Qjnrupll ICam ^rl|noI IGibraty KFN5787?C77"l88r'''''''"^ "^WiiiSi'iii&pSiaft^i^iff '^ws 0' *e state 3 1924 022 869 428 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022869428 MANUAL HIGHWAY LAWS STATE OF NEW YORK. APPENDIX OF FOEMS. KOBLEY D. COOK, COUNSELOR AT LAW. FIFTH AND RBVISED BDITION, By GEORGE R. DONNAN. ALBANY: JOHN D. PARSONS, JB., LAW PUBLISHER. 1884. )rdiiig to act of Entered, according to act of Congress, in the year eighteen hundred and seventy-nine. By JOHN D. PARSONS, Jk., In the office of the Librarian of Congress, at Washington. PREFACE TO FIFTH EDITION. Since the issue of the fourth edition of this work some important changes have been made in the laws relating to highways. The present edition embraces all such statutory changes as well as the rulings of the various courts of the State, in refer- ence to the construction of the various statutes referring to highways, appearing in the published reports since the issue of the fourth edition down to July 1st, 1884. Th^ new matter adds materially to the size of the work, and renders it the most com- plete treatise upon its specialty yet issued. G. E. D. • Julp l,188i. CONTENTS. CHAPTER I. PASE. "What are Highways 1 CHAPTER II. Commissioners of Highways 31 CHAPTER III. Overseers of Highways 108 CHAPTER IV. Assessment of Labor on Highways, against whom and how made, US CHAPTER V. Performance of Labor on Highways 130 CHAPTER VI. Of the laying out of Public Roads 149 CHAPTER VII. Of the Alteration and Discontinuance of Highways 188 CHAPTER VIII. Appeals from Orders Laying out, altering or discontinuing Highways ; 201 CHAPTER IX. Damages op laying out Highways 233 CHAPTER X. Bridges 385 CHAPTER XI. Sidewalks 371 vi Contents. CHAPTER XII. PA9E. Encroachments on Highways 386 CHAPTER XIII. Obstructions in Highways 294 CHAPTER XIV. Of the law of the Road 314 CHAPTER XV. Animals in Highways 324 CHAPTER XVI. Highways by Dedication 848 CHAPTER XVII. The Fee in Highways 354 CHAPTER XVIII. Ways and Private Roads 363 APPENDIX. Forms 377 TABLE OF CASES. A- Page . Adams V. Kivers, 11 Barb. 390... 354 355 Adams v. .Van Alstyne, 25 N. Y. 233 76, 77 Adams v. Wash. & S. H. B. Co., U Barb. 149 7 Adolph V. Central Park, etc., E. E. Co., 76 N. T. 530. ... 23, 313, 317 Adait V. Brady, 4 Hill, 630.. 42, 43, 48 49, 51 Albany Northern E. E. Co. v. Brownell, 24 N. T. 345.. 106, 158, 174 175 Albany Northern E. E. Co. v. Lansing, 16 Barb. 68 225 Altreuter v. Hudson Eiver E. E. Co., 2 E. D. Smith, 151 316 Amsbery V. Hinds, 46 Barb. 622.. 196 198 Anderson t. James, 4 Bob. 35 ... . 360 Anderson v. Van Tas8ell,53 N. Y. 631,632 113,143,274 Applegatev. Lexington, eto.,E. E. Co., 8 Dana, 289 22 Aspinwall v. Supervisors of Eioh- mond, 20 N. T. 252 150, 151 Atkins V. Boardman, 2 Mete. 457. 365 Augustine v. Britt, IS Hun, 3951. .. 359 Avegno v. Hart, 25 La. Ann. 235 ; 13 Am. Bep. 133 317 B. Babooek v. Lamb, lOow. 238. 354, 355 Babcock v. Gifford, 29 Hun, 186 .. 51 Bacon v. City of Boston, 3 Cush. 174 277 Bailey v. Frost, 4 N. T. Week. Dig 269 310, 311 Bakeman v. Talbot, 31 N. T. 372. 365 Ballard v. Dyson, 1 Taunt. 285 . . 4 Baltimore v. Marriott, 9 Md. 160.. 283 Bank of Ithaca v. King, 12 Wend. 390 118 Baker v. Savage, 45 N. Y. 19 317 Baker v. Loomis, 6Hill, 463, 619.46, 51 101 Bartlettv.Crozier, 17 Johns. 437, 439, 447, 449, 452, 456. . . . 40, 45, 47, 51 111, 237 Bartlett v. Hookaett, 48 N. H. 18.. 303 Bateman v. Black, 14 Eng. Law & Eq.69 5 Baxter v S. S. E. E. Co., 11 Abb. (N S.)178 88 Beach v. Furman, 9 Johns. 229 .. . 118 136, 137 Beck V. Carter, 68 N. T. 283 303 Beckwith v. Whalea, 5 Lans. 376. 182 254 Beekman v. Saratoga & Schenec- tady E. E. Co. , 3 Paige, 74 13 Paqe. Belton V. Baxter, 54 N. T. 245.... 317 Benedict v. Goit, 3 Barb. 369, 4,59. 7 12, 143 Billings V. Worcester, 103 Mass. Biahopv. Barton, 5T.'&C. "6.!!!! 238 Bissell v. New York Cent. E. E. Co., 23 Barb. 630; 23 N. Y. 61.351, 357 360, 361 Bliss V. Johnson, 73 N. Y. 529.... 356 Bloodgood V. Mohawk B. E. Co., 14 Wend. 51 223 Bootz V. Washburn, 79 N. Y. 63, 207 72, 103 Berries v. Horton, 16 Hun, 139... 289 Boston, etc , E. E. Co. v. Green- bush, 53N. Y. 510 174 Bostwick V. Barlow, 14 Hud, 177. 47 Bouton V. Neilson, 3 Johns. 374 . . 135 137 Bowyer v. Burlew, 3 T. & C. 362 . . 326 Boyce v. Brown, 7 Barb. 80 366 Brace v. N. Y. C B. E. Co., 27 N. Y. 269,271 3, 7 Bradley v. Blair, 17 Barb. 480. 179, 289 Bradhurst v. President and Di- rectors, 16 Johns. 8 207 Bridge Co. v. Bachman, 4 Lans. 533 ; 60 N. Y. 261 355 Brigss V. Bowen, 60 N. Y. 454 199 Briggs V. Doughty, 7 Hun, 32 391 Broiestedt v. South Side E. E. Co. of L. L,55N. Y. 220 20 Bronck v. Becker, 17 Wend. 330. . 73 75, 80 Bronson v. Mann, 13 Johns. 460. . . 3S9 2C1 Brooks V. Hart, 14 N. H. 307. . 314, 315 Brooksv. Sohwerin, 54N. Y. 343. 317 Brown v. Cayuga, etc., K. E. Co., 12N.Y.486 312 Brown v. Buplessis, 14 La. Ann. 843 22 Browne V. Chadbourne, 31 Me. 9. 28 Bruynv. Graham, 1 Wend. 370.. . 216 Bryanv. Landon,5T.&C.594... 237 Brydges v. Wyckoff, 67 N. Y. 130. . 363 Buffalo Flank Eoad Co. v. Com- missioners, 10 How. Pr. 237 ... M7 Bullardv. Harrison, 4 M.&S. 487. 5 Burdick v. Worrail, 4 Barb. .596. . . 814 Burnham v. Bulier, 31 N. Y. 480.. 318 Byrnes v. City of Cohoe3,67 N. Y. 204 53 C Caldwell, Ex parte, 5 Cow. 293.. .. 233 Calkins v. Bloomingfleld, etc., Gas-lightCo.,lT. &C.541 10 Campbell V. Evans, 54 Barb. 566.. 337 339, 330 VIU Table of Cases. Paox. Canal Appraisers t. People, 17 Wend. 571 27, 39 Carpenter v. City of Cohoea, 81 N. Y.Zi 53, 256 Carpenter v. Gwynn, 35 Barb. 395. 350 351 Carpenter v. Oswego, etc., R. Co., 24 N. Y.655 181, 354 Carris v. Commissioners of Wa- terloo, 2 Hill, 443 156 Cartelyou v. Van Bruodt, 2 Johns. 357 355 Cartwright t. Maplesden, 53 N.T. 633 368 Cary V. Marston,56 Barb. 27 2f»l Case V. Thompson, 6 Wend. 634.. 182 317 Center v. Finney, 17 Barb. 94; 2 Seld. Notes, 44 318 Chamberlain v. Enfleld, 42 N. H. 199 303 Chambers v. Furry, 1 Yates (Penn.)167 24 Chapman v. A. & S. E. K. Co., 10 Barb. 360 9 Chapman v. Gates, 54 N. Y. 132. . . 233 311 Chapman v. Swan, 65 Barb. 210 . 350 Chase v. Sutton Manufacturing Co.,4Cush.l53 22 Child V. Chappel, 9 N. Y. 257 ... 353 Child V. Starr, 4 Hill, 369 359 Christy v. Newton, 60 Barb. 332 .. 150 City of Brooklyn, Matter of, 73 N. Y. 179 3 City of New Haven V. Sargent, 38 Conn. SO I 9 Am. Rep. 360; 10 id. 12 143 City of Providence v. Clapp, 17 How. (0. S.) 161 280 Claflin V. Wilcox, 18 Verm. 605... 318 Clapper, Ex parte, 3 Hill, 458. . 105, 158 331 Clark V. Brown, 18 Wend. 213 79 aark V. Miller, 54 N. Y. SUS.. 229, 333 Clark V. Phelps, 4 Cow. 190. . . 156, 158 160, 202, 316 Clemence v. City of Auburn, 66 N. T. 364 284 Clements v. West Troy, 16 Barb. 251 352 Cleveland v. Cleveland, 13 Wend. 172 5 Clifford V. Dam, 81 N. Y. 52 278 Coclcendall V. Durkee, 13 Hun, 260 106 Colden v.Thurber, 2 Johns. 424 42, 350 Colegrove v. Breed, 2 Den .125 ... 104 Commissioners v. Clow, 15 Johns. •637 207,318, 219 Commissioners v. Judges of Put- nam, TWend. 264 167, 204, 205 Commissioners, etc., v. Kemp- shall, 26 Wend. 404 27, 29 Commissioners v. Meserole, 10 Wend. 122, 126 167, 205, 211 Commissioners of Cortlandville V. Peck, 5 Hill, 215 103 Commissioners of Danube, Ex parte, 1 Cow. 142 212 Commissioners of Sherburne v. Judges of Chenango, 25 Wend. 453 2U Pagb. Commissioners of Warwick v. Judges of Orange, 13 Wend. 432. 210 Commonwealth v. King, 13 Meto. (Mass.) 115 29o Commonwealth v. Pasamore, 1 Serg. & Rawie, 219. 297 Commonwealth v. Temple, 14 Gray, 75 22, 24 Commonwealth v. Wilkinson, 16 Pick. 175 11 Congreve v. Smith, 18 N. Y. 79... 302 Conkling v. Phoenix Mills, 62 Barb. 299 25 Conklin v. Thompson, 29 Barb. 218 303 Conrad v. Trustees of Ithaca, 16 N. Y.158 53 Cook V. City of Milwaukee, 24 Wis. 270 284 Cook V. Covin, 18 Hun, 288 286 Cookv. Harris, 61 N.Y. 448. 283,311, 349 Coombs y. Barriugton, 43 Me. 332. 317 Cooper v. Bean, 5 Lans. 318 311 Cooper V.Smith, 9 Serg. &K. 26 . 25 Cornell v. Butternuts, etc.. Turn- pike Co., 25 Wend. 366, 368... 99, 310 Corning V. Gould, 16 Wend. 631, 534 366, 368 Cotton V. Maurer, 1 T. & C. 481 ; 5 ,ld.575 326,342 Cowles V. Balzar, 47 Barb. 562 ... 79 Coykendall t. Durkee, 13 Hun, 260 309 Craig V. Rochester City, etc., R. R. Co.,39N. Y. 404 20, 22 Crain v. Fox, 16 Barb. 184 368 Christman v. Paul, 16 How. Pr. 17 313 Crocker v. Crane, 21 Wend. 211.. 313 Crook V Flatbush W. W. Co.. 27 Hun, 72 304 Curtis V. Kessler, 14 Barb. 511. ... 28 D. Darling v. Mayor of N. Y., 18 Hun, 840 , ... 284 Davenport v. Buokman, 37 N. y1 568 277, 278, 279 Day V. Crossman, 4 T & 0.123... 50 Day v. Day. 94 N. Y. 153 180 Davis V. Mayor of New York, 14 N.Y. 506, 531 20, 88 Donnely v. Town of Osslning, 18 Hun, 352 98 Dawson v. Ins. Co., 15 Minn. 136. 312 Deiz v. Lamb, 6 Eobt. 537 356 Dempsey V. Kipp, 82 Barb. 311.... 368 Denning v. Roome, 6 Wend. 651.. 350 Devenpeck y. Lambert, 44 Barb. „596, 599 42, 310, 329 Dexter v. Broat, 16 Barb. 337. ... 12 DIsosway v. Winant, 31 Barb. 578; .„13Abb 216 205, 218, 219 Dodd V. Burchell, 1 H. & Colt. 122. 367 Dougherty v. Bunting, 1 Sandf . 1. 313 Dougherty V. BrlU, 36 Barb. 488 ..287 Dovaston v. Payne,2 H. Bl. .. 537. 355 Downing v. Rugar, 21 Wend. 178. 213 Drase v. Rogers, 3 Hill, 604 217 Dudley V. Bollea, 2* Wend. 465... 817 Dunham t. Williams, 37 N. Y. 25L 359 Table of Cases. IX Faqb. Duntz V. Duntz, 44 Barb. 459 103 Durkinv.CltyotTroy,61Barb.437. 284 Dysert v. Sohenck, 23 Wend. 446, 447,451 45,236,301,310, 312 314 315 303 19 18 22 313 14 E. EariDg T. Lansing, 7 Wend. 185. E^leston t. Pres't of Columbia Turnpilie ftoad, IB Hun, 14f> Elevated Kailway Cases, 3 Abb. N.C Ellioottville Plank R'd v. Buffalo, etc.. Railroad, 20 Barb. 644 Elliott V. Fair Haven, etc., R. E. Co., 32 Conn. 579 Ely V. Campbell, 59 How. 333 Erie & N. E. R. B. Co. v. Casey, 26 Penn. St. 287 Evans v. City of Utica, 69 N.T.166. Ex parte Caldwell, 5 Cow. 292 ... . 232 Ex parte Clapper, 3 Hill, 458 .151, 157 159 Ex parte Heath, 3 Hill, 42; 4 E. D. Smitla, 430 35 Ex parte Jennings, 6 Cow. 518 26 Ex parte Rogers, 7 Cow. 526 213 F. Fairfield v. Williams, 4 Mass. 427 . 35 Tash V. Third Ave. B. R. Co., 1 Daly,148 24 Fethrich v. Dickenson, 22 How. 248 23 Fish V. Mayor of Rochester, 6 Paige, 272 143 Fitch V. Commissioners of Kirk- land, 27 Wend. 133. .109. 151, 287, 291 Fletcher v. Auburn, etc., B. B. Co.,25 Wend. 463 16-17, 88 Fonda v. Bnrst , 3 Keyes, 48 351 Fort Plain Bridge Co. v. Smith, 30 N. Y.44-47 265, 312 Foshay v. Glen Haven, 25 Wis. 288 303 Foster V. Juniati Bridge Co., 4 Harr. 393 237 Fowler v. Lansing, 9 Johns. 349. . . 310 Fowler V. Mott, 19 Barb. 204 ...3, 25 Fowler V. Westervelt,40 Barb. 874. 117 Frasier v. Town of Tompkins, 30 Hun, 168 53 Freeman v. Cornwall, 10 Johns. 470 . . 135 French v. Camp, 6 Shepl. (Me.) 438 29 Fuller V. FuUerton, 14 Barb.:59 ... 34 Furman Street, Matter of, 17 Wend.649 361 G. Galatlan V.Gardner, 7 Johns. 106.. 41 183 Gale V. N. Y. C. B. K. Co., 76N.T. 594 89 Gallatin v. Loucks, 21 Barb. 578 . . 220 Gardner v. Commissioners of Warren, 10 How. 181; 12 Barb. 219 219 Garlinehouse v. Jacobs, 39 N. Y. 303,305 46,49,51,105, 237 B Page. Gidney v. Earl, 12 Wend. 98... .355, 362 Gittrel v. Columbia Turnpike Co. 1 Johns. Cases, 107 207 Goodtitle v. Alker, 1 Burr. 133.. . . 356 Gould V. Booth, 66 N.Y. 62 60,100,117 Gould V. Glass, 19 Barb. 195, 199 . . 150 190, 349, 350 Grant v. City of Brooklyn, 41 Barb. 384 278, 317 Graves v. Otis, 2 Hill , 470 143 Greene v. ^f. T. C. R. R. Co., 13 Abb. N.C. 124 303 Griffith V. MoCullum, 46 Barb. 561 305 311 GriBwold v. BuUer, aT. & C. 673.. 205 H. Haigbt y. City of Keokuk, 4 Iowa 199 22 Hallock V. Woolsey, 23 Wend. 328 Ham V. Silvernail,7Hun, 33 Hamilton y. White, 5 N. Y. 9.... Hammack v. White, 11 C. B. (N. S.)588 Hammond v. McLachliD,l Sandf. 323 359,360, Harlow v. Humiston, 6 Cow. 189.. Harpell V. Curtis, 1 E. D. Smith, 78 Harrington v. People, 6 Barb. 167 170 167 364 318 361 173 301 317 150 flarris v. Thompson, 9 Barb. 350. . Harris v. Whitney, 6 How. Pr. 145. narrower v. Betson, 37 Barb. 301. Hart V. Brooklyn, 41 Barb. 381. . . Hart V. Mayor of Albany, 9 Wend 584; 3 Paige, 313 ...294, Hayes v. N. Y. Cent., etc., E. R. Co.,9Hun,63 Hay ward v. Mayor, etc., 7 N.Y. 314 Heacock y. Sherman, 14 Wend. 58. 159, 205 302 214 311 312 278 294, 311 14 46 13 Heath v. Barman, 49 Barb. 496.... Heath, Ex parte, 3 Hill, 42; 4 E. D. Smith, 430 30 Hegan v. Eighth Avenue R. R. Co., 15 N. Y! 380 23, 316 Henderson v. N. Y. Cent. R R. Co., 17 Hun, 344 1«, 20 Herrick v. Stover, 5 Wend. 580.170, 374 Herring v. Fisher, 1 Sandf 344 .. 359 Hewiston v. City of New Haven, 37 Conn. 475; s. C, 9Am. Rep. 343 279 Hewitt V. Watkins, II Barb. 409 . . 75 Hickok V. Hine, 23 Ohio St. 623 ; 13 Am. Rep. 255.. 28 Hickok V. Trustees of Platts- burgh, 16 N. Y. 161 6,49, 53 Hickox V. Thurston, 7 Lans. 421.. 333 Higgins V. Reynolds, 31 N. Y. 161. 26 Hill V. Supervisors of Livingston, 12N.Y.53 237,240 Hines V. City of Lockporfc, 50 N. Y.238 54 Hobart v. Milwaukee City R. R. Co., 27 Wis. 194; 9 Am. Rep. 461 . 22 Table op Cases. Pase. Holaday v. Marah, 3 Wend. 142.77, 355 Holdane v. Trustees, 21 N. Y. 478, 686 351, 352 Holmes v. Seeley, 19 Wend. 507... 366 367 Hooker v. Utioa, etc., Turnpike Clo., K Wend. 371 356 Houck V. Wachter, 34 Md. 265 ... . 312 Hover v. Barkerhoof, 44 N. Y. 113 47, 50 Howard v. Robbina, 1 Lans. 63 .. 305 Hume V. Mayor of N. Y., T4 N. Y. 264 279,295, 302 Hunter v. Trustees, 6 Hill, 40". ... 348 Bussner v. Brooklyn City E. R. Co., 30 Hun, 409 21,304 Hutson V. City of New York, 5 Sandf. 289,315 49, 51 HutsoD V. Mayor, etc., 9 N. Y. 163 278 Hyatt T. Bates, 35 Barb. 308 106 Hyatt V. Trustees of Rondout, 44 Barb. 385, 391 45,53, 112 I. Inlay v. TTnion Branch E. E. Co., 26Conn.249 15 In re Williani and Anthony Streets, 19 Wend. 678 225 Ireland v. Oswego, etc.. Plank Eoad Co., 13N. Y. 526,531. 13,46, 112 Itvlnv. Fowler, 5 Bob. 482 312 Irvln V. Wood, 4 Rob. 138; s. o. , 5 id. 482 302 Isaacs V. Third Avenue E. E. Co., 47 N. Y.122 320 Jackson v. Hath&way, 15 Johns. 447, 453 197,354, 359 Jansen t. Ostrander, 1 Cow. 670 . . 34 Johnson v. City of Lowell, 12 Allen (Mass.), 278 284 Jones V. Boston, 104 Mass. 75 ; S. c, 6 Am. Eep. 194 879 Jones V. Chantry, 4 T. & C. 286 . . . 305 Jones V. City of Utica, 16 Hun, 441 56,57, 180 Jones V. Cowman, 2 Sandf. 234 .. . 359 Jonesv. Sheldon, 50 N. Y. 477 328 Judges Oneida C. P. v. People, 18 Wend. 96 j 104 K. Kane v. People, 3 Wend. 363 256 Kellogg v. Thompson, 66 N. Y. 88. 117 Kelsey v. King, SS How. 39. .. .8, 9, 248 357 Kennard v. Burton, 25 Me. 39 317 Eeeler v. Frost, 22 Barb. 400 213 KillineerT. 42d St. R. R. Co., SO N.y!206 21 King V. Olamorganshire, 2 East, 356 236 Kelley v. Horton, 2 Cow. 424 217 King V. Russell, 6 East, 427 297 Kings Co. Elevated R. Co., Matter of, 82 N. Y.95 16 Kingston Mut. Ins. Co, v. Clark, 33Barb,196 34 Page. L. Lambert V. Hoke, 14 Johns. 383 .. 374 Lament V. Haight, 44 How. 1 101 Lamiinv. Commissioners of Cam- bridge, 2 Calnes, 178 152 Lancaster v. Richardson, 4 Lans. 136 355 Lane v. Gary, 19 Barb. 537 289 Lansing v. Caswell, 4 Paige, 519, 523 154,155,157,158,208 Lansing v. Smith, 8 Cow. 152,153. . 302 312 Lawton v. Commissioners of Cam- bridge, 2 Caines, 179 170, 210 Lapham and Rice, 55 N. Y. 472 .. 248 Leavitt V. Thompson, 52N. Y. 62. 328 333 337 Ledyard v. Ten Byok, 36 Barb. 102'. 4 Lee V. Parry, 4Denio, 125 213 Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 Rawle.24. 237 Leigh V. Westerveit, 2 Duer, 618. . 302 Lewis Street, 2 Wend. 472 381 Lexington Av., Matter of, 5 T. & cm 218 Littiejohn v. Richardson, 32 N. H. 59... 303 Livezey v. Philadelphia, 64 Penn. St. 106; 3 Am. Rep. 578 237 Livingston v. Mayor, etc., 8 Wend. 85 361 Longendyck v. Anderson, 59 How. 1 368 Lozierv. N. Y. Cent. R. R. Co., 42 Barb 465 20 Luther v. Worcester, 97 Mass. 268. 284 Lyman v. Arnold, 2 Mason, 195. . . 363 M. McCamus v. Citizens' Gas-light Co., 40 Barb. 380 302 McCarthy v. Syracuse, 46 N. Y. 194 276, 305 McCarthy v. Whalen, 19 Hun, 503 7 150, 152, 183 MoDermott v. City of Kingston, 19 Hun, 198 302 MoFadden v. Kingsbury,!! Wend. 667 40,112,114, 115 MeOinity v. Mayor, etc. , 5 Duer, 674 278 McGuire v. Spenoe, 91 N. Y. 803. 53 McMabon v. Second Ave. R. R. Co., 73N Y. 231 : 24 McMannis v. Butler, 51 Barb. 436; 49 id. 176; SKent, 451 350, 351 McMillin v. Oronin, 75 N. Y. 474 . 385 Mahady v. Bushwiok R. R. Co., 91N. Y. 148 22,303 Mahon V. N. Y. Cent. R. E. Co., 24N. Y.658 16, 18 Marblev. Whltney.ZSN. Y.29r.. 150 151, 152, 154, 172, 182, 183 Mars V. Manhattan Real Eat. Ass., 89N. Y. 498 22 Mather v. Crawford, 36 Barb. 564. 101 228 Matter of Flatbush Ave.,1 Barb. 19 Matter of Freeholders of Ironde - quoit, 68N. Y. 376 253 Ta^blb of Cases. XI Page. Matter of Purman Street, 17 Wend. 619 225 Matter of Hamilton Av., 14 Barb. 405 19 Matter of Iiezington Av., 5 T. & C.436 221 Matter of P. P. & C. K. K. Co. , 67 N. T. 371 .". 17 Matter of Pet. , etc. , 59 N.Y. 316. 251 Matter of Petition of Khinelander, etc.,68N. Y.105 9 Matter of Prospect Park and C.l. R. K. Co., 16 Hun, 261 18 Matter of Twenty-ninth Street, 1 Hill, 189 351 Mayor, etc. , v. Furze, 3 Hill, 612 . 278 Mayor, etc., v. Second Ave. B. R. Co., 31 Hun, 241 24 Mayor v. Troy and Ijansingbur^h R. E. Co., 3 Lans. 270; 49 N. Y. 657 24 Mercer Street, 4 Cow. 542 360 Milburn v. City of Cedar Rapids, 12Iowa, 246 22 Milburn v. Fowler, 27 Hun, 506.. 304 Milhaw T. Sharp, 15 Barb. 210 : 27 St. Y. 611 8, 9, 20, 357 Miller v. Brown, 56 N. Y. 383 151 Miller v. Garlock, 8 Barb. 153.... 365 Mohawk, etc., v. Archer, 6 Paige, 83 157, 369, 372 Moore v. Brooklyn City B. B. Co., 31Hun, 90 24 Moore v. Jackson, 2 Abb, N. C 211 806 Moran v. Lydecker, 11 Abb. N. C. 298 23 Moran vi'McClearusi 63Barb.is5! 117 Morey v. Newf aue, 8 Barb. 645. 51, 237 Morgan v. King, 35 N. Y. 460. 26, 28, 29 Morse v . Richmond, 41 Vt. 435 .. . 303 Mosey v. City of Troy, 61 Barb. 580 284 Munson y. Hungerf ord, 6 BaTb.'265. 28 Mott T. Commissioners of Rush, 19 Wend. 640; 2Hill,472. 219, 287, 289 Mott V. Mott, 68 N. Y. 246. ... 359, 361 N. New Albany, etc., R. B. Co. t. O'Daily, 12 Ind. 651 22 New York Central, etc.,R. B. Co. V. People, 12 Hun, 195 78 New York Life Ins. and Trust Co. v. Milnor, 1 Barb. Ch. 354 367 Niagara F.B. Co. v.Bachman, 66 N. Y. 261 351 Nolanvllle Turnpike Co. v. Baker, 4 Humph. 10, 315 U Northern Lumber Co. T.Smith, 15Barb.365 90, 357 Northrupv. Burrows, lOAbb.365.. 305 Noyesv. Chapin, 6 Wend. 461. „. 154 O Oswego v. Oswego Canal Co., 6 N Y. 257, 262 184,352 Outerbridge v. Phelps,58How. 77. 367 p. Palmer v. Fort Plain, etc.. Plank Boad Co., 11 N. Y. 376,390.90,99, 102 Page. Palmer v. Yandenburgh, 3 Wend. 197 101 Parker v. Adams, 12 Mete. 415 317 Parker V. Van Houten, 7 Wend. 145, 148 42, 152, 183 Patohln V. Mayor of Brooklyn, 13 Wend. 640 , * 219 Peach V. City of Utica, 10 Hun, 477 279 Fearsall v . Post , 20 Wend . 131 ... . 24 Peck V.Smith 358 Peckham v. Henderson, 27 Barb. 207 223 PeddicordT. Baltimore, etc., B. R. Co. , 34 Md. 463 22 People V. Albright, 12 Abb. 305 ; 23 How. 306 154, 160, 211, 212 People V. Adsit, 2 Hill, 619 .. 61 People V. Auditors, 10 Hun, 551.. 101 People V. Auditors of Hsopus, 74 N. Y.310 97 People v. Auditors of Little Val- ley, 75 N. Y. 316 97 People V. Baker, 19 Barb. 240... 211 People V. Barber, 12 Barb. 193 .. 210 213 People T. Burton, 65 N. Y. 452 . 208 214 People V. Canal Appraisers, 33 N. Y. 461 27 People V. Cline, 23 Barb. 197. 106, 167 People V. Champion, 16 Johns. 61. 202 215 People V. Collins, 19 Wend. B6; 7 Johns. 549 104, 105, 152, 172 People V, Commissioners, 57 N. Y. 549 202 People V. Commissioners of Brookfleld, 2 node B. 54 219 People V. Commissioners of Cherry Valley, 8N. Y. 476..105, 210 211, 213 People v. Commissioners of Dut- chess, 23 Wend. 360 221 People V. Commissioners of Greenburgh, 67 N. Y. 549 .. .. 156 People V. Commissioners of Greenbush, 24 Wend. 367 192 People V. Commissioners of Hud- son, 7 Wend. 474 46, 51, 237 People V. Commissioners of Mil- ton, 37 N. Y. 360 160, 171 People T. Commissioners of Pala- tine, 63 Barb. 70 197 People V. Commissioners of Read- ing, IT. &C. 193 199 People T. Commissioners of Red- hook, 13 Wend. 310 152, 170 People V. Commissioners of Salem, 1 Cow. 23. 104, 151, 170,2ia, 213 People V. Commissioners of Sew- ard, 27 Barb. 94. 106, 166, 167, 220 People V. Commissioners of Watertown, 7 How. 28... 218, 215 People T. Conner, 46 Barb. 333.. 209 224 People T. Contracting Board, 27 N. Y. 378 104 People V. Corporation of Albany, 11 Wend. 539 51 People V. Cortelyou, 36 Barb. 164. 203 210, 291 xu Table of Cases. Page. People T. County Judge of Dut- ; How. 331 203 People v. Covert, 1 Hill, 674 39 People V. Cowes, 3 T. & C. 766 . 157 People v. Crozier, 13 Abb. 445... 208 People V. CuDoingham, 1 Denio, 62f 295, 312 People V. Dewey, 3 T. & C. 638. . 75 People V. Diver, 19Hun,263.. 170, »12 People V. Eldridge, 3 Hun, 541.. 164 People V. Eggleston,13How.l23. 149 189, 2U People V. Ferris, 41 Barb. 144, 209, 214 People V. Finger, 24 Barb. 341... 105 People V. PishllU & B. T. Co., 27 Barb. 445 80 People V. Flake, 14 How. 547 ... 206 People V.Fredericks, 48 Barb. 173. 124 People V. Freeman, 52 N. Y 258. 303 People V. Goodwin, 5 N. Y. 568. . . 154 160, 220 People V. Griswold. 67 N. Y. 59. .. 189 199 People V. Hall, 15 How. Pr. 78 . . . 127 People V. Harris, 63 N. Y. 391 210 People V. Heath, 20How.304 221 People V. Hillsdale, etc., Turn- pike Co., 23 Wend. 254 257 People V. Horton, 8 Huni347 156 People V. Hyuds, 30 N. 1.470.... 151 166, 171, 172, 193 People V. James. 16 Hun, 426 321 People V. Jeffords, 4 T. & C. 398. . . 104 172 People V. Jones, 2 T. & C. 360 ; 63 N. y. 306 189,192, 216 People V. Judges of Cortland, 24 Wend. 491, 921 40, 42, 203 Peoplev. Judges of Dutchess, 23 Wend.360 155,161,177,213 People T. Judges of Herkimer, 20 Wend.186 168,207, 208 People V. Judges of Suffolk, 24 Wend.249 203 People V. Kelley, 35 Barb. 444 . ... 219 People V. Kerr, 27 N. Y. 188, 196, 202 8,19,21,348,357 People V. Kingman, 24 N. Y. 559 . 144, 157, 158 People V. Knlskern, 54 N. Y. 62. . . 205 210, 215 People T. Lambler, 5 Denio, 9..3, 4, 7 Peoplev. Landretb, 4T. &C.133.. 218 People V. La wson, 17 Johns. 247, 277 41,183, 203 People V. Lewis, 26 How. 378, 381. 230 233 Peoplev. McDonald, 69N.Y. 862. 800 Peoplev. McNeill, 2 T.&C. 140.... 199 210 People V. Martin, 56 How. 516 60 People V. May, 27 Barb. 238 203 People V. Mott, 5 T. & C. 207 234 People V. Met. Telephone & Tele- graph Co., 31 Hun, 596 304 People V. Nichols, 61 N. Y. 470. . . 189 190 People V. N. Y. 0. E. E. Co., 74 N. Y. 78 . 88 People vVn.' Y.' & n'.'h.' R. R Co.i 89N. Y.434 304 People V. Osborn, 20 Wend. 188. . . 207 Page. People V. Pierce, 38 Barb. 133 112 People V. Pike, 18 How. 70 ...188, 216 People V. Eobertson, 17 How. 74.. 150 168, 190 People V. Eoblnson, 25 How. Pr. 346. 221 People V. Sandman, 12 Hun, 165.. 33 People V. Salem, 1 Cow. 23 219 People V. Schell, 6 Laos. 352 203 People V. Scott, 8 Hun, 556 150 People V. See, 29 Hun, 216 154 People V. Sherman, 16 How. 576.. . 210 People V. Smith, 21 N. Y. 595; 7 Hun, 17 167, 287 People V. Sly, 4 Hill, 593 64 People V. Streveli, 87 Hun, 218.. 42, 154 People V. Supervisors, 4 Hill, 20... 124 People v.Supervisors of Allegany, 36H0W.74 168 People v. Supervisors of Dutchess, lHilI,50 .'239,240 People V. Supervisors of Oneida, 19Wend.lfe 225,233 People V. Supervisors of Orange, 20Hun, 196 218 People V. Supervisors of Queens, 18 Hun, 25 185 People V. Supervisors of Eioh- mond, 20N.Y. 252 34, 190, 233 People V. Supervisors of St. Law- rence, 5 Cow. 592 233 People V. Supervisors of Ulster, 34N.Y. 268 230, 233 People V. Supervisors of West- chester, 11 Barb. 446 233 People V. Tall man, 36 Barb. 222... 207 2^3 People V. Taylor, 34 Barb. 481..388, 370 People V. Temple, 27 Hun, 128.... 154 People V. Third Avenue B. R. Co., 30HOW.121 20 People V. Vail, 1 Cow. 589; 2 id. m 167 People v.Van Alstyne. 3 Keyes, 35. 204 210, 218, 220, 231 People V. Van'Horn, 18 Wend. 515 84 People V. Wallace, 4 T, & C. 438. . 218 People V, Weaver, 3 T. & C. 793. . . 221 People V. White, 59 Barb. 666 234 People V. WiUlams, 36 N . Y . 441 . . 36 66. 109, 151, 171, 193 People V. WUbrook, 27 Hun. 698. . 62 People, ex rel. O'Eeilly, v. Mayor of New York, 69 How. 277 313 People, ex rel. Mitchell, y. Law- rence, 64 Barb. 589 227 Perkins v. Perkins, 44 Barb. 134. . 74 Perley V. Chandler, 6 Mass. 454... a'u 356 Peters v . Kendal , 6 Barn . & C . 703. 25 Pet., etc., Matter of, 59 N. Y. 316. 226 Phiferv.Cox. 21 Ohio St. 248 865 Phillips V. Schumacher, 10 Hun, 405 800, 287 Pierce v. Dart, 7 Cow. 609 ....312, 313 Plamp V. Long Island El. R. Co., 10 Barb. 16 9 Plummerv. Sturtevant, 82 Me. 325. 144 Post V. Pearsall, 20 Wend. 111. .. 349 Potter V. Benniss, 1 Johns. 215. .. . 135 Potter V. Davis, Hill & D. Supp. 364 ^'.. 102 Table op Cases. xiu Page. Pratt V. Bullalo City E. B. Co., 19 Hua,30 20,360 .Pratt V. People, 13 Hun, 664 153 Presbyterian Churcli t. Auburn, etc., R. B. Co., 3 Hill, 567. . . 17-20 Prince V. Twenty-ttiircl Street B. R. Co., lAbb. N. C. 63 303 Prindle v. Anderson, 19 Wend. 391 198 R. Eadcliff's Executors v. Mayor erf Broolslyn, 4N.Y.Z03 143 Eadway v. Briggs, 37 N T. 256. . . 3 Bamsden t. Mauchester, etc., Railway, lExoh. 723 22 Randall v. Cheshire Turnpike Co., 6N. H 147 257 Rector v. Clark, 13 Hun , 1S9 205 Rector v. Pierce, 3 T. & C. 416 47 Benwlok v. Morris, 3 Hill, 621 ; s. C.,7id. 575 302 Bequa v. City of Rochester, 45 N. T. 139 .53, 236, 353 Eexf Old V. Knight , 11 N . Y. 308 . . 14 Rexfordv. Marquis, 7 Lans. 249. 364 Reg. V. Burney, 31 Law Times (N. S.) 828; 11 Alb. Law Jour. 167.. 6 Rex V. Carlisle, 6Carr. & Payne, 636 ' Bex V. County ol Salop, 13 East, 95 3 Rex V. Jones, 3 Carapb. 230 300 Bex V. Kerrigan, 3 M. & S. 536. . .'. 836 Rex V. Lloyd, 1 Camp. 360 5 Bex V. Lyon, 3 Dow. & R. 497 ... . 3 Bex V.Severn & Wye. Railway Co., 2 Barn. & Aid. 646 13 Rice V. Milks, 7 Barb. 337 ....135, 137 Ring V. Uohoes, 13 Hun, 76 279 Binehart V.Young, 2 Lans. 354.... 119 Bhinelander, etc.. Matter of. Petition of, 68 N. Y. 105 11 Bobinson v. Chamberlain, 34 N. Y..380 25 Bobinson v. N. Y. & Erie B. B. Co., « Barb. 513 14 Bockwell v. Nearing, 35 N. Y. 312. 330 Rogers, Ex parte, 7 Cow. 526 213 Eogers v.Runyan, 9 How. 348.309, 214 Rose v.Depue, 1 T. & C. 16 .. . .. 88 Bue V. Sprague, IJohns. 510 ... 310 Rugby Charity V. Merriweather, llBast,375 » S. Sage V. Barnes, 9 Johns. 365. . .... 311 Salisbury v. Herohenroder, 106 Mass. 458; S. C, 8 Am. Eep. 354 279 Saunders v.Townsend, 26 Hun, 308 7 Seaman V. Mayor of N. Y., SON. Y. 239 29 Seneca Road Co. v. Auburn, etc. , E. B. Co ,5 Hill, 170 18 Seventeenth Street, 1 Wend. 262 . 360 Sexton V. Zatt, 44 N.Y. 430... 277, 278 Shawv. Crawford, 10 Johns. 236. 28 Simmon'son v. Stellenmerf, 1 Edm. 194 316 Page. Sipperly V. Troy & Boston Rail- road Co. , 9 How. 83 ... 100 Sizer v. Devereux, 16 Barb. 160 .. 360 Smiles V. Hastings, 34 Barb. 44... 363 Smith V. Dygert, 12 Barb. 613 ... . 316 Smith V. Ferris, 6Hun, 553 222 Smith V. Homer, 7 Barb. 416 193 Smithv. Smith, 2Piok.321. ...*.. 318 Smith V. Wright, 24 Barb. 170; 27 id. 63 .50, 51 Spencer V. Weaver, 20 Hun, 450.. 365 Stanton v Springfield, 12 Allen (Mass.), 566 283 Stewart v. Wallis,30 Barb. 344.151 172 Stone V. Hubbardston, 100 Mass. 49 303 Storrsv. Utica, 17 N. Y. 104 278 Story V. N. Y. El. B. E. Co., 90 N.Y. 132 31,24,303,304 Street Bailway v. Ciimminsville, 140hloSt.5a3 22 Strickland V. Woolworth, 3 T. & C 286 305 Strong V. city of Brooklyn, 68 N. Y. 2 21 St. John V. Mayor of New York, 3B0SW. 483 303 St Vincent Asylum v. City of Troy, 13 Hun. 317 198 Smyles v. Hastings, 23 N. Y. 317, 234; 24 Barb. 44 366, 368 Snyder v. Trumpbour, 33 N. Y. 355 156,169, 173 Snyder V. Plass, 28 N. Y. 465... 156, 173 Spioer v. Slade, 9 Johns. 359 387 Sullivan v. Scripture, 3 Allen, 564 318 Suydam V. Smith, 52 N. Y. 383... 12 Swan V. Williams, 3 Mich. 424. .. . 14 Sweet V. City of Troy, 6 Barb. 230 225 T. Talraadge v. Hunnting, 39 N. Y. 447 42,174, 288 Taylor v. Goodwin, L. B., 4 Q. B. D 228 333 Taylor v. Hipper, 5 T. & C. 173. . . 353 Taylor v. Peckham, 8 E. I. 349; s. C, 5 Am. Eep. 578 279 Taylor V. Whitehead, Doug. 745.. 5 Terpening v. Smith, 46 Barb. 308. 207 Thatcher v. Dusenberry, 9 How. 32 106 Thayer v. Lewis, 4 Den. 269 103 Theall V. City of Yonkers, 31 Hun, 265 : 98,246 Thompson v. Allen, 7 1.ans. 459. . 99 144, 311 Thompson v. Matthews, 2 Edw 313 238 Tifft V. Alley, 3 T. & C. 784 2ol Tifft V. City of Buffalo, 83 N. Y. 204 200, 357 Todd V. Todd,5 T. & C. 531 63 Tompkins v. Hodgson, 4 N. Y. Sup.435 8 Town of IMshkill v. FishkillB. Turnpike Co., 23 Barb. 634 90 XIV Table of Cases. Page. Town of Galen v. Clyde, etc., 27 Barb. 543 51 Town of Gallatin v. Loucks, 21 Barb. 578 166 Townsend v. Susquehanna Turn- pike Co., 6 Johns. 90 856 Troy and Boston B. K. Co. t. Lee, 13 Barb. 164 225 Troy & Boston R. E. Co. v. North- ern Turnpike Co., 16 Barb. 100 . 19 Trifstees, etc. v. Walsh, 57 111. 363 159 Trustees of Angelica v. Morse, 56 Barb. 380 133 Trustees of Jordan v. Otis, 37 Barb.50,51 7,350,353 Trustees of Pres.Soc. in Waterloo V. Auburn & Rochester E. E. Co., 3Hill, 567 16 Tucker V. Kankins, 15 Barb. 471.. i63 171 Twenty-ninth Street, 1 Hill, 189.. 361 U. United States t. Monticello, 13 Am.Eep.262 28 V. Van Alstyne v. Freday, 41 N. T. 174, 177 101 Van Amrlnge v. Barnett, 8 Bosw. 357 197 Van Bergen v. Bradley, 36 N. Y. 316 171 Van Brunt v. Ahearn, 13 Hun, 388. 312 Van Eensselaer v. Van Alstyne, 3 Abb. Ct. of App. Dec 167 Vedder v. Vedder, 1 Den. 257 . .. 312 Villaae of Fulton T. Tucker, 5 T. &C 621 280 Village of Lancaster v. Eichard- son, 4Lans. 136 274 Voeel V. Mayor, etc., of N. Y., 92N.T.10 2-i, 63 W. Wadsworth v. Smith, 2 Fairb. 278 29 Wager v. Troy Union E. E. Co. , 25N. Y.526, 539 17,20,22,358 Walker v. Board of Public Works, 16 Ohio, 540 29 Walker v. Cay wood, 31 N. T. 51 . . 12 42, 174, 182, 288 Walker V. Moseley, 5 Denio, 102.. 135 Wallace v. Mayor, etc., of N. Y., 2Hilt. 440 276, 283 Wardv. Davis 349 Ward V. Warren, 82 N. Y. 265 366 Warner v. New York Central E. E.Co.,44N.Y. 465 317 Page. Watrous T. Southworth, 6 Conn. 305 358 Webby. Albertson, 4Barb. 55.... 102 Webber v. Eastern R. E. Co., 2 Mete. 151 359 Weed V. Village of Ballston, 76 N. Y.335 54, 317 Welch V. Cook, 7 How. 282 96 WeUing V. Judge, 40 Barb. 193.... 317 Welsh V. Lawrence, 2 Chitty, 262. 318 Wendell v. Mayor of Troy, 39 Barb. 329,335 53,112 Wescv. McGunn, 48 Barb. 198.... 373 West V. Trustees of Brookport, 16N. Y. 161 49 Wetmore v. Atlantic White Lead Co.,37Barb. 70 4 Wetmore v. Tracy, 14 Wend. 250.. 287 310 Whalen t. Gloucester, 4 Hun, 24. 278 WhitaUer v. Eighth Avenue E. E. Oo.,51N. Y.295 23, 320, 321 Whitbeck v. Cook, 15 Johns. 483 355 White V. Cincinnati, 6 Peters, 432. 8 White V. Crawford, 10 Mass. 183.. 363 Wiggins V. McLeary, 49 N. Y. 346. 368 Wiggins v.Talmadge, 11 Barb. 457. 6 Wilbrand v. Eighth Avenue E. E. Co., 3Boaw. 314 23 William and Anthony Streets, in re, 19 Wend. 678 203 Williams v. Kenny, 14 Barb. 629. 357 Williams v. Natural Bridge Plank Eoad Co. , 21 Mo. 680 22 Williams r. N. Y. Central R. E. Co.,16N.Y.97 9,15,16, 88 Williams v. People, 36 N. Y. 443.. 162 WiUiamsv. Safford, 7 Barb. 309.. 4 365, 376 Willoughby V. Jeuks, 20 Wend. 96 355, 857 Wilson V. Mayor of New York, 1 Denio, 599 51 Winshipv. Enfleld, 43 N. H. 199.. 303 Wohler y. Buffalo, etc., E. E. Co., 46 N. Y. 686 351 Wolfe V. Covington, etc., E. E. Co.,15B. Monr. 404 22 Wood V. City of Wllliamsburgh, 46 Barb. 601 358 Wood V. Veal, 5 Barn. & Aid. 454. 5 Woodyer v. Hadden , 5 Taunt. 125. 6 Woolsey v. Tompkins, Zi Wend. 334 170, 214 Worster v. Forty-second St. E. E. Co., SON. Y. 203, 205 24 Wynkoopv. Burger, 12 Johns. 222. 364 „ 365 Wyman v. Mayor, 11 Wend. 486, 487 361, 361 MANUAL OF HIGHWAY LAWS. CHAPTEK I. WHAT ARE HIGHWAYS. Pefinition of highway. Extra viam. Cul cle sac. Streets. Railroads ia highways. Horse railroads. Ferries. Canals. Bailroads. I Navigable rivers. A highway, at common law, is a right of passage for the public in general, without distinction. The term "highway" extends to all public ways, and includes carriageways, horseways, footways, streets, turnpike and plank roads, railroads, ferries, canals and navigable rivers. These different- kinds of highways are distin- guished from each other only by the mode of their use, the material of which they are composed, or by the manner in which the costs of construction and maintenance are defrayed. Public piers or landing places are highways {Bad- way V. Briggs, 37 N. Y. R. 256; People v. Lambier, 5 Denio, 9 * Fowler v. Matt, 19 Barb. 204 ; Matter of City of BrooJclyn, 73 N. Y. R. 179) : so also are public squares, parks, etc. In the statute law of this state the word " road " is used synonymously with "highway." {Brace v. JSr. T. Central B. B. Co., 27 N. Y. R. 269.) The size of the way is not material ; a public foot- way or bridleway, is a highway for foot passengers or horse passengers {Bex v. County of Salop, 13 East, 95), and a public carriageway is not restrained be- cause all carriages cannot pass and repass. {Bex v. Lyon, 3 Dow. & R. 497.) 4 Highway Ijaws. There was formerly a way termed driftway, over wMch cattle were driven ; but this is now included in the term "highway," since it is well settled that a public highway is open to cattle being driven from one place to another. {Ballard^. Dy sow, 1 Taunt. 285.) In this state the public have no highway along the margins of the navigable rivers and lakes, unless such a right has been acquired by express grant or by pre- scription. {Ledyard v. Ten EycJc, 36 Barb. 102.) And, although a navigable river is a highway, yet, if an iadividual, having authority from the legisla- ture, erect a wharf on the bank, such wharf is strictly private property, although it extend into the river and diminish the breadth of the stream, and the public cannot claim free access to it. ( Wetmore v. Atlantic White Lead Co., 37 Barb. 70.) However, if a highway terminate in a navigable river, and the owner of the fee on the bank buUds a bulk-head in the river in front of his land and the street, and fills in the iutervening space, the highway is not thereby cut off from the river, but continues over such bulk- head to the water. {People v. Lamhier, 5 Denio, 9.) Extra Diam. — The right of the public to pass along a highway is, to a limited extent, paramount to the rights of adjoining owners ; for it is weU* settled that if a highway be impassable or founderous, or even dangerous or incommodious, from being out of repair, the public may pass for the time being over the adja- cent land ; and it makes no difference whether it be sown with grain or not. If the adjacent land be inclosed the traveler may remove so much of the fence as wiU enable him to pass, doing no unneces- sary injury. (3 Kent, 424 ; Williams v. Safford, 7 Barb. 309.) But this right of going upon adjoining lands, applies to public and not to private ways. What abe Highways. 5 {Taylor v. Whitehead, Doug, 745 ; Bullard v. Harri- son, 4 M. & S. 387.) Uninclosed lands, adjacent to a Mgliway, are considered so far dedicated to public use that an action will not lie, at the suit of the owner, against any person traveling thereon. {Cleveland v. land, Orleans, Kings, Oneida, New York and Steu- ben. This does not permit the use of steam on such roads. (Laws of 1879, chap. 214.) What abb Highways. 19 In ascertaining what compensation ought justly to be made to a turnpike company for granting to a rail- road company an easement or right of way across their road, it should be assumed that the railroad company would, as required by law, restore the turn- pike to such state as not unnecessarily to impair its usefulness. The consideration that the business of the turnpike would be diminished by the construction of a railroad along the same general line of travel should be disregarded. "Every public improvement, from the necessity of the case, must affect some prop- erty favorably and some unfavorably . When this effect is merely consequential, the injury is damnum absque injuria. If no vested rights have been vio- lated, and the turnpike company still enjoy all the rights and privileges secured to them by their char- ter, the depreciation of their property does not fur- nish a legal ground of remuneration. ( Troy & Bos- ton It. JR. Co. V. Northern Turnpike Co.., 16 Barb. 100 ; Matter of Hamilton Avenue, 14 id. 405.) But compare Matter of Flafbush Avenue (1 id. 286.) In the city of New York it is held, that the fee of most of the streets is in the city, in trust for the pub- lic use of all the people of the state, and is under the unqualified control of the legislature, and that, therefore, any appropriation of them to a public use — as for a railroad — by legislative authority, is not a taking of private property so as to require compen- sation to the city or to adjoining proprietors. {Peo- ple V. Kerr, 27 N. Y. E. 188.) Nor can an adjoin- ing land-owner on such street maintain an action to restrain the construction of a railway permitted by legislative authority, because of special damage to him. {Elevated Railway Cases, 3 Abb. N. C. 301 ; in Court of Appeals, etc.) But the corporate 20 Highway Laws. authorities of the city of New York have no power to confer upon individuals by contract, for an indefi- nite period, the franchise of constructing and operat- ing a railroad in the public streets for their private advantage. Their power in respect to the control and regulation of the streets is held in trust for the public benefi^t, and cannot be abrogated nor delegated to private individuals. So that a resolution of the common councD authorizing private persons to con- struct and operate a railroad upon certain conditions, without limitation as to time, or reserving a power of revocation, is void, because it would deprive the cor- poration of the power to control and regulate the use of the streets. {Milhau v. Sharp, 27 N. Y. E. 611 ; Davis V. Mayor of New TorJc, 14 id. 606.) Nor can the common council of the city of New York authorize the extension of a railroad in that city, irrespective of any legislative grant, except, perhaps, when it may be necessary to the enjoyment of the principal legal grant. {People v. Third Ave. B. R. Co., 30 How. 121.) Where a railroad company use a street or highway without making compensation to the owner of the fee, or without his license, the latter may maintain an ac- tion of ejectment to recover the street, or an action of trespass for damages. { Wager v. Troy Union R. B. Co., 25 N. Y. R. 562 ; Lozi&r v. N. T. Cent. R. B. Co., 42 Barb. 465 ; Presbyterian Church v. Auburn, etc., B. B. Co., 3 Hill, 667.) An injunction will also be granted in a proper case. ( Craig v. Bochester City, etc., B. B. Co., 39 N. Y. R. 404 ; Pratt v. Buffalo City B. Co., 19 Hun, 30 ; Henderson v. N. T. Cent. B. B. Co., 78 N. Y. R. 423.) And in Broiestedt v. South-Side B. B. Co. of L. I. (55 N. Y. R. 220), it was held that the possession of a highway by a railroad company is subordinate to the rights of the owner of the soil, even when the possession is under statutory license ; and a deed of the soil by such owner to a third per- son is not void by adverse possession. But where a railway company is authorized to appropriate lands for its own use, for the purposes contemplated by its charter, it is not lawful to add to such use that for street and highway purposes. So where a railway company, under legislative What aee Higuwats. 21 enactments, conveyed a strip of land, the use of •which had been acquired by it under its charter, to the city of Brooklyn, in fee absolute for the purposes of a public street forever, held, that the owners could maintain ejectment against the city. {Strong v. City of Brooklyn, 68 E". Y. K. 2.) By Laws 1882, ch. 140, it is thus provided: It shall be lawful for any individual, company, association or private corporation to build and operate, solely for the purpose of conducting the business of such individual, company, associa- tion or corporation, a railroad on or across any highway; pro- vided that consent in writing, and under seal, of the owners of all lands on which any such railroad may be built, abut- ting a highway, be first obtained; and provided further, that the consent in writing of the supervisor of the town in which any railroad proposed to be built under this act is located be also first obtained ; and provided further that this act shall not apply to any city or village ; and provided further, that no such railroad shall be so located, graded, built or operated as to interfere with' or obstruct the traveled part of any highway, or interfere with or obstruct the public use of any highway, or any highway intersecting the same. Rights of abutting owners. — An abutting owner, who has no interest in the fee of the street, cannot maintain any action for incidental injuries caused by the laying of a rail- way in the street. (Kellinger v. Forty -second St. R. R. Co., 50 N. Y. E. 206.) An abutting owner has no special easement or property in the street, except such part of it as is adjacent to and gives access, air and light to his lot. {Moran v. Lydecker, 11 Abb. N. C. 298 ; 27 Hun, 582.) An abutting owner has a right of action for the unrea- sonable use of the street by a street railway. {Story v. N. Y. Elevated R. R. Co., 90 N. Y. E. 122.) A city is liable for damages to an owner of property abut- ting on a street, caused by the turning of a water-course. ( Vogel V. Mayor, etc., 92 N. Y. E. 10.) An abutting owner may not excavate the highway for the benefit of his own premises to the detriment of others, but must respond in damages to one injured. {Mairs v. Manhattan Real Estate Ass., 89 N. Y. E. 498.) A horse railroad properly constructed under authority is not an improper interference with rights of abutting own- ers. (Mahady v. Bushwick R. R. Co., 91 N. Y. E. 148.) An abutting owner may maintain an action against a company unlawfully using steam cars on the street. {Huss- ner v. Brooklyn City R. R. Co., 30 Hun, 409.) 5i2 Highway Laws. Horse railroads. — An effort has been made by some of the courts to draw a distinction between railroads operated by steam and those which are simply operated by horses as a motive power ; and it has been contended that the rules laid down as to the former are not applicable to the latter class of railroads, and that the use of a street for a horse railroad approximates more closely to ordinary highways, and is consistent with the original dedication of such street. (Per Emott, J., in People v. Kerr, 27 N. Y. R. 188.) The question, however, has been decided by the Court of Appeals ; which held that the rule applying to steam rail- roads was equally applicable to horse railroads, and that the laying of a horse railroad in the streets of a city was an imposition of an additional burden iipon the land of an adjoining proprietor covered by such street. ( Craig v. Rochester City, etc., R. R. Co., 39 N. Y. R. 404 ; S. C, 39 Barb. 494; Wager y. 'Troy Union R. R. Co., 25 N. Y. R. 526.) There are some cases, however, that maintain the distinc- tion between horse railroads in the city and in the country. {Milhurn v. City of Cedar Rapids, 12 Iowa, 246 ; Haight V. City of KeohuTc, 4 id. 199 ; Applegate v. Lexington, etc., R. R. Co., 8 Dana, 289; Wolfe v. Covington, etc., R. R. Co., 15 B. Monr. 404.) In Holart v. Milwaukee City R. R. Co. (27 Wis. 194 ; 9 Am. Rep. 461), it was held that the owner of the fee of a public street is not entitled to compensation for the construction and operation of a horse railroad, in the absence of proof of special damages. There are decisions in Ohio, Louisiana, Connecticut, Massachu- setts, Indiana and Maryland to the same efEect. {Street Railway v. Cumminsville, 14 Ohio St. 523 ; Brown v. Duplessis, 14 La. Ann. 842; Elliott v. Fair Haven, etc., R. R. Co., 32 Conn. 579 ; Commonwealth v. Temple, 14 Gray, 75 ; Chase v. Sutton Manuf. Co., 4 Cush. 152 ; New Albany, etc., R. R. Co. v. ff Daily, 13 Ind. 551 ; Peddicord V. Baltimore, etc., R. R. Co., 34 Md. 463.) But the English rule, like that in New York, is that the occupation of a highway by a railroad is the imposition of an additional burden. (Ramsden v. Manchester, etc.. Railway, 1 Exch. 723.) And in Missouri, it has been held that even a plank- road is an additional burden. ( Williams v. Natural Bridge Plankroad Co., 21 Mo. 580.) The constitutional provision heretofore referred to What ake Highways. 23 that "no law shall authorize the construction or operation of a street railroad, without the consent of the owners of half in value of the adjoining prop- erty, etc., or the determination of commissioners confirmed by the Greneral Term of the Supreme Court, etc., applies to horse railroads. (Const., art. 3, § 18.) Turnpike or plank road companies may con- struct horse railroads upon their roads. (Laws 1879, ch. 214.) The public have the right to use every part of a highway for passage; and therefore, where a horse railroad is laid upon and along the street of a city, the public have a right to travel thereon with horses and wagons. [Fettrich v. Dickenson, 22 How. 248.) But a city railroad company is entitled to the unre- stricted use of its rails, for the progress of its cars, within that limit of speed which the law allows them ; and the driver of any other vehicle, who may be upon their track, is bound to use greater care than if upon the common pavement. And ifj through his negligence or willfulness, in this respect, a collision ensues, he should not have damages against the company, even though the latter are also in fault. ( Wilhrand v. Ei^Mh Avenue R. R. Co., 3 Bosw. 314 ; see Regan v. Same, 15 N. Y. R. 380 ; WJiitaker v. Same, 51 id. 295.) A traveler upon a street where there is a street railway , is bound to make way for the cars, and to be ready to do this when necessary. He is bound not only to turn from the track when requested but to keep a watch that he may, when a car is near, permit it to pass without slackening speed. {Adolph V. Central Park, etc., R. R. Co., 76 N. Y. E. 530.) The statute provides that every person who shall wilKully obstruct, hinder or delay the pass- age or running of any car lawfully running 24 Highway Laws. upon any horse or street railroad in this state, shall be deemed guilty of a misdemeanor. (Laws 1879, ch. 474. ) In Massachusetts, the driver of a wagon who occupies the track of a horse railroad, and does not turn off at the request of the conductor of a car, so as to obstruct the passage of the car at its usual speed, is liable to indictment under a statute prohibiting the unlawful and.malicious ob- struction of the road, although he did not get upon the track with the intent of obstructing it. {Commonwealth V. Temple, 14 Giay, 69.) But the right of a horse railroad company to lay its tracks in the street carries with it the obligation to lay the tracks in a proper manner and to keep them in repair. {Fash v. Third Avenue R. R. Co., 1 Daly, 148 ; Worster t. Forty-second Street R. R. Co., 50 K Y. R, 203, 205 ; see, also. Mayor v. Troy and Lansinghurgh R. R. Co., 3 Lans. 270 ; 49 N. Y. E. 657.) And such company is liable to one injured by reason of its non-compliance with such obliga- tion. {McMahon v. Second Avenue R. R. Co., 115 N. x. R. 231.) A horse railroad constructed under legislative authority is proper. {Mahady v. Bushwich R. R. Co., 91 N. Y. R. 148.) But must not use the street unreasonably. (Story v. iV. r. El. R. R. Co., 90 N. Y. E. 122.) A horse railway must keep street in repair not only lying next the rails but between the rails where it has double tracks. {Mayor, etc., v. Second Avenue R. R. Co., 31 Hun, 241.) Commissioners have no power to compel a company to keep a railroad on a highway. {Moore v. Brooklyn City R. R. Co., 31 Hun, 90.) Ferries. — A ferry, though in its nature sui generis, is governed by principles similar to those which govern high- ways. The interests of the public in a ferry are similar to their interests in highways in 'general. 'I'he privilege of landing at either end of a ferry crossing is an easement upon the freehold. Some of the earlier cases held that the owner of a ferry over a navigable river had no right to land or receive freight or passengers on the adjoining bank with- out the owner's consent, even though the landing place was a public highway. Mr. Justice Cowen, in a most elaborate opinion, says : " The landing of wagons, horses and pass- engers on the shores of a river, a sea, or an ocean, even though it be upon a dedicated or recorded highway, on the What are Highways. 25 land connected with the watery way, and for the direct purpose of going onward, is still a trespass on the riparian owner, unless we could suppose such acts to be performed without any contact between the vessel and the shore." {Pear sail v. Post, 20 Wend. 131 ; see, also, Chambers v. Furry, 1 Yeates [Penn.], 167 ; Cooper v. Smith, 9 Serg. & Rawle, 26.) But this dictum of the learned judge has been overruled by more recent decisions, and the right of the public to land in such cases established. {Fowler v. Mott, 19 Barb. _ 204.) The same principle is laid down also by the English writers ; for with regard to a ferry, it is stated, that a ferry is as much a highway as a bridge ; and that, therefore, the public have a right to embar-k or disembark at the landing places, provided such landing place be a highway. (Welb. on Highways, 35 ; Pders v. Kendal, 6 Barn. & Cres. 703.) Canals. — Canals, when authorized by public law, are public highways, with the right of tolls attached. {Rohinson v. Chamberlain, 8*4 N. Y. R. 389 ; see Conkling v. Phcenix Mills,, 62 Barb. 299.) In this state, the state takes the fee of lands taken for the canals, and upon abandonment, the use of the land does not revert to the original owner. {Rexford v. Knight, 11 IS. Y. R. 308.) Wiien a canal commissioner makes an alteration in a highway, under the power conferred by Revised Statutes (Vol. 1, p. 221, § 19), which authorizes a commissioner, in charge of constructing or repair- ing a canal, to discontinue or alter any highway which interferes with the work, such commissioner does not exercise any power of appropriating lands in such way as to divest the owner of his title, and vest it in the state. No power is given to a canal commissioner to appropriate lands for the mere pur- gose of a common highway. It is a power given to e exercised as subordinate or auxiliary merely to the main power to construct, repair or improve a canal. This auxiliary power is of the same nature and kind precisely with that exercised by highway commissioners in the discontinuance and alteration 26 Highway Laws. of highways ; and the highway, when altered by the canal commissioner, instead of the commissioner of highways, and changed to another location, would be nothing more nor less than a common highway, as it was before. If any portion of the new loca- tion should fall within the boundaries of the appro- priation for the canal, the title in fee simple to the land, as to such portion, would be in the state; but, as to all other portions, the title to the land would remain in the owner, as before, subject to the public easement. The owner would no more lose his title to lands covered by a highway, thus altered and located, than he would to land covered by a highway laid out or altered in the usual manner. The title of the owner, subject only to the easement, remains perfect, not only to the land covered by the highway, but to all the material within its boundaries, except such as may be needed to build or to maintain the road. {Higgins v. Reynolds, 31 N. Y. R. 151.) Navigable river. — A navigable river, common to all men, is a public highway, by water ; and, if the water change its course, and make for itself a new channel, the right of way will continue through the new course. (10 Mod. 382 ; 4 Com. Dig. Chimin A, 1.) By the common law, the ebb and flow of the tide was adopted as the criterion for determining what rivers were navigable ; that is, all rivers in which the tide flowed and reflowed were held to be technically navigable, and belonged of right to the public or sovereign power ; while fresh rivers, or rivers where the tide did not flow and reflow, belonged to the adja- cent owners, subject to the public easement of pass- age, if they were, in fact, navigable. (Hale De Jure Maris; Ex parte Jennings, 6 Cow, 518; Morgan v. King, 35 N. Y. R. 458.) This doctrine of the common What aee Highways. 27 law, though it has been recognized by some of our courts, cannot be regarded as the settled law of this state. In The Peoples. The Canal Appraisers (^d'^'Si. Y. R. 461), Mr. Justice Davis entered into a very learned and elaborate discussion of the subject of nav- igable streams; and after a careful examination of the English and American authorities, lays down the proposition that the common law criterion of navi- gability is not the criterion in this state; but that a river, that is navigable in fact, belongs to the state, and that adjoining proprietors own only to the mar- gin of the stream. The point at issue in the case, however, was as to whether the Mohawk river was a navigable river, in such sense as to vest the title to the bed of the river in the state; and as that question had been before decided in the affirmative (see The Canal Appraisers v. The People, 17 Wend. 571), the argument of the learned j udge may be regarded as obiter, and the decision in the case as restricted to and applicable only to the Mohawk river. However, his examination of the cases is very exhaustive, and his conclusions are those of an able jurist. As to what constitutes a river navigable in fact, it was the rule at common law that capacity for floating boats, lighters, or rafts, to market, was sufficient. (De Jure Marie; Commissioners, etc., v. Kempshall, 26 Wend. 413.) But it has also been held in this country, that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting in condi- tion fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks. It is not essential to the right, that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safeiy 28 Highway Laws. without such guidance. Nor is it necessary that the stream should be capable of being thus navigated against its current, as well as in the direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally sup- ported. {Morgan v. King, 35 N. Y. R. 454; Shaw V. Crawford, 10 Johns. 236.) For an elaborate dis- cussion of the navigability of rivers, see HickoTc v. Hine (23 Ohio St. 523; 13 Am. Rep. 255); and Uni- ted States V. Monticello (id. 262, note). Nor is it essential to the easement that the capacity of the stream, as above defined, should be continu- ous, or, in other words, that its ordinary state, at all seasons of the year, should be such as to make it navigable. If it is ordinarily subject to periodical fluctuations in the volume and height of its water attributable to natural causes, and recurring as reg ularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement. (Id.; Browne v. Chad- hourne, 31 Maine, 9; see, however, Munson v. Hunr gerford, 6 Barb. 265; Curtis v. Keesler, 14 id. 511.) But where it appeared that a stream was not capa- ble of floating even single logs, except during seasons of high-water, which were about two months in a year, and that then the logs, so floated, had to be aided in their passage by men in skiff's or on shore; that the current was so broken and impeded by rap- ids and rocks that the logs were sometimes badly injured, and the ends were always more or less bruised up ; and that the stream was used only occa- sionally for floating logs, etc., the court of appeals decided that such stream was not in its natural state. What are Highways. 29 a public highway, even within the liberal rules above laid down. {Morgan v. King, 35 N. Y. R. 460.) The public have likewise a right to travel on a public river on the «ce; and therefore, if any one cuts holes through the ice upon or near the place where there has been a winter-way for twenty years, he is liable to the payment of all damages sustained thereby, by those traveling upon such way, without carelessness or fault on their part. {French v. Camp, 6 Shepl. [Me.J 438.) A riparian proprietor does not make his water- course a public one, or subject to a public easement, by making it, at his own expense, and by artificial means, boatable. ( Wadsworth v. Smith, 2 Fairb. 278.) The legislature cannot, by declaring a river navi- gable, which is not so in fact, deprive the riparian owners of their rights to the use of the water for hydraulic and other purposes, without rendering compensation. ( WalTcer y. Board ofPuilio Works, 16 Ohio, 540.) Nor has the state a right, without compensation, to destroy the property of individual situated upon rivers, above tide waters, in making waters navigable which are not so by nature, or to appropriate such waters to the public use by artifi- cial erections or improvements. (Per Chancellor and Senator Allen in Canal Commissioners v. The Peo- ple, 5 Wend. 423 ; see Canal Appraisers v. People, 17 id. 571 ; Commissioners, etc., v. Kempshall, 26 id. 404.) The Hudson river opposite New York city is not a highway of the city so as to require the city to re- move obstructions therefrom or to keep it safe for navigation. {Seamian v. Mayor of New York, 80 N. Y. R. 239.) By chap. 533 of the Laws of 1880, rivers recog- 30 Highway Laws. nized by law or use as public Mgbways for the pur- pose of floating lumber, logs or other timber, cannot be obstructed by bridges, booms or dams, it being required that shutes be placed upon dams erected after the passage of the act, and the booms be opened for the passage of timber, logs, etc. Penalties are provided for the violation of this statute. The same statute forbids the landing of logs on private prop- erty without consent of owner. Persons desirous of floating lumber may place shutes upon dams and re- construct booms and other works for floating logs, upon paying damage to the owner of the boom or other works, or of the adjoining land. Persons who intend to float lumber must execute and file bonds to indemnify the owners of property along the streams where such lumber is to be floated. The act does not apply to the Hudson river nor to the fol- lowing rivers or their tributaries : The Alleghany, the Delaware, the Beaver, the Grass, the Raquette, nor to the waters in Franklin and Lewis counties, and does not repeal any existing law. (Amended Laws 1881, oh. 16 and ch. 74.) Commissioners of Highways. 31 CHAPTER II. OOMMISSIONEES OF HIGHWATS. SECTION 1. EliEOnONS. Number and term of office. Vacancy. To administer oath. Number, how changed. To give bqnd. Tacancies, hoir filled. To take oath. Penalty for refusing to serve. Resignation. Two may act. Trustees of villages. SECTION a. GENERAL POWERS AND DUTIES. To ascertain, describe, and enter of record. To cause highways and bridges to be kept in repair. Liability tor not keeping highways and bridges in repair. To divide town into road districts. Plank and turnpike road districts. To divide roads between cities, towns, and villages. To assign inhabitants to work. To require overseers to give warn- ing. To act as inspectors of plank roads and turnpikes. To lay out and discontinue roads. To render account to board of au- ditors To account for moneys. Commissioner cannot delegate his power. SECTION 3. MONEY FOR REPAIRS, HOW RAISED. Supervisors may authorize town to borrow money. Moneys to whom paid and how escpended. In case roads or bridges are dam- aged or destroyed. SECTIO N 4. T HEIR DVTY AS FENCE VIEWERS. Disputes, how settled. Proceedings. Onsaleot land. When fence may be removed. Fences destroyed by floods. Examination of witnesses— costs. When damages may be recovered. Neglect to build Presumption of sufficiency. Compensation of fence viewers. As to floating timber. In relation to strays. In relation to sheep killed by dogs. Their certificate evidence. SECTIONS. MISCELLANEOUS PRO- VISIONS— COMPENSATION. May consent to use of highway by railroad. May agree Tiith turnpike or plank road company for use of highway. To erect mile stones. To erect guide posts. Penalty for injuring. To procure scraper and plough. Dufy in case of fire in woods. To account to town auditors. To account for moneys. To deUver records, books, papers, etc., to successor. Compensation. SECTION 6. LEGAL PROCEEDINGS BY OR AGAINST COMMISSION- ERS. Actions against railroads. Actions against successors. Actions, how brought. May employ counsel. Actions not to abate. Judgment, how collected. Mandamus against commissioners. Injunctions against commissioners. SECTION I. ELECTION. There shall be chosen at the annual town meeting in each town, one, two or three commissioners of 32 Highway Laws. highways. (1 R. S. 340, as amended 1866, ch. 30.) Sucli commissioners are to be chosen by ballot, and are to be electors of the town. (1 R. S. 343.) Number and term of ofice. — The electors of each town shall have power, at their annual town meeting, to determine, by resolution, whether there_ shall be chosen one, two or three highway commissioners, and the number so determined upon shall be balloted for and chosen ; and if only one be determined upon and chosen, he shall possess all the powers, and dis- charge all the duties, of commissioners of highways as prescribed by law, and shall hold his office for one year. And whenever three commissioners shall be chosen in any town, they shall be divided by lot by the canvassers, upon the result of the canvass, into three classes, to be numbered one, two and three ; the term of office of the first class shall be one year, of the second, two, and of the third, three ; and one commissioner only shall thereafter annually be elected in such town, who shall hold his office for three years, and until a successor shall be duly elected or appointed ; but in case any commissioner shall be elected to fill a vacancy, he shall hold the office only for the unexpired term which shall have become vacant ; and If two vacancies shall be required to be filled, the canvassers shall, after the canvass, determine by lot, as aforesaid, the terms they shall respectively hold. (Laws of 1845, ch. 180, as amended 1847, ch. 455.) By Laws 1875, chap. 482, § 1, subd. 27, as amended Laws 1880, chap. 504, boards of supervisors have power to designate, upon the application of any town, duly made by the vote of its electors at an annual town meeting, the number of highway commissioners of such town, not to exceed three. Vacancy. — And when any vacancy shall happen by death, removal, resignation, neglect to qualify, or refusal to serve, it shall be supplied until the next succeeding annual town meeting by an appointment in writing, under the hands of any three justices of COMMISSIONBES OF HIGHWAYS. 33 the peace, or two justices and tlie supervisor of the town. (Id.) (See form No. 1.) To administer oath. — And every commissioner of highways shall be authorized to administer oaths to any witnesses or juries in proceedings which may be had by or before them. (Id.) Number, how changed. — And, whenever any town shall have determined upon having three commis- sioners, and shall desire to return two or have but one, such town shaU have the power so to do by a resolution taken at an annual town meeting; and when such resolution shall have been adopted, no other commissioner shall be elected or appointed until the term or terms of those in office at the time of adopting such resolution shall expire or become vacant ; and they shall have power to act untU their terms shaU severally become vacant or expire, as fully as if the three continued in office. (Id.) No such resolution can be rescinded until the terms have expired, nor until after noon. {Peoiple v. Sand/man, 12 Hun, 165.) To give hond. — Every commissioner of highways hereafter to be elected or appointed shall, before entering upon his duties, and within ten days after notice of his election or appointment, execute to the supervisor of his town a bond, vrith two sureties, to be approved by the supervisor by an indorsement thereon, and filed with him, in the penal sum of one thousand dollars, conditioned that he wiU. faithfully discharge his duties as such commissioner, and within ten days after the expiration of his term of office pay over to his successor what money may be remaining in his hands as such commissioner, and 6 34 Highway Laws. render to such successor a true account of all moneys received and paid out by him as such commissioner. (Laws of 1845, ch. 180.) (See form No. 2.) The sureties to the above bond will be liable only for dereliction in duty during the term for which the commissioner was chosen at the time the obligation was entered into, and not for those which happen under his re-appointment. (See Kingston Mut. Ins. Co. V. Clark, 33 Barb. 196.) In case of default on the part of the commissioner, the bond is to be prosecuted by the supervisor of the town. {Jansen v. OstraTider, 1 Cow. 670 ; Fuller v. Fullerton, 14 Barb. 59.) Vacancies, how filed. — In case a vacancy hap- pens from any cause, it is to be filled by three jus- tices of the town, or two justices and the supervisor, who are to make their appointment in writing, and the appointee is to serve till the next succeeding annual town meeting. When two vacancies are to be fiUed, and two persons are appointed, without a designation as to the class to which they shall re- spectively belong, the one first named in the appoint- ment is to be regarded as appointed to serve the shorter term. {People v. Supervisors of Richrrumd Co., 20 N. Y. K. 352.) Laws 1845, ch. 180, amended Laws 1847, ch. 455. Where there is a failure to elect commissioners at the annual town meeting in consequence of a tie in an election, the justices may appoint a suitable per- son to the office, who, and a person subsequently elected at a special town meeting, is entitled to hold the office. {People v. Van Home, 18 Wend. 515.) At the town meeting next succeeding the appoint- ment, a person is to be elected to fill the vacancy for the unexpired term. COMMISaiONERS OF HIGHWAYS. 35 To take oath. — Every person chosen or appointed to the office of commissioner of highways, before he enters on the duties of his office, and within ten days after he shall be notified of his election or appoint- ment, shall take and subscribe, before some justice of the peace or commissioner of deeds, the oath of office prescribed in the sixth article of the constitu- tion of this state. (1 R. S. 345.) Such oath shall be administered without reward, and the justice or commissioner before whom the same shall be taken shall also, without reward, certify in writing the day and year when the same was taken, and shall deliver such certificate to the person by whom the oath was taken. (Id.) The oath may also be subscribed and sworn before the town clerk of the town in which such officer shall be elected. Such oath shaU be administered and certified without fee or reward. (Laws of 1838, ch. 172.) Acts designating persons to administer the oath of office to officers are held to be merely directory. {Ex parte Heath, 3 Hill, 42 ; 4 E. D. Smith, 430.) The commissioner of high- ways taking the oath, within eight days thereafter, shall cause the certificate to be filed in the office of the town clerk. (1 E.. S. 345.) If any person chosen commissioner of highways shall not take and sub- scribe such oath, and cause the certificate thereof to be filed as above required, such neglect shall be deemed a refusal to serve. (Id.) But, if he enters upon the duties of his office before he shall have taken such oath, he shall forfeit to the town the sum of fifty dollars. (1 R. S. 347.) If his name appears on the poU-Mst, that is to be deemed a sufficient no- tice of his election ; but, if not, he is entitled to a notice of his election from the town clerk of the town within ten days after the meeting at which he is chosen. (See form 3.) 36 HiGHWAT Laws. Pen/My for refusing to serve. — If any person chosen or appointed to the office of commissioner of highways shall refuse to serve he shall forfeit to the town the sum of fifty dollars. (1 R. S. 347.) Resignation. — One of three justices of the peace of a town may, for sufficient cause shown, accept the resignation of any commissioner of highways. (1 R. S. 348.) Two may act. — Any two commissioners of high- ways of any town may make any order in execution of the powers conferred in this title, provided it shall appear in the order filed by them, that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon. (1 R. S. 525, § 125.) An order made by two commissioners, where there are three in office, must show on its face, either that the third commissioner met with his associates and that he participated in their deliberations, even if he did not concur in their conclusions, or that he was notified, not only of the intended meeting, but of the particular subject on which it was proposed to deliberate. {People v. Williams, 36 N. Y. R. 441.) Trustees of milages. — By Laws of 1870, chapter two hundred and ninety-one, trustees of villages are constituted commissioners of highways within their respective villages, for certain purposes. (Tit. 3, § 1, sub. 25; §4.) Commissioners of Highways. 37 SECTION II. GENERAL POWERS AND DUTIES. The commissioners of Mghways in the several towns in this state shall have the care and superin- tendence of the highways and bridges therein ; and it shall be their duty, 1. To give directions for the repairing of the roads and bridges within their respective towns. 