
    David H. Flack et al., App’lts, v. The Village of Green Island, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    1. Highways—Streets—Dedication of—Intent.
    Where the intent to dedicate a highway to public use is not evidenced by acts, the mere istent of one or of both the parties signifies nothing. The intent of the owner to give must be followed by an abandonment of his exclusive enjoyment of the place and the intent to accept must be followed by the use and appropriation of it.
    2. Appeal—Exceptions.
    To authorize the consideration of questions of fact on appeal to this court, the case must show that the exceptions taken by the appellant were that the findings of the trial court were without any evidence to support them, and exceptions to the refusals to find requests of the appellant are only available in cases where the evidence in support of the requested findings is uncontradicted.
    3. Same.
    . The findings of fact of the court below will not be reviewed except where the general term reversed the judgment in the court below upon a question of fact; nor will this court reverse a judgment unless it appears from the case that there is no evidence to support an essential finding, properly excepted to, or a refusal, duly excepted to, to find an essential fact from uncontradicted evidence.
    Appeal from a judgment of the general term of the third department, affirming a judgment entered upon the report of a referee dismissing the complaint upon the merits, with costs.
    
      Barnwell Bhett Heyward, for app’lts; Henry A. King, for resp’t.
    
      
       Affirming 40 Hun, 637, mem.
      
    
   Potter, J.

This is an action in equity asking to have the defendant, a municipal corporation, perpetually enjoined from removing or interfering with a store house of the plaintiff, Flack, located, as alleged in the complaint, upon land of the plaintiff, the D. & H. C. Co., and near its railroad, and leased to plaintiff Flack, and declaring the title thereto to he in the said D. & H. C. Co., subject to no easement for highway or other purposes.

The answer alleged that plaintiff Flack erected the store house upon the lands forming a part of Paine and Lafayette streets, in the village of Green Island, and covering 1700 square feet of the former and 930 square feet of and entirely crossing the latter.

The issue thus presented was whether the land occupied by the store house or a part of it was a street or public highway.

Questions of this character have frequently arisen and the principles upon which they have been decided are quite familiar to the legal profession.

In a large proportion of such controversies, the principal question to be decided has been, as in this case, whether the place in dispute has been dedicated by the owner to the use of public travel, and "whether the same has been 'accepted for such purpose.

Such an issue necessarily involves the intent and acts of the acceptor. The evidence of such intent may rest in writing, or oral declarations, or in the acts of the parties concerned. . Where such intents are not evidenced by acts, the mere intent of one or even of both the parties signifies nothing The intent of the respective parties must be followed by appropriate and characteristic .acts upon the part of each party. The intent of the owner to give must be followed by an abandonment of his exclusive enjoyment of the thing, and the intent to accept the thing must be followed by the use and appropriation of it.

Dedication is essentially of the nature of a gift There can be no gift without a surrender of the subject by the one and acceptance of it by the other.

These views are sanctioned and illustrated by numerous reported cases. It will serve the purposes of the case under consideration to refer to but few of them.

Upon the point of an intent to dedicate and the specific evidence to support such intent reference is made to the case (which in some respects is a leading case upon this subject) of Cook v. Harris, 61 N. Y, 448-454. “The owner’s acts and declarations should be such as to manifest an intention to abandon or devote his property to the public use.” “No particular length of time is essential to make a dedication valid and irrevocable.” “The dedication and acceptance may both concur on a single day. All that is needed in any case is room for estoppel to work.” “ The intention of the owner to dedicate is the essential thing and this is to be found in facts and circumstances of each particular case.” Pomfrey v. Saratoga Spa., 104 N. Y, 459; 5 N. Y. State Rep., 802. “ Where a plot is made and recorded the requisite intention is generally indisputable. ” Dillon’s Municipal Corporations, § 636. “A sale of lots with reference to such plot or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter binding upon both the vendor and vendee.” Supra, § 640.

The case of Bissell v. The N. Y. C. R. Co., 23 N. Y., 61, is also a leading case upon the subject of dedication. In that case the grantor in a conveyance referred to a street,'and it was held that as to his grantees lie dedicated it as a street, that as to whether the public ever accepted it or not and regarding the public generally it did not become a street or highway until there has been an acceptance either by formal act of public authority or by common user under such circumstances as to show an intention to accept it. The same doctrine was held in Story v. The N. Y. Elevated R. Co., 90 N. Y., 122. And th& same doctrine is further illustrated in Newman v. Nellis, 97 N. Y., 285.

To the same effect is Hunter v. The Trustees of Sandy Hill, 6 Hill, 407, where it was held that lapse of time is not an essential ingredient, but the dedication may be established by acts on the part of the owner and the public, unequivocal in their character, though occurring on a single day. “ Long continued and uninterrupted use of land by the public, however, furnishes strong evidence of dedication.”

Upon the point of acceptance and the kind and sufficiency of the evidence to prove acceptance, reference may be had to the following cases' in addition to the cases above cited. In Holdane v. Trustees of Cold Spring, 21 N. Y., 474-479, it is said, “to complete the dedication of a highway if there has been no formal act of acceptance by public authority, the acceptance may be made by common user as a highway of the land dedicated.”

