Opinion
January 9, 1924.
Ainsworth, Sullivan, Wheat Archibald [ Benjamin P. Wheat of counsel], for the appellant.
Walter H. Wertime [ Rollin B. Sanford of counsel], for the respondent.
The action was brought to recover for personal injuries to a child nine years of age, who was burned by running upon a pile of hot ashes which had been dumped by an employee of the defendant. The accident happened in the city of Cohoes, on an open strip of land between the defendant's factory and the Champlain canal. This strip of land lay in the rear of defendant's factory and was about twenty-five to thirty feet wide at one rear corner of the factory and narrowed down to twenty or twenty-five feet at the other rear corner. The engine room of defendant's plant was located in the rear of its building and there was a coal bin there, made by erecting a fence. The ashes were piled between this fence and the bank of the canal. The photographs and testimony show that the pile was located near the fence. It does not appear that the fence was designed to mark the boundary line between the lands of the defendant and the State canal lands and no such presumption is available to the plaintiff. The record is barren of any proof as to the location of the property line between the defendant's property and the property of the State. Along the canal bank there was a towpath and the plaintiff claims that the whole strip of land between the mill and the canal had been used for a period of over twenty years as a public highway for teams hauling loads to and from this and other factories and for pedestrians. It is admitted, however, that there is no evidence that this roadway had been laid out and recorded as a public highway. The plaintiff relies upon this evidence of user by the public as a highway to prove that the ashes were piled upon public lands and constituted a nuisance. The action was tried and submitted to the jury on the theory of nuisance only. The claim of the defendant is that there was an entire failure on the part of the plaintiff to locate the pile of ashes upon a public street or highway. The court charged the jury that defendant "had a right to dump its live ashes on its own property where it determined to do it, and if this plaintiff was injured by going upon the property of the defendant, whether the property was fenced or not, she has no cause of action here, because they had a right to use their own property incident to their business." The court also charged, upon request of defendant, "that the burden is on the plaintiff to show that the ashes in question were put upon a public thoroughfare or highway and not on its own property." No exceptions were taken to these charges and they became the law of the case.
The plaintiff has not met the burden imposed by the law of the case, unless the undisputed evidence as to user of this strip of land as a driveway and by pedestrians for over twenty years was sufficient to sustain a finding that it constituted a highway within the meaning of section 209 of the Highway Law. This question, however, has been thoroughly decided in the leading case of Speir v. Town of New Utrecht ( 121 N.Y. 420, 429), wherein the court said: "All we have here is that `the road was used by the public generally.' But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway; and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities." The law as interpreted in the case of Speir v. Town of New Utrecht ( supra) has been uniformly followed in this State. (See People v. Underhill, 144 N.Y. 316, 324; Palmer v. Palmer, 150 id. 139, 148; People ex rel. Cunningham v. Osborn, 84 Hun, 441; affd., 155 N.Y. 685; Hamilton v. Village of Owego, 42 App. Div. 312; affd., 171 N.Y. 698; Ricketson v. Village of Saranac Lake, 73 Misc. Rep. 52; Smith v. Smythe, 197 N.Y. 457.)
Here there is no proof that the public authorities kept this strip of land in repair or adopted it, or in any way recognized it as a highway. There is no proof as to the location of the outer boundary of the State's land. There is no proof from which it can be found that the land upon which the ashes were piled constituted a part of the towpath. Therefore, the plaintiff has failed to meet the burden of proof. Perhaps upon another trial the plaintiff will be able to fix the boundary line or to supply proofs lacking here, as to recognition of this land as a highway by the public authorities. The judgment and order should be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.
All concur, except VAN KIRK, J., who votes for reversal and dismissal on the ground that the motion for a nonsuit should have been granted.
Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.