City of Buffalo v. Delaware

• Decision Date: 19 November 1907
• Citation: 190 N.Y. 84,82 N.E. 513
• Parties: CITY OF BUFFALO v. DELAWARE, L. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 84

82 N.E. 513

CITY OF BUFFALO

v.DELAWARE, L. & W. R. CO.

Court of Appeals of New York.

Nov. 19, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the city of Buffalo against the Delaware, Lackawanna & Western Railroad Company. From a judgment of the Appellate Division (114 App. Div. 915,99 N. Y. Supp. 1049), affirming a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

The object of this action was to secure a judicial determination that a portion of the river front in the city of Buffalo is a public street, and to compel the defendant to remove certain obstructions therefrom. The main issue raised by the answer was whether the locus in quo, called Front street, was a public street when the action was commenced. The first trial resulted in two adjudications: First, that the portion of the alleged street lying west of Main street is not a public highway; second, that the part lying east of Main street, between Main and Washington, is a public highway. Each party appealed from the judgment so far as it was against itself, and the Appellate Division affirmed the first determination, but reversed the second and ordered a new trial, both on the law and the facts, as to that branch of the controversy only. 68 App. Div. 488,74 N. Y. Supp. 343. The plaintiff thereupon applied to the Appellate Division to so modify its order as to grant a new trial of all the issues, but the application was denied, and upon appeal to the Court of Appeals the order denying the application was affirmed. 81 App. Div. 655,81 N. Y. Supp. 1120; 176 N. Y. 308,68 N. E. 1115. The plaintiff, which in the meantime had appealed from the entire judgment rendered by the Appellate Division, then moved for leave to withdraw that part of its appeal relating to the locus in quo lying east of Main street, as to which a new trial had been ordered, and the application was granted. 176 N. Y. 594, 68 N. E. 1115. When the portion of the appeal then remaining undisposed of was heard by this court, the judgment of the Appellate Division relating to the locus in quo lying west of Main street was affirmed. 178 N. Y. 561, 70 N. E. 1097. The issue as to the existence of a street on the river front west of Main street having thus been finally determined against the city, the issue remaining as to a street on the east side was tried at Special Term, where the complaint was dismissed.

The trial justice found the following facts, among others: In 1805 the land in question formed part of an extensive tract owned by the Holland Land Company, which caused the same to be surveyed and laid out into lots and streets and a map thereof to be filed with the proper county clerk. This map, entitled the ‘Plan of New Amsterdam,’ shows a street without a name running along the north bank of Buffalo river on the east side of what is now Main street, but which then went by the name of Willinks avenue, to and beyond Washington street as now located. No street, however, was laid down on the map as existing on the west side of Main street. Said map shows a lot designated as ‘outer lot 78,’ extending from Main street easterly to Washington and bounded on the south by the unnamed street, above referred to. In 1807 the Holland Land Company conveyed outer lot 78 to one Grant, who in 1815 conveyed a portion thereof to one Grosvenor, and in such conveyances the southerly line of lot 78 was referred to as the northerly bounds of Water street, thereby meaning the street appearing on said map without a name. In all subsequent conveyances of said parcel down to that made to one John W. Clark in 1831, a similar description was used. In 1813 the village of Buffalo was incorporated by an act referring to said map as the sole description of the territory included. Laws 1813, p. 113, c. 106. Said act was revived and continued in force by chapter 164, p. 168, Laws 1815, and by chapter 69, p. 68, Laws 1816. The commissioners of highways of the town of Buffalo were the commissioners of highways of the village of Buffalo until 1826 when the village trustees became the commissioners of highways within the corporate limits. Laws 1826, p. 140, c. 152. In 1821 the commissioners of highways of the town of Buffalo caused Water street to be surveyed, described, and entered of record pursuant to chapter 33, p. 270, Rev. Laws 1813, and as so surveyed, described, and recorded the street was one chain in width. In 1826 the trustees of the village changed the name to Ohio street, and in 1830 to Front street, and contracted its width to two rods. Buffalo creek or river, as shown on the plan of New Amsterdam, at the time said map was filed, was and ever since has been a public highway. On various assessment maps of the city between 1842 and 1846 Front street is delineated from the intersection of the east line of Main street to the west line of Washington street, and on various assessment rolls between 1847 and 1863 property was assessed for local improvements as fronting on Front street in the locality in question.

