Smith v. Smythe

• Decision Date: 08 February 1910
• Citation: 197 N.Y. 457,90 N.E. 1121
• Parties: SMITH v. SMYTHE, Street Com'r.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 457

90 N.E. 1121

SMITH

v.SMYTHE, Street Com'r.

Court of Appeals of New York.

Feb. 8, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Alfred E. Smith against Benjamin E. Smythe, as Street Commissioner of the Village of Bronxville. From an order of the Appellate Division (132 App. Div. 71,116 N. Y. Supp. 1071) reversing an order of the Special Term granting an injunction, plaintiff, by permission, appeals, and the Appellate Division certifies questions. Questions answered, and order of Appellate Division reversed.

See, also, 118 N. Y. Supp. 1143.

Alfred E. Smith, in pro. per.

William L. Kitchel, for respondent.

CULLEN, C. J.

The action is a taxpayer's suit brought to restrain the street commissioner of the village of Bronxville from expending any of the moneys of the village upon certain streets (so called), located in a part of the village known as ‘Lawrence Park.’ The park, consisting of a tract of about 110 acres of land, was laid out by its owner, a corporation, in streets with building lots or villa plots fronting thereon. Many of these lots had been sold, and there are some 85 houses within the confines of the park. The streets of the park are but 14 feet in width. The deeds from the owner of the park to its grantees contain this provision: ‘But the fee simple in any street or avenue as hereby conveyed shall be perpetually subject to the unrestricted rights of the public as a highway.’

By chapter 93 of the Laws of 1907, an additional section was added to the general village law, reading as follows: ‘Whenever prior to the incorporation of any village now or hereafter incorporated, any portion of the territory subsequently included within the limits of such village has been subdivided on a map or plan thereof into building lots and designated as a park or by any other name, such portion of said territory being hereinafter designated as a ‘subdivision,’ and in such subdivision streets or roads are laid out not less than fourteen feet in width, which the board of trustees of said village is unable to accept by dedication because such streets are too narrow, or for any other reason, or where in any such case said board of trustees is willing to light and care for such streets and roads without the same being dedicated, and more than fifty dwelling houses shall have been contructed in said subdivision, the board of trustees of said village may provide for the lighting and care of such streets and roads, or any part thereof, in like manner as the other streets and roads of said village, provided that the amount expended annually for such purposes shall not exceed one-fourth of one per centum of the assessed value of the real property in said subdivision.' Section 170. Acting under the authority of this statute the trustees of the village resolved that the village should provide for the lighting and care of certain streets laid out in said park. The plaintiff claims that the statute is unconstitutional and void and so the Special Term held. The order of the Special Term was reversed in the Appellate Division by a divided court (116 N. Y. Supp. 1071), which has permitted an appeal to this court and certified three questions, the first two of which practically present the question of the constitutionality of the statute, while the third is: ‘Are the questions raised by the plaintiff of sufficient importance to require the court to restrain the defendant until the constitutional and other questions can be determined after a trial of the issues?’

The deeds from the park association clearly dedicated the streets in the park to public use as highways, but the difficulty is that by section 144 of the Village Law (Consol. Laws, c. 64) it is expressly provided that ‘no street less than two rods in width shall be accepted by dedication,’ and a similar provision is found in the General Highway Law (Laws 1890, c. 568), § 80. Therefore, the village was unable to accept the dedication of the streets in the park, they being only 14 feet in width. It is contended, however, by the learned counsel for the respondent that though the village was forbidden to accept the dedication, the deeds operated to grant to the public a right or easement of passage, and that hence their care and maintenance could properly be considered as a public burden. I can find no authority for this doctrine. It is the settled law of this state that a dedication must be accepted by the public authorities or by user to create a highway and vest in the public a right of passage thereon. In the case before us there was not and could not be any formal acceptance. Therefore, we are remitted to the inquiry whether there has been such a user as is sufficient or effectual for the purpose. That the public have been permitted to travel over the park streets for a few years is unquestioned; but that alone is not such a user as is requisite to constitute a highway. Mere travel by the public upon the roads, without action by the public authorities in repairing or maintaining them, is insufficient. Matter of Bridge Across Shawangunk Kill, 100 N. Y. 642, 3 N. E. 679;Speir v. Town of New Utrecht, 121 N. Y. 420, 24 N. E. 692;People v. Underhill, 144 N. Y. 316, 39 N. E. 333;Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966,55 Am. St. Rep. 653. In People v. Under-hill, supra, which was a case of dedication, it was held that the mere fact ‘that a portion of the public had traveled over the road for twenty years would not make it a highway; that the user must be like that of highways in general, and the road must not only be traveled upon, but it must be kept in repair, taken in charge and adopted by the public authorities.’ Page 324 of 144 N. Y.,page 336 of 39 N. E. Moreover, the express provisions of the village and highway laws hitherto cited evince a plain legislative determination that there should be no highways less than two rods, or thirty-three feet, wide. It may be that even though the public have not accepted the dedication, the owner of the land could not now recall it, so as to prevent its acceptance in the future-a question which it is unnecessary to decide-but until accepted the streets of the park remain mere private rights of way, and the public have no right to enter thereon save by sufferance or license.

It is doubtless true that had the statute of 1907 authorized the trustees of villages to accept the dedication of streets less than two rods wide under the circumstances specified in the act the statute would be constitutional, but that is not the question presented. The statute authorized the application of village funds for the care and maintenance of streets which the board of trustees ‘is unable to accept by dedication * * * without the same being dedicated.’ From...