In re Commissioners of Public Parks , 60 N.Y. Sup. Ct. 556 ( 1889 )

Van Brunt, P. J.

It appears from the papers presented upon this record that Mr. Haskins acquired his title to the property in question in October, 1850, through a deed made by one Arthur G-. Powell individually, and as administrator and trustee of the estate of William Powell, deceased. The premises conveyed were a part of the William Powell or Union Hill farm. In October, 1849, a map of this farm was filed in the office of the clerk of Westchester county, upon which distinctly appeared the lines of what was to be a proposed avenue, called therein “College Avenue.” These lines were somewhat altered by a subsequent map made in 1850, and filed in 1851. By the description contained in said deed the premises conveyed to Mr. Haskins were referred to as being lots 2 and 3 on said map, and containing 2.27 acres of land. The deed conveyed said premises, together with such parts of said College avenue as were opposite and contiguous to said'premises, and together with the one-half part of such parts of said streets, avenues, and roads laid down on said map as were opposite and contiguous to and fronting on the premises thereby intended to be conveyed, together with a right of way by, through, and upon, said roads, streets, etc., laid down on said map in common with the othsr part owners of said premises; it being intended to keep open said streets and avenues as public roads. Shortly after taking possession under his deed Mr. Haskins proceeded to open College avenue, the easterly line of which corresponded with the easterly line of that avenue as laid out on the farm map, but he opened it 50 feet, instead of 66 feet, wide, as shown on the map. On laying out the avenue, Mr. Haskins, who owned the land on the westerly side of the avenue, put up a building partly on the strip of 16 feet wide, which was, as above stated, included in the lines of College avenue as shown on the farm map, and he has been by himself and his tenants in possession of the strip ever since, paying taxes thereon to the town of West Farms while it was part of Westchester county, and to the city of New York since that time. The commissioners having awarded him nominal damages only for the strip of land and house, Mr. Haskins objected to the confirmation of their report, and from the order confirming such report this appeal is taken.

On behalf of the appellant it is urged that .the commissioners were bound to make a substantial award for the strip in question, because, although it was laid out on the map as part of the public street called “College Avenue,” yet, it never having been accepted as such, it was not to be so considered by the commissioners in making their award, and also because Mr. Haskins has been in adverse possession of the property since the construction of the building as aforesaid. Various authorities have been cited to show—First, that there should be an acceptance of the dedication in order that the owner of the fee should be entitled only to a nominal award; and, secondly, that Mr. Haskins, being since 1852 in possession oí the property, and paying taxes thereon, has established a claim thereto by adverse possession. It seems to be clear that the filing of the map by the park commissioners, in 1877, making College avenue a public street throughout its whole width, as laid out upon the Powell map above referred to, was an acceptance upon the part of the public of the dedication attempted to be made by Powell, unless there had been a revocation of such dedication by some person authorized to make the same prior to such acceptance. It is claimed that by the occupation of a portion of this avenue by Haskins there was a revocation of such dedication, but the difficulty with the position of the appellant is that he had no power whatever to revoke such dedication. By the deed from Powell to Haskins the avenue to the full width was dedicated to the public. Haskins took his title subject to such dedication, and, having acquired his title subject to this easement, none but the dedicator or his legal representatives could revoke it. Mr. Haskins could not revoke it, because, as already said, he took his title subject to the dedication, and, having taken his title in that manner, it was impossible for him to revoke that over which he had no control. If Mr. Haskins had made this dedication, or had taken his title irrespective of it, then perhaps lie might have had the power of revocation; but, having taken subject to this easement, it is difficult to see how he could revoke a license which had been granted by his grantor, and upon the maintenance of which his grantor had a right to insist, and which right the grantee could not take away from him.

Neither did the occupation of the locus in quo by Mr. Haskins, upon the ground that it was adverse, extinguish, destroy, or impair the easement, because his possession was under the limitations contained in his deed, and was not susceptible of ripening into an exclusive right. The erection on the part of Haskins was simply an encroachment upon the easement, and was not sufficient to constitute an adverse possession, or to charge the owner of the easement with any knowledge of an adverse claim on the part of Mr. Haskins since the right of passage was conceded by leaving the avenue open to the extent indicated; and, unless something appears more than appears in the papers now before the court, his occupation must be deemed to have been subject to the limitation expressed in his deed.

In the case of Bridges v. Wyckoff, 67 N. Y. 130, the plaintiff claimed title to a strip of land 18 feet in width, and forming part of the street referred to in the conveyance, through which she took title, and which had been inclosed by her or her grantor for more than 20 years. The words in the conveyance under which the title was acquired were as follows: “All the right, title, and interest of the parties of the first part in and to the one-half of such streets as lie immediately in front of all the lots hereby conveyed, the same to be used, however, as public streets or roads forever. ” The plaintiff was defeated on the ground that the deed showed the existence of the street. The court say: “The deed showed that at that time there was no claim of right, as against the dedication or the right of the public, to take and use the land as a street;” and, further, that “all that was needed to make the land dedicated a public street was the acceptance of the land dedicated, by the proper public authorities as a street; and it is undisputed that there was such acceptance by the highway commissioners of the town in 1871.” In the case at bar there was such acceptance by the filing of the map by the park commissioners in 1877. In the case cited the court say: “There had been no revocation of the dedication at any time. The original proprietors and all the other parties interested might have united and revoked the dedication before acceptance by the public authorities, but this they did not do;” recognizing, therefore, the principle that the grantor or his legal representative was a necessary party to the revocation of this dedication. In the case cited it was claimed that the plaintiff could hold the land fenced in by adverse possession. The court say: “The difficulty with this position is that the land was not adversely claimed or possessed, because, in the deed by which she acquired her title, the street, and the right of the public to use it, was expressly recognized. ” Our attention has been called to no principle which recognizes a possession adverse to an easement by establishing possession, claiming title under a deed which expressly establishes the easement. There must be something more than mere possession to establish adverse possession. It must be possession under claim of title, and, where such claim of title is founded upon a written instrument, no greater title can be acquired than was given by the instrument itself. We are of opinion, therefore, that there was a complete accepted dedication of the premises in question, and that under the principles governing the making of awards in .cases of this description no error was committed by the commissioners, and the order should be affirmed, with $10 costs and disbursements.

Daniels, J., concurs.