2. To regulate the roads already laid out, and to alter such of them as they, or a majority of them, shall deem inconvenient : 3. To cause such of the roads used as highways, as shall have been laid out but not sufficiently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described and entered of record in the town clerk' s office: 4. To cause the highways, and the bridges which are or may be erected over streams intersecting highways, to be kept in repair : 5. To divide their respective towns into so many road districts as they shall judge convenient, by writing under their hands, to be lodged with the town clerk, and by him to be entered into the town book ; such division to be made annually, if they shall think it necessary, and in all cases to be made at least ten days before the annual town meeting : 6. To assign to each of the said road districts such of the inhabitants liable to work on highways, as they shall think proper, having regard to proximity of residence as much as may be ; provided, how- ever, that, whenever the commissioners of any town shall have neglected, for the period of one year, at 38 Highway JjAWS. any time after any public road or highway shall have been laid out, and the title thereto acquired by due process of law, to open or work the same, or any part thereof, and whenever any number of inhabitants of any town in or through which the said road has been laid out shall have given ten days' notice to the commissioners of said town that they desire to apply the whole or any part of their highway labor to the working of said road, the said commissioners shall forthwith assign the said inhab- itants to such road, direct the highway labor for which they are annually assessed to be applied to the same, and cause the same to be worked and put in good order for vehicles and travelers, within one year, under the direction of any of the said inhab- itants whom such commissioners may appoint as an overseer of the labor so to be applied to such road ; and when the number of days of labor assessed in the current year to such inhabitants, as their annnal highway tax, is not sufficient to put such road in good order, as aforesaid, then the said inhabitants may anticipate the whole or any part of the high- way labor assessed, and to be assessed, against them for a period not exceeding three years ; but from no one of the districts into which the said town is divided shall more than one-half of its annual labor be taken and applied to any road not embraced in said district ; and, 7. To require the overseers of highways, from time to time, and as often as they shall deem neces- sary, to warn all persons assessed to work on high- ways to come and work thereon, with such imple- ments, carriages, cattle or sleds as the said commis- sioners, or any of them, shall direct. (1 E. S. 501, §!•) 8. By Laws 1873, ch. 440, the commissioners of the Commissioners of Highways. 39 several towns in the state, and the trustees or other officers in the incorporated cities and villages of the state, who are authorized to perform the duties of commissioners of highways, are constituted inspect- ors of plank roads and turnpikes in their respective towns, cities and vUlages. But this statute does not apply to the'counties of Cortland (Laws 1873, ch. 699), Clinton, Chenango, Seneca, Queens, Orange, Essex, Cayuga, Madison and Steuben (Laws 1874, ch. 224). (See, also, Laws 1872, ch. 779.) The supervisors and commissioners of highways of the several towns, and the president of any incorporated village as to lands in such village, are made water commissioners and have charge of dams, drains, ditches and channels, under Laws of 1871, ch. 303, § 16. Acts of commis- sioners de facto are valid. {People v. Covert, 1 Hill, 674.) The commissioners have the general control and oversight of all highways and bridges in their town; but they have no power over other officers intrusted with duties in relation to highways, except as given by statute. By "highways and bridges" are meant public highways and bridges; not those made by individu- als, unless they have become public by the acts of the individuals, or by the commissioners, in the manner set forth in the statute. By subdivision one, it is the duty of the commis- sioners, and they have the authority, to direct the overseer as to the general manner he shall improve the roads or bridges in his district; as, for instance, the grade of the road, how drained or leveled, or in what manner a bridge shall be repaired. The overseer is subordinate to the commissioners. The principal duties of the overseers are to warn persons to work, to see that they do work, and to 40 Highway Laws. collect fines and commutation money. The commis- sioners have the exclusive control in directing the manner in which bridges shall be repaired; and on this subject are the persons responsible to the pub- lic, and not the overseers. {Bartlett v. Crozier, 17 Johns. 452.) If an overseer of highways shall refuse or neglect to perform any of the duties enjoined on him by the commissioners, he shall forfeit the sum of ten dol- lars for each refusal or neglect, to be sued for by the commissioners, and to be by them applied in making and improving the roads and bridges in the town. (1 R. S. 504.) An overseer, however, is liable for not removing obstructions in the highway, although not specially required by the commissioners. {McFadden v. Kins- hury, 11 Wend. 667.) By the second subdivision, the commissioners are required to regulate and alter, that is, to restore, the boundaries and fences of a highway to its original lines; and if it passes by or through an inconvenient place, they may change its location ; but if, in mak- ing the alteration, it is necessary to take more or other lands, damages must be paid, and the same course taken as on an original location of a new road. {Bartlett^. Crozier, 17 Johns. 447; 1 R. S. 504.) To ascertain, describe, and enter of record. — The third subdivision of the above quoted section au- thorizes the commissioners, in their respective towns, to cause such of the roads as are not already described and recorded, to be ascertained, described, and en- tered of record. This authority necessarily implies and presupposes an omission of some of the requi- sites to the establishment of a public highway. In the case of The People v. Judges of Cortland County (24 Wend. 491), the commissioners of high- COMMISSIONEES OF HlGHWATS. 41 ways of Cortlandville made an order adjudging that a certain road in that town, particularly designated, Tiad been used as a public highway for twenty years, but had not been recorded ; and they thereupon pro- ceeded to ascertain^ describe, and enter the road of record, in the town clerk' s office. Peck appealed to the judges. From the return it appeared that the commissioners, in their order, declared the road to be i^^ree rods wide; and they insisted, before the judges, that this was the width originally intended. It was proved, before the judges, that the road never was opened more than two rods wide. Judge Bronson says: " This provision does not authorize the com- missioners to say what was 'originally intended,' either by the owner of the soil or any one else, in relation to the width or location of the road, any fur- ther than such intention has been manifested by per- mitting the way to be used. It is a power in relation to the road as it actually exists, and has existed for the last twenty years. It does not authorize the com- missioners to create or enlarge, but only to perpetu- ate the evidence of a public right. Both the extent and fact of dedication depend on the user ; and the public must take secundum forma dorui. On the facts returned by the judges, it is clear that the com- missioners exceeded their powers: and the only question is, whether Peck had a remedy by appeal." A road used by the public for twenty years prior to 1797 is a highway. {Oalatian v. Gard/ner, 7 Johns. 106.) But a road not so used and not re- corded is not a highway. {People v. Lawson, 17 Johns. 277.) A road which has been previously laid out, but not in conformity with the law, and which has been used for a number of years, though less than twenty, and is afterward ascertained and recorded by the commis- 6 42 Highway Laws. sioners, becomes a public highway, so as to justify one in passing over it. {Golden v. Thurher, 2 Johns. 424.) Irregularities in highways laid out prior to April 14, 1826, are cured by filing survey. {Parker v. Van Bouten, 7 Wend. 148.) The duty of ascertaining, describing and record- ing, under the above section, belongs exclusively to the commissioners, and not to a jury called to de- termine a disputed question of encroachment. The power of the commissioners is limited to ascertain- ing the boundaries of the road, according to the act- ual use for the twenty years. They have no right, in the exercise of this power, to alter and change the boundaries with rererenee to public convenience. {TalToage v. Huntting, 29 IST. T. E. 447.) The intention of the owner of the land, in permit- ting a user for twenty years, is not material. Such a user of land for that period makes it a public high- way, under the statute, though the owner be a luna- tic, an infant, or a married woman^ and has no knowl- edge thereof during the entire time. {DevenpecJc v. Lambert, 44 Barb. 696. , If a road has been opened, used and worked, sub- stantially as laid out, though not of the entire width, for a period of thirty years, it is, nevertheless, a highway of full statute width ; and the commission- ers have the right to ascertain, describe and record it as of that width, and to open it and remove ob- structions. ( Walker v. Caywood, 31 N. Y. R. 51.) The commissioners act in a ministerial capacity in ascertaining, describing and recording a road ; and no appeal lies from their proceedings. {People v. Judges of Cortland County, 24: Wend, 491.) What remedy an aggrieved party would have was referred to in the above case, but not decided. In the absence of any allegation or proof of abuse of power by referees appointed by a county judge upon appeal from the order of a commissioner of highways, their acts will not be invalidated by the fact that their meetings are held outside the town lim- its. {People, exrel. Woolford, v. 8l/revell, 27 Hun, 218.) Commissioners of Highways. 43 By Laws of 1875, chapter 482 (§ 1, sub. 11), boards of supervisors are empowered as follows : " To authorize and direct the highway commis- sioner or commissioners of any town to cause sur- vey to be made at the cost of the town, of any or all highways in such town, and to make a complete and systematic record thereof, or to revise, collate and re-arrange existing records of highways, and to cor- rect and verify the same by new surveys, and to establish the location of highways by suitable mon- uments whenever such commissioner or commission- ers may deem expedient. Such records so made or revised, corrected and verified, shall be deposited with the town clerk of such town, and shall there- after be the lawful records of the highways which they describe, but shall not affect the rights pending in any judicial proceedings commenced prior to the deposit with the town clerk of such new or revised records." Authority of supervisors as to highways on un- improved lands. — By Laws 1880, ch. 175, it is pro- vided that " the board of supervisors of any county in this state containing more than three hundred thousand acres of unoccupied and unimproved forest lands, in addition to the powers now possessed by said board, is hereby authorized to establish separate highway districts in such county, for the purpose of laying out and constructing highways through such unimproved and unoccupied tracts of land in such county ; such highway district to be established upon the application of the owners of more than one-half of the non-resident lands to be included therein. Any highway district established under the provisions of this act shall consist of con- 44 Highway Laws. tiguous tracts or parcels of land and may include within its limits parts of one or more towns, and the same may be changed, altered or abolished at any time by said board of supervisors. The said board of supervisors shall have power to appoint a com- missioner or commissioners to lay out and construct highways in any such district and to prescribe their powers and duties, and may also direct the manner in which highway taxes shall be assessed, levied and collected upon the lands embraced in any such dis- trict, and likewise the manner of expenditure thereof. The said board of supervisors may also authorize commissioners appointed under this act to borrow money on such terms as said board shall direct, but not exceeding the estimated amount of ten years' highway taxes upon the lands embraced within the district in which such loan is authorized, and may, for the purpose of repaying any such loan, set apart and appropriate the highway taxes upon lands in any such district for a period not exceeding ten years from the time of making such loan." Duty of commissioners as to repairs. — The statute (1 R. S. 504, § 1, subd. 4) requires the commissioners to cause the highways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair. The commissioners, as the general superintendents of the highways and bridges of the town, are primarily responsible for their con- dition ; although it is likewise made the duty of the overseers to keep the highways within their respect- ive districts in order. (1 R. S. 503.) All the powers of the overseers are subordinate to, and under the superior control of, the orders of the commissioners, whom they are bound to obey. The overseers have no concern with bridges erected COMMISSIONEKS OF HIGHWAYS. 45 over streams, except so far as they are directed, gen- erally, to execute the orders of the commissioners. In the case of Bartleit v. Crazier (17 Johns. 449), Cftiancellor Kent says: "In short, it appears, from a careful examination of the several provisions of the act, that the commissioners, and not the overseers, of highways, are the responsible persons in respect to the erection and repair of bridges. The overseers have nothing to do with bridges, but in the single instance in which they receive fines and commutation money, or other money, under the order of the com- missioners." The commissioners' obligation in repairing bridges extends not only to the floor of the bridges, but to the providing of proper guards or railings on the sides or borders, when necessary for the protection of the public. {Hyatt v. Trustees of Rondout, 44 Barb. 391.) All public bridges &Te, prima facie, repairable by the commissioners of highways, without distinction of foot, horse or carriage bridges, unless they can show that others are bound to repair particular bridges. But, where a bridge has been erected solely for private use, although it may be used by the pub- lic, the one who erected it must keep it in repair ; as where a man digs a ditch or canal across the high- way, and makes a bridge over it. In such case, although the public would have to use the bridge in traveling the highway, yet they would derive no benefit from it, since the way was as good before the bridge was built as after it, and are not bound to maintain it. {Bygert v. SchencJt, 23 Wend. 446.) But, if the bridge be built over a natural stream, and the public cross and recross thereon, the town should keep it in repair, although it was built for the pri- 46 Highway Laws. vate benefit of the builder. (Id.) A company law- fully cutting a canal across a highway, for its own purposes, is bound to build and keep in repair a bridge across it, and so maintain the highway. {Heacock y. Sherman, 14 Wend. 58.) It is unquestionably true that the highway officers of a town are not required to grade the whole space within the limits of the highway, so that a traveler can safely drive his carriage over every part of it. In ordinary cases, if they provide a pathway for carriages of suitable width, and so define it as that there shall be no reasonable danger of its being mis- taken, they will not be in fault if a traveler chooses to try an experiment upon the part which is not thus prepared for traveling. {Ireland v. Oswego, etc., PlanJc Road Co., 13 K. Y. R. 531, per Denio, C. J., and cases cited.) But where a road is so constructed or altered as to present, at one point, two paths, both of which ex- hibit the appearance of having been used by travel- ers, and one of them leads to a dangerous precipice, while the other is quite safe, it is the duty of those having charge of the road to indicate, in a manner not to be mistaken by day or night, that the unsafe path is to be avoided; and if it cannot be otherwise done, to put up such obstructions as will turn the traveler from the wrong track. (Id.) The commissioners are not bound to buUd or re- pair highways or bridges when not in funds to de- fray the expense, and in such case, a mandamus will not lie to compel them to make such repairs. {Peo- ple V. Gom/missioners of Hudson, 7 Wend. 474; Gar- UngTumse v. Jacob, 29 N. Y. R. 803, and cases; Barker v. Loomis, 6 Hill, 619.) And where there are several bridges out of repair, and the commissioners have only money enough for Commissioners of Highways. 47 the repair of a part, they have a discretion as to which of the bridges they will repair, and an action will not lie against them for not repairing any par- ticular one. (Id.) But where the commissioners have undertaken to build a bridge, they are liable for negligence in its construction to those injured without fault, although sufficient funds were not in their hands. {Hector v. Pierce, 3 N". Y. Sup. 416.) When the negligence charged is misfeasance or want of care in construc- tion, the want of funds is no defense. (Id.) The statute imposes upon commissioners the duty of active oversight and constant vigilance in ascer- taining the condition of highways under their charge, and the fact that they have not been notified of a defect does not relieve them from liability to one injured by it. (BostwicTc v. Barlow, 14 Hun, 177.) lAahilityfor not keeping highways and bridges in repair. — ^Whether an action will lie against the commissioners at the suit of an individual who has sustained injury by reason of their neglect to keep the highways and bridges in a proper state of repair, when they have the necessary funds, was not clearly settled in this state untU Ro-oer v. BarTchoof (44 N", T. R. 113) was decided. In the case* of Bartlett v. Grozier (17 Johns. 437), which was an action against overseers of highways, for neglect to repair a bridge, whereby the plaintiff was injured. Chancellor Kent, after holding that the action would not lie against the overseers, they not being responsible for the repair of bridges, expressed the opinion that such action would not lie even against the commissioners. Speaking of the duty imposed by the statute upon town commissioners in respect to roads and bridges of the town, the chan- 48 Highway Laws. cellor says : " There is no certain, stable, absolute duty in the case. It is not like the case of an indi- vidual bound by a private statute, or by a certain tenure, to keep a road or bridge in repair, nor like the case of turnpike companies. There the duty is perfect and binding at all times, and is founded on a valuable consideration. The roads and bridges must, at all events, be kept in repair, according to ordinary diligence. It is a condition of the grant. The duty is not casual or contingent, but inevitable. In the case, however, of these commissioners and overseers, the duty depends upon a train of circumstances ; it is very indefinite, and is varied and regulated by their discretion. There is not that precision and certainty of duty that ought to make them responsible to indi- viduals to any extent and for any damages. The law has not supplied them with the pecuniary means, or armed them with the coercive requisite to meet and sustain such an enormous and dangerous responsi- bility. The argument to be drawn from the English law on the subject is very strong against the right of action. There are officers under the English law, equally as under ours, charged with repairing the roads and bridges; they have existed and been known from ancient times, and yet there is no case in the English books, nor any precedent under our colony government, of any such private action- This affords a very strong presumption that no such action will lie." In the case of Adsit v. Brady (4 Hill, 630), which was an action against the superintendent of repairs, for damages sustained by the plaintiff by reason of the defendant' s not having kept the canal in good re- pair, the court laid down the broad proposition, that " When an individual sustains an injury by the mis- feasance or non-feasance of a public officer who acts. Commissioners of Highways. 49 or omits to act, contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case." Judge Sandford, in speak- ing of this case in Hutson v. The City of New YorTc (5 Sandf. 289), says: "The liability was taken for granted by the distinguished judge who delivered the opinion of the court, without discussion or ref- erence to authority, and yet, so far as we know, there is no reported adjudication, either in this state or in England, which sustains a private action in such a case ; and with much deference, we submit that a decision making such a great stride in asserting the liability of public officers is not entitled to the full weight of authority when it appears not to have been made upon gra.ve argument and mature consid- eration." This commentary was approved in West V. Trustees of Brockport (16 N. Y. K. 161). In the latter case, Judge Selden, after a careful review of the authorities, took the ground that commissioners are not liable in a civil action for a mere omission to keep the highways of their town in repair ; and his opinion was adopted as the opinion of the court in the case of HickoJc V. Trustees of PlattslurgTi (16 JST. Y. R. 161). The position taken is, that, where an officer has been appointed, not for the public in general, but for individuals in particular, and from each individual receives an equivalent for the services rendered, he may be responsible, in a private action, for neglect of duty ; but, where the officer acts for the public in general, the appropriate remedy for his neglect of duty is a public prosecution. The proposition laid down in Adsit v. Brady {supra) was also disap- proved of by "Wright, J., in Oarlinghouse v. Jacobs. After a careful review of the authorities, that learned judge says : "I am of the opinion, therefore, that town commissioners of highways are in no event lia. 7 50 Highway Laws. ble to a private action for a mere neglect or omission to keep tlie highways of their towns in repair." Although the question was not necessarily involved in the case, it appearing that there were not sufficient funds, yet, from the note of the reporter added to the case, it appears that a majority of the judges concurred with Judge Wright on this point. (See GouU V. Booth, 66 N. Y. R. 62.) The case of Smith v. Wright (24 Barb. 170), how- ever, holds a contrary doctrine, based mainly on the proposition advanced in Adsit v. Brady, above cited. The question came directly before the court at special term, and Davies, J., held that commis- sioners of highways were liable to a civil action at the suit of a person who had .sustained injuries through their neglect to keep the highways and bridges in repair where they had, or might have had, the necessary funds for such repairs. In the case of Robinson v. Chamberlain (34 N. Y. R. 380), the opinion of Peckham, J., sustains the doctrine of AdMt v. Brady and Smith v. Wright, though the question was not necessarily involved, and was not passed upon, in the other opinions. But in Bover v. BarJchoof (44 N. Y. R. 113), it was held that it is the duty of the commissioners to re-- pair the highways or bridges after notice of defects, with reasonable care and diligence, if they have funds in their hands, or authority to procure funds ; and neglect to do so renders them liable in civil damages to any person specially injured by such neglect. The injury must be the proximate cause of the neglect, however. {Bay v. Grossman, 4 N. Y. Sup. 122.) Commissioners are not only liable to a private ac- tion for neglect to keep the highways in repair, but Commissioners of Highways. 61 they are liable to be indicted for such neglect. (Per Nelson, J., in People v. Corporation of Albany, 11 Wend. 539 ; per Wright, J., in Oarlinghouse v. Jacobs, 29 N. Y. R. 305 ; per Beardsley, J., in Wil- son v. Mayor of New York, 1 Denio, 599.) The commissioners of highways of a town being at most but a quasi corporation* may be sued indi- vidually for neglect to keep the highway in repair. {Babcock y.Gifford, 29 Hun, 186.) In an indictment, however, against commissioners of highways for neglect of duty in not repairing a highwagr or bridge, it must be averred that they had the requisite funds in their hands, or other specific means provided by law for that purpose. {People V. ComirCr of Highways of Hudson, 7 Wend. 474 ; People V. Adsit, 2 Hill, 619 ; Barker v. Loomis, 6 id. 463.) Supposi-ng a civil action will lie against commis- sioners for a neglect of duty, the same allegations should be set forth in the complaint. {Smith v. Wright, 27 Barb. 601 ; per Sandrord, J., in Hutson V. Oiti/ of New York, 5 Sandf. 315 ; but see Adsit v. Brady, 4 Hill, 630.) The complaint ought to state specifically every fact requisite to enable the court to judge wuhether there has be,en a breach of duty. (Per Kent, Chan- cellor, in Bartlett v. Crozier, 17 Johns. 456.) Previous to 1881 a town was in no event liable to a civil action for injuries sustained through the-neg- " ligence of its officers to keep the highways in repair. The obligation of towns to maintain the highways being wholly the creature of the statute, was not of that absolute character which is essential to make them liable to a private action for an injury spring- ing from their neglect to perform it. {Morey v. New- fane, 8 Barb. 645 ; Town of Galen v. Clyde, etc., 27 id. 543.) But by Laws 1881, chapter 700, this rule was modified. That statute provides as follows : 52 Highway Laws. The several towns in this state shall be liable to any person suffering the same, for aU damages to person or property by reason of defective highways or bridges in such town, in cases in which the com- missioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways. (§ 1.) Upon the recovery of any judgment for any dam- age aforesaid, such judgment, together with the costs included therein, shall be and become a charge upon the town against which it is rendered, and shall be audited and paid in the same manner as other town charges. (§ 2. ) If the defect in such highway or bridge shall have been caused by the misconduct or neglect of the commissioner or commissioners of highways of the town in which the same may be situated, then and in such case the town against which any judgment shall have been recovered by reason of such defect- ive highway or bridge may bring an action against such delinquent commissioner or commissioners of highways, and recover the amount of such judg- ment. (§ 3.) The board of town auditors of any town in this state shall have power to audit and pay, if they shall deem it just so to do, as a town charge, in the same manner as other town charges are audited and paid, any judgment already recovered and not paid, and any judgment which may be hereafter recov- ered against any commissioner or commissioners of highways of such town, for damages to person or property arising from defective roads or bridges in such town, whenever such board of town auditors shall be satisfied that the commissioner or commis- sioners against whom the same was rendered have Commissioners op Highways. 53 acted in good faith and the defect causing such damage shall not have been caused by the willful misconduct or neglect of the commissioner or commissioners against whom such judgment shall have been recovered. (§ 4.) Nothing in this act shall be construed to relieve any com- missioner of highways in this state from liability to indict- ment or criminal prosecution in cases where by law they are now liable thereto. (§ 5.) Section 6 repealed 1884. Civil actions will lie against cities and incorporated vil- lages for a failure to keep their streets and highways in a proper state of repair, provided it is by the charter made the duty of the city officers to maintain the highways. {Conrad r. Trustees of Ithaca, 16 N. Y. E. 158 ; Hichoh-v. Trustees of Plattslv/rg, id. 161; Wendall v. Mayor of Troy, 39 Barb. 339 ; Hyatt v> Trustees of Rondout, 44 id. 385.) But a city is not bound to keep safe a highway bridge over the canal in its limits maintained by the state. ( Carpen- ter V. City of Gohoes, 81 N. Y. E. 21.) A municipal corporation is liable for an injury occa- sioned by a defect in its street, after actual notice, or con- structive notice of the defect by lapse of time. {Requa v. City of Rochester, 45 N. Y. E. 139.) Also where in con- structing a gutter and curb, it interferes with a natural stream, thus flooding the plaintiff's land. {Byrnes v. City of Gohoes, 67 K Y. R. 304.) One passing along a sidewalk has a right to presume it to be safe, and is not bound to exercise any special care to avoid falling into an uncovered area. {McGuirev. Spence, 91 N. Y. 303.) The lawof 1881, chapter 700, making towns liable, is not retroactive. {Frasier v. Town of Tompkins, 30 Hun, 168. ) A city is liable for damage caused by turning a water-course from its proper course. ( Vogel v. Mayor, 93 N". Y. E. 10.) A provision in a village charter, constituting the village trustees commissioners of highways for the village, with the same powers and duties over roads and streets therein as commissioners of highways in 54 Highway Laws. towns have, makes the trustees the agents of the vil- lage corporation and not independent public officers, and for their neglect of duty the corporation is liable. ( Weed v. Village ofBallsion, 76 N. Y. R. 335.) But the duty imposed is commensurate only with the power vested in the corporation for its perform- ance, and the absence of necessary funds, or the legal means of procuring them, will excuse the per- formance of the duty. (Id. ; Hlnes v. City of Lock- port, 50 N. Y. K 238.) Except that whenever an incorporated village shaU constitute a separate and independent road district, the commissioners or superintendents of streets, or officers of said village, by whatever title or name called, whose duty it shall be to control, superintend and repair the streets therein, shall be the overseers of highways in said district. (Laws 1875, ch. 482, § 1, subd. 8, as amended by Laws of 1876, ch. 258.) The effect of discontinuing a road district which had been formed from parts of two other districts is to restore the latter to their original bounds. {People V. Sly, 4 Hill, 593.) Plank and turnpike road districts. — By Laws 1876, ch. 373, as amended, Laws 1881, ch. 464, it is enacted, that a majority of the owners of land along a highway, occupied by a plank road or turnpike company whose charter has expired, and steps for renewal have not been taken for a year, for a distance of not less than one mile continuously, on the written assent of the directors of such plank road or turnpike company, and of the supervisors and commissioners of highways of the town in which the road is situated, may apply in writing to Commissioners of Highways. 55 the county court of the county where such road is situated, and have that portion of such road de- scribed in their application a separate road district, to be exempt from the jurisdiction of the commis- sioners of highways. (§ 1.) The district is to be under the charge of commissioners appointed and having the powers as provided in the act. The highway must not be within the limits of a city or incorporated village. (Am'd L. 1882, ch. 289,) Oommiissioners to divide town into road dis- tricts.— T!he statute (1 E. S. 502, § 1, subd. 5) re- quires commissioners to divide their respective towns into so many road districts as they shall judge convenient, by writing under their hands, to be lodged with the town clerk, and by him to be entered in the town book ; such division to be made annu- ally, if they shall think it necessary, and in all cases to be made at least ten days before the annual town meeting. Whenever a highway is laid out on a line between two towns, the commissioners of each of such towns are required to divide it into two or more road dis- tricts, in such manner that the labor and expense of opening, working and keeping in repair such high- way, through each of the said districts, may be equal, as near as may be, and to allot an equal num- ber of the said districts to each of the said towns. (1 R. S. 516, § 74.) Each district shall be considered as wholly belong- ing to the town to which it shall be allotted, for the purpose of opening and improving the road, and for keeping it in repair; and the commissioners shall cause such highway, and the partition and allotment thereof, to be recorded in the office of the town clerk in each of their respective towns. (Id., § 75.) 56 Highway Laws. All highways heretofore laid out upon the line between any two towns shall be divided, allotted, recorded and kept in repair in the manner above directed. (Id., §'76.) The city of Utica is a town under this statute. {Jones V. City of Utica, 16 Hun, 441.) The order dividing the town into road districts must be made upon a meeting and conference of all the commissioners, though the signature of two wiU be sufficient. Where two only sign, however, the order should state that it had been made upon a meeting and conference of all the commissioners, or that the third had been duly notified to attend, for the particular purpose of making a division of the town. (1 K. S. 625, § 125 ; People v. Williams, 36 N. Y. R. 441.) (See form No. 5.) The board of supervisors may also authorize the consolidation, in any town, of two or more of the established road districts therein, and the division of any established road district into two or more, and constitute the territory of any incorporated vil- lage into a separate road district ; and provide for the election or appointment of overseers of highways and prescribe the manner in which the highway labor assessed and highway taxes collected in such consolidated or separate districts shall be expended and accounted for. To divide roads between cities, towns and vil- lages. — Whenever a highway, street or road shall be on the line between a city, town and village, or between either of them, the officers authorized and required to repair and keep in order the highways, streets and roads in such city, town and village, shall meet together at the mayor's office in such city, if said highway, street or road be on the line between COMMISSIOlSrERS OF HIGHWAYS. 57 a city and town, or a city and village, or at the office of the town clerk of such town, if the same be on the line between a town and village, on the first Monday of May in each year, at twelve o'clock m., and divide such highway, street or road, and allot one part thereof to such city, and the other to such town or village, or one part thereof to such town and the other to such village, as the case may be, in such manner that the labor and expense of working and keeping in repair such highway, street or road may be equal as near as may be. (Laws of 1870, ch. 311, § 1.) Upon the neglect or failure to attend on the part of the officers of any city, town or village, at the time or places designated in the first section of this act, for the purposes therein mentioned, the officers of the city, town or village present may perform the said duty, and when done, the division thus made shall be of the same force and eflfect as if made by the joint action of such city and town, or such city and village, or such town and village. (Id., § 2.') The statement of the division made pursuant to the provisions of the first and second section of this act shall be reduced to writing, and properly authenticated by the officers making the same, and shall be filed, within ten days after such division is made, in the offices of the city clerk of the city, of the town clerk of the town, and of the clerk of the village, between whom such division has been made. (Id., § 3.) This enactment does not repeal the provisions of the Revised Statutes (1 E. S. 516, §§ 72-76). {Jones v. City of mica, 16 Hun, 441.) Assignment of work. — The statute (1 E,. S. 502, § 1, subd. 6) requires the commissioners to assign to each of the said road districts such of the inhabitants 8 58 Highway Laws. liable to work on highways as they shall think proper, having regard to proximity of residence as much as may be : promded, Jiowexier, that whenever the com- missioners of any town shall have neglected for the period of one year, at any time after any public road or highway shall have been laid out, and title thereto acquired by due process of law, to open or work the same, or any part thereof ; and whenever any number of the inhabitants of any town, in or through which the said road has been laid out, shall have given ten days' notice to the commissioners of said town that they desire to apply the whole or any part of their highway labor to the working of said road, the said commissioners shall forthwith assign the said inhabitants to such road, direct the highway labor for which they are annually assessed to be ap- plied to the same, and cause the same to be worked and put in good order for vehicles and travelers within one year, under the direction of any of the said inhabitants whom such commissioners may ap- point as an overseer of the labor so to be applied to such road; and when the number of days' labor assessed in the current year to such inhabitants, as their annual highway tax, is not sufficient to put such road in good order, as aforesaid, then the said inhabitants may anticipate the whole or any part of the highway labor assessed, and to be assessed, against them for a period not exceeding three years ; but from no one of the districts into which the said town is divided shall more than one-half of its an- nual labor be taken and applied to any road not embraced in said district. To require overseers to give warning. — Subdivision seven directs the commissioners to require the over- COMMISSIONEES OP HIGHWAYS. 59 seers of highways from time to time and as often as they shall deem necessary, to warn all persons assessed to work on highways to come and work thereon, with such implements, carriages, cattle or sleds as the said commissioners, or any one of them, shall direct. This duty is usually performed by delivering the tax list to the overseers. Where the overseers neg- lect to perform their duty, the commissioners should give them a special requirement. To act as inspectors of plank roads and turn- pikes. — It shaU be the duty of said officers (the com- missioners) to personally inspect the whole of such plank or turnpike roads, or such part thereof as lie in their respective towns, villages or cities, at least once in each month, and in case the same shall be out of repair, or in such condition that the same cannot be conveniently used by the public, to give notice in writing thereof immediately to the toll- gatherer, or person attending the gate nearest to each place out of repair, or in bad condition, to order the toll-gate or g9.tes upon said road to be immediately thrown open, and such gate or gates shall not be closed until such road shall be fully repaired, or be in proper condition, to the satisfaction of said offi- cers, or a majority thereof. The notice to such toll- gatherer shaU point out the part of such road to which the said officers shall object. The fees of each of said officers for the services in this section men- tioned shaU be two dollars for each day actually employed in such service, to be paid by the corpo- ration or persons whose road shall be so inspected by said officers, in case they shall order said toll-gate or gates to be thrown open, but otherwise, to be charged, 60 Highway Laws. audited and paid in the same manner as the other fees and expenses of commissioners of highways. Any party feeling himself aggrieved by the order of said plank-road inspectors may appeal therefrom to the county court of the county in which the part of the road embraced in said order is situated, said ap- peal to be brought within twenty days after the ser- vice of said order. The notice of appeal shall be served upon one of said inspectors and a copy thereof shall be filed in the county clerk's office. The appeal may be brought on to hearing upon a notice of not less than five days, and the county court shall always be open for the purpose of hear- ing and determining such appeal. The said court shall proceed to hear said appeal, and after hearing the proofs and allegations of the parties, may affirm, reverse, or modify said order. During the pendency of such appeal, such toll-gate or gates shall remain open. (Laws 1873, ch. 440, as amended Laws 1877, ch. 164.) This act is repealed as to Clinton, Che- nango, Seneca, Queens, Orange, Essex, Cayuga, Madison and Steuben counties (Laws 1874, ch. 224), and as to Montgomery county (Laws 1875, ch. 530). According to Laws 1872, ch. 779, this duty devolved on the commissioners only on complaint of freehold- ers. Now they are to take the above proceeding of their own motion, also. The determination of commissioners of highways, when acting as inspectors of plank roads, that a road is out of repair, etc., and ordering a toll-gate to be thrown open, is that of a tribunal acting judi- cially, and must be in writing. So mast be their decision thereafter that the road has been put in repair. {People v. Martin, 56 How. Pr. 516.) Commissioners of HianwATS. 61 To lay out and discontinue roads. — The commis- sioners of Mghways shall have power, in the manner and under the restrictions hereinafter provided, to lay out, on actual survey, such new roads in their respective towns as they may deem necessary and proper ; and to discontinue such old roads and high- ways as shaU appear to them, on the oaths of twelve freeholders of the same town, to have become unnec- essary. (1 K. S. 502, § 5.) (See, post, chapters on lay- ing out and discontinuing highways.) To render account to hoard of auditors. — The commissioners of highways of each town shall ren- der to the board of town auditors, at their annual meeting for auditing the accounts of town officers, an account in writing, stating, 1. The labor assessed and performed in such town. 2. The sums received by such commissioners for fines and commutations, and all other moneys re- ceived under this chapter. 3. The improvements which have been made on the roads and bridges, in their town, during the year immediately preceding such report, and an ac- count of the state of such roads and bridges ; and 4. A statement of the improvements necessary to be made on such roads and bridges, and an estimate of the probable expense of making such improve- ments, beyond what the labor to be assessed in that year wUl accomplish. (1 R. S. 503, § 3.) (See form No. 6.) The a,nnual meeting of the town auditors referred to is that held on the Tuesday preceding the annual town meeting. To account for moneys. — The commissioners of highways in each town of this state, and all town 62 HiGHWAT Laws. officers who receive or disburse any moneys belong- ing to their respective towns, shall on the last Tues- day preceding the annual town meeting of their town, account with the board of town auditors of such town for all moneys received and disbursed by them by virtue of their offices. (Laws of 1863, ch. 172.) The £aid board of town auditors shall make a statement of such accounts, and append thereto a certificate, to be signed by a majority of the board, showing the state of the accounts of the said high- way commissioners and other officers at the date of the certificate ; which statement and certificate shall be filed with the town clerk of the town, and be by him produced at the next annual town meeting, and publicly read. (Id.) (See form No. 7.) Under Laws 1863, chapter 172, and Laws of 1875, chapter 180, commissioners of highways are required to account annually before the board of town auditors and not before the board of town officers. {People, ex rel. Bechel, v. Wilbrook, 27 Hun, 698.) Commissioner cannot delegate Ms powers. — Where a commissioner who, with another commis- sioner, had taken part in proceedings to lay out a highway, left before the survey was completed, and told the other commissioner to sign his name to the order laying out the highway and any other neces- sary papers, it was held that an order signed only by the other commissioner and with the name of the first affixed by the other was void on the ground that a commissioner could not so delegate his powers. {Todd v. Todd, 5 K Y. Sup. 531.) COMMISSIONEES OP HIGHWAYS. 63 SECTION III. HOW RAISED. The commissioners of highways of each town shall deliver to the supervisor of such town a state- ment of the improvements necessary to be made on the roads and bridges, together with the probable expense thereof; which supervisor shaU lay the same before the board of supervisors at their next meeting. The board of supervisors shall cause the amount so estimated to be assessed, levied and col- lected in such town, in the same manner as other town charges ; but the moneys to be raised in any such town shall not exceed, in any one year, the sum of two hundred and fifty dollars. (1 R. S. 502, §4.) (See form No. 8.) It is the duty also of the supervisor to lay before the board of supervisors the statements of the com- missioners of highways in relation to the improve- ments necessary to be made on the roads and bridges ; and it is the duty of the board to raise the amount as estimated, provided it be within the sum limited. In 1832 the following provision was made for rais- ing an additional sum: Whenever the commissioners of highways of any town in this state shaU be of opinion that the sum of two hundred and fifty dollars, as now allowed by law, win be insufficient to pay the expenses actually necessary for the improvement of roads 64 Highway Laws. and bridges, it shall be lawful for such commission- ers to apply, in open town meeting, for a vote authorizing such additional sum to be raised as they may deem necessary for the purpose aforesaid, not exceeding two hundred and fifty dollars, in addition to the sum now allowed by law. (Laws of 1832, ch. 274, § 1.) Before making such application, it shall be the duty of the commissioners to give notice of their intended application, by posting the same in a con- spicuous manner, in at least five of the most public places in such town, at least four weeks next pre- ceding the annual town meeting ; such notice shall specify the amount to be applied for, and the pur- poses to which the same is to be appropriated, with the probable amount necessary to be expended at each place, if there shall be more than one. (Id., § 2.) (See form 9.) Whenever any application for a grant of moneys for the purposes mentioned in the first section of this act shall be made to any town meeting, it shall be the duty of the commissioners making the same to exhibit a statement of their accounts, and an estimate of the expenses necessary for the improve- ment of roads and bridges in such town the ensuing year. (Id., § 3.) If the town meeting shall, by their votes, deter- mine that a sum, over and above the amount now allowed by law, will be necessary for the improve- ment f)f roads and bridges, or to pay any balance that may be due, the clerk shall enter such resolu- tion as shall be agreed to in the minutes of the meet- ing, and deliver a copy thereof to the supervisor of the town, who shall lay the same before the board of supervisors, at their next annual meeting ; and COMMISSIONEES OF HIGHWAYS. 65 it shall be their duty to cause the amount specified in such resolution to be levied and collected in the same manner as other town charges of such town. (Id., § 4.) If any town shall, at an annual meeting, have already voted to raise a sum exceeding two hundred and fifty dollars, for the purposes aforesaid, it shall be the duty of the board of supervisors of the county in which such town is situated to assess, levy and collect the sum so voted to be raised upon said town. (Id., § 5.) Again, by subdivision five of section first of chap- ter 314 of the Laws of 1838, it is provided, that the board of supervisors of each county shall have power "to cause to be levied, collected and paid, in the manner now provided by law, such sum of money in addition to the sum now allowed by law, not ex- ceeding five hundred dollars in any one year, as a majority of the qualified voters of any town may, at any legal town meeting, have voted to be raised upon their town, for constructing or repairing roads and bridges in such town." Ko money shall be raised under the authority con- ferred by the fifth subdivision of the preceding sec- tion (which is the subdivision cited above), unless a written notice of the application to such town meet- ing to raise such amount shall be posted on the door of the house where the town meeting is to be held, and also at three public places in such town, for two weeks before the town meeting, and be also openly read to the electors present immediately after the opening of the meeting. (Id., § 2.) (See form No. 9.) In 1857, a further act was passed, which provides that, "Whenever the commissioners of highways of any town in this state shall be of opinion that the 9 66 Highway Laws. sum now provided by law will be insufficient to pay the expenses actually necessary for the improvement of roads and bridges, and to pay any balanqe that may be due for such improvement, it shall be lawful for such commissioners to apply in open town meet- ing for a vote authorizing such additional sum to be raised as they may deem necessary for the purposes aforesaid, not exceeding seven hundred and fifty dollars in addition to the sum now allowed by law. The same notice shall be given by the commissioners of their intention to apply for the raising of such additional sum as is now required by law for the raising of money for roads and bridges above the amount of two hundred and fifty dollars." (Laws of 1857, ch. 615, § 1.) (See form No. 9.) In 1873 an act was passed to alter the system of repairing the highways, whereby it was provided, among other things, that for such towns as may wish to change the present system of working and repair- ing the highways, it shall be lawful to raise by tax, to be levied and collect-d the same as any other tax for the repair of highways, an annual sum of money which shall be at least equivalent to the value of the day's work theretofore assessed at the commutation prices. (Laws 1873, ch. 395, as amended Laws 1874, ch. 169, and Laws 1875, ch. 341.) The amount of the tax is to be determined by the commissioners of highways, or a majority of them, and shall be delivered to the board of town auditors, who shall certify the same to the board of supervisors the same as any other charges. (Id.) This statute was amended by Laws 1879, ch. 31, and Laws 1881, ch. 644. The provisions of the enact- ment will be more fully given in the chapter relating to performance of labor on highways. COMMISSIONEKS OF HIGHWAYS. 67 Moneys, to whom paid and how expended. — By Laws of 1878, ch. 377, amended by Laws 1879, cli. 67, it is provided as follows : All moneys raised and collected upon the taxable property of any of the towns of this state, for high- way and bridge purposes, shall be paid over by town collectors of taxes to the commissioners of highways of the towns in which said moneys are so raised and collected, and to no other oflB.cer or per- son whatsoever. It shall be the duty of the board of supervisors to issue warrants to the collectors of towns requiring the paying over by them, of all moneys raised and collected for highway and bridge purposes, to the commissioners of highways of towns ; and it shall not be lawful for the board of supervisors of any county to issue warrants to town collectors directing them to pay over any moneys raised and collected upon any town for highway and bridge purposes, to the village authorities of any incorporated village, situated wholly or partly in any town. But nothing in this act shall prevent boards of supervisors from raising money under Laws 1869, ch. 865, § 2, or from issuing warrants to collect money to repay the same. And said boards may appoint commissioners to spend and account for moneys raised for road and bridge purposes under said chapter, under such regulations as such boards may deem proper. (§ 1.) It shall be the duty of the commissioners of high- ways in the several towns in this state to expend all moneys raised and collected in any town and paid over to such commissioners of highways, upon the highways and bridges situated in the town in which such moneys are raised and collected, and not else- 68 Highway Laws. where, in such proportions as they may deem just and proper. (§ 2. ) This act shall not apply to incorporated villages constituting a separate road district, or to special road districts of this state, now provided for by special act. (§ 3.) Supervisors may authorize town to harrow money. — In 1849 the board of supervisors in each county were empowered " to authorize any town in such county, by a vote of such town, to borrow any sum of money, not exceeding four thousand dollars in one year, to buUd or repair any roads or bridges in such town, and prescribe the time for payment of the same, which time shall be within ten years, and for assessing the principal and interest upon such town." (Laws of 1849, ch. 194, § 4, sub. 9.) Such authority can be granted by the board only on a vote of a majority of all the members elected in the county. (Id., § 5.) Again, an act passed in 1869 (chapter 855, as amended in 1874), " To extend the powers of boards of supervisors," provides as follows : The boards of supervisors of each county in this state, except New York and Kings, shall have power at their annual meeting, or at any other regular meeting, to authorize the supervisor of any town in said county, by and with the consent of the commis- sioner or commissioners of highways, town clerk and justices of the peace of such town, to borrow such money, for and on the credit of each town, not exceeding, however, in any year, the amount of one- half of one per cent on the assessed valuation of the taxable property of such town for such year, as the said town ofla^cers may deem, necessary to build or COMMISSIONEES OF HIGHWAYS. 69 repair any road or roads, bridge or bridges in such, town, or which shall be partly in suteh town and partly in an adjoin- ing town, or to pay any existing debt incurred in good faith by or on behalf of such town for such purpose, before the passage of this act ; and the said board of supervisors shall have power to describe the form of obligation to be issued on any such loan, and the time and place of payment, the time not to exceed ten years from the date of such obliga- tion, and the rate of interest th.ereon not exceeding six per cent per annum. And the said board of supervisors shall have power, and it shall be their duty from time to time, as the said obligations shall become due and payable, to impose upon the taxable property of such town sufficient tax to pay the said principal and interest of such obligations, according to the terms and conditions thereof. The town officers hereinbefore mentioned shall meet at the town clerk's office, in the town for which they are elected or appointed, on the first Monday of March in each year, at ten o'clock in the morning, to determine what amount, if any, shall be borrowed on the credit of such town, for the purposes con- tained in the first section of the act hereby amended, and for what roads or bridges such amount shall be borrowed or appropriated, and for the same purposes a meeting or meet- ings of the said officers may and shall also be held upon the call of the town clerk, whose duty it shall be to call the same within one week after the receipt of a written request of twelve tax payers of the town therefor, and such meeting may be adjourned from time to time, either for want of a quorum or in default of any final determination of any question arising concerning such appropriation ; but no such meeting shall be held subsequent to the first Monday of October in each year. The bonds authorized by this act are to be indorsed with the town clerk's certificate and are to be disposed of by the supervisor at not less than par, and pay the proceeds thereof to the commissioner or commis- sioners of highways of such town, to be used by him or them for the purposes for which the same were appropriated ; but 70 HiGHWAT Laws. not more than five hundred dollars of such proceeds shall be expended upon any one road or bridge except under and in pursuance of a contract to be made by the contractor with the commissioner or a majority of the commissioners of highways of such town for the construction or repair of such road or bridge, which contract shall be approved by a majority of the town auditors of such town, neither of whom shall be interested in such contract. Any amount borrowed and appropriated pursuant to the provisions of this act, for the repair or construction of any road or bridge in any town, and which it shall not be necessary to use for such purpose, shall be applied by the commissioner or commissioners of highways to the repair of any other road or bridge in such town. (As amended Laws 1882, ch. 350. ) (Id.) By Laws of 1875, ch. 483, as amended by Laws of 1876, ch. 257, the boards of supemsors, except in cities whose boundaries are the same as those of the county, are empowered to authorize any town or towns liable for the erection, care, repair and maintenance, in whole or in part, of any bridge (except in certain cases specified in the act) to borrow such sums of money as are necessary for those purposes. But no authority is to be exercised for this pui-pose except upon the application of the town or towns liable to be taxed therefor, to be made by vote of a major- ity of the electors thereof voting, at a regular town meeting or at a special town meeting, called for the purpose, or upon the application of the supervisor, by and with the consent of the commissioner of highways, town clerk and justices of the peace of such town or towns, respectively. By the same act, such boards of supervisors are empow- ered to authorize any town to issue its bonds and borrow money thereon, for a term not exceeding twenty years, for the purposes last above specified, and for the purchase of any plank, macadamized or turnpike road, or any toll bridge. The supervisors have power, under the act of 1875, ch. 483, § 1, subd. 13, upon application of the owners repre- senting a majority in value of the real estate lying on the line of any highway laid out through any unimproved lands, to appropriate the non-resident highway tax on the lands lying along said line, for the improvement of such highway under the direction of a commissioner or commis- sioners to be appointed by the board of supervisors. But this provision does not apply to or interfere with any case where the same object is provided for by any special law passed prior to January 1, 1875. Commissioners op Highways. 7x In case the roads or bridges are wholly or partly within the limits of any incorporated village, the consent of a majority of the trustees of the village is necessary for the action of the supervisors in raising money for building or repairing, in addi- tion to the consent of the commissioners, town clerk and justices of the peace. (Laws 1873, ch. 323.) In case roads and bridges are damaged or de- stroyed. — ^In case any road or roads, bridge or bridges shall be damaged or destroyed by the ele- ments or otherwise, after any town meeting shall have been held, and since the fifteenth day of Feb- ruary, eighteen hundred and sixty-five, then, and in that case, it shall be lawful for the commis- sioner or commissioners of highways, by and with the consent of the board of town auditors, or a ma- jority thereof, of the town or towns in which such road or roads, bridge or bridges shall be situated, to cause the same to be immediately repaired or rebuilt, although the expenditure of money required may exceed the sum now authorized to be raised by law upon the taxable property of the town or towns for such purposes ; and the commissioners of highways shall present the proper vouchers for the expense thereof to the town auditors, at their next annual meeting, and the said bill shall be audited by them, and the amount audited thereon shall be collected in the same manner as amounts voted at town meet- ings as now required. The commissioners acting under this act shall be entitled to receive, for each day's service actually rendered, two dollars. (Laws 1858, ch. 103, as amended 1865, ch. 442.) The board of town auditors may be convened in special session by the supervisor, or, in his absence, 72 Highway Laws. the town clerk, upon the written request of any commissioner of highways, and the bills and ex- penses incurred in the erection or repairs of any snch roads or bridges may then be presented to and audited by such board of town auditors ; and the supervisor and town clerk shall issue a certificate, to be subscribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and material furnished ; and such certificate shall bear interest from its date, and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses. (Id., § 2.) No account for services rendered or material fur- nished according to the provisions of this act shall be allowed by such board, unless the same shall be accompanied by the affidavit of the party or parties performing such labor or furnishing such mateiial, nor unless the commissioner or commissioners shall certify that such service has been actually performed, and such material was actually furnished, and that the same was so performed or furnished by the re- quest of said commissioner or commissioners, and such board of auditors may require and take such other proof as they may deem proper to establish any claim for such labor and material and the value thereof. (Id., § 3.) Under this statute the commissioners are author- ized to contract to pay for a bridge erected at its com- pletion, though they have at the time of the contract no money in their hands for that purpose. (Bootz v. Washburn,1l9 N.Y.E,.62.) And they would no doubt have power to borrow money on the credit of their town to pay for the bridge. (Id.) COMMISSIONEES OF HiaHWAYS. 73 SECTION IV. THEIR DTJTT AS FENCE VIEWERS. The commissioners of highways and assessors elected in every town shall, by virtue of their offices, be fence viewers of their town. (1 E.. S. 340.) The duties of fence viewers pertain to division and other fences, to floating timber, to strays, and to sheep killed by dogs. These duties will be described in the order in which they are stated. The statute provides that where two or more per- sons shall have lands adjoining, each of them shall make and maintain a just and equal proportion of the division fence between them, in all cases where one-half or more of each of such adjoining farms or lands shall be cleared or improved. And where such adjoining lands shall border upon any of the navi- gable lakes, streams or rivers within the state, it shall be and it is hereby made the duty of the owners thereof to maintain such division fence down to the line of low- water mark in such lakes, streams and rivers. (1 R. S. 353, § 30, as amended 1871, ch. 635.) The provisions of this statute are not limited to owners, but are for the benefit of any persons inter- ested — as tenants. {BronJcY. Becker, 17 Wend. 320.) Where two or more persons shall have lands ad- joining, and not within the provisions of section thirty of said article, as hereby amended, each of them shall make and maintain a just and equal pro- 10 74 Highway Laws. portion of the division fence between them, except the owner or owners of either of the adjoining lands shall choose to let such land lie open to the public. If he shall afterward inclose it, he shaU refund to the owner of the adjoining land a just proportion of the value, at that time, of any division fence that shall have been made and maintained by such adjoining owner, or he shaU build his proportion of such di- vision fence. (Id.) Before a party can claim that he has chosen to let his lands lie open to the public, he must give the adjoining owners, or the fence viewers, notice that he has so chosen, upon his being requested to build his share of the fence. The fact that he has never fenced his land, and has only used it for a wood and timber lot, will not establish that he has elected to let the same lie open. {PerMns v. PerMns, 44 Barb. 134.) There must be some act that amounts to a license to the people of the town, to go upon it and allow their cattle to feed upon it without being trespass- ers. (Id.) Where a person shall have cleared or improved lands lying open, he shall refund to the owner of the adjoining land, which is also cleared or im- proved, a just proportion of the value at the time this act shall take effect, of any division fence that shaU have been made and maintained by such ad- joining owner, or he shaU build his proportion of such division fence. (1 R. S. 353, § 32, as amended Laws 1871, ch. 635.) The Revised Statutes (1 R. S. 863, § 32) provides that two of the fence viewers may determine the value of the fence already built, where an owner inclosed his lands after letting them lie open. (See Commissioners op Highways. 75 Hewitt V. WatJcins, 11 Barb. 409.) But the section quoted above, substituted for the thirty-second sec- tion, makes no such provision, and the value can probably only be recovered by action. Disputes, flow settled. — If dispute arises between the owners of adjoining lands, concerning the pro- portion or particular part of fence to be maintained or made by either of them, such dispute shall be settled by any two of the fence viewers of the town. (1 E. S. 353.) The only disputes which fence viewers are empow- ered to settle are such as respects the proportion or particular part of the fence which is to be main- tained or made by the respective owners of adjoin- ing lands. Where one of the parties is bound by grant, covenant, presumption, or in any other way, to build the whole of the fence, the fence viewers have no jurisdiction. {Adams v. Van Alstyne, 25 N. Y. R. 232.) This statute is for the benefit of tenants as well as owners, and they may take the same proceedings as land-owners for an apportionment of a division fence. {BronTcY. Becker, 17 Wend. 320.) The fence viewers having jurisdiction, their deci- sion on the merits is final. It is not one-half in length, of a division fence which the statute requires each owner of adjoining lands to build, but a joint and equal proportion with reference to the cost of construction and maintenance. {People v. Dewey, 3 T. & 0. 638.) Proceedings. — When any of the above-mentioned matters' shaU be submitted to fence viewers, each party shall choose one ; and if either neglect, after 7fl Highway Laws. eight days' notice, to make such choice, the other party may select both. (1 R. S. 353.) The fence viewers shall examine the premises, and hear the allegations of the parties. In case of their disagreement, they shall select another fence viewer to act with them, and the decision of any two shall be final upon the parties to such dispute, and upon all parties holding under them. The decision of the fence viewers shall be reduced to writing, shall contain a description of the fence, and of the proportion to be maintained by each, and shall be forthwith filed in the office of the town clerk. (1 R. S. 354.) (See form No. 10.) On sale of land. — Whenever a subdivision or new apportionment of any division fence shall become necessary by reason of the transfer of the title of either of the adjoining owners, to the whole or any portion of the adjoining lands by conveyance, de- vise, or descent, such subdivision or new apportion- ment shall thereupon be made by the adjoining own- ers affected thereby ; and either adjoining owner shall refund to the other a juat proportion of the value at the time of such transfer of title, of any division fence that shall theretofore have been made and maintained by such other adjoining owner, or the person from whom he derived his title, or he shall build his proportion of such division fence. The value of any fence, and the proportion thereof to be paid by any person, and the proportion to be built by him, shall be determined by any two of the fence viewers of the town. (Laws 1871, ch. 635.) The statute empowering fence viewers to fix the just proportion of the fence to be maintained refers COMMISSIONEES OF HIGHWAYS. 