#### Annie V. R. Wells and Others, as Board of Trustees, Etc., Plaintiffs, *v.*The Village of Croton-on-Hudson, Defendant.

(Supreme Court, Westchester Trial Term,

September, 1910.)

Abutting owners — Rights and liabilities in general — Extent oí abutting owner’s rights m street.

Where the rights of the public in a street of which it does not own the fee depend upon no record of its laying out, dedication or acceptance, hut upon user only, and the successors of the ancient owners of the land over which the street is laid have, time out of mind, maintained pipes beneath its surface to carry water to their dwelling-houses and other buildings from a spring on the side of the street, it must he held that the public acquired their rights subject to the maintenance of the pipes by the owners thereof and the right to convey the waters from the spring, and that such pipes do not constitute an encroachment upon or obstruction of the street or interfere with the use of the same by the public, and that the municipality cannot lawfully remove the pipes, though it may acquire them by purchase from tlve plaintiffs or by condemnation proceedings for the purpose of establishing a municipal system of water supply.

Action for a permanent injunction restraining defendant from interfering with water pipes laid in >a public street.

Cyrus W. Horton, for plaintiffs.

Ha than P. Bushnell, for defendant.

Tompkins, J.

This action was tried before me on the

27th day of July, 1909; but the testimony, exhibits and briefs of counsel were not submitted, until about a year thereafter, and only a short time before my summer vacation, and that accounts for the long delay in the decision of the case.

*98The defendant is a village corporation of the third class, created in 1898, under the General Village Law. The plaintiffs are decendants of S'tephanus Van Cortlandt, who acquired the lands that embrace the public streets, the spring and the premises owned by the plaintiffs hereinafter referred to, by purchase from the Indians, which lands were, in 1697, created into the Manor of Cortlandt by King William the Third; und the greater portion of the lands now abutting on the public streets, known as Mount Airy road or Grand street, together with the spring of water involved in this action, was vested in the survivors of the said Stephanus Van Cortlandt, down to and including Philip G. Van Wyck, who was a nephew and adopted son of Philip Van Cortlandt, who died in 1831, leaving his estate to be divided between his nephews, Philip G.'Van Wyck and Pierre Van Cortlandt. The plaintiffs are children and grandchildren of said Philip G. Van Wyck, who died in 1870; and the plaintiffs, their grantees and assigns, and the grantees and assigns of the said Philip G. Van Wyck, are now the owners of the major part of the abutting land on said highway or street in said village, known as Mount Airy road or Grand street, in and through which street or road the said Philip G. Van Wyck sometime, prior to 1846, laid iron pipes to carry water from the said spring, which was. situated on the side of the said Mount Airy road, for the purpose of supplying water to the houses owned by the said Van Wyck and his grantees and tenants. Ever since said water pipes were laid, more than sixty years ago, they have been used and are now used by .the plaintiffs and their predecessors in title and by their grantees and tenants, for the purpose of carrying the water from the said spring to their respective lands abutting upon said highway.

The street known as Mount Airy road was originally a part of the land owned by the said Van Cortlandt and later by his nephew Philip G. Van Wyck. The longest recollection of the plaintiffs’ oldest witness was that the street had been used as a public thoroughfare for sixty years, and that, during all of that time, the water pipes in question were laid in the said street and carried water from the said *99spring to the abutting lands owned by the said Van Wyck and his grantees and descendants.

The defendant now threatens to take up and remove the said water pipes and thereby deprive the plaintiffs of their sole supply of water to nine dwelling-houses owned by them along and abutting upon the said highway, and this action is brought by the plaintiffs to restrain such threatened action by the defendant. There is no public water system in said village. It is admitted (at least it is not disputed) that the street in question has been opened and used by the public for more than sixty years, although there is no town or other record of -any dedication or acceptance thereof, nor is there any record of the laying out of such highway; and since at least 1849 the said water pipes have rested beneath the surface of said street and carried water to the dwelling-houses and other buildings upon the lands owned by the plaintiffs and their predecessors in title; and it is likewise admitted that the fee of the said street was originally owned by the plaintiffs’ predecessors in title and has never been conveyed to or acquired by the town of Cortlandt, in which town the said highway was located before the defendant was incorporated; nor has the defendant become the owner of the fee of the said highway.