After finding these facts, among others, the trial court further found as follows:

‘Thirteenth. In 1829 the Holland Land Company conveyed an undivided three-quarters of the fee of said Water street, then known as Ohio street, abutting on the southerly line of outer lot 78, to one Clark, and conveyed the remaining undivided one-quarter of said fee to one Scott and one Capron, and the last-named grantees subsequently, and in 1833, conveyed the said undivided one-quarter to said Clark. The said Clark subsequently conveyed the premises herein described, together with said outer lot 78, to various grantees, referring in such conveyances to said premises as ‘Front street.’

‘Fourteenth. Through the grantees of said Clark by mesne conveyances the said the New York, Lackawanna & Western Railway Company, in or about the year 1891, acquired the fee of the premises hereinbefore variously referred to as Water street, Ohio street, and Front street, abutting on that portion of outer lot 78 lying between Main street and Washington street as now laid out.’

‘Sixteenth. That more than 40 years prior to the commencement of this action the grantees of the said Clark, then owning that portion of outer lot 78 abutting on the premises herein referred to as Front street, constructed brick buildings upon their lands fronting on Ohio street, and extending backward to a line substantially the northerly line of the premises herein designated as Front street, as contracted to two rods in width; that between such brick structures and the Buffalo river, and upon the premises herein designated as Front street, such grantees caused to be constructed, in or about the year 1838, a dock and wharf, and that such dock and wharf has ever since been maintained by the defendant and its predecessors in interest, except such repairs as were made by the municipality under ‘certain resolutions adopted by the common council.’

‘Seventeenth. That said dock and wharf from the time of its erection down to the commencement of this action was used by the owners of the abutting property, in connection with the adjacent premises, for the purpose of receiving freight from the vessels and delivering freight to vessels entering and leaving the port of Buffalo by Buffalo river, and that said abutting owners have at all said times used the said dock and wharf for the temporary storage of freight received from vessels, or freight awaiting shipment by lake and canal. That more than 30 years since the owners of the property abutting said dock or wharf erected a shed over the same, extending from the buildings fronting thereon practically to the exterior line of such wharf, for the purpose of protecting freight delivered from vessels, or placed upon such wharf for delivery to vessels, and that said shed was so maintained until about the year 1892, when the same was torn down. That said shed constituted no physical obstruction to the use of said dock and wharf by vehicles and pedestrians.

‘Eighteenth. That said dock and wharf from the time of its erection down to the commencement of this action, and since, has been open to travel by vehicles and pedestrians, except when such travel was temporarily obstructed by freight stored upon said dock or wharf, and the said dock or wharf has been used during the said times by vehicles and pedestrians, more largely by the latter than the former; that the greater number of persons using said dock or wharf for foot or vehicle traffic did so for the purpose of reaching the stores and warehouses abutting on said wharf, and for the purpose of delivering supplies to the vessels lying thereat, or receiving passengers from such vessels, or transacting other business with said vessels. But it is equally true that many of the people using said dock and wharf, both for foot and vehicle traffic, used the same as a way of communication between Main street and points east of Washington street, and that many pedestrians constantly used said dock and wharf who had no business with the abutting stores and warehouses, or the vessels lying at said dock.’

After finding the facts as thus stated, the trial court found the following, which were designated as ‘Conclusions of Law’:

‘First. That the filing of said ‘Plan of New Amsterdam,’ and the conveyances of the premises abutting on Front street by the Holland Land Company, was intended as and constituted a dedication of the premises in question known as Front street for the purposes of a public highway.

‘Second. That subsequent to such dedication as aforesaid the premises in question were accepted by the public as a public highway by the act of the Legislature of the state incorporating the village of Buffalo, and the subsequent acts reviving and confirming such act of incorporation; and also by the action of the commissioners of highways of the town of Buffalo in the year 1821 in causing the said street to be...