77 to the state of tMngs existing when they are called upon to act, and has no relation to any former own- ership of the adjoining property. The just propor- tion of the fence is, of course, changed whenever a change takes place in the extent which each owner has in the lands which adjoin, and then a new ad- justment becomes necessary. {Adams v. Van Alstyne, 25 N. Y. R. 232.) When fence may be removed. — If any person who shall have made his proportion of a division fence shall be disposed to remove his fence and suffer his land to lie open, he may do so, provided such lands are not cleared or improved, at any time between the first day of November in any one year, and the first day of April following, but at no other time, giving ten days' notice to the owner or occupant of the ad- joining land of his intention to apply to the fence viewers of the town for permission to remove his fence ; and if, at the time specified in such notice, any two of such fence viewers, to be selected as afore- said, shall determine that such fence may with pro- priety be removed, he may remove the same. (1 R. S. 354, § 39, as amended 1871, ch. 635.) If any such fence shall be removed without such notice and permission, the party removing the same shall pay to the party injured all such damages as he may sustain thereby, to be recovered with costs of suit. (Id.) The only effect of a permission from the fence viewers to remove the fence is to remit the parties to their common law rights ; and if the cattle of the owner so removing his fence pass through the open- ing on to the land of his neighbor, he is liable for the damages committed by them. (Holladay v. JTarsA, 3Wend. 142.) Fences destroyed by floods. — Whenever a division '^^ Highway Laws. fence shall be injured or destroyed by floods, or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same, or his just proportion thereof, within ten days after he shaU be thereunto required by any person interested therein. Such requisition shall be in wri- ting, and signed by the party making it. If such person shall refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repair the same, at the expense of the party so refusing or neglecting, to be recovered from him, with costs- of suit. (1 R. S. 354. ) Examination of witnesses — costs. — Witnesses may be examined by the fence viewers on all ques- tions submitted to them ; and either of such fence viewers shall have power to issue subpoenas for, and to administer oaths to, said witnesses; and each fence viewer and witness thus employed shall be en- titled to one dollar and fifty cents per diem ; such fence viewers, or a majority of them, shall deter- mine what proportion thereof shall be paid by each of the parties interested in such division fence, and reduce their determination to writing, and subscribe the same and file it in the office of the town clerk where such fence viewers shall reside ; the party re- fusing or neglecting to pay such fence viewers, or either of them, shall be liable to be sued for the same, with costs of suit. (1 R. S. 355, as amended Laws of 1866, ch. 540.) (For forms of subpoena and determination, see forms Nos. 10 and 11.) WTien damages may be recovered. — If any person liable to contribute to the erection or reparation of a division fence shaU neglect or refuse to make and maintain Ms proportion of such fence, or shall per- Commissioners of Highways. 79 mit the same to be out of repair, he shall not be allowed to have and maintain any action for dam- ages incurred, but shall be liable to pay to the party injured aU such damages as shall accrue to his lands, and the crops, fruit trees and shrubbery thereon, and fixtures connected with the said land, to be ascertained and appraised by any two fence viewers of the town, and to be recovered with costs of suit; which appraisement shall be reduced to writing, and signed by the fence viewers making the same, but shall be only prima facie evidence of the amount of such damages. (Laws of 1838, ch. 261.) Though not, in terms, an amendment of the Re- vised Statutes, yet, in fact, it is a substitute for sec- tion thirty-seven of the statute on division fences, and is here given in place of that. The fence viewers are limited in their action, under the above section, to the damages occurring to the lands, crops, fruit trees, etc., and they cannot assess the value of cat- tle which escape through a defective fence into a cornfield, and eat so much corn that they die. {GlarTt V. Brown, 18 Wend. 213.) K an owner permit his portion of the division fence to get out of repair, and the cattle of the ad- joining owner escape from his field through such defective portion of the fence, and damage the former, he can recover no damage, as he contributes to the injury by not keeping his fence in repair. {Oowles V. Bal&ar, 47 Barb. 562.) Whenever the electors of any town shall have made any rule or regulation, prescribing what shall be deemed a sufficient fence in such town, any per- son who shall thereafter neglect to keep a fence ac- cording to such rule or regulation shall be precluded from recovering compensation, in any manner, for 80 Highway Laws." damages done by any beast, lawfully going at large on the highways, that may enter on any lands of such person, not fenced in conformity to the said rule or regulation, or for entering through any de- fective fence. (1 R. S. 355.) The statute of 1867 (ch. 814) practically repeals this section, by rendering it unlawful for any cattle, etc., to run at large in the highways, at any time. Neglect to build. — If such neglect or refusal shall be continued for the period of one month after re- quest in writing, to make or repair such fence, the party injured may make or repair the same, at the expense of the party so neglecting or refusing, to be recovered from him, with costs of suit. (1 R. S. 354.) An appraisement by the viewers is not necessary under this section. (Bronk v. Becker., 17 Wend. 320.) Presumption of sufficiency. — When the suffi- ciency of a fence shall come in question, in any suit, it shall be presumed to have been sufficient, until the contrary be established. (1 R. S. 356.) Compensation of fence viewers. — Each fence viewer is entitled to receive one dollar and fifty cents per day for the time occupied in relation to fences ; and they are to determine what proportion thereof shall be paid by each of the parties inter- ested in such division fence, and reduce their deter- mination to writing, and subscribe the same, and file it in the office of the town clerk where such fence viewers shall reside ; the party refusing or neglect- ing to pay such fence viewers, or either of them, shall be liable to be sued for the same, with costs. (1 R. S. 355, as amended 1866, ch. 540.) Commissioners of Highways. 81 As to floating timber.— The duty of fence viewers, as to floating timber, is prescribed in the Revised Statutes, as follows : Whenever any logs, timber, boards or plank, in rafts or otherwise, shall have been drifted upon any island in any of the waters within this state, or upon the bank or shore of any such waters, the owner of such logs or other lumber may take the same away, on his first paying or tendering to the owner or pos- sessor of the land on which the same shall have been drifted, the amount of the damages which such owner or possessor shall have sustained by reason thereof, and which may accrue in the removal of such logs or other lumber. (1 B,. S. 697.) If the parties cannot agree as to the amount of such damages, either party may apply to any two of the fence viewers of the town or city in which such lumber may be found, whose duty it shall be, after hearing the proofs and allegations of the par- ties, to determine the same at the expense of the owner of the lumber, and their decision shall be con- clusive. (Id.) The fence viewers, or either of them, shall have power to issue process for such witnesses as may be desired by either party, and to administer oaths to all witnesses produced before them. (Id.) In case the owner does not appear within a pre- scribed time, the statute authorizes the timber to be sold, and directs that a portion of the proceeds be paid to the owner of the lands for damages. But it provides that, before such money be paid, such damages shall be assessed by any two fence view- ers of the city or town, and a specification thereof, signed by such fence viewers, shall be filed in the oflace of the clerk of the city or town. (1 R. S.699, §9.) 11 82 Highway Laws. The above provisions do not apply to that kind of lumber called drift-wood. (Id., § 21.) In relation to strays. — There are two methods pre- scribed by statute for the recovery of damages occa- sioned by cattle straying into an inclosure. That prescribed by chapter 178 of the Laws of 1880, pro- viding for the summary seizure and disposition of such cattle; and that provided by the Revised Stat- utes, given below. These remedies are concurrent ; and every person damaged may resort to either, at his discretion. The provisions of the Revised Stat- utes, regarding strays, are as follows : Whenever any person shall, at any time, have any strayed horse upon his inclosed land, or shall, between the first day of November, in any year, and the first day of April thereafter, have any strayed neat cattle or sheep upon his inclosed lands, such person shall, within ten days after the coming of any such stray thereon, deliver to the clerk of the town within which such lands shall be, a note in writing, containing the name and place of abode of such person, and the age, color and marks, natural and artificial, of each stray, as near as may be. (1 R. S. 361, § 17.) If any person, upon whose inclosed lands any such neat cattle, horses or sheep shall come, shall neglect to deliver such note in writing to the town clerk within the time above required, he shaU be precluded from the benefits of this article, and from all claim to compensation for keeping such strays. (Id., § 18.) The town clerk, on the receipt of every such note, shall enter the same at large in a book to be pro- vided by him for that purpose, for which entry he shall receive six cents each for all neat cattle and Commissioners op Highways. 83 horses, and three cents for each sheep, to be paid by the person delivering the note. (Id., § 20.) The book in which such entries shall be made shall always be kept open to inspection ; and no fee shall be taken by the clerk for any search therein. (Id., § 20.) The person delivering the note shall be entitled to receive therefor nine cents each for all neat cattle and horses, and three cents for each sheep, described in the note; and he may detain such strays until the owner thereof shall appear and pay such fees, to- gether with the fees paid or due to the clerk, and all reasonable charges for keeping the strays ; such charges being first ascertained by two of the fence viewers of the town, to be selected by the person claiming the same, in case he and the owner of the stray cannot otherwise agree. (Id., § 21.) Each fence viewer shall be entitled to receive six cents for every mile he shall be obliged to travel, from his house to the place where such strays are kept, and twenty -five cents for a certificate of the charges as ascertained by him ; such fees to be paid by the owner of the strays. (Id., § 22.) Every person who shall deliver such note, and keep any stray described therein, shall, if the same be not sooner claimed and redeemed, between the first day of May and the twentieth day thereafter, give notice to one of the fence viewers of the town, whose duty it shall be to ascertain, according to the best of his knowledge and judgment, the reasonable charges of keeping such stray, a certificate whereof shall be given by him to the person applying for the same. The fence viewer shaU be entitled to the like fees as above provided, to be paid by the person applying for the certificate. (Id., § 23.) If no owner shall appear to claim such stray on 84 Highway Laws. or before the first day of May next after the making of such entry, or if the owner shall refuse or neg- lect to pay the sums charged on such stray, then the person who shall have delivered such note, and kept such stray, may proceed to sell the same by public auction, to the highest bidder. (Id., § 24.) Such person shall give at least twenty days' pre- vious notice of the time and place of such sale, by advertisement, to be posted up at three of the most public places in the town where the strays shall have been kept. (Id., § 25.) Out of the moneys arising from such sale, he shall retain for his own use the sums charged on such strays for the aforesaid note in writing, entry and certificate, together with the sum specified in the certificate for keeping such strays, and the like charges for such sale as are allowed on sales under executions issued out of the justices' courts. He shall pay the residue of said moneys, on demand, to the owner of the strays, if he shall appear to demand the same. (Id., § 26.) If the owner shall not appear and demand the residue of such moneys, within one year after the sale, he shall be forever precluded from recover- ing any part of such moneys; and the aforesaid residue shall be paid to the supervisor of such town, for the use of the town ; and his receipt shall be a legal discharge to the keeper of such strays. (Id., §27.) If the person who shall have sold such strays shall not, within thirty days after the expiration of the year, pay such residuary moneys to the super- visor of the town, he shaU forfeit to the town double the sum so remaining in his hands, together with the amount of such residuary moneys. (Id., § 28.) Each of the cities of this state shall be considered towns for the purposes of this article. (Id., § 29.) Commissioners of Highways. 85 In relation to sheep killed by dogs. — It is also the duty of fence viewers to assess, when required, the damage arising from the killing of sheep by dogs. That part of the statute relating to such duties is as follows : The owner of any sheep or lambs that may be killed or injured by any dog may apply to any two fence viewers of the town, or assessors of the city, or of the ward of the city, who shall inquire into the matter, and view the sheep injured or killed, and may examine witnesses in relation thereto, for which purpose either of them shall have power to adminis- ter oaths. If they are satisfied that the same were killed or hurt only by dogs, and in no other way, they shall certify such fact, the number of the sheep killed or hurt, and the amount of the damages sus- tained thereby by the owner, together with the value of the sheep hurt or killed. (1 R. S. 704, § 10, as amended 1862, ch. 244.) (See form No. 12.) Their certificate evidence. — The said certificate shall be presumptive evidence of the facts therein contained, in any suit that may be brought by the party injured against the owner or possessor of any dog, if it shall appear on the trial of such suit that notice in writing of the time and place of such view shall have been served at least twenty-four hours be- fore, on the said owner or possessor, either person- ally or by leaving at his dwelling-house with a per- son who usually dwells therein, and who shall have arrived at the age of sixteen years. (Id., § 11.) In addition to the provisions of the Revised Stat- utes, there was an act passed in 1864 (ch. 197) relat- ing to tax upon dogs in Ontario county, which con- tained a provision that such act may be extended to any county, by a resolution to that eflFect passed 86 Highway Laws. by the supervisors of sucli county. Among the pro- visions of that act are the following : The owner or owners of any sheep or lambs that may be killed or injured by dogs may apply to any two fence viewers of the town, who shall inquire into the matter and examine witnesses in relation thereto, for which purpose either of them shall have power to administer oaths, and if they shall be satisfied that the same were killed by dogs, and in no other way, they shall certify such fact, the number of such sheep killed and the number injured, the value of the sheep killed or injured immediately previous to such killing or injury, together with the value of the sheep after being killed or injured, together with the amount of their fees. (Laws of 1864, ch. 197, §3.) Such certificates shall be presented to the board of town auditors, at their annual meeting for auditing town accounts, who shall have the same power in auditing or allowing the same as in regard to town accounts, and if such board shall be satisfied, by the oath of the person claiming such damages, that such claimant has not been able to discover the owner or possessor of the dog or dogs by which such damage was done, or that he has failed to recover his dam- ages of such owner or possessor, they shall give an order on the supervisor of the town for the amount which they shall allow, who shall pay such order out of the funds arising from the provisions of this act. (Id., § 4.) SECTION V. MISCELLANEOirS PKOVISION8 — COMPENSATION. May consent to use of highway by railroad. — Whenever any association or individual shall con- Commissioners or Highways. 87 struct a railroad, upbn land purchased for that pur- pose, on a route which shall cross any road or other public highway, it shall be lawful for the commis- sioners of highways, having the supervision thereof, to give a written consent that such railroad may be constructed across or on such road or other public highway ; and, thereafter, such association or indi- vidual shall be authorized to construct and use such railroad across or on such roads or other highways as the commissioners aforesaid shall have permitted ; but any public highway, thus intersected or crossed by a railroad, shall be so restored to its former state as not to have impaired its usefulness. (Laws of 1835, ch. 300.) Railroad corporations have power, To construct their road across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch ; but the company shall restore the stream or water-course, street, high- way, plank road and turnpike thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness. Every company formed under this act shall be subject to the power vested in the canal commissioners by the seventeenth section of chapter two hundred and seventy- six of the session laws of eighteen hundred and thirty-four. Nothing in this act contained shall • be construed to authorize the erection of any bridge, or any other obstructions across, in or over any stream or lake navigated by steam or saU boats, at the place where any bridge or other obstructions may be proposed to be placed; nor to authorize the construction of any railroad not already located in, upon or across any streets in any city, without the assent of the corporation of such city. (Laws 1850, ch. 140, § 28.) 88 Highway Laws. Nor to authorize any such railroad company to construct its road upon and along any highway, without the order of the supreme court of the judi- cial district in which said highway is situated, made at a special term of said court, after at least ten days' notice in writing of the intention to make application for said order shall have been given to the commis- sioners of highways of the town in which said high- way is situated. (Laws 1850, ch. 140, § 26, subd. 5, as amended 1864, ch. 582.) The consent of the commissioners, or the order of court permitting a railroad company to occupy a highway, does not . deprive the owner of the fee of his right to compensation for the extra burden im- posed. The statute provides for obtaining the con- sent of the public to an interference with its ease- ment ; but the private interests of the adjoining owner are to be protected in other ways. {Davis v. Mayor of New YorTc, 14 K. Y. R. 521 ; Fletcher v. Auburn, etc., R. R. Go., 25 Wend. 462.) Neither the consent of the commissioners nor the order of the court authorizes a company to use a high- way without making compensation to the owner of the fee. ( Williams v. N. ' Y. Central R. R.. 16 N. Y. E. 197.) Highway commissioners cannot prevent the con- struction of a railroad over a highway, after the court has given authority. (Baxter v. S. 8. R. R. Co., 11 Abb. N. S. 178.) The manner of constructing the crossmg is exclu- sively within the discretion of the raUroad company ; its decision cannot be reviewed if that discretion is exercised in good faith. But where it neglects its duty in not properly making approaches to a bridge it has constructed to carry the highway over its track or in not keeping them in order, it may be indicted for maintaining a nuisance in obstructing the highway. (People V. New York Central, etc., R. R. Co.. 74: N. Y. 78.) It is the duty of a railroad corporation, both under the statute and upon common-law principles, to keep it- crossing in safe condition so that a traveler upon Commissioners of Highways. 89 the highway exercising ordinary care can pass ov^er it in safety. (Oalev. New YorTc Gent, etc., B. B. Co., 76 N. Y. R. 594.) May agree with turnpike or plank road company for use of highway. — Whenever it shall become necessary for any such company to use any part of a public highway for the construction of a plank or turnpike road, the supervisor and commissioners of highways of the town in which such highways are situated, or a majority, if there be more than one such commissioner in such town, may agree with such company, upon the compensation and damages to be paid by said company for taking and using such highway for the purposes aforesaid. Such agreement shall be in writing, and shall be filed and recorded in the town clerk's office of such town. In case such agreement cannot be made, the compensa- tion and damages for taking such highway for such purpose shall be ascertained in the same manner as the compensation and damages for taking the prop- erty of individuals. Such compensation and dam- ages shall be paid to the said commissioners, to be expended by them in improving the highways of such town. (Laws 1847, ch. 210, § 26.) No supervisor or commissioner of highways of any town shall make any agreement with any plank road company, or turnpike road company, under the first section of "An act in relation to plank road and turnpike road companies," passed November 24, 1847, for the right to take and use any part of any public highway for a plank road or a turnpike road, without they first obtain the consent in writing of at least two-thirds of all the owners of land along such highway who shall actually reside on that part of the h^hway on which such plank road or turnpike road is to be constructed. (Laws 1850, ch. 71, § 5.) The supervisor and commissioners cannot agree to the use of a highway by a plank road or turnpike company without receiving a pecuniary considera- tion for such use ; a mere condition, as not to put toll gates within certain limits, is not sufficient. 12 90 Highway Laws. {Palmer v. Fort Plain, etc., Plrnik Road Co., 11 N. Y. E. 376.) The supervisor and commissioners of highways cannot join in an action on an agreement made by them with a plank road company. (Id.) A turnpike company, taking a deed from the highway commissioners, acquires only an easement. {North. Lum. Co. v. Smith, 15 Barb. 355.) An agreement, granting to a turnpike company the use of a highway forever, is not void for excess of authority. {Town of FishMll v. Fishkill & B. TurnpiJce Co., 22 Barb. 634.) The legislature may revoke the excess of author- ity, with consent of the other party. {People v. FishMll & B. T. Co., 27 Barb. 445.) To erect mile stones. — It shall be the duty of the commissioners of highways of each town to cause mile boards or stones to be erected, where not al- ready erected, on the post roads, and such other public roads in their town as they may think proper, at the distance of one mile from each other, with such fair and legible inscriptions as they may think proper. (1 E. S. 503, § 5.) Ouide posts. — The commissioners of highways of each town shall cause guide posts, with proper in- scriptions and devices, to be erected at the intersec- tions of all the post roads in their town, and at the intersection of such other roads therein as they may deem necessary. (1 E. S. 503, § 9.) Penalty for injury. — Whoever shall destroy, re- move, injure or deface any mile board or mile stone erected on any highway, shall forfeit for every offense the sum of ten dollars ; he shall also be deemed guilty of a misdemeanor, and, on conviction, shall COMMISSIONEK OF HIGHWAYS. 91 be fined not exceeding fifty dollars, or imprisoned not ex- ceeding three months, at the discretion of the court. (1 E. S. 526.) Whoever shall injure or deface any description affixed to a guide post erected on any highway, or destroy or injure any such guide post, shall be liable to all the penalties pro- vided in the last preceding section. (Id.) All penalties or forfeitures given in this title, and not otherwise specially provided for, shall be recovered by the commissioners of highways of the town in which the offense shall be committed, and, when recovered, shall be applied by them in improving the roads and bridges in such town . To procure scraper and plough, etc. — The commissioners of highways, whenever they shall think it necessary or use- ful, may direct or empower any overseer of highways in their respective towns to procure a good and sufficient iron or steel shod scraper, road machine, plough, or either of them, for the use of his road district, or such tools or any of them may be purchased, owned and cared for, for and on behalf of two or more road districts, in any town jointly, by the overseers thereof whenever they shall be empowered to do so by the commissioners of highways and the town board of such town ; each district to pay toward the expense thereof in proportion to the highway tax assessed therein. Such expense to be paid for by a portion of the road tax of such district not exceeding one-half thereof in any one year, and which may be required to be paid in money for such purpose and be assessed and levied upon the property of said districts and collected in the same manner as taxes are now assessed and levied and collected in the town in which such districts are situated, except that the part thereof eo required to be paid in money shall be put in a separate column upon the tax roll, and the board of supervisors of the county in which such town is situated shall cause such sum as shall be certified by said town board to be levied upon the taxable property of said districts. (1 E. S. 504.) (Amended 1884, ch. 398.) Stone crusher. — The Laws of 1884, chapter 230, provide as follows : § 1. The supervisor of any town in the State of New York may when authorized so to do by a majority vote of the electors voting thereon at the annual or at a special town meeting, purchase a machine for crushing stone, to be used for the improvement of the roads of said town and 92 Highway Laws. shall present his account and vouchers for such purchase to the board of town auditors of his town for audit. § 2. The town clerk on the application of the road com- missioners of the town, or a majority of them, shall give at least ten days' notice that such vote will be taken by posting notices of the same at not less than five public places in the town ; and the vote when taken shall be by ballot, which, written or printed, shall read as follows: " For a stone crusher," or " Against a stone crusher." § 3. Such machine when purchased shall be deemed to be, and shall be under the care and custody of the super- visor of the town, and where there is an incorporated vil- lage consisting of a separate road district in any town, he shall permit an equitable use of said machine to said sepa- rate road district. § 4. The board of supervisors of the county shall cause to be levied and collected by tax in any town having au- thorized the purchase of a stone crashing machine in the same manner as other town taxes are levied and collected, such sum as shall be necessary to pay for the purchase of the same. Duty in case of fire in woods. — Whenever the woods in any town shall be on fire, it shall be the duty of the justices of the peace, the supervisor and the commissioners of high- ways of such town, and each of them, to order such and so many of the inhabitants of such town, liable to work on the highways, and residing in the vicinity of the place where such fire shall be, as they shall severally deem neces- sary, to repair to the place where such fire shall prevail, and there to assist in extinguishing the same, or in stop- ping its progress. (1 K. S. 697.) If any person, so ordered to repair to and assist in man- ner aforesaid, shall refuse or neglect to comply with any such order, he shall forfeit and pay the sum of fifty dollars, and shall also be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine or imprisonment, or both, at the discretion of the court ; such fine not to ex- ceed one hundred dollars, and such imprisonment not to exceed sixty days. (Id.) Every forfeiture recovered under the last section shall be applied as a reward to such person or persons as the officers above mentioned, or a majority of them, shall deem best entitled thereto, for superior exertions in extinguishing or stopping the progress of such fire. (Id.) Commissioners of Highways. 93 To account to town auditors. — The commissioners of highways of each town shall render to the board of town auditors, at their annual meeting for auditing the accounts of town officers, an account in writing, stating, 1. The labor assessed and performed in such town. 2. The sums received by such commissioners for fines and commutations, and all other moneys received under this chapter, or from any source ; also itemized accounts of all moneys paid out during the year, receipted in full by the respective parties to whom such money was paid. (Amended 1884.) 3. The improvements which have been made on the roads and bridges in their town, during the year immedi- ately preceding such report, and an account of the state of such roads and bridges ; and, 4. A statement of the improvements necessary to be made on such roads and bridges, and an estimate of the probable expense of making such improvements, beyond what the labor to be assessed in that year will accomplish. (1 E. S. 502, § 3.) The meeting for auditing the accounts of town officers is held on the Tuesday next preceding the annual town meeting. To account for moneys. — The commissioners of high- ways in each town of this state, and all town officers who receive or disburse any moneys belonging to their respective towns, shall, on the last Tuesday preceding the annual town meeting of their town, account with the board of town officers of such town for all moneys received and dis- bursed by them by virtue of their office. (Laws 1863, ch. 172.) To deliver records, hooks, papers, etc., to successors. — Whenever the term of office of the commissioners of high- ways of any town shall expire, and another or others shall be elected or appointed, it shall be the duty of the persons so elected or appointed, immediately after they shall have entered on the duties of their office, to demand of their predecessors or predecessor all the records, books and pa- pers, under their or his control, belonging to such office. (1 R. S. 359.) Whenever a commissioner of highways shall re- sign, and another person shall be elected or appointed in his stead, the person so appointed or elected shall 94 Highway Laws. make such demand of the person bo resigning. (Id, § 6.) It shall be the duty of every person so going out of office, whenever thereto required pursuant to the foregoing provisions, to deliver, upon oath, all the records, books and papers in his possession, or under his control, belonging to the office, held by him; which oath may be administered by the officer to whom such delivery shall be made. It shall also be the duty of every commissioner of highways so going out of office, at the same time, to pay over to such successor the balance of moneys remaining in his hands, as ascertained by the auditors of town accounts. (Id., § 7.) Upon the death of any of the officers above enu- merated, the successors or successor of such officer shall make such demand as above provided of the executors and administrators of such deceased offi- cer; and it shall be the duty of such executors or administrators to deliver, upon the like oath, all records, books and papers in their possession, or under their control, belonging to the office held by their testator or intestate. (Id., § 8.) If any person so going out of office, or his execu- tors or administrators, shall refuse or neglect, when thereunto lawfully required, to deliver such records, books or papers, he shall forfeit to the town, for every such refusal or neglect, the sum of two hun- dred and fifty doUars; and it shall also be the duty of the officer or officers entitled to demand such rec- ords, books and papers, to proceed to compel the delivery thereof in the manner prescribed in the sixth title of the fifth chapter of this act, and, to that end, the fiftieth, fifty-first, fifty-second, fifty- third, fifty-fourth and fifty-fifth sections of that title Commissioners of Highways. 95 shall be deemed to apply to the officers above enu- merated, and their executors or administrators. (Id, § 9.) The proceedings to compel delivery above referred to are as follows : Whenever any person shall be removed from office or the term for which he shall have been elected or appointed shall expire, he shall, on demand, deliver over to his successor all the books and papers in his custody as such officer, or in any way appertaining to his office. Every person violating this provision shall be deemed guilty of a misdemeanor. (1 R. S. 125, § 50.) If any person shall refuse or neglect to deliver over to his successor any books or papers, as re- quired in the preceding section, such successor may make complaint thereof to the chancellor, any jus- tice of the supreme court, any circuit judge of the circuit, or the first judge of the county where the person so refusing shall reside; and if such offi- cer be satisfied by the oath of the complainant, and such other testimony as shall be offered, that any such books or papers are withheld, he shall grant an order directing the person so refusing to show cause before him, within some short and rea- sonable time, why he should not be compelled to de- liver the same. (Id., § 51.) At the time so appointed, or at any other time, to which the matter may be adjourned, upon due proof being made of the service of the said order, such officer shall proceed to inquire into the circumstances. If the person charged with withholding such books or papers shaU make affidavit before such officer, that he has truly delivered over to his successor aU such books and papers in Ms custody, or appertain- 96 Highway Laws. ing to his office, within his knowledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged. (Id., §52.) If the person complained against shall not make such oath, and it shall appear that any such books or papers are withheld, the officer before whom such proceedings shall be had shall, by warrant, commit the person so withholding to the jail of the county, there to remain until he shall deliver such books and papers, or be otherwise discharged according to law. (Id., § 53.) In the case stated in the last section, if required by the complainant, such officer shall also issue his warrant, directed to any sheriff or constable, com- manding them, in the daytime, to search such places as shall be designated in such warrant, for such books and papers as belonged to the officer so re- moved, or whose term of office expired, in his offi- cial capacity, and which appertained to such office, and seize and bring them before the officer issuing such warrant. (Id., § 54.) Upon any books and papers being brought before such officer, by virtue of such warrant, he shall in- quire and examine whether the same appertain to the office from which the person so refusing to de- liver was removed, or of which the term expired, and he shaU cause the same to be delivered to the complainant. (Id., § 55.) The motion to compel delivery, as provided in section 51, is to be made before a justice of the su- preme court, out of court ; and any justice of that court has jurisdiction. (Welch v. Cook, 7 How. 282.) A county judge of the county also has juris- diction. A warrant to compel delivery should not be granted, unless the applicant' s title to the office is clear. (5 Hill, 63, note ; 5 Abb. 73; id. 281.) Commissioners of Highways. 97 Compensation. — The commissioners of highways in any town in this state shall be allowed the sum of two dollars per day for each day actually and neces- sarily spent in the discharge of their official duties. (Laws of 1857, ch. 615, as amended 1870, oh. 243.) Where the commissioners are engaged as inspect- ors of plank roads or turnpikes, the fees are the same, to be paid by the corporation or persons whose road shall be inspected in case the toll-gates are ordered to be thrown open, but otherwise to be charged, audited and paid the same as other fees and expenses of highway commissioners. (Laws 1873, ch. 440, § 3.) Where a commissioner of highways presented to a town board his bill for services, duly verified, stat- ing the number of days' service and giving the dates and the particular service or duty performed, it was held that the board could not audit him a gross sum, but must pass specifically on each item, and could be compelled by mandamus to do so. {People ex rel. Thurston v. Auditors of Mmira, 82 IS". Y. E. 80.) SECTION VI. LEGAL PROCEEDINGS BY OR AGAINST COMMISSIONERS. 'Eo corporate duty is imposed upon towns in respect to the care, superintendence or regulation of highways within their limits ; commissioners of highways, and overseers under them, are independ- ent public officers, not in any respect subject to the town in the discha/rge of their duties, and the town in its corporate character has no control over the highways. Neither commissioners, nor overseers under them, are agents of the town, and the latter is not chargeable for any of their acts or delinquencies. {People V. Auditors of Esopus, 74 N.Y. R. 310 ; Peo- 13 98 Highway Laws. pie v. Auditw sof Little y alley, 76 id. 316.) But by Laws 1881, eh. 700, towns are made liable, in cer- tain cases, for such acts. In the absence of express legislative enactment, a town has no power to enter into a contract for the building of a bridge therein. (Donnely v. Town of Ossining, 18 Hun, 352.) The common council of a city in acting as commis- sioners of highways under the provisions of Laws 1841, ch. 225, as amended by Laws 1857, oh. 383, in relation to bridges between adjoining towns, do not act as agents of the city, but as independent officers, and the city is not liable for their negligence. {Theall v. City of Tankers, 21 Hun, 265.) Actions may be brought by the commissioners of highways of the several towns, upon any contract lawfully made with them, or their predecessors, in their official character, to enforce any liability or any duty enjoined by law to such officers, or the body which they represent ; to recover any penalties or forfeitures given to such officers, or the bodies whom they represent ; and to recover damages for any injuries done to the property or rights of such officers, or of the bodies represented by them. (2 R. S. 473, § 92.) Such actions may be brought by such officers in the name of their respective offices, notwithstanding the contract or obligation on which the same is founded may have been made with or to any prede- cessors of such officers, in their individual names or otherwise, and notwithstanding any right of action may have accrued previous to the time when the officers commencing such suit entered upon the exe- cution of the duties of their office. (Id., § 93.) But in cases where, by special provision of law, actions are directed to be brought by or against any Commissioners of Highways. 99 public bodies, in the name of any such body, the same shall be brought or defended in such name by the persons representing such body then in office . (Id., § 94.) This statute was intended to provide for cases where these officers, in the performance of their offi- cial duties, should take from other contracts run- ning in terms to such officers by their names of office. (JPalm&r v. Fort Plain, etc., Plank Road Company, 11 N. Y. K. 390.) Therefore, neither the commis- sioners, separately or jointly with the supervisor, can maintain an action on a contract made by them on behalf of the town with a plank road company for the use of a highway. (Id.) Nor does the 86th stat- ute authorize them to maintain a civil action against a turnpike company which has taken possession of a highway before making compensation. {Cornell v. Butternut, etc. , Turnpike Company, 25 Wend. 365.) In Rose v. Depue (1 T. & C. 16), where high- way commissioners were induced, by false rep- resentations, to purchase and pay for lumber for repairing a bridge, and the sum paid therefor was afterward allowed to them by the town board, it was held that the credit given the commissioners by the town did not impair their right to recover back the money paid to the vendor of the lumber. And in Thompson v. Allen (7 Lans. 459), it was held that where commissioners of highways changed the course of a sluiceway, crossing and draining a highway, so as to turn the water upon the adjoining land, and the land-owner obstructed the sluiceway and was sued by the commissioners for a penalty, the land-owner might prove the injuries to his land in defense to the action. But it seems that commis- sioners in grading highways are not bound to pro- 100 • Highway Laws. vide a channel for the drainage of surface water, noi liable for injury resulting from an omission to do so. {Gould V. Booth, 66 N. Y. R. 62.) Actions against railroads. — The commissioner or commissioners of highways in each of the towns of this state are hereby empowered to bring any action against any railroad corporation that may be necessary or proper to sustain the rights of the pub- lic in and to any highway in such town, and to en- force the performance of any duty enjoined upon any railroad corporation in relation to any high- way in the town of which they are commissioners, and to maintain an action for damages or expenses which any town may sustain, or may have sustained, or may be put to, or may have been put to, in con- eequence of any act or omission of any such corpo- ration in violation of any law in relation to such highway. (Laws of 1855, ch. 255, § 1.) Nothing ia the above act, however, is to be con- strued as in any manner impairing the rights of any person or oflBcer to bring any action now authorized bylaw. (Id., §2.) Where a railroad company constructs their road across a highway, injuring the highway, and neg- lecting to restore it to its former state of usefulness, such company is liable in an action by the commis- sioners of highways, both to damages, under the general railroad act requiring crossings to be con- structed without injury to the road, and also to treble damages, under 1 Revised Statutes, 526, § 130, respecting injuries to highways. Sipperly y. Troy & Boston Railroad Oo., 9 How. 83.) Action against successors. — Where any contract shaU have been entered into, or any liability shall Commissioners of Highways. 101 have been incurred by or in behalf of any town by any officer thereof, within the scope of his authority, the same remedies may be had upon any successor of such officer ia his official character, as might have been against such officer if he had continued in office. (2 R. S. 474.) Where, however, the officer has exceeded his au- thority in entering into a contract or in incurring the liability, such contract or liability is not obliga- tory on his successor. A commissioner of highways has no general au- thority, as such commissioner, to borrow money, or to give promissory notes, and thereby bind his suc- cessors in office. ( Van Alstyne v. Freday, 41 N. Y. R. 177.) The commissioners have no authority to bind a town, unless such power is expressly conferred by statute, or is such as is necessarily implied from the power conferred. {Mather v. Crawford, 36 Barb. 564; People V. Auditors, 10 Hun, 551.) The statute nei- ther expressly nor impliedly authorizes them to pledge the credit of the town to borrow money to buUd bridges or repair roads, and, where they have thus pledged the credit of the town, their successors are not liable in an action brought against them in their official capacity on the indebtedness. (Id. ; BarJcer v. Loomis, 6 HlU, 463 ; Yan Alstyne V. Freday, 41 N. Y. R. 174.) If a commissioner wrongfully neglect to repair a bridge, and injury results, it is exclusively his wrong, and his successors in office are not liable. {Laments. HaigM, 44 How. 1.) Where commissioners borrow money without au- thority, for repair of roads and bridges, they are per- sonally liable therefor. {Palmer v. Vandenburgh, 3 Wend. 197.) 102 Highway Laws. However, the commissioners may give notes in their official character for a liability incurred by them on behalf of the town within the scope of their authority, and the law gives the same remedy against their successors as might have been had against those who signed the note if they had remained in office. {Potter v. Davis, HiU «& D. Supp. 394.) The commissioners have the implied authority to adjust controversies in relation to encroachments on highways, and may take security for payment of the damages fixed for such encroachment, and may maintain actions on such securities. {Commissioners of Gourtlandville v. PecTc, 5 HiU, 215.) Commissioners have also the power to invest pub- lic moneys lying in their hands, and to enforce the security in their official name. (Id.) But they have no power to take a bond assuming the expense of laying out a highway, and indemnify the town against such expense. ( Webb v. Albertson, 4 Barb. 55 ; Palmer v. Fort Plain, etc.. Plank Road Co., 11 N. Y. R. 376.) Action, how brought. — Actions against the com- missioners of highways shall be brought against them individually, specifying in the process, plead- ings and proceedings, their name of office ; and such actions may be commenced in the same man- ner as against individuals ; but the defendants shaU not be held to bail in any case, unless upon the order of a judge of the court in which the action is commenced, founded upon proof by affidavit that the same is brought for some personal misconduct in office, or upon some personal liability assumed or incurred by such defendants in their official char- acter. (2 R. S. 474, § 96.) In actions by and against commisBioners, the com- Commissioners of Highways. 103 plaint should show by proper averments that the action is brought against them in their oiRcial ca- pacity, and not individually. The requirement of the statute is not formal but matter of substance, and a failure to comply with it is a ground of nonsuit. (Boots v. Washburn, 79 N. Y. R. 207.) May employ counsel. — Commissioners of high- ways may employ counsel to assist in the prepara- tion and trial of an indictment for obstructing a public highway ; and to render other legal services in relation to matters connected with the control and management of public highways ; and a recovery can be had for such services against the successors in office of the commissioners employing such coun- sel. {Du'fitz V. Duntz, 44 Barb. 459.) Where a commissioner of highways, who has em- ployed counsel within the scope of his authority, advanced the amount of such counsel's bUl, he may recover the amount from his successor in office. (Id.) Actions not to abate. — No suit commenced by or against any commissioner of highways shall be abated or discontinued by his death, removal from, or resignation of, his office ; nor by the expiration of his term. The court in which any such action shall be pending shall substitute the name of the succes- sor m such office upon the application of such suc- cessor or of the adverse party. (3 R. S. 474, § 100.) But before any new defendant shall be so substi- tuted without his consent, at least fourteen days* notice of the application for that purpose shall be personally served on him. (Id., § 101.) Under these provisions, if no substitution is made, the suit proceeds in the name of the original com- missioners. (Seld. Notes, No. 5, 64.) It is no ob- jection to substituting a successor in office as plain- tiflf in a suit brought by his predecessor that he is hiuiself the defendant in the suit. [Thayer v. Lewis, 4 Den. 269.) 104 Highway Laws. The above provisions of the statute do not extend to justices' court. A justice has no power to compel an appearance ; and, if the successor do not volun- tarily appear in such a case, the action should pro- ceed against the original defendants, and the plain- tiff may recover judgment against them. (Colegrove V. Breed, 2 Den. 125.) Judgment, how collected. — In suits by and against commissioners of highways, the debt, damages or costs recovered against them, shall be collected in the same manner as against individuals ; and the amount so collected shall be allowed to them in their official accounts. 2 K. S. 476, § 108. Where highway commissioners pay a judgment in a suit against them in their official capacity, they should include the amount paid in their account presented to the town auditors. Mandamus against comm,%ssioners. — A manda- mus may be had to compel commissioners of high- ways to perform any duty enjoined upon them by statute, but which they neglect or refuse to do. People V. Com/mis sioners of Salem, 1 Cow. 23; Peo- ple V. Collins, 19 Wend. 56 ; People v. Jefferds, 4 N. Y. Sup. 398.) But when the duties to be per- formed are judicial, or where the commissioners are vested with a discretion in the performance of a duty, they may be required to act, but not directed how to act. (Judges Oneida G. P. v. The People, 18 Wend. 96 ; People v. Contracting Board, 27 N. Y. K. 378.) Commissioners may be compelled by mandamus to lay out, open, or discontinue a highway. {People V. Commissioners of Salem, 1 Cow. 23.) But they should not be compelled to lay out a road where the Commissioners of Highways. 105 necessary effect would be to subject them to an action of trespass. If, therefore, the facts shown on the application are of a character to establish a want of jurisdiction, so as to make the proceedings en- tirely void, they furnish a sufficient ground for not awarding a peremptory mandamus, unless for some good reason the parties are estopped from inquiring into these facts. {People v. Commissioners of Sew- ard, 27 Barb. 94 ; Ex parte Clapper, 3 Hill, 458.) Where commissioners were appointed by statute to lay out a road, commencing " at or near E.," and terminating "at or near" the house of W., it was held that their determination of the route and its termini was a judicial act, and, even though, it was injudicious, the town highway officers were bound by it, and might be compelled by mandamus to open the road accordingly. {PeQple v. Collins, 19 Wend. 56 ; see People v. Finger, 24 Barb. 341.) Where the referees simply reverse an order of the commissioners of highways, refusing to lay out a highway, without giving orders for the laying out of such highway, the commissioners will not be com- pelled by a mandamus to proceed to lay out the road. {People v. Commissioners of Cherry Valley, 8 N. Y. R. 476.) Nor will a mandamus lie to com- pel commissioners to lay out a highway, unless it appear that they have the fund requisite for the pur- pose. {Garlinghouse v. Jacobs, 29 E". Y. R. 303, and cases.) A mandamus to commissioners will be granted without regard to the near approach of the expira- tion of their term of office ; when the term of office expires, their successors must obey the command of the writ. {People v. Collins, 19 Wend. 56.) The writ need hot in the first instance be directed to the com- missioners by their individual names ; it is only in 14 106 Highway Laws. case of disobedience to the writ that they are to be proceeded against personally. {People v. Champion, 16 Johns. 61.) Injunctions against commissioners. — Where the commissioners of highways have a right to lay out a highway, bnt fail to acquire a jurisdiction, or where their proceedings are irregular, a suit for an injunction will not lie, since persons entering under the order for the purpose of opening the road would be trespassers, and the evil could be remedied by an action at law ; but, where they attempt to lay out a road where they have no right — as over grounds acquired by a railroad company for the site of a depot ; or through an inclosure — an injunction wUl be granted. {Albany Northern R. R. Co. v. Brown- ell, 24 N. Y. R. 345.) An action cannot be main- tained by a tax payer to declare void the proceed- ings of the commissioners of highways in laying out a road, and to restrain their further proceedings on the ground that their proceedings are fraudulent and increased the taxes of the plaintiff and others, and that the officers themselves were unqualified to act as such. {Thatcher v. Dusenherry, 9 How. 32.) Nor will an injunction be granted restraining the commis- sioners from carrying out an order made by them removing an encroachment, either on the ground that they had not jurisdiction, or that their decision was unjust or irregular. {Hyatt v. Bates, 85 Barb. 308.) An action to enjoin the construction of a perma- nent obstruction in a highway cannot be maintained by commissioners of highways. {CoyJcendall v. BurTcee, 13 Hun, 260.) Indian reservations — By Laws 1881, ch. 355, the COMMISSIONEBS OF HIGHWAYS. 107 highway laws of the state are extended over the In- dian reservations located therein. The act provides as foUows : Commissioners of highways of towns in which any Indian reservation is located, in whole or in part, may by and with the consent of the national or tribal authorities of the tribe or nation of Indians occupying such reservation lay out and establish, in the manner provided by law, highways on or across such reservation, and the highway commis- sioner of such town shall thereafter be charged with maintenance of such road and the bridges thereon. But nothing contained in the act is to be construed to authorize the taxation of any Indian, or the prop- erty of any Indian not a citizen of the United States. 108 Highway Laws. CHAPTER ni. OTEESBBES OF HIGHWAYS. Appointment. Notice of acceptance. Penalty for refusing to serve. General duties. Jurisdiction . To erect guide-posts and mile-boards. To purchase scraper and plough. To deliver list. Penalties on overseers. To account and pay over moneys. Compensation. Liability for Injury. Appointment. — From and after the passage of this act, the commissioner or commissioners of highways, in each town in this state, shall have the power and it shall be their duty within one week after such an- nual town meeting, by an instrument, in writing, tinder their hands, to be filed with the town clerk, to appoint as many overseers of highways in their respective towns as there are road districts therein ; which overseer shall be a freeholder, unless by peti- tion as hereinafter provided, unless there are no freeholders in such district, to hold their office dur- ing one year ; but in making such appointment it shall be the duty of such commissioner or commis- sioners to appoint such person, whether freeholder or not, in any such district, as may be suggested or nominated, by a written petition, signed by resi- dents of such district, representing three-fifths of the number of days' work assessed in such district for the next preceding year. And it shall be the duty of the town clem to notify each overseer of his appointment, as now required by law in case of elections, and all provisions of law now applicable to overseers of highways heretofore elected under the provisions of the sections above amended shall apply to overseers of highways appointed underthe provisions of this act (Laws 1865, ch. 622, § 7 ; amended Laws 1880, ch. 503.) (See form No. 16.) The law referred to as requiring town clerk to give notice of election was as follows : The clerk of every town meeting, within ten days thereafter, shall transmit to each person elected to any town office, whose name shall not have been entered on OVEESEEES OF HIGHWAYS. 109 the poll list as a voter, a notice of his election. (1 R. S. 344.) When a vacancy in anj^ town office is filled by the justices, the town clerk is to give notice of the ap- pointment to the person appointed. (Id. 347.) The persons appointed must be electors of the town (1 R. S. 345), and the order making the appoint- ment must be signed by all the commissioners or else must show upon its face that all the commis- sioners met and deliberated upon the subject, or were notified to attend the meeting for the purpose of making the appointments. (1 R. S. 525.) G&eat care should be used where only two concur, in order to specify in the order either that all the commis- sioners were present and deliberated on the subject, or that all were notified, not only of the intended meeting, but of the particular subject on which it was proposed to deliberate. {People v. Williams, 36 NT Y. E. 441 ; Fitch v. Com/missioner of KirJc- land, 22 Wend. 132.) Notice of acceptance. — ^Formerly every person so appointed, within ten days after he was notified of his appointment, and before he entered on the duties of his office, was required to cause to be filed in the office of the town clerk a notice, in writing, signify- ing his acceptance of such office. (1 R. S. 345.) And in case he did not cause such notice of acceptance to be filed, such neglect was to he deemed a refusal to serve (id.) ; but by section 1 of chapter 791 of the Laws of 1868, it was provided that ' ' the appoint- ment of overseers of highways, by the commissioners of highways, as prescribed in section 7 of chapter 522 of the Laws of 1865 (above cited), and the notice therein prescribed to be given by the several town clerks to the persons so appointed, shall constitute the several persons thus appointed overseers of high- ways in their respective districts and wards ; and no acceptance of the office or appointment as overseer shall be necessary to authorize the persons so ap- pointed to perform the duties required of and en- joined upon overseers of highways." Prom this no Highway Laws. provision it appears that a notice of acceptance is no longer necessary, but that the appointment and no- tice thereof imposes upon the persons appointed all the powers and duties of overseers. Penalty for refusing to serve. — If any person ap- pointed to the office of overseer of highways, either to fiU a vacany or otherwise, shall refuse to serve, he shall forfeit to the town the sum of ten dollars. (1 R. S. 347.) General duties. — It shall be the duty of overseers of highways in each town : 1. To repair and keep in order the highways within the several districts for which they shaU have been elected. 2. When so required by the commissioners of highways, or any one of them, to warn all persons assessed to work on the highways in their respective districts, to come and work thereon. 3. To cause the noxious weeds on each side of the highway within their respective districts, to be cut down or destroyed twice in each year, once before the first day of July, and again before the first day of September ; and the requisite labor shall be con- sidered highway work ; and, 4. To collect all fines and commutation money, and to execute all lawful orders of the commissioners. (1 R. S. 503.) It is the duty of the overseer to diligently repair and work the roads within his district, to the amount of the tax assessed by the commissioners, and he is not bound to do more. The overseer is subordinate to the commissioners, and is bound to obey their directions with regard to the repair of roads. The duties of the overseer do not extend to bridges, un- OVEESEERS OP HIGHWAYS. Ill less directed by the commissioners to repair them. (Bartlett v. Crozier, 17 Johns. 447.) What shall be deemed a bridge is a question to be determined according to the ordinary meaning of the word. Culverts and sluices over small brooks and ditches, and even bridges of some extent, in a road district, are under the care of the overseer, and he is to repair them. Undoubtedly the performance of the duty enjoined by subdivision 3 rests in the sound discretion of the overseer.' If such weeds are so situated as it is not likely they will do injury, and in cases where the road is very bad and little work in the district, it would be absurd to expend it in destroying weeds instead of doing necessary work. The fines which the overseer is directed to collect are for idleness (1 R. S. 510,. § 39) ; for not working (id., § 40) ; and for refusing to pay assessment for scraper and plough. (1 R. S. 504, § 12.) It shaU be the further duty of the overseers of high- way s, once in every month, from the first day of April until the first day of December, to cause all the loose stones lying on the beaten track of every road within their respective districts to be removed ; and to cause the monuments erected, or to be erected as the boundaries of highways, to be kept up and renewed, so that the extent of such roads may be publicly known. (1 R. S. 503.) Some of the duties of the overseers are to be per- formed without any special order or direction from the commissioners ; it is their duty among other things, to keep the roads in repair ; to destroy nox- ious weeds ; to collect fine and commutation money, and to remove loose stones from the beaten track of the road, without any special order from the com- missioners. It would seem fi-om sub. 2, that they 112 Highway Laws. are not to warn persons assessed to work without being required by the commissioners to do so ; but this requisition relates to the general warrant directed to them by the commissioners. And the court decided that an overseer is bound to remove obstructions from the highways within his district, although hot specially directed by the com- missioners. {McFadden v. Kingsbury, 11 Wend. 667.) In that case the court say, that " by the sixth sec- tion it is made the duty of overseers to repair and keep in order the highways within his district. What is meant by keeping a road in order ? If a fence is buUt across a road in any district, any person may remove it ; but is it not the duty of overseers to see that it is done ? If logs are thrown in the road, or rubbish of any description placed in it, which deprive the public of the use of the road, whose duty is it to remove those obstacles to the public enjoyment of the right of passage upon the road ? It is undoubtedly the duty of the overseer. It is no answer to say that the commissioners have the care and superintend- ence of the highways, and give directions for the repairing of roads and bridges ; it is none the less the duty of the overseers to repair and keep in order the road in their districts ; they are bound to do it, whether they receive especial instructions or not ; it is their duty without special orders.' ' The obligation imposed upon overseers to repair highways, while it does not require them to grade the whole space from fence to fence, does require them to provide a good and sufficient carriageway, and to properly guard it, by raUings, etc., in all dangerous places. ( Wendell v. Mayor, etc., of Troy, 39 Barb. 335 ; Ireland v. Oswego, etc.. Plank Road Co., 13 N. Y. R. 531 ; HyaUY. Trustees of Bondout, 44 Barb. 391.) OVEBSEEES OE HiGHWATS. 113 Jurisdiction. — The rule is tliat overseers of high- ways have jurisdiction over every part of the high- w&j to its entire width. In Anderson v. Yan Tas- sel (53 N. Y. 631, 632), it was held that an overseer of highways " who had taken material from the side of a highway necessary for the repairs of the car- riageway at the same point, was not liable to the owner of the adjoining land, although the latter had made some improvements by way of grading and leveling the ground from whence the material was taken, and in making gutters, etc., in the absence of proof that the overseer had acted wantonly or ma- liciously, and where it did not appear that the char- acter of the improvements or the condition of the highway rendered it improper to take the mate- rial." To erect guide-posts and mile hoards. — It is also the duty of overseers to erect guide-posts and mile boards, with proper inscriptions and devices, at the intersection of roads, when ordered so to do, and to maintain and keep in repair such guide-posts at the expense of the town. (1 E. S. 503.) If any person shall destroy, remove, injure or deface such mile boards or guide-posts, he shall forfeit for each of- fense the sum of ten dollars, and be deemed guilty of a misdemeanor, and on conviction, shall be fined not exceeding fifty dollars, or imprisoned not ex- ceeding three months, at the discretion of the court. (1 R. S. 525, § 128.) To purchase scraper and plough. — Every over- seer is also, when ordered by the commissioners, to purchase a good and sufficient iron or steel shod scraper and plough, or either of them, for the use 15 114 Highway Laws. of his road district ; to be paid for by the moneys arising from commutations and fines within his dis- trict. In case such money shall be insufficient for the purpose, the deficiency shall be assessed by the overseer upon the inhabitants of the district in the proportion they are respectively assessed on the assessment roll of said town ; and if any one so as- sessed shall neglect or refuse to pay such assessment, the same may be sued for and recovered by the over- seers. (1 R. S. 504.) (For form see No. 18.) These duties are to be performed upon the order of the commissioners, and no overseer is liable for a neglect of them without such order. {McFadden v. Kingsbury, 11 Wend. 667.) To deliver list. — Each of the overseers of high- ways shall deliver to the clerk of the town, within sixteen days after his election or appointment, a list, subscribed by such overseer, of the names of all the inhabitants in his road district, who are liable to work on the highways. (1 R. S. 506, § 21.) This list the town clerk is to deliver to the com- missioners of highways, who are to proceed to assess the highway labor thereon. As to who are liable to work on the highways, see post, on "assessment of highway labor." Penalties on overseers. — Every overseer of high- ways, who shall refuse or neglect, either : 1. To warn the people assessed to work on the highways, when he shall have been required so to do by the commissioners, or either of them. 2. To coUect the moneys that may arise from fines or commutations ; or, 3. To perform any of the duties required by this chapter, or which may be enjoined on him by the OVEESEEKS OF HIGHWAYS. 115 commissioners of highways of his town ; and for the omission of which a penalty is not hereinafter pro- vided, shall, for every such refusal or neglect, for^ feit the sum of ten doUars, to be sued for by the commissioners of highways of the town, and when recovered, to be applied by them in making and im- proving the roads and bridges therein. (1 R. S. 504, § 16.) There are some things, such as keeping roads in repair, destroying noxious weeds, collecting fines and commutation money, and removing loose stones from the road, that the overseers are absolutely re- quired to perform ; but there are others, such as warning people to work, repairing bridges, etc., that are only required when directed by the commission- ers, and no penalty attaches for a neglect to perform them without such direction. A delivery of the as- sessment roU to overseers has been held to be a sufficient order to warn people to work. {McFad- den V. Kingsbury, 11 Wend. 669.) It shall be the duty of the commissioners of high- ways of each town, whenever any person resident in their town shall make complaint that any overseer of highways in such town has refused or neglected to perform any of the duties enumerated in the last preceding section, and shall give or offer to such commissioners sufficient security to indemnify them against the costs which may be incurred in prosecut- ing for the penalty annexed to such refusal or neg- lect, forthwith to prosecute such overseer for the offense complained of. (1 R. S. 505, § 17.) If such commissioners of highways shall refuse or neglect to prosecute for such penalty, they shall, in every such case, forfeit the sum of ten doUars, to be recovered by the person who shall have made such complaint and given or offered such security. (Id., § 18.) 116 Highway Laws. To account and pay over money s.^-Every over- seer of highways shall, on the second Tuesday next preceding the time of holding the annual town meet> ing in his town, within the year for which he is elected or appointed, render to one of the commis- sioners of highways of the town, an account in writ- ing, verified by his oath, and containing : 1. The names of aU persons assessed to work on the highways in the district of which he is overseer. 2. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3. The names of all those who have been fined, and the sums in which they have been fined. 4. The names of all those who have commuted, aind the manner in which the moneys arising from fines and commutations have been expended by him. 5. A list of all persons whose names he has re- turned to the supervisor, as having neglected or refused to work out their highway assessments, with the number of days and amount of tax so returned for each person, and a list of all lands which he has returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so re- turned. (1 R. S. 512, § 61, as amended 1865, ch. 522.) The commissioners of highways are authorized to administer the oath required to the above account. (Laws of 1833, ch. 149.) Every such overseer shall also then and there pay to the commissioner all moneys remaining in his hands unexpended, to be applied by the commis- sioners in making and improving the roads and bridges in the town, in such manner as they shall direct. (1 R. S. 512, § 52.) OVERSBEKS OF HIGHWAYS. 117 If any overseer shall refuse or neglect to render sucli account, or if, having rendered the same, he shall refuse or neglect to pay any balance which may then be due froia him, he sk^U, for every such offense, forfeit the sum of ten dollars, to be recov- ered,, together with any balance of moneys remain- ing ii his hands, by the commissioners of highways, to be applied to making and improving the roads and bridges in said district ; and it shall be the duty of said cammissioners to prosecute for such penalty in every instance in which no return is made, or such delinquency occurs. (1 R. S. 512, § 53, as amended 1865, ch. 522.) The commissioners are entitled to claim from the overseers, before the annual accounting, commuta- tion monjey of foreign corporations, but not of non- residents. (Fowler v. Westervelt^ 40 Barb. 374.) Gompen&ation-—^lt any overseer shall be employed more days iu executing the several duties enjoined on him by this chapter than he is assessed to work on the highways, he shall be paid for the excess at the rate of twelve and a half cents per hour for each day, and be allowed to retain the same out of the moneys which may come into his hand§ for fines under this chapter; but he shall not be permitted to commute for the days he is assessed. (1 R. S. 504, § 13, as amended 1864, ch. 395, and Laws 1880, ch. 108.) LiaMlUy for ivQwy.