#### Caroline Weiss, Respondent, *v.*City of Mount Vernon and Others, Appellants.

Second Department,

May 29, 1913.

Municipal corporations — action to restrain interference with property alleged to encroach upon highway — dedication for highway purposes — proof not showing acceptance by city—will—devise creating determinable fee.

Appeal from a judgment awarding damages for the removal of a house by municipal authorities upon the ground that it encroached upon a public highway, and restraining further invasion of the plaintiff’s land by the city.

*384It was claimed that a strip of the land which had been occupied by the plaintiff and her predecessors for sixty years was upon a portion of the street which had been dedicated by a former owner for street purposes and accepted by the city. Evidence examined, and *held,*that even if such dedication had been made there had been no acceptance of that part of the street by the defendant.

A devise to a wife “ as long as she shall remain my widow,” with a provision that if she married she shall only have the interest provided by statutes, creates a determinable fee.

Appeal by the defendants, the City of Mount Vernon and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of December, 1912, upon the decision of the court rendered after a trial at the Westchester Special Term.

*Frank A. Bennett, Corporation Counsel,*for the appellants.

*Arthur S. Barnes*[ *John F. Brennan*with him on the brief], for the respondent.

Thomas, J.:

The question is whether fifteen feet of land for some years inclosed by a fence, and the site of a house, is part of an established highway, to wit, West street, in the city of Mount Vernon. If not, the judgment for damages for the removal of the house, and ah injunction restraining further invasion by the city and its officers should be affirmed. The apparent street, thirty-five feet wide in front of the house, upon the west line of which the east wall of the house stood, has for over twenty years been used as a public street, as is found, and the fifteen feet until the recent events have not been a part of the street. In 1851 one. Sacchi, as the owner of 130 acres of land, agreed with two persons, who, as recited, intended to form what should be called the Teutonia Homestead Association, to sell them, their assigns and associates, such land, which the first party undertook “to be surveyed and laid out into blocks of ground ” of dimensions approximately stated, and there were provisions for improvement of the land and terms of sale. The record does not show that the second parties to the contract made purchases, although it is *385found that Sacchi did convey lots to several members of the association pursuant to the agreement, hut I do not find evidence of it. In any case, there were sold hy Sacchi lots 183 and 186 on March 30, 1852, 181 and 185 on July 31, 1852, and lot 187 on October 21, 1852, and plaintiff’s husband, Frederick William Weiss, directly or hy mesne conveyances became the owner of them. Each deed conveyed lots “known on a certain map entitled c Map of West Mount Vernon ’ lying in the Town of Eastchester, County of Westchester * * * filed in the Clerk’s office of the County of Westchester, for the Teutonia Homestead Association by G-ustavus A. Sacchi, March, 1852,” and the lots are designated by lot numbers and defined hy numbers of other lots, and by the Bronx river laid down on the map. In fact, of lots on West street, ten of a total of fourteen were sold by deeds dated March 30, 1852, at which time no map was filed. Indeed, no map in terms ‘ *‘*for the Teutonia Homestead Association ” is on file, hut on May 1, 1852, a map entitled a “Map of West Mount Vernon” was filed. The map filed shows that West street has a width of fifty feet and that the lots westerly of that street face on a street so shown with westerly termini at the easterly bank of the Bronx river. If the lots begin at the easterly line of the river they must take fifteen feet of West street to have the length described in the deed and shown on this map. If they begin in the center of the river they may have approximately their given lengths without entering West street. But the map does not show the lines of the lots as entering the Bronx river main channel. But the decisión does not turn necessarily upon such question. The purchasers of the-lots at the time apparently considered that the lots began on the easterly side of the river and so took possession of fifteen feet on the westerly side of West street and used it, and in some instances built upon it. Indeed, the fifteen feet claimed to he a part of West street and so shown on the map fell sharply away from the remaining thirty-five feet, and the houses, I infer, were built so that the frontage would be on and not under the street. The occupation and inclosure were immediate, and continued for sixty years. What right did this give against Sacchi and per*386sons claiming under him ? It was under a claim of title hy deed, with every accompanying act required to give title hy adverse possession. Sacchi had made an offer to dedicate land to which he had title. The time came when he had not the land to dedicate, for he had lost title to it hy reason of title gained hy adverse possession by Weiss. A person cannot be regarded as continuing an offer of dedication of land that he had ceased to own. But the city did not accept the dedication while he did own it or before he lost title. Not a single act can be mentioned indicating acceptance through the sixty years of orderly and usual occupation for a dwelling with the ordinary front fence. How, then, was there acceptance ? It is answered that it was accepted by the public use of the thirty-five feet and some working of West street to that width, and from that it is argued that there was a constructive acceptance of the road for fifty feet in width. The appellants’ theory is that West street for fifty feet became a highway, and that the plaintiff’s and earlier occupation could not affect the title. It may for present purposes be admitted that, if the city ever accepted the whole fifty feet, its right could not be diminished. But it never did accept a street more than thirty-five feet in width. Passing the question whether Sacchi’s tender of dedication of the whole fifty feet was effectual against his grant, yet the vendee took possession and thereby declared to the grantor, and to the city, that the land was his, and he barred use of it by the city and the public. The public made no. sign of dissent. The public traveled the thirty-five feet, and whatever implication of acceptance arises relates to that — for the acts from which implied acceptance arises have to do with that and nothing else. What its acts involved, it impliedly accepted. If a municipality would show acceptance of dedication by user, it must show the use, or other acts indicating acceptance, and the dimensions of the highway will correspond to the use or the acts. It placed a sewer within the thirty-five feet, but that does not show that it thereby accepted a dedication of land behind a fence or under a house and where such private residence had been for many years, and when the city worked the thirty-five feet it could not be that there was an intention to work the inclosed premises. The fact is that *387the plaintiff upon taking possession barred all the world from the premises, and the municipality must be content to keep what its acts show it took and all that it could take. The widow took the fee. There is a present gift of all the testator’s property. Then follows “authority to sell, convey and mortgage,” which might be deemed unnecessary if the gifts were absolute. It is added, “she shall have and enjoy the same and the proceeds and profits thereof as long as she shall remain my widow. But in case she should marry again, then she shall only have and be entitled to such a share as is now provided by the statute,” and there is upon the same contingency a gift over of the residue. I think that the intention was that if she remarried she should be entitled to her statu-" tory interest; if not, she should be entitled to the whole. Hence, she has a fee determinable upon her marriage and may maintain the action and recover the damages stipulated.

The judgment should be affirmed, with costs.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment affirmed, with costs.