Carpenter v. Gwynn

By the Court, Emott, J.

We are constrained to differ from the conclusion of the learned judge who tried this cause, upon the main question which its presents. The action is brought to stay by injunction the commission of repeated trespasses by the defendant in removing a fence upon the plaintiff's land. The defendant justifies on the ground that the land upon which the fence was placed had been dedicated by the plaintiff to public use as a highway. The judge at the trial held that there had been such a dedication, and therefore dismissed the plaintiff's complaint.

The strip of land to which the controversy relates is sixty feet in width, extending from one highway to another in the village of Newburgh. It has been graded and worked as a road, but it may of course be either a private road or a pub-lie highway. The title to the soil is in the plaintiff, and both the parties have other lands adjoining it. The plaintiff pnt certain fences upon it, adjoining the defendant’s land, so as to exclude him. from using it as a road. The defendant repeatedly tore down these fences, and thus asserted a right to use the road for access to his lands, on the ground that it was a common public highway. It is to restrain these constant removals of this fence, and the use of the road as a highway, that this action is brought.

If the defendant has not the justification which he claims by virtue of a dedication of the land to public use, the plaintiff’s action is well brought. The acts of the defendant are not wanton trespasses committed merely to vex his neighbors, and which the repeated infliction of damages and the payment of costs would be adequate to punish and to suppress. He asserts a perpetual public easement in these lands, and his acts of interference with the plaintiff are in assertion of the right of himself and all others to use this strip of land forever, as a public highway. In time, if not restrained, they may afford the vindication of such a claim. The existence of a highway over this land would of course be destructive of its value to the owner, and therefore the use of the land by the defendant or others for that purpose, and the removal of fences for that object, are acts substantially destructive of the inheritance, or of the entire value of the property to the owner.'

There certainly are cases even of such injuries, in which a court of equity will not interfere. The right of the plaintiff, or the subject of that right, must be capable of being clearly ascertained, and his own title undisputed. If he has not been in possession of the property, or if his right to it or to its enjoyment be denied, he may be required to establish his title in an ordinary action at law. But where the plaintiff’s title is undisputed, and the only question is upon the right of the defendant to exercise the authority or commit the acts complained of, a court of equity will retain the case, and determine that question for itself. The case of Holdane v. The Trustees of Cold Spring (21 N. Y. R. 474, 23 Barb. 103,) illustrates the principle, and is an authority for such a suit as the present, in a case very nearly resembling it.

In 1852 the strip of land which is now in question was owned partly by the plaintiff, and partly by the defendant. The plaintiff instituted proceedings to have a public road laid out across or upon it, but subsequently discontinued these proceedings, thus indicating his intention at that time not to make this a public highway, at least by the ordinary procedure of the statute. In 1853 the defendant conveyed to G-eorge Reed, and G-eorge Reed to the plaintiff, who thus became the owner of the whole strip of land. Bach of these deeds expressed the intention of permitting the use of the premises either as a public or a private road. The land thus conveyed was suitable and was evidently intended for the one or the other. It is sixty feet wide and three hundred and fifty long, a part of a strip or avenue of the same width which was subsequently fenced, extending from one public highway to another. After the plaintiff acquired the title to the whole of the land, he laid it out as a road, graded and worked it at an expense of upwards of $5000, and fenced it on both sides. When the road was first opened, gates were placed at each end. This was in 1854, and these gates or one of them remained, if I understand the evidence and the finding of facts, while the plaintiff was grading the intermediate portion of the road, until it became necessary to grade that part of it where the gates stood, that is, the extremities, at Gidney avenue on the south and hforth street on the north. This was in the autumn of 1856 and the spring of 1857, and down to that time we cannot find any act or declaration of the plaintiff distinctly announcing or indicating a purpose to make this road a public highway. On the contrary, we have unequivocal evidence of a different design. The application for the opening of a public highway had been formally withdrawn. The subsequent working was at the plaintiff’s individual expense, and Ms dominion and control of the road had been indicated in the most unequivocal manner, by the erection of gates across the road.

If a dedication of the road to public use, and a relinquishment of all control over it, is to be made out, it must be by the subsequent conduct of the plaintiff in respect to it. This action was commenced in July, 1859, and the acts of the defendant which are complained of were committed in May and J une of that year. The period within wMch the plaintiff’s conduct is alleged to have afforded sufficient evidence of the dedication of Ms property to the public, extends over but two years. It appears that during that time no gates were standing on the road, and it was used and traveled by the public generally, on foot and with vehicles, with the plaintiff’s knowledge. During all this time, it appears by the evidence the work of grading the road was going on; after that was completed, and shortly before the commencement of this suit, the gates or one of them was replaced. It is no doubt true that no specific length of time is sufficient to establish the fact of dedication. There may be.sufficient acts of the owner" and the public within two years, or even less, to estop the former from asserting Ms original dominion over Ms property, and to entitle the latter to its use. But acts and declarations which are to have this effect must be unmistakable in their purpose and decisive in their- character. The plaintiff must be shown in the present case to have declared by words or by actions, or both, Ms irrevocable intention to make this strip of land forthwith not merely a road or a way of passage, but a public way.

Bow, as I have said, all the acts of the plaintiff, down to the removal of the gates, indicated a contrary intention. These acts must be considered in eonstrmng Ms subsequent conduct, and I think it would be dangerous, and would be going beyond the authorities, to hold that throwing this road open and silently permitting an indiscriminate use of it for two years, considering its origin and history, would make out its dedication to the public as a highway. There is nothing, it will be seen, but this permissive use to establish such a right. There was no declaration by a map or other designation of the road as a street, that it was opened as a highway. It cannot be that a man who has built a road across his lands avowedly and obviously as a private way, should lose his control of his property and confer on the public an- irrevocable title to its use, by merely removing the obstructions upon it and leaving it open for two years. The present case, however, hardly goes as far as this. When the gates on this road were removed, neither the public nor the defendant were authorized to infer that the removal indicated a dedication to public use, because there was another sufficiently obvious reason for the removal at that time of those visible marks of the plaintiff’s continued control of his property. They were taken down to facilitate the grading of the road, and not to publish to the world an abandonment of all control over it; and if the grading was not hastened to completion, or the gates were not instantly replaced when it was possible to do so, yet no one had a right to infer from the removal of gates, under such circumstances, that it was the plaintiff’s purpose never to replace them. Ho such presumption attaches, to such acts, and no estoppel arises.

[Kings General Term, December 9, 1861.

It is not pretended that any private rights have been acquired on the faith of a presumed dedication of this road to the public. Even to the defendants, it is at most only a question of convenience.

We are of opinion that the facts found by the judge fail to make out an irrevocable dedication of this road by the plaintiff to public use, and that the defendant failed to- justify his removal of the fences erected upon it.

There must be a new trial; the costs to abide the event.

Emott, Brown and Scrugham, Justices.]