#### Village of Port Dickinson, Appellant, *v.*George A. Fish, Respondent.

Third Department,

July 1, 1915.

Real property — dedication of lands to be used as village park — conveyance by owner of reversion — evidence — acceptance of lands for public park—when grantee obtains no title as against public.

The defendant, under a permit from a village, had camped for several years upon lands which a prior owner had conveyed by various 'deeds providing that they were to be used by the village for a public park, which lands were described as a public park on maps filed in the county clerk’s office, and had been used by the public for that purpose for many years. He induced the widow of the grantor to give him a quitclaim deed of the premises, and thereupon asserted title as against the village.

*716The defendant’s grantor had a reversionary interest in the lands in case the public use was abandoned. All of the foregoing facts were within the knowledge of the defendant. On all the evidence, held, that the dedication of the land for park purposes had been accepted by the village, and that the defendant acquired no title under the quitclaim deed as against the village.

Appeal by the plaintiff, Village of Port Dickinson, from a judgment of the Supreme Court in favor of the defendant, entered in the' office of the clerk of the county of Broome on the 8th day of December, 1914, upon a decision of the court after a trial at the Broome Special Term.

*Perkins & Blakeslee,*for the appellant.

*John H. Mangan,*for the respondent.

Kellogg, J.:

Nelson Stowe owned a tract of land in the village of Port Dickinson, which bordered upon Chenango river, and on the 20th of October, 1873, he and his wife conveyed by full covenant warranty deed the village hotel to Cecelia A. King, and in the conveyance, as a second parcel, he conveyed a village lot bordering upon the river which by means of a lane sixteen feet wide running from a cove at the river to the junction of Lincoln and Water streets, connected with those streets. The lane was the property of Stowe and furnished access to the lot. After describing the premises secondly conveyed, the deed provides that *‘ ‘*said last above described piece of land is conveyed to said King for the purpose and on the condition that it be kept for a public park and for public uses, and whenever it shall cease to be kept and used for a public park then this conveyance of the last above mentioned piece of land is to become void and of no effect, and the conveyance is on the condition that the said King is not to cut the shade trees standing on the premises.”

The hotel property and this parcel, subject to the same conditions, were conveyed by several different owners. The hotel property was mortgaged and finally was purchased by Stowe on a mortgage sale. On January 4, 1876, he conveyed the hotel property and the village lot referred to, with substantially the same condition, to Henry Manwarren. There are several large shade trees upon the lot and it has a commanding posi*717tion upon the river. Prior to the original conveyance from Stowe it was unfenced and was used as a playground for children and for picnic purposes. Many villagers from time to time came upon the lot to see the river or to go to the river, and many rested in the shade of the trees. It was used in a similar manner from time to time until the defendant assumed exclusive control over it. January 8, 1894, Stowe caused to be made and filed in the county clerk’s office a map of his property, laying it out into village lots, on which the lot now in question was marked “Village Park,” showing that at that time he considered that the public had accepted the dedication and were making the use of the park which he contemplated should be made at the time he made the conveyance.

May 1, 1894, he conveyed his real estate to his wife, excepting premises conveyed by certain deeds, but does not except this village park.

For many years rough tables and seats between the trees were in the park, used by picnickers and others, and a swing made of a large rope extended from one tree to another, swinging out over the river.

About ten years ago the defendant applied to the village authorities for permission to camp in the park, which was granted, and later when he had a floor to his tent asked that he be permitted to leave the floor in the park during the winter, which was granted.

In 1895 Mrs. Stowe for one dollar quitclaimed to Pangbum the park property without any reservation. The defendant knew of the clause in the deed dedicating this lot as a public park. Nevertheless, after he had camped there for several years, and in 1911, he offered Mrs. Oreen fifty dollars if she would give him a quitclaim of the property, telling her he would take all the chances and pay the lawyers if anything happened. She evidently did not consider that she had any substantial interest in the property, but signed the deed and took the money. She says ‘ he wanted to buy the property and have a deed of it and I didn’t care anything about it.” In answer to the question “ didn’t you tell him you didn’t feel that you had any right to deliver a deed ” she answered, “ I don’t remember that I did.” She knew the terms of the deeds with reference to the park. *718He also in October, 1911, paid Pangburn twenty-five dollars for a quitclaim of the property, and since then has ignored the rights of the village and claims to be the owner of the property. This action is brought to have it determined that the lot is a public park and restraining him from taking possession of 'said park and excluding the public therefrom.

It is true that the park has not been kept up and improved as a public park would be in a large city. It has always been open for public use, has been frequently used and the trees upon it have never been cut. The judgment of the grantor when he made the map in 1891 that the lot had been accepted as a village park seems to pretty well foreclose any discussion whether it was accepted by the public for such use. The manner in which the defendant first entered upon the park and acquired the title which he relies upon does not entitle him to great consideration. He is seeking to take from the public the park which was given to it and which has been used for park purposes.

We conclude, therefore, that the public has accepted the dedication of the lot as a park and that it was used in 1891 and prior thereto for such purposes within the fair contemplation of the deed and that no conveyance after that could deprive the public of the right to use the village park. The judgment should, therefore, be reversed upon the law and the facts and judgment directed for plaintiff for the relief demanded in' the complaint, with costs.

All concurred.

Judgment reversed on law and facts, with costs, and judgment directed for plaintiff for the relief demanded in the complaint, with costs. The court disapproves of the following findings of fact, the 7th, 8th, 10th, 11th, 12th, 13th, 11th, 15th, 16th, 18th, 21st and 22d.