
    Matter of the Assessment of Property in the City of Albany Belonging to Margaret A. Hunter, Individually, and as Trustee, for the Expenses of Laying a Sewer in Rawson and Third Streets in said City of Albany.
    (Supreme Court, Albany Special Term,
    July, 1899.)
    1. Highways — Dedication of a street by plotting it on maps.
    An abutting owner is assessable for the cost of a street sewer laid in 1898, through an alleged street where it appears that her husband, and predecessor in the title, plotted the said street on a map of his lands made by him in IS73, thereafter permitted public use of the street and filed the map in the county clerk’s office in 1877, and that in 1889, he caused a new map to be made which, although shortening the street, narrowing it to some extent and failing to give it a name, still recognized it as an open way in front of the premises assessed.
    
      2. Same — Acceptance by city — Revocation.
    Where land has been in use by the public as. a street for twenty-five years with the owner’s consent, the city need not formally accept the dedication thus made; nor can a formal acceptance, proposed to be made by a resolution of the common council in 1898, be then defeated by the erection, upon the part of the occupant, of fences at both ends of the strip in dispute two days before the passage of the resolution.
    Proceeding to vacate an assessment for a local improvement.
    Worthington Frothingham, for petitioner.
    John A. Delehanty, corporation counsel, for defendant.
   Chester, J.

This is a proceeding to vacate an assessment for a local improvement. Under the charter of the city of Albany the common council is authorized to direct the construction of sewers in any street in the city, the expense thereof to be assessed upon the property deemed to be benefited. § 25, tit. Ill, chap. 298,, Laws of 1883, as amended by chap. 286, Laws of 1891, § 8. By an ordinance duly approved May 18, 1898, it authorized the construction of a sewer in Bawson and Third streets which resulted in the assessment upon the petitioner’s property, of which she complains.

The case turns principally upon the question as to whether or not the place called Bawson street in the ordinance and where a part of the sewer was constructed was, in fact, a public streeet or was private property. The premises in dispute together with considerable surrounding property were pur chased in 18 61 by Andrew B. Hunter, the husband of the petitioner, who died in 1893. In 1873, he caused a map of this property to be made which was filed in the county clerk’s office in 1877. This map shows a street called Bawson street, seventy feet in width, leading from Central avenue northerly to lands of the Hew York Central Bailroad Company, crossing streets indicated upon the map as Hunter avenue, Second street, Third street and Lumber street (the latter street being now known as Livingston avenue).

The evidence shows that after the making of this map, Mr. Hunter conveyed several lots described with reference to the map and with reference to Bawson street as there laid down. In 1875 the city purchased from Mr. Hunter a considerable tract of land for a public reservoir, and upon the construction of the reservoir the portion of Bawson street, as indicated upon the map, lying between Hunter avenue and Third street was closed, leaving, however, those portions of Bawson street shown upon the map between Central and Hunter avenues and between Third and Lumber streets the same as before. It also appears that from 1875 to 1890 the assessors of the city made their assessments of the property of Mr. Hunter on Eawson street with reference to the lots and to that street as laid down upon the map, and that during those years he was not assessed and did not pay any tax upon the lands designated as Eawson stree't thereon. In July, 1889, Mr. Hunter caused a new map of a portion of his property to be made showing an open way sixty-six feet in width leading from Third street to Livingston avenue, but not designated thereon as a street or by any name, but showing this way as leading at a right angle from Livingston avenue instead of from Third street, as Eawson street had been indicated upon the map of 1873. The southerly end of this open way at Third street upon the map of 1889 was very nearly in the same place as was Eawson street upon the map of 1873 at that location, but the northerly end of this open way at Livingston avenue was carried a little more than its width farther west than the place indicated as Eawson street on the map of 1873. There is no proof that the map of 1889 was ever filed in the county clerk’s office, but the testimony shows that subsequent to its date and down to the death of Mr. Hunter the assessments of this property were changed to correspond with the new map and that he paid his assessments so made. This indicates very clearly not only that the new map or the subdivisions thereon shown had been brought to the attention of the assessors, but the knowledge and the agency of Mr. Hunter with reference to the change. These changed assessments did not include, and Mr. Hunter did not thereafter pay, any tax upon the open way or street shown upon the map of 1889. Since Mr. Hunter’s death the assessments have continued in the same way against the petitioner and she has received a like exemption of this open way from taxation. In 1890, Mr. Hunter and his wife conveyed the lot on the southwesterly corner of Livingston avenue and this open way, as appearing upon the map of 1889, and one-half of the lot next adjoining thereto on the south, as shown on such map, to Eobert Burns, and described such premises as being bounded east by the west line of Eawson street.” So, here is a designation by him of the open way on his map of 1889 as a street, and as Eawson street. The evidence shows the use of the open way indicated upon the map of 1889 by pedestrians and vehicles as a public street for from ten to fifteen years past, during which time it has been fenced upon each side along lines corresponding with those appearing upon the map. During this time it has been open to, and in fact used very largely by the public in passing between Third street and Livingston avenue, and has furnished the only avenue communicating with those streets, between Oolby street and Hew York Central avenue. It is also shown that Rawson street has also been known in that neighborhood as a public street for twenty-five years past. The photographs in evidence show a well-beaten road or carriageway over this open way of the same general character as that of the connecting streets. The common council, in June, 1871, adopted a resolution that the next street west of Hew York Central avenue “ running from Central avenue north to Lumber street be called Rawson street.” It also passed a resolution in December, 1879, directing the street commissioner to “ cause a crosswalk to be placed on Rawson street at Central avenue.” Under the charter the common council are constituted commissioners of highways for the city. § 14, tit. HI, chap. 298, Laws of 1883.

