
    In the Matter of Widening Hand Street in the City of Rochester.
    
      (Supreme Court, General Term, Fifth, Department,
    
    
      Filed April 12, 1889.)
    
    1. Municipal corporations—Streets — Dedication of land—How intention indicated.
    An intention on the part of an owner to throw open his land to the use of the public for street purposes must be shown by some affirmative act on his part, and merely permitting his land to remain open, unfenced against intruders, or without asserting the right of exclusive possession, will not be taken for such act.
    3. Same—Ordinances—Charter of city of Rochester, § 153—Use of LAND FOR STREET.
    The charter of the city of Rochester, which provides (sec. 158), “whenever any street, alley or land shall have been opened to, and used as such, by the public for the period of five years, the same shall thereby become a public street, alley or lane for all purposes, and the common council and executive board, respectively, shall have the same authority and jurisdiction over the right and interest in the same as they have by law over other streets, alleys, lanes and highways of the city,” does not apply to a case where the owner has not, by some act on his part, dedicated the premises to public use.
    3. Same — Taxes—Intention oe owner to yield right to resume property—How construed.
    The fact that the city levied taxes upon certain land, and that the same was paid by the owner, is evidence that the municipal authorities did not regard the uses by the public of such land, as being with the consent of the owner or indicating an intention on his part to yield the right to enclose and resume the use of the property, and exclude the public therefrom.
    4. Same—Power oe court on appeal to increase or diminish damages—Charter city of Rochester, § 187.
    As to the power of the court on appeal, section 187 of the charter provides that the court shall consider the appeal and examine all the questions of law, or of fact, that may be involved, and shall confirm or modify the commissioners’ report as it shall deem just, and in case it should annul the report it may direct a rehearing before the same or other commissioners to be appointed by it, and in such case the same proceedings shall be had on such hearing for the examination, correction or review of any subsequent report as provided by the said provision. The appellants contend that the power to modify the report does not include the right to increase or diminish damages. Held, that under the act the court has power to review the assessment of damages, and if dissatisfied with the award, to correct the same by diminishing or increasing the same, being guided by the evidence presented before the commissioners bearing on the question of damages.
    The municipal authorities for the city of Rochester in pursuance of the provisions of its charter instituted proceedings to widen Hand street along the eastern portion thereof, where it intersects with Clinton street. The papers describe several pieces and parcels of land intended to be taken for that purpose, and among them the parcel known as lot Ho. 28, which is described as follows: “Commencing at the northwest corner of the premises as described; thence northerly, six and seventy-five one hundredths feet; thence easterly about two hundred and thirty-five feet to the west line of Clinton street; thence northerly along the west line of Clinton street about thirty feet, to the line of Christianna Tackle; thence westerly about two hundred and thirty-five feet, to the place of beginning, known as lot Ho. 28, Riley’s subdivision.”
    Three commissioners were appointed to award damages to the owners of the premises described. Two of the commissioners joined in a report in which they awarded damages to the heirs of John B. Parmlee, the sum of one dol lar, and stated as a fact in their report that the premises had been for more than twenty-two years last past and now are used by the public of the city of Rochester for public highway purposes and uses, and in hostility to any right of said Parmlee, and that such user had been open, notorious .and continuous by and on the part of said public.
    The other commissioner made a separate report in which he dissented from the conclusion of his associates, and found as a fact that the record title to the premises in question was in the heirs of the said Parmlee, whose names and places of residence were unknown, but that George S. Riley, of Rochester, claimed to be the owner in fee of the said premises, by virtue of a defeasance, executed by Parmlee, the legal effect of which it is claimed constitutes the deed from Riley to Parmlee a mortgage, and that he was unable to concur with the other commissioners in their finding that the property had been used for highway purposes for twenty-two years, and that such use had been notorious and continuous by and on the part of the public, and that he was in favor of awarding to the owner of the premises $1,800 -as damages, and recommended that the money be deposited in the Monroe County Savings Bank subject to the order of the county court. The common council confirmed the majority report, and Riley appealed from the report of the commissioners to the supreme court, and the appeal was heard at the Monroe county special term, where the report was modified by awarding to the owner and claimants the sum of $1,800 as damages, and directing that such award when paid be deposited in the Monroe County Savings Bank subject to the order of the county court of Monroe county, and that the city of Rochester pay to the appellant, George S. Riley, his costs on the appeal. From the last named order the city took an appeal to the general term.
    
      Quincey Van Voorhies, for app’lt; Q-eorge F. Youmans, for resp’t.
   Barker, P. J.

At the time these proceedings were initiated, as appears by the proofs, the title to the land in question was in the heirs of J. B. Parmlee, deceased. Neither he nor they have been in the actual possession or control of the premises for many years. For more than thirty years George S. Riley, the respondent, has claimed an interest in the locus in quo. As early as in the year 1850 the eastern portion of Hand street, which runs east and west, was open and extended so as to interesect with Clinton street. This section of Hand street after it was opened was commonly called an alley, and was only sixteen feet wide.

It is conceded by the parties to this appeal that thereafter, by virtue of the proceedings then had, it was a public street and used by the public as such. It is unimportant to inquire whether this street was opened by the action of the owners of the land dedicating the same to the public as a street, or by proceedings instituted by the municipal authorities, or by concert of action on the part of both. It is also undisputed that after the public commenced to use the alley as a public street, the premises in question, then known as lot No. 28, fronting on Clinton street thirty feet, with a depth of 235 feet, and bounded on the north by the said alley, was owned by either the said Parmlee or the said Riley. The adjoining lot to the south of lot 28 on Clinton street, was opened and occupied by other parties before the public used any part of lot 28 for the purposes of a street.

