
    Supreme Court-General Term-Third Department.
    February 15, 1893.
    PEOPLE v. DAYTON S. KELLOGG.
    (51 St. Rep. 99; 67 Hun, 546.)
    1. Highways—Dedication.
    To constitute- a public highway by dedication, there must not only be a setting apart, and a surrender to the public use of the land by the owner, but also an acceptance and formal opening by the proper authorities or a user.
    2. Same.
    Where the owner of certain land has the same laid out into lots with streets and canses a map thereof to be made, and thereafter sells some of the lots with reference to said map, subject to the right of the public in the street and reserving the right to make improvements in such street, but there is no acceptance on the part of-the municipal authorities until ten years after making the map, and in the meantime, said owner dies, there is not such a dedication to the public as to vest the public with a right to the land as a highway. _
    3. Same.
    But, if the acts of the owner can be construed as an evidence of the willingness to dedicate these streets to the public, such proffered dedication was revoked by the owner’s death.
    'Appeal from a conviction and judgment thereon, in the court of sessions of Montgomery county, for an alleged misdemeanor in obs tructing an alleged public street or highway in the village of Port Plain.
    George E. Phillips (A. M. Mills, of counsel), for appellant.
    Charles S. Nisbet, for respondents.
   MAYHAM, P. J.

The principal question on this appeal is whether the locus in quo upon which the alleged obstruction was erected by the defendant, was by dedication by the owner of the land, and acceptance by the municipal authorities of the village of Port Plain, a public highway.

There is no claim on the part of the respondent, that the land upon which this obstruction was placed by the defendant bad ever been condemned and taken by the public authorities for a public street under the power of eminent domain.

But it is insisted that the. facts proved on the trial established in law a dedication by the owner and an acceptance by the municipality of the land in dispute so as to constitute it a public street.

■ The case shows that Hannah Kellogg prior to, and during the year 1881, owned the land then and now known as Prospect •Hill; and that in November of that year, ait the request of this defendant, an -engineer laid out part of Prospect Hill into lots and staked out Streets, drove stakes at the corners of such lot, and marked out to show where the streets were to be located, and after that was done, made a map of it.

At the time of making this survey and map, the land known, as Prospect Hill was all a part of the farm of Hannah Kellogg,, and used as meadow and pasture lands by her until December, 1881, when she with her husband, this defendant, deeded to one Edwards lots designated in such conveyance as “lots Nos. 1 and 2 in section 5 on map of said village lots made by E. H. Putnam, civil engineer, for Dayton S. Kellogg in the month of November, 1881.”

This conveyance bounded the lots on the east by Clinton avenue, and north by Henry street, conveyed the fee of Clinton avenue, subject to the rights of the public to use said street, and reserved the right to the grantors to make such improvement on such streets or avenues as they may deem advisable in the interest of lot owners.

In 1885 Dayton S. Kellogg and Hannah Kellogg conveyed lots Nos. three and fonr by deed with similar reference to the survey and map and with like reservations and in May, 1886, lot No. eight with like reference and reservations.

Several other deeds were executed in 1885 by the same parties, containing similar ref erence to the map and survey, and contain-: ing substantially the same reservations.

These deeds were all put in evidence by the People under the defendant’s objection.

There is no direct evidence in the case that the corporation at the time, or near the time of making this map and survey, did any act to adopt such survey, or the streets platted on it as streets of the village.

Nor is there any evidence to Which our attention -has been directed, or that I can find in the record, that any highway or street labor has ever been applied on the streets designated on that survey, or map, before the passage of a resolution by the common council of the village of Port Plain on the 27th of July, 1891. The resolution or ordinance is as follows: Whereas, Hannah Kellogg, deceased, owner, did in the year 1881 lay out certain streets in the village of Port Plain .commencing at or near the bridge at the red mills in said village, naming said streets as Kellogg avenue, Clark avenue, Gilbert avenue, Clinton avenue, Henry avenue and Edward avenue, as per map made and filed in Montgomery county clerk’s office.

