City of Cohoes v. President of the Delaware & Hudson Canal Co.

Vann, J. Public highways may be created in four ways : 1. By proceedings under the statute. (2 R. S. [8th ed.] p. 1372 eiS seq.; also p. 1383, § 100.) 2. By prescription, or where land is used by the public for a highway for twenty years, with the knowledge, but without the consent, of the owner. The presumption of a grant of the right of way springs from the mere .lapse of said period of time in connection with the adverse user by the 2>ublic. 3. By dedication through offer and implied acceptance, or where the owner throws open his land intending to dedicate it for a highway, and the public usé it for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment. This rests u|)on the principle that the owner is estopped from revoking his offer after the 2>ublic have acted on it for so long a period that it would be a fraud upon them if he were permitted to do so. Bo particular length of time is required to effect such a dedication, as every case of an estoppel in pais necessarily. de2>ends upon its own facts. ' 4. By dedication through offer and actual acceptance,' or where the owner throws open his land and by acts or words invites acceptance of the same for a highway, and the public authorities, in charge of the subject, formally, or in terms accept it as a highway. In the absence of an actual conveyance the owner does not part with his title to the land, but only with the right to possession for the purpose of a highway. Although there has been some conflict of opinion upon the subject, we understand this to be the law as established by the weight of authority in this state. (Flack v. Village of Green Island, 122 N. Y. 107, 113; Driggs v. Phillips, 103 id. 77; *403 People v. Loehfelm, 102 id. 1; Cook v. Harris, 61 id. 448, 454; Holdane v. Trustees of Cold Spring, 21 id. 474; McMannis v. Butler, 51 Barb. 436; Carpenter v. Grynn, 35 id. 395; Wiggins v. Tallmadge, 11 id. 457; Clements v. Village of West Troy, 10 How. Pr. 199; Ward v. Davis, 3 Sand. 502; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Denning v. Roome, 6 Wend. 651; Colden v. Thurbur, 2 Johns. 424; Elliot on Roads & Streets, 119; Thompson on Highways, 65; Angell on Highways, § 144; Greenleaf on Ev. § 662; 2 Dillon Mun. Corp. § 491; 5 Am. & Eng. Encyc. 396.) The same rule prevails in the Supreme Court of the Hnited States, in the courts of most of the states, and in England. (President, etc., of the City of Cincinnati v. White, 6 Pet. 431; Barclay v. Howell, id. 499; Buchanan v. Curtis, 25 Wis. 99; Marcy v. Taylor, 19 Ill. 634; Green v. Town of Canaan, 29 Conn. 157; Kennedy v. Le Van, 23 Minn. 513; City of Waterloo v. Union Mill Co., 72 Iowa, 437; State v. Trask, 6 Vt. 655; Abbott v. Mills, 3 id. 521, 526; Hobbs v. Lowell, 19 Pick. 405; State v. Hill, 10 Ind. 219; Price v. Town of Breckinridge, 92 Mo. 379; Wolf v. Brass, 72 Tex. 133; Commonwealth v. McDonald, 16 Serg. & R. 390; Doe v. Jones, 11 Ala. 64, 84; Dovaston v. Payne, 2 Smith’s Leading Cases, 142, 153, note; Rughby Charity v. Merrywather, 11 East, 375, n.; The King v. Inhabitants of Leake, 5 Barn. & Ad. 469; Lade v. Shepherd, 2 Str. 1004; Jarvis v. Dean, 3 Bingh. 447; Woodyer v. Hadden, 5 Taunt. 126; Regina v. Petrie, 30 Eng. L. & Eq. 207.) There are some cases holding otherwise, aud others that have been supposed to hold otherwise, but upon examination it will be found that they depended on local statutes or special circumstances. (Underwood v. Stuyvesant, 19 Johns. 181; L. 1787, ch. 61, 88; L. 1797, ch. 43; L. 1799, ch. 70; Oswego v. Oswego Canal Co., 6 N. Y. 257, 266; L. 1811, ch. 231.) There are obiter remarks also scattered through the books showing that certain judges have held views at variance with the foregoing rule, but we do not regard it essential, in order to decide this case, to make specific reference to them, or to *404 analyze the authorities, for the learned counsel for the defendant, with great fairness, states the law substantially as we have stated it. The trial judge found in the decision upon which judgment was entered, “ that the Cohoes company, the original owners of the fee, in surveying, designating and laying down said Yan Rensselaer street upon the aforesaid maps, selling said lots and allowing the same to be used, expressed an equivocal and qualified intent to permit such user as a public highway, subject to the right of revocation by said Cohoes company; that the action of the Cohoes company, permitting the defendant to lay its tracks and build its freight-house in said Yan Rensselaer street and by other acts, expressed an intent to revoke t said equivocal and qualified dedication of Yan Rensselaer street for highway purposes before it was accepted by the city authorities, or by user by the public, or otherwise.” Upon the request of the plaintiff, the