66 N.Y. 261, Niagara Falls Suspension Bridge Co. v. Bachman

• Date: 23 May 1876
• Docket Number: .
• Citation: 66 N.Y. 261
• Parties: THE NIAGARA FALLS SUSPENSION BRIDGE COMPANY, Appellant, v. HENRY BACHMAN, Administrator, etc., Respondent.
• Court: New York Court of Appeals Court of Appeals

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66 N.Y. 261

THE NIAGARA FALLS SUSPENSION BRIDGE COMPANY, Appellant,

v.

HENRY BACHMAN, Administrator, etc., Respondent.

New York Court of Appeal

May 23, 1876

Argued Apr. 28, 1876.

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COUNSEL

A. Perry for the appellant. The referee erred in deciding that the strip of land called Niagara street, west of Canal street, was a public highway. (1 R. S., 521, § 100; 3 Kent's Com., 419, 451; Washb. on E. and S., 173 [[m. p. 126]; Id., 180 [m. p., 133]; Watt v. Trapp, 2 Rich., 136; Gibson v. Durham, 3 Id., 85; Carvon v. Dozey, 3 Jones L. R. [ N. C.], 23; Gentleman v. Soule, 32 Ill., 271; Greene v. Chelsea, 24 Pick., 71; Child v. Chappell, 9 N.Y. , 257; Holdane v. Trustees, etc., 21 Id., 474; Carpenter v. Gwynn, 35 Barb., 395; McMannis v. Butler, 51 Id., 436; Roberts v. Karr, 1 Campb., 262, note; Lethbridge v. Winter, Id., 263; Comm. v. Newbury, 2 Pick., 51; Durgin v. Lowell, 3 Al., 398; Ward v. Davis, 3 Sandf., 502; Scott v. State, 1 Sneed, 629; Bissell v. N.Y. C. R. R. Co., 23 N.Y. 61; Clements v. Village of West Troy, 16 Barb., 251; Bowers v. Suff. Manuf. Co., 4 Cush., 332; Trustees, etc., v. Otis, 37 Barb., 50; Gould v. Glass, 19 Id., 179; Hoole v. Attorney-General, 22 Ala., 190; Ward v. Davis, 3 Sandf., 502; City of Oswego v. Oswego C. Co., 2 Seld., 257; Underwood v. Stuyvesant, 19 J. R., 186; Lee v. Village of Sandy Hill, 40 N.Y. 442.) The strip of land was never laid out or dedicated as a highway. (1 R. S., 513, § 55; Id., 525, § 125; Woolsey v. Tompkins, 23 Wend., 324; Fitch v. Comrs., etc., 22 Wend., 132; People v. Comrs., etc., 27 Barb., 94; Stewart v. Wallis, 30 Id., 344; People v. Hynds, 30 N.Y. 470; Miller v. Brown, 56 Id., 383; Christy v. Newton, 60 Barb., 332;

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McMannis v. Butler, 51 Id., 436.)There has been no express and unequivocal user of the land in question as a street or highway. (40 N.Y. 442; Wohler v. B. and S. L. R. R. Co., 416 Id., 686; Wright v. Lukey, 3 Cush., 295.) The superintendent had no power to bind the village. (37 Barb., 50; State of Maine v. Bradley, 40 Me., 154.) By making and filing the map of 1861 the Porters revoked any dedication which they had intended to make of the locus in quo. (40 N.Y. 442; 21 Id., 474.) The referee erred in receiving in evidence the declarations of the treasurer and one of plaintiff's directors. ( Soper v. B. and R. R. R. Co., 19 Barb., 310; Bk. of Monroe v. Field, 2 Hill, 445; Ward v. Davis, 3 Sandf., 502; Marble v. Whitney, 28 N.Y. 397, 307; Babcock v. Lamb, 1 Cow., 238; 2 R. S., 407, § 8; V. S. Pldgs. 470.)

H. N. Griffith for the respondent. The locus in quo was properly held to be a public highway. ( Hunter v. Trustees, etc., 6 Hill, 411; Child v. Chappell, 5 Seld., 256; Bew v. Mills, 21 Wend., 290; 4 Kent., 129, 130, 519; 3 Id., 566, note; Ang. on Highways, § § 141, 142; 2 Greenl. on Ev., § 554; Clements v. West Troy, 10 How. Pr., 199; Bissell v. N.Y. C. R. R. Co., 26 Barb., 634; 23 N.Y. 64; 21 Id., 474; 23 Barb., 123; Thompson on Highways, 56, 57; Hickok v. Trustees, etc., 41 Barb., 130.)

Per Curiam.

The referee has, to a great extent, substituted a statement of the evidence for a report of the facts as required by statute. He has found, as a conclusion of law, that the locus in quo was a public highway at the time of the entry, and the removal of the trees and gravel by the intestate, then an overseer of highways; but he has not found any fact from which the conclusion necessarily results. The disputed question of fact was whether a highway legally existed at the place, at the time of the alleged trespass. There was no proof that the land had been appropriated and occupied by the public, by authority of law and without or against the assent

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of the owner, as and for a highway. There were no steps taken by the village or town authorities to acquire a title to the property as against the proprietors and subject it to an easement as a public highway under the statutes regulating the laying out and opening highways and public streets. Neither was there any evidence that the locus in quo, had at any time been opened or used as a highway, or that the public had acquired an easement by prescription. The referee finds that this part of Niagara street, although open to the public, because not inclosed, had not been opened as a highway, and had not been and could not, in its natural state and as it then was, be used for the ordinary purpose of a highway.

The claim is, that the land had been dedicated by the owner to the public as and for a highway, and that the dedication had been accepted by the proper authorities, and that thus the locus in quo had become a public highway, with the assent of the owner and by the act of the public officials. If the evidence, either as reported by the referee or as appearing upon the record, would have justified the finding as a fact such dedication and occupation, the judgment, so far as this point is concerned,...