
    Robins Dry Dock and Repair Company, Respondent, v. The City of New York and Charles Cassidy, Superintendent of the Bureau of Incumbrances and Permits of the City of New York, Appellants.
    Second Department,
    February 14, 1913.
    Highways — abandonment of easement for street purposes by nonuser — trespass — injunction—Highway Law, section 234, when applicable to cities.
    An easement for street purposes acquired by a city is abandoned by a failure to use the property for street purposes for over thirty years, and the owner and occupant is entitled to an injunction restraining the city from trespassing thereon.
    The provision of section 284 of the Highway Law that every highway laid out and dedicated to the use of the public, not opened and worked within six years, shall cease to be a road for any purpose, applies to the streets of a city where only an easement has been acquired.
    Appeal by the defendants, The City of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, enjoining the continuance of certain trespasses by the defendants.
    
      James B. Bell [P. E. Callahan and Archibald R. Watson with him on the brief], for the appellants.
    
      William N. Dykman [H. E. J. MacDermott with him on the brief], for the respondent.
   Hirschberg, J.:

This action was instituted to enjoin the defendants from trespassing upon certain land adjacent to and in part under the waters of the Erie basin in the borough of Brooklyn. The defendant the city of New York claims an easement for street purposes in the property in question. The plaintiff and its predecessors in title have been in the actual possession of the property since 1857, under a claim of title based upon various deeds and grants. A portion of the property is occupied by the plaintiff for its business purposes and is inclosed or shut off by a fence, and another portion is occupied by the plaintiff’s tenants. While a part of the property is open, permitting access to the waters of the Erie basin, there does not appear to have been any general public use thereof — the user being limited to plaintiff, its tenants, those doing business with them and a few people who might “wander down there to fish.” The defendants recently prevented the plaintiff’s predecessor in title and the plaintiff from erecting a fence upon the property, and have granted permission to contractors to dump earth thereon. The plaintiff has instituted this action to enjoin the defendants from preventing the erection of that fence and from continuing such alleged trespasses. In their answer the defendants claim that the premises were laid out as a street by chapter 163 of the Laws of 1848, and that in 1876 the then city of Brooklyn “instituted proceedings under its charter, to acquire for the City and the public an easement of way for other street purposes and such proceedings were taken that a final order was entered on or before April 2, 1877.”

Neither the city of Brooklyn nor its successor, the city of New York, has actually used the property for street purposes, or graded, paved, lighted or in any way physically opened the same during the thirty odd years succeeding the acquisition of such easement. The learned trial justice held that the easement for street purposes had been abandoned by nonuser, and granted the injunction. I do not think that this was error.

Under the answer interposed, the defendants do not claim a fee in the property in question, but inferentially only an “easement of way.” By chapter 311 of the Laws of 1861 (amdg. 1 R. S. 520, § 99), since incorporated as part of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], § 234), it was provided that every public highway laid out and dedicated to the use of the public, and every such highway thereafter to be laid out, that should not be opened and worked within six years, should cease to be a road for any purpose whatsoever. This statute has been held applicable to the streets of a city where only an easement, and not the fee, was acquired. (Woodruff v. Paddock, 56 Hun, 288; affd., 130 N. Y. 618; People ex rel. Yonkers v. N. Y. C. & H. R. R. R. Co., 69 Hun, 166; Raynor v. Syracuse University, 35 Misc. Rep. 83, opinion by His-cock, J.; City of Buffalo v. Hoffeld, 6 id. 197, opinion by Hatch, J.)

Within the principle of the authorities cited, the defendant city of New York and its predecessor, the city of Brooklyn, have by their thirty years’ nonuser lost the easement for street purposes formerly acquired in the property in question. The cases cited by the learned counsel for the appellants are not in point. In those cases the fee was taken by the city, so the provisions of the Highway Law regarding nonuser were inapplicable. (See New York Central & H. R. R. R. Co. v. City of Buffalo, 200 N. Y. 113, 119, 120.)

The judgment should be affirmed, with costs.

Jenics, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment affirmed, with costs.  