It does not appear that there was any ordinance passed until 1898 by the common council for a formal acceptance as a public street of the strip of land shown upon the map of 1889 under the statute authorizing the common council to accept streets that have been thrown open to the public use and have been so used for five years continuously. § 20, tit. XVII, chap. 298, Laws of 1883.

On May 16, 1898, such an ordinance was introduced for passage, and it was passed on June 6th following. Two days before the passage' of this ordinance the petitioner caused a fence to be erected at each end of this strip of land, one crossing it at the north line, of Third street and the other at the south line of Livingston avenue. These fences remained until the 7th day of July following, when they were removed by the city authorities.

It seems to me that the intention on the part of Mr. Hunter to dedicate what has been called Rawson street to the public as a street is clearly apparent from the facts above recited. Indeed, so far as it was shown as a street upon the map of 1873, this is not seriously controverted by the petitioner. But the claim in her behalf is that after the sale to the city by Mr. Hunter of the lands for the reservoir and the closing of a portion of the streets caused by the erection of that work the effect was to give Mr. Hunter the right to regard the entire street, except that part between Central and Hunter avenues, as abandoned. It is also •contended by the petitioner that the fences erected at the ends of the strip of land shown on the map of 1889, were effective as an assertion of her possession of the land and to revoke any pretended dedication of the same to the public as a street, they having been erected prior to the formal acceptance by the city of the land as a street.

With respect to the first of these contentions the ■ evidence shows very clearly to my mind, that Hr. Hunter never regarded any part of the street shown upon the map of 1873 abandoned ■except that covered by the reservoir and such portions of it as fell cutside of the street lines when he changed the angles and narrowed the street as it appears on the map of 1889. Nor, under the law, in my opinion, did the erection of the fences across the ■ street have the effect contended for by the petitioner.

When Hr. Hunter sold lots on Third street and elsewhere with reference to the map of 1873, by deeds recognizing the existence <jf Rawson street, between Third and Lumber streets, the grantees and the public having relations with them obtained rights to the use of Rawson street as shown upon the map, and when he, in 1889, changed the location of that street between those points by having its westerly end deflected a little more than its width westerly of the location shown upon the earlier map, it showed an intention on the part of Hr.'Hunter to dedicate that street in its slightly changed position to his grantees and to the public in the place of the street indicated upon the map of 1873: It was a recognition of his obligation under the prior dedication. It did not show an intention to abandon the street but rather to slightly change its position for purposes of his own. It seems, as the rights of these grantees and the public were respected, that the •change was acquiesced in by all concerned. The acquiescence on the part of the city was evidenced by the change in the assessments at that locality and by the public in the use of the street in its changed location. So that, on all the facts in the case, it appears to me that the dedication by Hr. Hunter, and the intent on his part to dedicaté the way shown upon the map of 1889 to the public as a street, is clearly shown. Nor do I think the erection by'the petitioner of the fences across this street upon the eve of the passage of the ordinance accepting it as a street, and after the public had used it for so many years, was effective to recall the dedication made by Mr. Hunter. I think that, under the authorities and the circumstances appearing in the proof the dedication was irrevocable. Elliott Eoads & Streets, 89, 119; 24 Am. & Eng. Ency. of Law, 11.

But whether it was irrevocable or not the acceptance of the dedication had been complete by long-continued public use long before the erection of the fences, and that was sufficient. People v. Loehfelm, 102 N. Y. 1; Holdane v. Village of Cold Springs, 21 id. 478; Elliott Roads & Streets, 117.

For this reason the ordinance passed by the common council to accept this property as a street was not essential for the protection of the right of the pubEc to its easement in the street.

As the sewer was constructed in pubEc streets the assessment therefor should not be vacated.

I have examined the other objections urged against the validity of the assessment, but none of them appear to me to be sufficient to relieve the petitioner from the burden laid upon her property.

The petition must be dismissed, with costs to the city of Albany.

Petition dismissed, with costs to city of Albany.  