McCarthy v. . Whalen

Finch, J. We are not quite satisfied to sustain the reversal by the General Term of the judgment entered upon the report of the referee, upon the main and principal grounds discussed. If our decision turned upon them, we should possibly doubt whether the order of the commissioner of highways of the town of Penfold was effectual, because no survey was incorporated in the order; and be quite certain that the referee’s finding of fact that the highway in question had never been opened at all was unanswerable in this court, since the reversal by the General Term is not certified to have been upon questions of fact and must be assumed to have rested upon errors of law. It is not necessary, however, to discuss these questions, or do more than express our doubts, since there is one ground of reversal which we feel it our duty to sustain. The plaintiff’s action was for a trespass. His right to recover was conceded, unless the locus in quo was a public highway. That fact was sought to be established in two ways: first, by proof that it was regularly and lawfully laid out as such; and, second; that it was dedicated to the use of the public by Samuel Strowger, who was plaintiff’s grantor. Hpon both of these-issues the question whether the alleged highway was actually opened and worked and used as such was material. If not so opened and worked within six years from its regular and valid origin, the proceedings to lay it out became, by the mandate of the statute, wholly ineffectual. If reliance was placed upon a dedication, an acceptance and user by the public was essential to fix its character and shut the door on revocation. The referee found as a fact that the road was not opened at all. If he received any evidence bearing upon, that issue, naturally tending to influence and produce that conclusion, which was inadmissi *152 ble and illegal, the error is necessarily fatal. Such an error the General Term held was committed in the admission, on behalf of the plaintiff, of the declarations of his grantor during the negotiations for a sale. The plaintiff was sworn in his own behalf. He was asked by his counsel what conversation he had with Samuel Strowger while viewing the farm, in regard to the road in question. Objection was interposed that the evidence was immaterial and incompetent, which was overruled and an exception taken. The witness answered by a recital of his grantor’s declarations that a move had been made to open a road down to the float bridge, but that it had never been carried out and the road was fenced across at Scott’s land through which the road was to have run. Of course this evidence was hearsay and wholly inadmissible unless upon some special ground of an exceptional character. W e have looked in vain for any such j ustification. The appellant defends it upon the ground that the conversation had been proved by defendant, and the plaintiff, therefore, had the right to contradict it or give his own version of it. Unfortunately for this explanation, the case shows not one word uttered by Samuel Strowger during the negotiations with plaintiff so far as the defendant’s proof is concerned." Whatever was said on that occasion was proved to have been said by Charles Strowger. A denial of that, the plaintiff was permitted to make without objection, but there was nothing to contradict as to Samuel, for the plain reason that it .had not been shown that he said any thing. There was nothing to contradict so far as Samuel was concerned. It is quite true that the defendant had proved Samuel’s declarations made at another ' time and to ' another person, but those declarations tended to prove a dedication, and were admissible against his grantee. It is quite a different thing for the grantee to offer the declarations’ of his grantor as original evidence in his own behalf, upon a question not of possession but of title. We cannot defend it as immaterial. Very much of evidence, had been given tending to prove a dedication by the plaintiff’s grantor to the use of the public. One witness testified to his directions to remove obstructions and to his explicit *153 declaration that'he gave the land for a "road. The statements admitted tended directly to contradict that theory and possibly prevented the referee from adopting it. They bore, also, upon the disputed point, stoutly litigated on both sides, and found by the referee in plaintiff’s favor, whether or not the road was in fact opened within six years from the commissioner’s order. The declarations tended to show that there was merely an attempt to open the road which proved abortive and was abandoned. We do not discover any ground upon which to justify this evidence, and feel constrained to hold that its admission warranted the reversal by the General Term. The result is that we must order judgment absolute against the plaintiff on his stipulation. The dangers of such an appeal to this court have been so frequently pointed out as to make any further repetition of little use. Order of General Term affirmed and judgment absolute ordered for the defendant, with costs. All concur, except Rapallo, J., absent. Order affirmed and judgment accordingly.