Argued September 27, 1876
Decided October 6, 1876
Wm. W. Goodrich for the appellant. John H. Bergen for the respondents.
It appears that prior to 1836 the owner of land which included the premises in question, laid his land out into lots with streets, one of which is called Locust street. These lots and the streets were designated on a map filed in the county clerk's office. Subsequently lots were sold bounding them upon this street to various persons. Several of the lots were conveyed to Joseph F. Bridges in 1836, some of them lying on Locust street. The deed to him, after describing the lots and bounding then upon the side of the street, contained the following clause: "together with all the right, title and interest of the parties of the first part in and to the one-half of such streets as lie immediately in front of all the lots hereby conveyed, the same to be used, however, as public streets or roads forever." By several mesne conveyances, the last of which was in 1862, several of these lots on Locust street came to the plaintiff. All the deeds contained the clause above set out. In 1836, after the deed to him, Joseph F. Bridges built a fence in front of the lots in question, and inclosed with his lots eighteen feet in width of the street, and the fence as thus erected was maintained until it was removed in 1873 by the defendants, by the acts complained of in this action. Prior to 1871 this street was never formally opened or worked as a street, but the land was open, except the eighteen feet inclosed with plaintiff's lots, and people crossed and traveled upon it as they chose. In 1871 the commissioners of highways of the town, upon petition of freeholders, made an order declaring Locust street to be a public highway, and directing it to be opened and worked, and in 1873, by direction of defendants, then commissioners of highways, the fence was removed, plaintiffs having first been notified to remove it, which was the trespass complained of.
These facts are not disputed, and it is not disputed that they showed a sufficient dedication of the land contained in Locust street to the public for a street.
All that was needed, therefore, to make the land dedicated a public street was the acceptance of the land dedicated by the proper public authorities as a street, and it is undisputed that there was such acceptance by the highway commissioners of the town in 1871.
There had been no revocation of the dedication at any time. The original proprietors and all the other parties interested might have united and revoked the dedication before acceptance by the public authorities, but this they did not do. It is claimed, however, that the erection and maintenance of the fence inclosing part of the street was to that extent a revocation. The answer to that claim is that it was manifestly not so intended, because in all the deeds coming down as late as 1862, the dedication and the street are expressly recognized. Hence the dedication became complete in 1871. ( The City of Oswego v. Oswego Canal Co., 6 N Y, 257; Child v. Chappell, 9 id., 246; Holdane v. Trustees, etc., 21 id., 478; Baker v. St. Paul, 8 Minn., 494; Washburne on Eas. [2d ed.], 195; Requa v. The City of Rochester, 45 N.Y., 129.)
It is claimed that this street ceased to be a highway because it was not opened or worked in six years. The provision of the statute here alluded to does not apply to this case, as the land dedicated for the street did not become a highway until it was accepted as such in 1871.
It is further claimed that the plaintiff can hold the land fenced in with her lots by adverse possession. The difficulty with this claim is that the land was not adversely claimed or possessed. She took her deed in 1862, and in that the street and the right of the public to use it as such was expressly recognized. The deed showed that at that time there was no claim of right as against the dedication or the right of the public to take and use the land as a street.
It appears to us, therefore, that the defendants as commissioners of highways were completely justified in the removal of the fence.
The order must be affirmed and judgment absolute ordered against the plaintiff, with costs.
Order affirmed and judgment accordingly.