PEOPLE ex rel. GRIMSHAW v. PRENDERGAST, Register of Kings County. (Supreme Court, Special Term, Kings County. February 2, 1909.) COUNTIES ($ 69*)-MANDAMUS (§ 101*)-COUNTY REGISTER-CERTIFICATION OF PAY ROLL. Under Greater New York Charter (Laws 1901, c. 466) § 1543, authorizing every officer of any of the counties within the city of New York to make ratable deductions from the salaries of subordinates on account of absences without leave, the register of a county may make a ratable deduction from a subordinate's salary, absent without leave on account of illness, and where a subordinate, entitled to his salary until his removal or suspension for cause subject to a ratable deduction for absence without leave, was absent with leave on account of illness, and then received notices from the register and his deputy that his leave would extend to a designated date, and that thereafter he would be suspended from pay until such time as he returned to work, and he remained absent after the designated date, the register in his discretion could make a ratable deduction from the salary after such date, and the subordinate could not by mandamus compel the register to certify to the civil service commission pay rolls or supplemental pay rolls for the balance of his salary. [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 104-116; Dec. Dig. § 69;* Mandamus, Cent. Dig. §§ 211-216; Dec. Dig. § 101.*] Mandamus by the people, on the relation of William A. Grimshaw, against William A. Prendergast, register of Kings county, to compel defendant to certify to the Civil Service Commission pay rolls or supplemental pay rolls in favor of relator. Denied. Order and decision affirmed without opinion in 132 App. Div. 937, 116 N. Y. Supp. 1144, 197 N. Y. 538, 91 N. E. 1119. The following is the order denying relief: A motion having been made herein upon an order to show cause bearing date the 7th day of January, 1909, returnable before this court on the 12th day of January, 1909, for an order granting to the above-named relator a peremptory writ of mandamus requiring the defendant herein to prepare, furnish, and certify to the civil service commission of the state of New York pay rolls or supplemental pay rolls for the months of November and December, 1908, containing the name of the relator at a salary of one hundred and twentyfive dollars ($125) for each of said months or the difference between said sum of one hundred and twenty-five dollars ($125) for each of said months and the amounts already certified therefor as required by law and the rules made pursuant to law, to the end that the said salary may be paid to the relator. And the motion having duly come on to be heard: Now, on reading and filing the said order to show cause, and the petition of the relator duly verified the 7th day of January, 1909, and the answering affidavit of the defendant duly verified the 12th day of January, 1909, and, after hearing Robert H. Wilson, Esq., of counsel for the relator, in favor of said motion, and Jesse Fuller, Jr., Esq., of counsel for the defendant in opposition thereto, and due deliberation having been had thereon, now, on motion of Jesse Fuller, Jr., Esq., attorney for the defendant, it is ordered that the motion for an order granting to the above-named relator a peremptory writ of mandamus as prayed for herein be, and the same is hereby, denied as a matter of law, and not in the exercise of discretion. Robert H. Wilson, for the motion. MADDOX, J. Relator held a definite position, and his salary was an incident thereto; his tenure being protected by statute. He was For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes subject to removal and suspension for cause, and until removed or suspended in manner as provided by statute, was entitled to his salary, but subject, however, to a ratable deduction therefrom, in the discretion of the respondent, for any absence without leave. He was not removed or suspended for cause. Because of illness he was absent from his office, and failed to perform his duties for several months prior to December 17, 1908, with the leave and permission of the respondent as he claims. About November 5, 1908, the deputy register, in writing, notified the relator that his "leave of absence is extended with pay to include November 16, 1908." After "that date" that he would "be suspended from pay until such time as" he returned "to work," and about November 7, 1908, relator received a like written notice from the respondent. As a matter of fact, his absence from November 17th and until his return was without leave. That is made plain from the notices given to him; his "leave of absence" having been extended to November 16th only. It is not made to appear that he was suspended, though he was advised that he would be if his absence from duty was continued after that date. By the charter (section 1543) the respondent, as a county officer, had the power to make a ratable deduction from relator's salary on account of his absence from duty from November 17th to December 17th; such absence from duty being "without leave," and therefore relator has shown no clear legal right to the writ sought. Motion denied. (75 Misc. Rep. 310.) TRUSTEES OF FREEHOLDERS AND COMMONALTY OF TOWN OF BROOKHAVEN v. DYETT SAND-LIME BRICK CO. (Supreme Court, Special Term, Suffolk County. January, 1912) 1. ADVERSE POSSESSION (§ 24*)-REQUISITES-ACTUAL POSSESSION. The occupation of a building each summer for the entertainment of picnic parties for about 10 or 12 years, after which it was abandoned and no further use made of it, did not constitute adverse possession, giving title to the occupant. [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 114, 115; Dec. Dig. § 24.