City of Cohoes v. Delaware & H. Canal Co.

• Citation: 31 N.E. 887,134 N.Y. 397
• Parties: CITY OF COHOES v. DELAWARE & H. CANAL CO., (two cases.)
• Decision Date: 01 October 1892
• Court: New York Court of Appeals

134 N.Y. 397

31 N.E. 887

CITY OF COHOES

v.DELAWARE & H. CANAL CO., (two cases.)

Court of Appeals of New York,

Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, third department.

Action by the city of Cohoes against the Delaware & Hudson Canal Company to restrain defendant from constructing a railroad track on a public street, and the same plaintiff against the same defendant to restrain an interference with or obstruction of said street. The two cases were tried together, resulting in a judgment in each for defendant, which were affirmed at the general term, (7 N. Y. Supp. 885,) and plaintiff appeals. Reversed.

Follett, C. J., dissenting.

E. Countryman, for appellant.

Edwin Young, for respondent.

The other facts fully appear in the following statement by VANN, J.:

The first action was commenced December 27, 1885, to restrain the defendant from laying an additional railroad track in an alleged public street of the city of Cohoes, without the permission of the proper authorities. The defendant denied that the so-called ‘street’ was ever a public highway, and alleged that it had duly acquired from the owner of the fee of the strip of land in question the right to use the same for its tracks and for railroad purposes. The original proprietor of the land within the boundaries of the city was the Cohoes Company, which acquired title to the same November 5, 1833. Upon a map of the then village of Cohoes, known as the ‘Olmstead Map,’ made in July, 1835, and since 1857, at least, kept at the office of said company, the land in question was designated as ‘Van Rensselaer Street.’ A copy of said map, numbered 175, was filed in the Albany county clerk's office bearing ‘upon the margin thereof the words and figures ‘July, 1835,’ and the official index book of maps kept in said office indicates the date of making said map to have been July, 1835.' On December 28, 1847, the Cohoes Company conveyed a lot fronting on said street according to the lot number as designated on the map so ‘filed in the office of the city and county of Albany,’ and in the description named ‘the northwest corner of Ontario and Van Rensselaer streets' as the starting point. Another map of said village, dated 1845, made by the engineer of the Cohoes Company, known as the ‘Frost Map,’ designates the land in question as ‘Van Rensselaer Street,’ and upon all of said maps the same territory is laid down as a street under that name, 80 feet wide, extending southerly from the Mohawk river to Mohawk street, and crossed nearly at right angles by Oneida, Ontario, and Pine streets, in the order named. A canal about 30 feet wide is designated upon each of the maps as extending on the westerly side of Van Rensselaer street from Mohawk to Ontario street, where it turns to the west, and continues for several blocks until it reachs a larger canal. A similar canal is also laid down on the west side of Van Rensselaer street for a part of the distance betwen Ontario and Oneida streets. The business of the Cohoes Company is the leasing of water power for mnnufacturing purposes, and it had many canals, used to distribute the water, located in, along, and under the streets, arched over in places for safety and convenience. No canal, however, has at any time actually existed along Van Rensselaer street, except on paper. Said maps included the land of The Cohoes Company and showed the streets and building lots duly numbered, and mill sites, into which its property was divided, and from time to time said company conveyed lots referring to the maps for further description. December 28, 1847, it thus conveyed a lot ‘beginning at the northwest corner of Ontario and Van Rensselaer streets, running thence northerly 100 feet.’ January 1, 1858, it conveyed another lot, ‘beginning at a point in the west line of Van Rensselaer street 100 feet northerly from the corner of Ontario street.’ One of the courses runs to the ‘westerly line of Van Rensselaer street.’ August 20, 1861, it conveyed a third parcel ‘known * * * as lots Nos. 21 and 23,’ according to the ‘map * * * made by James Frost,’ two of the courses being given as follows: ‘Running thence easterly along said line of Ontario street to the west line of Van Rensselaer street, and thence along that line southerly 200 feet.’ These conveyances were respectively recorded January 25, 1849, November 30, 1885, and July 25, 1871. In 1845, when the Frost map was made, monuments were placed along the sides of Van Rensselaer street, ‘as then surveyed, and as so laid down on said map, at the corners of intersecting streets, some of which still remain.’ In 1853, the Albany & Northern Railroad Company, to whose rights the defendant has succeeded, laid three tracks along the easterly side of Van Rensselaer street for its entire length, thus occupying about 50 feet in whdth, or all of the street except a strip 30 feet wide on the westerly side. The map of the route of said railroad company, filed August 16, 1853, ‘locates, lays down, and designates Van Rensselaer street precisely as the other maps above mentioned.’ In 1853 the said railroad company built a freight house near the corner of Oneida street, about 52 feet long, and extending entirely across that part of Van Rensselaer street not occupied by the tracks, so as to completely obstruct the street at that point. It continued there, and was used for railroad purposes, until 1886 or 1887, when it was torn down. From a period beginning as early as 1845, and continuing until said tracks were laid, ‘people having occasion to travel that way passed with teams and vehicles over the line of Van Rensselaer street about where the tracks' were placed. After that, ‘teams and vehicles passed along said street to the west of the railroad tracks, and, after the freight house was built, to the west of that over a vacant lot outside of the line of the street, and upon passing the freight house turned into the street again.’ The people were also accustomed to drive on the west side of Van Rensselaer street to and from the freigh house, for the purpose of delivering and receiving freight and express matter. In June, 1874, the plaintiff's common council duly adopted a resolution ‘that Van Rensselaer street, from Oneida street south to its intersection with Mohawk street, be and hereby is declared a public highway, and that the same be graded.’ The resolution also provided for the service upon abutting owners of a notice to show cause why the grade should not be established and the street graded. At various times between 1879 and 1885, the superintendent of streets filled up the holes and ruts on Van Rensselaer street, and did some other work thereon, mostly upon his own motion, but partly pursuant to the directions of the chairman of the street committee of the common council. It does not appear when the village of Cohoes was organized, but it was recognized as an incorporated village by an act passed in 1849. Laws 1849, c. 314. The city was incorporated in 1869, Laws 1869, c. 912. In 1883, the defendant obtained from the Cohoes Company a quitclaim deed ‘of all the rights and interest which the said company’ had in 1853, ‘if any, in the land covered by said alleged Van Rensselaer street.’

