Hoag v. Pierce

Hardin, P. J. It is insisted in behalf of the appellant that by the pleadings it was conceded “that the defendant was the owner in fee of tbe land on which the well stood.” In the complaint it was alleged “that said well is not on the premises of the said defendant, the same being within and upon the land of said Main street, and about twelve feet north of defendant’s, north line and the south line of said Main street.” Reading that allegation in connection with the averment in the earlier part of the complaint, to the effect that the premises of the defendant were bounded on the north by Main street, it must be assumed that the words of description found were used for the purpose of indicating, in a general way, the occupation of premises by the defendant. Again, upon the trial it is apparent that the position was taken by the plaintiff that the defendant only owned to the side of the street, and gave evidence tending to support that position, and the defendant so understood during the progress of the trial, and gave what evidence he was able to upon the issue of the actual ownership of the well in question. Ho attention seems to have been called to the peculiar language of the answer relied upon now by the defendant with a view of sustaining his position that the complaint, in effect, averred ownership in the defendant of the well in question. We therefore think the court was called upon to find, as a matter of fact, and determine, whether or not the defendant owned the well in question. Upon that subject plaintiff furnished evidence from the earlier deeds relating to the defendant’s premises, showing that his premises were bounded by the south side, of Main street, and therefore that he was not an owner to the center of the street. .Besides.it appears in the evidence that, as early as the year 1800, by chapter 78 of the Laws of that year, the “old Seneca Turnpike, or Seneca Turnpike,” was incorporated; and that “it was empowered to acquire and hold to itself and successors, forever, lands, wherever it should deem it most convenient to build its, road between Utica and 227 Cayuga county, N. Y. ” Evidence was given tending to show that the turnpike company occupied the premises where the well is situated for a long period of years, and down to the time when “it was turned into a plank road company.” By chapter 97, Laws 1850, the Seneca Boad Company was authorized to sell or to abandon its road, or parts thereof. By chapter 87, Laws 1854, it was provided that, if the plank road company should abandon its road, the property should become the property of the town. It appeared by the evidence of Luke Banney that the Seneca Boad Company operated its road “ until it was turned into a plank road company.” It appears by the evidence that it has not been operated either by the Seneca Company or by the Plank Boad Company for more than 20 years, and that the street has been under the care, supervision, and in the use of the incorporated village of Elbridge at the place where the well is situated. It seems, with this evidence before the court, the assumption that the roadway or well was owned by the village of Elbridge was warranted; and, that being so, the language found in the defendant’s deed was “satisfied by a title extending only to the roadside, ” according to the rule laid down in Dunham v. Williams, 37 N. Y. 251, especially when we recall that the earliest deed in the defendant’s chain of title bounded the premises occupied by the defendant on the north by the south bounds of Main street. Dunham v. Williams, supra, was referred to approvingly in Insurance Co. v. Stevens, 87 N. Y. 287, and, at the close of the opinion in that case, Andrews, C. J., said: “The side of the road may have been made the boundary of the land conveyed, upon the mistaken supposition that the company had acquired, by the proceedings for condemnation, the absolute title to the land taken, or some other reason may have existed for restricting the grant. But we have no guide in ascertaining the intention of the parties to the conveyance, outside of the language of the deed, and upon this language, as interpreted by the courts of this state, in analogous cases, we think the southerly side, and not the center of the Wallabout road, is the boundary.” We think the trial judge was warranted in applying that rule to the case made before the special term. 2. It was made apparent by the evidence upon the trial that the plaintiff and his predecessors in interest for more than 20 years had enjoyed the use ■of the well, and had from time to time contributed to the expense for the maintenance of a pump therein, under an assumption and claim of right to the use of water from the well. The. learned counsel for the defendant ■calls our attention to Burbank v. Fay, 65 N. Y. 65. In that case it was held: “No private use or occupancy, whether adverse or by permission, however long continued, will vest a title inconsistent with a' public right, or will impair or affect the rights of the state.” It seems that the use made of the well in question by the plaintiff, as well as others, was not inconsistent with •the public rights in the street; did not interfere with the right of way or public passage; on the contrary, contributed to the comforts and needs of the public for a long series of years; and the enjoyment of the waters of the well, and of the use of the pump by the plaintiff, in no way tended to interfere with the public passage, or use of the street or highway. In Meyer v. Phillips, 97 N. Y. 489, referred to by the appellant, the use made of a stream across the plaintiff’s land had been for only a few years in floating logs, and it was therefore held that there had been no easement acquired by prescription. We see nothing in the case which aids the appellant. The evidence before the special term warranted the finding that the defendant contemplated, not only removing the water by means of a conduit from the well into his inclosure, but that he threatened to and contemplated a destruction of the pump. The plaintiff had contributed and had a proprietary interest therein which the defendant was not entitled to destroy as he threatened to do before the commencement of this action. We think from the evidence before the spe•cial term the conclusion reached, that the defendant should be restrained 228 from conducting-the waters away from the well, covering up and destroying the usefulness of the well, and taking down, removing, or destroying the pump then in use in' the well, towards the purchase of which the plaintiff had.contributed, was warranted. In City of Cincinnati v. Lessee of White, 6 Pet. 431, it was held: “There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” In the course of the opinion in that case, in considering public dedications and the dedication of an easement for the use of the public, it was said that the doctrine was applicable to dedication of lands to public use, and that the doctrine had been applied by that court “to the reservation of a public spring of water for public use, in the case of McConnell v. Trustees, 12 Wheat. 582;” and the court added: “The reasonableness of reserving a public spring for public use, the concurrent opinion of all the settlers that it was so reserved, the universal admission of all that it was never understood that the spring lot was drawn by any person, and the early appropriation of it to public purposes,” were decisive against the claim. See Denning v. Roome, 6 Wend. 657. We think the decision made at the special term should stand. Judgment affirmed, with costs. All concur.