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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 265 The referee has, to a great extent, substituted a statement of the evidence for a report of the facts as required by statute. He has found, as a conclusion of law, that the locus in quo was a public highway at the time of the entry, and the removal of the trees and gravel by the intestate, then an overseer of highways; but he has not found any fact from which the conclusion necessarily results. The disputed question of fact was whether a highway legally existed at the place, at the time of the alleged trespass. There was no proof that the land had been appropriated and occupied by the public, by authority of law and without or against the assent *Page 267 of the owner, as and for a highway. There were no steps taken by the village or town authorities to acquire a title to the property as against the proprietors and subject it to an easement as a public highway under the statutes regulating the laying out and opening highways and public streets. Neither was there any evidence that the locus in quo, had at any time been opened or used as a highway, or that the public had acquired an easement by prescription. The referee finds that this part of Niagara street, although open to the public, because not inclosed, had not been opened as a highway, and had not been and could not, in its natural state and as it then was, be used for the ordinary purpose of a highway.
The claim is, that the land had been dedicated by the owner to the public as and for a highway, and that the dedication had been accepted by the proper authorities, and that thus the locus inquo had become a public highway, with the assent of the owner and by the act of the public officials. If the evidence, either as reported by the referee or as appearing upon the record, would have justified the finding as a fact such dedication and occupation, the judgment, so far as this point is concerned, may be sustained, notwithstanding the infirmities of the report. Every reasonable intendment may be made in support of a judgment. The evidence and the findings of the referee show that, as between the original proprietors of the land and those to whom conveyances had been made of lands upon the line of what is claimed as a street west of Main street, the latter were entitled to a right of way and a passage. But this was a private right and did not necessarily, and without other facts, make the way a public way, subject to the control of the highway officers, or make its support and maintenance a public charge. If it was a public highway the responsibility for its proper repairs and support was upon the public; and the duty was never assumed or undertaken or attempted, except by the commission of the acts for which this suit is brought. The existence of Niagara street as a public highway east of Canal street was clearly established. It had been used and occupied as a public highway, *Page 268 with the assent of the original owner of the land, for many years, and the fact of its absolute surrender to and acceptance by the public was undisputed. The only act of dedication of any part of the street to the public use, other than the acquiescence in its actual use, was the making and filing of a plot of the ground, with the street laid down thereon, by the owner, and the sale and conveyance of lots by the plot and bounded upon the streets as delineated thereon. But upon the maps and plots filed there was an express qualification and reservation of rights in respect to the streets and avenues as laid down between Main street and the river, including the locus in quo, and while east of Main street, Niagara street, actually occupied and improved as a highway by the town, and subsequently by the village authorities, was dedicated absolutely, there was no such absolute surrender and dedication to the public use of the streets west of Main street. It was in terms declared, and subject to the declaration grantees accepted their conveyances and the public enjoyed any easement in the premises, that the streets and avenues between Main street and the river had been laid out by the proprietors, not only with reference to public use and travel, but also with reference to the particular use and convenience of the hydraulic establishment existing or thereafter to be erected; and they in terms reserved to themselves, their heirs and assigns a discretionary power to direct how much and what parts of said streets and avenues should be used for canals and races, and how much and what parts thereof appropriated to public use. Under the reserved right, a revised map was filed in 1861, exhibiting the changes made necessary by the construction of railroad and hydraulic canal, and continuing the original reservation, on which map Niagara street is not delineated or laid down as a street. West of Canal street, up to that time, there had been no occupation by any public act, or use, as a highway, or by any act other than a formal resolution of the village trustees, declaring the same a public highway, assuming to recognize and accepting any dedication, absolute or qualified, of this part of the street, *Page 269 and the proprietors had the perfect right, aside from the reservation, to recall the donation. To constitute a