Argued November 13, 1878
Decided January 28, 1879
R.A. Parmenter, for appellant.
Olin A. Martin, for respondent.
It seems clear that the direction of a verdict for the plaintiff can only be sustained, if at all, upon the resolution of the common council of the defendant, passed on the 24th August, 1853. There was evidence that the locus in quo was previous to that date a part of the street which was then at least fifty feet wide, and the wall built by the plaintiff was shown to encroach upon the east side of the street as then existing, several feet. In fact, it appears from the testimony of Mann, the source of plaintiffs' title to the hospital lot, that the claim of the plaintiff was under that resolution, and its fence and wall was built there under the permission contained therein.
The important question, therefore, in the case is, as to the validity of that resolution.
We are unable to see in it any exercise or attempt to exercise the power to ascertain, designate, establish, widen or alter a street, given either by the original charter of 1816 or the amended act of 1834. The provisions of those acts applicable to such proceedings do not seem to have been followed. It is said that in the case of "altering" a street by narrowing it no proceedings to condemn land are necessary, because no land is taken. As the act of 1834 is peremptory in requiring that when any of the improvements authorized, including the "altering" of streets, are entered upon, the proceedings prescribed must be taken (Laws of 1834, p. 548, § 2) the argument is strong that such "altering" did not cover the abandonment of a street, or a portion thereof, to encroachments not for public purposes but for the accommodation of private persons.
But irrespective of that consideration, the resolution of August, 1853, seems to us to be not so much an alteration of the street as an attempt to give to the plaintiff permission to enclose for an indefinite period, and use for its own convenience, a part of the public street already ascertained and established. (See Indianapolis v. Miller, 27 Ind., 394.) This we can find no power in the common council to do, any more than, under the pretence of alteration, to completely close up a street by resolution without legislative authority. It can be easily seen how dangerous and mischievous such a power might be, and it should not be inferred, in the absence of express language in the charter. (See Lackland v. R.R. Co., 31 Mo., 180; State v. Mobile, 5 Port. [Ala.], 279; Atty.-Genl. v. Heishen, 18 N.J. Eq., 410.)
Our conclusion is, that the resolution was unauthorized and insufficient to transfer any title to the plaintiff or to extinguish the easement of the public in the part of the street obstructed.
It is urged, however, that under the resolution, although invalid, the plaintiff's exclusive occupation of the street for twenty years has extinguished the public easement by adverse possession. This point is not without difficulty, but we have concluded that the plaintiff's occupation, at least previous to the rescission by the common council in 1868, was not an adverse possession within the statute of limitations.
The occupation of a grantee of the fee is perhaps hostile to his grantor, but not so as to a licensee. ( Babcock v. Utter, 1 Abb. Ct. App. Dec., 27; Jackson v. Babcock, 4 J.R., 418; Luce v. Carley, 24 Wend., 451; 1 Washburn on Real Prop., 400, n. and cases cited.)
It may well be, as the plaintiff's counsel contends, that if the license had been valid and acted upon, it would have been irrevocable, as between private persons, as being upon the land of the licensee. But although we hold it invalid, the entry of the plaintiff was, nevertheless, under it, and, in the language of SELDEN, J. (1 Abb. Ct. App. Dec., 37), "the holding is not adverse." If the license were valid and irrevocable, the plaintiff's right would be perfect, but not by expiration of time. The moment it was acted upon, as plaintiff contends, the easement would be extinguished. The lapse of twenty years would hardly strengthen this right, which would not arise from the possession being adverse, for, as we have seen, possession under a license is not adverse. The license, being invalid and void, could of course be the foundation of no right in the plaintiff, but its entry and occupation thereunder was, nevertheless, no more adverse to the defendant than if the license had been valid. After the resolution of 1868, the possession may, perhaps, be regarded as in defiance of the defendant and adverse to it, but not before that time.
There is another more decisive answer to the plaintiff's claim, that it has acquired a right to maintain this encroachment upon the public street by adverse possession. It seems to be the settled law that the long continuance of such encroachments, although for more than twenty years, cannot destroy the public right or take away the authority of the public officers to remove and abate them. ( Walker v. Caywood, 31 N.Y., 51; Kittany Academy v. Brown, 41 Penn., 270; Mills v. Hall, 9 Wend., 315; Milhau v. Sharp, 27 N.Y., 611, 622.) The defendant's duties, as commissioner of highways, differ with regard to the control of the streets from its rights as a mere proprietor of property. Those duties are, to some extent, governmental, for the benefit of the public and the public cannot be barred by their neglect.
These conclusions render unnecessary a consideration of the point upon which the judges differed at General Term.
The judgment must be reversed and new trial granted, costs to abide the event.
All concur, except CHURCH, Ch. J., not voting.