-^h-^ action lies against an overseer of highways for changing the flow of a nat- ural water-course or of surface drainage. {Moran V. McClearns, 63 Barb. 185 ; Kellogg v. Thompson, 66 N. Y. R. 88. But see Gould v. Booth, id. 62.) An overseer cannot claim indemnity from the town for costs in a suit against liim for his official act litigated upon his own motion after judgment had passed against him at trial. (People ex rel. Van Keuren v. Auditors of Esopus, 74 N. Y. R. 310.) 118 Highway Laws. CHAPTER IV. ASSESSMENT OE LABOR ON HIGHWAYS, AGAINST WHOM AND HOW MADE. 'Who and what property liable to be assessed f or nighway labor. liist of those liable to assessment. Delivered to the commissioners. When and where commissioners' meetings held. Land of non-residents appraised. Non-resident lands, how oescribed. Proceedings in estimating and maJdng assessments. Corporations to be assessed. Villages. Copies of lists. When assessments to be separate. Private roads. Labor, how assessed on plank roads. Appeal from assessment. Proceedings before judge . Grading, etc., by anticipation of assessment. Omissions in assessments, how rectified. Tenant nnay deduct assessment. Cemetery lands exempt from as- sessment. WTio and what property liable to he assessed for Mghway labor. — Every person owning or occupying land in the town in which he or she resides, and every male inhabitant above the age oi twenty-one years residing in the town when the assessment is made, shall be assessed to work on the public high- ways in such town ; and the lands of non-residents, situated in such town, shaU be assessed for highway labor, as hereinafter directed. (1 R. S. 605, §19.) Since the case of Beach v. Furman (9 Johns. 229) in which a doubt was expressed as to the liability of females owning or occupying lands to assessment for highway labor, the above section has been so amended as to exclude such doubt by inserting the words or she in the second line. A corporation is not a person liable to highway labor. {Bank of Ithaca v. King, 12 Wend. 390.) Lands of non-residents within any town, occupied and improved by the owner or owners, or his or their servants or agents, shall be liable to the same assessments for highways as if the owner or owners were residents. (Laws of 1832, ch. 107, § 1.) Assessment of Labor on Highways. 119 The real property of non-resident owners, im- proved or occupied by a servant or agent, shall be subject to assessment of highway labor, and at the same rate as the real property of resident owners. (Laws 1835, oh. 154, § 1.) Members of the state militia during any period of seven years between April 17, 1854, and AprU 29, 1865, are exempt from payment of highway taxes, not exceeding six days in any one year. (Laws 1871, ch; 245.) List of those liable to assessment. — Having ascer- tained who are Actual residents of the town and lia- ble to assessment (1 R. S. 505, § 19), it is made the duty of each of the overseers of highways to deliver to the clerk of the town, within sixteen days after his election or appointment, a list, subscribed by such overseer, of the names of all the inhabitants in his road district who are thus liable to work on the highways. (1 R. S. 506.) In Hinehart v. Young (2 Lans. 354), it was held that the omission of the overseer to give the town clerk a list of inhabitants does not deprive the com- missioners of authority to make an assessment. Delivered to the commissioners. — The town clerk shall deliver the lists filed by the overseers to the commissioners of highways of the town, who shall proceed, at their next meeting, or at some subse- quent meeting, to ascertain, estimate and assess the highway labor to be performed in their town the then ensuing year. (1 R. S. 506, §23.) When and where commissioners' meetings held. — The commissioners of highways of each town shaU meet, within eighteen days after they shall be 120 Highway Laws. chosen, at the place of town meeting, on such day as they shall agree upon, and afterward at such other times and places as they shall think proper. (1 R. S. 505, § 20.) Land of non-residents appraised. — The commis- sioners of highways of each town, at their first or any subsequent meeting, are required to make out a list and statement of the contents of aU lots, pieces or parcels of land within such town, owned by non- residents therein. Every lot so designated shaU be described in the same manner as is required from assessors, and its value shall be set down opposite to such description; such value shall be the same as was affixed to such lot in the last assessment roll of the town, and if such lot was not separately valued in such roll, then in proportion to the valuation which shall have been affixed to the whole tract of which such lot shall be a part. (1 R. S. 506, § 22, as amended 1835, ch. 164, § 2.) (See form 21.) Non-resident land, how described. — The following is the manner in which assessors are required to describe non-resident lands. If the land to be assessed be a tract which is sub- divided into lots, or be part of a tract which is so subdivided, the assessors shall proceed as follows : 1. They shall designate it by its name, if known by one, or if it be not distinguished by a name, or the name be unknown, they shall state by what other lands it is bounded. 2. If they can obtain correct information of the subdivisions they shall put down in their assessment rolls, and in a first column, all the unoccupied lots in their town or ward, owned by non-residents, by Assessment op Labor on HianwATS. I2l their numbers alone and without the names of their owners, beginning at the lowest number and pro- ceeding in numerical order to the highest. 3. In a second column, and opposite to the num- ber of each lot, they shall set down the quantity of land therein liable to taxation. 4. In a third column, and opposite to the quantity, they shall set down the valuation of such quantity. 5. If such quantity be a full lot, it shaU be desig- nated by the number alone ; if it be a part of a lot, the part must be designated by boundaries, or in some other way by which it may be known. (1 R. S. 391, § 12.) If the land so to be assessed be a tract which is not subdivided, or if its subdivisions cannot be ascertained by the assessors, they shall proceed as follows : 1. They shall enter in their roll the name or boundaries thereof, as above directed, and certify in the roll that such tract is not subdivided, or that they cannot obtain correct information of the subdi- visions, as the case may be. 2. They shall set down, in the proper column, the quantity and valuation as above directed. 3. If the quantity to be assessed be the whole tract, such a description by its name or boundaries will be sufficient ; but if a part only is liable to tax- ation, that part, or the part not liable, must be par- ticularly described. 4. If any part of such tract be settled and occu- pied by a resident of the town or ward, the assess- ors shall except such part from their assessment of the whole tract, and shall assess it as other occupied lands are assessed ; and if they cannot otherwise designate such parts, they shall notify the super- visor of the town, who shaU cause a survey and two 16 122 Highway Laws. manuscript maps to be made, for the purpose of ascertaining the situation and quantity of every such occupied part. 5. One of those maps shall be delivered by the supervisor to the county treasurer, to be by him transmitted to the comptroller, and the other shall be delivered, in like manner, to the assessors. 6. The assessors shall then complete the assess- ment of the tract, and shall deposit the map in the town clerk' s office, for the information of the future assessors. And the expense of making such survey and maps shall be immediately repaid to the super- visor, out of the county treasury ; and shall be added by the board of supervisors to the tract, distinguish- ing it from the ordinary tax. (1 R. S. 391, § 13.) Proceedings in estimating and maJcing assess- ments. — After receiving from the town clerk the lists filed by the overseers, the commissioners of high- ways shall proceed to estimate and assess the high- way labor to be performed in their town, as fol- lows: 1. The whole number of days' work to be assessed in each year shall be ascertained, and shall be at least three times the number of taxable inhabitants in such town. 2. Every male inhabitant being above the age of twenty-one years (excepting ministers of the gospel and priests of every denomination, paupers, idiots, and lunatics) shall be assessed at least one day. 3. The residue of such days' work shall be appor- tioned upon the estate, real and personal, of every inhabitant of such town, as the same shall appear by the last assessment roll of the said town, and upon each tract or parcel of land, of which the Assessment of Labor on Highways. 123 owners are non residents, contained in the list made as aforesaid. 4. If, after such apportionment, there shall, be any deficiency in the number of days' work determined by the commissioners to be performed in their town, the then ensuing year, such deficiency shall be assessed upon the estates, real and personal, of the inhabit- ants of the town, and upon each tract or parcel of land of which the owners are non-residents, accord- ing to the last assessment roll. 5. The commissioners shall afiix to the name of each person named in the lists furnished by the overseers, and also to the description of each tract or parcel of land contained in the list prepared by them, of non-resident lands, the number of days which such person or tract shall be assessed for highway labor, as herein directed, and the commis- sioners shall subscribe such lists, and file them with the town clerk. (1 R. S. 507, § 24, as amended 1835, ch. 154, § 3.) (See form No. 22.) After assessing one day's labor, the commissioners must assess the residue of highway labor upon the real and personal estate of every one appearing on the last assessment roll, and can make no changes. {Trustees of Angelica ^ . Morse, 56 Barb. 380.) Corporations to he assessed. — In making the esti- mate and assessment of the residue of the highway labor to be performed in their town, after assessing at least one day' s work upon each of the male inhab- itants therein, above the age of twenty-one years, as provided in the sixteenth chapter of the first part of the Revised Statutes, entitled " Of highways and bridges," the commissioners of highways shall include among the inhabitants of such town, among whom such residue is to be apportioned, all 124 Highway Laws. moneyed or stock corporations, which, shall appear on the last assessment roll of their town to have been assessed therein. (Laws 1837, ch. 431, § 1.) This provision of the act of 1837 is quite fully discussed by Judge Emott, in the case of The Peo- ple against Pierce, reported in 31 Barb. 138. He there holds that the commissioners of highways " are to take the last assessment roll for a guide, and to include in their assessment every corporation which they find assessed therein ; and they cannot tax by name, as an inhabitant of the town, any cor- poration which is not so assessed upon the roll." "The error, if there be one, can only be corrected by correcting the town roll.' ' Associations formed under the general banking law, like other moneyed or stock corporations deriv- ing an income or profit, are liable to taxation on their capital. In ascertaining the sum to be inserted in the assessment roll, no regard should be had either to accumulations or losses of capital in the course of the business of the company, but only to the amount of the capital stock paid in and secured to be paid, after deducting expenditures for real estate, and such of the stock as the statute exempts from taxation. {People v. Supervisors, 4 Hill, 20.) Railroad companies are to be taxed upon their real estate in the town. {People v. Supervisors of Niagara, 4 Hill, 20.) And should be assessed as residents of the several lines through which their roads extend. {People v. Fredericks, 48 Barb. 173.) Villages. — In all cases where there is an incorpor- ated village or city within the limits of any town, which is by law a separate road district, and there shall be any real estate owned by any person or cor- poration, situated partly within the limits of such Assessment op Labor on Highways. 125 village or city and partly without said village or city, it shall be the duty of the assessors of such town, after fixing the valuation of the whole of such real estate as now by law required, to determine what proportion of such valuation is on account of that part of said real estate lying without the limits of said city or village, and designate the same upon their assessment list. (Laws 1871, ch. 171, § 1.) The valuation of the real estate lying without the limits of any city or village, so fixed and determined by the assessor, shall be the valuation on which the commissioners of highways of towns shall assess highway labor against the owner or owners of such real estate ; and in no case shall the commissioners of highways assess any highway labor on property situated within the limits of any incorporated city or village which is by law a separate road district. (Id., § 2.) Copies of lists. — After the commissioners of high- ways have filled out the lists furnished by the over- seers, and subscribed and filed them with the town clerk, as provided in the 1 R. S. 507, they shall di- rect the clerk of the town to make a copy of said lists, and shall subscribe such copies, after which they shall cause the several copies to be delivered to the respective overseers of highways of the several districts in which the highway labor is assessed, and the acceptance of such list by any overseer to whom the same may be delivered, shall be deemed conclu- sive evidence that such overseer is duly chosen or appointed to such office, although the acceptance required by section 18, article 2, title 3, chapter 11, has not been filed as required by said section. (1 R. S. 507, as amended 1863, ch. 444.) The names of persons left out of any such list, and of new inhabitants, shall from time to time be 126 Highway Laws. added to tlie several lists, and they shall be rated by the overseers in proportion to their real and per- sonal estate, to work on the highways, as others rated by the commissioners on such lists, subject to an appeal to the commissioners. (1 R. S. 507, § 26.) (See form No. 23.) When assessments to he separate. — Whenever the commissioners of highways shall assess the occu- pant for any land not owned by such occupant, they shall distinguish, in their assessment lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof. But when any such land shall bQ assessed iil the name of the occupant, the owner thereof shall not be assessed during the same year to work on the highways on account of the same land. (1 R. S. 508, § 30.) Private roads. — It shall be the duty of the com- missioners of highways of each town, to credit such persons as live on private roads, and work the same, so much on account of their assessments as such commissioners may deem necessary to work such private road ; or to annex such private roads to some of the highway districts. (1 R. S. 508, § 29.) Labor, how assessed on plank roads. — Every per- son liable to do highway labor, living or owning property on the line of any plank road of this state, may, on making application in writing, to the com- missioner or commissioners of their respective towns, on any day previous to the time of making the high- way warrants by such commissioners, be assessed the apportionment of highway labor for such prop- erty upon such plank road ; and the commissioner or commissioners may, in their discretion, assess such person for the land or property owned by him Assessment of Labor on Highways. 127 in or upon the line of said plank road, as a separate road district. (Laws 1853, ch. 626, § 1, as amended 1855, ch. 495, and 1871, ch. 128.) The language of the act before the amendment of 1855 was "may" instead of "shall," and was held to be permissive only. {Buffalo Plank Road Go. v. CommWs, 10 How. Pr. Kep. 237.) But in 1871 it was again permissive and discretionary. It shaU be the duty of the highway commissioner or commissioners of such town, to make a separate list of such persons and such land or property so assessed, as commissioners are now by law required to make for every separate road district, which shall be delivered to some one of the directors of such road, who shall proceed to have said highway labor worked on such road, in the same manner that over- seers of highways are required by law to do. (Id., §2.) The said directors shall possess all the powers and have the same authority to compel the performance of such highway labor, or the payment of such high- way tax as the overseers of highways now have by law, and shall make like return to the commission- ers of highways. (Id., § 3.) Any person so assessed may commute for the tax assessed upon him or his property, by paying the sum now fixed by law to any of said directors. (Id., § 4.) This act applies only to real property, and does not embrace personal property nor persons. A ten- ant or occupant is authorized to make the applica- tion. {People V. Hall, 15 How. Pr. Rep. 76.) Appeal from, assessment. — Whenever any non- resident owner shall conceive himself aggrieved by the assessments of any commissioners of highways, 128 Highway Laws. in carrying into eflfect the provisions of this article, it shall be lawful for such owner, or his agent, within thirty days after such assessment, to appeal to any three judges of the court of common pleas of the county in which such land is situated. (1 R. S. 507, § 27.) By the Laws 1847, ch. 280, § 29, and Code, § 30,. sub. 11, county judges are invested with all the powers and jurisdiction conferred by statute upon the late courts of common pleas of the county, or the judges or any judge thereof, respecting ap- peals from the determination of commissioners of highways, etc. Proceedings before the judge. — It is made the duty of the county judge to whom the appeal must be made within thirty days after the assessment is made, to decide within twenty days thereafter, on such appeal, the said owner or agent giving notice to the commissioners of the time of hearing said ap- peal, and his decision shall be final and conclusive in the premises. (1 R. S. 607, § 28, as changed by Laws 1847, ch. 280, § 29, and Laws 1857, ch. 564.) Grading, etc., by anticipation of assessment. — It shall be lawful for the inhabitants residing in any road district in this state, to grade, gravel or plank the road or roads in such district, by anticipating the highway labor of such road district for one or more years, and applying it to the immediate con- struction of such plank or gravel road, and after the completion of such plank or gravel road, the said inhabitants shall be exempted from the labor so an- ticipated and applied, except so far as their labor may be necessary to keep their said road or roads in repair ; such road to be in all cases a free X0ad. (Laws 1849, ch. 250, § 12.) Assessment of Labor on Highways. 129 Omissions in assessments, how rectified. — When- ever the assessors of any town shall have omitted to assess any inhabitant or property in such town, the commissioners of highways shall assess the persons and property so omitted, and shall apportion high- way labor upon such persons or property, in the same manner as if they had been duly assessed upon the last assessment roll. (Laws 1837, ch. 431, § 6.) Tenant m,ay deduct assessment. — Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to work on the highways, for such land, pursuant to the last preceding section, and shall actually perform such work, or commute there- for, he shall be entitled to a deduction from the rent due, or to become due, from him, for such land, equal to the fall amount of such assessment, estimating the same at the rate of one dollar per day ; unless otherwise provided for by covenant or agreement between si^ch tenant and his landlord. (1 K. S. 508, § 31, as amended 1864, ch. 395.) Cemetery lands exempt from assessment. — The cemetery lands and property of any association formed pursuant to the act entitled "An act author- izing the incorporation of rural cemetery associa- tions," passed April 27, 1847, are exempt from aU public taxes, rates and assessments, so long as the same shall remain dedicated to the purposes of a cemetery. (Laws 1869, ch. 708.) 17 130 Highway Laws. CHAPTER V. PEEPOEMANCE OF LABOE UPON HiaHWAYS. Notice to work ; where to be done. Labor on plank roads . Notice to non-residents. Commutation for work. May require teams, etc. Substitutes; hours to work. Penalty for neglect to work ; how collected. Penalties to be set oS. Excuses. Proceedings to collect non-resident laJDor unpaid. Labor of aoneyed and stock cor- porations ; ocmmutation for; pen- alties, how collected. Overseers to make annual return and pay over money. Extent of overseer's authority in performing work. Abatement of tax for shade trees. Abatement of tax tor watering trough. Additional labor to remove snow. New system of working and repair- ing highways. Notice to work : where to be done. — It shall be the duty of the overseers of highways to give at least twenty-four hours' notice to all persons assessed to work on the highways, and residing within the lim- its of their respective districts, of the time and place where they are to appear for that purpose, and with what implements; and also that they will be allowed for work at the rate of eight hours per day for all the hours for which they may work on the highways between the hour of seven o'clock in the forenoon, and six o'clock in the afternoon. The highway tax upon any land or property shall be worked out or commuted for in the district in which such land is situ- ated, and if commuted for, the money shall be paid to the overseer of said district for the benefit of the roads and bridges in said district ; but this act shall not apply to or affect any county, city, village, town or district where the disposition of the highway tax has been provided for by special enactment. (1 R. S. 509, § 32, as amended Laws 1876, ch. 348.) The overseers are liable to a penalty of ten dollars for every refusal or neglect to warn persons to work (1 R. S. 504, § 16), but they are not liable to such penalty until they have been required by the com- misBioners to give such warning. The delivery by Performance op Labor on Highways. 131 the commissioners of the assessment roll to the over- seers is a sufficient requirement to give the warning. Notice to work need not be in writing. It requires no formal application to the commis- sioners to obtain their consent to work in another district, nor need they express their approbation in any formal manner ; but to avoid any controversy, it will be well to obtain this written consent. Let the applicant work the number of days, and bring a receipt or certificate from that overseer to the one where he resides, who will give him credit ac- cordingly. From and after the passage of this act the high- way tax upon any land or property shall be worked out or commuted for in the district in which said land or property is situated ; and if commuted for, the money shall be paid to the overseer of said dis- trict for the benefit of the roads and bridges in said district ; but this act shall not apply to or affect any county, city, village, town or district where the dis- position of the highway tax has been provided for by a special enactment. (Laws 1866, ch. 770.) Labor on plank roads. — Every person liable to do highway labor, living or owning property on the line of any plank road of this state, may, on mak- ing application in writing to the commissioner or commissioners of their respective towns, or any day previous to the time of making the highway war- rants by such commissioners, be assessed the appor- tionment of highway labor for such property upon such plank road ; and the commissioner or commis- sioners may, in their discretion, assess such person for the land or property owned by him in or upon the line of said plank road, as a separate road district. (Laws 1853, ch. 626, § 1, as amended 1855, ch. 495, as amended 1872, ch. 128.) 132 Highway Laws. It shall be the duty of the highway commissioner or commissioners of such town to make a separate list of such persons and such land or property so assessed, as commissioners are now by law required to make for every separate road district, which shall be delivered to some one of the directors of such road, who shall proceed to have said highway labor worked on such road, on the same manner that overseers of highways are required by law to do. (Id., § 2.) The said directors shall possess all the powers and have the same authority to compel the performance of such highway labor, or the payment of such high- way tax, as the overseers of highways now have by law, and shall make like returns to the commission- ers of highways. (Id., § 3.) Any person so assessed may commute for the tax assessed upon him or his property, by paying the sum now fixed by law to any of said directors. (Id. , §4.) Notice to non-residents. —It shall be the duty of the several overseers of highways to notify the agent of every non-resident landholder, whose lands are assessed (if such agent reside in the town where such assessment is made), of the number of days such non-resident is assessed, and of the time when, and the place where, the labor is to be performed ; which notice shall be given at least five days previous to the time appointed. (1 R. S. 609, § 33.) It is not necessary that this notice should be in writing ; but as a matter of prudence it may be well to serve a written notice ; the agent may forget, and may not inform his principal, and as he can be a wit- ness, the overseer had better serve notice and take from him an admission of service. If the overseer cannot ascertain that such non-resi- dent has an agent within such town, he shall aflBx a Pekfoemance of Laboe oif Highways. 133 written notice on the outer door of the building in which the last town meeting in such town was hel(J, containing a list of the names of such non-residents, when known, and a description of the tracts of land comprised in his list, together with the number of days' labor assessed on each tract, and a specifica- tion of the time when, and place where, such labor is to be performed ; when notice shall be posted at least twenty days before the time appointed for performing such labor. (Id., § 34.) GomTautation for worTc. — Every person liable to work on the highways shall work the whole number of days for which he shall have been assessed, but every such person, other than an overseer, may elect to commute for the same, or for some part thereof, at the rate of twelve and a half cents per hour for each day, in which case such commutation money shall be paid to the overseer of highways of the dis- trict in which the person commuting shall reside, to be applied and expended by such overseer in the improvement of the roads and bridges in the same district. (1 R. S. 509, § 35, as amended 1866, ch. 180, and 1880, ch. 308.) Every person intending to commi;ite for his assess- ment, or for any part thereof, shall, within twenty- four hours after he shall be notified to appear and work on the highways, pay the commutation money for the work required of him by such notice ; and the commutation shall not be considered as complete until such money be paid. (1 R. S. 509, § 36.) Whenever any railroad corporation assessed in any town or road district for highway labor shaU elect to commute therefor, as provided by law, such corporation shall pay the commutation money to the commissioner or commissioners of highways of such town, and such moneys shaU be applied and 134 Highway Laws. expended in the improvement of the roads and bmlding and maintenance of bridges in such town. (Laws 1877, oh. 344, as amended Laws 1878, ch. 44.) May require teams, etc. — Every overseer of high- ways shall have power to require a team, or a cart, wagon or plough, with a pair of horses or oxen, and a man to manage them from any person having the same within his district, who shall have been assessed three days or more, and who shall not have com- muted for his assessment ; and the person furnishing the same upon such requisition shall be entitled to a credit of tliree days for each day's service there- with. (Id., §37.) Substitutes; hours to work. — Every person assessed to work on the highways and warned to work may appear in person or by an able-bodied man as a sub- stitute ; and the person or substitute so appearing shall actuaUy work eight hours in each day, unless such person be assessed one dollar and twenty -five cents or more, when such person or his substitute shall be allowed to actually work ten hours in each day under the penalty of twelve and a half cents for every hour such person or substitute shall be in de- fault, to be imposed as a fine on the person assessed. (1 R. S. 510, § 38, as amended Laws 1880, ch. 308.) Penalty for neglect to work, and how collected. — If any such person or his substitute shall, after ap- pearing, remain idle, or not work faithfully, or hinder others from working, such offender shall for every offense forfeit at the rate of twelve and a half cents an hour for each day. (Id., § 39.) Every person so assessed and. duly notified, who shall not commute, and who shall refuse or neglect to appear as above provided, shall forfeit for every day'^s refusal or neglect, at the rate of twelve and a half cents an hour for each day. If he was required to furnish a team, carriage, man or implements, and shall refuse to comply, he shall be fined as follows : PEErORMANCE OP LaBOE ON HIGHWAYS. 135 1. For wholly omitting to comply with such requi- sition, three dollars for each day of eight hours, and three dollars and seventy-five cents for each day of ten hours. 2. For omitting to furnish a cart, wagon or plough, one dollar for each day of eight hours, and one dol- lar and twenty-five cents for each day of ten hours. 3. For omitting to furnish a pair of horses or oxen, one dollar for each day of eight hours, and one dol- lar and twenty-five cents for each day of ten hours. 4. For omitting to furnish a man to manage the team, one dollar for each day of eight hours, and one dollar and twenty-five cents for each day of ten hours. (Id., § 40, as amended Laws 1880, ch. 308.) It shall be the duty of every overseer of highways, within six days after any person so assessed and notified shall be guilty of any refusal or neglect for which a penalty or fine is prescribed in this title, unless a satisfactory excuse shall be rendered to him for such refusal or neglect, to make complaint, on oath, to one of the justices of the peace of the town. (Id., §41.) The complaint can only be made by an overseer ( Walker v. Moseley, 5 Denio, 102), and to a justice of the peace; not to a justice's court. {Jiice v. Milks, 7 Barb. 337.) An overseer will not be liable for ren- dering an unreasonable complaint, unless he acts maliciously. {Potter v. Benniss, 1 Johns. 515; ^ree- man v. Cornwall, 10 id. 470.) The justice to whom such complaint shall be made shall forthwith issue a summons directed to any con- stable of the town, requiring him to summon such delinquent to appear forthwith before such justice, at some place to be specified in the summons, to show cause why he should not be fined according to law for such refusal or neglect; which summons shall be served personally, or by leaving a copy at his per- sonal abode. (IE. S. 610, §42.) It must be served by a constable of the same town. These proceedings are very summary. {Bouton v. Neilson, 3 Johns. 474.) The justice is authorized to proceed on the return of summons served by copy ; 136 Highway Laws. the constable should therefore be careful and make a personal service, if in bis power. {Beach v. Fur- man, 9 Johns. 229.) If, upon the return of such summons, no sufficient cause shall be shown to the contrary, the justice shall impose such fine as is provided in this title for the offense complained of, and shall forthwith issue a warrant under his hand and seal, directed to any constable of the town where such delinquent shall reside, commanding him to levy such fine, with the costs of the proceedings, of the goods and chattels of such delinquent. (1 R. S. 510, § 43.) It is thought that no property is exempt from levy under this warrant. It is not an execution within 2 R. S. 367, §22. The constable to whom such warrant shall be di- rected shall forthwith collect the moneys therein mentioned. He shall pay the fine, when collected, to the justice who issued the warrant, who is hereby required to pay the same to the overseer who entered the complaint, to be by him expended in improving the roads and bridges in the district of which he is overseer. (1 R. S. 511, § 44.) When the summons is returned, the justice should allow a reasonable time for the party to appear and defend; and when it is returned, served by copy, he should see that all has been fair in the attempt to serve it. No adjournment can be granted; but the justice can exercise a reasonable discretion in hold- ing open the court for the appearance of the delin- quent, or to allow him to procure witnesses. The jus- tice has a large discretion in passing upon the suffi- ciency of the excuse. He is the sole judge, and his decision is final. No appeal or certiorari will lie to his decision. By the former highway acts the complaint of the Perfoemancb op Labor on Highways. 137 overseer was final and conclusive, and the jastice had no discretion, and acted merely as a ministerial officer. {^eeBeachv.Mirman, 9 Johns. 229; Bouton V. Neilson, 3 id. 474.) By the act of 1874, § 7, the overseer was authorized to impose the fine and issue the warrant. The re- vision of the act in 1801 required the overseer to n^ake complaint to a justice of the peace, who pro- ceeded ex parte, and acted ministerially in enforcing the penalty. The act of 1813 required a summons substantially as is now required by the act. The proceeding is necessarily summary. It must be had before a justice of the peace as justice, and not before a justice's court. {Bice v. Milks, 7 Barb. 337.) The overseer can judge who is in default, and demand the warrant, and although the com- plaint is unjust, no action can lie against the justice. Penalties to he set off. — Every penalty collected for a refusal or neglect to appear and work on the highways shall be set off against the assessment upon which it was founded, estimating all moneys collected as a satisfaction at the rate of twelve and a half cents an hour for each day. (1 R. S. 511, § 45.) Excuses. — The acceptance by an overseer of any excuse for refusal or neglect shall not, in any case, exempt the person excused for commuting for or working the whole number of days for which he shall have been assessed during the year. (Id., § 46.) Proceedings to collect non-resident labor unpaid. Every overseer of highways shall, on or before the first day of October in each year,make out and de- liver to the supervisor of his town a list of all resi- dent landholders residing in his district who have 18 138 Highway Laws. not worked out their highway assessment or com- muted, for the same, with the number of days not worked or commuted for by each resident of his district, charging for each day in such list at the rate of one dollar and fifty cents per day ; and also a list of all the lands of non-residents and of per- sons unknown, which were assessed on his warrant by the commissioner of highways, or added by him according to law, on which the labor assessed has not been performed or commuted for, and the num- ber of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day ; which list shall be accompanied by the afii- davit of the overseer, duly certified, that he has given the notice required by the thirty-second, thirty-third and thirty-fourth sections of this title, and that the labor for which such residents and such land is returned has not been performed or com- muted. (1 R. S. 511, § 47, as amended 1870, ch. 461.) (See form No. 20.) Sections thirty- second, thirty-third and thirty- fourth, referred to, are given in the first part of this chapter. If any overseer shall refuse or neglect to deliver such lists to the supervisor as provided in the last preceding section, or shall refuse or neglect to make the affidavit, as therein directed, he shall, for every such offense, forfeit the sum of ten dollars ; and, also, the amount of tax or taxes for labor remaining unpaid, at the rate of one dollar for each day assessed, to be recovered by the commissioners of highways and applied to making and improving the roads and bridges in said district. (1 R. S. 511, § 48, as amended 1865, ch. 522.) It shall be the duty of the supervisors of the seve- ral towns to receive the lists of the overseers of Peefokmance op Labok on Highways. 139 highways, when delivered pursuant to the preceding forty-seventh section, and to lay the same before the board of supervisors of the county. (1 E. S. 511, § 49.) It shall be the duty of each board of supervisors, at their annual meeting in each year, to cause the amount of such arrearages for highway labor re- turned to them severally, as provided in the pre- ceding section, estimating each day's labor at one dollar and fifty cents a day, to be levied on the lands of all residents and non-residents, returned as afore- said, as returned by the assessors of the several towns, and to be collected in the same manner that the contingent charges of the county are levied and collected, and to order the same, when collected, to be paid over to the commissioners of highways of the towns, respectively, to be by them applied to the construction, repair, and improvement of the roads and bridges in the district in which the labor was originally assessed. (Id., § 50, as amended 1870, ch. 461.) Labor of moneyed and stock corporations ; comr mutation for ; penalties, how collected. — All mon- eyed or stock corporations shall be notified to furnish the amount of highway labor assessed to them in the same manner as individuals residing in such town, by giving oral or written notice to the president, cashier, agents, treasurer or secretary of such corporation, or any clerk or other officer thereof, at the principal office or place of transacting the business or concerns of the said company, which labor shall be performed in such district or districts as the commissioners of highways of the town shall direct, and any number of days' work, not exceed- ing fifty, may be required to be performed by any 140 Highway Laws. such corporation in any one day. (Laws of 1837, ch. 431, § 2.) Every such corporation may commute for the high- way labor assessed upon it, in the same manner and at the same rate as is allowed by ]aw to individuals or by paying such commutation to a commissioner of highways of the town, and the commutation money so paid may be expended by the commission- ers of highways upon any district or districts in the town ; and for that purpose the said commissioners shall be entitled to demand and receive from the overseers to whom any such commutation may have been paid, the whole or any portion thereof, but in every case where any such corporation shall be located in any city, village or town, where by law the road tax is now payable in money, the road tax imposed on any such corporation shall be paid in money, according to the provisions of the several laws affecting said city, village or town. (Id., § 3.) Such corporation shall be liable to the same penal- ties for every day' s work required, and for every default of any substitute sent by them, as is pro- vided by law in the case of individuals required to work on highways, which shall be collected in the same manner, and paid over to the commissioners of highways of the town by the constable collecting the same, and may be expended by them in the same manner as herein provided for the commutation money received from any such corporation. The summons issued by any justice according to this act may be for any number of penalties incurred by any such corporation previous thereto, and may be served in the manner provided by law for the service of writs or summons issuing out of courts of record against corporations. (Id., § 4.) In case any such penalty cannot be collected as Peepokmance op Labor on Highways. 141 herein provided, the commissioners of highways of the town may file a bill in the court of chancery against any such delinquent corporation for the discovery and sequestration of its property ; where- upon the same proceedings shall be had as are pro- vided by law for the collection of county taxes assessed against incorporated companies ; and the chancellor shall possess the like powers in respect to the same : and the said commissioners may also recover such penalties, or any number of them that may have been incurred, with costs, from such de- linquent company in any court of record in this state. (Id., § 5.) Overseers to make annual return and pay over moneys. — Every overseer of highways shall, on the second Tuesday next preceding the time of holding the annual town meeting in this town, within the year for which he is elected or appointed, render to one of the commissioners of highways of the town an account in writing, verified by his oath, and con- taining, 1. The names of all persons assessed to work on the highways in the district of which he is overseer. 2. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3. The names of all those who have been fined, and the sums in which they have been fined. 4. The names of all those who have commuted, and the manner in which the monej-s arising from fines and commutations have been expended by him. 5. A list of all lands which he has returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned. (1 R. S., § 51. (See form No. 24.) 17 142 Highway Laws. The commissioners of highways are authorized to administer the oath required by the above section. (Laws 1833, ch. 149.) Every such overseer shall also then and there pay to the commissioner all moneys remaining in hishands unexpended, to be applied by the commissioners in making and improving the roads and bridges in the town, in such manner as they shall direct. (1 E,. S. 512, § 52.) If any overseer shall refuse or neglect to render such account, or if, having rendered the same, he shall refuse or neglect to pay any balance which may then be due from him, he shall, for every such offense, forfeit the sum of five dollars, to be recov- ered, with the balance of moneys remaining in his hands, by the commissioners of highways of the town, and to be applied in making and improving the roads and bridges. It shall be the duty of the commissioners of highways to prosecute for such penalty in every instance in which no return is made. (Id., § 53.) Whenever it shall appear, from the annual return of any overseer of highways, made in pursuance of the fifty-first section of the sixteenth chapter of title first of the first part of the Revised Statutes, that any person who was assessed to work on the high- ways (other than non-residents) has neglected to work the, whole number of days to him assessed, and has not commuted for, or otherwise satisfied such deficiency, then it shall be the duty of the commissioners of highways to re-assess such defi- ciency to the person so delinquent, at the next as- sessment of work for highway purposes, and to add to it his annual assessment. (Laws 1832, ch. 107.) Such re-assessment shall not exonerate any over- seer of highways from any penalty which, he may Pekpormance of Labor on Highways. 143 have incurred under the sixteenth section of the last aforesaid chapter. (Id., § 3.) The penalties prescribed by section sixteen, above cited, are given ante, chapter III. Extent of overseer's authority in performing iBorJc. — What control has the overseer in improving the road over the soil, and materials within the lim- its of the road ? The general rule is, that the pub- lic have a right to all the earth and materials that are necessary for the improvement of the road. Such earth and materials may be removed from one part of a highway to another, even beyond the boundaries of the land opposite which they were taken. {Fish v. Mayor of Rochester, 6 Paige, 272 ; see City of New Haven v. Sargent, 38 Conn. 50 ; 9 Am. Rep. 360 ; Contra, City of Delphi v. Evans, 36 Ind. 90; 10 Am. Rep. 12.) But this rule does not apply to trees standing or lying upon a highway. Such trees belong to the owner of the land, except such as may be requisite to make or repair the high- ways and bridges on the same land. (1 R. S. 525, § 126 . ) But if trees have been left or set out for shade, the overseer has no right to cut them, even for the purpose of repairing the roads and bridges on the same land. (1 R. S. 525, § 27.) The powers of the highway officers are co-extensive with the highway, and they may cut down, level, grade and alter every portion of the space included in the highway, for the improvement of the road, being only responsible for a wanton or malicious injury to the rights of adjacent owners. {Graves v. Otis, 2 Hill, 470 ; Radcliff's Executors v. Mayor of Brook- lyn, 4 N. Y. R. 203 ; Benedict v. Qoit, 3 Barb. 469 ; Anderson v. Van Tassel, 53 N. Y. R. 631.) In Maine it has been decided that a surveyor, 144 Highway Laws. which answers to an overseer, has no authority to appropriate any land not lying within the lines of the road. He has no anthority to make a ditch through adjoining improved lands, for the purpose of having water turned off from the highway, how- ever important to the public it may be to have it done ; and for such an act the owner of the land may maintain trespass against him. {Plummer v. Sturtevant, '62 Maine R. 325.) So the highway officers have no right to precipi- tate the water from a highway upon the adjoining lands. Where a highway crosses or passes alongside of a natural stream the road must be so worked as not to obstruct the natural flow of the water. (People V. Kingman, 24 N. T. R. 569 ; Thompson v. Allen, 1 Lans. 459.) Ahatem&nt of tax for shade trees. — Any inhabit- ant liable to highway tax, who shall hereafter transplant by the side of the public highway adjoin- ing his premises any foreet shade trees, fruit trees, ornamental trees or any nut bearing trees of suitable size for shade trees, shall be allowed by the over- seers of highways or other officer having charge of said highways, in abatement of his highway tax, one doiuar for every four trees set out ; but elms shall be placed not less than seventy feet apart on the same side of such highway, and no maples or other forest trees, ornamental or fruit trees, nearer than forty feet apart on the same side of such high- way, and no allowance shall be made, as before men- tioned, unless such trees shall have been set out the Eear previous to the demand for said abatement of ighway tax and are living and are well protected from animals at time of such demand. (As amended 188.3, ch. 371, § 1.) Any trees transplanted by the side of the public highway, as aforesaid, in the place of trees which Pebpormance of Labor on Highways. 145 have died, shall be allowed for in the same manner and on the same conditions as in section one of this act. (Laws 1883, § 2.) No person shall be allowed an abatement of his highway taxes as aforesaid, more than one-quarter of his annual highway taxes in any one year, but such abatement shall be allowed by said overseers of highways or other officer having charge of such highway, annually until the abate- ment of highway tax allowed the person claiming the same, shall have equaled the whole number of trees set out at the rate of one dollar for every four trees set out. (Id., §4-) Aiatement for watering trough. — The commissioners of highways in the several towns of this state shall annually abate three dollars from the highway tax of any inhabit- ant of a road district who shall construct, on his own land, and keep in repair, a watering trough beside the public highway, well supplied with water, the surface of which shall be two and a half feet or more above the level of the ground, and easily accessible for horses with vehicles ; but the said commissioners of highways respectively may desig- nate the number necessary for the public convenience in each district, and no others but. those designated shall be allowed this abatement of tax. (Laws 1869, ch. 131, as amended Laws 1872, ch. 274, § 1.) By Laws of 1872, chapter 274, section 2, it is provided that the directors of the several plank road and turnpike companies in this state shall annually abate three dollars from the toll of any inhabitant, not an innkeeper, who shall erect a similar water trough, two or more feet high, beside the plank road or turnpike. In case the directors refuse to abate the toll, complaint may be made to the commissioners, who, if the watering trough is found to be convenient and necessary, will direct the directors to allow the abatement on penalty of twenty dollars. Abatement for highway lamp. — The legislature of 1884 (ch. 251) enacted as follows : Any person, firm or corpo- ration, owning or holding real estate or other property, liable to highway tax in any of the towns of this state, ex- cept in the county of Kings, other than in cities and in- corporated villages, who shall, with the consent of the overseer of highways in charge of the district in which such property is assessed, and in such 'places as he may di- 19 146 Highway Laws. rect, erect a street lamp and cause the same to be properly attended to and kept burning during such hours of each night as the said overseer of highways may direct, shall be allowed by said overseer of highways in abatement of such highway tax six dollars annually, or such portion of six dollars as the annual taxes upon sucn real estate or other property may be. Additional labor to remove snow. — Whenever the labor in any ward or district has been worked out, commuted for or returned to the supervisor, and the highways are ob- structed by snow, or otherwise, and written notice has been given to the overseer by any two or more inhabitants of the town, liable to payment of highway tax, requesting the removal of such obstruction, it shall be the duty of the overseer of highways in such district, and they are hereby required, to immediately call upon all persons liable to highway tax in their respective districts, to assist in remov- ing such obstructions; and such labor, so called for by the overseer, shall be assessed upon those liable to perform the same, in proportion to their original assessments, and all persons so called out and failing to appear at the place des- ignated by the overseer, or to commute at a dollar a day, within twenty-four hours after due notice, shall be liable to fine at the rate of one dollar and fifty cents a day, for each day's labor they may be required to perform, which fine shall be collectible by the overseer as such, by suit in jus- tice's court, and shall be applied by said overseer to the purposes specified in this section. And if the said over- seer of highways, after receiving the written notice, as aforesaid, neglects, without good and sufficient reasons, to have such highways opened, without delay, he shall be liable to a penalty of five dollars per day for every day he neglects such duty, the penalty to be collected in justice's court, with costs, by any one suing for the same, and the said penalty shall be paid over to the commissioners of high- ways for the use of the town. (Laws 1869, ch. 593.) Any inhabitant liable to highway tax who shall remove from lands, owned or occupied by him, the fence along any highway for the purpose of prevent- ing the drifting of snow into such highway, shall be Pekformanoe of Labor on Highways. 147 allowed by the overseer of highways, in abatement of his highway tax, the time actually expended in removing such fence and in replacing the same; provided, however, that no allowance shall be made unless such fence shall have been removed pursuant to the direction of the overseer of highways. (Laws 1875, ch. 196.) New system of working and repairing highways. — For such towns in the state as may wish to change the present system of working and repairing the highways, it has been provided by Laws 1873, ch. 395, as amended Laws 1875, ch. 341, as follows: Upon the written request of twenty-five tax payers of any town, it shall be the duty of any justices of the peace, or other officers who preside at the town election of any such town, to submit to the electors at each annual town election, and the electors of any town may vote at the next regular annual town meet- ing, upon the question of changing the manner of working the highways. Such vote shall be by ballots, upon which shaU be written respectively, " for chang- ing the mode of working the highways," and " against changing the mode of working the highways." The ballots should be deposited in a separate box by themselves; be counted by the inspectors of election or other officers presiding at such town election. And if a majority of the electors shall vote in favor of the proposed change, the town voting therefor may avail itself of the privileges of this act upon causing a minute of its action to be entered by the town clerk in the town records. (Laws 1875, § 2.) The commissioners of highways shall constitute a board, to be known as " the board of highway com- missioners for the town of ." They shall elect one of their number president, and in the event 148 Highway Laws. of their failing so to do, the commissioner longest in oflSce shall be entitled to that position. (Laws 1873, § 5.) The " board of highway commissioners " are to have full power to do any acts necessary to the prompt and effectual repairs of the highways. They may divide or consolidate the road districts of their town and must give out the work therein to the lowest bidder by contract. Their pay and general duties are to remain the same as now provided by law. If any town has but one commissioner, the powers and duties conferred on the board devolve on such highway commis- sioner alone. (Id., § 6.) Section 6 of this act was amended by Laws of 1881, chapter 644, but is now in force again in its original form by virtue of Laws 1883, chapter 196, and is as follows : " The board of highway commissioners shall have full power to do any and all acts necessary to the prompt and effectual repairs of the highway. They may divide or consolidate the road dis- trict in their town, may give out the work to the lowest bidder on contract, or appoint an overseer to do the same. They may contract for the work on some districts and have that on the others done by days' labor, as they think best. Their pay and general duties shall remain the same as now pro- vided by law. If any town has but one highway commis- sioner, the powers and duties thereby conferred on the board of highway commissioners is hereby conferred on such highway commissioner. Special commissioner to expend money appropriated for Mghivay purposes. — By Laws 1879, chapter 275, it is enacted as follows : In any case where, by any actor acts of the leg- islature of this State, any non-resident highway taxes have been specially set apart or appropriated for the construction or maintenance of any roads or bridges, and any commis- sioner or commissioners appointed therefor, and. where by reason of the expiration of the official life of the commis- sioner or commissioners so appointed to receive, expend and account for said non-resident highway taxes, any balance or remainder so set apart or appropriated has not been so re- ceived or expended, it shall be lawful for the boards of super- visors of the counties wherein said non-resident lands are sit- uated to appoint a commissioner ot commissioners to receive and expend any such unexpended balance, under the same regulations and conditions for the faithful performance of his or their duties as were provided for in said original act or acts ; and any act or acts of any board of supervisors ap- pointing such commissioner or commissioners in anticipation of the passage of this act are hereby ratified and confirmed Laying out of Public Roads. 149 CHAPTER VI. OP THE LAYING OUT OF PUBLIC KOADS. Application, by whom and how made. Power of commissioners to lay out. Survey to be made. Order to be posted. Consent of owner, when necessary. What roads may not be laid through. 1. Orchards. 2. Gardens. 3. Buildings. 4. Fixtures or erections. 5. Yards or inclosures. 6. Vineyards. 7. Buiylng grounds. Notice of application. ' Proceedings thereon. Order laying out road. Order by two commissioners. Papers to be ffled. Width of road. How laid out across railroad tracks. Railroad corporations to take road across their tracks. Penalty for neglect or refusal. How laid out between different towns or counties. Koads along division lines. Special commissioners to lay out nighways. Fences to be removed. When roads to be opened and worked. What roads are highways. Roads in villages. Application, hy whom and how made. — ^Every person liable to be assessed for highway labor may apply to the commissioners of highways of the town in which he shall reside, to alter or discontinue any road, or to lay out any new road. Every such ap- plication shall be in writing, addressed to the com- missioners, and signed by the person applying. (1 R. S. 513, §.54.) Every person liable to be assessed for highway labor, and owning lands in a town in which he is not a resident, may apply to the commissioners of high- ways of the town in which the lands are situated, to alter, discontinue, or to lay out any road through the same. (Laws 1836, oh. 122.) (See form No. 25.) The word " same," in the above act, refers to the town and not to the lands of the non-resident. {Peo- ple V. Eggleston, 13 How. 123.) A petition for laying out a highway may lawfully include a portion of a highway already in existence, and the new highway may, for a portion of its dis- 150 HiGHWAT Laws. tance, be laid out upon and be identical with an existing highway. It is a question of discretion and convenience, to be determined by the commissioners or referees. {People \ . Commissioners of Milton, 37 N. Y. R. 360.) But an application to establish an old road as a public highway is not authorized by the statute. {Christy v. Newton, 60 Barb. 332.) The application to lay out a new road and discon- tinue an old one may be in one, and whether the proceedings to discontinue the old road are valid or not will not affect the new road, if that is properly laid out. {People v. Robertson, 17 How. 74.) It is no objection to proceedings to lay out a highway, that they were taken on the application of a person not liable to assessment for highway labor. {Marble V. Whitney, 28 N. Y. R. 297 ; Aspinwall v. Super- visors ofBichmond, 20 id. 252.) The language of the above sections is held to be permissive only and does not deprive the commissioners of the power to lay out roads on their own motion. {Oould v. Glass, 19 Barb. 188 ; McCarthy v. Whalen, 19 Hun, 503. See, however, Harrington v. People, 6 Barb. 607.) Power of commissioners to lay out. — The com- missioners of highways shall have power, in the manner, and under the restrictions hereinafter pro- vided, to lay out, on actual survey, such new roads in their respective towns, as they may deem necessary and proper ; and to discontinue such old roads and highways as shall appear to them, on the oaths of twelve freeholders of the same town, to have become unnecessary. (1 R. S. 502, § 2.) A " freeholder " is one who has title to real estate, irrespective of the amount or value of his interest therein. {People v. Scott, 8 Hun, 666.) Commissioners may, upon their own motion and Laying otjt of Pitblio Roads. 151 without application, lay out a highway. {Marhle v. Whitney, 28 N. T. R. 297 ; Aspinwall v. Supervi- sors of Richmond, 20 id. 252.) The commissioners exercise a special and limited jurisdi(jtion in laying out highways, and although it may be presumed that their acts were legal until the contrary appear, their acts may be impeached. {Ex parte Clapper, 3 Hill, 458 ; Miller t . Brovm, 56 N. Y. R. 383.) The order laying out a highway may be made by any two of the commissioners, without the concur- rence of the third, but in such case it must show on its face, not only that the third met with his associ- ates, but that he participated in their deliberations, even if he did not concur in their conclusions ; or else that he was notified, not only of the intended meeting, but of the particular subject on which it was proposed to deliberate. (1 R. S. 525, § 125 ; Peo- plev. Williams, 36 IS. Y. R. 441 ; People v. Hynds, 30 id. 470 ; Stewart v. Wallis, 30 Barb. 344 ; Fitch V. Gommissioners of KirJcland, 22 Wend. 132.) Survey to he made. — Whenever the commissioners of highways shall lay out, alter or discontinue any road, either upon application to them or otherwise, they shaU cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same. (1 R. S. 513, § 55.) (See form No. 26.) ^ The survey need not specify the width of the pro- posed road ; it is sufficient to run a single line, which will be regarded as the centre of the road. {People v. Commissioners of Salem, 1 Cow. 23.) A specifica- tion of the quantity of land which the road will take 152 Highway Laws. from each proprietor over whose ground it passes, will ascertain its width. {People v. Commissioners of RedhooTc, 13 Wend. 310 ; Lamlin v. Commis- sioners of Cambridge, 2 Caines, 178.) The survey is merely a ministerial act, which does not require the presence of all the commissioners to give validity to an order of the commissioners laying out a highway. (Marble v. Whitney, 28 N. Y. R. 297.) Nor is it essential that the survey should be signed by all. [Tucker v. Bankin, 15 Barb. 471.) But the survey must be incorporated in the order, and the order , must be signed by all, or show that all met and acted. So far as Tucker v. Rankin decides other- wise it is overruled. ( Williams v. People, 36 N. Y. R. 443 ; Pratt v. People, 13 Hun, 664.) Where the substance of the survey was set forth in the order though the survey was not referred to, and the survey and order were recorded in the town clerk's office on the same day in the same book, upon successive pages, it was held that the surround- ing circumstances identified the survey and that there was a sufficient compliance with the statute. [McCarthy v. Whalen, 19 Hun, 603.) The clerk is bound to record the survey as pre- sented. He cannot refuse to record it by reason of some supposed omission or mistake therein. [People V. Collins, 7 Johns. 549.) Filing survey cures irregularities in a highway laid out prior to April 14, 1826. {Pafker v. Yan Houten, 7 Wend. 145.) It is now provided that the board of supervisors may authorize and direct the highway commission- ers to cause survey to be made, at the cost of a town, of any or all highways in such town, and to make a complete and systematic record thereof, or to revise, collate and re-arrange existing records of highways and to correct and verify the same by new surveys, and to establish the location of highways by suit- able monuments, whenever such commissioners may deem expedient. Such records so made or revised, corrected and verified, shall be deposited with the town clerk of such town and shall thereafter be the lawful records of the highways which they describe, but shall not affect the rights pending in any judi- Laying out or Public Roads. 153 cial proceedings commenced prior to the deposit with the town clerk of such new or revised records. (Laws 1875, ch. 482, § 1, Subd. 11.) Order to he posted. — It shall be the duty of the town clerk, whenever any order of the commissioners for laying out, altering or discontinuing a road shall be received by him, to post a copy of such order on the door of the house where the town meeting is usually held ; and the time hereinafter limited for appealing from any such order shall be computed from the time of recording the same. (1 R. S. 513, §56.) Consent of owner, when necessary. — No public or private road shaU be laid out through any orchard or garden without the consent of the owner thereof, if such orchard be of the growth of four years or more, or if such garden have bee a cultivated for four years or more, before the laying out of such road. Nor shall any such road be laid out through any build- ings, or any fixtures or erections for the purposes of trade or manufactures, or any yards or inclosures necessary to the use and enjoyment thereof, without the consent of the owner. (1 R. S. 514, § 57.) (See form No. 27.) Unless the commissioners of highways shall, on application duly made, after five days' notice to the owner, or if he be a non-resident of the town, to the occupant of said premises, certify to the county judge that the public interest will be greatly pro- moted by the laying out and opening of such road, the commissioners shall serve on the owner, or if he be a non-resident of said town, on the occupant of said land, a notice of five days, to appear before the county judge to attend the hearing of said matter ; 20 164 Highway Laws. if the county judge shall aflBrm the decision of said com- missioners, they shall present the order of the county judge for confirmation to the supreme court at a general term m the judicial department in which such premises are situated, upon the usueJ notice of motion in said court to the owner, or if he be a non-resident of the town, to the occupant of the premises. If the order is confirmed, the commissioners must proceed to lay out and open the road as in other cases. (Laws 1873, ch. 773.) The consent need not be in writing. A parol consent is valid, provided it be acted upon immediately by the com- missioners, and the road laid out before any revocation of such consent. (People v. Ooodvnn, 5 N. Y. E. 568; Noyes V. Chopin, 6 Wend. 461; Marble v. Whitney, 28 N. Y. R. 297; People V. Albright, 23 B.OW.30G.) Such consent may, however, be revoked before the commissioners have acted thereon, and laid out the road or made the alteration. After they have so acted the owner is estopped from deny- ing the legality of the act. {Marble v. Whitney, supra.) When such consent has been given under a mistake of either law or fact, and acted upon, no relief can be given. (Id.) A sale of the land, in good faith, will amount to a revocation of parol consent, if made before the laying out of the road, even during the pendency of an appeal to the county court from a decision of the commissioners in rela- tion to such road. {People v. Goodwin, supra) The con- sent of the owner may also be inferred from his acts. Thus, if he appears upon appeal, and contests the question of dam- age, his consent will be presumed. {Lansing v. Caswell, 4 Paige, 523.) The notice of a land-owner of dissatisfaction of an award of damages by the commissioners on laying out a highway, which this statute allows him to give, to secure a reassess- ment by a jury, is a prerequisite to the jurisdiction of the subject-matter. {People, ex rel. Stephens, v. See, 29 Hun, 216.) The section prohibiting a commissioner from laying out a road, unless certified to as necessary by the oath of twelve reputable freeholders of the town, applies only where the consent of the owner of the land taken is refused. {Peo- ple, ex rel. Woolford, v. Strevell, 27 Hun, 218.) Under 1 Eev. Stat. 514, section 57, as amended by Laws 1873, chapter 773, providing for the opening of public roads without the consent of the owner of the premises through which the same are laid out, the commissioner Laying out of Public Roads. 155 does not acquire jurisdiction to make an order laying out the same until his certificate as to public benefit has been affirmed by the county judge, and such affirmance has been confirmed by the general term as provided in the act. {Peo- ple, ex rel. Banner, v. Temple, 27 Hun, 128.) What roads may not te laid through. — The restrictions on the powers of the commissioners in laying out roads apply only to cases where the owner withholds his consent. The commissioners may lay out a road through any kind of property, with the consent of the owner. (Lansing v. Gaswell, supra.) In the five cases enumerated, the com- missioners have no power, without such consent, to lay out a road : 1st, through orchards ; 2d, gardens ; 3d, build- ings; 4th, fixtures and erections for trade, etc. ; and 5th, yards and inclosnres necessary for use of buildings and manufactures. 1. Oechaeds. — To be within the prohibition, the or- chard must be of the growth of four years or more, and the road proposed must injure the usefulness of the premi- ses as an orchard by taking some part where the fruit trees grow. In The People v. The Judges of Dutchess (23 Wend. 360), the road was laid through a lane where two apple trees stood tbat had formerly belonged to the orchard, but they had been separated from it by a fence for several years. The road, also, as laid out, passed over the circular corner of a lot or field in which there was an orchard, including in the road a piece of ground about fifty feet long and eight feet wide ; but no apple-trees in the orchard situated near the road. The court said the road could not be laid out in such a manner as to deprive the owner, either in whole, or in part, of the beneficial enjoyment of his fruit-trees. " But we are, in effect, asked to go further, and say that a road cannot be laid over an inclosed field, if there are fruit- trees in any part of it, however distant they may be from the highway. To this doctrine we cannot subscribe. It does not follow that the whole field is an orchard, because there are fruit-trees in some part of it." 156 Highway Laws. It is thought, also, that an old road cannot be in- creased in width, so as to take in any part of an orchard, if the owner be thereby deprived of the ben- efit of his fruit-trees. {Bnyder v. Plass, 28 JST. Y. R. 465 ; Snyder v. Trumpbour, 38 id. 355.) 