It is provided by statute (Laws 1869, c. 912, tit. 5, § 32) that violations of ordinances passed in behalf of the plaintiff may be restrained by injunction. In November and December, 1885, when the defendant, without permission, attempted to excavate Van Rensselaer street for the purpose of laying another track on the west side thereof, and the first action was commenced to restrain such acts, there was a city ordinance in force prohibiting all persons from digging up or obstructing any of the streets of the plaintiff without first obtaining the written consent of its mayor. The old freight house having been removed in 1887, the defendant, without permission, began to excavate on the west side of Van Rensselaer street 34 feet south of the south line of the former freight house and 30 feet north of the north line thereof, for the avowed purpose of building a new freight house. The second action was commenced in December, 1887, to restrain the defendant from thus interfering with and obstructing the alleged street. The complaint in each action was dismissed by the trial court, and, upon appeal to the general term, the respective judgments were affirmed.

VANN, J., ( after stating the facts.)

Public highways may be created in four ways: (1) By proceedings under the statute. 2 Rev. St. (8th Ed.) p. 1372, et seq.; also page 1383, § 100. (2) By prescription, or where land is used by the public for a highway for 20 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 public. (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 use it for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment. This rests upon the principle that the owner is estopped from revoking his offer after the public have acted on it for so long a period that it would be a fraud upon them if he were permitted to do so. No particular length of time is required to effect such a dedication, as every case of an estoppel in pais necessarily depends 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...