trial judge also found “that there has been a continuous user on the part of the public of the whole of said territory between Pine and Oneida streets since in or before the year 1845, except as the same was temporarily deflected by the laying down of said railroad tracks and the erection of said freight-house; that from 1845 down to the time of the commencement of this action, the public user of said Yan Rensselaer street from Oneida to Pine street has been general, continuous and exclusive for all the purposes of a public street or highway; that the Cohoes company, the original owners of the fee, in surveying, designating and laying down said Yan Rensselaer street upon the aforesaid maps, and opening, or allowing the same to be opened, for use, intended to and did dedicate the same as a public street or highway,” and “ that before the laying down pf the railroad tracks in 1853, the dedication by the Cohoes company of said Yan Rensselaer street between Oneida and Pine streets as a public street and highway had been accepted by the public by user and public travel thereon.” Upon the request of the defendant, the trial judge further found “that there never has been any dedication of Yan *405 Rensselaer street for highway purposes; that there has never been an acceptance of the alleged dedication by the authorities, nor by user, and that there never has existed a public highway at the locus m quo by dedication and acceptance.-” It is our duty to harmonize these findings so as to arrive at the real intention of the trial judge, if it is possible. (Bennett v. Bates, 94 N. Y. 354.) We are unable, however, to reconcile the conflict, and as the presumption of regularity does not extend to the method prescribed by statute to aid a party in correcting errors on appeal, we are compelled to accept the finding that is most favorable to the appellant. (Kelley v. Leggett 122 N. Y. 633; Wahl v. Barnum, 116 id. 87.) In the further discussion of the subject, therefore, we shall assume that in 1853 Van Rensselaer street had become a highway by dedication. It is unnecessary for us to consider the effect of the action of the Cohoes company in designating canals upon the maps within the boundaries of the street, for that could amount to no more than an implied reservation of the right to construct the canals as thus located. No attempt has been made to exercise the right, and it is immaterial in this controversy whether it exists or not. An offer to dedicate land for the purpose of a highway may be qualified or made subject to a certain burden, and if it is accepted cum onere, the burden continues, but the land becomes a highway notwithstanding. After acceptance there is no power to increase the burden or to revoke the dedication, except according to the terms of the reservation, so that assuming that the Cohoes company had the reserved right to dig the canals, it had no other right and no general power of revocation. (Ayres v. Penn. R. R. Co., 52 N. J. Law, 405; 48 id. 44; State v. Society, etc., 44 id. 502; People v. Kingman, 24 N. Y. 559; Cornwell v. Commissioners, 10 Exch. 771; Le Neve v. Mile End Old Town, 8 El. & Bl. 1054, Fisher v. Prowse, 2 Best & S. 770; Mercer v. Woodgate, L. R. [5 Q. B.] 26; Arnold v. Blaker, 6 id. 433; St. Mary's, etc, v. Jacobs, 7 id. 47; Arnold v. Holbrook, 8 id. 96; Angell on Highways, 151-156.) *406 After Van Rensselaer street became a highway by dedication, whether burdened with the right to construct canals in it. or not, no action on the part of the original proprietor could deprive it of that character, for a highway, when once established, continues until discontinued according to law. (Driggs v. Phillips, 103 N. Y. 17; Adams v. S. & W. R. R. Co.,, 11 Barb. 414; Doe v. Jones, 11 Ala. 63; 5 Am. & Eng. Encyc. 410.) Moreover, there is no evidence of any attempt at revocation by the Cohoes company, prior to 1883, when it conveyed to. the defendant the right “ to use and occupy as a part of its railroad, for its tracks and for railroad purposes and uses that part of the land in said city, called, known and laid down on the Frost maj) as Yan Eensselaer street.” It does not appear that the Cohoes company ever consented to any act of occupancy of said street by the defendant or its. predecessor prior to 1883. The construction of the railroad tracks and freight-house in 1853 was apparently without, authority, and the Cohoes company after that date in conveying land, repeatedly recognized Yan Eensselaer street, eo' nomine, as an existing street. The utmost that can be said is. that in common with the village authorities, the general public and the owners of lots abutting upon the street, it suffered the railroad to occupy. It is claimed that the street • ceased to exist as a highway before the commencement of this action by virtue of chapter-311 of the Laws