
    S. Fleet Speir et al., Ex’rs., etc., Resp’ts, v. The Town of New Utrecht, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    
      1. Highway—Wheh cheated by useb.
    A private way, opened by the owners of land through which it passes, for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it, where there is no proof that the public authorities kept it in repair, or adopted it, or in any way recognized it as a highway.
    3. Same—Estoppel—Assessments.
    The fact that some of the owners of land assessed paid their assessments does not estop the plaintiffs from assailing" the assessments in question, or forbid the maintenance of this action.
    •3. Same.
    The existence of a railroad upon a part of a road during a portion of the twenty years does not di feat the claim of a highway by user,, where the strip is open to the public, and travelers can pass over every part of it, except that it was not practical for vehicles to pass over the tracks.
    
      4. Same.
    The order of the supreme court confirming the report of the opening commissioners was not an adjudication binding upon plaintiffs, and constituted no bar to this action.
    Appeal .from a judgment of the supreme court, general term, second department,- reversing judgment of the special term for defendant and directing judgment for plaintiffs.
    This action was brought by the plaintiffs’ testator, and in his complaint he prayed, besides other relief, that the assessments laid upon his land in the town of New Utrecht for opening, grading and improving Oropsey avenue be declared void, and that the defendant be perpetually enjoined from collecting the same. The "action was to put at issue and afterward brought to trial at a special term of the supreme court. Witnesses do not appear to have been produced at the trial, but the evidence there taken was in’the form of statements mutually made and mutually assented to by the parties. The material facts found by the trial judge from the evidence so-taken-are as follows: In 1810 there was an ancient public highway known as the “ Old Mill Road,” running through the towns of New Utrecht and Gravesend. About the year 1810 James Oropsey built a house on his farm 500 feet from that road, and opened a lane twenty feet wide terminating at each end in the road with a gate at each end and leading irregularly to the residences of three different persons situated along the lane, one of which belonged to Robert Speir. In 1852 Oropsey proposed to Speir to dispense with the lane and to substitute a straighter roadway sixty feet wide connecting at each end with the Old Mill road, and Speir assented to the proposition, and for the purpose of carrying it out bought some land from Cropsey bounded upon the new road. In the early part of the year 1853 the f mecs were moved and the new sixty foot road was opened, and thereafter was used by the public gen erally. Cropsey and Speir, however, repeatedly declared at the time of the opening and during subsequent years that the road was a private way belonging to them or to other owners of the land lying upon it, and that they had a right to close it whenever they saw fit. After the opening of that road, in the years 1853, 1866, 1868 and 1875, James Cropsey, as well as other grantors by several deeds conveyed lands bounded by the side of the road. James Cropsey conveyed to the plaintiffs’ testator by several deeds the title to the land adjoining the road upon which the assessments mentioned in the complaint were levied, which lands are in the deeds bounded by lines, in terms “running along the line of said road”
    In the latter part of the year 1862, a steam railroad was constructed and operated upon the center of the road with a single track until 1880, and afterward with a double track. The railroad was constructed under the general railroad act and was authorized by law to be constructed and operated on the road, and the owners of the land along the road consented to the com struction of the railroad thereon. The width of the road bed of the single track was about ten ■ feet, and of the double track about twenty-two feet, and the entire superstructure of the railroad was not higher than the surface of the road, except the iron rails, which were about three inches high. The portion of the road occupied by 'the railroad tracks was not suitable for travel with teams or vehicles; but the space on either side of the railroad was used by the public to drive or walk on, there being a foot path on either side of the road and an ordinary wagon track between it and the railroad, with room to- turn out. In March, 1886, the plaintiff and the other owners of the property along the railroad deeded to the railway company land for another roád-bed, for the purpose of having it remove its tracks from the road; and about August, 1886, the railway company removed its tracks and wholly removed from the road and ceased to use or occupy the same.. Cropsey avenue was mapped and laid out pursuant to chapter 670 of the Laws of 1869 by the town survey commissioners of Kings county to the width of eighty feet, covering and including the sixty foot road in question. Under chapter 554 of the Laws of 1881 and the resolutions of the board of supervisors of Kings county passed in May, 1884, proceedings were instituted, and commissioners were appointed by the supreme court for the opening of the avenue. The commissioners, upon their maps annexed to their report, and in their deliberations and by their report, made awards only for the lands lying' outside of the sixty feet and within the limits of the eighty foot avenue, and they did not make any award for the lands lying within the sixty feet, regarding that as already a public road by user, or prescrip: tian, or as a private way to the owners of the fee for which no award was necessary.
    
