Argued October 25, 1907
Decided November 19, 1907
Louis E. Desbecker, Corporation Counsel ( Samuel F. Moran of counsel), for appellant. Louis L. Babcock for respondent.
The trial court rendered judgment against the plaintiff on the theory that, although Front street became a public highway as early as 1826 through tender of dedication by the owners and acceptance by the municipal authorities, still it had ceased to be a public highway because it had not been traveled or used as such for a period of more than six years prior to the commencement of the action. While facts were found which sustain the conclusion of law that Front street became a public highway through offer and acceptance, no finding of fact, classified as such, was made that the street had not been traveled or used as a public highway for the statutory period required to effect an abandonment. ( City of Cohoes v. Delaware Hudson Canal Co., 134 N.Y. 397; Matter of Hunter, 163 N.Y. 542, 548; L. 1861, ch. 311; L. 1890, ch. 568, § 99.)
It is claimed that the third conclusion of law contains the finding of fact needed to support the judgment and that, although it is classified as a conclusion of law, since it is really a finding of fact the same effect should be given to it as if it had been so designated in the decision.
The finding in question is one of fact or law. If it is the latter, the facts found do not support the judgment, because a street once in existence is presumed to continue until it ceases to be such owing to abandonment or some other lawful cause. ( Cohoes Case, supra.) We think, however, that the finding, except the last clause thereof, is not one of law but of fact. The cessation of user and travel upon a street for the period prescribed involves a question of fact. Traveling upon a street is an act or a series of acts which can be seen and described. The use of a street for traveling purposes requires that something should be done thereon which is apparent to ordinary observation. One may travel on a street by walking, riding or driving. Each method involves action and an act is a fact, as that word is known to jurisprudence.
An error in the classification of findings by the trial court does not prevent an appellate court from classifying them for itself in accordance with their actual character. Giving a wrong name to a finding does not change its nature and if it is placed under the head of "conclusions of law," when it is a finding of fact, it will be treated on appeal as what it really is, at least for the purpose of upholding a judgment. ( Berger v. Varrelmann, 127 N.Y. 281, 288; Christopher Tenth Street R.R. Co. v. Twenty-third Street R.R. Co., 149 N.Y. 51, 57.) As we have already seen, the judgment appealed from cannot stand unless the finding under consideration is a finding of fact, and it now remains to be seen whether it can stand even on that theory, since it is claimed that such finding of fact is inconsistent with other findings of fact, and hence must yield thereto at the election of the appellant in aid of his exceptions. It was upon this ground that one of the learned justices below based his dissent.
What is the situation according to the findings when properly classified? About 1826 a public highway existed on the river front between Washington and Main streets. It still existed in 1838, when a dock was built by the abutting owners over and upon the land owned by them constituting said highway, covering it for its entire width and length. From that time to this the abutting owners have used the dock for dock purposes and the general public have used it for highway purposes, neither use excluding the other altogether, although doubtless interfering with it to some extent. Under these circumstances what became of the street when the dock was built? Can abutting owners destroy a street in this way? Did the construction of the dock annihilate the highway? There is no statute which gives it that effect, and according to the common law the street leaped from the ground to the dock and staid there. It is there now unless it has been abandoned by nonuser as we read the authorities. Thus, in an early case an owner of lands lying on East river was authorized by the legislature to construct wharves and bulkheads in front of his land. There was a street known as Warren street extending through his land to the river and there "was a continuous public way upon as well as between the street and the river." The abutting owner built a bulkhead in the river in front of his land, including that covered by the street and filled up the intervening space with earth "so as to transfer the shore of the river to the bulkhead, instead of remaining where it was at the time of opening Warren street." The court held that the street, by operation of law, was extended from the former terminus over the newly made land to the water, and through its chief justice said: "The distance to which the shore was thus advanced into the stream of the river does not appear in the bill of exceptions, nor, in our view of the law of the case, is it material to be ascertained, for whether the distance was ten feet or ten hundred, we think this extension of the main land to the bulkhead carried with it a corresponding extension of the street, the bulkhead having now become for all purposes the shore of the river." After alluding to accretions of earth sometimes washed up on the shore of navigable waters, the learned chief justice continued: "It is entirely settled that these alluvial additions become the property of the owner of the land against which the deposit is made; and it would hardly admit of a question that in such a case a public street leading to navigable waters would keep even pace with the extension of the land, so as to preserve an unbroken union between the easement on land and that on such navigable waters. And if this consequence would follow from a change in the land by the action of natural causes, we think it must also be held to follow from one made by the immediate and voluntary act of the owner of the land on the shore in its original condition. * * * We hold that the filling up by Johnson of the river in front of Warren street carried with it a necessary and legal extension of the street over the new made land and to the shore of the river at the bulkhead." ( People v. Lambier, 5 Denio, 9.) (See, also, Radway v. Briggs, 37 N.Y. 256, 257; Taylor v. Atlantic Mutual Ins. Co., 37 N.Y. 275, 282-3; Matter of N.Y.C. H.R.R.R. Co., 77 N.Y. 248; City of Brooklyn v. N.Y. Ferry Co., 23 Hun, 277; 87 N.Y. 204; Fowler v. Mott, 19 Barb. 204; Elliott on Roads Streets [2d ed.], § 5; Gould on Waters [3d ed.], § 103.)