*] 2. ADVERSE POSSESSION (§ 8*)-PERSONS AGAINST WHOM TITLE MAY BE ACQUIRED MUNICIPAL CORPORATIONS. A municipal corporation cannot, by adverse possession, be deprived of title to lands held as a public highway. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. § 8.*] 3. ADVERSE POSSESSION (§ 8*)-PROPERTY DEDICATED. Where at a meeting of the freeholders and commonalty of the town of Brookhaven in 1672 George's Neck was laid out to the inhabitants according to every man's allotment "all along by the water side for highways," there was a dedication and acceptance of the land along the shore as a highway, so that adverse possession thereof, even when acquiesced in by the town, could not ripen into title. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. § 8.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 4. ESTOPPEL (§ 62*)—EQUITABLE ESTOPPEL-PERSONS SUBJECT-PUBLIC OFFI CERS. Since the doctrine of estoppel does not apply to a deed by public officials of land described as bounded by land of another person, a description in a lease by a town does not estop it from claiming title to adjoining premises. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 151-153; Dec. Dig. § 62.*] Action by the Trustees of the Freeholders and Commonalty of the Town of Brookhaven against the Dyett Sand-Lime Brick Company to recover possession of land. Judgment for plaintiff. Leslie A. Davis (George H. Furman, of counsel), for plaintiff. George E. Darling (Timothy M. Griffing, of counsel), for defendant. JAYCOX, J. The premises in dispute are a tract of land upon the shore of Port Jefferson Bay, in the town of Brookhaven, Suffolk county, N. Y., between the waters of said bay and the cliff. There is no question but the premises in question, and all the lands under the waters of said bay and in the northern part of the town of Brookhaven, became the property of said town under two royal patents or charters known, respectively, as the Nicolls patent (dated 1666) and the Dongan patent (dated 1686), and a certain deed from the Indians. Roe v. Strong, 107 N. Y. 358, 14 N. E. 294; Hand v. Newton, 92 N. Y. 91; Trustees of Brookhaven v. Strong, 60 N. Y. 71. At a town meeting held September 26, 1672, "it was also voted and agreed upon that George's Neck shall be laid out to the inhabitants according to every man's allotment and six pole to lay common all along by the water side for highways." The evidence, I think, clearly indicates that the premises in question are on George's Neck. In 1753 it was voted and agreed that the lots laid out on the sound and harbors should extend to the bottom of the cliffs, including the cliffs to the bottom, and that all persons owning said lots should be entitled to the same to that extent. It is not disputed that the land upon this neck, except the beach or space at the foot of the cliffs, is the subject of private ownership. The town still owns the lands under the waters of the bay. If the town has not been divested of title by adverse possession or erosion, it still owns the land at the foot of the cliffs, as the defendant makes no title under the patents. The evidence as to gathering seaweed upon it is so general in character and so indefinite as to quantity as to amount to practically nothing. The same may be said as to the water fences claimed to have extended from the cliff to the water. Only one witness testified as to them, and he said they were there several years, and apparently cattle only went on the beach when they got out of the lots. But there is another piece of evidence strongly indicative of adverse possession. In 1885 James Van Brunt, then the owner of the upland, made a lease of two acres of land and the shore, which, as I understand the description, embraced the premises in suit, to the Bridge For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes port & Port Jefferson Steamboat Company. Under this lease, the lessee entered into possession and built a building known as a pavilion for the entertainment of picnic parties or excursions. This building remained upon the premises until 1906, a period of 21 years. This lease was dated July 1, 1885. On the 7th day of July, 1885, the plaintiffs executed a lease to the same company for "one certain piece of land under water on the west side of Port Jefferson Bay, 'known as California,' said hereby granted premises to extend into the bay two hundred feet from low-water mark, for the purpose of building a dock, and to include the shore frontage of forty rods in front of their property from high to low water mark." Although not absolutely clear as to whose property was meant by "their property," still, bearing in mind the purpose for which leased, I think it must be considered as the property of the lessee. The same result is reached by grammatical construction, as the last antecedent of the pronoun "their" is "the parties of the second part," the lessee. This naturally suggests for determination three questions: First. Was the possession under this lease sufficient to constitute adverse possession? Second. Can title be obtained by adverse possession of land held by a municipal