public highway by dedication, there must not only be an absolute dedication, a setting apart and a surrender to the public use of the land by the proprietors, but there must be an acceptance and a formal opening, by the proper authorities or a user. (Fonda v. Borst, 2 Keyes, 48; S.C., 2 Abb. Ct. of App. Cas., 155;Holdane v. Cold Spring, 21 N.Y., 474; Oswego v. OswegoCanal Co., 2 Seld., 257.) The first act is the dedication, the voluntary donation by the owner of the land, and the public can only accept that which has been donated, and the acceptance must be secundum formam doni, and if they cannot take according to that, they cannot take at all. (Stafford v. Coyney, 7 B. C., 257; Poole v. Huskinson, 11 M. W., 827.) The dedication must be made with intent to dedicate. (Barraclough v.Johnson, 8 A. E., 99.) The acts and declarations of the land owner indicating the intent to dedicate his land to the public use must be unmistakable in their purpose and decisive in their character to have the effect of a dedication. (Wash. on Ease., 182.) In this case the owners, by their acts and declarations, negatived the intention of dedicating the locus in quo, absolutely and irrevocably, to the public use, and thus destroyed the force and effect usually given to maps and plots of land made under similar circumstances, as evidence of an intent to dedicate, or of an actual dedication of land to the public. The maps and plans, in connection with the explanatory addenda and reservation, do not show a present and actual dedication of any part of the streets and avenues west of Main street. Before the public could acquire any rights or take any easement under the qualified or proposed dedication, and set apart and improve any part of the streets as public highways, the assent and direction of the proprietors was required. Some further act and declaration by the owners was necessary to complete the donation of any part of the lands within the limits mentioned for a public highway. When so donated and occupied, the right of the owners was subject to the public easement and the rights of *Page 270 the public over the lands so dedicated. The maps and plans, with the explanatory and qualifying notes, taken together, look to a future act to constitute a donation or setting apart of the streets, or any part of them, to the public use. The public could only take and occupy such streets as the proprietors should thereafter direct. Until such further act, by the terms of the reservation, the owners reserve to themselves, and their heirs and assigns, the absolute right to control and direct the use of the premises, a power entirely repugnant to, and destructive of, any supposed dedication. The locus in quo was not tendered or donated to the public to be occupied and enjoyed at their option, and as they should elect. The bridge company succeeded to and were the grantees, by operation of law, of the original proprietors, and were possessed of all the title to, and interest in, the locus in quo, and, as the successors to the title of the original owners, had the right to direct what parts should be used as a public highway. There was no evidence that the public had acquired any right to use, or had used, the locus in quo as a highway, or that the proprietors had completed its dedication, by directing what parts should be used by the public prior to the acquisition of the title by the plaintiff. Hence the admissions and declarations of Mr. DeWolf, if authorized to speak for the company, were material, and the referee, as if relying upon his declarations as evidence of a consent that the entire street as laid down upon the map had been dedicated to, and might be taken by, the public for the purposes of a highway, has found his declarations as proved. The admission of such declarations was error. They were not competent and should have been excluded, without further evidence of his authority to represent and bind the plaintiff. The referee has evidently given effect to the declarations, as evidence that the locus in quo was a part of the public highway, by the donation and assent of the proprietors, by which that which was left uncertain by the notes upon the maps and plans as to the parts of the street which might be taken and used by the public, had been made certain and definite and the whole street had been dedicated. The error *Page 271 was not harmless in view of the effect evidently given the evidence by the referee.
In Whitney v. Filkins, in which we are furnished with an opinion in manuscript by Judge DANIELS, a highway existed by prescription through Canal street, as laid down on the map and independent of the dedication now relied upon.
There may be other evidence to establish the existence of a highway and that the intestate was in the lawful discharge of his duties in doing the acts complained of, which, unless the parties conclude that the litigation is profitless and not worth further continuance, may be produced upon another trial. But upon the case made and for want of proof of the dedication of the locusin quo as a public street, or other competent evidence establishing the existence of the highway, and for error in admitting in evidence the declarations of Mr. DeWolf against the company, the judgment must be reversed and a new trial granted.
All concur.
Judgment reversed.