Subsequently to the laying out of the said highway by Philip Van Wyck, or his predecessors in title, and the placing of the said water pipes therein by the said- Van Wyck, for the use of himself and his tenants and assigns, he made certain conveyances of land abutting on said street, in which he-asserted his ownership to the said spring, the fee of the said street- and the water pipes therein; and, since his death, his heirs, devisees, executors and assigns, including the plaintiffs, hare continued to claim the ownership thereof.

The questions presented by the issues in this 'action are:

*First.*Is the • spring and are the water pipes an illegal obstruction or incumbrance to said highway and the public easement therein ?

*Second.*Did the defendant, upon its incorporation as a village, take over the said street subject to the burden of the *100said water pipes and the right of the plaintiffs to maintain said water pipes in said street, or has the village the rig'ht to remove them therefrom?

As to the spring, it came down to the plaintiffs from their common source of title, Van Cortlandt, and was owned by them until 1906, when they conveyed it to one E. W. Tryme, reserving, however, to themselves and their assigns, the right to use the water from the said spring as it flows through the said water pipes; and the evidence of the plaintiffs’ witnesses and the measurements of the highway made in my presence at the time, of the trial, as well as my observation of its location with respect to said highway, made with the consent and in the presence of the parties and their attorneys, establish the fact that it is not within the said highway, nor an encroachment' thereupon, or an obstruction thereof. On the contrary, it is altogether on one side of the highway and entirely clear of the beaten track or traveled part thereof, leaving the highway entirely clear of the said spring more than two rods in width.

The water pipes in question are two or more feet underground and do not interfere with the use of the surface of the street by dhe .public. The defendant’s claim is that, under the Village Law and the Town Law as it was in force before the defendant was incorporated, water pipes could not be laid in public streets without the consent of fhcmunicipality, and that there is no proof of such consent, and that, if the consent o'f the town is to he implied, such (onsont is now revocable by the village.

It was not until 1813 that there was a statute authorizing the town authorities to give permission to a resident to lay and maintain water pipes within the bounds of a public highway, for the purpose of supplying a ‘dwelling-house or farm premises with water. Prior to that time there was no statute on the subject; and, under the common law, the owner of property abutting on a public highway who owned the fee thereof had a right- to lay water pipes under the surface of the street, for the purpose of carrying water to his dwelling-house or farm property; and the plaintiffs’ grantees, 'while owning the spring and the fee of the high*101way in question, and tlie property abutting thereon, had a lawful right to lay tlie pipes in question from the said spring through and under the surface of the said street to their respective properties; and, when the town of Cortlandt, without an express dedication and acceptance of the said street as a public highway, assumed control of it and worked and used it, said town and the public acquired only an easement therein and the right to use it as a .public highway, and the fee remained unimpaired in the owners of the land, who were the plaintiffs’ grantees. People v. Kerr, 27 N. Y. 188; 3 Kent. Comm., §§ 432, 433 ; Bloomfield & R. G. Co. v. Calkins, 62 N. Y. 386; Robert v. Sadler, 104 id. 229; Eels v. A. T. & T. Co., 143 id. 133.

Besides, I think it must be assumed that the town of Cortlandt consented to the laying of the pipes. At all events, the town acquiesced therein for a long period of years, and, neither the town nor the village having acquired the fee of the street, it must be held that the dedication thereof for highway purposes was subject to the grantor’s right to lay and maintain the said water pipes under the surface of tho said street. There was no formal or express dedication, neither was there any act of laying out, or acceptance 'thereof, by the town authorities; nor does it appear which was first in point of time, an implied dedication for highway purposes by the former owners or the laying of the water pipes. So that it seems to me that, whatever dedication there may have been of tbe land for highway purposes, it was subject to tbe pipes tbat had already been laid or subject to the right of the grantors to lay 'and maintain them. '

In the case of the City of Cohoes v. D. & H. Canal Co., 134 N. Y. 397, our Court of Appeals said: *“*In the absence of an actual conveyance, the owner does not .part with the title to his land, but only with the right to possession, for the purpose of a highway * * *. An offer *to*dedicate land for the purpose of a highway, may he qualified or made subject to a certain burden, and if it is accepted, *cum oners,*the burden continues, but the land becomes a highway notwithstanding.”

