In re Hand St.

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, deceas'ed. Heither he nor they have been in the actual possession or control of the premises for many years. For more than 30 years GeorgeS. 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 ■opened and extended so as to intersect with Clinton street. This section of Hand street, after it was opened, was commonly called an alley, and was only 16 feet wide. It is conceded by the parties to this appeal that thereafter, by the 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 con■cert 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 Ho. 28, fronting on Clinton street 30 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 23 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 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 an act. Strong v. 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. City of Rochester, 45 N. Y. 129; Strong v. City of Brooklyn, supra; In re Rhinelander, 68 N. Y. 107; Rozell v. Andrews, 103 N. Y. 150, 8 N. E. Rep. 513; Cooke, Highw. 350. The city charter contains this provision, viz.: “Sec. 163. Whenever any street, alley, or lane 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. 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 t:ase of an owner of a tract of land in the city who had laid It out into lots, arid 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 a 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 20 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 were 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. Biley, 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 tile amount, awarded by the 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 eoihmissioners, with the proceedings and evidence had before them, filed with him by 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 of 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 tu 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 power 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 bearing 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 of this appeal, to be taxed as if it was a1 civil action. All concur.