It is admitted in the case, by both counsel, that Margaret C. McGown, in 1835, conveyed to Sandford and others the block now owned chiefly by Houghton, bounding it on the west by “ the Fourth Avenue,” but describing it as containing 920 feet in depth. By mesne conveyances, containing the same descriptions, and designating the boundary on the west by the same terms, the land was vested in S. B. McGown. On the 17th of January, 1848, a judgment was recovered against S. B. McGown, for a specific performance of a contract to convey this block; the judgment required that the conveyance should be of the block bounded on the west by the “ Fourth avenue,” adding, in explanation of the term “Fourth avenue,” that “it should be taken at the width of 100 feet, as originally laid out.” The blocks in question were directed to be conveyed to Bayard Clark, an assignee of the plaintiff in the judgment. A deed bearing date the 25th November, 1848, as directed by the judgment, was executed by McGown to Clark, conveying the block, “ together with all the right, title, and interest of the parties of the first part, to the adjoining streets and avenues,” and following the description in the judgment, although not adding in express terms, that the “ Fourth avenue should be taken at the width of 100 feet, as originally laid out.” The judgment, indeed, is not referred to at all in the deed in direct terms ; and one of its requirements is omitted, showing that there was some subsequent consent of the parties to modify it; but nothing whatever appears, either in the deed or otherwise, that it was their intention to vary the judgment in the dimensions or description of the premises, or in the degree, extent, or quantity of the interest directed to be conveyed. There is nothing to imply an intention by the grantor or grantee to alter the signification of the term “Fourth avenue,” except the omission in the deed of the explanatory words, which I have quoted from the judgment.
It is admitted, in this case, that Clark conveyed to Sluyter portions of the block, bounding it upon “ the Fourth avenue,” and that, on examining the dimensions of the lots, it appeared that the block was conveyed by Clark to Sluyter as of the dimensions of 920 feet in depth.
The question, therefore, to be determined, is, whether Clark, *202on receiving the conveyance from McGown, pursuant to the judgment, accepted the land curtailed of twenty feet on its western line, bounding it by the “ Fourth avenue” as widened, and not by the Fourth avenue, “ taken at the width of 100 feet, as originally laid out;” for, if Clark did not consent to this, it cannot be pretended that any subsequent owner did.
What is the evidence that he consented, gratuitously, to relinquish so large a portion of his land for the public use ? It is granted that there is no express and positive language or act indicating any such intention; but that there is enough in the vague manner in which the “ Fourth avenue” is referred to (a term confessedly bearing two significations), to show a constructive dedication. I confess, I cannot see any thing in the proceedings of either of the parties, or in what is expressed or omitted in the conveyance, to warrant any such supposition—a supposition -which would deprive a man of a large proportion of his land without compensation. We must bear in mind, that if the dedication was made at all, it was made by Clark; for, if I understand the judgment correctly, McGown was obliged to convey the land to the Fourth avenue, “taken at the width of 100 feet as originally laid out.” These words, to be sure, follow section 10 of the judgment, which is divided into ten sections, each section relating to a separate portion of land, and directing to whom it is to be conveyed; section 8, relating to the block in question, directing the conveyance to Clark. Section 10 being the last, the explanatory words relating to the meaning of the term “Fourth avenue” were naturally and properly placed after that section, to save the necessity of repeating them after each of the ten sections; and there is no reason to suppose, from the circumstances, that these words should be more applicable to the tenth than to any other section in the judgment. But the explanatory reference is in itself conclusive; for, it says, that “the Fourth avenue, as herein used, should be taken,” &c.—“ herein” clearly signifying “ in this judgment,” not merely “this section,” and that the object was to avoid tautology.
It is, therefore, to some act of Clark that we must look for this intention. No option was reserved to his grantor. By the judgment, I repeat, Clark was entitled to the 920 feet. It matters not what McGown intended without the concurrence *203of Clark; he was hound to convey to Clark the blocks containing those dimensions in depth. What reason is there for implying that the latter surrendered the right to twenty feet of those dimensions along the whole western boundary of this land, in the absence of the least tittle of proof of any adequate motive, or of any inducement or compensation, unless we are to assume in him a degree of civic worth, and public spirit, so rare, that it will be prudent not to presume the possession of it by any citizen in these degenerate days ? To suppose that he gratuitously gave up this large strip of his land for the widening of one of the thoroughfares of the city would be implying more than we are authorized, at all events, from the circumstances of the present case, to presume.
The mere omission, in the deed from McGown to Clark, of the number of feet in the depth of the blocks, does not warrant any such supposition; especially when we consider that in eight months after the execution and delivery of this deed he expressly shows that he contemplated no such thing. In the conveyance of Clark to Sluyter, in October, 1852, the block is conveyed as of 920 feet in depth; of course, to the original line of “the Fourth avenue,”—the hundred feet wide “Fourth avenue;” which most people knew to be the only “ Fourth avenue.” How then can it be inferred, that when he received the conveyance from McGown, he relinquished his right to what the judgment gave him? Here is an express assertion of his right, in opposition to a very equivocal omission of words, which were merely explanatory, and which left the term “ the Fourth avenue,” without those words in McGown’s deed, to say the least, as capable of one interpretation as the other. Clark knew, I presume, if he had dedicated the land to the public use, and was content to accept the block from McGown, bounded by the contemplated line of the Fourth avenue, as directed to be widened by the act of 1837, its depth from the Third to the Fourth avenue would be only 900 feet.
The mere circumstance that the conveyance from McGown to Clark did not specially refer to the judgment, and that there seemed to be some deviation from it in other respects, is a very insufficient reason for concluding that he was willing to depart from the ^substance of the judgment, so essentially, as to abandon, without any apparent consideration or compensation, or *204adequate motive, a considerable portion of the property to which it entitled him. The only safe rule, and the only rule by which the constitutional right to private property can be preserved, is to reject all doubtful claims of dedication; and, for my part, I would reject any claim not considerably more explicit than this.
If we are not willing to forget where we are—that we are living under a political regime, which regards private property as most sacred and inviolable, and that we are not living in the meridian of St. Petersburgh or Grand Cairo, we should in all cases insist, as this court at general term in this district has before insisted, that a constructive dedication can only be effected by clear, unequivocal, and decisive acts of the owner, amounting to the explicit manifestation of his will to make a permanent abandonment of the thing dedicated.
For these reasons the order confirming the commissioners’ report should be reversed.
I fully concur with my brethren on the other questions presented in this matter.
Order affirmed.