2. Garden. — It must have been cultivated as a garden four years previous to laying out. What constitutes a garden is a question of fact. The gen- eral definition is, a plat of ground appropriated to the cultivation of herbs or plants, fruits and flowers. This applies only to land actually cultivated as gar- den. {People V. Comm\s of Greenhurgh, 57 N. Y. R. 549 ; People v. Horton, 8 Hun, 367.) 3. Buildings. — They must be buildings erected previous to the application and notice for the high- way. If, after such application and notice, the owner of the land puts buildings or erections thereon, it will not prevent the commissioners from going on and laying out the highway. It is the fault of the party himself, who cannot thus defeat the operation of the law. {Carris v. Commissioners of . Waterloo, 2 HiU, 443.) 4. FixTTJEES OR ERECTIONS. — Only such as are for the purpose of trade and manufactures are excepted. Over other fixtures and erections, by the oath of freeholders, a road may be laid, if the erections do not amount to buildings. Tenter-bars, erected for the purpose of carrying on the business of a fulling- mill, are within the prohibition. {Clark v. Phelps, 4 Cow. 190.) Neither a public nor a private road or way can be laid out across the fixtures and erections upon the inclined plane of a railroad which are used for the drawing or letting down cars for the conveyance of Laying out of Public Eoads. 167 mercliandise or passengers. {Mohawk, etc., R. R. Co. T. Artcher, 6 Paige, 83.) What are and are not fixtures and erection, for the purpose mentioned in this section, is a question of fact and must be judged of in reference to the situation and nature of the property. A ditch or canal for conducting water to a mill is not a fixture or erection. The term " erection " im- plies some structure above ground. {People v. Kingman, 24 N. Y. R. 559.) 5. Yaeds or inclosuees. — In Ex parte Clapper (3 Hill, 458), the highway, as laid out, passed through the door-yard of one man and left his well, cow-shed, and a part of his corn-crib, in the highway. It also encroached on the garden and cow-sh^ed of another man. It was decided by the court that the commissioners had exceeded their powers, no con- sent being given. And they further decided that the words yards or mcZosifre* apply to "buildings" as well as to *' fixtures or erections for the purpose of trade." It is not every court-yard or inclosure which is appurtenant or contiguous to a dweUing-house or a manufacturing establishment, through which the commissioners are prohibited from laying out a road or highway. It is only such yards or inclosures as are necessary to the use and enjoyment of the dwelling- house or manufacturing establishment. This clause must be construed in reference to the situation and nature of the property to which the yard or inclos- ure is appurtenant. {Lansing v. Caswell, 4 Paige, 523; see People v. Cowes, 3 N. Y. Sup. 766.) Grounds adjoining a saw-mill, and used for piling logs, but whose limits are not fixed by fences or other visible marks, nor by definite occupation, are not 158 Highway Laws. within the prohibition. {People v. Kingman, 24 N. T. R. 559.) The commissioners should, however, leave sufficient area for the use of the mill-owners; and their discretion as to the question is not reviewable. (Id.) A highway cannot be laid out over grounds ac- quired by a railroad corporation for the site of an engine-house, station-house, turn-table, etc. necessary for use at the station. {The AWany Northern H. m. Go. V. Brownell, 24 N. Y. R. 345.) The commission- ers have no power to lay out a road through a court- yard contiguous to a dwelling, nor grounds adjoin- ing a factory and actually used and occupied by its machinery and appurtenances. {ClarJc v. Phelps, 4 Cow. 190 ; Lansing v. Caswell, 4 Paige, 519.) The words "yards and inclosures," in the 67th section, above cited, include those of any buUding, as well as of trade fixtures or erections. {Ex parte Clapper, 3 Hill, 458.) It is not necessary that the yard should be protected by fences, but it must be defined in some way, either by an inclosure, by visible marks, or by a definite occupation within certain exterior lines. {People v. Kingman, 24 N. Y. E. 562.^ 6. Vineyards. — Private lands on which grape vineyards have been planted and have had one or more year's growth, shall not be taken for public highway s or private roads, except with the consent of the owner or owners thereof. This act shall only apply to lands used in good faith for vineyard pur- poses and shaU not apply to lands within the corpo- rate limits of any city or village, nor to any lands on which a vineyard shall hereafter be planted, after an application for the opening of a road therein shall have been made. (Laws of 1869, oh. 24J By Laws of 1883, chapter 99, the towns of TJrbana and Wayne, Steuben county, are exempted from the above provision. 7. Burying Geottnd.— No private or public road Laying out of Ptjblio Roads. 159 shall be laid out or constructed upon or through any grave yard or burying ground in this state, unless the remains therein contained are first carefully re- moved and properly reinterred in some other bury- ing ground, at the expense of the persons desiring such road. (Laws of 1868, ch. 843.) So highways are not to be laid through the lands of an incorporated soldiers' monument association, without the consent of the trustees of such association, except by special permission of the legislature. (Laws of 1866, ch. 373, § 461.) An injunction will be granted to restrain town officers from wrongfully laying out a highway through a cemetery. {Trustees, etc., v. Walsh, 57 111. 363 ; 11 Am. Rep. 21.) If the commissioners exceed their jurisdiction by laying out a road through a building, fixture, yard, etc., without the owner' s consent, the order is void, and is not helped by the affirmance of the judges on appeal. {Ex parte Clapper, 8 Hill, 458.) And the commissioners of highways and their agents will be trespassers, if they enter upon the premises to open and work such highway. {Har- rington V. I%e People, 6 Barb. 612.) The commissioners, in laying out highways, exer- cise a special and limited jurisdiction ; and although it may be presumed, until the contrary appear, that they have acted legally, it is quite clear that their acts maybe impeached by showing that they ex- ceeded their powers. {Ex parte Clapper, 3 HUl, 461.) Oath of freeJiolders, when necessary. — No high- way shall be laid out through inclosed, improved or cultivated land, without the consent of the owner or occupant thereof, unless certified to be necessary by the oath of reputable freeholders of the town, in the manner hereinafter provided. (1 R. S. 514, § 58.) 160 Highway Laws. The terms " improved or cultivated land " are to be taken in the popular sense, according to the gene- ral understanding of the community when distin- guishing what is called wild land or land in a state of nature from that which has been cultivated or im- proved. When speaking of improved land, it is generally understood to be such as has been re- claimed, is used for the purposes of husbandry, and is cultivated as such, whether the appropriation is for tillage, meadow or pasture. (Clark v. Phelps, 4 Cow. 202.) Many of the remarks as to consent of owners, made under the last section, apply equally to this. A written consent is not necessary. {People v. Al- hright, 23 How. 306.) Nor is it within the statute of frauds. {People v. Goodwin, 5 N. Y. R. 568.) This section uses the words owner or occupant. This does not mean that the consent of a tenant only can confer the right to take the premises upon the commissioners. If the occupant has an interest in the lands, his consent, as well as the ownei"' s, must be obtained. This is thought to be the correct view of the section, although there is no adjudication on the subject. Notice of application. — Every person who shall apply for the laying out of a highway through any such land shall cause notices in writing to be posted up at three of the most public places of the town, specifying, as near as may be, the route of the pro- posed highway, the several tracts of land through which the same is proposed to be laid, and the time and place at which the freeholders will meet to exam- ine the ground. Every such notice shall be posted up at least six days before the time specified therein Laying out oj' Public Roads. 161 for the meeting of the freeholders. (1 R. S. 514, § 59.) (See form No. 28.) If the termini and general route of the proposed road are given, without specifying the course and distances, it will be a sufficient compliance with the statute. That is the business of the commissioners or judges if they conclude to lay out the road. {^Peo- ple V. The Judges of Dutchess, 23 Wend. 360.) Proceedings thereon.— ^r^ all cases of the alteration of any road, or the laying out of any new road, except where the same is altered, opened or laid out with the consent in writing of the owner or owners of the lands to be taken for such alteration or opening, the person or persons applying for the same shall serve a notice on the town clerk of the town, and on a justice of the peace and the commissioner or commissioners of high- ways thereof, asking for a jury to certify to the neces- sity of the same, and specifying a time not less than ten nor more than twenty days from the time of serv- ing such notice, when such jury will be drawn at the clerk' s office of the town by the town clerk thereof, and shall notify in writing each of the owners or occu- pants through which such alteration or new road is proposed to be laid of the time and place of drawing such jury by personally serving such notice on such owner or occupant,, at least five days before the drawing of such jury, or by mailing a copy thereof, at least eight days before such drawing, to such owner or owners, in the manner prescribed by law for the service of legal notices. At the time and place mentioned, the town clerk of such town, having re- ceived such notice that such jury is to be drawn, shall, in the presence of a justice of the peace or one of the commissioners of highways of the town, deposit in a box the names of all persons then residents of 2i 162 Highway Laws. Ms town, whose names are on the lists filed in aaid town clerk's office, of those selected and returned as jurors, pursuant to article second, title four, chapter seven, part third of the Revised Statutes, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and shall publicly, in the presence of such justice of the peace or commissioner, draw therefrom the names of twelve persons, and shall make a cer- tificate of such names and the purposes for which they were drawn, and shaU deliver the same to the person asking for the jury, and the applicant for such jury shaU pay to the said town clerk one dol- lar for drawing such jury. The applicant for such road or alteration of a road, on receiving such cer- tificate, shaU deliver the same to a justice of the peace of the town wherein the road is to be laid, and it shall be the duty of such justice forthwith to issue a summons to one of the constables of said town directing him to summon the persons named in said certificate, specifying a time and place in said summons, at which the persons to be summoned shall meet, which shall not be less than ten nor more than twenty days from the issuing thereof; and in case the owner or owners of any lands through which said road or alteration is proposed to be located shall be a non-resident, it shall be the duty of such justice to notify such owner or owners by mail, at least eight days before the meeting of such jury, of the time and place of such meeting, and if any person so summoned to attend as a juror shall neglect or refuse to attend at the time and place desiguated in such summois, the person or persons so neglecting or refusing to attend shall be liable, unless a suffi- cient excuse be established, to pay a fine of five dol- lars, which shall be sued for and recovered by the Laying out of Public Eoads. 163 overseers of the poor of said town, and such fine shall be applied by them to the support of the poor thereof. If nine or more of the persons, who shall have been so drawn, not interested in the lands through which the road is to be laid, nor of kin to the owners thereof, shall appear at the time and place specified in the summons, they shall then be sworn by the justice of the peace who issued such summons, well and truly to certify as to the necessity of the high- way applied for, and if such justice of the peace shall refuse or neglect to attend at the time and place mentioned in said summons, such oath may be ad- ministered to such juror, by any other justice of the peace or notary public of said county ; and the justice of the peace or notary public swearing such jury shall receive therefor from such applicant the sum of two dollars. Such jury shall then personally examine the route of such highway, and shall hear any reasons that may be offered for or against such proposed route or alteration. If nine or more of the number thereof shall be of opinion that such highway or alteration of a highway is necessary and proper, they shall make and subscribe a certificate in writing to that effect, which shall be delivered to the commissioners of highways of the town. But if such number thereof shall not certify that such road or alteration is necessary, then no application for such road or alteration shall be made again in three months. Every juror shall be entitled to re- ceive for his services as such juror the sum of one dollar and fifty cents, to bfe paid by such applicant, afld the constable who may summon such jury shall t&Qeive tii^rfefor, from such applicant therefor, ten. cents for summoning each juror summoned, and, 164 Highway Laws. ten cents a mile for each mile actually and neces- sarily traveled in summoning such jury, in going from and returning to his place of residence therefor. If nine or more of such jurors shall make a certifi- cate that such highway or alteration is necessary and proper, then tlie cost of such proceeding as herein- before provided shall be a charge against such town in favor of such applicant. And it shall be the duty of the commissioner or commissioners of such town to immediately file the certificate so made in the office of the clerk of the town where the proceedings are had, and within thirty days from the aate of such certificate the commissioner or commissioners of such town must proceed to lay out or alter such highway as determined by such certificate, in the manner provided by article 4 of chapter 16 of the first part of the Revised Statutes. (1 R. S. 514, § 60, as amended Laws 1875, ch. 431 ; Laws 1877, ch. 466, and Laws 1881, ch. 696.) The jury need not be charged. {People v. Mdredge, 3 Hun, 541.) The statute of 1877 (ch. 465) is in effect, as to section 60 above mentioned, a repeal of that of 1875 (ch. 431). But this fact is apparently ignored in Laws 1880, chap- ter 114, which provides that all towns of this state whose real estate is assessed, as shown by their last assessment rolls, at an average price of less than five dollars per acre, are exempted n-om the provisions of chapter 431 of the Laws of 1875. Whether the effect of the statute of 1880 will be to exempt the towns referred to from the operation of section 60 as amended in 1877, wiU be a question for the courts to determine. The other provisions of the statute of 1880 are as follows : The commissioners of highways of each of such towns so exempted from the provisions of the afore- said act shall hereafter, upon written petition of six freeholders of such town praying for the laying out, alteration or discontinuation of any highway, and within thirty days from the date of such petition, ]3roceed to the laying out, alteration or discontinua- tion of the road designated therein, and adjust, in the manner provided in the following section, all Laying out of Pttblic Eoads. 165 matter of damages arising from such laying out, alteration or discontinuation of road ; and within ten days from the time such highway shall have been so laid out, altered or discontinued and matter of damages relating thereto duly adjusted, said commissioners shall file, in the office of the clerk of such town, their order therefor containing a correct survey of the laying out, alteration or discontinua- tion of such road, and a statement of the amount of damages allowed for the same ; and, thereupon, the proceedings of said commissioners shall be deemed lawful, and any road, or alteration of road so laid out, shall become a highway and remain open to public travel. (§ 2.) The commissioners of highways of such town are authorized to adjust with owner or owners of lands upon which roads shall be laid out, discontinued or altered as aforesaid, any claim for damages by reason thereof, providing the amount allowed by said com- missioners for each of such claims shall not exceed fifty dollars ; and any sum so allowed by said com- missioners in settlement of such damages claimed as aforesaid, not exceeding the said sum of fifty dollars, shall be a charge against the town in which such roads are located, to be audited by the board thereof; but whenever any person so entitled to damages by reason aforesaid shall conceive himself aggrieved by the adjustment of such damages as offered by said commissioners, or whenever said commissioners shall deem the value of such damages to exceed the afore- said sum of fifty dollars, then said commissioners shall forthwith apply to any of the justices of the peace of such town to cause to be drawn, by the usual process of justice court, a jury of six free- holders, residents of such town, not of kin to the party or parties claiming said damages, nor inter- ested therein, and upon notice of not less than six nor exceeding ten days issued by said justice and duly served upon each of said jurors and each of the parties claiming said damages ; such jury so drawn, constituted, sworn and duly notified shall meet with the said commissioners of highways at the 166 Highway Laws. time and place stated in said notice to take a view of the road and premisea for which said damages are claimed, to estimate the true nature and value of such damages and give their award for the same ; and such award duly given in writing, signed by each of said jurors and certified by the said commis- sioners of highways, shall be deemed a final adjust- ment of such damages, and the same shall become a lawful charge against the town in which such road is located, to be audited by the board thereof. (§ 3.) Each person acting as juror in the manner pro- vided in the foregoing section shall receive one dol- lar per day of actual service, and the fees of the justice of the peace and constable for summoning such juries and issuing and serving notices shall be the same as those provided by law for the impanel- ing of juries by justice courts and serving of notices therefor, and the same shall be a charge against the town for which such services have been rendered. (§4.) Miscellaneous provisions — qualifications of ju- rors — certificate. — Persons related to the owner within the ninth degree, "of kin," and therefore in- competent to act (People v. Cline, 23 Barb. 197) ; but a person holding a legal title in a purely fiduci- ary capacity, as one of the trustees of a religious society, although he might be deemed interested within the provision as to the qualifications of the freeholder, is not " an owner, ''^ so as to exclude those of kin to him from certifying. (Id.) The certificate must be signed by the required number of qualified freeholders, or the proceeding based on it will be void. ( Town of Oallatin v. LoucTcs, 21 Barb. 578 ; People v. Hynds, 30 N. Y. E. 472; People V. Commissioners o/' Seward, 27 Barb. 94.) It is no objection that the certificate is signed by more than the required number of freeholders ; and in a case where the certificate was signed by twenty freeholders, the fact that five of them were of kin to the owner of the land, it was held that it did not vitiate it, there being still the statutory number who were properly qualified to sign. {Commiissioners of Laying out of Public Eoads. 167 Carmel v. Judges of Putnam, 7 Wend. 264 ; People V. Gline^ 23 Barb. 197.) The certificate is not invalidated by proof that lajidholders verbally consented before the freehold- ers to claim no compensation, but had subsequently revoked that consent. (Vaw Rensselaer v. Yan AlstyTie, 3 Abb. Ct. of Ap. Dec.) The commissioners have no authority to require a bond from the applicant to pay all damages to the land-owners. {Ham v. Siltiernail, 7 Hun, 33.) A recital in the order laying out a road, that the requisite number of freeholders have certified as to its necessity, is not conclusive evidence of the fact. That being a jurisdictional fact, is open to contradic- tion. {People V. QoTwmissioners of Seward, 27 Barb. 94.) So of a recital that notice has been given to the land-owners or occupants. {People v. Smith, 7 Hun, 17.) The freeholders act upon the notice of the appli- cant and the general description of the route therein, and have no authority to locate it with greater par- ticularity. {EallocJc V. Woolsey, 23 Wend. 328.) They are to certify whether or not a road is neces- sary between certain specified points on the line mentioned in the application. {People v. Judges of Dutchess, 23 Wend. 360.) The certificate of the freeholders is to be filed with the town clerk, and the commissioners may be com- pelled to file it by an attachment. {People v. Vail, 1 Cow. 589 ; 2 id. 623.) But omitting to file the cer- tificate at the time of making the order laying out a road does not afiect the proceedings. {Commission- ers of Bushwick v. Meserole, 10 Wend. 122.) Notice to QCGwpant. — Before the commissioners 168 HiGHWAT Laws. shall determine to lay out the highway so applied for and certified, they shaU cause notice in writing to be given to the occupant of the land through which the road is to run, of the time and place at which they wiQ meet to decide on the application. The notice shall be served by delivering the same to such occupant, or if he be absent, by leaving the same at his dwelling-house ; and in either case, at least three days before the time of meeting. (1 R. S. 514, § 62.) (See form No. 30.) This notice in writing to occupants is necessary before the commissioners will have jurisdiction to proceed to lay out the road. The appearance, by the occupant, as a witness before the referees, will not be deemed a waiver of notice. {People v. Judges of HerTcimer, 20 Wend. 186 ; People v. Robertson, 17 How. 74 ; People v. Supervisors of Allegany, 36 id. 544.) Notice given to the actual occupant of the lands required will be sufficient to give the commissioners jurisdiction. It need not be given to an owner who is not in occupation. {People v. Supervisors of Alle- gany, supra.) A highway was proposed to be laid out through a field owned by a railroad company, but leased as a pasture, and in which was a large reservoir covered by plank and turf and fed by springs, the water from which was drawn by pipes for the use of the railroad; but the reservoir being covered, cattle in the pasture stood upon and passed over it as over other portions of the lot, and it was proposed to lay out a highway directly over the reservoir. Held, that notice served upon the occu- pant of the lot for pasturage only was sufficient to confer jurisdiction upon the proper authorities to proceed and lay out the highway. (Id.) The statute provision requiring notice to the occupant contem- Laying out of Public Roads. 169 plates those holding occupancy of the surface as dis- tinguished, from those carrying on sub -surface opera- tions. (Id.) The proceedings to lay out a highway through improved lands are not void merely on account of the fact that the notice of the meeting of the commis- sioners to decide on the application, erroneously stated that some of the improved lands were unim- proved. It is sufficient to confer jurisdiction under the act, that the party had notice and abundant op- portunity to be heard. {Snyder v. Trumpiour, 38 JT. Y. E. 355.) Order laying out road. — The commissioners shall meet at the time specified in the notice, and shaU hear any reasons that may be offered for or against laying out the highway. If they shall determine to lay out such highway, they shall make out and subscribe a certificate of such determination, de- scribing the road so laid out, particularly, by routes and bounds, and by its courses and distance, and shaU deposit the same with the town clerk. (1 E. S. 514, § 63.) (See form No. 31.) The commissioners may refuse to lay out a road even after the freeholders have certified to its neces- sity. Their determination must be confined to the high- way applied for ; but they ar^ not limited to the precise route specified in the application; they may, in the exercise of a sound discretion, make such vari- ations as they may judge proper. The departure must not, however, be so great as to induce the be- lief that the preliminary proceedings have been wholly disregarded; the general course of the road must be preserved. By section 63 the applicant is to specify " as near as may he, the route ofthepro- 22 170 Highway Laws. posed MghwayP The freeholders act only upou the notice of the applicant, and the general descrip- tion of the route therein, and have no authority to locate it with greater particularity. They determine only whether such highway is necessary and proper. The commissioners, by this section, are required to describe it particularly^ 'by routes and bounds, courses and distance. ( Woolsey v. Tompkins, 23 Wend. 324; Hallock v. Woolsey, id. 328.) The certificate required by this section wUl be, however, sufficiently conformable to it, if, in the de- scription of the road, a single line is given which will be intended as the centre of the highway, and it contain a specification of the quantity of land which the road wUl take for each proprietor over whose ground it passes. By this its width can be ascer- teiined. (The People v. Corwrnissioners of Highways of Red Hook, 13 Wend. 310 ; Herrick v. Stov&r, 5 id. 580. People v. Diver, 19 Hun, 263.) It was also decided in Woolsey v. Tompkins (23 Wend. 324) to the same effect, that it will be sufficient if this certificate state the termini (that is, its be- ginning and end) of the road, and its route by courses and distance. It is not neoeasary to state the bounds of each course. Since the statute prescribes the width of high- ways, an order laying out a road is sufficiently ex- plicit if it specify the central line. {Lawtonv. Com- missioners of Cambridge, 2 Caines, 179 ; People v. Commissioners of Salem, 1 Cow. 23.) If the com- missioners run a single line it will be intended as the center of the road, unless something appear from their record to show that it was not their intention. {People V. Commissioners of Bed Hook, 13 Wend. 310.) A writing purporting to be a survey of a road, Laying out of Public Eoads. 171 describing the center line, and stating where the road is to commence and terminate, and filed with the town clerk as a part of the record, it is substantial compliance with the above section. (Tucker v. Ran- Tcin, 15 Barb. 471.) It is no objection to the order of commissioners laying out a road, that it does not incorporate the survey, if the survey be referred to in the order and attached thereto, and recorded with it. ( Yan Bergen v. Bradley, 36 N. Y. E,. 316.) But the proper course is to incorporate the survey in the order itself. A description of a portion of the new highway by reference to an established highway is a description by " routes and bounds," within the requirements of the above section. {People v. Goiw- missioners of Milton, 37 N. Y. K. 360.) Order l>y two commissioners. — The order laying out a highway may be made by two of the three commissioners ; but, in that event, it must show on its face, either that the third commissioner met with Ms associates, and that he participated in their delib- erajtions, even if he did not concur in their conclu- sions ; or that he was notified, not only of the intended meeting of the commissioners, but of the particular subject on which it was proposed to deliberate. (1 E. S. 525, § 125 ; People y. Williams, 36 N. Y. E. 441 ; People V. Hynds, 30 id. 470.) Where an order was made by two commissioners, laying out a road, in which it was recited that all the commissioners of highways of the town met and deliberated on the subject embraced in the order, and the referee found as fact that all three of the commissioners met and viewed the proposed route, and that, subsequently, two of them caused it to be surveyed, and made the order of that date laying out the road, and that one of the commissioners was not present at the survey, 172 Highway Laws. nor notified to attend the same, it was held that the order was valid in the absence of any finding that the third commissioner did not meet with the others and deliberate on the subject of laying out the high- way, the presumption being that all the commission- ers did meet and deliberate on that subject, and that the act was legal until the contrary appeared. The survey was a mere ministerial act, not requiring the presence of the third commissioner to give valid- ity to the order laying out and establishing the high- way. Marble V.Whitney, 28 'N.Y. R. 297.) The order must be sufficient on its face, and cannot be sustained by parol evidence. (People v. ITpnds, 30 N. Y. R. 470 ; Stewart v. Wallis, 30 Barb. 344.) Papers to be filed. — All applications, certificates and other papers relating to the laying out, altering or discontinuing of any road shall be filed by the commissioners of highways, as soon as they shall have decided thereon, in the office of the town clerk of the town. (1 R. S. 518, § 83.) The clerk, in recording such papers, acts minis- terially and cannot refuse to record any of them on the ground that they are not in conformity with the requirements of the statute. {People v. Collins, 7 Johns. 549.) After all proceedings for the laying out of a highway are taken except the making and signing of the order and filing it, the latter acts may be compelled by mandamus. (People v. J^erds, 4 N. Y. Sup. 398.) Width of road.—A\S. public roads, to be laid by the commissioners of highways of any town, shall not be less than three rods wide, and all private roads shall not be more than three rods wide. (1 R. Laying out or Public Eoads. ITa S. 517, § 80.) But the board of supervisors may authorize the laying out of highways of a less width than is now required by law and the reducing of the width of highways now in existence. (Laws 1875, ch. 482, §1, Subd. 10.) Where roads are claimed because they have been used twenty years, they may be more or less than three rods wide ; that will depend on their actual user. When public roads are laid out under the statute, they will be deemed to be at least three rods in width, and a person will be liable for an obstruc- tion within that width. {Harlow v. Humiston, 6 Cow. 189.) It shall be the duty of the commissioners of high- ways to order overseers of highways to open all roads to the width of two rods at least, which they shall judge to have been used as public highways for twenty years. (1 K. S. 521, § 101.) Where a road is ordered by the commissioners to be laid out, for a part of the distance, three rods in width, and for the residue of the distance, which is on the bed or track of an old road used for more than twenty years, two rods in width, the proceedings are not vitiated and rendered void by the provision in the order allowing a road to be opened which is only two rods wide. Regarding the first part of the order, laying out the road up to the point of inter- section with the old road, as one in perfect accord- ance vrith the powers of the commissioners, and the residue, which follows the old road, as a description of the old road to be recorded, and for the purpose of having it opened two rods in width by a subse- quent order to that effect ; the whole is consistent and harmonious, and entirely within the power of the commissioners. {Snyder v. Plass, 28 N. Y. E. 465; re-afiirmed, Snyder v. Trumpbour, 38 id. 355.) 174 Highway Laws. The jury, whicli is called to determine the dis- puted question of an encroachment, have no power to determine the question of the width and bound- aries of a highway, according to the previous dedi- cation or use, which has been neither laid out nor ascertained and described by the commissioners of highways. That duty belongs exclusively to the commissioners, and is to be performed by them in an entirely different manner. (Talmadge v. Hunt- ting, 29 N. Y. R. 447.) A road laid out under the statute is at least three rods wide, and the public have a right to the use of it for the full width at any time ; and any thing which interferes with that right is an obstruction of, and encroachment upon, the road. ( Walker v. Gay- wood, 31 N. Y. R. 51.) How laid out across railroad tracks. — It shall be lawful for the authorities of any city, village or town in this state, who are by law empowered to lay out streets and highways, to lay out any street or high- way across the track of any railroad now laid, or which may hereafter be laid, without compensation to the corporation owning such railroad ; but no Buch street or highway shall be actually opened for use until thirty days after notice of such laying out has been served personally upon the president, vice- president, treasurer, or a director of such corpora- tion. (Laws of 1853, ch. 62, § 1-) (See form No. 32.) This statute has reference only to tracks used for public traffic and for turn-outs and switches, and does not include grounds upon which tracks are laid for storing cars or exclusively for making up trains. {Boston, etc. ,R.R. Oo. v. Oreenbush, 52 N . Y. R, 510; see Alb., etc., R. R. Co. v. Brownell, 24 id. 345,^©*^.) RaiVroad corporations to taTce road across their Laying out of Public Roads. 17B tracks. — It shall be tlie duty of any railroad corpo- ration across whose track a street or highway shall be laid out as aforesaid, immediately after the ser- vice of said notice, to cause the said street or high- way to be taken across their track, as shall be most convenient and useful for public travel, and to cause all necessary embankments, excavations and other work to be done on their road for that purpose ; and all the provisions of the act passed April second, eigh- teen hundred and fifty, in relation to crossing streets and highways, already laid out, by railroads, and in relation to cattle guards, and other securities and facilities for crossing such roads, shall apply to streets and highways hereafter laid out. (Id., § 2.) Penalty for neglect or refusal. — ^If any railroad corporation shall neglect or refuse, for thirty days after the service of the notice aforesaid, to cause the necessary work to be done and completed, and im- provements made on such streets or highways across their road, they shall forfeit and pay the sum of twenty dollars for every subsequent day' s neglect or refusal, to be recovered by the officers laying out - such street or highway, to be expended on the same; but the time for doing said work may be extended, not to exceed thirty days, by the county judge of the county in which such street or highway, or any part thereof, may be situated, if in his opinion the said work cannot be performed within the time lim- ited by this act. (Id., § 3.) A highway cannot be laid out over grounds ac- quired by a railroad corporation for the site of an engine-house, etc., necessary for its use at a station. {Albany Northern B. B. Qo. v. Brownell, 34 N. Y. B. 345.) 176 Highway Laws. How laid out between different towns or counties. — When the commissioners of highways of any town or oflBcers of any city or village having the powers of commissioners of highways shall disagree with the commissioners of any other town or city or village in the same county relating to the laying out of a new road, or the altering of an old road extending into both towns or a town and a city or village, or when commissioners of a town in one county shall disagree with the commissioners of highways of a town or said officers of a city or vil- lage in another county relative to laying out a new road or altering an old road which shall extend into both counties, the commissioners of both towns, or the said officers of the city, village or town, shall meet on five days' written notice, specifying the time and place given by either of the comraissionerB or said officers to the others, and make their deter- mination in writing upon such subject of disagree- ment. If they cannot agree, then they, or either of them, may certify that they cannot agree as to said highway, to the county judge of the county, if the proposed road is all in one county, or a justice of the Supreme Court if in different counties (or if the county judge is unable to act), who shall then take jurisdiction of the matter, and at any stage of any of the proceedings authorized by this act, said judge or justice shall have power to appoint three commissioners, freeholders of the county, not resi- dents of the same town, village or city where the road is located (if between two counties, then free- holders of another county shall be appointed), who shall, upon due notice to all persons interested, view the Toad and take such evidence as they deem proper, and shall have power and authority to Laying out of Public Eoads. 177 decide (subject to the approval of the judge or justice as hereinafter provided) all questions that shaU arise on such hearing as to the laying out or altering said road, its location, width, grade and character of road and road-bed, or any point that may come up relating thereto, and in case they de- cide to open or alter said road, they shall ascertain and appraise the damages, if any, to the individual owners and occupants of the lands through which said new highway or the altered old one is proposed to pass ; and shall report such evidence and deci- sion to said judge or justice, with their assessment or award of damages, if any, with all convenient speed ; and the said commissioners shall each re- ceive not exceeding three dollars per day for each day actually employed in such service, to be paid, as the other expenses are paid, or as the judge or justice may direct ; on the coming in of said report said judge or justice may, by order, confirm the same, or if he is not satisfied with the justice of it, he may send it back for a further hearing, or may modify, revise or set it aside, or may affirm the lay- ing of the road, and order a new appraisal by the same or other commissioners ; and said judge or justice shall have power to decide all questions that may arise before him, and he shall file his orders and decisions in the matter in the county clerk's office of the county or counties where the highway is located, and they shall be duly entered of record there. In case the common council of a city, or trustees of a village acting as highway commissioners, or the town commissioners of a town, shall desire to make a new or altered highway running into two towns, or a village, or city, and a town, a better road than 23 178 Highway Laws. is usually made for a common highway, with a special grade or road-bed, drainage or improved plan, and are willing to bear the whole or a part of the expense thus incurred to the other town or city, on the application in writing of either of said officers on notice to all parties interested, the county judge or justice of the Supreme Court shall, in such case, make an equitable adjustment of the matter, and may direct that, in consideration of the payment of such portion of such additional expense by such vUlage, city or town that desires it as shall be equi- table, that its officers, contractors, servants and agents may go on in the other town, village or city and make the grade, road-bed, and do whatever shall be necessary for the completion of said road or highway, advancing the money necessary to do it, and upon the coming in of the report of the ex- penses paid, said judge or justice shall, on notice to all interested parties, adjust and adjudge the amount to be paid to each owner and occupant, the amounts of damages, if any, to each having been previously ascertained by commissioners as above provided, and he shall direct the same to be paid by each said town, village or city as shall be just and equitable, and the same shall be paid and collected the same as if fixed by the commissioners of highways of the town, village or city. And the said officers and commissioners shall, in all things pertaining to the laying out or altering of said road, carry out the directions of said judge or justice without any unnecessary delay, and all ques- tions and disputes that may arise in reference there- to, and the execution of this law shall be decided and settled by him, and as he, by order, shall Laying out of Public Roads. 179 direct. (1 R. S. 516, § 72 ; amended Lws 1881, ch. 613.) Whenever it shall become necessary to have a highway upon the line between two towns, such highway shall be laid out by two or more of the commissioners of highways of each of said towns, either upon such line, or as near thereto as the con- venience of the ground will admit, and they may so vary the same, either to the one or to the other side of such line, as they may think proper. (Id., § 73.) It shall be the duty of the same commissioners' when they lay out such highway, to divide it into two or more road districts, in such manner that the labor and expense of opening, working and keeping in repair such highway, through each of the said districts, may be equal as near as may be, and to allot an equal number of the said districts to each of the said towns. (Id., § 74.) Each district shall be considered as wholly belong- ing to the town to which it shall be allotted, for the purpose of opening and improving the road, and for keeping it in repair ; and the commissioners shall cause such highway, and the partition and allot- ment thereof, to be recorded in the ofllce of the town clerk in each of their respective towns. (1 R. S. 617, § 75.) Where an encroachment has occurred upon a highway running on the line between two towns, the commissioners of both towns cannot unite as plaint- iffs, and bring an action to recover the penalty or forfeiture. {Bradley v. Blair, It Bath. 480.) AU highways heretofore laid' out upon the line between any twO' towns shall be divided^ allotted, recorded and kept in repair in the manner above directed. (1 R. S. 617, § 76.) The city of Utica is a 180 Highway Laws. town witMn the meaning of this statute. {Jones v. City of mica, 16 Hun, 44^ H^l The provisions of the Revised Statutes relating to town line roads do not provide for the maintenance of bridges, and the road districts therein mentioned do not include bridges. {Bay v. Day, 94 N. T. R. 153.) Roads along division lines. — Whenever a public or private road shall be laid along the division line between the lands of two or more persons, and wholly upon one side of said line, and the lands upon both sides of said division line shall be cultivated or improved, then, and in that case, the person owning or occupying the lands joining said road shall be paid for buflding and maintaining such additional fence as he may be required to buud or maintain by reason of the laying out and opening said road; which said damages shall be ascertained and deter- mined in the same manner that other damages are now ascertained and determined in the laying out highways on private roads. (Laws 1853, ch. 174, §16.) Special coTivmissioners to lay out highways. — The act of 1838 (ch. 314), to enlarge the powers of boards of supervisors, provides that the supervisors of each county have power, at their annual meeting, or when lawfully convened, at any other meeting, to appoint special commissioners to lay out public highways in those cases where they shall be satisfied that the road applied for is important, and that the authority now conferred by law upon commissioners of high- ways cannot or will not be exercised to accomplish the laying out of such road. But such power shall not be exercised by any board of supervisors unless the applicant therefor shall prove to such board of supervisors the service of a notice in writing on a commissioner of highways of each town through and into which any sudi highway is intended to be laid, Laying out of Public Eoads. 181 at least six days previous to presenting such appli- cation, specifying therein the object thereof, and names of persons proposed to be appointed such commissioners. (Laws of 1848, ch. 164.) The supervisors shall have power to provide for the payment of the special commissioners appointed under the above provisions, for their time and ex- penses. The decision made by said commissioners may be appealed from and reviewed in the same manner and with the like authority as is allowed by law in the cases of roads laid out by the commission- ers of highways of any town. The roads so to be laid out by such special commissioners, or the same as seittled on appeal, shall be recorded, opened and worked as a public highway of the town in which they are respectively situated, in the same manner as other highways of the town are now required by law to be recorded, opened and worked. (Laws of 1838, ch. 314.) Fences to he removed. — Whenever the commission- ers of highways shall have laid out any public high- way, through any inclosed, cultivated or improved lands, in conformity to the provisions of this title, and their determination shall not have been ap- pealed from, they shall give the owner or occupant of the land through which such road shall have been laid, sixty days' notice, in writing, to remove his fences. If such owner shall not remove his fences within the sixty days, the commissioners shall cause such fences to be removed, and shall direct the road to be opened and worked. (1 E. S. 520, § 96.) If the determination of the commissioners shall have been appealed from, then the sixty days' notice shall be given after the decision of the referees upon 182 Highway Laws. such appeal shall have been filed in the office of the town clerk of the town. (1 R. S. 520, § 97, as amended by Laws of 1847, ch. 455, § 8.) The notice prescribed must be given, or the com- missioners and all persons proceeding to open the road will be trespassers. Actual notice must be shown, as it will not be presumed. {Oase v. Thomp- son, 6 Wend. 634.) When roads to be opened and worked. — Every public highway and private road already laid out, and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out, and every such high- way hereafter to be laid out, that shall not be opened and worked within the like period, shall cease to be a road for any purpose whatever ; but the period during which any suit, mandamus, certiorari or other proceedings shall have been, or shall be pending, in regard to any such highway, shall form no part of said six years ; and all highways that have ceased to be traveled or used as highways for six years shaU cease to be a highway for any purpose. (IE,. S. 520, § 99, as amended 1861, ch. 311.) The provisions of this act apply to every public highway and private road laid out and dedicated to the use of the public within the last six years, and to every such highway hereafter to be laid out. (Laws of 1861, ch. 311, § 2.) This statute applies only to those cases where there has been a failure to open and work the road at all, and not where the high- way has been in full use for the whole time, though not opened in aU places to its full width. ( Walker v. Qaywood, 31 N. T. R. 51 ; Marble v. Whiimey, 28 id. 297 ; Beckwifh v. Whalen, 65 id. 322.) Laying out op Public Roads. 183 When a road has been opened and worked the fact that the owners of lands through which it runs are permitted to keep up fences across it with gates and bars so that the public can pass and repass, will not divest the road of its public character. {McCar- thy V. WTialen, 19 Hun, 503.) The road must be both opened and worked. It is not necessary that every part of it should be worked. This might be impossible. When the country is new and the population thin, there might not be highway labor sufficient in the district to work all the road. It should be embraced in a road district, and worked as far as there is necessity for work or high- way labor to expend upon it. What roads are highways. — ^A road used by the public for twenty years before 1797, is a highway. {Galatian v. Gardner, 7 Johns. 106.) But a road not so used, and not recorded, is not a highway. {People v. Lawson, 17 Johns. 277.) All public highways now in use, heretofore laid out and allowed by any law of this state, of which a record shall have been made in the office of the clerk of the county or town ; and 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, but may be altered in conformity to the provisions of this title. Irregularities in highways laid out prior to April 14, 1826, are cured, provided a survey is filed. {ParJcer v. Van Houten, 7 Wend. 145.) Roads that have not been laid out nor used for twenty years or more are not public highways, and the town is not bound to keep them in repair. In 184 Highway Laws. the case of Oswego v. Oswego Canal Go. (6 N. Y. R. 262), Justice Ruggles says : Any individual may lay out a way or thorough- fare through his own land, and may dedicate it as such to the public use. But such dedication does not impose upon the towns in which the lands lie the duty of improving, or of keeping in repair as a pub- lic highway, the land so dedicated. This will con- clusively appear from a reference to the provisions which have been in force in our highway acts for half a century. The power of laying out, altering and discontinuing highways has been conferred ex- clusively on the commissioners of highways of the respective towns. It has been their duty to cause to be described in the town clerk' s office all public high- ways not already on record ; to assess the highway labor upon the inhabitants of the town ; to divide the town into road districts ; and to assign a due proportion of the labor to each district. It was the evident intent of these statutes that the labor assessed should be bestowed exclusively upon the highways established by the town authorities and recorded in the town clerk's office. The duty of causing roads to be described and recorded evidently applied to such roads as had previously been laid out by pub- lic authority, and to such as had been used as high- ways for twenty years, and not to roads which had been laid out by individuals on their own lands. The whole structure of the highway acts forbids the idea that the town is bound to adopt and to keep in' repair every road which an individual may think proper to open through his own land, although he may dedicate it to public use in such a manner as to preclude himself from shutting it up. Streets and roads dedicated by individuals to public use, but Laying out of Public Koads. 185 not adopted by the local authorities, or declared highways by statute, are not highways within the meaning of the highway acts, and there is no law by which any one can be compelled to keep them in repair. WheneTer any turnpike corporation shall become dis- solved or the road discontinued, its road shall become a public highway, and be subject to all the legal provisions regulating highways. (Laws 1838, ch. 263, § 1.) The board of supervisors have power to provide for the Use of abandoned plank or turnpike roads as public high- ways. (Laws 1869, ch. 855, § 2.) On application of any plank road or turnpike company which shall have managed and carried on any plank road or turnpike road for twenty years, and whose entire divi- dends have not exceeded fifty per cent of the original capi- tal stock, the corporate existence of such company may be continued for a period not exceeding thirty years, in addi- tion to the time specified in the original articles of associa- tion. (Laws 1872, ch. 78, § 1.) Consent is to be ob- tained from two-thirds of the supervisors of the towns or wards through which such road runs, and from the persons owning two-thirds of the capital stock. (Id. ) Roads in villages. — An incorporated village constitutes a separate highway district, and streets are opened and al- tered therein according to Laws 1871, ch. 870, §§ 3, 4, ) The legislature of 1883, by chapter 113, provided for t&e alteration of highways, streets or bridges in incorporated villages as follows: Sec. 1. Whenever the grade of any street, highway or bridge in any incorporated village of this state shall be changed or altered so as to interfere in any manner with any building or buildings situate therein, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining such highway so changed or altered, the owner or owners of such building or real estate may apply to the supreme court in the judicial district in which such property is situated, for the appointment of three com- missioners to ascertain and determine the amount of dam- age sustained thereby ; due notice of such application shall be given to the person or persons having competent author- ity to make such change or alteration. By the Laws of 1884, chapter 281, the second and third sections of this act were amended as follows : Sec. 2. All the provisions of the general railroad act rel- ative to the appointment of commissioners, their powers and 186 Highway Laws. duties, shall be applicable to the appointment of, and the powers and duties of commissioners appointed in pursuance of the provisions hereof ; but it shall be the duty of said commissioners in assessing and ascertaining the damages sustained by property owners adjoining such street or high- way to take into consideration and to ascertain the value of any benefits or advantages to the property in consequence of the alteration of the grade; and in all cases the value of such benefits or improvements shall be offset against and de- ducted from the damages; and no person or property owner shall be entitled to recover any damages who shall in writ- ing request or assent that the said grade of any such street shall be changed or altered. Sec. 3. All damans ascertained and determined under the provisions of this act, together with the costs of such proceedings, shall be a charge, when allowable, upon the vil- lage, town or other municipality chargeable with the main- tenance of the street, highway or bridge so altered or changed ; but no property owner or person instituting pro- ceedings to recover damages under the provisions of this act shall be entitled to costs, unless the claim for such damages shall have first been presented to and rejected by, or neglected to have been adjusted for thirty days after presentation by the trustees or other proper officers of said village, town or municipality, nor in case such trustees or other proper officers have made an offer to settle or compro- mise such claim, which offer is declined by said property owner, unless he shall recover more than is so offered ; and in case he fails to recover any damages, or less than offered, he shall be liable for the costs of such proceedings. Sec. 4. This act shall not apply to or affect any proceed- ings already taken and now pending under the provisions of the act hereby amended. It is within the power of the legislature to authorize a loan upon a town which includes villages, for the purpose of laying and improving a road which does not pass through either vfllage. (People v. Supervisors of Queens, 18 Hun, 25.) Laying out streets in towns contiguous to cities. — By Laws 1875, chapter 482 (amended Laws 1880, ch, 365, and Laws 1881, ch. 554), section 1 and subdivision 9, boards of supervisors are given power to authorize in any county containing an incorporated city of one hundred thousand inhabitants or upward, when any territory within such county and beyood the limits of such city has been mapped out into streets and avenues, in pursuance of law, Laying out of Public Eoads. 187 the establishment of a plan for the grades of such streets and aTemies, the laying out, opening, grading, construction, closing and change of line of any one or more of them, to provide for the estimation and award of the damages to be sustained, and for the assessment on property intended to be benefited thereby, and fixing assessment district there- for, the levying, collection and payment of the amount of such damages, and of all other charges and expenses to be incurred, or which may be necessary in carrying out the pro- visions of this subdivision; but such last-named powers in regard to laying out, opening, grading, construction and change of line of such streets or avenues, or such provis- ions for defraying the expense thereof, shall only be exer- cised on the petition of the property owners who own more than one-half of the frontage on any such street or avenue, or on the certificate of the supervisors, justices of the peace and commissioners of highways of the town, or two- thirds of such ofiBcers, that the same is in their judgment proper and necessary for the public interest ; or in case the said streets or avenues, in respect to which such action is proposed to be taken, shall lie in two or more towns, on a like certificate of such town ofi&cers of each of said towns, or of two-thirds of all of them ; provided, however, that be- fore proceeding to make any such certificate, the said offi- cers, or such number of them as aforesaid, shall give ten days' notice, by publication in one of the daily papers of said county, and by posting in six public places in such town, or in each of such towns, of the time and place at which they will meet for the purpose of considering the same, at which meeting the public and all persons inter- ested may appear and be heard in relation thereto ; and provided that no such street or avenue shall be laid out, opened or constructed upon or across any lands heretofore acquired by the right of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by any existing corporation formed for the purpose of improving the breed of horses, without the consent of such corporation ; and provided further that none of said town officers shall be entitled to charge any compensation for their services under this act, and no charge shall be made against the town or any of the property therein for the expense of the publication of the notice herein required. The provisions of this section do not apply to the towns of Platbush and New Lots, in the county of Kings. 188 Highway Laws. CHAPTER VII. OF THE ALTERATION AND DISCONTINTTANOE OP HIGHWAYS. Commissioners may alter or dis- continue Api)lication to alter or discontinue. Notice of discontinuance. Surrey. Order to be posted. Jury when necessary. Proceeding of jui^. Jury not to be paid. Certificate of freeholders. Order altering or discontinuing. Papers to be Sled. Altering roads between towns. Description of road abandoned. Ownership of discontinued high. way. Plank road. What is highway. Time of disoontmuauce. Widening highway. Commissioners may alter or discontinue. — Sec- tion 1 of 1 R. S. 501 {ante, p. 29) authorizes the com- missioners of highways "to regulate the roads already laid out, and to alter such of them as they or a majority of them shall deem inconvenient." This power should only be exercised when the road can be made more convenient by such change. In making such alteration they may remove encroach- ments of fences and restore the road to its original lines; change the grade of the road to take so much of the lands of adjoining proprietors as is necessary to make the desired change, but in taking such lands the owners thereof must be compensated the same as on the original location. The commissioners are also empowered to discon- tinue such old roads and highways as shall appear to them on the oath of twelve freeholders of the same town to have become unnecessary. (1 R. S. 502, § 2.) This does not authorize the commissioners to re- verse an order laying out a new road by discontinu- ing it, but only to discontinue such roads as have been found to be useless. {People v. Pike, 18 How. 70.) Alteration akd Discoktiwxjance. 189 Any portion of a road may be discontinued with- out affecting the residue. {People v. WicTiols, 51 N. Y. R. 470.) The refusal of the referees to discontinue a road is no bar to new proceedings, within four years, for the same purpose. (Id.) Where a highway^ running obliquely across a farm, where its terminus in another highway was changed so as to run on the line of the lots, and enter the other highway at right angles, held, an alteration, not laying out of a new road. {People v. Jones, 63 N. Y. R. 306.) Where a new road has been regularly laid out, it cannot be discontinued as an old one before it has been opened and used, and when there has been no change of circumstances removing the occasion for it, and rendering it unnecessary or useless. {People V. Oriswold, 67 N, Y. R. m.) As to the mode of altering streets of incorporated milages, see page 185, ante. Application to alter or discontinue. — Every per- son liable to be assessed for highway labor may ap- ply to the commissioners of highways of the town in which he shall reside, to alter or discontinue any road, or to lay out any new road. Every such ap- plication shall be in writing, addressed to the com- missioners, and signed by the person applying. (1 R. S. 513, § 54.) So every person liable to be as- sessed for highway labor and owning lands in a town in which he is not resident may apply to the commissioners of highways of the town in which the lands are situated, to alter, discontinue or to lay out any road through the same. (Laws of 1836, en. 122; see ante, p. 187.) The word "same," in the act 1863, refers to the town and not to the land. {People v. Eggleston, 13 How. 123.) It is held that the commissioners may alter or dis- 190 Hi&H-WAT Laws. continue a road of their own motion and without any application, so that proceedings based upon the application of a person not authorized to apply are not irregular. [Gould v. Olass, 19 Barb. 179 ; Mar- ble V. Whitmy, 28 N. Y. R. 297 ; People v. Super- visors of Richmond, 20 id. 252 ; People v. Nichols, 51 id. 470.) Where a person desires to secure the alteration or discontinuance of a road, he should file a written application with the commissioners. (See forms Nos. 33, 34.) The application to discontinue an old road and to lay out a new one may be in one form. {People v. Robertson, 17 How. 74.) Notice of discontinuance. — Upon application be- ing made according to law to the commissioners of highways of any town, for the discontinuance of any public highway therein, it shall be the duty of such commissioners to give to all owners and occupants residing upon lands through or along which the highway described in said application passes, six days' notice in writing of the time and place of the meeting of the jury of freeholders to certify to the uselessness of said highway, which notice shall con- tain the name of the applicant, and a brief descrip- tion of the highway described in the application. And in case such jury shall certify that said highway is useless and unnecessary, then it shall be the duty of such commissioners to give to such owners and occupants six days' notice in writing of the time and place of thp meeting of such commissioners to hear and determine such application. The notice* re- (juiTed by this act shall be served by deHvering. the same to such owner or occupant, or, if he be absent, by leaving them at his dwelling-house, and in either Alteration and Discontinuance. 191 case at least six days before the time of meeting of which notice is given. (Laws 1873, ch. 69, as amended Laws 1878, ch. 114.) Survey. — Whenever the commissioners of high- ways shall lay out, alter or discontinue any road, either upon application to them or otherwise, they shaU cause a survey to be made of such road, and shall incorporate such survey in an order, to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same. (1 R. S. 513, § 55.) (See form No. 26.) The law applicable to the survey on laying out a highway, as given in the preceding chapter, is equally applicable on altering or discontinuing a highway. Order to be posted. — It shall be the duty of the town clerk, whenever any order of the commissioners for laying out, altering or discontinuing a road shall be received by him, to post a copy of such order on the door of the house where the town meeting is usually held, and the time hereafter limited for ap- pealing from such order shaU be computed from the time of recording the same. (1 R. S. 513, § 56.) Jury, when necessary. — Whenever application shall be made for the discontinuance of an old road, on the ground that it has become useless and unnec- essary, the commissioners of highways, to whom such application shall be made, shall summon twelve disinterested freeholders of the town, to meet on a day certain, to consider such application. Such freeholders, when met, shall be sworn well and truly to examine and certify in regard to the propriety of such discontinuance. (1 R. S. 517, § 81.) 192 Highway Laws. The statute provides that the commissioners shall suinmon, and it appears that they have no author- ity to delegate this authority by issuing process to a constable or other person. (See People v. Covmnis- sioners of GreenbusTi, 24 Wend. 367.) They are not required to issue or have any process to procure the jury, but will suflBciently comply with the stat- ute if theyrequest the freeholders to act. (Id. ) The better course, however, is to serve a summons on the persons required. (See form No. 35.) The term "freeholder" is sufficiently described in the preceding chapter. Any one of the commis- sioners may administer the oath to the jury. (Laws of 1845, ch. 180.) Proceeding of jury. — They shall then proceed to view such road, and if they shall be of opinion that the same is useless and unnecessary, they shall make and subscribe a certificate in writing to that eflFect, which shall be delivered to the commissioners of highways, who shall thereupon proceed to decide upon such application. (1 R. S. 618, § 82.) (See form No. 36.) Jury not to he paid. — No compensation shall be allowed any juror for examining and certifying in regard to the propriety of any highway being dis- continued, nor for appearing to make such examin- ation. (Laws of 1845, ch. 180, § 14.) Certificate of freeholders. — Where the owners of the land to be taken for the alteration of a highway consent to the taking of the same, and file a release of damages in the town clerk's office, a certificate of freeholders, of the necessity of the alteration, is not necessary. {People v. Jones, 63 N. Y. R. 11.) ALTEBATION and DlSCONTimiAKOE. 193 Order altering or discontinuing. — Should the commissioners decide to alter or discontimie a road, they should make an order in writing, to be signed by them, or a majority of them, including therein the survey of the road, and should file such order with the town clerk. Where only two of the com- missioners sign the order, it should appear upon the face of the order itself, either that all the commis- sioners were present and deliberated upon the sub- ject of the order, or that all the commissioners were duly notified of the intended meeting of the commissioners and of the subject upon which it was proposed to deliberate. Unless these facts are set forth in the order itself, the order wUl be invalid. (1 K. S. 525; People v. Williams, 36 IST. Y. R. 441 ; People V. Hynds, 30 id. 470.) (See form No. 37.) The commissioners, having all met, may depute one of their number io make the alteration consid- ered. {Bmith V. Homer., 7 Barb. 416.) Papers to l}e filed. — All applications, certificates and other papers relating to the discontinuing of any road, shall be filed by the commissioners, as Boon as they shall have decided thereon, in the office of the town clerk of the town. (1 R. S. 518, § 83.) Altering roads between towns. — When the commissioners of highways of any town or offi- cers of any city or village having the powers of commissioners of highways shall disagree with the commissioners of any other town or city or vil- lage in the same county relating to the laying out of a new road, or the altering of an old road extending into both towns or a town and a city or village, or when commissioners of a town in one county shall 25 194 Highway Laws. disagree with the commissioners of highways of a town or said officers of a city or village in another county relative to laying out a new road or altering an old road which shall extend into both counties, the commissioners of both towns, or the said officers of the city, village or town, shall meet on five days' written notice, specifying the time and place given by either of the commissioners or said officers to the others, and make their determination in writing upon such subject of disagreement. If they cannot agree, then they, or either of them, may certify that they cannot agree as to said highway, to the county judge of the county, if the proposed road is all in one county, or a justice of the supreme court if in differ- ent counties (or if the county judge is unable to act), who shall then take jurisdiction of the matter, and at any stage of any of the proceedings author- ized by this act, said judge or justice shall have power to appoint three commissioners, freeholders of the county, not residents of the same town, vil- lage or city where the road is located (if between two counties, then freeholders of another county shall be appointed), who shall, upon due notice to all per- sons interested, view the road and take such evi- dence as they deem proper, and shall have power and authority to decide (subject to the ap- proval of the judge or justice as hereinafter provided) all questions that shall arise on such hearing as to the laying out or altering said road, its location, width, grade and character of road and road-bed, or any point that may come up relating thereto, or may modify, revise or set it aside, or may affirm the lay- ing of the road, and order a new appraisal by the same or other commissioners; and said judge or jus- tice shall have power to decide all questions that Alteration and Discontinuance. 