Opinion
June, 1904.
O.P. Hurd, for the appellant.
W.F. Bishop, for the respondent.
If the street in question is only three rods wide as laid out in 1829, the building in question is wholly outside of the limits of the boundaries of the street. If, on the other hand, the street is sixty-six feet wide, then the building is clearly an encroachment upon the street.
The theory upon which this case was presented to the courts below by the plaintiff was that the ordinance of 1875, passed by the board of trustees, the filing of a map thereunder and the conduct of owners of property upon the street since that time in acquiescing therein, were effective to increase the width of the street to sixty-six feet.
It is evident that the trustees, by passing the ordinance of 1875 and filing a map showing a street increased in width to sixty-six feet, could not thereby lawfully take private property from the adjoining owners for the purpose of increasing such width, for the reason that that would be an invasion of constitutional rights, as it would be the taking of private property for public use without just compensation (Const. [1846] art. 1, § 6). Manifestly, too, under a statute giving to the board of trustees of the village the power to locate and define the boundary lines of the streets in the village, such board would have no power to take private property for public use; nor would the board, under such a statute, have the power to locate and define the boundaries of a highway which was laid out to be three rods in width in such a way as to show that the boundaries on each side should be sixty-six feet apart, and in that way encroach upon the title of the adjoining owners. Hence we have examined this record with a view of ascertaining from it if there was sufficient evidence to justify a finding that the owners of the abutting property where the building in question is located had dedicated the land to the public as a street and the public had accepted it as such, or whether there is any evidence that would justify a conclusion that, subsequent to the passage of the ordinance of 1875, and prior to the erection of the building in question, the public, by user during all that period, which is upwards of twenty years, had acquired a prescriptive right to the entire width described in the ordinance as a public street.
The fact that the ordinance was passed might be regarded as a sufficient public acceptance of the property in dispute for street purposes, but that would not be sufficient unless there had also been a dedication of the land by the owner to the public as a street. The only evidence to support that view is found in the fact that during all that time there were no fences maintained by the owners of the property to divide it from the street, and it was open at all times and unobstructed by any structure until the erection of the building in question. The mere fact that it was unfenced by the owners is not sufficient evidence to show an intention on the part of the owners to dedicate the land to the public use as a highway. ( Rozell v. Andrews, 103 N.Y. 150; Matter of Hand Street, 52 Hun, 206, 211; Strong v. City of Brooklyn, 68 N.Y. 1, 16; Flack v. Village of Green Island, 122 id. 107.)
While there have been no fences and nothing to interfere with the public use of the property in question as a street, there is no proof that it has in fact been so used at any time during the twenty years prior to the erection of the building thereon by the plaintiff, and such proof would be essential to support a title in the public by prescription, nor is there any proof that the location in question has ever been worked or occupied in any way by the public as a street.
Every element seems to be wanting to show that the street has ever been lawfully widened since it was originally laid out as a highway, three rods wide, in 1829.
The judgment of the County Court and of the Justice's Court should be reversed, with costs to the appellant in this court and in the County Court.
All concurred.
Judgment of the County Court and of the Justice's Court reversed, with costs to appellant in this court and in the County Court.