Dillon says in § 642, 3rd ed., of his work upon Municipal Corporations, “Acceptance may be express and appear of record, or it may be implied from repairs made and ordered or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public.” People v. Loehfelm, 102 N. Y., 1; Porter v. Village of Attica, 33 Hun, 605; Pomfrey v. Village of Saratoga Springs, supra.

It is plain from the cases cited and many more that might be cited, as well as from the essential nature of the issue itself, that is, whether there has been a dedication and acceptance of the land for a public highway, is a question of fact People v. Loehfelm, supra.

The defendant introduced evidence of various kinds and force, and recognized by the reported cases and which may be referred to in a summary manner, to sustain the contention that the place was a public highway. The defendant gave evidence tending to prove that the Rensselaer & Saratoga R. Co., the lessor of the D. & H. C. Co., one of the plaintiffs in this action, had given numerous conveyances from 1846 to 1871 which recognized and adopted the map made by S. A. Beers in 1838 and 1845, which divided this plat of fifteen acres into streets and lots and numbered the lots, and which grants or conveyances referred to the two streets in question as the boundaries of the lots being conveyed. The same railroad company, the Rensselaer & Saratoga, was also shown to have received conveyances of lots out of this tract of fifteen acres, referring to the number of the lots ' as made upon Beers’ map and to the streets as laid down upon that map. The defendant also gave evidence tending to show user for many years of these streets by the public and acquiescence by the plaintiff, the D. & H. C. Co., and its predecessor, the Rensselaer & Saratoga R. Co.

It was shown also by the defendant that these streets were laid out and the plat of fifteen acres was divided into lots and the village of Green Island, the defendant, by resolution and by other official acts recognized such, map and such streets as far back as 1853 and on several occasions from that year to the time of the commencement of this action.. It was also shown by the defendant that the Rensselaer & Saratoga Railroad Company had a copy of the Beers’ map in its office before and at the time of the making of the conveyances referring to the lots by number and the streets in question as laid down upon the map. It was also proved that the lots laid out on such map, some of which had been granted, as before stated, to the Rensselaer & Saratoga Railroad Company, had been assessed to such company and it had paid the taxes thereon for years, and that the land embraced in these streets had not been assessed to such company or anybody else by the village officials, which facts in regard to assessments have been held by authorities to be proper and competent evidence upon the subject of dedication and acceptance. Irwin v. Dixion, 9 How., U. S., 10-33; In re Hand Street, 52 Hun, 206-212; 23 N. Y. State Rep., 43.

Upon this evidence the referee has found, as facts, among others, substantially, that the defendant through its board of trustees has since 1855 assumed the right and exercised the duty to grade, work and repair and care for said streets (at the point of the location of the store house), and that during the same period the defendant had through its trustees expended money in grading and repairing sidewalks, gutters and curbstones thereon; that the public used said streets during that period and for more than twenty years previous to the commencement of this action, and that during the same period the land constituting Paine and Lafayette streets has not been assessed or taxed to the Rensselaer & Saratoga Railroad Company, or to any other person or corporation, and to that finding there is no exception taken by the appellant. That for more than thirty years prior to the commencement of this action the lands designated on said map as Paine and Lafayette streets were dedicated to the public for the use of the public highway, and that such dedication was at the time thereof duly accepted by the public, and particularly by this defendant, the Village of Green Island.

The consideration of questions of fact upon appeals to this court is limited to the inquiry whether there is any evidence to support the verdict rendered or finding made in the court below, and the case must show that the exceptions taken by the appellant were that the findings of the trial court were without any evidence to support them, and exceptions to the refusals to find requests of the appellant are only available in cases where the evidence in support of the requested findings is uncontradicted.

The rules which control the consideration and determination of appeals to this court are that the findings of fact of the court below will not be reviewed except where the general term re- ' versed the judgment-in the court below upon a question of fact; nor will this court reverse a judgment unless it appears from the case that there is no evidence to support an essential finding properly excepted to or a refusal duly excepted to to find an essential fact from uncontradicted evidence.

I do not perceive that any of these rules have been violated in this case, and hence- find no ground for reversal in any of those respects.

If, therefore, the evidence presented in the case left any doubt whether the finding of the referee were sufficiently supported, we should be constrained to presume other and sufficient evidence to sustain the judgment.

The contention of the appellant that the streets were abandoned by reason of not being opened and worked within six years from the time of being laid out or dedicated, has no basis to rest upon.

There is no finding that the streets in question were not opened and worked within six years from the time of the alleged dedication and so the statute as amended in chap. 311 of the Laws of 1861 is not applicable.

Indeed the learned referee, as we have seen, has found that these streets or highways were opened and worked and used for upwards of twenty years before the commencement of this action, and the fact so found would require that they be deemed public highways. 2 R S., 8th ed., 1383, §§ 99 and 100.

From the findings of the referee this case would seem to have been disposed of upon the merits and there is, therefore, no occasion to consider the other question raised by the defendant, to the effect that if the land on which the store house stands is the property of the plaintiff, and the public have no easement in regard thereto, the acts threatened by the defendant, if consummated, would constitute but a trespass for which there is a full and complete remedy at law.

We are, therefore, constrained to the conclusion that this judgment should be affirmed, with costs.

All concur, except Brown, J., absent.  