
    
      In re Commissioners of Public Parks. In re North Third Avenue.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Dedication—Acceptance.
    In 1849 an owner of a farm platted it, and filed a map upon which appeared the lines of a proposed avenue. Several of the lots were sold to H. by a deed conveying the premises, together with such parts of the avenue as were opposite and contiguous to said premises, and together with the one-half part of such parts of said streets, avenues, and roads laid down on said map as were opposite and contiguous to and fronting on the premises conveyed, together with a right of way upon said roads and streets as laid out on the map, together with the other part owners of said premises. H., after taking possession, opened said avenue, but made it only 50 feet, instead of 66, as marked on the map, and built a house partly on the strip of 16 feet wide, and took possession and paid taxes thereon. In 1877 the park commissioners filed a map of proposed streets, making the avenue a public street 66 feet in width, as laid out on the original map. Held, that this was an acceptance of the dedication attempted to be made by the original owner, and that it was proper for the commissioners, in laying out the street, to allow only nominal damages for the 16 feet.
    8. Same—Revocation—Grantee Subject to Easement.
    As by the deed to H. the avenue to its full width was dedicated to the public, H. took title subject to the dedication, and, having acquired his title subject to the easement, he had no power to revoke it.
    
      3. Same—Adverse Possession.
    Mor was his occupation of the strip adverse, so as to extinguish or destroy the
    easement, as his occupation must be deemed to have been under the limitation contained in his deed, in the absence of a showing to the contrary.
    Barrett, J., dissenting. '
    Appeal from special term, New York county.
    Application of the commissioners of the department of public parks, relative to acquiring title, wherever the same has not heretofore been acquired, to that part of North Third avenue from the Twenty-Third ward line to Pelham avenue, in the Twenty-Fourth ward of the city of New York, as the same has heretofore been laid out and designated as a first-class street or road by said department; From an order confirming a report awarding John B. Haskins nominal damages for certain lands Haskins appeals.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      Abraham B. Tappen, (Abel Crook, of counsel,) for appellant. Henry R. Beekman, (Carroll Berry, of counsel,) for respondent.
   Van Brunt, P. J.

It appears from the papers presented upon this record that Mr. Haskins acquired his title to the property in question in October, 1850, through a deed made by one Arthur G-. Powell individually, and as administrator and trustee of the estate of William Powell, deceased. The premises conveyed were a part of the William Powell or Union Hill farm. In October, 1849, a map of this farm was filed in the office of the clerk of Westchester county, upon which distinctly appeared the lines of what was to be a proposed avenue, called therein “College Avenue.” These lines were somewhat altered by a subsequent map made in 1850, and filed in 1851. By the description contained in said deed the premises conveyed to Mr. Haskins were referred to as being lots 2 and 3 on said map, and containing 2.27 acres of land. The deed conveyed said premises, together with such parts of said College avenue as were opposite and contiguous to said'premises, and together with the one-half part of such parts of said streets, avenues, and roads laid down on said map as were opposite and contiguous to and fronting on the premises thereby intended to be conveyed, together with a right of way by, through, and upon, said roads, streets, etc., laid down on said map in common with the othsr part owners of said premises; it being intended to keep open said streets and avenues as public roads. Shortly after taking possession under his deed Mr. Haskins proceeded to open College avenue, the easterly line of which corresponded with the easterly line of that avenue as laid out on the farm map, but he opened it 50 feet, instead of 66 feet, wide, as shown on the map. On laying out the avenue, Mr. Haskins, who owned the land on the westerly side of the avenue, put up a building partly on the strip of 16 feet wide, which was, as above stated, included in the lines of College avenue as shown on the farm map, and he has been by himself and his tenants in possession of the strip ever since, paying taxes thereon to the town of West Farms while it was part of Westchester county, and to the city of New York since that time. The commissioners having awarded him nominal damages only for the strip of land and house, Mr. Haskins objected to the confirmation of their report, and from the order confirming such report this appeal is taken.

