
    The Village of Watkins, Respondent, v. The Welch Grape Juice Company, Appellant.
    
      Village street—it cannot be widened by filing a map and passing an ordinance—the owner must be paid for the land so taken — what acquiescence by the owner does not establish a dedication by him.
    Where the trustees of the village of Watkins, acting under a provision in the village charter (Laws of 1861, chap. 125, tit. 6,§ 5, as amd, by Laws of 1870, chap. 192, § 2) authorizing them “to locate and define the boundary lines of the public streets and alleys in said village,” file a map and promulgate an ordinance describing a street, which had, in 1829, been laid out three rods in width, as sixty-six feet in width, with thirty-six feet on one Side of the center line of the old three-rod highway and thirty feet on the other side of said highway, such action is ineffective to increase the width of the street, as private property cannot be thus taken for public use without just compensation.
    The fact that for a period of upwards of twenty years after the promulgation of the ordinance the owners of the lands affected by the attempt to widen the street did not maintain any fences or other structures to divide such land from the street, is not sufficient to establish an intention on the part of the owners to dedicate such land to the public use. as a highway.
    Appeal by the defendant, The-Welch Grape Juice Company, from a judgment of the County Court of Schuyler county in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 7th day of March, 1903, affirming a. judgment of a justice of the peace entered on the 7th day Of May, 1901.
    The action was brought, to recover penalties from the defendant for erecting and maintaining a building on Madison avenue in the village of Watkins, which the plaintiff claimed was an encroachment. or obstruction upon the street, in violation of á village ordinance. The defendant denied that the building was erected in a public street. The justice rendered judgment in favor of the plaintiff for five penalties of five dollars each besides costs, and from a judgment of the County Court affirming such, judgment of the justice this appeal is taken.
    In 1829 the commissioners of highways of the town, from which the ¡village of Watkins was afterwards taken, duly laid out a highway three rods in width on the line of the street now known as Madison avenue, and record of the action of such commissioners was duly made in the clerk’s office of such town.
    
      In January, 1875, the trustees of the village of Watkins caused a survey and map of its streets to be made and adopted, and filed such map and adopted and promulgated an Ordinance, under a clause in the village charter, authorizing the trustees “ to locate and define the boundary lines of the public streets, and alleys in said village ” (Laws of 1861, chap. 125, tit. 6, § 5, as amd. by Laws of 1870, chap. 192, § 2), which located and described the street in question as one sixty-six feet in width, with thirty-six feet on the east side of the center line of the old three-rod highway, and thirty feet on the west side of such center line. No steps were taken to condemn lands to widen the street, and nothing further was done to change the width of the street.
    • The building alleged to be an obstruction was erected by the defendant in 1897. There is a village ordinance making it unlawful to place or maintain any obstruction upon any of the streets of the village, and imposing a penalty of five dollars for every violation thereof, and a further penalty of five dollars for each twenty-four hours such violation shall be continued. It was to recover the penalties imposed by this, ordinance that the action was brought.
    
      O. P. Hurd, for the appellant.
    
      W. F. Bishop, for the respondent.
   Chester, J.:

If the street in question is only three rods wide as laid' out in 1829, the building in question is wholly outside of the limits of the boundaries of the street. If, on the other hand, the street is sixty-six feet wide, then the building is clearly an encroachment upon the street.

The theory upon which this case was presented to the courts below by the plaintiff was that the ordinance of 1875, passed by the board Of trustees, the filing of a map thereunder and the conduct of owners of property upon the street since that time in acquiescing therein, were effective to increase the width of the street to sixty-six feet.

It is evident that the trustees, by passing the ordinance of 1875 and filing a map showing a street increased in width to sixty-six feet, could not thereby lawfully take • private property from the adjoining owners for the purpose of increasing such width, for the reason that that would be an invasion of constitutional rights, as it would be the talcing of private property for public use without, just compensation (Const. [1846] art. 1, § 6). Manifestly, too, under a statute giving to the board of trustees- of the village the power to locate and define the boundary lines of the streets in the village, such board would have no power to take private property for public use; nor would the board, under such a statute, have the power to locate and define the boundaries of a highway which-was laid out to be three rods in width in such a way as to show that the boundaries on each side should be sixty-six feet apart, and in that way encroach upon the title of the adjoining owners. Hence we have examined this record- with a view of ascertaining from it if there was sufficient evidence to justify a finding that the owners of the abutting prop-, erty where the building in question is located had dedicated the land to the public as a street and the public had accepted it as such, or whether there is any evidence that would justify a conclusion that, subsequent to the passage of the ordinance of 1875, and prior to the erection of the building in question, the public, by user during all that period, which is upwards of twenty years, had acquired a prescriptive right to the entire width described in the ordinance as a public street.

The fact that the ordinance was passed might be regarded as a sufficient public acceptance of the property in dispute for street' purposes, but that would not be sufficient unless there had also been a dedication of the land by the owner to the public as a street. The only evidence to support that view is found in the fact that during all that time there were no fences maintained by the owners of the property to divide it from the street, and. it was open at all times and unobstructed by any structure until the erection of the building in question. " The mere fact that it was unfenced by the owners is not sufficient evidence to show an intention on the part of the owners to dedicate the land to the public use. as a highway. (Rozell v. Andrew, 103 N. Y. 150; Matter of Hand Street, 52 Hun, 206, 211; Strong v. City of Brooklyn, 68 N. Y. 1, 16; Flack v. Village of Green Island, 122 id. 107;)

While there have been no fences .and .nothing to interfere with the public use of the property in question as a street, there is no , proof that it has in fact been so used at any time during the twenty years prior to the erection of the building thereon by the plaintiff, and such proof would be essential to support a title in the public by prescription, nor is there any proof that the location in question has ever been worked or occupied in any way by the public as a street.

Every element seems to be wanting to show that the street has ever been lawfully widened since it was originally laid out as a highway, three rods wide, in 1829.

The judgment of the County Court and of the Justice’s Court should be reversed, with costs to the appellant in this court and in the County Court.

All concurred.

Judgment of the County Court and of the Justice’s Court reversed, with costs to appellant in this court and in the County Court.  