
    Speir et al. v. Town of New Utrecht.
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    1. Highways—Prescription—Public Use.
    During 10 years of the time in which it was contended that a 60-foot strip of land had been used as a public highway a portion of it running throughout its length had been occupied under license from the owner by a steam railway, whose roadbed was unsuitable for ordinary travel, and that portion of it was not used as a public highway. Meld, that the use by the public during that time of the rest of the strip, did not constitute the strip a public highway by user.
    3. Same—Dedication—Evidence.
    No map showing this strip as a public highway had ever been filed, nor had any lots been sold as bounded by it; the public authorities had never worked it or kept it in repair, nor exercised any jurisdiction over it. Meld, that the fact that the owner had agreed with the owner of the land bordering on it not to close it without his consent, is not evidence of dedication, nor does it raise any presumption that nominal damages only could be awarded on taking the land for public use.
    
    3. Same—Res Adjudicata.
    The commissioners for opening the highway for which the land in question was assessed, in all their proceedings assumed this strip to be a public road, and omitted it from their consideration as one of the parcels to be acquired by them. Meld, that these proceedings were not an adjudication upon the question whether or not it was a public highway.
    Appeal from special term, Kings county; Bartlett, Justice.
    Action by Robert Speir, Jr., against the town of New Utrecht, for.an injunction against the collection, of assessments for opening and improving a .certain avenue, on the ground that a portion of the land for the highway was never legally acquired, but still is the property of plaintiff. At the opening of the trial it was stipulated that defendant waives all question of remedy, and that all questions be considered and decided the same as if in any other form of action. The court made its findings of fact and conclusions of law; and in accordance therewith ordered judgment dismissing the complaint. The plaintiff died after this decision was made, and S. Fleet Speir, Robert F. Speir, and Peter A. Hegeman, his executors, were substituted in his stead, filed exceptions to the conclusions of law, and took this appeal.
    
      Wm. C. De Witt, for appellants. C. Furgeson, Jr., for respondent.
    
      
       As to what constitutes a dedication of land to public use as a highway, see City of Chicago v. Hill, (Ill.) 17 N. E. Rep. 46; City of Chicago v. Stinson, Id. 43, and note; Rube v. Sullivan, (Neb.) 37 N. W. Rep. 666, and note.
    
   Pratt, J.

Chancery welcomes parties who submit their controversies irrespective of technical questions concerning the form of action or regularity of proceedings, and it was the clear duty of the trial judge, under the waiver and stipulation made at the outset of the trial, to give all the rights and issues presented full and final determination. Bank v. City of Utica, 4 Paige, 399; Grandin v. Le Roy, 2 Paige, 509. We cannot see that there was 20 years’ user of the land in question as a public highway. During 10 of those 20 years a portion of the land, at one time 10 feet in width, and at another 20 feet in width, and running throughout the whole, was occupied, under a license from the owner, by a steam locomotive railway, the cross-ties of which were on a level with the surface, the tracks of which projected above the surface, and the trains of which were passing and repassing with great frequency during the larger portion of the year. This railroad bed was, as is found by the'court below, unsuitable to ordinary highway purposes, and* as matter of actual, obvious fact this portion of the land in question was not used as and for an ordinary highway. It is elementary law that to establish an easement in lands by use or prescription the occupation and use of the land must be plainly for the purpose in view under an unequivocal claim, and, if not actually adverse, at least under circumstances leaving the owner at all times free tp resist the invasion. The coincidental use by the public of a private way which the owners maintain primarily for their own convenience is permissive or by license, and lacks the essential characteristics of the use required to Work a presumption of grant or title in the public for a public highway. The authorities in support of these propositions are too numerous for citation; nor do we think the case of Devenpeck v. Lambert, 44 Barb. 596, wherein the use in question was primarily and wholly by the public as and for a pub7 lie highway, and it was held to be sufficient under the statute, even if not adverse, (a matter still in doubt in Re Bridge, 100 N. Y. 642, 3 N. E. Rep. 679,) militates against the fundamental rules above stated. But in any event, here there was not 20 years’ use of the land for a public highway as a matter of fact. It might be that the bare insertion of the tracks of a horse railway, and the operation of its cars upon the lands, would be so far consistent with the easement of ah ordinary highway as not to work an interruption of such a use, although we think the court of appeals has negatived the doctrine of the inclusiveness of easements in such a case, (Heard v. Brooklyn, 60 N. Y. 242, and Strong v. Brooklyn, 68 N. Y. 1;) but where the occupation of the way by the railroad is physically and actually exclusive, the way cannot, as matter of fact, be deemed occupied by another and distinct easement. This strip of 20 feet was actually and exclusively occupied by the railroad as if a building had been erected thereon. It is clear, therefore, that the so-called 60-foot strip did not become a public highway by such use for a period of 20 years. -It is, however, just as fatal to the case of the respondent if only the 10 of 20 feet was not acquired by prescription, as in that case even the street hás never been acquired by the public, and that for which the assessment in question was laid never had an existence.