On behalf of the appellant it is urged that .the commissioners were bound to make a substantial award for the strip in question, because, although it was laid out on the map as part of the public street called “College Avenue,” yet, it never having been accepted as such, it was not to be so considered by the commissioners in making their award, and also because Mr. Haskins has been in adverse possession of the property since the construction of the building as aforesaid. Various authorities have been cited to show—First, that there should be an acceptance of the dedication in order that the owner of the fee should be entitled only to a nominal award; and, secondly, that Mr. Haskins, being since 1852 in possession oí the property, and paying taxes thereon, has established a claim thereto by adverse possession. It seems to be clear that the filing of the map by the park commissioners, in 1877, making College avenue a public street throughout its whole width, as laid out upon the Powell map above referred to, was an acceptance upon the part of the public of the dedication attempted to be made by Powell, unless there had been a revocation of such dedication by some person authorized to make the same prior to such acceptance. It is claimed that by the occupation of a portion of this avenue by Haskins there was a revocation of such dedication, but the difficulty with the position of the appellant is that he had no power whatever to revoke such dedication. By the deed from Powell to Haskins the avenue to the full width was dedicated to the public. Haskins took his title subject to such dedication, and, having acquired his title subject to this easement, none but the dedicator or his legal representatives could revoke it. Mr. Haskins could not revoke it, because, as already said, he took his title subject to the dedication, and, having taken his title in that manner, it was impossible for him to revoke that over which he had no control. If Mr. Haskins had made this dedication, or had taken his title irrespective of it, then perhaps lie might have had the power of revocation; but, having taken subject to this easement, it is difficult to see how he could revoke a license which had been granted by his grantor, and upon the maintenance of which his grantor had a right to insist, and which right the grantee could not take away from him.

Neither did the occupation of the locus in quo by Mr. Haskins, upon the ground that it was adverse, extinguish, destroy, or impair the easement, because his possession was under the limitations contained in his deed, and was not susceptible of ripening into an exclusive right. The erection on the part of Haskins was simply an encroachment upon the easement, and was not sufficient to constitute an adverse possession, or to charge the owner of the easement with any knowledge of an adverse claim on the part of Mr. Haskins since the right of passage was conceded by leaving the avenue open to the extent indicated; and, unless something appears more than appears in the papers now before the court, his occupation must be deemed to have been subject to the limitation expressed in his deed.

In the case of Bridges v. Wyckoff, 67 N. Y. 130, the plaintiff claimed title to a strip of land 18 feet in width, and forming part of the street referred to in the conveyance, through which she took title, and which had been inclosed by her or her grantor for more than 20 years. The words in the conveyance under which the title was acquired were as follows: “All the right, title, and interest of the parties of the first part in and to the one-half of such streets as lie immediately in front of all the lots hereby conveyed, the same to be used, however, as public streets or roads forever. ” The plaintiff was defeated on the ground that the deed showed the existence of the street. The court say: “The deed showed that at that time there was no claim of right, as against the dedication or the right of the public, to take and use the land as a street;” and, further, that “all that was needed to make the land dedicated a public street was the acceptance of the land dedicated, by the proper public authorities as a street; and it is undisputed that there was such acceptance by the highway commissioners of the town in 1871.” In the case at bar there was such acceptance by the filing of the map by the park commissioners in 1877. In the case cited the court say: “There had been no revocation of the dedication at any time. The original proprietors and all the other parties interested might have united and revoked the dedication before acceptance by the public authorities, but this they did not do;” recognizing, therefore, the principle that the grantor or his legal representative was a necessary party to the revocation of this dedication. In the case cited it was claimed that the plaintiff could hold the land fenced in by adverse possession. The court say: “The difficulty with this position is that the land was not adversely claimed or possessed, because, in the deed by which she acquired her title, the street, and the right of the public to use it, was expressly recognized. ” Our attention has been called to no principle which recognizes a possession adverse to an easement by establishing possession, claiming title under a deed which expressly establishes the easement. There must be something more than mere possession to establish adverse possession. It must be possession under claim of title, and, where such claim of title is founded upon a written instrument, no greater title can be acquired than was given by the instrument itself. We are of opinion, therefore, that there was a complete accepted dedication of the premises in question, and that under the principles governing the making of awards in .cases of this description no error was committed by the commissioners, and the order should be affirmed, with $10 costs and disbursements.

