
    Mary J. Wildrick, as Adm’rx, etc., App’lt, v. De Witt C. Hager, et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October, 1887.)
    
    1. Highways—Public nuisance — Abatement oe—Destruction oe records—Secondary evidence of contents.
    This action was brought by the plaintiff’s intestate to restrain the defendants from constructing a dam across a certain stream whereby its waters were diverted from their course on to the lands of the plaintiff. The defendants, some of whom were trustees of a village in which the stream and lands in question were situated, and as such commissioners of highways therein, and the others of whom were the president and street commissioner of said village, claimed that in doing the acts complained of they were restoring the stream to its original channel, from which it was unlawfully diverted in or about the year 1847, by damming up its ancient course and causing it to flow on and along a certain highway in the said village, thereby obstructing it and creating a public nuisance which it was their duty in their official capacity to abate. A question arose as to whether the alleged highway had at the time of the diversion a legal existence, Evidence was given showing that records of highways of the town from 1795 to a date subsequent to 1863, had been deposited in the town clerk’s office, and that such records, extending over the period from 1830 to 1863, had been destroyed by fire. Held, that of the contents of these latter, secondary evidence might be given.
    S. Same—Laying out—Evidence of.
    The names of the highway commissioners during the year 3834 were proved by record evidence. A witness called by the defendants testified that he was a surveyor in 1834, and that certain of the part es before proved to have been highway commissioners during that year, called on him to lay out a highway. 'The street in question is located on this survey. At the time it was made the owner of lands through which this highway was laid sold village lots there. Testimony as to some portions of the description of the highway was given by a witness who had consulted the records previous to their destruction. The above stated testimony was not controverted. Held, that the conclusion was not warranted that the street in question was surveyed in 1834, under the direction of the highway commissioner, for the purpose of laying it out as a highway, and that at or about the same time it was recorded, opened and worked, and had ever since been used as a highway.
    
      9. Record — Destroyed—Presumption of its regularity—What circumstances warrant.
    
      Held, That the fact that there was no express evidence that the order laying it out was signed by the commissioners did not militate against this conclusion. That there being no proof to the contrary, and the fact that it was placed on record, warranted the presumption that it possessed the requisites for record.
    4. Highways—Legal existence—Evidence of.
    
      Held, that independent of the question of the legal and formal laying out of the street, the recognition of the existence of the highway by the sale of lots upon it, and the public use of the street, together with its care by the public authorities amounted to a dedication and acceptance, and such being prior to the diversion of the stream, was sufficient to sustain a finding that the highway then had a public existence.
    5. Same—Sale of lots on—Acceptance by public and public care—
    Estoppel.
    
      H Id, that the owner of lands, who dedicated the highway to the public was, by the acceptance of the public, estopped from c aiming the right to relieve any other portion of his land from the flow of the stream, by moving it on to the hiahway, to the detriment of the public, and that the plaintiff, whose title was derived through said owners, was also estopped.
    Referee—View—Determination based on—Cannot be reviewed.
    The referee before whom the case was tried, with the consent of the parties and in the presence of counsel of both sides made a personal examination and view of the premises and water courses in question. Held, that, so far as his determination in the matter was based thereon, it could not be reviewed.
    
      7. Public nuisance—Abatement of—What does not bar right to.
    
      Held, that neither lapse of time nor the circumstances under which the plaintiff's intestate acquired his title, nor the attempts of the citizens and public officers of the village to procure a discontinuance of the nuisance without litigation, could give the plaintiff a right to continue it as against the public.
    Appeal from a judgment entered on the report of a referee.
    
      A. Hadden, for app’lt; I. W. Dinning, attorney; D. M. Darrin, for resp’ts.
   Smith, P. J.

The action was brought by the plaintiff’s intestate, in his life-time, to restrain the defendants from constructing a dam across a stream known as “Reuben Brook,” in the village of Addison, and thereby turning the waters of said stream from its present channel on to the lands of the plaintiff. The defendants, three of whom were trustees of said village, and as such, commissioners of highways therein, and the others were the president and street commissioner of said village, claimed by their answer that in doing the acts complained of, they were restoring the stream to its original channel from which it was unlawfully diverted in or about the year 1847, by damming up its ancient course and causing it to flow on'and along a certain highway in said village, called South street, thereby obstructing said highway and creating a public nuisance, which it was the duty of the defendants, in their official capacity, to abate.