      After the confirmation and filing of their report, grading commissioners were duly appointed by whom or under whose directions Cropsey avenue was graded and constructed to the width of eighty feet, at a cost of $40,521, before the commencement of this-action. Assessments for the benefits were laid on the lands adjoining the sixty foot road, which lands -were owned by eight persons, five of whom paid their assessments amounting in the aggregate to $2,350.41. The assessments upon the land of plaintiffs’ testator adjoiningthe avenue amount to about $2,000. James Cropsey died in November, 1861, and m October, 1874, his heirs, conveyed to the plaintiffs’ testator all their title and interest in the land of the sixty foot road to the centre thereof immediately in front of his adjoining land. And the learned judge found as conclusions of law as follows:
    “ L That prior to the opening of Cropsey avenue the said sixty foot roadway had become a public highway.
    “ II. That there had been no dedication of the said sixty foot strip as a highway by the owners thereof at the time of the opening of Cropsey avenue, but that the same had been opened and used by said owners only as a private way for the few owners of property abutting thereon, the public, however, having actually used thesame.
    “ III. That the public having used said strip as a highway for ten years before the introduction of the steam railway thereon, and having in addition thereafter used that portion of the said strip not occupied by the track or bed of said railway for the purposes of a highway for more than ten further years, said sixty foot strip thereby became a public highway.
    “IY. That as between the owner or owners of the fee of the land covered by said roadway and the adjacent landowners, such said roadway was at least a private way, and so the land was burdened with a permanent and perpetual easement of way for the benefit of the latter.
    “ Y. That the order of the supreme court confirming the report of the commissioners appointed for the opening of Cropsey avenue is an adjudication binding upon the parties to this action, and as such constitutes a bar to this action precluding the maintenance thereof.
    “ YI. That, after the completion of the improvement, the defrayal of its cost, and the payment of their assessments by some of the owners of the lands assessed for benefits resulting therefrom, it was as a question of substantive law (the defendant having waived all objections to the form of remedy), too late for the plaintiff to. claim by any form of remedy whatever that the improvement did not legally include the said sixty-foot roadway.
    “YU That the defendant is entitled to judgment dismissing the-complaint, without costs, and I order and direct that judgment be entered accordingly.”
    The plaintiffs appealed to the general term from the judgment, and there the judgment was reversed, and a judgment ordered for the plaintiffs, giving the relief demanded in the complaint, with costs, and then the defendant appealed to this court.
    
      Wm. Sullivan, for app’lt; Wm. C. De Witt, for resp’ts.
    
      
       Modifying 17 N. Y. State Rep., 727.
    
   Earl, J.

Cropsey avenue was planned, mapped and laid out under the act, chap. 670 of the Laws of 1869, and it was open to the width of eighty feet, and graded and mapped under certain resolutions adopted by the board of supervisors of Kings county, by authority of the act, chap. 554 of the Laws of 1881. Under those resolutions opening commissioners were appointed by the supreme court, who estimated the damages caused to the owners of lands taken for the avenue, and made awards therefor to such owners, and „ assessed such damages upon the lands which in their judgment were benefited by the opening of the avenue. Subsequently grading commissioners were appointed under the same resolutions, and they opened, graded, constructed and improved the avenue, and assessed the expense thus incurred upon the lands which in their judgment were benefited by the improvement; and it is this assessment of which the plaintiffs complain. They assail it on the ground that the old sixty-foot road was not a highway; that the land embraced therein was private property, and was not taken or condemned by the opening commissioners, and that, therefore, the work thereon by the grading commissioners constituted a trespass, for the expense of which no assessment could be legally made. If they are right in their contention that the sixty-foot road was not a public highway, we see no reason to doubt this action can be maintained.

The sixty-foot road never having been laid out as a highway prior to the action taken under the act of 1869, could become a highway in only one of two ways; either by dedication or user. There was much proof that the sixty foot strip of land had been dedicated by the owners for a highway. It was open and fenced and used by the public generally for travel for more than twenty years. It was mentioned as a road in various deeds and maps. But it is admitted that Cropsey and Speir who owned the land and opened the road, at the time of the opening and during subsequent years repeatedly declared that the road was a private way belonging to them, and the other owners of land lying upon it, and that they had the right to close it whenever they saw fit. It does not appear under what circumstances these declarations were mada They could not have been made later than November 15, 1861, as Cropsey died at that date; nor docs it appear that the public authorities accepted the dedication or in any way adopted the road as a highway by working it or forming it into or annexing it to a road district. The trial judge was therefore justified in holding that it was not a highway by dedication. Holdane v. Trustees of the Village of Cold Spring, 21 N Y, 474, Cook v. Harris, 61 id , 448, Niagara Falls Suspension Bridge Co. v Bachman, 66 id., 261, People v. Loehfelm, 102 id., 1, Badeau v. Mead, 14 Barb., 328, Clements v. Village of West Troy, 16 id., 251

