#### In the Matter of the Application of Freeholders of the Town of Montezuma for Order Requiring the Repairing or Rebuilding of a Bridge known as Howland Bridge.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

Highways—Bridges—Dedication.

One H. built a bridge from land of his own across a river which divided two towns after acquiring a right of way from the owner on the opposite side. He afterwards conveyed a private roadway over his land leading to the bridge to a turnpike " company by deed containing a condition that it should revert when the company should cease to use its road thereon, and subsequently resumed possession thereof under such condition. In a proceeding for the repair of the bridge, *Meld,*that there was no dedication of the road as a highway, and that under chap. 639, Laws 1857, there was no liability to rebuild or repair as there was not a lawful highway in each town which would be connected by the bridge.

I. Appeal by the petitioners, certain freeholders of the town of Montezuma, from an order entered in Cayuga county, on the 26th day of May, 1890, denying their application for the repairing or *971rebuilding of a bridge between the towns of Montezuma and Conquest; and,

II. Appeal by the towns of Montezuma and Conquest from an order dated July 28, 1890, denying costs to them.

*James Wright,*for petitioners; *Charles M. Baker,*for the Town of Conquest; *J. W.*O'Brien, for the Town of Montezuma.

Macomber, J.

The towns of Conquest and Montezuma join each other in the county of Cayuga, the northerly line of Montezuma being the southerly line of Conquest, and are divided by a branch of the Seneca river. In the southwesterly part of the town of Conquest is an island, known as Howland’s Island, being oval shape, the longest diameter being north and south, containing 3,500 acres of land formed by two branches of the Seneca River, the general course of which is northwardly, the right branch running around the southerlv and easterly side of the island and dividing these towns, and tíre left branch running on the westerly side of this island and dividing the town of Conquest from the town of Savannah, in the county of Wayne, apart of the distance, and so around the northwesterly, northerly and northeasterly side of the island, where it meets and unites with the right branch. It has living upon it about twenty-five families.

This island was owned by Humphery Howland in 1825. Prior to April, 1834, he built a bridge over the south or east branch of Seneca River, at the site of the present Howland’s Island Bridge, which bridge was known as Howland’s bridge, and which was free to every one who wished to pass, until the same was taken possession of by the Port Byron & Savannah Turnpike Road and Brfdge Company, a corporation organized by chap. 318 of the Laws of 1845.

This company had the right to build a bridge across the south or east branch of the Seneca river, at or near the bridge of Humphery Howland, but so as not to interfere with the bridge without compensation to Howland, and also a bridge across the north or west branch of the river, together with a road across the island. Prior to this time, and in about the yenr 1832, Humphery How-land built a bridge on the site of the bridge in question, having obtained permission of one Cuykendall to make and use a road across the latter’s land from the south end of the bridge to the highway. Humphery Howland conveyed to the Turnpike Road & Bridge Company, a roadway from Howland’s bridge to the place where another bridge, known as the Galen bridge, had been built, by a deed containing a condition that the title should revert to Howland whenever the company should cease to maintain and use the turnpike road on such land. The roadway so conveyed included the part of a private highway running north from How-land’s bridge, which had been laid out by the highway officers of the town of Conquest. In the years 1855 and 1856 proceedings were instituted in this court which, under a judgment recovered against the Turnpike Road & Bridge Company, resulted in a sale of the entire property and franchises of that corporation, which were bov.glit in by William Penn Howland. Thereupon Hum*972phery Howland took possession of the property mentioned in his deed to the company, whereby the same should revert to him in case of the non-use of the same by the corporation. William Penn Howland removed the old bridge and built a new one in its place in about the year 1867.

Upon these facts the learned referee, to whom the case was referred, has reported adversely to the prayer of the petition of the freeholders of the town of Montezuma, and such report has been confirmed by this court at special term, and from the order thereon one of these appeals is taken.

