The New York herald., 1874-08-12
PRIVATE PROPERTY FOR PUBLIC
USE.

by Judge Larremore in the case Of Helen 8. Grin
nell against Frederick 8. Rutland, heard by him in
Equity Term OF the Court Of Common Pleas It's
importance consists in the elaborate but clear
discussion Of the legal principles involved IN the
dedication Of private property to public use. The
following Is the opinion:-
In the year 1861 Mrs. Lucy Audubon was seized
and possessed Of certain lands in the city OF New
York known as "Audub0n Park,n lying between
the streets and avenues designated on the map or
plan Of said city previously made as l56th ana
157th streets and Eleventh and Twelfth avenues.
On SAID map strip OF land sixty feet In width
was laid as 156th street. In the year last men
toned Mrs. Audubon SOLD the land fronting on
lt6th street to different parties, making the
Oentre Of l5otn street the dividing line and the
nortnerly and southerly boundary OF the respec-
tive parcels thus conveyed. At the time
Of such sale there was road or lane
running through said lands, along that portion
thereof which is shown on sad map as the north
erly part OF l6etn street. and is now used substan-
italy as the same was originally laid out 1or the
Of Of the owners Of property on the line
aforesaid, each OF the grantees therein named
covenant and agree that their grantor, her heirs
and assigns, shall be and are entitled 20 a sum-
cient right ot way through and along 166tn street.
thereby conveyed to said grantee ior all lawful
purposes. to use the same as public road. The
parties to this action, by sundry written convey
Rnces, nave become tue owners OF the land IN
s yhs poo
map or said premises was ever made ny Mrs.
Audubon. No proceedings have ever been taken
by tue public authorities 10 open said street; and
on an official map recently made SAID strip Of
land is laid out as a street and does not appear
questions as 10 the right to have and use said strip
Df land as street The plaintiff claims
said deeds by Mrs Audubon there was dedi.
cation OF said land called l56th street as Tor a
and that the same Is subject tnS to an m
owners oil lands fronting thereon, to the full ex-
tent OF the width thereof, and that It should be
seeks tue Judgment OF the Court and that defend
ants may remove all fences and distinctions from
thereafter from obstructing the same
The question o. dedication Is one OF interest
in their Character and unmista kaole in their Dur.
pose (Hunter VS.. Trustees sandy Hill, HILL 407 !;
Carpenter VS.. Gwynn. IS Ban. 1850. Ths principle
Is general IN its application whether construed
as in favor or the pubic or as between owners
and purchasers. Did Mrs. Audubon intend that q
at once and in any event ior the benefit Of her
Immediate grantees. whether 1t should be
Did such grantees go understand it, when in the
very instrument in which such dedication Is al
ZION on her part, and covenant on theirs, as to a
right Of way through and along the street In ques-
ti0ns NO demand appears to have been made on
their part, their successors in interest," lor the
opening ana use OF said street. On the contrary,
the road reserved in said deeds has been used
and accepted by them as sufficient for all purposes
OF lngress ana egress to and from the lands in
question, for more tnan twenty years. II Is evi-
dent, then, that the alleged dedication was quali-
fed and not absolute, and that 1t was intended to
take effect only upon an acceptance by the public
authorities. But It IS urged with great force that
the question in dispute has already been adjud-
Gated; That when an owner OF city property sells
IT, in lots or parcels, bounded on street, whether
opened or designed and by reference 10 map made
and hled such act alone constitutes dedication or
the land included in the proposed street. But IN
the cases relied upon to maintain THIS PROPOSE
ton, VIZ, Livingstone vs.. The Mayor:. &C., Sth
Ward, 85; Wyman VS.. The Same, llth Ward, 487.
In re Thirty-iourth street. Hn 191. In re
Seventeenth street, Ward, 262, the question OF
acceptance was not in dispute. These were cases
arising upon assessments maze for the opening OF
the streets by the public authorities and the TACT
OF acceptance was the basis Of the whole proceed
ing; Tne general term OF The Supreme Court IN
Badeau vs.. Mead, 14th Barb. S2S, after review
Df the earlier decisions, holds "that grant,
whether inferential or direct, or whether to the
public or private individual, Is incfncacious
Until accepted by the grantee; that the doctrine OF
! dedication has been carried far enough and
Dugnt not to be extended" And the Court Of
Appeals, in Fonda VS.. Borst, I'd Key, As, held
ON map as bounded by street, was not en-
Titled to have said street opened until 1t had been
accepted by the public. This decision makes nc
distinction between urban and rural property
The land In dispute not having been accepted
by the pubic authorities there was no dedication
OF 1t as street. nor mas there been any accept
snce or uses OF 1t as a road TO the extent men.
loned In the alleged dedication. The plaintiff
peing In the full and undsturbed possession and
enjoyment OF 1t on easement or right OF way &C
cepted by the original grantee and used by MIN
and those claiming under him Tor over twenty
years, the Court sustains this action, and Judgment
must be rendered for the defendants therein.