Georgianna B. White and Others, Appellants, v. Florence A. Moore, Respondent

Georgianna B. White and Others, Appellants, v. Florence A. Moore, Respondent. Second Department, June 24, 1910. Beal property — park—dedication—acceptance—pleading—party— individual lot owners — village — parties plaintiff. Where a complaint alleges that a map of certain lands showing a park was duly filed by the owner; that the surrounding lots were sold by him with reference to the map; that the public has traveled over and used the park as such for over twenty years; that the village, later incorporated, has taken the care and control of the same and "has maintained and repaired and improved it and that the land comprising the park has never been taxed, both a dedication of the land as a park by the original owner and acceptance by the public are shown. The owner of a tract of land who sells lots with reference to a map showing a certain area,as a public park cannot later deprive his grantees of the benefit thereof. Where land is so dedicated to the use of the inhabitants of a village the village may bring a suit in equity to protect its equitable rights to the use of the land as a park. Individual lot owners claiming title under or through deeds from the original owner of the park, which refer to the map, may join with one another and the village in which the park is situated and which claims to have accepted the dedication thereof as parties plaintiff to restrain the successor in title of the original grantee from impairing their easements in the park. ' Appeal by the plaintiffs, Georgianua B. White and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 11th day of February, 1910, upon the decision of the court, rendered after a . trial at the Nassau Special Term, sustaining the defendant’s demurrer to the. complaint. Delphin M. Delmas [Benjamin F. Spellman with him on the brief], for the appellants. Harry W. Moore, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The plaintiffs seek to enjoin the impairment of their easements in a park. In October, 1880, Dubois, the ownér of land, caused a map thereof (attached to the complaint) to be filed in the office of the clerk of the county of Queens, wherein the land was, and thereafter sold the lots laid out on said map to persons. The plaintiffs, with the exception of the village of Sea Cliff, are owners of several interests in the land, acquired from Dubois or his grantees, and in all instances conveyance was made by reference and according to the map. The map shows a square marked Park,” surrounded by lots and avenues. The plaintiff, the Village' of Sea Cliff, was organized in 1883. At that date Dubois retained his title to the lands, and the complaint alleges that he “ did not in any manner or form revoke the dedication of the said lands as a park made by him as aforesaid,” and “ immediately after the incorporation of the said village, and while the said dedication remained in full force and effect, the' plaintiff Village of Sea Cliff duly accepted the dedication of the lands referred to-in paragraph ‘ III’ hereof as a park, and since its incorporation has had the care and control of the same as a. park for the benefit of the public, has maintained and repaired the same, and made improvements thereon; during all of said time the said lands have freely and without molestation been used by the general public as a park;” and that at no time since the dedication has the land comprising the park been assessed for the purposes of taxation, nor appeared upon the assessment roll' for such purposes, nor has any person paid any taxes or assessments thereon for the village of Sea Cliff or the town of Oyster Bay.- The defendant, succeeding to the - interest of Dubois in the park since the 22d of June, 1909, has attempted to assume control and dominion of the land, in the park and to prevent and deprive the plaintiffs and -the general public from using the land as a ■ park. Some of the detailed acts of the defendant in such regard sufficiently support this charge. The defendant demurs upon grounds in effect reduced to three : 1. That all the plaintiffs who are lot owners have separate property, separately acquired, claiming separate - easements, and have separate and distinct causes of action and cannot join, 2. That the village of Sea Cliff is not united in interest with any of the other ' plaintiffs either in possession or title ór interest, and attempts to allege a cause of action totally distinct from that of another plaintiff. 