If the abutting owner by erecting a dock cannot sever the connection between the street and the river front, can he blot out the street altogether by extending the dock over it? "Once a highway always a highway," until it ceases to be such by the action of the general public in no longer traveling upon it, or by action of the public authorities in formally closing it. ( City of Cohoes v. Delaware Hudson Canal Co., 134 N.Y. 397, 406; Driggs v. Phillips, 103 N.Y. 77, 83; Beckwith v. Whalen, 65 N.Y. 322, 332; Elliott on Roads Streets [2d ed.], § 877.)
When a private dock is built over a public street upon the shore of navigable waters, the dock becomes part of the street and the public has a right to travel over it. Ownership of the dock is not inconsistent with the existence of the street any more than ownership of the land over which the street extended. Assuming that the defendant or its predecessors could lawfully build a dock over their own land in order to reach the river, still, as their land was subject to the right of the public to travel upon it, they could not unreasonably interfere with that right nor with the existence of the street, which was the foundation thereof. Two rights co-existed. The defendant, as owner of the river front, had the right to reach the water. As there was a street along the river front over the defendant's land the public had the right to use the street. The building of the dock changed neither right. Both continued to exist, although under changed conditions. They met but did not merge, nor did either destroy the other. The defendant had the right to use its dock, as a private dock, subject to the right of the public to travel over it, as they had previously traveled upon the land over which it was built. The city had no right to use the dock for dock purposes, but its citizens had the right to use it for street purposes. While the street followed the dock, and covered the whole of it, that did not authorize the city to collect wharfage; and although the dock was private property the same as the land beneath it, that did not authorize the defendant to prevent the public from using it for the same purpose that they had previously used the land. The easement for travel still existed, but it was over the dock which took the place of the land constituting the street. The public had the right to travel in the same place and in the same direction that they had before, but instead of traveling upon the surface of the land, they were obliged to travel and had the right to travel upon the structure that the defendant had placed on the land. That structure became a street for the purpose of travel and a private dock for use as such, with a superior right in the public in case of conflict through reasonable use of the respective rights.
The right of an upland owner to build a dock over a street, the fee of which is in himself, out to navigable water, does not involve the right to appropriate the street or to make an unreasonable use thereof. The owner of land can neither create nor destroy a highway over it, without the co-operation of the public. He may lay out a proposed street on his land, grade it and offer it to the public for use, but it does not become a public highway until it is accepted as such. At any time before acceptance he can withdraw his tender of dedication, but after acceptance his control ceases, except that he may still use his land for such purposes as do not interfere with its free use for all street purposes. When accepted it becomes, ipso facto, subject to the easement of a street over it for all proper street uses until the public yields up its right in some manner provided by law. The owner cannot destroy a highway over his land by any action whatever taken by himself alone. If he obstructs it, the public authorities can compel him to remove the obstruction and punish him for creating it. (Penal Code, § 385; Highway Law, § 104.) The erection of a dock is no exception to the rule. If the dock prevents public travel, it can be removed. If it does not obstruct travel, it becomes part of the street, and may be used by the public for all legitimate street purposes.
We have thus laid down the law applicable to the facts as found, independent of the fact appearing in the third conclusion of law. It is clear that the latter, treated as a finding of fact that Front street had not been traveled or used as a public highway for more than six years, is inconsistent with the eighteenth finding of fact that the public used the dock continuously from the time it was built, both for foot and vehicle traffic, as a way of communication between Main street and points east of Washington street. The learned trial justice evidently regarded the street as no longer in existence after the dock was built, and hence found that travel had ceased upon the street, although he found that it continued upon the dock which took the place of the street. He may thus have been misled into making the inconsistent findings.
"While an appellate court should harmonize inconsistent findings when it is possible to do so, if they prove irreconcilable it is the duty of the court to accept those most favorable to the appellant, as he is entitled to rely upon them in aid of his exceptions." ( Israel v. Manhattan Ry. Co., 158 N.Y. 624, 631; Nickell v. Tracy, 184 N.Y. 386, 390.) The finding that the street has been abandoned cannot be reconciled, according to our view of the law, with the finding that the dock has been used and traveled upon continuously as a street. We are, therefore, compelled to reject the former and to accept the latter, with the same force and effect as if it was the only finding upon the subject appearing in the decision. This leaves the conclusion of law that the defendant is entitled to the exclusive use, possession and occupancy of Front street, and that the plaintiff is not possessed of any right, title or interest therein, without any finding to support it. The exception to this conclusion of law, as well as to the direction for judgment against the plaintiff, raised reversible error and requires us to reverse the judgment appealed from and to order a new trial, with costs to abide the event.
CULLEN, Ch. J., GRAY, O'BRIEN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment reversed, etc.