The trial judge found that the sixty-foot road became a highway by user under the Revised Statutes, 1 R. S., 521, § 100, whicn provides that “ all roads not recorded which have been or shall have been used as public highways for twenty years or more shall be deemed- public highways." The frill scope and meaning of the words “used as "public highways,’'are not quite certain. The user need not be adverse and under' such "circumstances as would be required to give an individual a fight of "way by precription. If such had been the intention, other language would, We think, have been used. All we have here is that “the road was used by the public generally1 But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway,' and the burden of making highways and sustaining bridges cannot be imposed upon the public m that way. There must be more. The user must be like that of highways generally. " The road must not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities. We think all this is;implied m the words “used as public highways.” ' ■

Although the owner of land may not dedicate it for a public highway, and may not intend or assert that it shall become such, yet if he permits it to be used in the way just indicated for twenty years it would be deemed a public highway, and he will not be permitted to question the public right. The" views of judges as to the proper construction of the statutory provision quoted have not been harmonious. Galatian v Gardner, 7 Johns., 106, Wiggins v. Tallmadge, 11 Barb., 457, Trustees of Jordan v Otis, 37 id., 50; Devenpeck v Lambert, 44 id., 596 ; Vandemark v Porter, 40 Hun, 397 , In the Matter of the Bridge, 100 N. Y., 642 ; Rozell v. Andrews, 103 id., 150, 3 N. Y. State Rep., 53. See, also, Strong v. Makeever, 102 Ind., 578, and Potter v. Safford, 50 Mich., 46. Here there is no proof of the circumstances under which the public travelled upon this road, and it does riot appear that the public authorities kept it in repair or adopted it, or in any way recognized it as a highway. A private way opened by the owners of the land through which it passes for their own uses does not become a public highway merely because the public are, also,"permitted for many years to travel over it. Shellhouse v State, 110 Ind., 509. Hence the trial judge erred in holding that the sixty foot road became a public highway by user.

The trial judge also held that the Order of the supreme court confirming the report of the opening commissioners is an adjudication binding upon these parties, and as such constitutes a bar to this action, and in this we think he erred. The commissioners made no adjudication as to the sixty-foot road, and had no right to make any m reference thereto, and that road was m no way brought into litigation by their report or upon the confirmation thereof. They simply took land on each side of the sixty foot strip so as to make an avenue eighty feet wide, and it was only the land so taken that was involved m that proceeding. They made no award for the sixty foot strip of land, and there was no adjudication in referetice thereto that binds any one.

The trial judge seemed to be of opinion that if the sixty-foot road was a mere private way, and so the land was burdened with a permanent and perpetual easement of way for the benefit of the different land owners, the owners of the fee m the sixty-foot strip could not complain of the entry thereon and the improvement thereof as a public highway; and in this he erred. Clearly if the land was burdened with only such a private easement, it could not be taken and condemned for a public highway without some compensation to the owners of the fee.

The fact that some of the owners of land assessed paid their assessments does not estop the plaintiffs from assailing the assessments in question, or forbid the maintenance of this action. Ha facts are shown upon which an estoppel can be- based Mere delay in the commencement of this action, during which some of the others voluntarily paid their assessments, not choosing to contest them, does not deprive them of their remedy. There might be circumstances out of which an estoppel could arise, but they do not appear here:

We do not agree with-the general term that the existence of the railroad upon the road during a portion of the twenty years defeats the claim of a highway by user. ■ The railroad was built upon the road, and it was a public use for travel. But it was a new burden superinduced upon the prior easement, and hence required the consent of the owners of the fee. It did not change the essential character of the road. It still remained a road and was used for public travel, the centre only being used by the railroad tracks. The strip of land was open to the public, and travellers could pass over every part of it, except that it was not practical for vehicles to pass over the tracks. If the user was otherwise sufficient to constitute the road a highway, the presence of the railroad tracks was an immaterial circumstance.

Our conclusion, therefore, is that the judgment of the special term was properly reversed. But judgment should not have been given for the plaintiffs, and a new trial should have been ordered. Upon the new trial the facts may be more fully brought out. It1 will be open to the plaintiffs to produce new evidence upon the question of dedication. Upon that question the declarations of Cropsey and Speir, which now appear in the record, will not necessarily be decisive. The case may be such that upon all the-evidence it will be a question of fact whether there was a dedication and acceptance thereof by the public authorities within the-rules of law upon the subject. So, too, upon the new trial, other and fuller evidence may be given as to the user of the road, and it may be shown that there was such a user within the principles above laid down as to show that in law this road became a public highway by user.

The judgment of the general term should, therefore, be modified so as to order a new trial, costs to abide event

All concur.  