195 may arise before Mm, and he shall file Ms orders and decisions in the matter in the county clerk's offices of the county or counties where the highway is located,and they shall be duly entered of record there. In case the common council of a city, or trustees of a village acting as highway commissioners, or the town commissioners of a town, shall desire to make a new or altered Mghway running into two towns, or a village, or city, and a town, a better road than is usually made for a common Mghway, with a special grade or road-bed, drainage or improved plan, and are willing to bear the whole or a part of the expense thus incurred to the other town or city, on the appli- cation in writing of either of said officers on notice to all parties interested, the county judge or justice of the Supreme Court shall in such case make an equi- table adjustment of the matter, and may direct that, in consideration of the payment of . such portion of such additional expense by such village, city or town that desires it as shall be equitable, that its officers, contractors, servants and agents may go on in the other town, village or city and make the grade, road-bed, and do whatever shall be necessary for the completion of said road or highway, advancing the money necessary to do it, and upon the coming in of the report of the expenses paid, said judge or jus- tice shall, on notice to all interested parties, adjust and adjudge the amount to be paid to each owner and occupant, the amounts of damages, if any, to each having been previously ascertained by commis- sioners as above provided, and he shaU direct the same to be paid by each said town, village or city as shall be just and equitable, and the same shall be paid and collected the same as if fixed by the com- missioners of highways of the town, village or city. 196 Highway Laws. And the said officers and commissioners shall, in all things pertaining to the laying out or altering of said road, carry out the directions of said judge or justice without any unnecessary delay, and all ques- tions and disputes that may arise in reference thereto, and the execution of this law shall be decided and settled by him, and as he, by order, shall direct. (1 R. S. 516, § 72, as amended Laws 1881, ch. 513.1 Description of road abandoned. — Whenever any public highway, or any part thereof, by reason of alterations made therein, or by the opening of a new road, or in any other way, shall be abandoned by the public, and is no longer used as a public road, the commissioners or commissioner of highways shall file in the town clerk's office of the town a de- scription, in writing, signed by them or him, of the road so abandoned, and the same shall thereupon be discontinued. (Laws 1853, ch. 174, § 15.) (See form No. 40.) The abandonment of a highway cannot be predi- cated upon an obstruction interposed by the person upon whose property the easement is a burden. It can only be upon the acts of those entitled to the easement. {Amsbry v. Hinds. 46 Barb. 622.) Ownership of dAscontinued highway. — When any person shall be the owner of any land over which any highway shall run, and such highway shall be discontinued in whole or in part, by reason of some other road to be established and laid out through the lands of the same person, the person who shall assess the damag^s shall take into calculation the value of the road so discontinued, and the benefit resulting to such pers6n by reason of such discon- Alteration and Discontinuance. 197 timiance, and shall deduct the same from the dam. ages assessed for the opening and laying out such new road ; and thereupon the owner of the land may inclose so much of the highway so discontinued as shall belong to him. (1 R. S: 516, § 71.) In order to justify such deduction, the road aban- doned must be on the land of the person owning the land taken for the new road. When the fee in the old road belongs to one person and that in the new road to another, the latter cannot take the old road as compensation for his land. {Jackson v. Hathaway, 15 Johns. 453.) When a highway is discontinued or abandoned, the full and entire enjoyment of the land reverts to the owner of the fee. (Id.) And where the owner of adjoining lands is limited in his boundaries so as to .extend only to the side or fence of a highway, the land of the highway reverts to the original owner having the fee. (Id.) The interest of the public in an abandoned high- way cannot be donated to an individual. {People v. Com/missioners of Palatine, 63 Barb. 70.) In the city and county of New York, the fee of a discontinued highway is presumptively in the ad- joining owners and not in the corporation. {Yan Amringe v. Barnett, 8 Bosw. 357.) Where a city council gave a license to an adjoining lot-owner to inclose and occupy part of a street in the city, and such owner inclosed and built upon that part, it was held that the license could not be upheld under an authority in the charter to alter a street, the proceedings required for that purpose not being followed, and was invalid; that the occupation of such owner was not adverse to the city and that the city authorities had a right to remove the build- 198 Highway Laws. ing from the street. {Si. Vincent Orphan Asylum V. City of Troy, 76 N. Y. 108.) Plank road. — Any plank road whicli, for a period of five consecutive years, shall have heretofore neg- lected or omitted to exercise its corporate functions, shall be deemed dissolved ; and, provided its road- bed or right of way shaU have been used as a public highway for the said five years, the same shall be deemed and be a public highway to all intents and purposes, and with the same effect as if laid out by the commissioners of highways of towns under the statute, and aU laws relating to the erection, repair- ing and preservation of bridges shall apply to such highway. (Laws 1872, ch. 780.) But when any portion of a plank road was origi- nally buUt on lands not a highway and the corpo- rate existence of the company building it ceases, such portion shall not be used as a public highway or taken possession of as such untU the town pays the amount paid by the company for the same. (Laws 1880, ch. 484, amended Laws 1881, ch. 337.) What is a highway. — The last clause of Laws 1861, ch. 311, § 1, providing that all highways that have ceased to be traveled or used as such for six years shall cease to be highways for any purpose, is not limited by section 2 of said act to highways " laid out and dedicated,' ' but is applicable also to high- ways created by user. This clause is not, however, retroactive, but only applies to highways which have ceased to be traveled or used for six years after the passage of the act. {Amshry v. Hinds, 48 N. Y. R. 57.) TiTne of discontinuance. — Where an alternative mandamus is issued directing a commissioner to Alteration and Discontinuawoe. 199 open and improve a highway, the owners of the land not having released their right of damages, and dam- ages not having been assessed, and after the service of the mandamus the highway is discontinued in the manner prescribed by law, the fact that the damages were not assessed, or that the road was discontinued, is a complete answer to the writ. A highway is sub- ject to discontinuance though never opened ; and such discontinuance is effectual as against an alter- native writ of mandamus requiring the opening of the road, although occurring after the service of the alternative writ. {People v. Commissioner of High- ways of Heading, IT. & C. 193 ; but see People v. Griswold, 2 id. 351.) Widening highway. — ^The widening of a high- way is an " alteration " of it. It is not the " laying out " of a new highway, {people v. McNeil, 2 T. & C. 140.) By Laws of 1875, chapter 482, section 1, subdivision 10, as amended by Laws of 1876, chap- ter 257, boards of supervisors are empowered to authorize the laying of highways of a greater or less width than is now required by law, and to alter by increasing or diminishing the width of highways now in existence. Subdivision 10 of section 1 of the foregoing act confers no power upon boards of supervisors to adopt a resolution or ordinance, which shall have the effect, proprio vigore, of establishing such a road, or reducing the width of one already in exist- ence, but merely authorizes them to provide, by suitable legislation, for the doing of those acts by commissi'oners of highways. Boards cannot author- ize proceedings without application from or notice to all interested parties, and an opportunity for 300 Highway Laws. them to be heard. The proper course is for the board to pass an act authorizing the commissioners of highways, etc., to entertain such proceedings on proper application and notice, to be specified in the act. {PMllips V. Schumacher, 10 Hun, 405.) Power of legislature to pass acts relating to laying out, etc., highway. — The Constitution pro- vides that the legislature shall not pass a private or local bill laying out, opening, altering, working or discontinuing roads, highways for alleys. (Const., art. 3, § 18.) This provision is not violated by an act intended not to originate a work but to heal de- fective proceedings under a city charter. (Tift v. City of Buffalo, 82 N". Y. R. 204.) The legislature may appoint commissioners for the special purpose of widening a street already exist- ing. (People V. McDonald, 69 K". Y. R. 362.) Alteration of road laid out hy State. — By Laws 1882, ch. 317, it is thus provided : The board of supervisors of any county may authorize and empower the highway commissioners of any town to alter, discontinue, widen, or narrow, any road or public highway which shaU have been laid out by the State within its boundaries, under the same con- ditions as would govern their action in relation to public highways that have been laid out by local authorities. Appeals fkom Oedees Laying Out. 201 CHAPTER VIII. APPEALS EKOM OEDEES LATIKft OUT, ALTEEING OE DISCONTINUING HIGHWAYS. ]^ht of appeal. WHen appeal does not lie. Appeal, now brought. Appointment of referees. Order to be filed. Notice to referees. Beferees to give notice. Proceedings of the referees Decision of the referees. Determination, how made. Notice of decision. Commissioners to carry out deter- mination. Decision to remain unaltered for four years. Appeal stays proceedings. Removal or fences. Referee's fees. Certiorari of proceedings . Setting aside confirmation . RigM of appeal. — Any person who shall conceive himself aggrieved by any determination of the com- missioners of highways, either in laying out, altering or discontinuing any road, or in refusing to lay out, alter or discontinue any road, may at any time within sixty days after such determination shall have been filed in the office of the town clerk, appeal to the county judge of the county in the same manner as appeals were heretofore allowed to b6 brought to three judges under title first, article fourth, chapter sixteenth, part first of the Revised Statutes ; and when any appeal shall be brought under this section, the said judge, or in case of his residence in the town, or of his interest in the lands through which the road shall be laid out, or in case he is of kin to any of the persons interested in said lands, or in case of his disability for any cause, then one of the justices of the sessions shall, after the expiration of the said sixty days, appoint, in writing, three disinterested freeholders who shall not have been named by the parties interested in the appeal, and who shall be residents of the county but not of the town wherein the road shall be located, as referees to hear and determine all the appeals that may have been brought 26 20^ Highway Laws. within the said sixty days, and shall notify them of their appointment, and deliver to them all papers pertaining to the matters referred to them. Upon receiving notice of appointment the said referees shall possess aU the powers and discharge all the duties heretofore possessed and discharged by the three judges, and give the same notices heretofore required to be given under title first, article four, chapter six, part one aforesaid, and before proceed- ing to hear the appeal or appeals they shall be sworn, by some officer authorized to take affidavits to be read in courts of record, faithfully to hear and determine the matters referred to them. (Laws of 1847, ch. 455, § 8.) (For forms see No. 41.) Where the judge is disqualified he cannot g- nate the justice. {Peoplev. Commas, 57 N.Y. R. 549.) Any person considering himself aggrieved may take the appeal, whether he is in fact aggrieved or not, or whether or not the road is laid through his lands. {People v. Cha/m/pion, 16 Johns. 61.) Nor is one person concluded by the appeal of another. ((JlarTc V. Phelps, 4 Cow. 190.) The right to appeal from an order made by com- missioners of highways laying out a public high- way is not restricted to those persons over whose lands the road is proposed to be laid, but may be exercised by every person who is a resident tax payer of the town, and as such liable to assessment therein for highway labor. {People v. Cortelyou, 36 Barb. 164.) So persons owning land in the town, though not residents thereof, may appeal in like manner as res- ident tax payers. (See 1 R. S. 513, § 54, as amended 1836, ch. 122.) A corporation comes under the de- nomination of "person," within the meaning of Appeals feom Obdees Laying Out. 203 this statute, and enjoys the same right to appeal as individuals. {People v. Map, 27 Barb. 238.) But an innkeeper, whose only interest in the pro- posed road is that his trade will be injured by the diversion of travel, cannot sustain a certiorari to re- new the proceedings of the highway commissioners. {People V. Schell, 5 Lans. 352.) Neither can a per- son whose lands have not been interfered with in laying out the highway and who has no interest in the question, except as an inhabitant or tax payer or officer of the town. (Id.) When appeal does not lie. — An order of the high- way commissioners, ascertaining and recording an old highway, is not appealable. {People v. Judges of Cortland, 24 Wend. 491.) So an appeal does not lie from a determination which is void for want of jurisdiction. {People v. Judges of Suffolk, 24 Wend. 249.) Where trustees of a village are ap- pointed by statute commissioners of highways, with exclusive power, no appeal lies from their determin- ation. {People V. Lawson, 17 Johns. 277.) An appeal to the court of appeals does not lie from a decision of the general term affirming an or- der of the county judge in reference to the liability of a plank road to taxation under Laws 1854, ch. 87, § 4. {People v. Freeman, 52 N. Y. R. 656.) Where the commissioners of highways of two ad- joining towns in different counties assemble together in joint board, and unite in an order laying out or refusing to lay out, altering or discontinuing, or re- fusing to alter or discontinue, a road or highway, their judgment and determination cannot be reviewed by appeal to a county judge of one of the counties. The statute makes no provision for an appeal in such case. {People v. County Judge of Dutchess, 26 How. 346.) 204 Highway Laws. It seems that in the absence of any provision of the statute for review in such a case, the determina tion of the joint board of commissioners must be considered final and equivalent in all respects to an order of one board of commissioners affirmed by three referees on appeal. (Id.) Appeal, Tiow brought. — Every such appeal shall be in writing, addressed to the county judge of the county, and signed by the party appealing. It shall briefly state the ground upon which it is made, and whether it is brought to reverse entirely the deter- mination of the commissioners, or only to reverse a part thereof ; and in the latter case it shall specify what part. (1 R. S. 518, § 86, as modified by Laws of 1847, ch. 455, § 8.) (See form No. 42.) The appeal must be taken within sixty days from the filing of the order or determination appealed from. The appeal may be taken either to the county judge, as provided in the above act, or to the county court, under the eleventh subdivision of section 30 of the Code. By the Code concurrent jurisdiction has been extended to the county court, but without changing the statutory form of appeal from the order of the commissioners, or divesting the county judge of authority to direct a reference. {People v. Van Alstyne, 3 Keyes, 35.) An appeal cannot be made to a judge who was one of the freeholders and signed the certificate on laying out the road, but, if this objection is not urged on the hearing of the appeal, it is not such an error as w511 justify a reversal of the proceedings on cer- tiorari. {Commissioners v. Judges of Putnam, 7 Wend. 264.) It has been held that a notice of appeal, stating as Appeals from Obdees Laying Out. 205 a ground that the order of the commissioners was illegal, was good, (floimwissioners v. Meserole, 10 Wend. 122.) So a notice simply stating the appeal, without setting forth the grounds, was sustained. {Commissioners v. Judges of Putnam, 7 Wend. 264.) A notice of appeal, specifying that the order or the commissioners is unlawful and erroneous, is SHffioient to give the county judge jurisdiction to appoint referees ; the particular reasons need not be stated. {Hecior v. Clark, 78 JSf. Y. R. 21.) The appellant, if he assigned reasons, would probably not be confined to them. The appeal is in the nature of a new proceeding, though upon its hearing the regularity of the proceedings before the commissioners cannot be attacked. (Id.) In proceedings before justices of the peace in re- spect to encroachments upon highways, under Laws 1862, ch. 243, appeals are governed by the provis- ions of the Code relating to appeals from judgments rendered by justices of the peace, and in such ap- peals the court, in its review, is limited to the grounds of appeal contained in the notice served on the respondent. {Griswold v. BuUer, 2 T. & C, 673.) Appointment of referees. — Where several persons separately appeal, there should be but one set of referees, one hearing and one order. {Disosway v. Winant, 34 Barb. 578 ; People v. KnisTcern, 54 N. Y. E. 52.) If the provision of the above section, directing the judge to suspend proceedings upon the appeal to him until the expiration of sixty days from the determination of the commissioners of highways, is not merely directory, his neglect to do so is only erroneous, for which the remedy is by certiorari. It does not render his proceedings and decision void. {Harrington v. People, 6 Barb. 607.) The referees are to be three disinterested freehold- ers, residents of the county but not of the town in which the highway is located. They are not to be named by the parties, nor are they to be of kin to any 206 Highway Laws. such parties, as in such, case they would acquire no jurisiction and their proceedings would be void. {People V. Flake, 14 How. 527.) Order to he filed. — All orders for the appointment of the referees shall be filed and recorded in the office of the town clerk of the town in which the road shall be located. (Laws 1847, ch. 455, § 21.) Notice to referees. — The county judge or justice appointing the referees is to notify them of their appointment and to deliver to them aU papers per- taining to the matter referred to them. (Laws 1847, ch. 455, § 8.) Referees to give notice. — The referees are required to give the same notices required to be given by the provisions of the Revised Statutes. (Id.) The pro- vision as modified by the act of 1847 is as follows : It shall be the duty of the referees to proceed thereon as soon as may be convenient. Where the determination appealed from was against an appli- cation for laying out, altering or discontinuing a road, the referees shall give notice to the commis- sioners by whom such determination was made. Where the appeal is from a determination in favor of an application for laying out, altering or discon- tinuing a road, the notice shall be given to the com- missioners, and to one or more of the applicants for such road. In all cases the notice shaU specify the time and place at which the referees wUl convene to hear the appeal. (1 R. S. 518, § 87.) (See form No. 43.) Every such notice shaU be served at least eight days before the time mentioned therein, by delivering the same to one of the commissioners whose deter- mination is appealed from, or by leaving the same at Appeals from Orders Laying Out. 201 Ms dwelling-house. If the notice be also directed to an applicant, it shall be served in the same man- ner. (1 R. S. 518, § 88.) The notice must be in writing. {Gittrel v. Golv/m- hia Turnpike Co., 1 Johns. Cases, 107.) The referees are the persons whose duty it is to give the notices, and their neglect cannot be regarded as laches on the part of the appellant. The referees have no jurisdiction to proceed on the appeal untU the necessary notices have been given. {People v. Judges of HerMmer, 20 Wend. 186.) Should they proceed without giving such notice, their proceedings will be reversed by certio- rari. {People V. Tallman, 36 Barb. 222 ; Commis- sioners v. Olaio, 15 Johns. 537 ; Bradhurst v. Pres- ident and Directors, 16 id. 8.) The attendance of one of the commissioners is not a waiver of notice. {People V. Osborn, 20 "Wend. 186.) Upon an appeal from an order of commissioners of highways, refusing to lay out a highway, the referees appointed by the county judge to hear and determine the same must give three days' notice, in writing, to the occupant of land through which the road is contemplated, of the time and place at which they will meet to determine the appeal. Unless such a notice is given, an order made by the referees reversing the decision of the commissioners will be void, and vsill furnish no justification for entry upon the land by a person claiming that the same is a public highway duly laid out by the referees. The 8th section of the act of 1847, cited above, virtually revives section 91 of 1 Revised Statutes, 519, which had been repealed by the Laws of 1845, ch. 180, and places the referees in the same position as the judges were in under that provision. ( Terpening v. Bmith, 46 Barb. 208.) 208 HiGHWAT Laws. It seems that no notice of the hearing of an appeal from the determination of the commissioners laying out a highway is necessary. {People v. Burton, 65 N.Y. R. 452.) The fact that the occupant was present and sworn as a witness is no waiver. {People v. Judges of Her- Mmer, 20 Wend. 186.) And where the occupants of the land waive notice of the proceedings of the referees, but afterward, and before any action was had on such waiver, withdraw it, the referees cannot proceed without giving the required notice. {Peo- ple V. Crozier, 12 Abb. 445.) (See form No. 44.) Proceedings of the referees. — It shall be the duty of the referees to convene at the time and place men- tioned in the notice, and to hear the proofs and alle- gations of the parties. They shall have power to issue process to compel the attendance of witnesses, and may adjourn from time to time, as may be neces- sary. Their decision, or that of any two of them, shall be conclusive in the premises, and every such decision shall be reduced to writing, be signed by the referees making it, and be filed by them in the oflBlce of the town clerk of the town, who shall record the same. (1 R. S. 519, § 89, as modified by act of 1847.) If the judges do not or will not proceed they may be compelled by mandamus to hear and decide the appeal. {Lansing v. Caswell, 4 Paige, 519.) Having met, the first duty of the referees is to be sworn by a judge of a court of record, a justice of tlie peace, commissioner of deeds or clerk of a court of record. The taking of the oath is a preliminary essential to give the referees jurisdiction. Neither tte commissioners of the town nor the parties ap- pealing can waive the taking of the oath, since the Appeals from Oedees Laying Out. 209 whole town have an interest m the proceeding. {Peo- ple V. Connor, 46 Barb. 333.) The parties to an appeal have a right to presume that the referees have taken the oath, and cannot be charged with implied notice of a neglect of it. (Id.) The referees may issue process to compel the attendance of witness, on the application of either' party. (See form No. 45.) They may also adjourn from time to time, as may be necessary. The only limit to the power of adjourn- ment is, that such adjournments be necessary, of which the referees are to judge. After the hearing has terminated they may adjourn to enable them to make their decision. {People v. Ferris, 41 Barb. 124.) But when once the decision has been made and they have adjourned without day, they cannot again meet and proceed in the matter. {Rogers v. Runyan, 9 How. 248.) Where referees have heard both parties and duly closed the hearing, and have entered upon the task of forming a determination, they have no power to entertain a motion of third persons to open the cause for a further hearing, and for the reception of evi- dence impeaching the original testimony and adding to the weight of the original evidence. {People v. Ferris, 18 Abb. Pr. 64; 27 How. Pr. 193 ; 41 Barb. 121.) Such referees are like other inferior and subordi- nate officers and tribunals that are creatures of stat. ute to be confined to powers expressly conferred, or such as are necessarily incident to express powers. (Id.) In a case where they have power to open the hear- ing, the same notice should be given as upon the first hearing. (Id.) The referees appointed, upon appeal from the deter- 27 210 Highway Laws. mination of the commissioners of highways in refus- ing to lay out, alter, or discontinue a road, possess all the powers and are required to discharge all the duties formerly possessed by the three judges under 1 R. S. 518, § 85. {People v. Barl&r, 12 Barb. 193 ; People V. Qommissioners of Cherry Valley, 8 N. Y. R. 476.) Their authority on the appeal is confined to a hear- ing on the merits. They cannot entertain a question as to the regularity of the proceedings before the com- missioners. {Commissioners of Warwick v. Judges of Orange, 13 Wend. 432 ; Lawton v. Commission- ers of Cambridge, 2 Cai. 179.) Nor as to the jurisdiction of the commissioners. {People V. Harris, 63 N. Y. R. 391 ; People v. Sher- man, 15 Hun, 575.) If the proceedings anterior to the commissioners' order are regular upon their face, the jurisdiction of the referees is limited to the consideration of the case upon its merits. They cannot receive extrinsic evi- dence to impeach the freeholders' certificate of the necessity of the road. {People v. Yan Alstyne, 3 Keyes, 35 ; People v. McNeil, 2 N. Y. Sup. 140.) Evidence that the certificate of freeholders, as to its necessity, was obtained by fraudulent representa- tions, is not admissible. This objection does not go to the jurisdiction of the commissioners. It should be raised by a direct proceeding to review the decis- ion, and not by proof before the referees on an appeal. {People V. KnisTcern, 50 Barb. 87 ; 54 N. Y. R. 52.) It is the duty of the referees to hear the proofs and allegations of the parties, and make a determination reversing or affirming the order of the commissioners. They have no power to dismiss the appeal. But, if they dismiss, the remedy is not by a common-law certiorari, but, it seems, by a mandamus. {Peoplev. Cortelyou, 36 Barb. 164. Appeals from Orders Laying Out. 211 The referees may hear and decide the appeal as well on facts existing at the time of the hearing before them as upon the facts existing at the time of the original application, and, on reversing the decision, they may make such order as they judge the com- missioners should have made. {People v. Albright, 14 Abb. 305 ; 23 How. 306.) Where the commissioners of highways made an order refusing to lay out a road through cultivated and inclosed lands because the applicant had not given notice of a meeting of freeholders to examine and certify as to its necessity, etc., and because a certificate of twelve freeholders had not been ob- tained, on appeal the referees reversed the order of the commissioners and laid out the road ; it was held that the proceeding of the referees was void, and that the commissioners would be trespassers if they opened the road. {People v. Bggleston, 13 How. 123.) The referees are to decide upon the unfitness or fitness of laying out, altering or discontinuing the road. They are substituted in place of the commis- sioners, and all the considerations which are proper for the one are also proper for the other. {Commis- sioners of Bushwick v. Meserole, 10 Wend. 126.) Decision of the referees. — Since the act of 1847 (ch. 456), the referees may reverse the decision of the commissioners in part and confirm in part. {People V. Commissioners of Cherry y alley, 8 N. Y. R. 482 ; People v. Baker, 19 Barb. 240.) The case of The Commissioners of Sherburne v. Judges of Che'fiango (25 Wend. 453) was decided prior to that act. Section eight of the act of 1847, above cited, gives to the referees all the powers and requires them to 212 Highway Laws. discharge all the duties heretofore possessed or dis- charged by the three judges, and, therefore, where an appeal shall have been made from a determina- tion of commissioners refusing to lay out or alter a road, and the referees shall reverse such determina- tion, such referees shall lay out or alter the road applied for ; and in doing so shall proceed in the same manner in which the commissioners of high- ways are directed to proceed in the like cases. Such road shall be opened by the commissioners of the town, in the same manner as if laid out by them- selves. (1 E. S. 515, § 91.) On reversing the order of the commissioners, the referees must make such order as the commissioners should have made. {People v. Albright, 14 Abb. 305; 23 How. 306; People v. BUer, 19 Hun, 263.) The referees cannot lay out the road, except as it was submitted to the commissioners. {Ex parte Commissioners of Danube, 1 Cow. 142.) The referee, on reversing the determination of the commissioners, may order the commissioners to lay out the road, and an order to lay it out "as applied for,' ' is sufficiently explicit. {People v. Commission- ers of Salem, 1 Cow. 23.) A mere reversal of an order refusing to lay out a road is not an order to be carried out by laying out the road. {People y. Commissioners of Watertown, 7 How. 28.) The commissioners have no power to lay out or alter a road upon the mere reversal, on appeal, of their former refusal to lay out. They have no power to do any act in the premises except to carry out the order made by the referees. (Id.) Where the referees simply reverse an order refus- ing to lay out a highway, without giving further directions, the commissioners are not bound to lay Appeals from Oedees Laying Out. 21H out the highway, and a mandamus will not be granted to compel them to proceed and do it. {People V. Commissioners of Cherry Valley, 8 N. Y. R. 476.) Should the referees conclude their proceedings by simply reversing the order of the commissioners refusing to lay out a highway, without making an order for laying it out, a mandamus will be granted to compel the referees to lay out the road. {People V. Barher, 12 Barb. 193.) An order by the referees to lay out as applied for is sufficiently explicit. {People v. Commissioners of Salem, 1 Cow. 23.) Upon an appeal from a decision refusing to lay out a road, the judges may lay it out with reference to the written application for it, giving the termini and general route proposed ; and it is of no consequence what particular route the jury or the commissioners had examined. {People v. Judges of Dutchess, 23 Wend. 360.) Determination, how made. — The decision of the referees, or of any two of them, must be reduced to writing, be signed by the referees making it, and be filed in the office of the town clerk of the town, who shall record the same. (1 R. S. 519, § 89.) (See form No. 46.) In making the decision the referees must all meet and confer together on the subject-matter, although a majority of them may decide. (2 R. S. 255, § 27 ; Downing v. Rugar, 21 Wend. 178 ; CrooTcer v. Crane, id. 211 ; Lee v. Parry, 4 Denio, 125 ; Keeler v. Frost, 22 Barb. 400 ; Ex parte Rogers, 7 Cow. 526.) The decision of referees, affirming the order of commissioners laying out a highway, need not show that all the referees met and acted, and is valid 314 Highway Laws. though signed by only two. {People v. Burton^ 65 N. Y. R. 452.) An appeal from the commissioners of highways was heard by the referees, who then separated, in- tending to meet again, but they did not, and an order on the appeal was drawn by the attorney of the appellant, and signed by the referees at their several residences. Held, that this was ground of reversal. {Harris v. WJiitney, 6 How. Pr. 175.) After the decision has been made, the referees have no power to review or alter such decision ; but where errors have occurred in the order or certificate filed by them, as in the description of the road, they may file an amended order or certificate correcting such errors. In making up the certificate they act ministerially. ( Woolsey v. TompJcins, 23 Wend. 324; Rogers v. Bunyan, 9 How. 248.) When the referees have duly closed the hearing and entered upon the task of forming a determina- tion, they have no power to entertain the motion of third persons to open the cause for a further hear- ing, and for the reception of evidence impeaching the testimony and adding to the weight of the original evidence. {People v. Ferris, 18 Abb. 64 ; 27 How. 193 ; 41 Barb. 121.) Notice of decision. — Where referees appointed on an appeal from the decision of commissioners give timely notice to the owners and occupants of the land that they will meet on a specified day to decide upon the application to lay out the highway, it is not necessary, upon their subsequently determining to lay out such highway, that they should serve an additional notice on the owners and occupants. Their first notice, although it precedes the taMng of the testimony, and the reversing of the order of the Appeals from Oedees Laying Out. 216 commissioners appealed from, satisfies the statute. {People V. Kniskerh, 50 Barb. 87.) Commissioners to carry out determination. — Whenever there shall have been any final deter- mination upon any appeal or appeals provided for as aforesaid, making it necessary that any road or highway shall be laid out, altered, opened or discon- tinued, it shall be the duty of the commissioner or commissioners of highways of the town where the same is to be done, to carry out such determination the same as if the decision of such commissioner or commissioners had been in favor thereof, and there had been no appeal." (Laws of 1845, ch. 180, § 13.) When the commissioners refuse to open the road laid out by the judges on reversing the commission- ers' decision, a mandamus lies to compel them to open it. {Peoples. Champion, 16 Johns. 61.) Such writ is to be directed to " the commissioners." It is only in case of disobedience that the commis- sioners are to be proceeded against personally. The " final determination " intended by § 13 of Laws of 1845, making it the commissioner's duty to carry out such determination, was a laying out or altering a road. A mere reversal is not an order to be car- ried out by laying out a road. {People v. Commis- sioners of Watertown, 7 How. Pr. 28.) Decision to remain unaltered for four years. — The decision of the referees, laying out, altering or discontinuing any road, in whole or in part, shall remain unaltered for the term of four years from the time the same shall have been filed in the office of the town clerk. (Laws of 1847, ch. 455, § 9.) The affirmance of the decision of the commissioners lay- yi6 Highway Laws. ing out a road is making a decision laying out a road within the meaning of the statute. The policy of the provision is to prevent litigation for the period specified in regard to the road, after a decision on appeal. [People v. PiJce, 18 How. 70. See People V. Jones, 2 N. Y. Sup. 360.) But this provision does not apply to a refusal to lay out, alter, or discon- tinue. (PeopleT. Jones. 63 N. Y. R. 306.) Decision conclusive. — The decision of the refer- ees, or of any two of them, is conclusive in the prem- ises. (1 R. S. 519, § 89.) The provision that the decision of the referees shall be conclusive in the premises means only that it shall be conclusive on the merits as to the particular case in which the appeal is taken, and does not pre- vent or affect a new application for the same road. {Bruyn v. Graham, 1 Wend. 370.) The decision of the referees is only conclusive on the merits. They can only entertain, examine and decide the appeal on its merits. But, if any irregu- larity occur in their proceedings, or in the proceed- ings of the commissioners in making the order appealed from, such irregularity may be corrected by the supreme court on certiorari. {Commission- ers of Warwick v. Judges of Orange, 13 Wend. 432. Appeal stays proceedings.— 'Wh.en an appeal is taken from the determination of the commissioners, their power over the matter is suspended until the decision of the appeal, and where several appeals are taken, a decision of one cannot give the com- missioners power to open the road through the lands of the other appellants. {Glarh v. Phelps, 4 Cow. 190.) But though an appeal operates as a stay of proceedings, it operates only from the time it is taken, and cannot undo or render illegal what has Appeals from Oedees Laying Out. 317 lawfully been done under th.e order appealed from. {Drake v. Rogers, 3 Hill, 604.) MemovaZ of fences. — Whenever tlie commission- ers of highways shall have laid out any public high- way through any inclosed, cultivated or improved lands, in conformity to the provisions of this title, and their determination shall not have been appealed from, they shall give the owner or occupant of the land through which such road shall have been laid, sixty days' notice, in writing, to remove his fences. If such owner shall not remove his fences within the sixty days, the commissioners shall cause such fences to be removed, and shall direct the road to be opened and worked. (1 R. S. 520, § 96.) If the determination of the commissioners shall have been appealed from, then the sixty days' notice shall be given after the decision of the judges upon such appeal shall have been filed in the office of the town clerk of the town. (1 R. S. 520, § 97.) Sixty days' notice must be given before proceeding to open the road, as well where it has been estab- lished by an alteration made by referees after the same has been laid out by them on appeal, as when a road is originally laid out by commissioners. Actual notice must be shown, as it will not be pre- sumed. {Case V. Thompson, 6 Wend. 634.) Though a road has been laid out, the owner is entitled to sixty days' notice to remove his fences, and the overseer has no right to abate or remove them without such notice. {Kelley v. Horton, 2 Cow. 424.) (See form No. 47.) Referees' /ee*.— Every referee appointed as above provided shall be entitled to receive two dollars for every day employed in the hearing and decision of such appeal or appeals, to be paid by the party 28 218 Highway Laws. appealing, where the determination of the commis- sioners shall be confirmed, but where it is reversed^ to be a charge upon the county. (Laws of 1847, ch. 455, § 9.) This section (§ 9) has been interpreted to mean that the fees of the referees shall be a county charge when the appellant succeeds on his appeal. The word " reversed" was intended to embrace a reversal in part as well as an entire one. {People v. Super- visors of Orange, 20 Hun, 196.) Where several appeals are taken, the referees are entitled to the costs of one appeal only. {Disosway V. Winant, 34 Barb. 578 ; 13 Abb. 216.) The liability of the appellants in such case, provided they are unsuccessful, is joint and several, and the referees may recover their entire fees from any one. (Id.) The one compelled to pay could, however, recover the proportionate parts from the other appellants. The fact that a writ of certiorari has been served out to remove the proceedings of the referees into the Supreme Court does not suspend their right to their fees. {Disosway v. Winant, 34 Barb. 578 ; 18 Abb. 216.) Certiorari of proceedings. — Either party may sue out a writ of certiorari to the Supreme Court to re- view the proceedings of the referees. (Commis- sioners of EinderhooTc v. Claw, 15 Johns. 537; People V. Yan Alstyne, 32 Barb. 131 ; affirmed, 3 Keyes, 35.) But a party must not be guilty of laches. {People V. Land/refh, 4 T. & C. 133. See, also, Matter cf Lexington Avenue, 5 id. 436.) And a certiorari is not proper while an appeal is pending to the county judge from the decision of the commissioners. {People V. Wallace, 4 T. & C. 438.) The application is to be made to the court at special term, and is to be founded on affidavits Appeals feom Orders Laying Out. 219 siiowing that there is reasonable ground to appre- hend that a wrong has been done, of a nature that the court can correct. {Gardner v. Commissioners of Warren, 10 How. 181 ; 12 Barb. 219.) (See form No, 48.) Notice of the certiorari must be given to the other party and of the time and place of the hearing. {Commissioners of KinderhooTc v. Claw, 15 Johns. 537; People v. Commissioners of Brookfield, 2 Code R. 54.) The court may either allow the writ at once or grant an order to show cause. {Matter of Bruni, 1 Barb- 187.) When the writ is granted it should be in the name of the people, should recite the names of the appellants and the cause of complaint, and should be directed to the referees by name, and give their title as referees appointed by the county judge, etc., commanding them to certify and return the appeal, together with the testimony given or offered on the hearing, with their decision, and all things touching the same. {People v. Salem, 1 Cow. 23.) The writ should be made returnable at a general term of the district in which the proceedings sought to be reviewed were had. {People v. Kelley, 35 Barb. 444.) It should be tested, signed and sealed. (2 Burr. Pr. 195.) An indorsement is to be made thereon, signed by the clerk, showing that the writ was issued by order of the court. {Mott v. Commissioners of Rush, 19 Wend. 640.) (See form No. 49.) The writ stays the proceedings, and the commis- sioners cannot proceed to open the road until a de- cision is rendered. {PatcMn v. Mayor of Brooklyn, 13 Wend. 664; Disosway v. Winant, 33 How. 460.) The referees, prior to the return day mentioned in the writ, must certify and return to the supreme court at general term the appeal, together with the 220 Highway Laws. testimony given and offered to be given on the hear- ing thereof, with their decision thereon, with all things touching and concerning the same. The return must show aflBrmatively that the referees had authority to act; and where their authority and ju- risdiction depends upon a fact to be proved before them, and such fact is disputed, they must certify . the proofs given in relation to it for the purpose of enabling the higher court to determine whether the fact be established. {People v. Ooodwin, 5 'N. Y. R. 568; People V. Van Alsfyne, 32Ba.v\).lS2.) (See form No. 49.) But on the return of the referees to the certiorari, no other question can be raised than those relating to the jurisdiction of the referees and the regularity of their proceedings. (Birdsallv. Phillips, 17 Wend. 464; Prindle v. Anderson, 19 id. 391; People v. Ooodwin, 5 N. T. R. 572 ; People v. Van Alstyne, 32 Barb. 131.) The court, on such certiorari, cannot examine into the merits of the appeal, or of the de- cision ; the determination of the referees thereon is final and conclusive, but it may examine into the regularity of their proceedings, and into all ques- tions, whether of law or fact, on which the referees' jurisdiction depends. {People \. Ooodwin, supra; Commissioners of Warwick v. Judges of Orange, 18 Wend. 432.) Among the questions of jurisdiction thus subject to review, is the question whether the owner of the inclosed, improved or cultivated lands, through which a highway is laid, has given his con- sent thereto {People v. Goodwin, 5 N. Y. R. 568); also the question whether the persons making the certificate of its necessity were freeholders {People V. Commissioners of Seward, 27 Barb. 94) ; also the question whether they were twelve in number {Town of Gallatin v. LoucTcs, 21 Barb. 578) ; also the ques- Appeals fkom Oedees Laying Out. 221 tion whether the highway was laid out through the yard or garden of the owner without his consent {Bx parte Clapper, 3 Hill, 458), or through an or- chard. {People V. Oommu'sioners of Dutchess, 23 Wend. 360. See, also, People v. Yan Alstyne, 32 Barb. 131.) The effect of a reversal is to render the commis- sioners' proceeding void from the beginning. {Briggs V. Bowen, 60 IST. Y. R. 454 ; People v. Weaver, 3 T. &C. 793.) Where the proceedings of the referees are removed into the supreme court, the prevailing party is not entitled to costs. {People v. HeatTi, 20 How. 304.) Where the supreme court reverse the decision of the county judge and referees, without any direction as to costs, it is irregular to enter the judgment with costs. {People v. BoMnson, 25 How. Pr. Eep. 345.) Setting aside confirmation. — On a motion to set aside the confirmation of a report of commission- ers for opening a street, it appeared that no objec- tions were filed to the report by the moving party be- fore confirmation, although an opportunity existed therefor, and that the order of confirmation was made in January and the proceedings to set aside were not commenced until June. It was held that the confirmation could not be disturbed except for fraud. {Matter of Lexington Avenue, 6 N. Y. Sup. 436.) 222 Highway Laws. CHAPTER IX. DAMAGES ON LAYING OUT HIGHWAYS. May be ascertained by agreement. Costs, and by whom to be paid. How to be assessed. Vacancies, how filled. Provision in case persons conceive Orders to be filed. themselves aggrieved Damages assessed to be audited by Names of jurors to be put in box board of supervisors. and drawn. Damages and expenses, how col- Jury when to be summoned. lected. Jurors to be drawn to re-assess Certiorari. damages. Appeal. May he ascertained hy agreement. — The damages sustained by reason of the laying out and opening such road may be ascertained by the agreement of the owner and the commissioners of highways, pro- vided such damages do not exceed one hundred dol- lars; and unless such agreement be made, or the owner of the land shall, in writing, release all claim to damages, the same shall be assessed in the man- ner prescribed by law, before such road shall be opened or worked or usedi Every such agreement or release shall be filed in the town clerk's office, and shall forever preclude such owner from all further claim for such damages. (1 R. S. 515, § 64.) The word ' ' owner " here includes a vendor under an executory contract of sale. {Smith v. Ferris., 6 Hun, 553.) The commissioners can only agree with the owner of the land, as no provision is made for recognizing the claims of occupants and tenants. The agreement or release must be in writing, and is to be filed by the commissioners. Where the damages cannot be agreed upon the commissioners must proceed to have them assessed. Damages on laying out Highways. 223 Should they attempt to enter upon the lands and open the road before causing such assessment, they would be trespassers. {PecTcham v. Henderson, 27 Barb. 207.) Although the commissioners must have the dam- ages legally assessed before entry upon the land to open the road, it is not necessary that such damages be paid before the road is opened. {Bloodgood v. Mo- Jiawk B. R. Co., 14 Wend. 51 ; Chapman v. Gates, 54 N. Y. R. 132.) Damages, how to be assessed. — Wherever any damages are now allowed to be assessed by law when any road or highway shall be laid out, altered or dis- continued in whole or in part, such damages shall be assessed by no less than three commissioners to be appointed by the county court of the county in which such road shall be, on the application of the commissioner or commissioners of highways of the town ; or in case the said commissioners of highways should neglect or refuse to make such application for the space of thirty days after having been re- quested so to do, it shall be lawful for the said county court to appoint such commissioners on the application, of any of the owners of the land through which such road shall have been laid out ; and the commissioners so appointed shall take the oath of office prescribed by the constitution, and shaU pro- ceed, on receiving at least three days' notice of the time andplace, to meet the commissioners of high- ways and take a view of the premises, hear the par- ties and such witnesses as may be oflfered before them ; and they shall all meet and act, and shall assess all damages which may be required to be assessed for the said highway, and shall be author- ized to administer oaths to witnesses who may be pro- duced before them under this section ; and when they 224 Highway Laws. shall all have met and acted, the assessment agreed to by a majority of them shall be valid, and when such assessment shall be so made it shall be delivered to one of the commissioners of highways of the town, who, within ten days after receiving it, shall file it in the town clerk' s office in the said town. (Laws of 1845, ch. 180, as amended 1847, ch. 455, § 2, as amended 1872, ch. 315, § 2.) (See form No. 60.) If any commissioner appointed should refuse or be unable to serve, another may be appointed in his place by the county court. The number of commissioners to assess is not lim- ited to three, though it cannot be less. If more than three are appointed, an odd number should be cho- sen, to prevent the contingency of a tie vote. The application is to be made to, and the appoint- ment by, the county court, and not the judge ; and the owner of the land should receive notice of the application. The commissioners should not be of kin to any of the parties interested. The commissioners are first to take the oath pre- scribed. (See form No. 3.) As the people of the town are interested in the proceeding, the immediate parties cannot consent to an omission of the commis- sioners to take the oath ; and such an omission will prevent the latter from acquiring jurisdiction. (See People V. Oonnor, 46 Barb. 333.) At least three days' notice of the meeting of the commissioners should be served upon them by the commissioners of highways, and Uke notice should also be given to the land-owners, though not required by the statute. The commissioners are to meet at the appointed time and place, view the premises, hear the parties, and such witnesses as may be oflfered before them. In making up their judgment as to the value of the Damages on Laying out Highway 225 land taken, the commissioners may cause estimates to be made, and receive the opinions of others ; and when they act upon such estimates and opinions without exercising their own judgment, they should require the same to be verified by oath ; but, where they ultimately exercise their own judgment, they may make inquiries and obtain information from others without putting them under oath. : (/» re William and Anthony Streets, 19 Wend. 678.) The measure of damage is the difference between the market value of the land before the improve- ments are made, and its value after such improve- ments are made. {Matter of Furman Street, 17 Wend. 649 ; Troy & Boston E. B. Co. v. Lee, 13 Barb. 164.) While the commissioners cannot take into consid- eration any remote, contingent or speculative dama- ges, they are not confined, in making their appraisal, to the actual value of the land to be taken, but may consider how the laying out and opening of the road wiU affect the residue of the owner's land. Will it leave that residue in an inconvenient and un- marketable shape ? If so, that fact may properly be taken into account in determining the compensa- tion. (See Albany Northern B. B. Co. v. Lansing, 16 Barb. 68.) A land-owner is not entitled to consequential dam- ages when a road is laid along but not upon his land. {People v. Sup. of Oneida, 19 Wend. 102.) An action will not lie to restrain the erection, for public purposes, by a city, of a bridge upon one of its streets, at the suit of a land-owner whose prop- erty is not taken or touched, but who alleges con- tingent damage to his water power from the setting back of the water by the piers of the bridge. {Swett v. City of Troy, 62 Barb. 630.) 29 226 Highway Laws. Where any person shall be the owner of any land over which any highway shall run, and such high- way shall be discontinued, in whole or in part, by reason of some other road to be established and laid out through the lands of the same person, the persons who shall assess the damages shall take into calcu- lation the value of the road so discontinued and the benefit resulting to such person by reason of such discontinuance, and shall deduct the same from the damages assessed for the opening and laying out of such new road ; and thereupon the owner of the land may inclose so much of the highway so dis- continued as shall belong to him. (1 R. S. 516, §71.) Where a highway shall hereafter be laid out through uninclosed, unimproved and uncultivated lands, the damages shall be assessed in the same manner as if the same were laid out through in- closed, improved and cultivated lands. (Laws of 1857, ch. 491, as amended 1858, ch. 51.) When the commissioners, or a majority of them, have agreed upon their assessment, they are to make their award in writing, which is to be delivered to the commissioners of highways, who are required to file it in the town clerk's office within ten days thereafter. (See form No. 51.) Provision in case persons conceive themselves ag- grieved. — Any person conceiving himself aggrieved, or the commissioner or commissioners on the part of the town, feeling dissatisfied with any such assess- ment, may, within twenty days after the filing thereof as aforesaid, signify the same by notice in writing, and serving the same on the town clerk and on the opposite party, that is, the persons for whom the assessments were made, or the commissioner or com- missioners of highways, as the case may be, asking Damages on Laying out Highways. 227 for a jury to re-assess the damages, and specifying a time, not less than ten nor more than twenty days from the time of filing said assessment, when such jury will be drawn at the clerk's office of an adjoin- ing town of the same county by the town clerk thereof ; which notice shall be served upon said op- posite party within three days after service upon the town clerk as aforesaid, and may be served person- aUy or by being left at the dwelling-house of the party with some person in charge thereof, or if there be no such person, or the house be closed, then by fixing the same upon the outer door of said dwell- ing-house. (l>ws of 1847, ch. 455, § 3.) (See forms Nos. 51, 52.) Wherever there are more than one commissioner of highways in a town, notice of appeal from an assessment of damages under the highway act must be served on each and all of the commissioners. If there are three commisioners, service upon one alone is not sufficient. {The People ex rel. Mitchell v. Lawrence, 54 Barb. 589.) This notice and service is a condition precedent to jurisdiction. Without it, no authority exists for drawing and summoning a panel of jurors, and the justice has no authority in the premises ; nor have the jurors summoned and drawn any jurisdiction of the subject-matter. (Id.) Where application shall be made by two or more persons for the re-assessment of damages by a jury, such jury shall be obtained in conformity with the terms of the notice first served upon the clerk of the town in which the damages are to be assessed. (Laws of 1847, ch. 455, § 7.) The party dissatisfied has not, in reality, twenty days from the filing of the assessment to give notice of his dissatisfaction, since he must specify a time. 228 Highway Laws. not less than ten nor more than twenty days from such filing, for the drawing of the jury. Notice of the drawing must also be served on the town clerk of the adjoining town at least three days prior to the drawing. Names of Jurors to be put in box and drawn. — At the time and place mentioned in the preceding section, the town clerk of such adjoining town, hav- ing received three days' previous notice that such jury is to be drawn, from the person or party asking a re-assessment, shall deposit in a box the names of all such persons, then residents of his town, whose names are on the last list filed in said town clerk's office of those selected and returned as jurors, pur- suant to article second, title four, chapter seven, part third of the Revised Statutes, who are not interested in the lands through which such road shall be located, nor of kin to either or any of the parties, and shall draw therefrom the names of twelve per- sons, and shall make a certificate of such names and the purposes for which they were drawn, and shall deliver the same to the party first asking for the re-assessment. (Laws of 1847, ch. 455, § 4.) (See form No. 53.) Jury, when to be summoned. — The party receiv- ing such certificate shall, within twenty-four hours thereafter, deliver the same to a justice of the peace of the town wherein the damages are to be assessed ; and it shall be the duty of such justice forthwith to issue a summons to one of the constables of his town, directing him to summon the persons named in said certificate, and shall specify a time and place in said summons at which the persons to be sum- moned shall meet ; but no meeting of such persons shall be had within twenty days from the time of Damages on Laying oft Highways. 229 filing the assessment of damages in the town clerk's office by the commissioner or commissioners of high, ways. (Id., § 5.) (See form No. 54.) The certificate is to be delivered to a "justice of the peace of the town wherein the damages are to be assessed;" that is, of the town in which the high- way is to be laid out. The justice is to specify a place in his own town for the meeting of the jury. The party receiving the certificate may select any justice in the town. Jurors to be drawn to re-assess damages. — Upon such persons appearing at the time and place men- tioned in the summons, the justice who issued the summons shall draw by lot six of the persons at- tending to serve as a jury, and the first six persons drawn, who shall be free from all legal exceptions, shall be the jury to re-assess all the damages re- quired to be assessed upon the same highway; and the said jury shall be sworn by the said justice well and truly to determine and re-assess such damages as shall be submitted to their consideration, and shall take a view of the premises, hear the parties and such witnesses as may be offered by the parties and sworn by said justice before them, and shall render their verdict in writing under their hands, which shall be certified by said justice, and be delivered to the commissioners of highways of the town, and the same shall be final. (Id., § 6.) (See form No. 55.) The constitutionality of this provision was af- firmed in Clark v. Muller (54 N. Y. R. 528). The person whose land is taken for a highway is entitled to notice of the time and place of the impan- eling of the jury, and of the subsequent proceed- ings before the jury ih making such assessment. The jurors selected are to be free from all legal 230 Highway Jjaws. exceptions ; that is, are not to be of kin to the par ties within the ninth degree, nor interested in the subject-matter, and are to have the amount of prop- erty sufficient to enable them to sit as jurors in a court of justice. It is not essential to the validity of the proceedings that the same justice who sum- mons and impanels the jury should certify their verdict. If that justice refuses to certify, it may be done by any other justice of the town who was present. {People v. Supenisors of Ulster, 34 N. Y. R. 268.) The jury are to proceed in the same man- ner as the commissioners. The justice having charge of the proceedings should keep the jury together until they agree upon their verdict. Should they faU to agree, however, after a reasonable time, he may discharge them, and a new jury may be summoned and impaneled. {People V. Lewis, 26 How. 378.) After a delay of eleven months to caU a new jury after the first has failed to agree, the party applying for such re-assessment will be deemed to have aban- doned the same. Id.) The award of the commissioners appointed to as- sess the damages is, in effect, a judgment in favor of the owner against the town, and is conclusive until reversed on certiorari or vacated by a re-assess- ment actually made. (Id.) Costs, and by whom to he paid. — ^n all cases of assessments of damages, under the provisions of this act, by commissioners appointed by a county court, the costs thereof shall be paid by the town in which the damages shall be assessed, and in cases of re- assessments of damages by a jury on the application of the commissioners of highways of any town, and the first assessment shall be reduced thereby, the Damages on Laying out Highways. 231 costs of such assessment shall be paid by the party claiming the damages, otherwise by the town ; and in case a re-assessment of damages shall be had on the application of the party for whom the damages were assessed, and such party shall fail to increase the same, he shall pay the costs thereof, but when such damages shall be increased by the jury the costs shall be paid by the town ; and when applica- tions shall be made by two or more persons for the re-assessment of damages by a jury, such jury shall be obtained in conformity with the terms of the notice first served upon the clerk of the town in which the damages are to be assessed ; and all per- sons who may be liable for costs under this section shall be liable in proportion to the amount of dam- ages respectively assessed to them by the first as- sessment, and may be recovered in an action of assumpsit at the suit of any person or persons enti- tled to the same before a justice of the peace. (Laws of 1847, ch. 455, § 7.) Commissioners of highways, who have paid the jurors' fees and other costs of re-assessment of dam- ages of a land-owner, occasioned by laying out a road through his lands, on appeal by them from the original assessment, upon which appeal the amount of the assessment is reduced, can maintain an ac- tion to recover such costs of the land-owner. (Gary V. Marston, 56 Barb. 37.) Town clerks shall be allowed the sum of fifty cents for drawing and certifying a jury, as provided by this act, and a constable for summoning such jury shall be allowed two dollars, except when the jury shall be taken from the same town wherein the road is located, in which case he shall be allowed only one dollar. And jurors who shall be summoned from an adjoining town, and shall attend but not serve, shall be entitled each to fifty cents, and if they shall 232 Highway Laws. serve, then one dollar; if from the same town and shall attend and not serve, twenty -five cents; if they shall serve, then fifty cents each. (Id., § 19.) Vacancies, how filled. — If, for any cause, any commissioner or referee appointed under the above provision shall be prevented from serving, or shall refuse to serve, the court or oflBcer who appointed him shall have power to appoint another to supply his place. (Laws 1847, ch. 455, § 20.) Orders to he filed. — AH orders for the appoint- ment of commissioners or referees, under the above provisions, shall be filed and recorded in the office of the town clerk of the town in which the road shaU be located. (Id., § 21.) Damages assessed to he audited hy hoard of super- visors. — All damages which may be finally assessed or agreed upon by commissioners of highways for the laying out of any road except private roads, shall be laid before the board of supervisors by the supervisor of the town, to be audited with the charges of the commissioners, justices, surveyors or other persons or officers employed in making the assessment and for whose services the town shall be liable, and the amount shall be levied and collected in the town in which the road is located, and the money so collected shall be paid to the commission- ers of such town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid. (Id., § 23.) The supervisors have nothing to do with the mer- its of the appraisal. The statute declares that the amount shall he levied and collected. The award of the commissioners, they having jurisdiction, is con- clusive upon the board as to the amount. {Ex parte Damages on Laying out Highways. 333 Caldwell, 5 Cow. 292.) This was so under the Re- vised Laws of 1813 {People v. Szip. of St. Lawrence, 5 Cow. 592), but not so under the law of 1838. {People V. Sup. of Oneida, 19 Wend. 102.) And should they refuse to proceed and audit the damages a mandamus will be issued to compel them to do so. {People v. Sup. of Ulster, 3 Barb. 332; People V. Sup. of Westchester, 11 id. 446.) If the supervisors allow their session to expire without taking any action on the claim, it wiU be regarded as rejected so far as to permit a mandamus to compel its allowance. {People v. Supervisors of Richmond, 20 N. Y. R. 252.) Damages and expenses, how collebted. — Where the plaintiflPs damages on laying out a highway had been assessed by three commissioners appointed by the county judge, and had afterward been re-assessed by a jury, the defendant, who was supervisor of the town, laid before the board of supervisors the award of the commissioners but refused to present the award of the jury. The amount assessed by the commissioners was audited by the board of super- visors and was tendered to the plaintiflf and refused, and in an action brought against the supervisor to recover the amount assessed by the jury, it was held that the defendant was liable for the whole amount assessed by the jury. {GlarTc v. Muller, 42 Barb. 255 ; 47 id. 38.) Certiorari. — The proceedings for assessment or re-assessment may be reviewed by the supreme court on certiorari. {People v. Lewis, 26 How. 381 ; Peo- ple V. Talmam,, 36 Barb. 222.) Appeal. — The application for re-assessment of damages by a jury is not an appeal but a rehearing. '30 234 Highway Laws. Several persons may unite in the application. {Peo- ple V. White, 59 Barb. 666.) In People v. Mott (5 N". T. Sup. 207), it was held that where commission- ers appointed by the county court to assess damages upon laying a highway, made and signed their as- sessment, and delivered it to one of the commission- ers of highways, who filed it in the town clerk' s office, but they subsequently made and filed another assess- ment, the power of the commissioners to assess was expended when they signed the first determination, and they could not review their action ; nor was an appeal, taken more than twenty days after the first assessment was filed, although within twenty days after the filing of the second, in time to make the appeal effectual. Beidges. 235 CHAPTEE X. BEIDGES. Definition. Carrying away of bridge. What bndges commissioners to re- pair. when supervisors may build or re- pair at expense of county. Additional powers of supervisors. Repair of bridges between towns. Freeholders may petition for erec- tion or repair of bridges between towns. Commissioners of adjoining towns, how compelled to join in building bridge. Proceedings where such bridge has been repaired by individuals. Money for repair of bridges, how raised. Commissioners may put up notice. Penalty. Injury to bridge, Bridges over canals. Toll bridges. Bridge company must rebuild bridge destroyed. Unsafe bridge. Duty of commissioners. Injuring or passiug gate. Notice on toll bridge. Bridges to become mghways. Bridge companies may be formed. Articles of association. Definition. — A bridge has been defined to be a building of brick, stone, wood or iron, erected across a river, ditch or other stream, in order to facilitate the passage over the same. (Whart. Lex. 114; 1 Bouv. Law Diet. 224.) Public bridges may be divided into three classes ; first, those built at the public expense and over which all persons have a right to pass free ; second, those built by private individuals or corporations, and over which all persons may pass on payment of a prescribed toll ; third, those built by private indi- viduals and which have been surrendered or dedi- cated to the public. A public bridge is a highway, and is governed by the same principles of the common law as highways ; yet from a difference in the nature of the respective objects of their operation, the reduction of these prin- ciples to practice in the one case varies from that of the other. (Wellbeloved on Highways, 324 ; 2 Lord Eaym. 1174 ; Woolrych on "Ways, 195.) The principal circumstance necessary to consti- tute a public bridge is that the people at large have a free and uninterrupted use of it, not upon suffer- 236 Highway Laws. ance, but as a matter of right. ( Woolrych on Ways, 196.) Yet a bridge may be common to all people with- out becoming a public bridge so as to impose upon the town the responsibility of repairing it. Thus, where a man digs a channel across a road for his own private use or convenience, although the public have a right to use the bridge, yet the public is not charged with keeping it in repair. {Dygert v. Schenck, 23 Wend. 446.) If, in such case, an injury happen to another in consequence of the bridge being out of repair, the party building it is responsible. {Heacock V. Sherman, 14 Wend. 58.) The public to become chargeable must derive some benefit from a bridge constructed by a private individual, which they do not when the road was as good before the erection of the bridge as after it. {Rex v. Kerrigan, 3 M. & S. 526.) But where an individual erects a bridge over a natural stream for his own benefit, and it is of public utility, and is used by the public, the public is bound to keep it in repair; for in such case, although the bridge is of advantage to the individual, he cannot be said to have created the necessity for it. {Heacock v. Sherman, 14 Wend. 58 ; Dygert v. Schenck, 23 id. 446; see Requa v. Gity of Rochester, 45 N.Y.R.129.) As where a man builds a bridge across a stream that intersects a highway, which is of great public utility, the public is bound to keep it in re- pair. {King v. Glamorganshire, 2 East, 356, note.) Carrying away of bridge. — A public bridge was carried away by an extraordinary freshet and lodged in the stream in the land of L. where it was allowed to remain for some time, obstructing the flow of water and greatly damaging L.'s adjacent land and trees. And it was held that in the absence of evi- dence of an insufficiency in the construction or Bridges. 