Speir v. Town of New Utrecht

• Decision Date: 03 June 1890
• Citation: 24 N.E. 692,121 N.Y. 420
• Parties: SPEIR et al. v. TOWN OF NEW UTRECHT.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 420

24 N.E. 692

SPEIR et al.

v.TOWN OF NEW UTRECHT.

Court of Appeals of New York.

June 3, 1890.

Appeal from supreme court, general term, second department.

This action was brought by the plaintiff's testator, and in his complaint he prayed, besides other relief, that the assessments laid upon his land in the town of New Utrecht for opening, grading, and improving Cropsey avenue be declared void, and that the defendant be perpetually enjoined from collecting the same. The action was put at issue, and afterwards brought to trial at a special term of the supreme court. Witnesses to not appear to have been produced at the trial, but the evidence there taken was in the form of statements mutually made and mutually assented to by the parties. The material facts found by the trial judge from the evidence so taken are as follows:

In 1810 there was an ancient public highway, known as the ‘Old Mill Road,’ running through the towns of New Utrecht and Gravesend. About the year 1810, James Cropsey built a house on his farm 500 feet from that road, and opened a lane 20 feet wide, terminating at each end in the road, with a gate at each end, and leading irregularly to the residences of three different persons situated along the lane, one of which belonged to Robert Speir. In 1852, Cropsey proposed to Speir to dispense with the lane, and to substitute a straighter road-way, 60 feet wide, connecting at each end with the Old Mill road, and Speir assented to the proposition, and, for the purpose of carrying it out, bought some land from Cropsey bounded upon the new road. In the early part of the year 1853 the fences were moved, and the new 60 foot road-way was opened, and thereafter was used by the public generally. Cropsey and Speir, however, repeatedly declared at the time of the opening, and during subsequent years, that the road was a private way belonging to them, or to other owners of the land lying upon it, and that they had a right to close it whenever they saw fit. After the opening of that road, in the years 1853, 1866, 1868, and 1875, James Cropsey, as well as other grantors by several deeds, conveyed lands bounded by the side of the road. James Cropsey conveyed to the plaintiff's testator by several deeds the title to the land adjoining the road upon which the assessments mentioned in the complaint were levied, which lands are in the deeds bounded by lines in terms ‘running along the line of said road.’ In the latter part of the year 1862, a steam railroad was constructed and operated upon the center of the road with a single track until 1880, and afterwards with a double track. The railroad was constructed under the general railroad act, and was authorized by law to be constructed and operated on the road, and the owners of the land along the road consented to the construction of the railroad thereon. The width of the road-bed of the single track was about 10 feet, and of the double track about 22 feet, and the entire superstructure of the railroad was not higher than the surface of the road, except the iron rails, which were about 3 inches high. The portion of the road occupied by the railroad tracks was not suitable for travel with teams or vehicles, but the space on either side of the railroad was used by the public to drive or walk on; there being a footpath on either side of the road, and an ordinary wagon track between it and the railroad, with room to turn out. In March, 1886, the plaintiff and the other owners of the property along the railroad deeded to the railway company land for another road-bed, for the purpose of having it remove its tracks from the road; and about August, 1886, the railway company removed its tracks, and wholly removed from the road, and ceased to use or occupy the same. Cropsey avenue was mapped and laid out, pursuant to chapter 670 of the Laws of 1869, by the town survey commissioners of Kings county, to the width of 80 feet, covering and including the 60-foot road in question. Under chapter 554 of the Laws of 1881, and the resolutions of the board of supervisors of Kings county passed in May, 1884, proceedings were instituted, and commissioners were appointed by the supreme court, for the opening of the avenue. The commissioners, upon their maps annexed to their report, and in their deliberations, and by their report, made awards only for the lands lying outside of the 60 feet, and within the limits of the 80-foot avenue; and they did not make any award for the lands lying within the 60 feet, regarding that as already a public road by user or prescription, or as a private way to the owners of the fee, for which no award was necessary. After the confirmation and filing of their report, grading commissioners were duly appointed, by whom, or under whose directions, Cropsey avenue was graded and constructed to the width of 80 feet, at a cost of $40,521, before the commencement of this action. Assessments for the benefits were laid on the lands adjoining the 60-foot road, which lands were owned by eight persons, five of whom paid their assessments, amounting in the aggregate to $2,350.41. The assessments upon the land of plaintiff's testator adjoining the avenue amount to about $2,000. James Cropsey died in November, 1861, and in October, 1874, his heirs conveyed to the plaintiff's testator all their title and interest in the land of the 60-foot road to the center thereof, immediately in front of his adjoining land. And the learned judge found, as conclusions of law, as follows:

‘(1) That prior to the opening of Cropsey avenue the said sixty-foot road-way had become a public highway. (2) That there had been no dedication of the said sixty-foot strip as a highway by the owners thereof at the time of the opening of Cropsey avenue, but that the same had been opened and used by said owners only as a private way for the few owners of property abutting thereon; the public, however, having actually used the same. (3) That the public having used said strip as a highway for ten years before the introduction of the steam railway thereon, and having in addition thereafter used that portion of the said strip not occupied by the track or bed of said railway for the purposes of a highway for more than ten further years, said sixty-foot strip thereby became a public highway. (4) That, as between the owner or owners of the fee of the land covered by said road-way and the adjacent land-owners, such said road-way was at least a private way, and so the land was burdened with a permanent and perpetual easement of way for the benefit of the latter. (5) That the order of the supreme court confirming the report of the commissioners appointed for the opening of Cropsey avenue is an adjudication binding upon the parties to this action, and, as such, constitutes a bar to this action, precluding the maintenance thereof. (6) That after the completion of the improvement, the defrayal of its cost, and the payment of their assessments by some of the owners of the lands assessed for benefits resulting therefrom, it was, as a question of substantive law, (the defendant having waived all objections to the form of remedy,) too late for the plaintiff to claim, by any form of remedy whatever, that the improvement did not legally include the said sixty-foot road-way. (7) That the defendant is entitled to judgment dismissing the complaint, without costs, and I order and...