*102The use by the plaintiffs of the highway in question for the carrying of their water pipes is not inconsistent with the full and complete use of the land in question by the public for highway purposes and does not interfere with the public casement therein. If the commissioners of highways of the town of Gortlandt had proceeded under the Highway Law as in force long prior to 1841 to lay out and record this strip of land as a town highway, they could have done no more than to describe and enter it in the town clerk’s office in the condition that it was in at the time. That Highway Law made it the duty of the commissioners of highways “ to cause such of the roads used as highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” And while this provision of the statute was not complied with, as far as the town clerk’s records show, yet, if it had been, the highway commissioners would have been limited to ascertaining and describing the boundaries of this road, as it had been in actual use for the twenty years preceding; and they could not have altered or enlarged its boundaries, and would have taken it subject to the existing lawful rights of the owners of the fee.

It has already been noticed that, prior to 1813, no permission was necessary for the laying of private water pipes in the public highways of the town. In that year an act was passed by the Legislature authorizing highway commissioners of a town to grant permits to residents of their districts to lay and maintain water pipes within the bounds of a public highway, for the purpose of supplying dwelling-houses and farm premises with water. Nothing is said in this act concerning pipes that had already been laid. In 1890 chapter 568 was enacted, providing: “The commissioners of highways may, upon written application of any resident of their town, grant written permission to lay and maintain water pipes and hydrants under ground, within the portion therein described, of any highway within the town, but not under the traveled part of the highway, except across the same, for the purpose of supplying premises with *103water, upon condition that such pipes and hydrants shall be so laid as not to interrupt or interfere with public travel upon the highway; and the applicant shall replace all earth removed, and leave the highway in all respects in as good condition as before the laying of such pipes.”

This statute was in force in 1898, when the defendant was incorporated as a village, and does not except villages from the provisions thereof. Ho right is here given to revoke any existing permits or to remove pipes already laid; and I doubt even that such legislation, if enacted, would have been effective to accomplish the removal of pipes that had been laid before any consent was required by persons, who at the time owned the fee of the street and the lands abutting thereon, especially where there had been no express grant or dedication of the land for highway purposes.

I have examined all of the cases cited by defendant’s counsel and none of them seems to apply to the facts of this case. The defendant argues that, if a consent by the town is to be implied, it is revocable by the defendant. I do not think so. The pipes have been in the street for at least sixty years, maintained and used by. the plaintiffs and their grantors during all that time; and that would seem to give them a prescriptive right to their continuance, if they had no other.

In the case-of Deshong v. City of New York, 176 N. Y. 475, cited by defendant’s counsel, the court held that, “no length of time will render legal a private interference with a street which is a nuisance.” That is not this case. The pipes here do not interfere with the public easement nor do they constitute a nuisance. A consent or license is only revocable where the revocation leaves the parties *in statu quo..*Here the dedication of the plaintiffs’ land for street purposes was subject to their right to maintain their water pipes therein; and, if such right should now be taken from them, they would lose not only that right, but the land in the street as well. But my decision rests upon the broader ground that no permission or consent was necessary for -the laying of the pipes, and that the town and village took the *104street subject to that right; and, if that is so, then there is no consent or license to he revoked.

My conclusions, therefore, are:

*First.*That the plaintiffs’ ancestors and predecessors in title to what is now the public street and the lands adjoining on both sides thereof, including the spring, have a lawful right to lay the water pipes in question, and that the town of Cortlandt and the village of Croton, each in turn, acquired an easement only in the said street subject to the pre-existing rights of the owners of the fee to maintain the said water pipes.

*Second.*That the said water pipes and spring do not constitute an encroachment upon or obstruction of "the said street or interfere with the use of the same by the public.

*Third.*That the defendant cannot lawfully remove the said water pipes and can only' acquire them by purchase from the plaintiffs or by condemnation proceedings for tbe purpose of establishing a municipal water-works system.

*Fourth.*That the plaintiffs are entitled to judgment herein, with costs.

Judgment for plaintiffs.