237 fastenings of the bridge, L. could not recover of the town. {Livezey v. PMladeVpMa, 64 Penn. St. 106 ; 3 Am. Rep. 578.) The cases of Lehigh Bridge Co. v. Lehigh Goal & Navigation Co. (4 Rawle, 24); and Foster Y. Juniata Bridge Co. (4 Harr. 393), were relied upon to support this decision. What bridges commissioners to repair. — At com- mon law the duty of repairing public bridges rested upon the county at large, where it was not shown that others were bound to repair a particular bridge. But in this state this obligation is imposed by statute upon the towns. {Hill v. Supervisors of Livingston, 12 N. T. R. 52 ; Morey v. Town of Newfane, 8 Barb. 645.) The commissioners of highways of a town are bound to keep in repair all such public bridges in the town as are chargeable to the public under the rules above laid down, unless such bridge is made by statute a county charge. The duty of keeping bridges in repair is imposed by statute upon the com- missioners and not upon the overseers. [Bartlett v Crozier, 17 Johns. 439.) The commissioners, however, are not bound to re- pair or rebuild a bridge unless they have the requi- site funds for that purpose. {Garlinghouse y. Jacobs, 29 N. Y. R. 303 ; People v. Commissioners of Hud- son, 7 Wend. 474 ; Bryan v. Landon, 5 N. Y. Sup. 594. Their liability in this respect is the same as in case of highways. (See ante, p. 34.) When the commissioners have funds and neglec- to repair bridges, a mandamus will be issued to com- pel them to proceed to repair, but not so if they have not funds sufficient. {People v. Commissioners of Hudson, 7 "Wend. 474.) 238 Highway Laws. A highway bridge was built within the limits of the town of S., but also within the limits of an Indian reservation under the provisions of a special statute. (Laws 1866, ch. 473.) And it was held that the com- missioner of highways of the town of S. was not under obligation to keep such bridge in repair and was not liable to one damaged by such want of re- pair, although he had, found sufficient to make repairs in his hands. {Bishop y. Barton, 5 N". Y. Sup. 6.) The first part of the Revised Statutes was intended solely for the government of citizens of the state, and was not intended to embrace affairs pertaining to Indians or their reservations. (Id.) The commissioners may erect new bridges where none have before existed, but only over streams inter- secting an existing highway. {Mather v. Oraw/ord, 36 Barb. 564.) Whenever a corporation owning a toll bridge shall become dissolved, such bridge shall be left without waste or damage and shall be a public highway. (Laws of 1838, ch. 262, § 3.) In such case the commissioners are to keep it in repair and may be compelled so to do. Where commissioners of highways have granted permission to a railroad company " to construct and maintain" abridge over a crossing, the acceptance thereof by the company and the construction of the bridge thereunder imposes upon it the duty of keep- ing it in repair. {Hayes v. If. Y. Cent., etc., R.R. Co., 9 Hun, 63.) When supervisors may build or repair at expense of cow«.^2/.— Whenever it shall appear to the board of supervisors of any county, that any one of the towns in such county would be unreasonably bur- thened, by erecting or repairing any necessary bridge Bridges. 239 or bridges in such town, such board of supervisors shall cause such sum of money to be raised and levied upon the county as will be sufficient to defray the expenses of erecting or repairing such bridge or bridges, or such part of such expenses as they may deem proper; and such moneys, when collected, shall be paid to the commissioners of highways of the town in which the same are to be expended. (1 R. S. 524, § 119.) No board of supervisors shall, under the last pre- ceding section, cause any sum exceeding one thou- sand dollars, to be levied and raised on any county in any one year. (Id., § 120.) In case the commissioners of highways of any town shall be dissatisfied with the determination of the board of supervisors of their county, touching an allowance for any such bridges, such determination shall, on the application of the commissioners, be reviewed by the court of sessions of the same county, whose order in the premises shall be observed by every such board of supervisors. (Id., § 121.) Notice of the application should be served upon the chairman of the board, or, in his absence, on the clerk. Where a bridge is a county charge the board may raise over $1,000 per year for its repairs. {People V. ^pervisors of Dutchess, 1 Hill, 50.) By section 1 of chapter 314 of the act of 1838, it is provided that the board of supervisors of each county in this state shall, in addition to the powers now conferred upon them by law, have power, at their annual meeting, or when lawfully convened at any other meeting, 1. To cause to be levied, collected and paid to the treasurer of the county, such sum of money as may be necessary to construct and repair bridges therein. 340 Highway Laws. and to prescribe upon what plan and in what man- ner the moneys so to be raised shall be expended. 2. To apportion the tax so to be raised among the several towns and wards of their county, as shall seem to them to be equitable and just. The third section of the same act provides that all persons intending to apply to any board of supervi- sors for the imposing any tax pursuant to the first section of the above act, shall cause a notice of such application to be published once in each week for four successive weeks immediately preceding the meeting of the board of supervisors at which such application shall be made, in a newspaper printed in such county; but if no newspaper be printed in the county, then such notice shall be published in like manner in some public newspaper printed nearest thereto. It is thought that this provision did not relate ex- clusively to bridges which are a charge upon the whole county, but that the only limitation of the subject in respect to which the power is to be exer- cised, is that the bridge be in the county. {Hill v. Supervisors of Livingston, 12 IS, Y. E.. 62. See People V. Supervisors of Dutchess, 1 Hill, 50.) Additional powers of supervisors. — By Laws of 1875, ch. 482, conferring further powers of local leg- islation and administration on boards of supervisors in the several counties, except in cities whose boun- daries are the same as those of the county, it was provided that the supervisors should have power, "3. To authorize the location, change of location, and construction of any bridge (except on the Hud- son river, below Waterford, and on the East river, or over the waters forming the boundaries of the state), which shall be applied for by any town or towns Bkidges. 241 jointly, or by any corporation formed pursuant to the general laws of tlie state, or by any corporation or individual for private purposes ; and in the case of a public bridge erected by a corporation, to establish the rates of toll to be collected for crossiag such bridge. But in every case where any such bridge is to cross a navigable stream of water, full provision shall be made in the resolution or permission author- izing the same for the erection and maintenance of a suitable draw to prevent any impeding of the navi- gation of such stream of water, and in the case of a private bridge, provision shall be made that the draw shall be kept open as may be required to permit all vessels to pass without loss of headway. Where any bridge shall be on a stream of water forming at the point of crossing the dividing line of counties, the action of the board of supervisors of each county shall be necessary to give the jurisdiction permitted by this subdivision. In case any bridge (except on the Hudson river, below Waterford, and on the East river, or over the waters forming the boundaries of the state) shall have been, within one year previous to the passage of this act, or shall hereafter be destroyed by the elements or otherwise, and the expense of construct- ing a bridge on or so near the site of the bridge so destroyed as to supply the public necessities oc- casioned by the loss of the bridge so destroyed, with the necessary approaches thereto, cannot be con-. structed at an expense which will not exceed double the sum now authorized by law to be raised upon the taxable property of the town or towns within which the bridge thus destroyed was situate, then and in that case the board of supervisors of any county in this state (except the counties of New 31 242 Highway Laws. York, Westchester and Kings) within which such bridge was situate, may, at their discretion, without delay, provide for constructing and completing a bridge instead of the one destroyed and all neces- sary approaches thereto of durable material at the earliest practicable time, on the site of the bridge so destroyed, and in case the bridge so destroyed shall have been constructed by a corporation organized pursuant to the general laws of this state, and the site upon which the same was constructed, together with the approaches thereto, shall be the property of such corporation, it shall be lawful for the board of supervisors of the county in which such bridge was situate to purchase the right of such corporation or the right of whomsoever the site of said bridge and the approaches thereto may belong, provided such purchase can be accomplished upon such terms as, in the judgment of the board of supervisors, shall be just to the public and to its best interests. But if in the judgment of the board of supervisors such purchase cannot be accomplished upon reasonable terms, then and in that case the said board of super- visors are authorized, and it may acquire a valid title to premises on either side of the site upon which said bridge stood when so destroyed, provided the title to the same can be acquired upon reasonable terms as to price, and provide for the construction and maintenance of a bridge and the approaches thereto upon premises other than the site upon which the bridge so destroyed was located, provided the bridge to be constructed can be so located outside of the old site as not to increase the distance to be trav- eled- to reach either end of such bridge more than five rods. The construction and maintenance of such bridge and the approaches thereto shall be at pub- Beid&bs. 243 lie expense and, when completed, shall be free for the use of the whole public, and all persons may use the same as a public or common highway, and the same shall be what is ordinarily understood to be a free bridge subject to the rights of the board of supervisors of the county in which said bridge is situate, and such board is hereby authorized to pre- scribe the weight that may, or may not be carried over the same, and the rate of speed beyond which any animal shaU. not be rode or driven, under such penalties for disobedience of the rules or regulations prescribed by the board as said board may deem proper. (§ 1, subd . 3, as amended Laws 1881, ch. 439.) " 4. To apportion, as such board may deem equita- ble, the expense of the construction of any public bridge (except in the cases specified in the last pre- ceding subdivision) over a stream or other water forming the boundary line of counties, between the towns at such point, and in all such cases such coun- ties shall each pay not less than one-sixth of the expense of such bridge, and where the board of su- pervisors shall deem that the construction of such bridge is a general benefit to the county, and that the payment of two-thirds of the expense by the towns liable would be unjust to such towns, to de- termine what additional. proportion of such expense should be borne by the respective counties; and to authorize any town, on the vote of a majority of the electors voting at any annual town meet- ing, or regularly called special town meeting, to appropriate such a sum to be raised as other bridge moneys are raised to aid in the construction and maintenance of any bridge outside the boundaries of the town or county, but forming a continuation 244 Highway Laws. of highways leading from such town or county, and deemed necessary for the public convenience. The board of supervisors, under whose direction or authority such bridge and the approaches thereto are constructed, are hereby authorized to impose the expense of constructing and maintaining the same, and the approaches thereto, upon the coimty at large in which such bridge and its approaches are constructed, or upon such town or towns, city or cities within the county in which said bridge and its approaches are situate, and in such proportion upon each as, in the judgment of said board of supervi- sors, shall (all things considered) be just and equi- table, and for the purpose of carrying into effect the provisions of this act at the earliest time practicable after its passage, it is hereby made the duty of the board of supervisors, in any county in this state (except the counties of New York, Westchester and Kings) in which a bridge has been destroyed by the elements or otherwise, within one year prior to the passage of this act, and the reconstruction thereof cannot be accomplished at or within double the sum now authorized by law to be raised upon the taxable property of the town or towns in which such bridge was situate, to convene as a board as soon after notice of the passage of this act as practicable, and comply with its provisions, and it shall not require the assent of more than a majority of such supervisors to be determined by yeas and nays to exercise any and all power and authority herein conferred or to perform any and all the duties hereinbefore enjoined on such board. (§ 1, subd. 4, as amended Laws 1876, ch. 257. Laws 1878, ch. 77, and Laws 1881, ch. 439.) " 5. To provide for the care, preservation and repa- lation of any draw or other bridge (except in the Bridges. 245 cases specified in the last two preceding subdivis- ions), crossing a stream wMch. forms at the point of crossing the dividing line of counties, and the main- tenance of which bridge is by. law a joint charge on such counties, or on the towns in which such bridge may be situated ; and to severally apportion the charges for such care, preservation and reparation on the towns respectively liable therefor, or on the re- spective counties when liable. But when such bridge shall span any portion of the navigable tide-waters of this state forming at the point of crossing the boundary line between two counties, such expense shall be a joint and equal charge on the two coun- ties in which the same is situated, and the board of supervisors in each of such counties is hereby au- thorized and directed to apportion such expense among the several towns and cities in their respect- ive counties, or upon any or either of such towns and counties as in their judgment may seem proper, provided, however, that no town or city not imme- diately adjacent to such waters at the point spanned by such bridge shall be liable for any larger propor- tion of such expense than the taxable property of such town or city bears to the total amount of taxa- ble property of such county. But no such bridge shall be constructed unless the same is authorized by a resolution adopted by a majority of the board of supervisors in each of such counties. (§ 1, subd. 6, as amended Laws 1876, ch. 257, and Laws 1880, ch. 320.) Repair of bridges between towns. — Whenever any two or more towns shall be liable to make or main- tain any bridge or bridges, the same shall be built and maintained at the joint expense of said towns> 246 Highway Laws. without reference to town lines. (Laws of 1841, oh. 225, § 1, as amended 1857, ch. 383, § 1.) This im- poses the expense equally upon the towns without regard to the portion of the bridge located in either. {Laphamy Rice, 55 N. Y. R. 472.) For the purpose of building and maintaining such bridges, it shall be lawful for the commissioners of said towns, or of commissioners of either one or more towns respectively, the other or others refusing to act, to enter into joint contracts, and such contracts may be enforced in law or equity, against such com- missioners or their representative successors jointly or severally, respectively ; and the commissioners of said towns, so liable, may be proceeded against jointly, for any neglect of duty, in reference to such bridges. (Laws of 1841, ch. 225, § 1, as amended 1857, ch. 483, § 2.) For a failure to keep a bridge between adjoining towns, the commissioners of such towns are jointly and not severally liable. {Theall v. Oity of Yonk- ers, 21 Hun, 265.) K the commissioners of highways of either of such towns, after notice, in writing, from the commission- ers of highways of any other of such towns, shall not, within twenty days, give their consent, in writ- ing, to buUd or repair any such bridge, and shall not, within a reasonable time thereafter, do the same, it shall be lawful for the commissioners so giving such notice, to make or repair such bridges, and then to maintain a suit at law in their official capacity, against said commissioners so neglecting or refusing to join in such making or repairing ; and in such suit the plaintiff or plaintiffs shall be entitled to re- cover so much from the defendant or defendants, respectively representing said other towns, as the Bridges. 247 town or towns would be liable to contribute to the sarile, together with costs of suit and interest, with- out proving any contract ; and in an action in pur- suance of the act hereby amended, to recover the expenses of building or repairs, it shall not be neces- sary to entitle such commissioner or commissioners to recover on the trial of the above action, to prove that the defendants, or their predecessors in office, were, at the time of the service of the notice above mentioned, in the possession of funds belonging to the town which he or they represent, sufficient to make such repairs ; nor shall the want of funds be any defense to the said action ; and it shall be the duty of the board of supervisors of the county in which such towns are located to levy the amount of any judgment so obtained, with cost and interest, on the taxable property of any town, against the commissioner or commissioners of which such judg- ment has been so obtained, but the commissioner or commissioners of such town shall not be personally liable for such judgment. (Laws of 1841, ch. 226, § 1, as amended 1857, ch. 383, § 3.) Any judgment recovered against the commission- ers of highways in their official capacity under the provisions of this act shall be a charge on said town and collected in the same manner as other town charges, except in cases where the court before which the judgment shall be recovered shall certify that the neglect or refusal of said commissioners was willful and malicious, in which case said commissioners shall be personally liable for such judgment, and the same may be enforced against them in the same manner as against individuals. (Id., § 4.) Freeholders mmj 'petition for erection or repair of bridges Tietween fo«>?is.— Whenever any adjoin- 248 Highway Laws. ing towns shall be liable to make or maintain any bridge over any stream dividing such towns, whether in the same or in different counties, it shall be lawful for three freeholders in either of such towns, by a petition in writing signed by them, to apply to the commissioners of highways in each of said towns, to bnild, rebuild or repair such bridge, and if such commissioners refuse to build or repair such bridge within a reasonable time, either for the want of funds or any other cause, the said freeholders, upon affi- davit and notice of motion, a copy of which shall be served on each of said commissioners at least eight days before the hearing thereof, may apply to the supreme court at a special term thereof, to be held in a judicial district in which such bridge or any part thereof shall be located, or to a judge of said court at chambers, for a rule or order requiring such commissioners to buUd, rebuild or repair such bridge, and such court or judge upon such motion may, in doubtful cases, refer the matter to some dis- interested person to ascertain the requisite facts in relation thereto, and to report the evidence thereof to said court or to such judge. Upon the coming in of such report, in case of such reference, or upon or after the hearing of the motion, in case no such reference shall be ordered, the court or judge shall make such order thereon as the justice of the case shall require. If such motion be granted in whole or in part, whereby funds shaU be needed by the said commissioners to carry said order into effect, such court or judge shall specify the amount of money required for that purpose, and how much tjiereof shall be raised in each town. (Laws of 1857, ch. 639, § 1.) In case a reference shall be ordered as specified in Bridges. 249 the first section of this act, the referee shall ap- point a suitable time and place for taking the evi- dence, and shall notify one of said freeholders and the said commissioners thereof, or cause them to be notified ; he shall have power to issue subpoenas for witnesses at the instance of either party, and may compel the attendance of such witnesses, or failing to appear in obedience to such subpoena by attach- ment, and may punish defaulting witnesses for con- tempt, by fine or imprisonment ; he shall have power to adjourn such proceedings, from time to time, and to administer the requisite oath to wit. nesses before him. The referee shall report the evi- dence taken before him to the court or justice who made the order of reference, without unnecessary delay, and shall be entitled to three dollars a day for his services, to be paid, in the first instance, by the said freeholders. (Laws of 1857, ch. 639, § 2.) CoTn/missioners of adjoining towns, how compelled to join in building "bridge. — The commissioners of highways of any such town are hereby authorized to institute and prosecute proceedings, under this act, to compel the commissioners of such adjoining towns to join in the building, rebuilding or repair of any such bridge, in like manner as the said free- holders are hereby authorized so to do. (Id., § 3.) Upon the said order for building, rebuilding or re- pairing such bridge being made, and a copy thereof being served on the commissioners of highways of such adjoining towns respectively, the commission- ers of highways of said two towns shall forthwith meet and fix on the plan of such bridge, or the man- ner of repairing such bridge, and shall cause such bridge to be buUt, rebuUt or repaired, out of apy funds in their or either of their hands, applicable 32 250 Highway Laws. thereto ; and in case no funds, or an inadequate amount thereof, are on hand, then they shall cause the same to be built, rebuilt or repaired upon credit, or in part for cash, and in part upon credit, accord- ing to the exigency of the case ; and the commis- sioners are authorized to enter into a contract, with any contractor, for building, rebuilding or repairing such bridge, pledging the credit of each town for the payment of its appropriate share, so far as the same shall be done upon credit. (Id., § 4.) The commissioners of highways in each town shall make a full report of their proceedings in the prem- ises, to the auditors of town accounts, at the time of making their annual report The said commission- ers, for each town, shall attach to the copy of the said order granted by the Supreme Court, or a judge thereof, an accurate account, under oath, of what has been done in the premises, and deliver the same to the supervisors of each town. The board of super- visors, at their annual meeting, shall levy a tax upon each of such towns, when in the same county, and upon the appropriate town when in different coun- ties, its share of the cost of building, rebuilding or repairing such bridge, after deducting all payments actually made by said commissioners thereon ; which tax, including prior payments, shall, in no case, exceed the amount specified in said order. (Laws of 1857, ch. 639, § 5.) Either party considering himself aggrieved by the granting or refusal to grant such order by the court at special term, or by a judge of such court, may appeal from such decision to the Supreme Court at general term, for the review of such decision. The Supreme Court, at the general term, shall have power Bridges. 251 to alter, modify or reverse such order, with or with- out costs. (Id., § 6.) The Supreme Court at a special term, or a judge at chambers, shall have power to grant or refuse costs as upon a motion, including also witnesses' fees, referees' fees and disbursements. The appeal provided for in the last section shaU conform to the practice of the Supreme Court in case of appeals from the decision of a motion at a special term, to the general term of the Supreme Court. (Id., § 7.) A road running on the dividing line between two towns, V. and M., having been laid out by the com- missioners of highways of said towns, conformably to the statute, was by them divided into two road districts, and one of such districts allotted to the town of V. and the other to the town of M. And it was held that for the expenses of erecting and keep- ing in repair a bridge over a stream crossing the road in the district allotted to the town of V., that town was alone liable, and that the town of M. was not bound to contribute thereto. (1 R. S. 17, § 75 ; nfft V. Alley, 3 T. & C. 784.) The provisions of Laws of 1841, ch. 325 ; 1858, ch. 639, have no ap- plication to such a case. (Id.) The provisions of this statute do not authorize proceedings for repair of bridge where the stream does not form the boundary. {Matter of Pet, etc., 59 N. Y. R. 316.) Proceedings where such bridge has been repaired by individuals. — Whenever any such bridge shall have been or shall be so out of repair as to render it unsafe for travelers to pass over the same, or when- ever such bridge shaU have fallen down, or been swept away by a freshet or otherwise, if the com- missioners of highways of such adjoining towns, 252 Highway Laws. after reasonable notice of such condition of such bridge, have neglected or refused, or shall neglect or refuse to repair or rebuild such bridge, then, and in such case, whatever funds have been or shall be necessarily or reasonably laid out or expended in repairing such bridge, or in rebuilding the same, by any person or persons, or by any corporation, shall be a charge upon such adjoining towns, each being liable for its just proportion; and the person or persons, or corporation, who has made such ex- penditure, or shall make the same, may apply to the Supreme Court at a special term, or to a judge at chambers, for an order requiring such towns sever- ally to reimburse such expenditures, which applica- tion shall be made upon serving papers for such application upon the commissioners of highways in each of such towns, at least eight days before such application shall be made, and such court or judge is authorized to grant an order requiring each of such adjoining towns to pay its just proportion of such expenditure, specifying the same ; and in case such order shaU be granted, it shall be the duty of the commissioners of highways, in each of such towns, further to serve a copy of such order upon the supervisor of each of such towns, who shaU present the same to the board of supervisors at their next annual meeting. The board of supervisors shall raise the amount justly chargeable upon each town, and cause the same to be collected and paid to such person or persons, or corporation, as in- curred such expenditure. The right of appeal is given to such party under this section, provided for under the sixth section of this act. (Laws of 1857, ch. 639, § 8.) The act of 1857 has no application to bridges, over Bridges. 253 bays, lakes, or other bodies of water not streams, nor to causeways or bridges over marshes, between two towns. (Matter of Freeholders of Irondequoit, 68 ]Sr. Y. R. 376.) Money for repair of bridges, Tiow raised. — The money for the repair of bridges is to be raised in the same manner as for the repair of roads, for which see ante, chapter 2, section 3. By Laws of 1875, ch. 482, subd. 6, the supervisors may authorize any town or towns liable for the erec- tion, care, repair and maintenance, in whole or in part, of any bridge (except in the cases specified in the last three preceding subdivisions) ^ to erect, repair and maintain the same, and borrow such sums of money in the manner prescribed in subdivision 29 of this section, as may be necessary for the purposes of such erection, repair and maintenance, and to pay any debt incurred in good faith by, or in behalf of, such town or towns for such purpose before or after the passage of this act. But no authority shall be exercised under this subdivision, except upon the application of a town liable to be taxed for such purpose, to be made by a vote of a majority of the electors thereof voting, at a regular town meet- ing, or at a special town meeting called for the pur- pose, or upon the application of the supervisor, by and with the consent of the commissioner of high- ways, town clerk and justices of the peace of such town. If any town, at a regular town meeting held between the first day of February, eighteen hundred and seventy-five, and the passage of ths act, shall have elected commissioners for the purpose of build- ing a bridge and providing money to pay for the game by the issuing of bonds or otherwise, such 264 Highway Laws. bonds, not exceeding the amount authorized at such town meeting, are hereby authorized and declared valid ; but said bonds shall not be sold or otherwise disposed of for less than par. And the board of supervisors shall levy a tax on such town for the payment of such indebtedness at such times and in such amounts as may be necessary to meet the obligations incurred by said commissioners in pur- suance of instructions given by such town at the time of electing said commissioners. (As amended Laws 1882, ch. 60.) A town is not obliged to contribute to the buUd- ing of a bridge across a stream lying between it and an adjoining town, except where such town has an open road or public highway connecting with the bridge. {BeckwijJh v. Whalen, 5 Lans. 376. But see S. C, 65 N. Y. R. 322 and 70 id. 430. ) Commissioners map put up notice. — The com- missioners of highways of each town may put up and maintain in conspicuous places, at each end of any bridge,in such town maintained at public charge, the length of whose chord is not less than twenty- five feet, a notice with the following words in large characters : " One dollar fine for riding or driving on this bridge faster than a walk ; " and when the length of Buch chord is over fifty feet, and not over one hundred feet, the following notice : " Five dol- lars fine for riding or driving on this bridge faster than a walk ;" and when the length of said chord is over one hundred feet, and not over two hundred feet, the following notice: "Ten dollars fine for riding or driving on this bridge faster than a walk ;" and when the length of said chord is over two hun- dred feet, the following notice: "Twenty-five dol- Bridges. 255 lars fine for riding or driving on this bridge faster than a walk." (1 R. S. 525, § 122, as amended Laws 1875, ch. 22.) Penalty. — Whoever shall ride or drive faster than a walk on any bridge in this state npon which such notices shall have been placed, and shall then be, shall forfeit for every offense the sum specified in said notice. (1 E. S. 526, § 123, as amended Laws 1875, ch. 22.) Injury to bridge. — Whoever shall injure any bridge maintained at the public charge shall for every offense forfeit treble damages. (1 E. S. 525, §124.) Bridges over canals. — In all cases where a new road or public highway shall be laid out by legal authority, in such direction as to cross the line of any canal, and in such manner as to require the erection of a new bridge over the canal, for the accommodation of the road, such bridge shall be so constructed and forever maintained, at the expense of the town in which it shall be situated. (1 E. S. 247, § 1740 ISo bridge shall be constructed across any canal without first obtaining for the model and location thereof, the consent, in writing, of one of the canal commissioners, or of a superintendent of repairs, on that line of the canal which is intersected by the road. (Id., § 175.) Every person who shall undertake to construct or to locate such bridge without such consent, and shall proceed therein so far as to place any materi- als for that purpose on either .bank of the canal, or on the bottom thereof, shall forfeit the sum of fifty dollars ; and each of the commissioners, superin- tendents or en^neer shall be authorized to remove all such materials, as soon as they are discovered, wholly without the banks of the canal. (1 E. S. 247, § 176.) By chap. 448 of the Laws of 1881, it is enacted as follows : Any town, village or city on the line of 256 Highway Laws. any navigable canals of the state may, with the ap proval, consent, and under the direction of the superintendent of public works, erect, build and maintain within its own limits a bridge or bridges across said canal of such kind, dimensions, and ma- terial, and with such approaches as may be deemed best, at the proper cost and expense of such town, village or city, at any point where there is not now a bridge built and maintained by the state. In case the bridge is a hoist, lift or swing bridge, requiring the attendance of persons to operate, the wages of such persons and the cost of materials, etc., for operating the bridge is to be paid by the town, village or city erecting it. Where the state, for the use of the canal, builds a bridge over the canal, which bridge is used also as a public highway, the city in whica the bridge is located is not bound to keep the bridge or its ap- proaches on the state land safe. {Carpenter v. City of Gohoes, 81 N. Y. R. 21.) Toll bridges. — A toll bridge is a highway over which the public has the right to pass on the pay- ment of a certain toll. The public, on payment of the toll, have the same rights and privileges on a toU bridge as on an ordinary public bridge. {Thomp- son V. Matthews, 2 Edw. 212.) An injunction will not be granted to prevent a per- son' 8 taking heavy loads across a toll bridge. If persons take improper loads, and the bridge has been properly constructed, then the owners of it have a remedy by a special action on the case, or in trespass for damage done ; while on the other hand, if passengers and their property should sustain an injury by a breaking from ordinary loads, the own- ers must respond in damages. (Id.) Bridge companies who take toll are bound to keep their bridge in repair and will be liable for any inju- ries received through their neglect so to do. (Town- send y . Susquehanna Turnpike Co., 6 Johns. 90; Kane v. People. 3 Wend. 363.) Beid&es. 237 The obligation of the company, however, only extends to the exercise of ordinary care and pru- dence. (Id.) When the bridge of a company is dan- gerous they must cease to take toll, to relieve them- selves from liability. A notice that it is dangerous is not enough. {Randall v. Cheshire Turnpike Go., 6 N. H. 147.) Bridge company must rebuild bridge destroyed. — If a bridge be carried away by a sudden flood, the company must rebuild it within a reasonable time, regard being had to the importance of the road, the magnitude of the work, the opportunity for procur- ing materials, and other circumstances connected with its reconstruction. {People v. Hillsdale, etc., Turnpike Co., 23 Wend. 254.) Should the bridge remain impassable, and the business of the com- pany be thereby stopped for the period of one year, it will amount at common law to a forfeiture of their charter ; but a legal course of proceeding must be instituted to obtain judgment of ouster. (Id.) iLnd where a toll bridge is out of repair, the public are not limited to the remedy of having the gates thrown open, but may proceed by information. (Id.) Under the act of 1848, hereafter cited, the bridge must be rebuilt within three years, or the company shall cease to be a body corporate. Unsafe bridge. — Whenever complaint in writing, on oath, shall be made to a commissioner of high- ways of any town in which shall be, in whole or in part, any toll bridge belonging to any person or cor- poration, representing that such toll bridge has, from any cause, become and is unsafe for the public use, it shall be the duty of such highway commis- sioner forthwith to make a careful and thorough 33 258 Highway Laws. examination of such toll bridge so complained of, and if, upon such, examination of such bridge, the said highway commissioners shall be of opinion that the same has, from any cause, become dangerous, or unsafe for public use, he shall thereupon give immediate notice to the owner or owners of such toll bridge, or to any agent of such owner or owners acting as such agent, in respect to said bridge, that he has, on complaint made, carefully and thoroughly examined such bridge and found it to be unsafe for the public use. It shall thereupon be the duty of such owner or owners of such bridge immediately to commence repairing the same within one week from the day of such notice given, or such reason- able time thereafter as may be necessary to thor- oughly repair such bridge, so as to make the same in all respects safe and convenient for public use, and for neglect to take prompt and eifective meas- ures so to repair such bridge, the person or corpo- ration owning such bridge shall forfeit twenty-five dollars for the benefit of the town in which the high- way commissioner making such examination and giving such notice shall reside, to be sued for and recovered by such highway commissioner, and expended for the improvement of highways of said town, and after the expiration of the time for such repairs, and failure to make the same, it shall be unlawful for such bridge owner or owners to demand or receive any toll for using said bridge until the same shall be fully repaired. (Laws 1873, ch.448, § 1.) Duty of commissioner. — In case of the neglect of the owner or owners of such toll bridge, for one week, to take such measures as are above required to repair such bridge, so as to make the same safe and convenient for public use, it shall, without further Bridges. 259 proceedings or notice, be the duty of such high way- commissioner to proceed at once to procure all nec- essary materials, of good and suitable quality, and to secure the recLuisite skilled workmen for the need- ful repairs of such toll bridge, keeping, or causing to be kept, a just and true account of the expenses of procuring the said material and labor and the repair thereof, so as to make it safe and convenient for public use. Such account, or a copy thereof, of the cost of such material and labor at said toll bridge and the repair thereof, duly verified by such com- missioner, shall be paid on demand by such bridge owner or owners, together with two dollars per day for the services of such highway commissioner, for each day during which he shall have been engaged in the examination and repair of such toll bridge, the purchase of material and labor, and keeping and rendering to such bridge owner or owners such account. (Id., § 2.) In case of the neglect or refusal of such bridge owner or owners to pay such account on presenta- tion and demand, it shall be the duty of said high- way commissioner to sue for and recover the same in any court having jurisdiction of such action, such recovery to be for the benefit of his town, and to pay said account for material, labor and commissioner' s fees, which are hereby made a charge upon such town. (Id., Injuring or passing gate. — It is provided that every person who shall willfully break, throw down, or injure any gate erected on any bridge, erected or constructed by virtue of the act of 1848 (hereafter cited), or forcibly or fraudulently pass any such gate thereon, without having first paid the legal toll for crossing said bridge, shall, for each offense, forfeit 260 Highway Laws. to the corporation injured the sum of twenty-five dollars, in addition to the damages resulting from Buch wrongful act. (Laws of 1854, oh. 120.) Notice on toll bridge. — It shall be lawful for any corporation or individual owning a toll bridge to put up at each end thereof, in a conspicuous place, a notice in the following words : "One dollar fine for riding or driving faster than a walk on this bridge ;" and during the continuance of such notice, any person who shall ride or drive faster than a walk on such bridge shall forfeit the sum of one dollar, to be sued for in the name of the corporation or person or per- sons owning such bridge, and to be recovered with costs of suit. (Laws of 1838, ch. 262, § 2.) Bridges to become highways. — Whenever a cor- poration owning a toll bridge shall become dissolved, such bridge shall be left without waste or damage, and shaU be a public highway. (Id., § 3.) Bridge com/paniea may be formed. — Any number of persons, not less than five, may be formed into a corporation, for the purpose of constructing and owning a bridge across any stream of water, as here- inafter provided, upon complying with the following requirements : Articles of association. — 1. They shall severally subscribe articles of association, in which shall be set forth the name of the corporation, the number of years the same is to continue, which shall not exceed fifty years ; the amount of the capital stock of the corporation which shaU be divided into shares of twenty -five dollars each, the number of directors and their names who shall manage the concerns of the Bridges, 263. corpoi;a,tion for the first year, ai;id tintil others are elected ; the location of such bridge, and the plan thereof. 2. Each subscriber to such articles of association shall subscribe thereto his name and place of resi- dence, and the number of shares of stock taken by him in such corporation. 3. Whenever one- fourth part of the amount of the capital stock, specified in the articles of association, shall have been subscribed', and on complying with the provisions of the next section, such articles may be filed in the oflSce of the state engineer and sur- veyor, and clerk of the county or counties in which the bridge is built ; and thereupon the persons who have subscribed the articles of association, as afore- said, and such other persons as shall become stock- holders in such company, and their successors, shall be a body corporate, by the name specified in such articles of association, and shall possess the powers and privileges, and be subject to the provisions, of titles three and four of chapter eighteen of the first part of the Revised Statutes, so far as those provis- ions are consistent with the provisions of this act (Laws of 1848, ch. 259, § 1.) All the stockholders of every company incorpo- rated under this act shall be severally and individu- ally liable, to an amount equal to the amount of the capital stock held by them respectively, to the cred- itors of such company for all the debts contracted by the directors or agents of such company for its use, until the whole amount of the capital stock fixed and limited by such company is paid in, and a cer- tificate thereof filed in the offices aforesaid, and the whole capital stock paid in, shall be one-half thereof within one year, and the other half thereof within two years from the time of the incorporation of such 262 Highway Laws. company, and if not so paid in, such corporation sliall be dissolved. If tlie directors of any corpora- tion formed under tliis act shall contract debts for the company, exceeding in the aggregate the amount of the capital stock, they shaU be personally liable for aU the debts of the corporation. (Id., § 2.) Such articles of association shall not be filed as aforesaid, until five per cent on one-fourth of the amount of the stock of su,ch company, fixed as afore- said, shall have been actually paid in, in good faith, to the directors named in such articles of association, in cash, nor until there shall be indorsed thereon, or annexed thereto, an affidavit made by at least three of the directors named in such articles of association, that the amount of stock required by the first section of this act to be subscribed has been subscribed, and that five per cent on the amount has been actually paid in as aforesaid. (Laws of 1848, ch. 259, § 3.) A copy of such articles of association filed in pur- suance of this act, with a copy of such affidavit in- dorsed thereon or annexed thereto, and certified to be a copy by the proper officer, shall, in all courts and places, be presumptive evidence of the facts therein contained. (Id., § 4.) The business and property of every such corpora- tion shall be managed and conducted by a board of directors, consisting of not less than five nor more than nine, who .shall be chosen, except those for the first year, at such place within a county in which the bridge of such corporation or some part thereof shall be located, as shall be prescribed by the by- laws thereof. The directors shall give notice of every such election, previous to the holding thereof, by pub- lishing the same once in each week, for four success- ive weeks, in a public newspaper, published in each county in which such bridge or any part thereof Bridges. 283 shall be located, and if in any sucli county no such paper shall be published, such notice shall be pub- lished in some county adjoining such last-mentioned county. All elections of directors shall be by ballot and by a majority of all votes given thereat; and every stockholder being a citizen of the United States and attending in person or by proxy shall be entitled to one vote for each share of stock which he shall have owned absolutely, or as executor, administra- tor or guardian, for thirty days previous to such election. No person shall be a director unless he shall be a stockholder, owning at least four shares of stock, absolutely in his own right or as executor, administrator or guardian, and entitled to vote at the election at which he shall be chosen, nor unless he shall be a citizen of this state ; and a majority of the directors shall, at the time of their election, be residents of the county or counties in which such bridge shall be located. Whenever any vacancy shall happen in the board of directors, it shall be supplied untn the next election by the remaining directors. The directors of every such company shall be elected inthe same month in each and every year, and such election, after the first, shall be held on the first Tuesday of such month, and the direct- ors chosen at any election shall hold their offices to and including the Tuesday next after that appointed by law for holding the election next succeeding that at which they were chosen . If an election of direct- ors shall not be held on the day prescribed by this act for holding the same, the directors in office on that day shall hold their offices untU their success- ors shall be elected, but, .after the expiration of their regular term of office as prescribed by this section, they shall be incapable of doing any act, as such directors, except such as may be necessary to 264 Highway I; Appealin encroachment proceedings.— The per- son or party against whom such judgment shall be rendered may, within sixty days after filing the cer- tificate of the jury, appeal from the finding and judgment to the county court of the same county ; such appeal shall be made by the service, within twenty days after the docketing of said judgment, of notice of appeal upon the justice and upon the successful party or parties, or one of them, stating the grounds of such appeal. It shall be the dijty of such justice, in his return to such appeal, to em- brace copies of all the papers made and served in the proceeding prior to issuing the precept for such jury, and all the evidence and proceedings before him, together with the finding of the jury and judg- ment entered thereon. AU the provisions of title eleven, chapters third and fifth of the Code of Pro- cedure are hereby extended to such appeals, so far as the same are applicable thereto. (Laws of 1862, ch. 243, § 2.) In case the decision of the jury finding an en- croachment shall be affirmed by the appellate court, such court, in addition to the costs now allowed by law, may, in its discretion, order judgment against the appellant for the penalties provided by section one hundred and four of article one, title one, chap- ter sixteen, part first of the Revised Statutes afore- said, for such period as shaU intervene between the time fixed for the removal of fences, as provided by section one hundred and seven of the said article, title and chapter, and the decision of such appeal ; and in case of the continued neglect or refusal of the occupant, after judgment, to make such removal, Encroachments on Highways. 293 the court rendering judgment may, by order from time to time, enforce the additional penalties incur- red, or may provide for the removal of such fences at the expense of the occupant, payment of such ex- pense to be enforced by order. Such applications to be made according to the usual practice of the court. (Laws of 1862, ch. 243, § 3.) 294 Highway Laws. CHAPTEE XIII. OBSTEUCTIONS IK HIGHWAYS. In general. Using highway for business. Puhho health. Parades and processions. Fallen trees to be removed. Penalty for falling trees. Rafts. Bemoving trees from streams. Noxious weeds. Swinging gates in highway. How erected and preserved. Expenses, by whom paid. Oates to be closed. Bemediesfor obstruction. Penalties for obstruction under the statute. Bemedy by abatement. Bemedy by indictment. Action tor special damages. In general. — The public have a right to a free and Tininterupted use of a highway along its entire width, and any thing which abridges this right is an ob- struction. (Hart V. Mayor of Albany, 9 Wend. 584.) It has been held, where the highway has been laid out and established of a certain width by statute, to be no justification, on an indictment for this oflfense) that the obstruction is placed in a part of the high- way which has not been prepared, and cannot be used for travel, by reason of ledges of rocks and stones, and that said obstruction does not obstruct or hinder the travel thereon. The court distinguished between the right of the public or town, as against the individual, for an obstruction, and the right of the individual, by private action, under the statutes, as against the town, for a defect or want of repair. The latter, it is said, " only requires a road of proper width, and kept in good repair. But the town, on the other hand, to enable itself to discharge its obli- gation to the public, requires the full and entire width of the whole located highway. The space between the made road and the exterior limits of the Obstructions in Highways. 295 located highway may be required for various pur- poses ; as for making and keeping in repair the trav- eled path ; for making sluices and water-courses, for furnishing earth to raise the road, and not unfrequently, from the location of the road, and from its exposure to be obstructed by snow, the entire width of the located road is required to be kept open, to guard against accumulations of snow that might otherwise wholly obstruct the public travel at such seasons. For these and other uses, in aid of what is the leading object, the keeping in good repair the made or traveled road, the general ease- ment in the public, acquired by the location of a highway, is co-extensive with the exterior limits of the located highway ; and the question of nuisance or no nuisance does not depend upon the fact, whether that part of the highway, which is alleged to have been unlawfully entered upon and obstructed by the defendant, was a portion of the highway capable of being used by the traveler. {Common- wealth V. King, 13 Mete. [Mass.] 115; People v. Cunningham, 1 Denio, 524.) See, also, Hume v. Mayor of New York (74 N". Y. 264), where a wooden awning or roofing covering the sidewalk of a street and resting on posts embedded in the street, made for private purposes and unau- thorized, was held an encroachment on the street and a nuisance. Using highway for business. — In People v. Cun- ningham {supra), defendants, being distillers, in the city of Brooklyn, were in the habit of delivering their slops to those who came for them, by passing them through pipes to the public street opposite their distillery, where they were received into casks standing in wagons and carts ; and the teams and carriages of the purchasers were ac- customed to collect there in great numbers to receive and take away the article ; and in conse- quence of their remaining there to await their turns, and of the strife among the drivers for priority, and of their disorderly conduct, the street was obstructed and rendered inconvenient to those 296 Highway Laws. passing thereon ; on an indictment for nuisance they were held to be guilty. Jewett, J., who delivered the opinion of the court, said: " The main points made by the defendants upon the merits in this case are, first, that the business which they pursued being lawful in itself, they had a right to use, in carrying it on, so much or the public highway, adjoining their premises on which their distillery was situate, as was necessary for the deliv- ery of the slops manufactured at their establishment, however much such business, so conducted, might obstruct the passage of the citizens with their car- riages in the street, provided they used reasonable diligence and dispatch in the delivery; and, second, that although the street was obstructed by carts and teams remaining therein for an unreasonable time waiting opportunities to obtain loading, the defend- ants, not being the owners of such carts and teams, and having no control over them, were not respon- sible. "There can be no doubt but that the citizens in general have a right of passage in the street or high- way, called Front street, in the city of Brooklyn, for themselves and their carriages, to its utmost extent, unobstructed by any impediments, subject, however, to such temporary partial obstruction as all public highways must suffer, in cases of plain, evident necessity. That the delivery of slops by the defendants to their customers in the manner appear- ing on the trial was a constant and serious obstruc- tion to passing the street by the citizens generally, I think admits of no doubt ; and I do not see that the defendants even make a grave question of it. They, however, insist that what they have done is lawful, because, from the position and extent of their establishment and business, and its peculiarity, Obstructions in Highways. 297 it was necessary for .tkem to do what they have done ; and that their mode of delivery was decidedly preferable, as well fot private as public convenience, to that which was formerly used or to any method Which can be devised. ' ' I cannot better state the principle atpplicS-ble to this question than to refer to the language of the court in The Oommonwealth v. Passmore (1 Serg. and Eawle, 219). In that case the defendant had been indicted for a nuisance, in placing goods on the footway and carriageway of one of the public streets in Philadelphia, and suffering them to remain for the purpose of being sold there at auction, so as to render the passage less convenient, although not entirely to obstruct it. Chief Justice Tilghman says, ' it is true that necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner. On the same principle a merchant may have his goods placed in the street for the purpose of remov- ing them to his store in a reasonable time. But he has no right to keep them in the street for the pur- pose of selling them there, because there is no neces- sity for it.' " The case of The King v. Russell (6 East, 437), seems to me very much in point, in determining upon the defendants' right to use the street for the delivery 38 Highway Laws. of the article referred to. The case was this : The defendant was found guilty upon an indictment for a nuisance, which stated that he, before and at the times after mentioned, was, and still is, proprietor of divers wagons for conveyance for hire of goods of others to and from Exeter, and as such proprietor, without any just cause or excuse, but wrongfully, etc., caused divers, viz., twenty, wagons to stand and remain for a long time, viz., ten hours on each day, before his warehouse, and divers cumbrous and other parcels, which had been conveyed, or were intended to be conveyed, in such wagons, to lie dur- ing such time scattered about such public street, to the great hindrance, etc., of his majesty's subjects passing and repassing such street. The second count charged that the defendant permitted divers wagons to stand in the said public street and highway, and there to remain before his warehouse for a long and unreasonable time, by which the king's subjects were, during that time, much impeded and obstructed. It appeared at the trial, that one or two, and sometimes three, large wagons of the defendant were for several hours, both day and night, standing in the street be- fore his warehouse, and usually occupied one-half of the street, so that no carriage could pass on that side next the warehouse; though two carriages might pass on the opposite side, the gutter being in the middle of the street ; that the wagons were loaded and unloaded in the street, and the packages thrown down on the same side of the street, so as frequently with the wagons to obstruct even foot passengers and oblige them to cross the gutter to the other side. It was then contended by the defendant, that it was not every public inconvenience which was a nuisance; that partial obstructions of that kind, which arose out of the necessary means of carrying on a trade Obstetjctions in Highways. 29& and business in a populous city having narrow streets, and the access to houses necessarily confined, did not constitute a nuisance, the public passage not being impeded, though narrowed, by such partial obstructions; that the same thing happened, though in a less degree, in the necessary carriage of goods to and from every tradesman' s shop in a street, and it was sufficient if no unreasonable time were con- sumed in the loading or unloading of the goods; that scaflfbldings erected in the street before houses under repair stood upon the same plea of necessity, though the passage was thereby greatly obstructed for the time. And the same reasoning applied to carriages stopping before the doors of inns and other places. The defendant being brought up for judg- ment, the court said that it should be fully under- stood that the defendant could not legally carry on any part of his business in the public street, to the annoyance of the public ; that the primary object of the street was for the free passage of the public, and any thing which impeded that free passage, without necessity, was a nuisance ; that if the nature of the defendant's business were such as to require the load- ing and unloading of so many more wagons than could conveniently be contained within his own pri- vate premises, he must either enlarge Ms jpremises or remove Ms business to some more convenient spot.'''' So in the case of Bex v. Carlile (6 Carr. and Payne, 636), Park, J., said, "no doubt, if a man does an act which injures a particular neighbor, he is not liable to be indicted if no one else but that neighbor be injured; but if a place is situate near a highway, and the defendant do that which causes the persons passing to be prevented from passing as they ought to do, and besides this, people are annoyed in the occupation of their houses; this is a nuisance for 300 Highway Laws. which the party is indictable." And, again, " there is no doubt that a tradesman may expose his wares for sale; but he must do it in such a way as not, by so doing, to cause obstruction to the public street." In Rex V. Jones (3 Campb. 230), the defendant, a timber merchant, occupied a small yard close to the street, and from the smallness of his premises was obliged to deposit the long pieces of timber in the street, and to have them sawed up there before they could be carried into the yard. It was argued that this was necessary for his trade, and that it occa- sioned no more inconvenience than draymen letting- down hogsheads of beer into the cellar of a pub- lican. But Lord Ellenborough said, "If an unrea- sonable time is occupied in the operation of deliver- ing beer from a brewer' s dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So, as to the repairing of a house ; the public must submit to the incon- venience occasioned necessarily in repairing the house ; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nui- sance. The defendant is not to eke out the incowDen- tence of Ms own premises hy taking the public highway into his timber yard ; and if the street be narrow he must remove to a more commodious sit- uation for carrying on his business." The fact that the defendants' business was lawful does not afford them a justification in annoying the public in transacting it : it gives them no right to occupy the public highway so as to impede the free passage of it by the citizens generally. The obstruction complained of is not of the tem- porary character which may be excused within the Obsteuotions in Highways. 301 necessary qualifications referred to in the cases cited, bnt results from a systematic course of carry- ing on the defendant's business. It is said that this business cannot be carried on in any other manner at that place, so advantageously either to individu- als or the public. The answer to this is to be found in the observation of the court in Russell's Case. " They must either enlarge their premises or remove their business to some more convenient spot." Pri- vate interest must be made subservient to the gen- eral interest of the community. The facts proved on the trial of this case showed clearly an unjustifiable obstruction of the highway, not one of a partial and temporary character which the law from necessity tolerates, but an obstruction almost total in effect, and as permanent in duration as the defendants' business. A ditch on a public highway is a nuisance, and whoever sustains injury thereby without fault on his part, may recover from the author of it. {Har- low V. Humiston, 6 Cow. 189.) Where the owner of lands, over which a highway passes, digs a raceway across the road to conduct water to his mill, he must restore the road to as good and safe condition as it was before the race was built, by building and maintaining a bridge over it, or otherwise; and if an injury occurs by reason thereof,. though he use the utmost care to prevent it, he is, in the absence of gross negligence on the part of the party injured, liable for damages, and the raceway will be adjudged a nuisance. [Dygert v. Bchenck, 23 Wend. 446.) So a ditch dug in a public highway which, from the local circumstances of the country, is seldom or never used but by one or more families, is still a public nuisance, not because any considerable portion of the public is actually affected 302 Highway Laws. by it, but because it obstructs a passage which all have a right to use. {Lansing v. Smith, 8 Cowen, 152.) One who without special authority makes or con- tinues a covered excavation in a public street or highway, for a private purpose, is responsible to a person using ordinary care who is injured thereby, irrespective of any degree of care or skill in the party making or continuing such excavation. {Con- gr&ae v. Smith, 18 N". Y. E. 79.) So one who, under a license, excavates a street is bound to restore it to a safe condition, and neglect to do so is no less culpable because of having re- ceived permission of the public authorities. \Mc- Camus V. Citizens' Oas-light Co., 40 Barb. 380.) And a municipal corporation will be liable for in- jury by an obstruction in its streets placed there by a stranger, after it has had notice of the same, actual or constructive, and failed to remove it. {Hume v. Mayor of New York, 47 N. Y. R. 639, and 74 id. 264 ; McDermott v. City of Kingston, 19 Hun, 198.) The legislature, being entirely competent to declare the uses to which highways may be appropriated, may legalize that which would otherwise be a nui- sance, and that which the legislature has constitution- ally authorized is not, in judgment of law, a nuisance. {Leigh v. Westervelt, 2 Duer, 618 ; Harris v. Thomp- son, 9 Barb. 3.')0.) If, however, there is an access or irregularity in the exercise of the power conferred, it becomes a public nuisance pro tanto. {Renwick v. Morris, 3 HiU, 621 ; S. C, 7 id. 675.) An opening in the sidewalk in a public street, communicating with a cellar or vault underneath, made without proper authority, is a public nuisance, and the party making or using it is bound at his peril to keep it in a safe condition. {Trvin v. Wood, 4 Rob. 138 ; see S. C, 5 id. 482.) If the owner of land adjoining a highway, and over which he has for a long period suffered the public to pass as a portion of the highway, make a dangerous excavation thereon, into which a traveler, Obstructions in Highways. 303 using ordinary care, falls and is injured thereby, he is liable in damages, although the land in question has never been formally accepted by the public so as to constitute it a high- way. (Becky. Garter, 68 JST. Y. E. 283.) An obstruction of its street by a municipal corporation entitles the owners to recover damages. (St. John v. Mayor of New York, 3 Bosw. 483.) The use of a public street for the display of fireworks is unlawful, and one injured thereby may maintain an action. {Gonklin v. Thompson, 29 Barb. 218.) An adjoining land-owner may have an injunction re- straining a street railway company from heaping up snow in the street by snow plough. (Prime v. Twenty-third St. R. R. Go., 1 Abb. N. C. 63.) It has been frequently held that an object liable to frighten horses in a highway was an obstruction, rendering the one placing it, or even the municipality allowing it to remain, liable for injuries caused thereby. Burning hay, piles of lumber and other material have been held to be such ob- jects, and towns held to be liable. {Morse v. Richmond, 41 Vt. 435 ; Winship v. Enfield, 42 N. H. 199 ; Ghamlerlain T. Enfisld, 31 id. 358 ; Littlejohn v. Richardson, 32 id. 59.) In Bartlett v. Hooksett (48 N. H. 18), the town was held to be liable in the case of a pig-sty, which projected into the highway, horses being frightened by the noise of the pigs therein. (See, to the same efiect, Foshay v. Glen-Haven, 25 Wis. 288 ; Stone v. Hublardston, 100 Mass. 49 ; also, Gonkton v. Thompson, 39 Barb. 218.) In Eggleston v. President of Golumhia Turnpike Road (18 Hun, 146), a turnpike company was held liable where a pile of stones placed on its road frightened a horse, caus- ing injury. (Keversed, 82 N. Y. R. 288, but affirmed as to this point. ) The law of the public street is motion, and any use of a street which materially abridges or obstructs and un- reasonably afiects an abutting owner's right of passage and re-passage of ingress or egress to and from the prem- ises, and his enjoyment of light and air from the street gives to the injured party, in case of special damage there- from, a right of action against the offending party for the recovery of the damages actually sustained. ( Greene v. N. Y. Gent. & H. R. R. R. Go., 13 Abb. N, 0. 124.) When the fee of land has been taken by the city in trust to be used and kept open as a public street, no structure can be authorized upon it inconsistent therewith. {Story v. N. Y. Elevated R. R. Go., 90 N. Y. R. 122, 124.) 