Lord v. Atkins

Decision Date25 April 1893
Citation33 N.E. 1035,138 N.Y. 184
PartiesLORD v. ATKINS et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

Action by William Lord against Albert H. Atkins and others. From a judgment of the general term affirming a judgment for defendants, (19 N. Y. Supp. 1006, mem,) plaintiff appeals. Affirmed.

Wm. J. Mantanye, for appellant.

A. P. Smith, for respondents.

O'BRIEN, J.

The complaint charged the defendants with a trespass upon the plaintiff's lands by entering upon them without authority, with teams, and plowing the same, and injuring the plaintiff's crops. The defendants justified their acts by alleging that the locus in quo was a public highway. The place had never been worked as a public highway before, but all the acts done or performed by the defendants upon the land in question were confessedly such as they could rightfully do upon the assumption that the locus in quo was in fact a public street or high way. The plaintiff claimed to own the land in fee, free from any easement in favor of the defendants or the public for a street, highway, or otherwise. The issues between the parties were mostly, if not wholly, upon questions of fact, and the courts below have found with the defendants. It is not claimed that the street was ever laid out by any public authority, but only that it was dedicated to the use of the public as a street or highway by the original owners of the land, and from whom both the plaintiff's and defendants' title is derived. The strip of land upon which the alleged wrongful entry was made was originally part of a parcel of 57 acres which was conveyed to New York Central College by Gilmore Kinney in the year 1849. This deed recalls an interesting chapter in the political history of that day, recent enough to be within the memory of men still in active life. The college was projected by Gerrit Smith and others with a view to aid in the crusade that they had entered upon against the institution of slavery. It was intended, as we may assume, to be, not only an instrument for the propagation of the principles of its founders, but a home where the fugitive from the south might be educated. The buildings were erected on this 57 acres; and the projectors, with that hope and confidence which colored all their views of the future, anticipated that a considerable village would soon grow up and cluster around them. The trustees divided the tract into village lots bounded upon streets and avenues. In 1858 they caused a map to be made of the northern portion of the tract, upon which these village lots, and the streets and avenues, were shown; and a written explanation was annexed to such map, giving the location of the streets and avenues, and the dimensions, location, and number of the several village lots thereon. From this written statement it appears that East avenue was a street three rods in width, running north and south. The easterly boundary is delineated on the map for the full length of the street, but the westerly boundary appears only by a line on the map three rods west of the easterly boundary, but extending south only about two thirds of the length of the avenue, as claimed by the defendants. The land on the east is all divided and plotted into village lots, and numbered upon the map from 1 to 11, the last named being the most southerly lot. Though the westerly street line is not delineated on the map in front of the lots on the south, from 7 to 11, inclusivc, yet these lots, with the others, are all described by numbers in the written statement attached to the map as bounded on East avenue. The locus in quo is in front of these seven lots, on the west; and, if the westerly line upon the map referred to was extended south the same distance as the easterly line, then it would be within the boundaries of the street, and the defendants had the right to grade and prepare the land there for use as a street. The court below has found that there was a dedication of the land in question to the use of the public as a street. The plaintiff is the owner of four acres in front and west of the seven village lots, and he claims that his title in fee extends to the west line of the lots, as they appear on the map, which would exclude the street...

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51 cases
  • O'Hara v. Wallace
    • United States
    • New York Supreme Court
    • July 8, 1975
    ...land so demarcated remain as a street 'forever' and cannot be deprived of the benefit of having those streets left open (Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035; Fiebelkorn v. Rogacki, 280 App.Div. 20, 111 N.Y.S.2d 898, aff'd 305 N.Y. 725, 112 N.Y.S.2d 846; see also Reis v. City of New Y......
  • Skyline Woods Homeowners v. Broekemeier
    • United States
    • Nebraska Supreme Court
    • December 5, 2008
    ...Ill. 406, 67 N.E. 814 (1903); Will v. City of Zion, 225 Ill.App. 179 (1922); Fisher v. Beard, 32 Iowa 346 (1871); Lord v. Atkins et al., 138 N.Y. 184, 33 N.E. 1035 (1893); Matter of City of New York (Edgewater Road), 138 A.D. 203, 122 N.Y.S. 931 (1910); Green v. Miller, 161 N.C. 24, 76 S.E.......
  • United States v. O'CONNELL, 523
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 16, 1974
    ...Inc., 6 N.Y.2d 32, 187 N.Y.S.2d 762, 159 N.E.2d 558 (1959); Holloway v. Southmayd, 139 N.Y. 390, 34 N.E. 1047 (1893); Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035 (1893). Since this case must be remanded, we need not determine now whether easements arose in Parcels B and C in 1960. The distri......
  • City of Niagara Falls v. New York Cent. & H.R.R. Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • October 4, 1901
    ...Y. 346;Taylor v. Hopper, 62 N. Y. 649;In re Eleventh Ave., 81 N. Y. 436;Hennessy v. Murdock, 137 N. Y. 317, 33 N. E. 330;Lord v. Atkins, 138 N. Y. 184, 191,33 N. E. 1035. In view of this conveyance, it was competent for plaintiff McIntyre to offer this map as bearing upon his rights as an a......
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1 books & journal articles
  • 19.3 IV. Rights In Public And Private Streets
    • United States
    • New York State Bar Association Real Estate Titles (NY) Chapter 19 Title To Land In Beds of Streets and Highways
    • Invalid date
    ...Huntington v. Foster, 219 N.Y.S.2d 220 (Sup. Ct., Suffolk Co. 1961).[3327] . Haight v. Littlefield, 147 N.Y. 338 (1895); Lord v. Atkins, 138 N.Y. 184 (1893).[3328] . Weaver v. State, 28 A.D.2d 775, 280 N.Y.S.2d 814 (3d Dep’t 1967); Vill. of Baxter Estates v. G.N.M. Constr. Co., 49 Misc. 2d ......

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