corporation for a public purpose? Third. Is the town estopped by the description contained in the lease from claiming title to the premises? [1] The building in question was used only in the summer time, and was used as stated above for the entertainment of picnic parties, and was not used as a residence or for any purpose indicative of permanence of possession. It was used in the manner described for about 10 or 12 years at most. Then it was abandoned, and apparently no further use made of it. It was exposed to the elements, and was injured by the ice and storms, and was in a dilapidated condition during the balance of the time it remained there. I am inclined to the opinion that use of this character and for this period does not constitute adverse possession. A mere annual entry upon another man's land to cut timber, to feed cattle, to hunt or fish can never give title. Wheeler v. Winn, 53 Pa. 122, 91 Am. Dec. 186. Occupation of a spot five or six years as a fishing place is not a possession sufficient for the statute of limitations. McCullough v. Wall, 4 Rich. (S. C.) 68, 53 Am. Dec. 715. In Wilson v. Blake, 53 Vt. 315, it was held that occupying a sugar place from year to year only for the purpose of making sugar, such place being separated from the homeland by intervening lands owned by others, is not actual or continuous possession. The most that can be claimed under this class of evidence is only possession for a short time each summer for 10 or 12 years. Clearly this is not sufficient. If the camp of the lumberman, the hut of the fisherman or the cabin in the sugar bush cannot when occupied occasionally be considered as adequate adverse possession, then this pavilion used for brief periods in the summer for a few years cannot be so considered. [2, 3] Second. I think it is clear that a municipal corporation cannot be deprived of the title to lands which it holds for public purposes by adverse possession. I do not think that the extent to which the land is used by the public is very material. It is the purpose for which the property is held, and not the extent of the use, that must determine the character of the title held by the corporation. This land was reserved for highway purposes, and the evidence shows some use of it for that purpose as far back as the memory of man extends. I do not mean to say that there must not be some use for the purpose for which property is set aside. But, when property is reasonably adapted to the purpose for which it is set aside, is reasonable in amount, and the public avail themselves to some extent of the opportunity to use such property for a highway, it does not matter that such highway is not used as much as some other highways are. Its character as a highway is not changed thereby, and it cannot be affected by any act of an adjoining landowner that would not affect a more traveled highway. This reservation was made at a town meeting by a vote of the “freeholders and commonalty" of the town-those having the ultimate interest in the property. This, I think, constituted at once a dedication and acceptance. If this land is part of a highway, then the permanent occupation of it by inclosure or cultivation is manifestly inconsistent with the right of passage of the traveling public, and no matter how long continued can certainly never ripen into a title as against the public. Bliss v. Johnson, 94 N. Y. 241. This is true no matter how long continued, and even if such occupation is acquiesced in. Driggs v. Phillips, 103 N. Y. 77, 8 N. E. 514; St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 108, 32 Am. Rep. 286; Walker v. Caywood, 31 N. Y. 51; Morison v. N. Y. El. R. R. Co., 74 Hun, 398, 26 N. Y. Supp. 641; Kellogg v. Thompson, 66 N. Y. 88. The title the town held was subject to a trust by reason of such dedication and could not be conveyed in contravention to such trust. Knickerbocker Ice Co. v. Forty-Second St. R. R. Co., 85 App. Div. 530, 540, 83 N. Y. Supp. 469. It has been held, even in those jurisdictions where streets are considered to be subject to the statute, that title by adverse possession cannot be acquired to land which has been dedicated to the public use for a highway. 1 Cyc. 1120. My conclusion, therefore, is that this land was dedicated to the public for use as a highway, that the public had used it as occasion required, that thereby it became a public highway in use as such, and no adverse possession, no matter how long continued, would ripen into title. [4] As to the question of estoppel. My opinion is that estoppel does not apply to actions of public officials in matters like descriptions in instruments by which land is described as bounded by land of some other person. The same trustees or other trustees may afterward deny the ownership of such other person and assert ownership of such property in the corporation which they represent. no example of such estoppel against a corporation can be found based upon an admission as to title in a description. The kind of act to which estoppel applies is an affirmative act. For instance, if the trustees of the plaintiff declared that the rent upon one of its leases had been paid and, relying upon such statement, some one took an assignment of such lease, the corporation would not be permitted afterward to deny such payment or avoid the lease upon the ground of nonpayment. The act must be something within the scope of their authority, |