Daniels, J., concurs.

Barrett, J.,

(dissenting.) I am unable to concur in the conclusions arrived at by my brethren in this case. In my judgment, Mr. Haskins was entitled to a substantial award. He acquired an absolute title to the 16 feet in question, subject only to a right of way in the adjoining owners, and to a possible acceptance by the public authorities (of Westchester county) of the proffered dedication. There is no question here of adverse possession, but of a use of the easement adverse to the enjoyment of the adjoining owners. The easement, having been acquired by deed, could only be destroyed by adverse use for the space of time requisite to create a prescriptive right. A mere obstruction of a way, caused by the owner of the servient estate, for less than 20 years, would not bar the right; and the adverse use for even 20 years must be open and notorious, in hostility to, and indicating a denial of, the right granted. Washb. Easm. (Ed. 1863) p. 551, § 6, subd. 2, and cases there cited. Thus, in Yeakle v. Nace, 2 Whart. 123, where eleven lots, lying side by side, were sold to two persons,—ten to one, and one to the other,— with a right of way across the rear end of each lot, it was held that the owner of the ten lots lost his right of way by acquiescing for twenty-one years in the inclosure and cultivation by his neighbor of the remaining outside lot. The court, in its opinion, gave the following illustration: “If a man grants twenty-five feet of front on one of the streets of this city, retaining the title to the adjoining land, and at the same time grants a right to an alley four feet wide, between the lot sold and that retained, expressly reserving the right to build under and over the said alley. How, the grantor is not bound to build at all, and, though he does not for more than twenty-one years, his right to build under and over the alley is not gone; but, if his vendee of the twenty-five feet should cover those four feet by his building, the whole right of the vendor to those four feet would be gone by the limitation of twenty-one years, unless suit was brought within that time.” Even in the case of tenants in common, adverse possession, such as will effect the ouster of a co-tenant, may be acquired by unequivocal acts, open and public, making the possession so visible, hostile, exclusive, and notorious that notice may be fairly presumed. Culver v. Rhodes, 87 N. Y. 348; Millard v. McMullin, 68 N. Y. 345; Humbert v. Trinity Church, 24 Wend. 587.

In the case at bar there was, as to these 16 feet, an open and notorious denial by Mr. Haskins of the right of way granted to the adjoining owners. The latter were entitled, according to the present contention, to the enjoyment of a street 66 feet in width. He asserted that they were entitled to a street of but 50 feet in width. He opened, and has since maintained, a street of that width at his own expense, and they acquiesced in the limitation. He took exclusive possession of the remaining 16 feet, fenced the space in, built upon it, rented it, paid taxes upon it, and in every conceivable way closed it to the street use. All this was before the eyes of the adjoining owners, and for upwards of 20 years they neither dissented nor demurred. It is entirely plain that their rights, with respect to the subject of this adverse use, were, upon well-settled principles, abandoned and lost. As to the public, they acquired no vested rights during the 20 years of Mr. Haskins’ hostile and adverse use. The offer of dedication remained open to them, but they did not accept it until Mr. Haskins’ fee had been freed from the easement. They could have stopped the running of this adverse use at any time within the 20 years by an acceptance of the dedication. So could the adjoining owners, by acts indicative of non-acquiescence or dissent. But the public could not, any more than the adjoining owners, lie by while Mr. Haskins was acting upon his denial of the easement, and then, when the adverse use had destroyed the rights conferred by the deed or proffered by the map, come forward, and, by their tardy acceptance, revitalize the dedication. The public is not bound to accept a proffered dedication. Such acceptance involves duties and responsibilities which the authorities may be unwilling to assume. During these 20 odd years the authorities of Westchester county declined to accept any duties or responsibilities with regard to the proposed streets in question. Nay, more, they observed in silence the assumption of those duties and responsibilities by Mr. Haskins; and they recognized his acts, in hostility to the unaccepted dedication, by taxing him annually for the structure erected upon these very 16 feet. The adjoining owners had at least vested rights during the period of adverse use. The public had nothing but an inchoate right. Both were lost by the hostile and* adverse use, thus acquiesced in for over 20 years.