Therefore, resolved, That said village accept of -said streets above named as laid out and dedicated by said Hannah Kellogg, deceased, land owner; that said streets retain the same names and be known and named as originally named by said landowner.” This ordinance was received in evidence under the defendant’s objection. ' - ,

The survey, map, conveyances and ordinances, above referred to, constitute all the evidence of a dedication and acceptance which I am able to find in the record.

Without stopping here to consider the admissibility -of the evidence by which this dedication and acceptance is sought to be established, I do not think it proves such a dedication and acceptance as is required to divest the owner of the lands embraced in these streets, or to invest the corporation with the title tor street purposes. -:

No act of the owner of this land has been proved, showing, or tending to show, an absolute surrender on her part to the village or public of her right, title and control of these lands. Assuming that the survey and maps were made by her direction and authority, which is not shown, still that act would not be inconsistent with a purpose on her part to retain ti-tle and control in herself of all these lands, subject only to the rights and privileges conferred by her grants on her grantees.

It was in'no sense a dedication to the public or the village, but simply a method of subdividing her own property for her own convenience, in order to facilitate sales of the same in small parcels. • - -'-.a-

To constitute a dedication to the public which shall divest the owner of, and invest the public with, the right or title to land, -something more is required than was done by her in this case.

In Niagara Falls Suspension Bridge Co. v. Henry Bachman, 66 N. Y. 261, it was held that: “When the owner of lands lays the same out in lots and streets, makes and flies a map or plate thereof, and sells and conveys lots by the map, bounded upon the streets as delineated thereon, this does mot necessarily, and without other facts, make the streets so laid out public highways.” It was also held that “To constitute a public highway by dedication, there must not only be a setting apart, and a surrender to the public use of the land by the owner, but also an acceptance and formal opening by the proper authorities or a user.

The acts and declarations of the owner must be unmistakable •in their purpose and decisive in their character, showing the intent to dedicate the land asolutely and irrevocably to the public use.

In Holdame v. Trustees of Village of Cold Spring, 21 N. Y. 478, Wright, J., in discussing this question, says: “Throwing open lands in a village and fencing it on each side, and causing the way or avenue to be designated on a public map of the village, are acts tending strongly to show a design, presently, or at some future time, to dedicate and devote it to the public use.

“But these acts are not conclusive to establish a present dedication, binding upon the owner of the land.

“One may fence off a strip of his own for the purpose of a passage way, opening on a public street, or he may lay out a street through it, with a view of subdividing his land bounded •upon it into village lots, intending, upon the sale of such lots, to dedicate the street to the use of the public, but in such case, though the public may have occasionally, or, indeed, at all times, used the open way in passing to and from the inclosure of an adjoining proprietor, it could scarcely be pretended that the land had thereby become burdened with an irrevocable public servitude.”

Tested by this rule, there was not such a dedication to the public by Mrs. Kellogg, in her lifetime, as to vest the right to these lands in thé public as a highway.

But if the acts of Mrs. Kellogg could be construed into evidence of willingness on her part, at the time of this survey, to dedicate these streets to the public, still there was clearly, at that time, no adoption by the municipality of such proffered dedication.

The adoption of the ordinance of July, 1891, was a declaration or acknowledgment on the part of the municipality that up to that there had been no adoption by it, and hence no dedication, Cohoes v. D. & H. C. Co., 54 Hun, 558; 27 St. Rep. 613; reversed, 134 N. Y. 397; 47 St. Rep. 612; and the law is well settled that there can be no dedication without an acceptance by the public. Fonda v. Borst, 2 Keyes, 50; Niagara Falls v. Bachman, supra.

Before such acceptance the village owed no duty to the public in reference to these streets, and at the time of its adoption the proffered dedication by Mrs. Kellogg, if any was ever made, was, it would seem, revoked by her death. Bridges v. Wyckoff, 67 N. Y. 132; 43 Ohio St. 537.

If I am right in the above conclusions there was no public highway or street at the point where the alleged obstruction was placed by the def endant, and his act was not a violation of section 385 of the Penal Code.

Upon this view of the case, it is unnecessary to examine the-other exception taken by the defendant on the. trial.

The judgment of conviction must be reversed, and a new trial ordered, under the provisions of section 543 of the Code of Criminal Procedure.

PUTNAM, J., concurs in result; HERRICK, J„ not .voting.  