The application of the petitioners is made under chap. 639 of the Laws of 1857. As the learned referee has shown in his opinion, there can be no liability under that statute unless there is a lawful highway in each town, which highways are or would be connected by the bridge. *Beckwith*v. Whalen, 70 N. Y., 430. This, being a special statutory proceeding, can only be maintained in cases specifically authorized by the statute. *Matter, etc., of Catt. Co.,*59 N. Y., 316. The reasoning of the learned referee upon the question whether there is a highway on the Conquest side of this branch of the river seems to be so conclusive that we do not hesitate to adopt it. It is as follows:

“ I will, therefore, consider the question first, as to whether there is a highway on the Conquest side. The road on that side north of and connecting with the Howland Island bridge was not laid out as a highway, but as a private road, but after the Port Byron & Savannah Turnpike & Bridge Company acquired their rights in it and over it, and so long as they operated it, it became and was a public highway in the sense that all had the right to free and uninterrupted travel over it at all times, upon paying the requisite toll, but when the Turnpike & Bridge Company abandoned it, it reverted to its former condition, under the provisions of the deed from Humphery Howland to said company.

“I am, also, of the opinion, that under the facts the said road has not become a public highway under 1 R. S., 521, § 100, which provides that, ‘ all roads not recorded which have been or shall have been used as public highways for twenty. years or more, shall be deemed public highways,’ because this road has been recorded and recorded as a private road, and because of the interruptions to such uses which have prevented its use. *Devenpeck*v. *Lambert,*44 Barb., 596; *Shellhouse*v. *State,*9 West. Eep., 63 ; 110 Ind., 509. See, also, *Speir*v. *New Utrecht,*49 Hun, 294; 17 N. Y. State Rep., 727.

“I am further of the opinion that the facts do not show a dedication of this road as a public highway, or an acceptance of it by the proper authorities, or by the public as a highway. The authorities are, that to constitute a dedication of a public highway, an intention to dedicate on the part of the owner must be clearly and unequivocally shown, and some are of the effect that an intention to accept must clearly appear. *Fisk*v. *Havana,*88 Ill., 209. In New York it is held that the acts and declarations of the owner must be unmistakable in their purpose and decisive in their character, showing an intention to dedicate absolutely and *973irrevocably to the public use. *N. F. S. B. Co.*v. Bachman, 66 N. Y., 261. The authorities all hold that an intent to dedicate must be deliberate, decisive and unequivocal to effect a dedication. *Speir*v. *New*Utrecht, 49 Hun, 294, 298; 17 N. Y. State Rep., 727. And as bearing upon this I also refer to 1 R. S., 507, § 29, by which, ‘ it is made the duty of the highway commissioners to credit to such persons as live on private roads and work the same as much on account of their assessments as such commissioners may deem necessary to work such private roads; or annex such private roads to some of the highway districts.’ And it is also noticeable that none of the freeholders in Howland’s Island (who own the fee of the land over which the roads of the island run), are applicants in this matter.

“ I am therefore of the opinion, that this application should be denied, because there is no connective highway in the. town of Conquest, without considering whether the road in Montezuma is a highway, and I have, therefore, refused to make or pass upon certain findings in relation thereto, which were requested by the counsel for the applicants.

“ In my opinion, the practical discontinuance of the use of said branch of said river for purposes of navigation, “ the many acts of the legislature permitting the bridging of said river, including the act for the incorporation of the said turnpike & bridge company, are abandonment of the public right of navigation, notwithstanding the act passed in 1813, declaring it to be a public highway.”

It follows, therefore, that the ’ order on the merits of the case, -dismissing the petitioner’s application was correct, and should be .affirmed.

There remains, however, another question presented hy the appeals of these two towns, touching the matter of costs. Section 7 of chapter 639 of the Laws of 1857, is to the effect that the supreme court at special term, or a judge at chambers, shall have power to grant or refuse costs as upon a motion including also witnesses' fees, referee’s fees, and disbursements in proceedings of this character. '

The order made upon this subject was at another term .of court, where the matter was brought up upon affidavits in which an additional allowance of costs was asked by the successful parties, on the ground that the case was difficult and extraordinary. Ordinarily, where the discretion of the court or judge has been duly exercised, the appellate branch of the same court should not interfere therewith; but in this particular instance, we think that there could not have been brought to the attention of the learned justice at special term the fact that, at the first hearing before the referee, the parties stipulated that the referee’s fees should be fixed at a certain sum, and that they should be part of the costs of the proceedings, to be taxed as other costs, including the stenographer’s fees and referee’s fees. The case before us discloses no reason why costs should not have been allowed in this case.

The appeal, therefore, of the .town from the order of the special term must be upheld.

*974It follows, that the order denying the petioner’s application be affirmed, and that the order of the special term relating to costs be reversed, with separate bills of costs to the two towns appearing separately by attorney, together with the separate bills of costs of this appeal to such towns.

Dwight, P. J., concurs.