It thus distinctly appears that after Hand street was extended so as to intersect with Clinton street, the premises in question known as lot 28 on the west side of Clinton street, was a separate and distinct parcel of land without the least uncertainty or controversy as to the true location of its street boundaries on Clinton and Hand streets. As there is no proof indicating that any other person than Mr. Riley had the control and management of this lot since the extension of Hand street, he will be mentioned for convenience as the owner.

The claim made by the city that the owner dedicated this entire lot to the use of the public as a public street is not in our opinion sustained by the evidence. There is not the least proof of any affirmative act on the part of the owner indicating an intention on his part to throw open this parcel of land to the use of the public for street purposes. The owner’s intention must be shown by some affimative act on his part, and merely permitting his land to remain open, unfenced against intruders, or without asserting the right of exclusive possession, will not be taken for such an act. Strong v. The City of Brooklyn, 68 N. Y., 1.

The use which the public have made of this lot by passing over and across the same as a part of Hand street does not convince us that it was with such assent on the part of the owner, that he intended to dedicate the same to such a use. Hand street being a narrow way and located in a populous part of the city,and Clinton street being a business thoroughfare, and lot 28 unused and unfenced, it was very natural that the traveling public should encroach upon the same, for the lot and the street together were less than three rods wide, and but little or no significance should be given to the circumstance that the public passing from one street to the other did use lot 28 as a part of Hand street.

It is not unusual that in the vicinity of cities and villages, tracts of land lie'unfenced, open to the common use for many years, and that well defined ways of passage are gradually formed across them, and without other evidence on the part of the owner to dedicate the same to a public use, it would be unreasonable to hold that such use by the public, without protest on the part of the owner, was evidence of an intention on his part to dedicate it to a public use, to surrender the right to inclose and occupy the same as private property. Requa v. The City of Rochester, 45 N.Y., 129; Strong v. The City of Brooklyn (supra); In the Matter of Rhinelander, 68 N. Y., 107; Rozell v. Andrews, 103 N. Y., 150; 3 N. Y. State Rep., 53; Cook’s Highway Laws, 350.

The city charter contains this provision, viz.: Section 163. Whenever any street, alley, or land shall have been opened to and used as such by the public for the period of five years, the same shall thereby become a public street, alley or lane, for all purposes, and the common council and executive board, respectively, shall have the same authority and jurisdiction over and right and interest in the same as they have by law over other streets, alleys, lanes and highways of the city.”

This section does not apply to a case where the owner has not by some act on his part dedicated the premises to public use.

In Strong v. The City of Brooklyn (supra), the court, in commenting upon a statute with similar provisions, remarked that:

“ The purpose of the statute evidently is to provide for the case of an owner of a tract of land in the city who had laid it out into lots, and planned and marked out streets upon it, and had thus and by other like measures, invited the public use of them, without in any more technical or formal manner investing the city government with the right to take them into possession and control. And the initiatory act of the throwing out to the public use must be an indication by the owner that for such length and width over his premises, a street or way is accorded for the public use.”

These comments upon the statute then under consideration seem to us to be entirely applicable to the one contained in this charter.

The suggestion that the public had acquired a right by user, with the assent of the owner, for the period of over twenty years, is fully answered by what has already been said relative to the circumstances under which the public enjoyed the use of the premises.

It is an undisputed fact that during this period mentioned by the witnesses the city levied taxes upon this lot as a separate and distinct parcel of land, and that the same was paid by the respondent. This fact alone would ordinarily be received as evidence that the municipal authorities did not regard the use by the public, whatever may have been its nature and character, as being with 'the consent of the owner, or as indicating an intention on his part to yield the right to inclose and resume the use of the property, and exclude the public therefrom.

Mr. Riley, who appealed from a majority report, was heard before the commissioners, and there presented proofs showing that he had the control and management of the property,_ paid the taxes thereon and had an equitable interest in the premises, and these facts and circumstances_made him a proper party to the proceedings and gave him a right to be heard upon the question of compensation to be awarded for taking the land for street purposes.

The order appealed from directs that the moneys be deposited subject to the order of the county court, and that tribunal will protect the city and all parties having claims upon the fund.

The appellant makes the further point that the special term had no power to modify the report by increasing the award of damages above the amount awarded by the1 majority of the commissioners. The commissioners are required to preserve the evidence taken before them, and file the same in the office of the county clerk. When an appeal is taken it is the duty of the clerk to certify to this-court a copy of the report of the commissioners with the Eroceedings and evidence had before them filed with him y said commissioners. An appeal may be taken from the order of a special term to the general term of this court- and its decision is final. As to the power of the court on appeal, the provisions of the charter on that question are,, that the court shall consider the appeal and examine all the questions of law or fact, that may be involved therein, and shall confirm or modify such report as the court shall deem just. In case the court should annul the report it may direct a rehearing before the same or other commissioners to be appointed by it, and in such case, the same proceedings shall be had on such hearing, and for the examination, correction, or review of any subsequent report as provided by the said provisions. Section 187. The appellant’s contention is, that the power to modify the report does not include the right to increase or diminish the damages.

The jurisdiction over the subject matter is unlimited by the terms of these provisions and we think it was the intention of the legislature to confer on this court the power1 to review the assessment of damages, and if dissatisfied with the award, to correct the same by increasing or diminishing the same, being guided in such determination by the evidence presented before the commissioners bearing1 on the question of damages. In terms the court is empowered to examine every question of fact involved in the controversy. The special term did not, as is claimed by the appellant, adopt the report of the minority, but corrected the report of the majority, fixing the amount of damages the same as was stated in the minority report. Our own examination of the evidence- convinces us that the amount of damages fixed by the special term, is not above the value of the property.

' The order appealed from should be affirmed, with costs or this appeal to be taxed as if it was a civil action.

Dwight, J., concurs; Maoomber, J., not sitting.  