of 1861, which provides that “ every public highway and private road already laid out and dedicated to-the use of the public that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway • hereafter to be laid out that shall not. be opened and worked within the like period, shall cease to be a road for any purpose whatever.” It is not important to consider whether this statute applies, to a street in a city or to a case of continuous offer and user for about forty years, as in our judgment the burden of proof is upon the one who invokes the aid of the statute to show *407 that his case falls within its provisions, and that burden was not met by the defendant upon the trial of these actions. (In re Woolsey, 95 N. Y. 135; Vanderbeck v. City of Rochester, 46 Hun, 87.) The trial justice found “that no portion of Van Rensselaer street has ever been worked within the meaning of” said statute “prior to June 4, 1880, or within six years after the resolution of acceptance of said city.” To this finding the plaintiff excepted and thus raised the question of law whether there was any evidence to support it. (Halpin v. Phenix Ins. Co., 118 N. Y. 165.) An examination of the record discloses no evidence upon the subject, except that from 1879 to 1885, some work was done upon the street by the city authorities. The finding can be sustained, therefore, only upon the theory that the burden of proof was upon the plaintiff to show affirmatively that an established highway was not abandoned by failing to work the same during the period named. This was no part of the plaintiff’s case, but ivas matter of defense. When a highway is once shown to exist, it is presumed to continue until it is shown to exist no longer. (Beckwith v. Whalen, 65 N. Y. 322.) The presumption is in favor of continuance, not of cessation. “The burden of proof as to any particular fact lies on that person who "wishes the court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person.” (Stephen’s Law of Ev. 155 ; 2 Best on Ev. 364.) “ When the existence of a person, a personal relation or a state of things is once established by proof, the law presumes that the person, relation or state of things continues -to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” (Greenl. Ev. § 41; 2 Stark. Ev. 590, 688; Eames v. Eames, 41 N. H. 177; Brown v. King, 5 Met. 173; Peaslee v. Robbins, 3 id. 164.) The authorities apply the principle to a partnership, a state of mind, seizin, disability and many other facts, which, when shown to exist are presumed to continue until the presumption, *408 is rebutted. We think that the principle should be applied to the case of a public highway in existence as early as 1853 and in actual use ever since. It is further claimed that the plaintiff cannot maintain this action because its mayor and common council have not determined the width of Yan Rensselaer street according to the use that has been made of it. This position is based upon that provision of the Revised Statutes which directs commissioners of highways “ to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” (2 R. S. [8th ed.] p. 1347, § 1, sub. 3; 1 R. S. 501, § 1, sub. 3.) The trial justice appears from his elaborate opinion to have based the dismissal of the complaint wholly upon this statute and the act of 1861, already considered. Even if the statute applies to the plaintiff, an incorporated city, there is neither finding nor evidence that it has not been complied with. A resolution of the common council adopted in 1874 and entered in the minutes of the city clerk, declared Yan Rensselaer street a public highway “from Oneida street south to Mohawk street.” The case shows nothing further upon the subject and it will not be presumed in the absence of evidence that public officers failed to do their duty. Moreover, actions are expressly authorized by the charter of the plaintiff to restrain violations of its ordinances, one of Which prohibited every person, etc., from digging up, or encumbering “ any of the streets, alleys or any portion thereof, without the written consent of the mayor.” Even without the aid of a special statute it was mng since held by high authority that a municipal corporation could prevent by injunction the erection of a nuisance upon lands dedicated to the use of its inhabitants. (Trustees, etc., of Watertown v. Cowen, 4 Paige, 510.) Without further elaboration of our views, we think that upon the facts, as found by the trial court at the request of *409 the plaintiff, Van Rensselaer street became a public highway by dedication in 1853 and that it has never ceased to be such. The judgment in each, action should, therefore, be reversed and a new trial granted, with costs to abide event. All concur*, except Follett, Oh. J., dissenting, Parker, J., not voting and Landon, J., not sitting. Judgment reversed.