The People of the State of New York, Respondent, v. Agnes Loehfelm, Appellant

The People of the State of New York, Respondent, v. Agnes Loehfelm, Appellant. Where land has been dedicated to the use of the public as a highway, to make it such, no formal laying out is necessary; all that is necessary is for the public to accept it as laid out and dedicated by the owner. The acceptance may be proved by long public use or by acts and conduct of the public authorities recognizing and adopting it as a highway. Where, upon the trial of an indictment for a nuisance in obstructing a city street, it was proved that a map was made by the owner of the land, laying out the street and dedicating it to the public use; that a resolution was passed by the common council directing a survey of the street as thus dedicated, and ordering the removal of obstructions therefrom; also that the city authorities put down water pipes and built a sewer through the same, and assessed the costs upon adjoining property, and that the public used and traveled it to its full width, except where prevented by obstructions ; held, that the evidence was sufficient to authorize the submission of the question to, and to justify a finding by the jury that the street was a public highway; that it was not necessary to show a public record of it as such, or a judgment establishing it. (Argued March 6,1886 ; decided March 23, 1886.) Appeal from judgment of the General Term of the Superior Court, entered upon an order made June 8, 1885, which affirmed a judgment of the Criminal Term of the said court entered upon a verdict. Defendant was indicted under the Penal Code (§ 385), for a misdemeanor in maintaining a public nuisance—an obstruction in a public street in the city of Buffalo, known as Beach street. The facts appear sufficiently in the opinion. Frank R. Perkins for appellant. A dedication without acceptance .does not make a public street. (Cowen’s Treatise, §§ 1280, 1281; Dill, on Mun. Corp., § 642; Niagara Falls Co. v. Bachman, 66 N. Y. 261.) The line established by actual use as the line of a street will prevail as against the different line established by the original line of the street. (Dill, on Mun. Corp., § 639; Wendell v. People, 8 Wend. 183; Schoonmaker v. Davis, 44 Barb. 463; Glover v. Shields, 32 id. 374; Perrin v. N. Y. C. R. R. Co., 36 N. Y. 120 ; Bissell v. N. Y. C. R. R. Co., 23 id. 62.) The city of Buffalo has power to remove all encroachments upon or obstructions to its public streets. (Charter City of Buffalo, chap. 519, Laws of 1870, title 9, § 5.) It must cause its public streets to be ascertained, established and the boundaries thereof settled and defined and recorded in a book to be kept by the city clerk in his office. (Id., §§ 12, 13.) Without such definite designation of boimdaries and public record, fixing and locating the street, no indictment will lie for obstructing the place. (Clements v. West Troy, 16 Barb. 252 ; Trustees of Jordan v. Otis, 37 id. 5; U. S. v. Schwarz, 4 Cranch [Cir. Ct.], 160; U. S. v. Emery, id. 270; U. S. v. King, 1 id. 444; Oswego v. Oswego Canal, 6 N. Y. 257; Bissell v. N. Y. C. R. R. Co., 26 Barb; 630; N. Y., N. H. & H. R. R. Co. v. New Haven, 46 Conn. 257; Detroit v. D. & M. R. R. Co., 23 Mich. 173, 209.) Tracy O. Becker for respondent. There could be no public street and highway, for obstructing which an indictment can be maintained, unless the dedication was formally made, and the lines of the street recorded as provided by the city charter in the office of the city clerk. (Charter, title 14, §§ 12, 13, p. 104; id., title 9, p. 101, §§ 1, 2.) “ Grading,” as applied to streets, means their reduction to a certain degree of ascent or descent. (Smith v. Washington, 20 How. [U. S.] 135-148; 2 Dill, on Mun. Corp., § 782, n. 1.) A dedication and acceptance may occur so as to make a public street within the meaning and intent of the common law and the statutory provisions against public nuisances, by the acts of the parties and the circumstances of the case, without an actual recording of the boundary lines of such streéts. (Dill, on Mun. Corp. [3d ed.], § 642 and notes; Cook v. Harris, 61 N. Y. 448.) No particular length of time is required to make a dedication valid and irrevocable. (Denning v. Rome, 6 Wend. 651; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Holdane v. Trustees Village of Cold Spring, 21 N. Y. 474; McMannis v. Butler, 51 Barb. 436; McCarthy v. L. S. & M. S. R. R. Co., 76 N. Y. 592; Porter v. Lambier, 5 Denio, 9, 10, 20; Jarvis v. Dean, 3 Bing. 447; City of Cincinnati v. Lessee of White, 6 Peters [U. S.], 431; Dill, on Mun. Corp., § 635 [501]; Hunter v. Sandy Hill, 6 Hill, 407; In re Thirty-second St., 19 Wend. 128 ; In re Twenty-ninth St., 1 Hill, 189-191; In re Furman St., 17 Wend. 649; 8 id. 85; 20 id. 96; 2 Seld. 257; Wiggins v. McCleary, 49 N. Y. 346; St. Vincent Asylum v. City of Troy, 76 id. 108.) The same jury may pass upon the question of existence of & public highway and the obstruction of it. (Lambier v. People, 5 Denio, 9; Smith v. State, 3 Zabr. [N. J.] 712.) Acceptance of a city charter, which includes an addition previously laid off, amounts to an acceptance of, the streets and alleys therein. (Requa v. City of Rochester, 45 N. Y. 129, 132; Des Moines v. Hall, 24 Iowa, 234.) [MAJORITY — Peer Ov/riam.] Peer Ov/riam. This conviction must be affirmed. The dedication of Beach street to the use of the public for its full width of sixty-six feet was proved by the map of the original owner and is not disputed. The debate has been over the acceptance by the public and the character of the proof necessary to establish that fact. The rule appears to be established that the acceptance may be proved by long public use or by the acts and conduct of the public authorities recognizing and adopting the highway. (Cook v. Harris, 61 N. Y. 448 ; Holdane v. Trustees of Cold Spring, 21 id. 474; McMannis v. Butler, 51 Barb. 436.) Such use and such acts were proved in this case. The common council directed a survey of Beach street as the land-owner had mapped and dedicated it and the establishment of its lines; which was done, and its boundaries distinctly marked, and obstructions upon its limits ordered to be removed. The authorities built a sewer through it and assessed the cost upon adjoining property and put down water, pipes; and the public used and traveled it to its full width except where prevented by obstructions. Upon facts like these, the question of acceptance was submitted to the jury who found the street to be a public highway. No formal laying out was necessary in such a case. The dedication dispensed with the need of that, and all that remained was for the public to say whether they would accept it as laid out and dedicated by the land-owner. That often becomes a question of fact, and was treated as such in this case. The argument that there must be a regular record of the road, or a judgment establishing it, before an obstruction can be prevented or punished, assumes that an acceptance cannot be otherwise proved, and is further answered by the cases which hold that the acceptance by the public which establishes the highway, and the obstruction to it may be found by one and the same jury. (Cook v. Harris, supra; People v. Lambier, 5 Denio, 9.) We find no error in the record, and the judgment should be affirmed. All concur. Judgment affirmed.