Clements v. Village of West Troy , 1853 N.Y. App. Div. LEXIS 139 ( 1853 )

Harris, J.

The defendants are, by their charter, declared to be commissioners of highways, and as such are charged with ¡the duty of “ regulating streets, roads, lanes and alleys already •laid out, or which should thereafter be laid out, within their vilIage.” (Sess. Laws of 1850, p. 444, § 48.) The duty of regulating streets, &c. involves the right to remove obstructions. If, therefore, the alley in question is a public highway or street, the defendants were authorized to do what they have done for the purpose of removing obstructions.

The question therefore is, whether the alley is in fact a public highway. The original proprietors, when they divided their land into lots, made a map, upon which they designated the alley in question, and upon the sale of lots, bounded them upon the alley thus designated. As between the original proprietors and those to whom they conveyed, this act of the proprietors secured a right of way. But the alley thus designated, and in respect to which the purchasers of the lots had acquired an indefeasible right of way, did not thereby become a public highway. The dedication must be accepted. The highway must be laid out. Until that is done the alley would remain the property of the original proprietors, subject to a right of way in those who had taken deeds of lots bounded upon the alley. (Willoughby v. Jenks, 20 Wend. 96. In the matter of Lewisstreet, 2 Id. 472. Livingston v. The Mayor, &c. of New-York, 8 Id. 85. Wyman v. The Mayor of New- York, 11 Id. 486.) The principle settled by these cases is, that where lots are conveyed, bounded upon streets which have not been opened or laid out by the municipal authorities, the purchasers, and perhaps the public, acquire a perpetual right of way over such streets. The act of the proprietor amounts to a dedication, so that when proceedings are instituted for making such streets public highways, the proprietor is only entitled to a nominal compensation for his interest in the land. It is assumed, in all these cases, that the mere dedication of a street to public use, does not make it a public street until the dedication is ratified by the public authorities. The same proceedings must be had for opening or laying out such street as if there had been no dedication.

The defendants in this case do not pretend that any legal proceedings have ever been taken for the purpose of making the alley a public highway. They rely entirely upon the acts of the original proprietors amounting to a dedication. They insist that “ on and after such ceding, dedication, giving, appropriation and setting apart, the alley became and was, and has continued to be a public highway for all legal intents and purposes.” In this they are mistaken. Before they can exercise the right to “ regulate” the alley as a public highway of the village, they must ratify the act by which it was dedicated to the use of the public. They must accept the gift. This can only be done by-instituting the proceedings which the law has prescribed for laying out and opening public highways in the village. Not having done this, they had no right to interfere with the plaintiff’s buildings, though standing upon the land which had been devoted to the use of an alley by the original proprietors. The injunction was therefore properly granted, and the motion to dissolve it must be denied with costs.

[Albany Special Term, February 22, 1853.

Harris, Justice.]