3. That not sufficient facts are alleged to constitute a cause of action in favor of any of the plaintiffs. The complaint traces the easement of each individual plaintiff in the park through the conveyance made primarily by Dubois of such lot by reference to the map tiled by him, and alleges the easement of the' village, as follows: “ On information and belief, in making and filing the map as alleged in paragraph ‘II’ hereof, selling all the lands owned by him with the exception of the premises referred to in paragraph ‘ III ’ hereof, with reference and according to the said map, the said Henry Dubois intended to, and did duly, expressly and formally "dedicate and surrender the lands referred to in paragraph ‘.III ’ to the public for its convenience, use and enjoyment as a park; that said dedication was .valid and binding on himself, his heirs and assigns; continuously since the 18th day of September, 1880, the public have freely and without molestation traveled over the said land referred to in paragraph ‘ III’ hereof, and have used the same as a park.” These allegations show the pleader’s conclusion that the filing of the map showing a park, the sale of surrounding lots by reference, to the map, and free travel by the public over the park and use thereof since 1880, show a dedication to the village. Although the conclusion is limited to these facts, the complaint shows, as already stated, that since .1883 the village has had the “ care and control of the same as a" park for the benefit of the public, has maintained and repaired the same, and made improvements thereon,” and that it has “ freely and without molestation been used by the general public as a park.” These combined facts show both dedication and acceptance. A park as regards the present question partakes of the nature of a street, and dedication of a street would be inferred from asimilar state of facts. The park must remain such for the surrounding households, for those licensed to share their privileges. But shall it be said that it is not a park wherein the public have like privilege ? The statement in the complaint is that the public have traveled over it and used it as a park for more than twenty years, and that meantime all the burdens that usually accompany ownership, repair, improvement, maintenance, have been transferred from the owner of the title to the village, so that the former has not been even regarded as a taxpayer for the same. This status has existed for nearly thirty years, undisturbed by such owner. By his deeds the owner proclaimed that the. reserved place was a •park; by use the public has appropriated it for a public park; the village has treated it as a park maintainable at the public expense, and the .owner has viewed without dissent and with presumed approbation every assertion of dominion and indication of appropriation. He should not be heard to say at this time that he has not subjected his property interest in the park to the public use. The rule that when owners of land in a city or village lay out the same into lots, with streets and avenues intersecting the same, and. sell the lots with reference to such streets and avenues, they cannot thereafter deprive their grantees of the benefit of having such streets and avenues kept open, applies to a similar dedication of urban lands to be used as an open square' or public walk or .park.. (Trustees of Watertown v. Gowen, 4 Paige, 510.) When lands are dedicated to the use of the inhabitants of a city or incorporated village for a public square, a bill may be filed in the name .of the corporation to restrain a nuisance thereon or to protect the equitable rights of the corporators to the use of the public square or land. (Trustees of Watertown v. Cowen, supra; Burnet v. Bagg, 67 Barb. 154.) In the second case it was decided that the .owners of lots fronting on a square dedicated to public use, not grantees of an interest or easement therein, could maintain Suit against the corporation to enforce the trust, but could not in tlieir own names proceed against a stranger to the trust unless Ms acts were productive of special injury to them. The grantee of a lot adjoining a public square, who has a special covenant from the original owner of the square that it shall be kept' open for the benefit of the lot or a subsequent grantee, may file a bill in equity to restrain the grantor from violating the covenant, and may join with the corporation in such suit. (Trustees of Watertown v. Cowen, supra, where there was such express covenant.) Each purchaser of a lot acquired as above stated, by implied covenant, has an easement that may not be abridged. (Johnson v. Shelter Island G. & C. M. Assn., 122 N. Y. 330, where, however, it was held that the map did not designate any portion of the lands as public grounds.) The holding in Trustees of Watertown v. Gowen (supra), that .the abutting owner and corporation may unite, is sustained by the holding that, where a nuisance is a common although not a joint injury to several persons residing in a neighborhood, they may unite as plaintiffs to restrain it. (Brady v. Weeks, 8 Barb. 157, where the bill was filed to restrain the use of a building as a slaughter house ; Peck v. Elder, 5 N. Y. Super. Ct. [3 Sandf.] 126, which was brought to restrain a fat-rendering establishment; Murray v. Hay, 1 Barb. Ch. 59, where the chancellor confirmed his opinion in Trustees of Watertown v. Cowen, supra.) So it was considered that different riparian owners of distinct parcels of riparian land, who have a common grievance for an injury of the same kind, inflicted at the same time and by the same act, though the injury differs in degree as to each owner, may unite in a common action to enjoin a higher riparian owner from diverting or polluting the stream. (Strobel v. Kerr Salt Co., 164 N. Y. 303.) The interlocutory judgment should be reversed and the demurrer overruled, with costs. Jenks, Burr, Rich and Care, JJ., concurred. Interlocutory judgment reversed and demurrer overruled, with , costs.'