
    The Excelsior Brick Company, App’lt, v. The Village of Haverstraw, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1894.)
    
    1. Village—Street—Discontinuance.
    Under the provision of the Village Incorporation Act, a resolution of the board of trustees discontinuing a street is sufficient for that purpose.
    3. Same—Petition or certificate.
    In such case, no petition or certificate of freeholders is necessary.
    3. Same.
    The provision of 3 R. S. 1249, 7th ed, applies to streets in villages incorporated under the general act.
    4. Action to enjoin interference with land—What interest necessary.
    Possession, occupancy and use of land, under claim of title, entitle a party to maintain an action to enjoin interference therewith.
    5. Appeal—Findings.
    The appellate court cannot look into the evidence for the purpose of reversing findings of fact and law, to which no exceptions have been taken.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at special term.
    ' The nature of the action and the facts, so far as material, are stated in the opinion.
    
      Irving Browne, for app’lt; JS. A. Brewster, for resp’t.
    
      
      Reversing 50 St. Rep. 513.
    
   Earl, J.

The plaintiff commenced this action to restrain the defendant from interfering with its land and causing an irrepara-* ble injury thereto, and also to recover damages caused by the defendant thereto. The defendant claimed that the land was in a public street and that it was, therefore, authorized to interfere therewith, in the improvement of the street, and upon that ground the complaint was dismissed.

It is not disputed that the land in question constituted a street at some time prior to the acts complained of by the plaintiff, but it claims that the street had been discontinued and had thus ceased to exist. In June, 1887, the trustees of the village of Haverstraw formally adopted a resolution discontinuing the portion of Division street now in question, and the plaintiff claims that that resolution was effectual to discontinue the street. But the court below held that it was ineffectual for that purpose for the reason that the certificate of twelve freeholders was not obtained before the passage of the resolution.

The defendant was incorporated' as a village under the general act for the incorporation of villages, chapter 291, Laws of 1870, in section 1, title 7, of which it is provided as follows: “A village incorporated under this act shall constitute a separate highway district within its corporate limits exempt from the superintendence of any one except the board of trustees, who shall be commissioners of highways in and for such village, and shall have all the powers of commissioners of highways in this state, subject to this act, and as such they shall have power to discontinue, lay out, open, widen, alter, change the grade, or otherwise improve roads, avenues, streets, lanes, crosswalks and sidewalks; and for that purpose may take and appropriate any land in said village; but no road, avenue, street,"lane or sidewalk shall be opened or altered unless all claims for damages on account of such opening or altering shall be released without remuneration except on the written petition of at least ten freeholders residing in said village, which petition shall specify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known, and shall be filed in the office of the clerk of the village.” This section gives the trustees, as commissioners of highways, full power to discontinue, lay out and alter streets within the village, subject, however, to the limitation that they shall not open or alter any street where the damages have not been released, except upon the written petition of at least ten freeholders residing within the village. It is clear but for that exception they could open or alter any street without any petition, and the exception does not apply to the discontinuance of a street. If it had been intended to limit the powers of the trustees to discontinue a street by the condition precedent of the petition of the freeholders it would have been so provided. In the general laws relating to highways and highway commissioners (2 R S. 1238, etc., 7th ed.) it is provided that highway commissioners may not, in the cases specified, open, alter or discontinue highways without the certificate of twelve freeholders. It certainly could not have been the intention of the lawmakers that before any street in this village could be opened or altered, there was not only to be the written petition of the ten freeholders as provided in section one, but also the certificate of twelve freeholders as provided in the general highway laws of the state.

We think that the special requirement of the petition of the ten freeholders in the case of opening and altering a street indicates-very clearly that a street may be discontinued by the trustees without any petition or certificate of freeholders. It cannot be-supposed that the legislature would authorize the laying out and-altering of a street upon the unsworn petition of any ten freeholders and require the certificate of twelve disinterested freeholders, summoned and acting under oath, before'a street could be discontinued; and this construction of the language used in this section is in harmony with the decisions in People ex rel. Mizner v. Hair, 29 Hun, 125, and in The Matter of the Village of Rhinebeck, 82 N. Y. 621, where similar provisions in other village charters were construed. The difference in the language used in the charters there under consideration from the language used in the section-now under consideration is not sufficient to warrant a different, construction.

We think, therefore, that the resolution of the defendant’s trustees was effectual to discontinue the portion of Division street now under consideration.

But it had ceased to be a street for another reason. It was found by the trial judge that the part of Division street now in question “ had not been used or traveled by the public for more than six years prior to the commission of the acts complained of;” and in the general highway laws of the state, 2 R. S. 1249, 7th ed., it is provided that all highways “ that have ceased to be traveled or used as highways for six years shall cease to be a highway for any purpose.” In Horey v. Village of Haverstraw, 124 N. Y. 273; 35 St. Rep. 360, that provision was held applicable to a street in that village, and under the authority of that case, upon the finding of the trial judge, this portion of Division street had ceased to be a street prior to the commission of the acts complained of in this action.

But the claim is made on the part of the defendant that the plaintiff had no title to the land upon which the acts complained of were committed, and that, therefore, it could not maintain this action. But the finding of the trial judge is, “ that prior to 1887 John Derbyshire became the owner of lands in Haverstraw, N. Y., lying between Rockland street and the Hudson river, and located on both sides of that part of Division street, so called, where some of the acts complained of were committed, and on both sides of Allison street, so called, where other of such acts were committed.

“ That about June 14, 1887, said Derbyshire inclosed said portions of said streets with his own land by a fence, and entered into the possession of and occupied and used the same under-claim of title in common with his adjoining lands down to January, 1890, when he conveyed all of his said lands, and all of his right, title and interest in and to said streets to the plaintiff, who has ever since enjoyed like possession and use; ” “that the plaintiff has owned and used its said property as stated in paragraph two of the amended complaint: ” and in that paragraph the allegation is “ that the plaintiff is, and for some time has been, the owner of certain lands in said village of Haverstraw, lying between Rockland street in said village and the Hudson river, which lands have during such period been used and occupied mainly for the purpose of carrying on the business of manufacturing bricks and the excavation of materials necessary for use in such business.” And he found, as a conclusion of law, that the possession of the plaintiff was a sufficient title, as against the defendant, to the lands embraced within the lines of the streets in question.

While we may look into the evidence given upon the trial for the purpose of sustaining the findings of the court, we are not authorized to look into it for the purpose of reversing findings of fact and law to which no exceptions have been taken; and we must, therefore, take these findings as conclusive for the purpose of the present appeal, and hold that the plaintiff, in the absence of any right whatever on the part of the defendant, had sufficient title and possession for the maintenance of this action.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.

All concur.

Judgment reversed.  