The counsel for the respondent, however, argued with much force and erudition that the lands had become a highway by dedication. The difficulty hete is that the evidence established, and the court found, the fact against tiim. From the form and character of the way in question, and from the •acts and declarations of the parties, the trial judge has found that it was not' dedicated to the public, but reserved to private use and control; and there is . no visible ground upon which this finding can be reversed. Besides, the case does not contain any evidence of acceptance by the public, even if a dedication could be presumed. The fact that an owner had agreed witli another Owner of land bordering upon the land in question not to close it without the latter’s consent, has no force upon the question of dedication; neither does it raise any presumption that only nominal damages could be awarded for taking the land for a public use. Robert v. Sadler, 104 N. Y. 234, 10 N. E. Rep. 428. It was an agreement between private parties, and, when both parties consented, the way could be closed. The usual accompaniments of a dedication are wholly wanting. Flo map. was ever filed by the owner, and no lots sold as bounded upon a public way, and the public authorities never worked or kept in repair the way or exercised any jurisdiction over.it. The authorities all hold that an intent to dedicate must be deliberate, decisive, and unequivocal to effect a dedication. Holdane v. Cold Spring, 21 N. Y. 477; Cook v. Harris, 61 N. Y. 448; Bridge Co. v. Bachman, 66 N. Y. 269.

Touching the question of estoppel by former adjudication, we think the appellant clearly right. The commissioners for the opening of the avenue did not in any way pass upon the question involved in the present actipn. Throughout their proceedings they ignored entirely the 60-foot private way. They assumed it to be, and treated it as already a.public road, omitted it from the parcels of land to be by them acquired, and left the public to defend a title which they regarded as already acquired by prescription. The matter is not adj udicated by that proceeding, because it was eliminated from the proceeding, or, in other words, it was never taken into the proceeding. Besides, we think the decision of the court of appeals in Dolan v. Mayor, 62 N. Y. 472, is not applicable to the present case. The assessment before the court in that case was governed by a special act of the legislature, passed in 1813, and was protected by statutory provision from attack upon the technical grounds advanced. On points confined to the regularity of the proceedings to confirm the order of confirmation might well be held conclusive. But to say that such an order is final and conclusive in all cases where lands are sought to be taken for public use, however unconstitutional or invalid those proceedings may have been, would be to render them unassailable; and we do know that they have been overthrown and declared void in a multitude of cases, with the approval of our court of last resort. At all events, wher.e in proceedings in invitum no award has been made or attempted to be made for a person’s land, but, on the contrary, those lands have been thrown out of all consideration, it cannot be said, as matter of legal inference, ¡that such lands have been acquired by the public, and lost to the owner despite the constitutional provision that private property cannot be taken for public use without compensation. For these reasons we cannot concur .with the judgment of the trial court. It will not be necessary, however, to order ,a new trial. There being no dispute of fact, the judgment below should .be reversed, and judgment entered for the plaintiff, with costs.  