
    In the Matter of Application of the Commissioners of Public Parks, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Award—Opening public street—When constitutes acceptance oe DEDICATION OE STREET.
    One H. acquired title to certain property in 1850. In 1849 a map of the property was filed in which appeared the lines of a proposed avenue. The deed to H. conveyed the premises together with the one-half part of the avenue laid down on said map, fronting on the premises. Shortly after taking possession H. opened the proposed avenue, but opened it fifty feet instead of sixty-six feet as shown on the map. On laying out the avenue he put up a building partly on the strip of sixteen feet wide included in the lines of the avenue, and he has been by himself and his tenants in possession of the strip ever since, paying taxes thereon. The commissioners having awarded H. nominal damages only for the strip of land and house, it is contended that a substantial award should be made, because though laid out, the avenue has never been accepted as such. Held, that the filing of a map by the commissioners in 1877, making the avenue a public thoroughfare as laid out in the original map was an acceptance of its dedication.
    2. Same—By whom dedication revoked.
    
      Held, that H. having taken his title subject to the easement for an avenue, none but the dedicator or her legal representatives could revoke it.
    3. Same—Adverse possession.
    
      Held, that the possession by H. of the locus in quo did not constitute adverse possession so as to extinguish the easement, his possession being under the limitations of a deed establishing the easement, and that it could not ripen into an exclusive right. Barrett, «L, dissenting.
    Appeal from order confirming the report of the commissioners for opening North Third avenue".
    
      Abel Crook, for John B. Haskins, app’lt; Carroll Berry, for resp’t.
   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, 1819, 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 27-100 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 other 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 fifty feet instead of sixty-six 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 sixteen 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 of 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, he 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 light 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 eighteen feet in width, and forming part of the street referred to in the conveyance through which she took title and which had been enclosed by her or her grantor for more than twenty 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 it was accepted by the public authorities, but this they did not do.” Eecognizing, 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 ten dollars 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 sixteen 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. Theie is no question here of adverse possession, but óf 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 twenty years, would not bar the right. And the adverse use for even- twenty years must be open and notorious, in hostility, to and indicating a denial of the right granted. Washburn on Easements, 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 enclosure 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 the 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. Now 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 id., 345; Humbert v. Trinity Church, 24 Wend., 587.

In the case at bar, there was, as to these sixteen 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 sixty-six feet in width. He asserted that they were entitled to a street of but fifty feet in width. He opened, and has since maintained a street of that width at liis own expense, and they acquiesced in the limitation. He took exclusive possession of the remaining sixteen 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 twenty 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 twenty 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 twenty 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 preferred 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 twenty 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 sixteen 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 twenty 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 twenty-five 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 twenty years adverse possession.

In Alves' Exrs. v. Town of Henderson (16 B. Monroe, 131) it was held that where an individual enclosed part of the land dedicated to public use and held exclusive possession of it for twenty years, he gained a valid prescriptive title.

So, in Rowan’s Exrs. v. The Town of Portland (8 B. Monroe, 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 twenty 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).

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 twenty 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 enclosing 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. Haskins 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 case 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 sixteen feet in question freed from the easement granted to the adjoining owners by the deed under which he took; and freed, also, from the preferred 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.  