(dissenting.) I am unable to concur in the conclusions arrived at by my brethren in this case. In my judgment, Mr. Haskins was entitled to a substantial award. He acquired an absolute title to the 16 feet in question, subject only to a right of way in the adjoining owners, and to a possible acceptance by the public authorities (of Westchester county) of the proffered dedication. There is no question here of adverse possession, but of a use of the easement adverse to the enjoyment of the adjoining owners. The easement, having been acquired by deed, could only be destroyed by adverse use for the space of time requisite to create a prescriptive right. A mere obstruction of a way, caused by the owner of the servient estate, for less than 20 years, would not bar the right; and the adverse use for even 20 years must be open and notorious, in hostility to, and indicating a denial of, the right granted. Washb. Easm. (Ed. 1863) p. 551, § 6, subd. 2, and cases there cited. Thus, in Yeakle v. Nace, 2 Whart. 123, where eleven lots, lying side by side, were sold to two persons,—ten to one, and one to the other,— with a right of way across the rear end of each lot, it was held that the owner of the ten lots lost his right of way by acquiescing for twenty-one years in the inclosure and cultivation by his neighbor of the remaining outside lot. The court, in its opinion, gave the following illustration: “If a man grants twenty-five feet of front on one of the streets of this city, retaining the title to the adjoining land, and at the same time grants a right to an alley four feet wide, between the lot sold and that retained, expressly reserving the right to build under and over the said alley. How, the grantor is not bound to build at all, and, though he does not for more than twenty-one years, his right to build under and over the alley is not gone; but, if his vendee of the twenty-five feet should cover those four feet by his building, the whole right of the vendor to those four feet would be gone by the limitation of twenty-one years, unless suit was brought within that time.” Even in the case of tenants in common, adverse possession, such as will effect the ouster of a co-tenant, may be acquired by unequivocal acts, open and public, making the possession so visible, hostile, exclusive, and notorious that notice may be fairly presumed. Culver v. Rhodes, 87 N. Y. 348; Millard v. McMullin, 68 N. Y. 345; Humbert v. Trinity Church, 24 Wend. 587.
In the case at bar there was, as to these 16 feet, an open and notorious denial by Mr. Haskins of the right of way granted to the adjoining owners. The latter were entitled, according to the present contention, to the enjoyment of a street 66 feet in width. He asserted that they were entitled to a street of but 50 feet in width. He opened, and has since maintained, a street of that width at his own expense, and they acquiesced in the limitation. He took exclusive possession of the remaining 16 feet, fenced the space in, built upon it, rented it, paid taxes upon it, and in every conceivable way closed it *783to the street use. All this was before the eyes of the adjoining owners, and for upwards of 20 years they neither dissented nor demurred. It is entirely plain that their rights, with respect to the subject of this adverse use, were, upon well-settled principles, abandoned and lost. As to the public, they acquired no vested rights during the 20 years of Mr. Haskins’ hostile and adverse use. The offer of dedication remained open to them, but they did not accept it until Mr. Haskins’ fee had been freed from the easement. They could have stopped the running of this adverse use at any time within the 20 years by an acceptance of the dedication. So could the adjoining owners, by acts indicative of non-acquiescence or dissent. But the public could not, any more than the adjoining owners, lie by while Mr. Haskins was acting upon his denial of the easement, and then, when the adverse use had destroyed the rights conferred by the deed or proffered by the map, come forward, and, by their tardy acceptance, revitalize the dedication. The public is not bound to accept a proffered dedication. Such acceptance involves duties and responsibilities which the authorities may be unwilling to assume. During these 20 odd years the authorities of Westchester county declined to accept any duties or responsibilities with regard to the proposed streets in question. Nay, more, they observed in silence the assumption of those duties and responsibilities by Mr. Haskins; and they recognized his acts, in hostility to the unaccepted dedication, by taxing him annually for the structure erected upon these very 16 feet. The adjoining owners had at least vested rights during the period of adverse use. The public had nothing but an inchoate right. Both were lost by the hostile and* adverse use, thus acquiesced in for over 20 years.
The cases fully support this conclusion. In Baldwin v. City of Buffalo, 29 Barb. 396, it was held that, where the owner of land dedicates the same to the public for a street, and then grants the land in fee, and the grantee and those holding under him possess and occupy the land for more than 25 years before the public asserts any claim or right founded upon the dedication, all right in the public will be deemed to have ceased. On a subsequent appeal in the same case (35 N. Y. 375) it was stated that the plaintiff took the fee subject to the easement, and that the court was unable to discover any principle of law or equity by which the plaintiff could be allowed to acquire any more interest therein than he purchased, short of 20 years’ adverse possession. In Alves v. Town of Henderson, 16 B. Mon. 131, it was held that where an individual inclosed part of the land dedicated to public use, and held exclusive possession of it for 20 years, he gained a valid prescriptive title. So, in Rowan v. Town of Portland, 8 B. Mon. 232, Chief Justice Marshall said that the right of the public in property dedicated to public use may be lost by an adverse possession for 20 years. See, also, Peckham v. Henderson, 27 Barb. 207; Webber v. Chapman, 42 N. H. 326. Of course, this doctrine does not apply to an established highway, where there is no non-user, and where the occupation is a mere obstruction and nuisance. Driggs v. Phillips, 103 N. Y. 82, 8 N. E. Rep. 514. Bridges v. Wyckoff, 67 N. Y. 130, does not conflict with these cases, and, when carefully examined, it will be found to be in entire harmony with the principles above stated. In that case there had been repeated mesne conveyances of the land in dispute. In each of these mesne conveyances the mutual easement in the land had been set out in full, and the transfer made expressly subject thereto. By the acceptance of the respective deeds, the several grantees had distinctly reaffirmed and recognized the easement. This recognition was plainly fatal to any claim of possession, adverse and hostile to the easement; and, as the last of the mesne conveyances—the plaintiff’s—was very much within the statutory limit of 20 years, no title by adverse possession or exclusive right by adverse use could have been acquired thereunder. This is apparent from the language of Earl, J.: “The difficulty with this claim [that of adverse possession] is *784that the land was not adversely claimed or possessed. She took her deed in 1862;”—the order declaring the street to be a public highway having been made in 1871; “and in that the street, and the right of the public to use it as such, was expressly recognized. The deed showed that, at that time, there was no claim of right as against the dedication.” And, further: “It is claimed that the erection and maintenance of the fence inclosing part of the street was to that extent a revocation. The answer to that claim is that it was manifestly not so intended, because in all the deeds, coming down as late as 1862, the dedication and the street are expressly recognized.” If Mr. Has-kins had deeded to A. in 1860, subject to the public right, and A. had deeded to B. in 1870, subject to the same public right, the ease would have been in point, and the acceptance of the dedication in 1877 would have been fatal to B. I am of opinion, therefore, that Mr. Haskins is the absolute owner of the 16 feet in question, freed from the easement granted to the adjoining owners by the deed under which he took, and freed also from the proffered dedication contemplated by the map filed in 1849, and by the phraseology of his deed on that head. The order should be reversed, with costs, and the proceedings remitted to the commissioners for revisal and correction.