which is the only word it uses, but-also officially “ accepted,” and that its meaning is that such an accepted street may lose its official status by the failure of the city for six .years to work it or lay it out (which are the words of the statute), although it is actually mapped and laid out by fhe dedicator, and traveled by the public as a highway, it nevertheless remains that the city may, so long as the street continues an actual used public street, renew its acceptance by acts of official user, and thereby confer official character on it.

' But such a street may be' an irrevocable public street by dedicacation and general public user without official acceptance. It can be a public highway, in the sense that the public have and exercise the right of travel over it, without official acceptance. Such acceptance is unnecessary to make it a public highway, and unimportant, except that it imposes a duty on the body politic to keep the street in repair, for breach of which it may "be liable in damages. Such unofficial public streets may be made official at any time, and the findings of fact in. this case show that the street in question is an official street by continuous acts of official user.

The learned trial judge misinterpreted section 99 of the Highway Law. It provides that every 'dedicated highway. which has not been opened and worked, or laid out, within sijc years of the time of its dedication, shall cease to be a highway. This, does not cover the case of highways which have become and remain actual highways by general public use. Such highways remain such and must remain such until they fall into disuse by the public, whether they be official by the acceptance of the body politic or not. And that the body politic may make them official at any time by formal acceptance, or acts of official user, is a thing not open to dispute. Nor is it open to dispute that when once made official they remain such so long as they remain in general public use for travel. The said section refers only to dedicated highways which do not become actual traveled highways by the general user of the public. It does not refer to dedicated highways which become such actual traveled highways. They are lawful highways which any one may claim and enforce unobstructed passage over. They cannot be made to lose their character of highways by any official neglect of them. They may be made official at any time in the ways already mentioned, but their continuance does not depend on that. In this case we have such actual streets by general public use, following dedication, and also acts of official acceptance of them. They are not private ways, by any means. They cannot be lawfully closed or obstructed in any way.

Judgment reversed, without costs, and new trial granted, costs to abide the final award of costs. Appeal from order dismissed, without costs.  