Matter of Hunter , 163 N.Y. 542 ( 1900 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The undisputed evidence shows a clear intention on the part of Hunter and his successor in title to dedicate the land in question to the use of the public as a highway. He did not simply suffer it to lie open, unfenced and undefined, but by unequivocal acts he made a tender of dedication of land, fenced as a street, laid down upon his own map as a street, and in constant use by the general public as a street. After he prepared the second map, and on the 10th of June, 1890, he conveyed abutting lots, bounding them on one side "by the west line of Rawson street," thus designating the open way on the map of 1889 as a street with that name. When the petitioner succeeded to his rights she did not attempt to revoke the dedication, but allowed matters to remain for five years as her husband had left them.

Assuming, but not deciding, that the power of revocation existed when the ordinance of May 16th, 1898, went into effect, no attempt had then been made to exercise the right. The tender of dedication was still open to acceptance by the city, and if that ordinance amounted to an acceptance, the land forthwith became a public highway. As was said by this court inCook v. Harris (61 N.Y. 448, 454): "Dedication and acceptance may be proved by the acts of the parties, and the circumstances of the case. The owner's acts and declarations should be such as to manifest an intention to abandon or devote his property to the specific public use. In the case of a highway, the public must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway. No particular length of time is essential to make a dedication valid and irrevocable. The dedication and acceptance may both concur on a single day." (See, also, 24 Am. Eng. Encyc. 6; Elliott on Roads and Streets, 89, 111; Dillon on Munic. Corp. [4th ed.] §§ 637, 638.)

By the charter of the city of Albany, the members of the common council are made commissioners of highways. (L. 1883, ch. 298, title 3, § 14.) Any action by the common council showing a clear intention to recognize the strip of land in question as a street was an acceptance of it as a public highway. An ordinance directing the street to be graded, paved or put in proper condition for use by the public would have that effect. (Flack v. Vil. of Green Island, 122 N.Y. 107; City of Cohoes v. D. H. Canal Co., 134 N.Y. 402.) A resolution formally and in terms accepting the street was unnecessary, for any official act on the part of the common council which treated it as a street and showed an intention to adopt it as one of the public streets of the city would be sufficient.

The ordinance of May 16th directed the construction of a sewer through the strip of land under consideration, calling it Rawson street and treating it as a street the same as various other public streets in the neighborhood through or across which the sewer was to run. Twice in the title and three times in the body of the act it is referred to as Rawson street and recognized as a street the same as Third street, Colby street and Livingston avenue. The presumption, always in favor of official action, is that the common council, by directing a sewer to be constructed through it, did not intend to do an illegal act or to trespass upon land belonging to another, but to treat it as the land of the city in trust for use as a street. The proper authorities by using it as a street accepted it as a street. The ordinance was as clear an assertion of authority over the land as a street as if it had directed the street commissioner to grade or pave it. The common council thus did an act which it had no right to do, unless it had accepted, or thereby accepted, the land as a street. If the ordinance had declared that the city accepted the strip of land already fenced, thrown open to and used by the public as a street for years, the intention would not have been more unequivocal than as shown by the direction to construct a sewer in it as a public street, and calling it by the name by which it had been known to the public for many years, for that action necessarily adopted it as a street. In effect the common council said "we order a sewer to be built through the following streets of the city of Albany, and among others, through Rawson street."

It is true that the ordinance alludes to Rawson street "as declared by ordinance to be a public street." This may have referred to an ordinance passed but not put in evidence, or it may have referred to an ordinance proposed for greater safety but not yet adopted. This does not detract from the necessary effect of the acts directed to be done by the ordinance in question, which involved the assertion of dominion over the land as a public highway. We think the ordinance was an acceptance of the street, and that upon its approval by the mayor, two days after its passage, Rawson street became a public highway, even if it had not become so before. We do not pass upon the effect of the first map prepared and filed by Mr. Hunter, his numerous conveyances of land with reference to it, the action of the city authorities in naming the street and constructing a crosswalk in it, the public user, the change in 1875 and the acquiescence of all concerned therein. We place our decision upon the tender of dedication by Mr. Hunter in his lifetime, continued without interruption by the present owner for years after his death, and the acceptance of that tender, when still in full force, by the ordinance of May 16th, 1898. Without reference to the earlier history of the street, we think this tender and acceptance were sufficient of themselves, independent of any other fact, to make Rawson street a lawful and irrevocable highway. When the street thus came into existence the power to revoke the dedication was ended, and the attempt to exercise the power after acceptance by the city, through the erection of fences, was not a revocation but simply a trespass. The courts below do not appear to have considered the effect of the ordinance of May 16th, possibly because counsel presented no claim with reference to the subject, as none was presented before us. While we regret that we have not the advantage of their views upon the question, we feel clear that the ordinance had the effect of an acceptance by treating the land as already an existing street and adopting it as such.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in all courts.

PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT and CULLEN JJ., concur; LANDON, J., not sitting.

Order reversed, etc.