Supreme Court, December, 1914. [Vol. 88. them for a considerable distance, and in some places nearly their entire width. We are unable to discover in this case evidence of any legal opening or formal dedication of this street, as a public street, either by the public authorities or by the upland owners. The title of the upland owners extended back from the river or creek to Ohio street, so that there was always access to their property from their Ohio street frontage. If Front street is to be deemed a public street, it certainly was never worked by the public authorities in the manner that streets are ordinarily worked. There was no grading, no paving, no sidewalks or curbing. Owing to the nature of the case this, of course, was impossible. It was planked like wharves and docks usually are, such planking being placed on stringers or timbers of sufficient strength to support the flooring and freight which might be piled on it for transportation by vessels. We are unable to find, in any of these resolutions, anything inconsistent with the ownership and use of the docks and wharves opposite lots 74, 75, 76, 77 and 78, as purely private docks. It is very doubtful whether the abutting property owners ever regarded Front street, so-called, as a public street. At least, their use of it or portions of it has been quite inconsistent with the theory that the street was a public highway. For instance, two large grain elevators, the Wilkinson and the Wells, were erected and operated for many years on a portion of the property lying between Ohio street and Front street, but the elevator tower to each of these elevators was built upon and over this so-called Front street. The face of these towers came up flush, or nearly so, with the face of the dock over which they were constructed. It is true, however, that an opening from fifteen to sixteen feet in width was left under these elevating towers, so that a wagon could pass under and through the towers in Misc.] Supreme Court, December, 1914. question. Nevertheless, when the towers were in operation elevating grain, the machinery and tackle necessary to do so obstructed the openings to such a degree that wagons could not pass through, although travelers on foot could manage to pass. Further on, opposite what is known as the Ensign property, the street was covered by sheds, and the space freely used for the unloading and handling of freight in connection with a lake line of steamers, and the evidence shows that large quantities of such freight were permitted to remain under the sheds for considerable periods of time. Further on the street was intersected by what is known as the Clark & Skinner canal without any bridge over it. Just beyond this canal, for years, were built two grain elevators, known as the Sternberg elevators, one of which, at least, was built entirely over the so-called Front street, entirely obstructing any passage whatever over it as a street. Witnesses were called who had been acquainted with the locality for fifty years or more and who testified that they had never seen vehicles drive along or over the street, and some of whom testified they had never heard it called a street, the usual designation by which it was known being "the dock." On the other hand, it appears that, with the exceptions noted, what is called Front street remained open, and travel over it was unobstructed; that vehicles did occasionally pass over and along it. These vehicles were generally those having some immediate business upon or along the docks, and consisted principally of freight or delivery wagons going there to haul freight to or from the dock, or to deliver supplies to lake craft which might be lying at the wharves. It was also used to some extent by busses and carriages taking passengers to or from steamers plying the lakes. Of course, Supreme Court, December, 1914. [Vol. 88. the activities of the dock attracted many people, as was natural, and those visiting the harbor, or having business along or in its vicinity, were accustomed to pass up and down and along these docks on foot without hindrance, molestation or protest on the part of any one. It further appears that at some time in the past, but just when is not shown, the city, at the junction of Front street and Main street, erected a post with a street sign of "Front street" upon it. It further appears, by some of the deeds of conveyance forming the chain of title to the property abutting on the dock, that reference is made to Front street, and the conveyances are made subject to the public rights therein. Numerous resolutions of the common council of the city refer to Front street. This, in a general way, describes the nature and extent of the use of so-called Front street for highway purposes; but at the same time, it is argued with great force on the part of the defendants, that none of these uses were inconsistent with the use of the wharf or passageway as purely a private dock, and the continued use in the manner described, without let or hindrance, was not a recognition of any right in the public to use the wharves for highway purposes. A mere license or permission should not be turned into a right. If the plaintiff in this case has established this as a street at all, it must, we think, be on the doctrine of prescription. Long and undisputed and uninterrupted use of land for travel may establish a highway by what is termed prescription. Whatever right the public has in Front street must, in my opinion, rest entirely upon that theory, and that alone, and not upon any shown opening or dedication of it to the public by private or public authorities. Assuming for the argument that the evidence war Misc.] Supreme Court, December, 1914. rants such a finding, it is quite manifest that the rights of the public in such a strip must be confined to the public user established. Generally speaking, the extent of a prescriptive easement is governed by the extent of the user. 37 Cyc. 40, and cases cited; Wayne Co. Sav. Bank v. Stockwell, 84 Mich. 586; 22 Am. St. Rep. 708; Scheimer v. Price, 65 Mich. 638; Kruger v. LeBlanc, 70 id. 76; Gentleman v. Soule, 32 Ill. 271; 83 Am. Dec. 264. That, in this case, would be simply the right to travel over and along the dock. It would not carry with it any right to use or enjoy the dock as a public wharf. That right would remain in the owners of the fee of the land over which the dock or wharf is constructed. As we have seen, that right of the owners of the fee has never been questioned until raised in this case, and in the case of City of Buffalo v. Delaware, Lackawanna & Western R. R. Co., 190 N. Y. 84. This brings the court to the consideration of that case, and the holdings of the Court of Appeals in the disposition of the questions there presented. That case was one in which the city of Buffalo sought to have a portion of the property in question east of Main street, and also that west of Main street, declared to be a public highway or street, and the piers, wharves and docks erected thereon as public piers, wharves and docks of the city of Buffalo. The trial court on the first trial sustained the rights of the defendant railroad company as to the property situate west of Main street, and held as to the property east of Main street that it should be declared to be a public highway or street, and the piers, wharves and docks erected thereon public wharves and docks of the city of Buffalo. Upon appeal to the Appellate Division of this court, the judgment of the trial court in reference to the ownership of the Central wharf property west of Main street was affirmed, but that portion relating to Front street, so-called, east of Main street, was re Supreme Court, December, 1914. [Vol. 88. versed. Mr. Justice Spring wrote the opinion on that appeal, which is reported at 68 Appellate Division, 488. It appears from this opinion, and from the record, that in 1837 the city of Buffalo passed a resolution declaring all the docks between Commercial slip and Michigan street to be a public highway. That particular resolution was introduced by the plaintiff in this action. The Appellate Division held it to be invalid and of no effect as constituting a highway, and, on appeal from the Appellate Division to the Court of Appeals, the judgment of the Appellate Division was affirmed. 178 N. Y. 561. The retrial of the issues decided against the city was had before Mr. Justice Kenefick, who followed the Appellate Division and directed judgment for the defendants. An appeal was taken to the Appellate Division, which affirmed the judgment of the trial court, and thereupon a further appeal was taken to the Court of Appeals, where the judgment was reversed and a new trial ordered upon the ground that certain findings of the trial court were inconsistent, and the appellant had the right to avail itself of the finding most favorable to it, which was to the effect that the street user had always existed on this street, or the dock which took its place. While the Court of Appeals had no power to make findings of fact, it did discuss and lay down certain. principles of law applicable to the record as there presented, and held, in substance, that the docks on the portion of the street involved in that litigation were private docks. Writing for the court, Judge Vann, in the course of his opinion, said: "What is the situation according to the findings when properly classified? About 1826 a public highway existed on the river front between Washington and Main streets. It still existed in 1838, when a dock was built by the abutting owners over and upon the land owned by them con |