The cases fully support this conclusion. In Baldwin v. City of Buffalo, 29 Barb. 396, it was held that, where the owner of land dedicates the same to the public for a street, and then grants the land in fee, and the grantee and those holding under him possess and occupy the land for more than 25 years before the public asserts any claim or right founded upon the dedication, all right in the public will be deemed to have ceased. On a subsequent appeal in the same case (35 N. Y. 375) it was stated that the plaintiff took the fee subject to the easement, and that the court was unable to discover any principle of law or equity by which the plaintiff could be allowed to acquire any more interest therein than he purchased, short of 20 years’ adverse possession. In Alves v. Town of Henderson, 16 B. Mon. 131, it was held that where an individual inclosed part of the land dedicated to public use, and held exclusive possession of it for 20 years, he gained a valid prescriptive title. So, in Rowan v. Town of Portland, 8 B. Mon. 232, Chief Justice Marshall said that the right of the public in property dedicated to public use may be lost by an adverse possession for 20 years. See, also, Peckham v. Henderson, 27 Barb. 207; Webber v. Chapman, 42 N. H. 326. Of course, this doctrine does not apply to an established highway, where there is no non-user, and where the occupation is a mere obstruction and nuisance. Driggs v. Phillips, 103 N. Y. 82, 8 N. E. Rep. 514. Bridges v. Wyckoff, 67 N. Y. 130, does not conflict with these cases, and, when carefully examined, it will be found to be in entire harmony with the principles above stated. In that case there had been repeated mesne conveyances of the land in dispute. In each of these mesne conveyances the mutual easement in the land had been set out in full, and the transfer made expressly subject thereto. By the acceptance of the respective deeds, the several grantees had distinctly reaffirmed and recognized the easement. This recognition was plainly fatal to any claim of possession, adverse and hostile to the easement; and, as the last of the mesne conveyances—the plaintiff’s—was very much within the statutory limit of 20 years, no title by adverse possession or exclusive right by adverse use could have been acquired thereunder. This is apparent from the language of Earl, J.: “The difficulty with this claim [that of adverse possession] is that the land was not adversely claimed or possessed. She took her deed in 1862;”—the order declaring the street to be a public highway having been made in 1871; “and in that the street, and the right of the public to use it as such, was expressly recognized. The deed showed that, at that time, there was no claim of right as against the dedication.” And, further: “It is claimed that the erection and maintenance of the fence inclosing part of the street was to that extent a revocation. The answer to that claim is that it was manifestly not so intended, because in all the deeds, coming down as late as 1862, the dedication and the street are expressly recognized.” If Mr. Has-kins had deeded to A. in 1860, subject to the public right, and A. had deeded to B. in 1870, subject to the same public right, the ease would have been in point, and the acceptance of the dedication in 1877 would have been fatal to B. I am of opinion, therefore, that Mr. Haskins is the absolute owner of the 16 feet in question, freed from the easement granted to the adjoining owners by the deed under which he took, and freed also from the proffered dedication contemplated by the map filed in 1849, and by the phraseology of his deed on that head. The order should be reversed, with costs, and the proceedings remitted to the commissioners for revisal and correction.  