A question in the case is whether the alleged highway had a legal existence in 1847, at the time when the diversion is alleged to have occurred. That South street is now, and for many years has been a' public highway, is not disputed. .The question is, when and by what means it became a public highway. The referee found that the highway was laid out in 1834. That finding is challenged by the appellant, as being unsupported by the evidence. No order laying out the highway was proved. There was evidence tending to show that records of highways in the town of Addison, from the year 1795 to a date subsequent to the year 1863, had been made and deposited in the office of the clerk of the town. The town clerk produced a book of such records from the year 1795 to 1830, and another from ■ 1863 down, and he testified that he had searched in his office for the highway records for the intermediate period and could not find, them; and there was evidence tending to show that the book containing such records for that period was destroyed by fire in December, 1879. Secondary evidence of its contents was therefore admissible. Leland v. Cameron, 31 N. Y., 115.

It was proved by record evidence that in the year 1834, the highway commissioners of the town were James H. Green, Andrew Helmer and Joseph Orr. Henry H. Birdsall, a witness called by the defendants, testified that he was a surveyor in 1834, and that when Green, Helmer and Orr were commissioners, they called on him to lay out a highway, commencing where the Addison House now is; that he made the survey, and was assisted by Helmer in doing it; that it ran near where Orr lived, and he saw Orr at the south end of the route while he was making the survey; that he made a survey bill and thinks he gave it to Helmer, but of that he is not certain; and the road was opened and worked on his survey, within a year or two, as near as he can recollect. We understand that the appellant does not question, but that South street is located upon the line of Birdsali’s survey. At the time of the survey, William Wombough owned a large tract of land, including the land through which the road was laid, and, according to the testimony of his son William, he sold village lots on that street, but witness could not say that he sold any prior to 1844.

Henry Baldwin testified that about the time of the war he was a trustee of the village of Addison; that a discussion arose in relation to South street, and that he looked up the record of a highway, which is the same street now used. It was in an old book of record. He testified to some portions of the description of the course of the highway contained in the record. The testimony above stated is not controverted. In view of all the circumstances, it seems to us to warrant the conclusion that South street was surveyed in 1834, under the direction of the highway commissioners, for the purpose of laying it out as a highway, and that at or about the same time it was recorded, opened and worked, and has ever since been used as a highway. The fact that there is no express evidence that the order laying it out was signed by the commissioners, does not militate against this conclusion. There is no evidence that it was not duly signed, and the fact that it was placed upon record, warrants the presumption, in the absence of pi’oof to the contrary, that it possessed all the requisites entitling it to be recorded.

The controversy is not between the public authorities and the owners of the soil taken for the street. If it were, it may be that presumption could not supply the lack of proof. Even then, however, the circumstance that Wombough, the owner of the soil, recognized the existence of the highway by selling lots upon it before the lapse of a sufficient time to create a highway by prescription, would be strong evidence that the highway was legally laid out. Indeed, it may be said that such action on the part of the owner, accompanied by public uses, and the care of the street by the public authorities, amounted to a dedication and acceptance, independently of the question whether the proceedings to lay out the highway were in all respects regular and complete. Trustees of Watertown v. Cowen, 4 Paige, 510; Matter of Thirty-ninth Street, 1 Hill, 191.

As such dedication and acceptance were prior to the diversion of the stream, the finding that the highway then had a legal existence, may rest upon that ground.

Again, Wombough having dedicated the highway to the public, and the public having accepted it, he was thereby estopped from claiming the right to relieve any other portion of his land from the flow of the stream, by turning it on to the highway to the detriment of the public. The plaintiff is in the same position, and so was her intestate before her. Her lands which she claims are injured by the acts of the defendants, are a part of the tract owned by Wombough, and the title of her intestate and herself was derived from Wombough through mesne conveyances. We incline to the opinion that on this ground also the question of the existence of the highway at the time of the diversion was correctly decided, as between the parties to this action. But we advance this view of the case with some hesitation, as it has not been suggested by counsel, and for that reason we would not be willing to rest our decision of the question upon it alone.

Upon the question of diversion the testimony is voluminous and conflicting. We have read it carefully and are not ready to say that the conclusion of the learned referee is against the weight of evidence appearing in the appeal book. The case states that after the close of the evidence, and before the cause was submitted, the referee, with the consent of all parties, and in the presence of the counsel on both sides, made a personal examination and view of the premises and water courses in question. To what extent his conclusion was determined by such inspection we can not know, and, so far as it was determined thereby, we cannot review it.

That the diversion has resulted in a grave public nuisance can hardly be questioned. Neither the lapse of time, nor the circumstances under which the plaintiff’s intestate acquired his title, nor the attempts of the citizens and public officers of the village to procure a discontinuance of the nuisance without litigation, give the plaintiff a right to continue it against the public.

The judgment should be affirmed, with costs.

Barker and Haight, JJ., concur; Bradley, J., not sitting.  