Corwin v. Corwin , 31 N.Y. Sup. Ct. 147 ( 1881 )

Barnard, P. J.:

The alley in question was never a public highway. It was never accepted by the public as such. The case in this respect differs from Bridges v. Wyckoff (67 N. Y., 130). In that case the commissioners of highways had, before the dedication made, as in this case, by maps duly filed and by conveyances referring thereto, declared the street to be a public highway. In the present case there is but the map filed and the conveyance referring thereto. There is not and never has been any acceptance. The defendant by his deed took the fee of the alley to its centre, subject to the rights of the other grantees of the mapped property to have the alley open for all. (Perrin v. N. Y. Central R. R. Co., 36 N. Y., 120.) Before acceptance of the dedication by the public the parties interested might have revoked the dedication, but this has never been done, except that the defendant’s grantor built on the alley more than twenty years ago a house which is now complained of as an obstruction. Although this was not a formal revocation by all the parties, in legal effect it bars all claims against the defendant. The grantees of other lots had a right of action to remove this obstruction when erected. The alley not being a public highway, was not subject to the rule of law that the trespass was a continuing one, and that prescription from lapse of time gave no right as against the public. It was solely a matter of private right, and as such must be enforced within twenty years after action accrued, and not after that time if there was an adverse holding. The court has found this fact from the evidence, which fully warrants the finding. The defendant has therefore strictly made out a defense. The plaintiff’s right of action has not accrued within twenty years, and therefore the complaint was properly dismissed.

Judgment should he affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed, with costs.