Opinion
Submitted September 19, 1874
Decided January term, 1875
A. Hazeltine, Jr., for the appellant.
C.R. Lockwood for the respondents.
Upon the trial of this action the defendant claimed that the place from which they removed the building was a public highway by dedication, and also because it was laid out as such by the commissioners of highways in 1853.
Upon the question whether the road was laid out by the highway commissioners, there was conflicting evidence, and the judge submitted that question to the jury, and they may have found that the road was laid out, and we must assume that they did so find in their answer to the first question submitted to them. But their finding may have been based upon the theory of a dedication of the land to the public for a highway, and it may be well to examine whether their finding can be sustained upon that theory. Land may be dedicated to the use of the public for a highway, without any writing; and a dedication once made and accepted cannot be revoked. It rests upon the doctrine of estoppel in pais. The dedication and acceptance may be proved by the acts of the parties, and the circumstances of the case. The owner's acts and declarations should be such as to manifest an intention to abandon or devote his property to the specific public use. In the case of a highway, the public must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway. No particular length of time is essential to make a dedication valid and irrevocable. The dedication and acceptance may both concur on a single day. All that is needed in any case is room for the estoppel to operate. ( Denning v. Roome, 6 Wend., 651; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Holdane v. Trustees of the Village of Cold Spring, 21 N.Y., 474; McMannis v. Butler, 51 Barb., 436.)
The facts in this case showing a dedication are quite unequivocal. In 1853, Tiffany owned the land, and his neighbors desired to have a public highway laid through it. They made an arrangement with him to pay him for the necessary land $200, and he agreed to convey the land to the commissioners of highways of the town, and gave his bond running to them to that effect. The bond showed that the land was to be for a public highway, and not merely a way for the benefit of the neighbors who paid for the same. Immediately after this arrangement was made, the neighbors opened and worked the road, and then the highway commissioners placed it in a road district and kept it in repair at the public expense; and down to 1867 the public used it as a public highway, so far as appears, without any objection from any one. All these facts are undisputed, and they show an unequivocal dedication and acceptance.
The bond was competent evidence upon the question of dedication. It may not have been valid, and probably could not have been enforced by the commissioners of highways. It may be that a conveyance could not have been compelled by any one; but it was unnecessary. The dedication could be by parol, and without any consideration. The fact that the neighbors of Tiffany procured a writing showing the intended dedication, and paid him for the land, are significant only as they bear upon the question of dedication, and upon that question they, with the subsequent user by the public, and adoption by the public authority, leave no room for doubt.
The judge's charge must be construed with reference to these facts; and upon them he was right in charging the jury that the undisputed evidence gave the public the right to use the highway.
But there was some disputed evidence in the case that the dedication was intended to be for a limited period; and this evidence was fairly submitted to the jury with instructions of which plaintiff does not complain, and we must assume that they found that there was an unqualified and unlimited dedication.
The locus in quo was, therefore, a public highway; and the only other question to be determined is, whether the defendants, as highway commissioners, had the right summarily to remove therefrom the building as an obstruction to public travel. The plaintiff claims that they had no such right. I cannot doubt that this claim is entirely unfounded. The commissioners of highways have, by law, the general care and superintendence of the highways (1 R.S., 502, etc.). It is their duty to see that they are kept in repair, and that all obstructions are removed therefrom. They may sue to recover penalties for obstructions; but this is not their only remedy. If a fence be built across a highway, or material of any kind be placed thereon so as to obstruct public travel, they may summarily remove the same. In no other way can the highway laws be properly administered and public convenience promoted. If a building be placed in a highway, thus entirely obstructing public travel, it would be quite absurd to hold that they must leave it until some individual who is specially injured by the nuisance shall tear it down or remove it. It is their official duty to remove it.
It follows from these views that the order must be affirmed, and the defendants must have judgment upon the verdict, with costs.
All concur.
Order affirmed; judgment accordingly.