304 Highway Laws. A horse railroad constructed under legislative authority on the surface of a city street is permitted. {Mahady v. Bushwick R. R. Co., 91 N. Y. R. 148.) An owner of land abutting on a city street, although the fee of the street be in the city, still has a right of action for an unreasonable use of it by an elevated street railway. (.Story V. N. Y. Elevated R. R. Go., 90 N. Y. E. 122.) where a railroad bridge unnecessarily impairs the use of the highway it is indictable as a nuisance. (People v. N. Y. & New Haven R. R. Co., 89 N. Y. R. 434.) An owner of land fronting on a highway may maintain an action to restrain an owner of land on the opposite side of the highway from digging upon his own land so as to endanger the safety of the highway or cause the earth of the same to subside or fall down. (Milburn v. Fowler, 27 Hun, 506.) The owner of fee in a public street not entitled to a tem- porary injunction restraining a water- works company from using their pipes until compensation be given to such owner. {Grooke v. Flatbush Water Works Go., 27 Hun, 72.) The people may maintain an action against telephone and telegraph companies to abate nuisance caused by tele- phone and telegraph poles. {People v. The Met. Tel. & Tel. Go., 31 Hun, 596.) An abutting owner may maintain an action against a company unlawfully using steam cars on a street. {Hussner V. Brooklyn Gity R. R. Go., 30 Hun, 409.) Processions and parades. — An act regulating processions and parades m the cities of this state (Laws 1872, ch. 590) provides as follows : No procession or parade shall march on any street rail- way track,nor interfere with the free passage of cars thereon, and in crossing such track shall break to allow the passage of cars. (§ 1.) All processions and parades (except the national guard and the police and fire departments) occupying or march- ing on any street to the exclusion of other citizens in their individual right and use, are forbidden ; unless six hours previous written notice by its chief officer shall be given to the police authorities, who may designate how much of the street in width it may occupy, and shall escort it and be responsible for its obedience to such designation . (§ 2.) All processions and parades on Sunday (except funeral processions in actual burial of the dead, and religious pro- CjBssions to and from any place of worship in connection •with a religious service there celebrated) are forbidden; and Obstetjctions in Highways. 305 music, fire-works, discharge of cannon or flre-arms, or other dis- turbing noise are forbidden, except military funeral music escort- ing the body, but not within one block of any place of public worship while worship is being celebrated. (§ 3.) Every person willfully violating this act shall be guilty of a mis- demeanor, punishable by a fine not exceeding twenty dollars, or imprisonment not' exceeding ten days, or both. (§ 4.) Public health. — By Laws of 1870, chapter 525, it is pro- vided that it shall be unlawful for any person or corpora- tion to deposit, cast, leave or keep, upon or near a highway or route of public travel, either on the land or on the water, any noisome or unwholesome substance, or to establish, main- tain, continue, or carry on, upon or near any highway or route of public travel, either on the land or on the water, any business, trade, or manufacture which is or shall be noisome or detrimental to public health. A violation is a misdemeanor, pun- ishable by a fine of not less than one hundred dollars or imprison- ment not less than three nor more than six months. Any person feeling aggrieved by such violation may serve a notice in writing upon the offender (personally, or by leaving it at his last known place of business in case of an individual, and in case of a corpo- ration, personally on any officer or director thereof), specifying the act or nature of the offense, and it shall immediately become the duty of the party notified to remove the substance, or discon- tinue the business, trade or manufacture, or in default the party shall forfeit to the complainant twenty dollars for each day's neg- lect to comply, to be recovered by suit by the complainant, after executing to the defendant a bond to be approved by a justice of the supreme court, conditioned to pay the defendant all costs of such suit which he may recover. Not evei7 encroachment upon a highway is such a nuisance that it may be summarily abated. It is the essence of a nuisance that it annoy the public. If an encroachment by fences upon a high- way is of such a nature that no one using the highway is incom- moded, then it is not a nuisance. (Griffith v. McCullwm, 46 Barb. 561; MeCa/rthy v. Syracuse, 46 N. Y. E. 194; see, also, Strickland V. Woolworth, 3 N. Y. Sup. 286; Howard v. Sobbins, 1 Lans. 63.) One who has had occasion to have a load upon a highway must remove it within a reasonable time, or it may be removed as a nui- sance. {Northrup v. Burrows, 10 Abb. N. C. 365. See Joius v. Chaniiry, 4 N. Y. Sup. 68.) 39 BOG HiGH^rAY Laws. Fallen trees to he removed. — If any tree shall fall, or be fallen, by any person, from any inclosed land into any highway, any person may gi^e notice to the occupant of the land from which such tree shall have fallen, to remove the same within two days. If such tree shaU not be removed within that time, but shall continue in such highway, the occupant of the land shall forfeit the sum of fifty cents for every day thereafter, until such tree shall be re moved. (1 K. S. 523, §110.) Penalty for falling trees.— In case any person shall cut down any tree on land not occupied by him, so that it shall fall into any highway, river or stream, unless by order and consent of the occupant, the person so offending shall forfeit to such occupant the sum of one dollar for every tree so fallen, and the like sum for every day the same shall remain in such highway, river or stream. (1 R. S. 523, § 111.) Rafts. — Rafts of timber, continuously moored in a navigable stream, are an obstruction of a public highway. {Moore v. Jackson, 2 Abb. N. C. 211.) Removing trees from streams. — Whoever shall cut, or cause to be cut down, any tree, so that the same shall fall into any river or stream which now is, or hereafter shall be, declared a public highway, and shall not remove the same out of such river or stream, within twenty-four hours thereafter, shall forfeit five dollars for every tree so cut down and left remaining. (Id., § 112.) Noxious weeds.— Ey Laws of 1878, chapter 49, it is provided as follows : It shall be the duty of every person or corpora- tion, owning or occupying under a lease for one or more years, any cultivated or inclosed lands abut- Obstructions in Highways. 307 ting upon any highway, to cause all noxious weedsj briars and brush, growing upon said lands, within the bounds of said highway, to be cut or destroyed between the fifteenth day of June, and the first day of July, and between the fif- teenth day of August and the first day of September, in each and every year. But boards of supervisors may fix a different period, or periods, for such cutting or destruction in their respective counties. This section shall not be con- strued to restrict any of the powers heretofore conferred upon boards of supervisors. (§1.) It shall be unlawful for any person to place or cause to be placed any noxious weeds, or the seeds of such weeds within the bounds of any public highway. (§ 2.) Any willful neglect or refusal to comply with the provis- ions of section one of this act, or any willful violation of section two of this act, shall subject the person or corpora- tion so offending to a penalty of ten dollars and costs in and for each road district in which any of such provisions shall be violated, to be sued for by the commissioner or commis- sioners of highways of the town wherein said road districts shall be situate, or by the street commissioner of villages, when such village constitutes a separate road district, and recovered before any justice of the peace having jurisdic- tion; said fine, when collected, to be paid into the highway fund of such town or village. (§ 3.) It shall be the duty of commissioners of highways of towns or street commissioner of villages to prosecute every person or corporation violating any of the provisions of this act in their respective towns or villages, and to include in each annual report of such commissioners a detailed state- ment of all fines recovered under the provisions of this act. By Laws 1847, ch. 100, amended by Laws 1881, ch. 296, it is made the duty of railroad and turnpike corporations to cut noxious weeds along their lands, between the fifteenth of June and the twenty-fifth of the same month, and be- tween the fifteenth and the twenty-fifth of August in each year. In case this is not done, any person may cub the same between June 25th and July 5th, and between August 25fch and September 5th, and recover $3 per day for the time spent in cutting. 308 Highway Laws. Swinging gates in highway. — No swinging of other gates shall be allowed on any public highway, laid out by virtue of this title, or which has hereto- fore been laid out, other than such public highways as run through lands liable to be overflowed by the waters of the adjacent rivers or streams, in such a manner as to remove the fences thereon. (1 R. S. 523, § 113.) How erected and preserved. — Such gate shall be erected and kept in good repair by the overseers of highways of the town, at the proper costs and charges of the occupants of the land, for whose ben- efit the same shall be erected. (Id., § 114.) Expenses, by whrnn paid. — If more than one gate shall be erected, and the intermediate land between the gates at the extremities of such lands shall be in the occupation of more than one person benefited by such-gates, the whole charge of erecting and keeping the same in repair shall be borne by all the occupants benefited thereby, in proportion to the extent of land each occupies adjoining the highway, between the gates and the extremities aforesaid. (1 R. S. 523, § 115.) The overseer of every road district in which such gates shall be shall, on or before the first day of November, in every year, make out and file with the town clerk a statement of the charges incurred in the erection or repairing of such gates, with the name of the person bound to defray the same, which account shall be verified by the oath of such over- seer. If more than one person is liable to defray such charges, the statement shall also contain an apportionment thereof between such persons, stating the amount to be paid by each. (Id., § 116.) Obsteitctions in Highways. 309 The overseer shall, within ten days after filing the statement, demand of every person bound to pay such charges, or to contribute thereto the sum due from him according to such statement, and if any person shall refuse or neglect to pay such moneys within six days after demand, it shall be the duty of the overseer to make complaint to a justice of the peace of the town," and the like proceeding shall be had for the recovery of such money, as in the recovery of fines for refusing or neglecting to work on the highways. (1 E. S. 524, § 117.) Gates to be closed. — The commissioners of high- ways shall file an account of such gates in the town clerk' s office ; and if any person shall open any such gate, and shall not, immediately after having passed the same, close it, or shall willfully or unne- cessarily ride over any of the grounds adjoining the road on which such gates shall be permitted, he shall forfeit to the party injured treble damages. (Id., § 118.) Remedies for obstruction. — Obstructions in high- ways may be remedied by an action for penalties under the statute by indictment, or by abatement, but not by injunction. {QoyJcendall v. DurTcee, 13 Hun, 260.) Penalties/or obstruction under the statute.— Who- ever shall obstruct any highway, or shall fill up or place any obstruction in any ditch constructed for draining the water from any highway, shall forfeit for every such offense the sum of five d-oUars. (1 R. S. 521, § 102.) Whoever shall injure any highway, by obstruct- ing or diverting any creek, water-course or sluice. 310 Highway Laws. or by drawing logs or timber on the surface of any road or bridge, or by any other act, shall, for every such offense, forfeit treble damages. (1 E.. S. 526, § 130.) This isenalty relates only to public, and not to private roads. {Fowler v. Lansing, 9 Johns. 349.) Unless the defendant shows that the sluice causes serious inconvenience or injury to him, he is liable to the penalty for obstructing it. {Bailey v. Frost, 4 N. T. Week. Dig. 269.) The penalty of five dollars and that of triple dam- ages are not limited to obstructions of laid out high- ways. After a road has become a public highway by user, as such, for twenty years or more, a person obstructing it incurs a penalty for so doing, although the commissioners have not caused the road to be ascertained, described and entered of record. The commissioners can maintain an action to recover the penalty of five doUars for such obstruction. {Deven- ■peck V. Lambert, 44 Barb. 596.) The remedy for obstructions given above is merely cumulative, and has not taken away or abridged the common law remedies by abatement or indictment. ( Wetmore v. Tracey, 14 Wend. 250 ; Dygert v. Sehenck, 23 id. 451.) The penalty given above is recoverable only by the commissioners. They cannot maintain an action on the case for damages done the road ; their remedy is by indictment, summary abatement, or action for the penalty ; private remedies are confined to the owner of the soil, or persons who have sustained a particu- lar injury. {Cornell v. Butternuts, etc.. Turnpike Co., 25 Wend. 368.) The mode of recovering the penalty is by action in the complainant's name; not in the summary way. {Rue v. Sprague, 1 Johns. 510.) In an action to recover a penalty for obstructing a Obutkuctions in Highways. 3ii highway, it is no defense that the assessment for the expenses of the highway was not properly made. {Cooper V. Bean, 5Lans. 318; see Qhapmanv. Gates, 54 N". Y. R. 132.) In such an action it is sufficient to show that the road was a highway, to produce the record and prove the opening and use, without prov- ing the preliminary proceedings. {Sage v. Barnes, 9 Johns. 865.) Remedy hy abatement. — Where the obstruction of a highway is of such a nature as to interfere with its use, such obstruction may be abated or removed. {Griffith V. McGullum, 46 Barb. 561 ; Hart v. Mayor of Albany, 3 Paige, 213 ; Harrower v. Ritson, 37 Barb. 301 ; CooTt v. Harris, 61 N". Y. R. 455.) Where the public use of the road is incommoded, the proper remedy is by indictment, and not abatement. {Griffith V. McGullum, supra}) A passenger on a highway, or a private individual, may remove so much of an instruction as prevents his use of the road ; but he must do no unnecessary injury. (Id.) Where commissioners changed the course of a sluice- way, crossing and draining a highway, and turned the water on the defendant' s land, and he obstructed the sluiceway, and was sued for a penalty, held, that if the effect of the change was to destroy his cultivated fields, he might peaceably abate the sluice in that manner as a nuisance. {Thompson v. Mien, 7 Lans. 459. But see Bailey v. Frost, 4 N. Y. Week. Dig. 269.) Remedy by indictment. — Indictment is the proper remedy, both against individuals for positive obstruc- tions, and against town officers for want of repair ; and the indictable nature of the obstruction does not ^^12 HiGUWAY Laavs. depend upon the question as to whether it incom- modes the public in their use of the road. The pub- lic is entitled to the free use of a highway to its full extent ; and whoever puts an obstruction within its limits may be indicted. {Harrower v. Mitson, 37 Barb. 301.) Every continuance of a nuisance is, in judgment of law, a fresh nuisance ; so that, though the person indicted did not create the obstruction, yet if he con- tinued it, he is liable. {Brown v. Cayuga, etc., R.R. Co., 12 N. Y. R. 486 ; Vedder v. Vedder, 1 Denio, 257.) Nor is it any defense that the teams and carts that obstruct the highway are not owned by the defend- ant, nor under his control, provided the gathering of the teams and carts at the place is caused by the manner in which the defendants conduct their busi- ness. {People V. CunningJiam, 1 Denio, 524. ) Action for special damages. — Where a person has obstructed a highway, and another has received some special injury therefrom not sustained by the rest of the public, the latter may maintain an action for special damages against the former. {Pierce v. Dart, 7 Cow. 609 ; Dygert v. ScTienck, 23 Wend. 447; Lan- sing V. Smith, 8 Cow. 153 ; Irmn v. Fowler, 5 Rob. 482; Van Brunt v. Ahearn, 13 Hun, 388, and cases cited.) There must, however, be some special injury to the plaintiff, not sulfered by the rest of the community, to enable him to recover. {Fort Plain Bridge Co. v. Smith, 30 N. Y. R. 44-47 ; Cristman v. Paul, 16 How. Pr. Rep. 17 ; Houck v. Wachter, 34 Md. 265 ; Dawson v. Ins. Co. , 15 Minn. 136. ) An individual who receives a bodily hurt, or suffers a damage to his horse or carriage, in consequence of Obstrttotions IK Highways. 313 a direct collision with, an obstruction in the Wgliway, is specially damnified, and may maintain an action against the author of the obstruction. It has been held, that the being put to the necessity of going a circuitous route, or the being delayed on a journey by which some important affair is neg- lected, is not sufficient of itself to warrant the action. {Pierce y. Dart, 7 Cow. 609, and cases there cited.) So when the nuisance consists in maintaining a pile of wood on the street, constituting the bulk-head in front of the plaintiff' s storehouse, injury to the rental of the storehouse, by reason of such nuisance, an injury common to all other property in the neigh- borhood, and will not sustain 3, private action. {Dougherty v. Bunting, 1 Sandf. 1.) Trifling injuries are sufficient to sustain the action, if they be special. {Pierce v. Dart, supra) A city has no right to authorize booths or other obstructions to the street for the purpose of trade, and it is the duty of the authorities to remove such ob- structions. {Big V. Campbell, 59 How. Pr. 333; see also id. 277.) A traveler is bound to give way to railroad cars in the street, not only when requested, but at all times, so their speed need not be diminished. {Adolph v. Central Parle, etc., R. R. Co., 76 N. Y. 530.) A commissioner of public works who has the charge of city streets, can be compelled by man- damus to perform his duty to remove obstructions at the suit of a citizen who is injured by such ob- structions. In this case the obstructions were ven- dors of merchandise, and the complainant the owner of adjoining property. (People ex rel. O'Reilly v. Mayor of New TorJc, 59 How. Pr. 277.) 40 314 Highway Laws. CHAPTER XIV. OF THE LAW OP THE ROAD. Carriages meeting. When the rule does not apply. Contributory fault. Negligence in management of horse, breaking of harness, etc. Drivers addicted to drunkenness, not to be employed. Running horses prohibited. Leaving horses without being tied. Owners of certain carriages liable to» acts of drivers. Term " carriages " defined . Hackney coaches. Railroad locomotives crossing high- way. Bicycles. Carriages meeting. — Whenever any persons trav- eling with any carriages shall meet on any turnpike road or public highway in the State, the persons so meeting shall seasonably turn their carriages to the right of the center of the road, so as to permit such carriages to pass without interference or interrup- tion, under the penalty of five dollars, for every neglect or oflFense, to be recovered by the party in- jured. (1 R. S. 695, § 1.) The persons meeting "shall seasonably turn," that is, shall turn in time not to retard the progress of the other. {Brooks v. Hart, 14 INT. H. 307.) The fact that a person riding or driving on a high- way was on the wrong side of the road at the time of a collision is prima facie evidence of negligence on his part, but may be explained and justified {Bur dick v. Worrall, 4 Barb. 596; Earing v . Lari. Singh, 7 Wend. 185.) Thus he may excuse himself by showing that he was drawing up to his stopping place, or to water his horse, or to turn out of the road. (See Burdick v. Worrall, 4 Barb. 596.) The roughness of the road on the right side is no excuse for not taking it, unless so great as to present a Of the Law of the Road. 315 serious obstacle to its use. {Earing v. Lansingh, 7 Wend. 185.) The person on the wrong side of the road assumes the risk of all experiments, and is bound to use greater care than if on the right side. {BrooTcs V. Hart, 14 N . H. 307.) Center of road. — The " center of the road " means the center of the worked part of the road, not of the smooth or most traveled part, although the whole of the most traveled part be on one side. {Earing v. Lansingh, 7 Wend. 185.<^In this case, which was an action for the penalty, Sutherland, J., who deliv- ered the opinion of the court, said : " The court charged the jury that the true construc- tion of the act was, that parties were to keep to the right of the center of the worked part of the road, and that unless the defendant was to the right of that cen- ter, when the plaintiff's wagon came in contact with his, the penalty had attached, and that the situation of the road, as being rough and rutty on the defend- ant' s side, or the want of design on his part to run against the plaintiff, would be no defense unless the road on his side was such as to render it impracti- cable for him to turn out ; and that the case was not affected by the circumstance that the plaintiff was driving fast and the defendant slow. Thi,s is the sound construction of the act; it was designed to settle and establish the rights of travelers in such a manner, that there could be no mistake about them ; each party is to keep to the right of the center of the worked part of the road ; although it may be more difficult for one party to turn out than the other, that is no answer to the action. The act establishes, upon consideration of public policy, a broad general rule, which must be enforced, although sometimes it may operate inconveniently upon parties. It is not 316 Highway Laws. the center of the smooth or most traveled part of the road which is the dividing line, but the center of the worked part, although the whole of the smooth or most traveled path may be upon one side of that center, unless the situation of the road is such that it i^ impracticable or extremely difficult for the party to turn out. No such difficulty existed in this case. The road on the defendant's side was rough from having been rutted and frozen, but not so much so as to present any serious obstacle to his riding or driving over it. The questions of fact were properly left to the jury, and their verdict is warranted by the evi- dence." The rule, however, requiring persons meeting eaqh other on a public highway to keep their vehicles to the right of the center of the worked part of the road, does not apply in the winter season, when the depth of snow renders it impossible or difficult to ascertain the center of the worked part of the road. It is a reasonable construction of the statute, to de- fine the center of the road, when obscured by snow, to be the center of the beaten or traveled track, with- out reference to the worked part. {Smith v. Dygert, 12 Barb. 613. See, also, Simmonson v. Stellenmerf, 1 Edm. 194.) When the rule does not apply. — The " law of the road" requiring parties to turn to the right does not apply to the meeting of vehicles on a railroad with vehicles of a difierent kind. The latter may turn to that side which appears, under the circumstances, to be safest. {Hegan v. Eighth Avenue R. R. Co., 15 N. Y. R. 380.) Nor are railroad cars in city streets bound to go on the right hand track. {Alt- r enter v. Hudson River R. R. Co., 2 E. D. Smith, 151.) Nor does the rule apply to persons traveling Of the Law op the Eoad. 317 on horseback or on foot. {Dudley v. Bolles, 24 Wend. 465 ; Grant v. City of Brooklyn, 41 Barb. 384.) Nor does the rule apply to travelers passing in the same direction. (See Avegno v. Hart, 35 La. Ann. 235 ; 13 Am. Rep. 13B, note on 135.) It is the duty of one traveling on the highway, if requested, to yield enough of the way to allow one passing in the same direction to go by him, but he is not bound to look back or yield if there be room enough to pass. {AdolpJi v. Central Park, etc., R. i2. ^o., 76 k Y. R. 530.) Contributory fault. — An injured party cannot maintain an action when his own negligence con- tributed to the injury ( Welling v. Judge, 40 Barb. 193), even when the defendant was on the wrong side of the road. {Kennardy. Burton, 25 Me. 39 ; Par- ker V. Adams, 12 Mete. 415.) It is not contributory negligence for a foot passenger on a country road to walk in the wagon way though there be a sidewalk, but he is bound to use due care, and he is entitled to the exercise of reasonable care from persons driv- ing on the road. {Ooorribs v. Parrington, 42 Me. 332.) But a foot passenger has no priority of right over vehicles, even in a city. {Belton v. Baxter, 54 N. Y. R. 245.) Their rights are equal. {Brooks v. Schwerin, id. 343 ; Barker v. Savage, 45 id. 19.) At a railroad crossing, citizens have not the same rights as the railroad corporation. The corporation has the preference and the citizen should wait for the train to pass. {Warner v. New York Central a. a. Co., 44 K Y. R. 465.) One has a right to rely on the prudence of others, not to justify his own carelessness, but to warrant him in using the highway according to his own views of convenience. Qlarpell\. Curtis, 1 E. D. Smith, 78.) A person traveling upon a highway may assume that it is safe, and if he does so, a previous knowl- edge of the existence of a defect will not of itself make him negligent. ( Weed v. Village of Ballston, 76 N. Y. R. 329.) Negligence in management of horse — breaking of harness, etc. — The rider or driver of a horse must 318 Highway Laws. use ordinary care in its management, and is liable for any accident occasioned by his carelessness. {Claflin V. Wilcox, 18 Verm. 605 ; Center v. Finney, 17 Barb. 94 ; 2 Seld. Notes, 44.) Reckless and noisy driving, which so frightens a horse on or near the highway that he runs away, to the injury of the plaintiflf s property, is a good cause of action, though no collision happen. {Burnliam v. Buller, 31 N. Y. R. 480.) But if a horse run away through no neg- ligence of the driver, out of mere viciousness, of which the driver had no notice, the latter is not liable for injury thereby caused. {Hammack v. White, 11 C. B. [N. S.] 588 ; Sullivan v. Scripture, 3 Allen, 564.) A traveler upon a highway is bound to have his harness and carriage in a good road-worthy condi- tion, and is liable for any damages occasioned by insufficiency in this particular. Thus, where, in going down hill, the defendant' s cart broke and his horse became frightened thereby and ran away, the defendant was held liable. ( Welsh v. Lawrence, 2 Chitty, 262 ; Smith v. Smith, 2 Pick. 321.) Drivers addicted to drunkenness, not to be em- ployed. — No person owning any carriage, running or traveling upon any road ia this state, for the con- veyance of passengers, shall employ, or continue in employment, any person to drive snch carriage, who is addicted to drunkenness, or to the excessive use of spirituous liquors ; and if any such owner shall violate the provisions of this section, he shall forfeit at the rate of five dollars per day, for aU the time during which he shall have kept any such driver in his employment, to be sued for by the district at- torney of the county in which such owner shaU re- Of the Law of the Eoad.. 319 side. The penalty, when recovered, shall be for the use of the poor of such county, except that the court in which the recovery shall be had may allow a portion of said penalty, not exceeding twenty -five dollars, to be retained by such district attorney, as a compensation for his services and expenses, beyond the taxable costs. (1 R. S. 695, § 2.) If any driver, while actually employed in driving any such carriage, shall be guilty of intoxication, to such a degree as to endanger the safety of the passen- gers in the carriage, it shall be the duty of the owner of such carriage, on receiving written notice of the fact, signed by any one of said passengers, and cer- tified by him on oath, forthwith to discharge such driver from his employment; and every such owner who shall retain or have in his service, within six months after the receipt of such notice, any driver who shall have been so intoxicated, shall forfeit at the rate of five dollars per day, for all the time dur- ing which he shall keep any such driver in his em- ployment after receiving such notice, to be sued for and applied as directed in the last preceding section. (Id., §3.) Running horses in any carriage, prohibited. — No person driving aiiy carriage upon any turnpike road or public highway within this state, with or without passengers therein, shall run his horses, or cause or permit the same to run, upon any occasion or for any purpose whatever ; and every person who shall offend against the provisions of this section shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined not exceeding one hundred dollars, or impi^soned not exceeding sixty days, at the discretion of the court. (1 R. S. 695, § 4.) 320 , Highway Laws. Leaving horses without being tied, etc. — It shall not be lawful for the driver of any carriage used for the purpose of conveying passengers for hire, to leave the horses attached thereto, while passengers remain in the same, without first making such horses fast with a sufficient halter, rope or chain, or by placing the lines in the hands of some other person, so as to prevent their running ; and if any such driver shall offend against the provisions of this sec- tion, he shall forfeit, for the use of the poor, the sum of twenty dollars, to be recovered by action to be commenced within six months. And unless the amount of such recoverj' be paid forthwith, an exe- cution shall be immediately issued therefor. (Id., § 6.) Owners of certain carriages liable for acts of driv- ers. — The owners of every carriage running or trav- eling upon any turnpike road or public highway, for the conveyance of passengers, shall be liable, jointly and severally, to the party injured, in all cases, for all injuries and damages done by any person in the employment of such owner or owners, as a driver, whUe driving such carriage, to any person, or to the property of any person ; and that, whether the act occasioning such injury or damage be willful or neg- ligent, or otherwise, in the same manner as such driver would be liable. (Id., § 6.) The conductor of a street railroad car is not the ' ' driver " of a " car- riage" within the meaning of this section. {Isaacs \. Third Avenue R.R. Oo., 47 N. Y. E. 122. See, also, Whitaker v. Eighth Avenue B. R. Co., 51 id. 295.) Term '■'•carriage'''' defined.— 'Yhe term "carriage," as used in this title, shall be construed to include stage-coaches, wagons, carts, sleighs, sleds, and every other carriage or vehicle used for the trans- Of the Law of the Road. 321 portation of persons and goods, or of either of them. (Id., §7.) The term does not include street cars, however. (See Whitaker v. Eighth Avenue R. R. Co., 51 N". Y. R. 295.) Hackney coacAes.— Nothing contained in this title shall interfere with or aflFect any law concerning hackney coaches or carriages in any of the cities of this state, nor interfere with nor affect the laws or ordinances of any such city for the licensing or reg- Tilattng such coaches or carriages. (1 R. S. 695, §8.) Regulation of travel ty city authorities. — The power given a city to regulate, repair and improve streets in connection with the power of caring for and superintending them, vested in city authorities as commissioners of highways, will authorize the making of an ordinance forbidding wagons carry- ing more than 3,000 pounds, to travel in the streets, unless the wheels have a tire at least three inches in width. {People v. Jamies, 16 Hun, 426.) Railroad locomotive crossing highway — hell must he rung. — A bell shall be placed on each locomotive engine run on any railroad, and rung at the dis- tance of at least eighty rods from the place where the railroad shall cross any traveled public road or street on the same level with the railroad, and be kept ringing until it shall have crossed such road or street, or a steam whistle shall be attached to each locomotive engine and be sounded at least eighty rods from the place where the railroad shall cross any such traveled public road or street upon the same level with the railroad, except in cities, and be sounded at intervals untUit shall have crossed such 41 322 Highway Laws. road or street ; and every neglect to comply with the foregoing provisions shall subject the corpora- tion owning the railroad to a fine not exceeding twenty dollars in the discretion of the court having cognizance of the offense ; and every engineer hav- ing charge of the engine, for every neglect to com- ply with the requirements aforesaid shall be fined not exceeding fifty dollars, or imprisoned in the county jail not exceeding sixty days, in the dis- cretion of the court before which any indictment may be tried ; and the said corporation shall, more- over, be liable for all damages which shall be sus- tained by any person by reason of such neglect. (Laws 1850, ch. 140 ; amended Laws 1854, ch. 282, §7.) AU penalties hereinbefore mentioned may be sued for in the name of the people of the state of New York by the district attorney of the county wherein the same shall accrue, within ten days thereafter ; and in case such district attorney shall omit or neg lect to sue for such fine or fines within the time aforesaid, then it may and shall be lawful for any person aggrieved to sue therefor in the name of the overseers of the poor of the town wherein any such fine or fines shall have accrued, which, when re- covered, shall be paid to the said overseers of the poor for the benefit of the poor of said town. And in case such persons shall faU to make out and maintain any such action, it shall be the duty of the court before whom any such action shall be had to enter a judgment against the complainant for the costs of said action. (Id.) Bicycles. — The use of the bicycle as a means of travel is so recent that in this state there is as yet Animals in Highways. 323 no adjudication as to the rights of travelers employ- ing it upon the highway. In England it has been held that one riding a bicycle on a highway at such a pace as to be dangerous to passera-by, may be convicted of furiously driving a carriage under a statute forbidding such an act. {Taylors. Ooodwin, L. E., 4 Q. B. D. 228.) The right to use a bicycle in a proper manner upon the highway was not ques- tioned in the case, and the court by its decision in- directly admits such right. In the absence of any legislative enactment forbidding them, riders of bicycles would seem to have the same right upon highways as those using any other vehicles ; and the validity of any municipal ordinance prohibiting the use of bicycles in those parts of the public streets where carriages may go would be very doubtful. 324 Highway Laws. CHAPTER XT. Animals in Highways. Action against one permitting animal to stray. Amomit of penalties. Seizure of nnimaTa by officers and pri- vate persons. Froceeoings after seizure. Petition, precept and service. Proceedings upon return of precept. Answer. W^arrant to sell animal, and manner of sale. Application of proceeds of sale. Disposition of surplus. Appeal from, order as to. Proceedings where decision for person answering. Demand of possession by owner. Action by owner. Action by petitioner or officer. Demand of possession after final order before sale. Order on demand and appeal. Stay on appeal. Appeal from final order. Proceedings on affirmance of order. Limitation of action to recover ani- mal seized. Action for seizure. Animals of different owners. Surplus where different owners. Action commenced supersedes right of action in others. Oiticer may prosecute where private person seizing, fails to. One with special property deemed owner. Agent may act for principal. Menageries. Action against person permitiing animal to stray in highway. — The Code of Civil Procedure passed in 1880 makes provision for animals straying in the highway, statutes previously existing, having refer- ence to that subject, being repealed. By section 3082 of the Code it is enacted thus : Any person who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats to run at large, or to be herded or pastured, in a public street, highway, park or place, elsewhere than in a city, incurs thereby the penalty or penal- ties specified in the next section, and any resident of the town or the officer to whom a fine or penalty is to be paid for the benefit of the poor as prescribed in section 2875 of the Code named, or the overseer or superintendent of the poor of the town or district in Animals in High-ways. 325 whicli one or more of those animals are found so running at large, herded or pastured, may maintain an action against him in a justice's court, held in that town or district, to recover the penalty or pen- alties so incurred. Where the action is brought by a private person, the justice must pay the proceeds of an execution issued upon a judgment therein in favor of the plaintiff, after deducting the costs to the officer, who might have brought the action as pre- scribed in this section, to be applied by him to the support of the poor within his town or district. Sec- tion 2875 mentioned directs that a fine or penalty shall be paid to the overseer or superintendent of the poor of the town, city, or district, vrherein the fine was imposed ; or, where there is no such officer, to the officer or officers performing corresponding functions under another name ; unless the board of supervisors has directed the payment of fines and penalties to the supervisor of the town, in a case where it is authorized by law so to do. Amount of penalties to be recovered. — If the plaintiff recovers judgment, in an action brought as prescribed in the last section, the justice must award to him the following sums, by way of penalties, be- sides the costs of the action : 1. For each horse, colt, ass, mule, swine, bull, ox, cow, or calf, five dollars. 2. For each sheep or goat, one dollar. The entire amount of the penalties may be recov- ered in one action, although it exceeds the sum for which a justice can render a judgment in an ordi- nary action. (Id. § 3083.) Under the statutes existing previous to the Code it was held to be no defense to an action for a penalty imposed that the animal escaped by the breaking 326 Highway Laws. down of fences by an unruly cow or by reason of defective fences. {Cotton v. Maurer, 1 T. & C. 481.) It was also held that the owner of horses is liable in damages to a person injured by them while unlaw- fully running at large. {Bowyer v. Burlew, 3 T. & C. 362.) Highway officers must seize ani'mals straying. — Where one or more cattle, horses, colts, asses, mules, swine, sheep, or goats are found running at large, or being herded or pastured, in a public street, high- way, park, or place, elsewhere than in a city, the overseer of highways of the road district, or, if they are so found within an incorporated village, the street commissioner thereof, having personal knowl- edge or being notified of the fact, must immediately seize the animal or animals, and keep it or them in his possession, until disposed of as prescribed in the following sections of this title. (Id. § 3084.) Private persons may seize animals straying. — Any person may seize one or more animals specified in the last section, then running at large, or being herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, bordering upon real property owned or occupied by him ; or then trespassing upon real property so owned or oc- cupied, having entered thereupon from such a pub- lic street, highway, park, or place. The person making the seizure must keep the animal or animals seized in his possession until disposed of as pre- scribed in the following sections of this title. (§ 3085.) Under a similar provision of the former statutes it was held that it applied only to cattle trespassing upon premises from the highway, and not to the case of cattle passing through a division fence. (Jones V. Sheldon, 50 IS". Y. R. 477.) Animals in Hi&hwats. 327 Officer or person seizing to present petition. — An officer or other person, who seizes an animal or ani- mals, as prescribed in either of the last two sections, must immediately file, with a justice of the peace of the town in which the seizure was made, a writ- ten petition, verified by his oath, setting forth the facts which bring the case within either of those sections ; briefly describing the animal or animals seized ; stating either the name of the owner, or that his name is not known to the petitioner, and cannot be ascertained by him with reasonable diligence, and praying for a final order directing the sale of the animal or animals seized, and the application of the proceeds thereof, as prescribed in this title. Where the petition alleges that any animal or animals seized were then trespassing upon real property owned or occupied by the petitioner, it must state the amount of the damages, if any, which the petitioner has sus- tained thereby. In that case the decision of the justice, or where the issues are tried by a jury, the verdict must fix the amount of the damages. (Id. § 3086.) (See forms ISo. 72, 73, 74.) The provisions of this section are constitutional and it is no objec- tion that personal notice to the owner or claimant of the animals is not necessary to give jurisdiction. {Campbell v. Evans, 45 N. Y. R. 356.) Precept to be issued upon petition. — Upon the presentation of the petition, the justice must issue a precept under his hand directed to the owner, if his name is stated in the petition, or if it is not so stated, directed generally to all persons having any interest in the animal or animals seized, briefly re- citing the substance of the petition, describing the animal or animals seized, and requiring the person or persons to whom the precept is directed to show 328 Highway Laws. cause before the justice at a time and place specified therein, not less than ten nor more than twenty days after the issuing of the precept, why the prayer of the petition should not be granted. (Id. § 3087.) (See form No. 76.) Under the former statute it was held that the right to hold the cattle . was not affected by any irregularity in the summons issued by the justice nor by any omission to post the sum- mons. {Leamtt v. Thompson, 52 N. Y. K. 62,) Serving and posting of precept. — The precept must be served upon the person to whom it is di- rected by his name within the same time and in like manner as a summons is required to be served as prescribed in section 2910 of the Code of Civil Pro- cedure. Where it is directed generally to all persons having an interest in the animal or animals seized, it may be served by a constable of the town, or by an elector thereof specially authorized so to do by a written indorsement upon the precept under the hand of the justice, by posting a copy thereof in at least six public and conspicuous places in the town where the seizure was made; one of which places must be the nearest district school-house, or, if the seizure was made within an incorporated village, having schools in charge of a board of education, a building in which such a school is kept. Each copy must be so posted, within two days after the precept is issued. "Where the precept is directed to a person by his name, and proof is made, by affidavit, to the satis- faction of the justice, that it cannot, with reasonable diligence, be personally served upon that person, within the county, at least six days before the return day thereof, the justice may, by a written order, di- rect that service thereof be made, by posting copies thereof, at least five days before the return day, as Animals in Highways. 329 prescribed in this section; in which case, service thereof may be made accordingly. (See form No. 79.) By "the nearest district school-house" in the above section is meant the district school-houae nearest the place where the seizure was made, not nearest to the justice's office. (Campbell v. Evans, 54 Barb. 566.) Mode of serving precept. — Section 2910 of the Code above referred to relates to the service of a summons in a case of attachment in a justice's court. It directs that the constable must immediately after making an inventory of the attached property, and at least six days before the return day of the sum- mons, serve the summons, upon the defendant, by delivering to him personally a copy of it, if he can, with reasonable diligence, be found within the county ; or, if he cannot be so found, by leaving a copy, certified by the constable, at the . last place of residence of the defendant in the county, with a person of suitable age and discretion ; or, if such a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest post-office, inclosed in a sealed post- paid wrapper, directed to the defendant at his resi- dence; or, if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property attached is found. Personal notice should always be given to the owner if he is known and resides near. In an action for the value of a cow seized under the former law, PoKTEE, J., said: "The defendant knew that the property he seized belonged to the plaintiflf, who re- sided within a mile of him in the same town. Ordi- nary good faith required him to notify the owner 42 330 Highway Laws. that the lost cow was in his stable ; and, though the act of 1862 is silent in respect to such notice, it may- well be questioned, under the authorities, whether the obligation to give it is not implied in a case where the owner is known. {Rockwell v. Nearing, 35 K Y.R. 302.) Proof of serTice of precept. — At the place where the precept is returnable, and at the expiration of the time specified in section 2893 of the Code of Civil Procedure, the petitioner must, unless the pre cept is directed to a person by his name, and he ap- pears, furnish proof of the service of the precept, as prescribed in the last section. If it was served by a constable, either personally or by posting, his writ- ten return upon the precept is sufficient proof of the facts relating to the service, as stated therein. If it was served by a private person, proof of service must be made by affidavit. (Id. § 8089. (See forms Nos. 76, 77. 78, 80.) An affidavit under the former law made by the person serving the summons, and indorsed thereon stating that he has served the same, together with proof that such person is a constable, was held suffi- cient to authorize the justice to proceed with the case, although it did not appear by the return that the person making it was a constable. (Ca/mphell v. Evans, 54 Barb. 566.) Justice to wait one hour for appearance of par- ties.— Section 2893 of the Code of Civil Procedure, above mentioned, relates to the trial of an action be- fore a justice of the peace. It directs that upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return, unless the parties sooner appear. Animals in Highways. 331 Proceedings upon return — answer. — The owner, or a person having an interest in any animal seized, may appear upon the return of the precept, and thereby make himself a party to the special pro- ceeding. The person so appearing may, upon the return of the precept, file a written answer, sub- scribed by him or his attorney, and verified by the oath of the person subscribing it, denying abso- lutely or upon information and belief, one or more material allegations contained in the petition. His answer must also set forth his interest in the animal or animals seized. The subsequent proceedings must be the same as in an action in a justice's court, wherein an issue of fact has been joined, except as otherwise specially prescribed in this title. (Id. § 3090.) This title is title ten of chapter 19 of the Code of Civil Procedure, which relates to animals stray- ing in the highway, the provisions of which are con- tained in the present chapter of this work. (See form No. 81.) Order and warrant to sell, and sale. — If no per- son appears and answers, or if the decision of the justice or the verdict of the jury, where the issues were tried by a jury, is in favor of the petitioner, the justice must make a final order directing the sale of the animal or animals seized and the ap- plication of the proceeds thereof as prescribed in this title. Thereupon the justice must issue a war- rant under his hand, directed generally to any con- stable of the county, commanding him to sell the animal or animals seized at public auction for the best price which he can obtain therefor, and to make return thereof to the justice at a time and place therein specified, not less than ten nor more than twenty days thereafter. The sale must be made 332 Highway Laws. upon the like notice and in like manner as a sale of property by virtue of an execution issued by a jus- tice of the peace ; and the constable must make return as required by the warrant, and must pay the proceeds of the sale to the justice, deducting therefrom his fees at the rate allowed by law for the collection of such an execution. (Id. § 3091.) (See forms Nos. 82, 83, 84, 85.) The sale must be at least six days after the notice is posted in three public places in the town. Application of the proceeds of sale. — The justice must apply the proceeds of the sale as follows : 1. He must pay the costs of the petitioner as taxed by the justice at the same rates as the costs of an action brought before him, including the justice's fees in such an action ; and also the fees for the ser- vice of the precept, either personally or by posting, at the rate allowed by law for personal service of a summons by a constable. 2. Out of the remainder of the proceeds he may retain to his own use a fee of one dollar for each animal sold. 3. Out of the remainder of the proceeds he must pay to the officer, or other person making the seiz- ure, the following fees for the seizure of each animal seized and sold, to wit : One doUar for each horse, colt, ass or mule ; fifty cents for each buU, ox, cow, or calf; and twenty-five cents for each goat, sheep, or swine ; together with a reasonable compensation, fixed by him, for the care and keeping of each ani- mal, from the time of the seizure to the time of the sale ; and, also, where any animal sold was seized, while trespassing upon real property owned or occu- pied by the petitioner, the damages sustained by the petitioner in consequence thereof, as ascertained Animals mr Highways 333 by the decision of the justice, or the verdict of the jury, upon which the final order was made. 4 Out of the remainder of the proceeds he must pay to the officer, to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of the Code of Civil Procedure, the fol- lowing penalties, to wit : five dollars for each horse, colt, ass, mule, bull, ox, cow, calf, or swine, seized and sold ; and one dollar for each sheep or goat seized and sold ; which penalties must be received by the officer for the benefit of the poor of his town or district. 5. If any surplus remains, he must pay the same to the person or persons entitled thereto, as pre- scribed in the following sections of this title. (Id. § 3092.) The right to detain the cattle remains until pay- ment of the sums specified in the act. {Leavitt v. Thompson, 52 K. Y. E. 62.) The sums allowed to the party taking up cattle trespassing on his land are allowed as compensation, tno for the mere taking, but for pursuing the remedy provided, and the right thereto is not complete until the sale of the cattle. {HicTcox v. Thurston, 7 Lans. 431.) Disposition of surplus where claim made. — Any person may, within ten days after the return of the warrant, file, with the justice, a written claim to the surplus of the proceeds of the sale, or to any part thereof. On the eleventh day after the return, or, if it is a Sunday or a public holiday, on the first day thereafter, which is neither Sunday nor a public holiday, the justice must proceed to inquire into the claims so filed ; and, for the purpose of determining 334 Highway Laws. them, he must liear the allegations and proofs of each claimant ; and he may issue subpoenas, as upon the trial of an action. He may, upon the application of any claimant, and for good cause shown, adjourn the hearing, from time to time, but not more than thirty days in all. After hearing the allegations and proofs of aU the claimants, he must decide the claims, and enter an order accordingly. If no claim is filed, or if the right to the surplus money, or any part thereof, is not established, to the satisfaction of the justice as prescribed in this section, any person whose claim was not determined upon the hearing may file a claim thereto at any time before the ex- piration of a year from the return of the warrant ; and thereupon the justice must proceed as prescribed in this section with respect to a claim filed within the ten days. (Id. § 3093.) Disposition of surplus where no claim estab- lished. — If, at the expiration of one year after the return of the warrant, any portion of the surplus remains, a claim to which has not been established to the satisfaction of the justice pursuant to the pro- visions of the last section, the justice must pay it, for the benefit of the poor, to the officer to whom a fine or penalty is to be paid for the benefit of the poor as prescribed in section 2876 of the Code named ; and thereupon aU persons are forever barred from any claim thereto. But if a claim filed as prescribed in the last section remains undetermined at the expira- tion of the year, the justice must determine it within ten days thereafter ; and for that purpose, he must retain the surplus in his hands until the determina- tion. (Id. § 3094.) Appeal from order on claim for swplus. — An Animals in Highways. 835 appeal from an order determining a claim as pre- scribed in the last two sections (§§ 3093, 3094) may be taken to the county court by a claimant, within ten days after the making of the order, as from a judgment of a justice in an action to recover a sura equal to the claim ; and the proceedings thereupon are the same except that an undertaking is not neces- sary for any purpose . Upon such an appeal each other claimant, whose interest is affected by the order appealed from, must be made a respondent. If there is no such claimant, the officer entitled to the surplus must be made respondent ; but costs cannot be awarded against him unless he appears upon the appeal, in which case the costs are in the discretion of the appellate court. Where an appeal taken as prescribed in this section is perfected, the county judge may, in his discretion, make an order extend- ing the time within which payment of the surplus must be made as prescribed in the last section, and staying payment accordingly. Unless such an order is made, and a copy thereof is served upon the jus- tice, payment must be made as prescribed in the last section, notwithstanding the appeal, and upon proof of the payment, the appeal must be dismissed. "Where an appeal is taken to the supreme court, from the determination of the county court, the county judge, or a justice of the Supreme Court, may make a like order, and with like effect. (Id. § 3096.) Proceedings wpon decision in favor of person answering. — If the decision of the justice, or the verdict of the jury, where the issues are tried by a jury, is in favor of the person answering, it must fix the value of each animal seized. K the justice or the jury find that the seizure was malicious, and without probable cause, the decision or verdict must 336 Highway Laws. assess the damages sustained by the person answer- ing, by means of the seizure and detention. The justice must thereupon make a final order, awarding to the person so answering the return of the animal or animals so seized, or the value thereof if a return cannot be had ; together with his costs, at the rates allowed by law in an action brought before him to recover a chattel ; and, also, twice the sum as- sessed as his damages, if any. Thereupon a warrant must be issued by the justice to a constable, to the same effect as an execution issued, in an action to recover a chattel, upon a judgment in favor of the defendant, where the chattel has not been delivered to him ; and each provision of this chapter (chap- ter 19 of the Code of Civil Procedure), relating to a judgment and an execution in such a case, applies to a final order made, and a warrant issued there- upon, as prescribed in this section. (Id. § 3096. ) Demand of possession hy owner before trial. — At any time after the precept is issued, and before the commencement of the trial, the owner of any animal seized may file with the justice a written de- mand of the possession thereof Thereupon he is entitled to the possession, upon complying with the following terms : 1. He must pay to the justice, for the use of the petitioner, the costs of the proceedings, to the time of filing the demand, as prescribed in subdivision first of section 3092 of this act, and, also, the sums payable on account of each animal, whereof posses- sion , is so demanded, as prescribed in subdivision third of the same section ; which sums must be fixed by the justice, after hearing the allegations and proofs of the parties. Animals in Highways. 337 2. He must also pay to the justice a fee of one dollar for each animal whereof possession is so de- manded. 8. If the petitioner is an officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of the Code named, the claimant must also pay to the justice, for the peti- tioner's use, the sum specified therein on account of each animal whereof possession is so demanded. 4. The claimant must also prove, to the satisfac- tion of the justice, by affidavit or other competent evidence, that he is the owner of each animal where- of possession is so demanded. Each person who has appeared must have notice of, and may oppose, the claim. (Id. § 3097.) (See forms Nos. 86, 87.) The right to detain the cattle is not terminated until the owner has, by a payment to the justice of the several sums specified in the act, entitled himself to a return thereof. And until such payment is made, this right is not affected by a refusal upon the part of the holder to deliver the cattle, except upon condition that the owner shall pay a greater sum than the holder can lawfully demand. The duty to act is upon the owner ; and the refusal of the holder, although coupled with an unlawful condition, is a nonfeasance which does not make him a trespasser ah initio. (Leamtt v. Thompson, 52 N. Y. R. 62.) Demand of possession when animal set at large hy third person. — But where, in a case specified in the last section (§ 3097), the person filing a demand presents therewith to the justice sufficient proof, by affidavit or otherwise, that the running at large, herding, pasturing or trespassing, by reason where- of the animal or animals, of which he demands pos- 43 338 Highway Laws. session, were seized, was caused by the willful act intended to effect that object of a person other than the owner, and also makes the proof specified in subdivision fourth of that section, he is entitled to possession pursuant to his demand, upon paying to the petitioner, or to the justice, for his use, a reason- able sum, to be fixed by the justice, after hearing the allegations and proofs of the parties, as compen- sation for the care and keeping of the animal or animals whereof possession is so demanded, and without paying any other sum specified in the last section. (Id. §3098.) (See form No. 87.) Action hy owner where animal set at la/rge hy ihird person. — The owner of an animal, seized in consequence of a willful act, specified in the last section, may recover, in an action against the per- son who committed it, all damages sustained by him in consequence thereof, including the sum paid in order to recover possession of the animal, as pre- scribed in the last section (§ 3098) ; and, in addition thereto, the sum of twenty dollars for each animal seized. (Id. § 3099.) Action iy petitioner or officer against wrong-doer. — Where the possession of an animal has been de- livered, as prescribed in the last section but one, an action may also be maintained, by the petitioner in the special proceeding before the justice, against the person who committed the willful act, to recover, in addition to all other damages sustained by the plaintiff in consequence of the wiUful act, all sums to which the plaintiff would have been entitled out of the proceeds of the sale, as prescribed in section 3092, svpra, other than the compensation paid Akimals in Highways. 339 for the care and keeping of the animal. In the like case, if the petitioner is a private person, the officer, to whom a fine or penalty is to be paid for the bene- fit of the poor, as prescribed in section 2875 of the Code named, may maintain an action against the person who committed the willful act to recover the penalties to which the plaintiff" would have been entitled, out of the proceeds of the sale, as pre- scribed in that subdivision. Neither of the actions specified in this or the last section is affected by the pendency of, or the recovery of judgment in, either of the others. (Id. § 8100.) Demand of possession after final order before sale. — A person, entitled to demand the possession of an animal, as prescribed in section 3097 of this act, who did not appear upon the return of the pre- cept, or upon the trial, may file with the justice a written demand of the possession, at any time after the final order, and not less than three days before the time appointed for the sale ; and, thereupon, he is entitled to the possession upon complying with the following terms : 1. He must furnish, by affidavit or other compe- tent evidence, a sufficient excuse, to the satisfaction of the justice, for his failure to appear. 2. He must, in all respects, comply with the pro- visions of section 3097, supra; except that it is necessary for him to pay only one-half of the jus- tice's fee, as prescribed in subdivision second of that section ; and one-half of the fees payable to the petitioner for the seizure of each animal, as pre- scribed in subdivision third of section 3092 of this act. (Id. §8101.) Order on demand of possession — appeal there- 340 Highway Laws. from. — Where a demand for the return of the pos- Bession of an animal is filed, as prescribed in either of the last five sections, the justice must, at the re- quest of either party thereto, make and enter in his minutes an order determining the same. .An appeal from such an order may be taken to the county court by the person making the demand, or by either party to the special proceedings, at any time before the final order in the special proceedings is made ; and each person or party so entitled to ap- peal must be made a respondent upon an appeal taken by one of the others. The appeal must be taken in like manner as an appeal from a judgment of the justice in an action to recover a chattel ; and the proceedings thereupon are the same except as otherwise prescribed in the next section. (Id. § 3102.) Stay on appeal from order on demand of posses- sion. — An appeal from an order specified in the last section is not effectual for any purpose unless the appellant procures from the county judge an order directing a stay of proceedings upon the petition, and a stay of the execution of the order appealed from, and files it with the justice within the time allowed for the appeal. The order may be granted or refused in the discretion of the county judge, or granted upon such terms, as to security or otherwise, as he thinks proper ; and it may be vacated or modified either absolutely, or unless further secu- rity is given in his discretion. (Id. § 8103.) Appeal from final order. — Within ten days after a final order upon a petition is made, as prescribed in this title, an appeal therefrom may be taken by the petitioner or by the person answering in like manner as an appeal from a judgment of the justice Animals in Highways. 341 in an action to recover a sum of money, equal to the value of the animal or animals, and the proceedings thereupon are the same, except as otherwise pre- scribed in the next section. (Id. § 3104.) Appeal from final order hy claimant — stay of proceedings. — An appeal from a final order, taken, as prescribed in the last section, by the person an- swering, is not effectual for any purpose, unless the appellant files, with the notice of appeal, an order of the county judge, or, if he is absent from the county, of a justice of the Supreme Court, reciting that the appeal has been perfected, and that security has been given thereupon, as prescribed in this section, and directing a stay of proceedings upon the final order appealed from, and that the possession of the animal or animals seized be delivered to the appellant. The order can be made, only where an undertaking is given by the appellant, as required for the pur- pose of perfecting an appeal from a judgment, and staying the execution thereof ; and also an under- taking, in the same or another instrument, to the effect that, if the final order appealed from is affirmed, or if the appeal is dismissed, the appellant will pay all sums which the justice awards against him, upon the hearing, after the determination of the appeal, as prescribed in the next section, not ex- ceeding a sum specified therein ; which must be, at least, twice the amount of all the sums which might be deducted from the proceeds of the sale, as pre- scribed in section 3092, supra. The sum must be fixed, and the undertaking must be approved, by the judge who grants the order. Upon filing the order with the justice, the appellant is forthwith en- titled to the possession of the animal or animals seized. (Id. § 3105.) 342 Highway Laws. Proceedings on affirTnance of order. — If the final order appealed from is affirmed, upon an appeal taken by the person answering, the county court must appoint a time and place, at which the justice must fix the sums payable by the appellant, pursuant to his undertaking. The justice may adjourn the hearing to another place, and to another time, not exceeding three days after the time so appointed. The justice must fix the sums so payable, as if a warrant for the sale of the animals seized had been returned and the proceeds thereof paid to him by the constable as prescribed in section 3092, supra. The undertaking upon the appeal inures to the benefit of each officer to whom any sum is payable as prescribed in that section ; and with respect to any of those sums, the respondent is a trustee for the officer entitled thereto. (Id. § 3106.) Limitation of action to recover animal seized and for damages. — Where an animal is seized upon the ground that it was running at large or was being herded or pastured, or was trespassing contrary to the provisions of this title, and the officer or other person making the seizure immediately files his pe- tition and diligently prosecutes the same as pre- scribed in this title, an action to recover the animal so seized, or to recover damages for the seizure or for any act subsequent thereto, must be commenced within one year after the cause of the action accrues. (Id. § 3107.) A similar limitation in the former statute was held to relate to proceedings in taking up ani- mals running at large and not to the penalties given by the statute, such penalties being recoverable after the year has expired. {Cotton v. Maurer, 5 T. & C. 575.) Animals in Highways. 343 Actions for seizure which may and which may not he maintained. — A pereon to whom the precept was directed by his name and who was personally served therewith, or a person who has appeared and answered in the special proceeding, or demanded the return, of any animal seized, cannot maintain an action against the officer or other person seizing an animal or a person acting by his command or in his aid, in a case specified in the last section. But ex- cept as specified in this section, the owner of an animal seized or detained under color of any provi- sion of this title may maintain an action to recover the animal or its value, or damages for the seizure or detention or for any unlawful act subsequent thereto if, in fact, the animal was not, at the time of the seizure, running at large or being herded or pas- tured or trespassing, as the case may be, as specified in the foregoing provisions of this title. (Id. § 3108.) Animals of different owners trespassing — appor- tionment of da/mages. — For the purpose of deter- mining the damages sustained by the petitioner where two or more animals are found simultaneously trespassing upon real property, owned or occupied by Mm, all the damage done by all the animals seized is to be regarded as done by them jointly ; and the petitioner's remedy therefor is entire, and must be enforced against all the animals, and the proceeds of the sale thereof. Where diflferent per- sons, who are known, own different animals seized, the precept must be directed to all of them by their names. If one or more of the owners are known, and the others are unknown, and cannot be ascer- tained with reasonable diligence, the precept must be directed to each known owner by his name, and also generally to all persons having an interest in 344 Highway Laws. those animals, the owners of which are unknown. In a case specified in this section, a demand of the possession of an animal seized cannot be made, as prescribed in section 3097 or 3101, supra, unless it is made with respect to all the animals seized, and by persons entitled to the possession of all of them. But a separate demand may be made, as prescribed in section 3098, supra, by each owner of one or more animals seized ; in which case, if possession is delivered to him, as prescribed in that section, the petitioner's remedy for his damages is the same, with respect to the animal or animals, of which pos- session is not so delivered, and against the proceeds of the sale thereof, as if those, whereof possession is so delivered, had not been trespassing upon the property. (Id. § 3109.) Animals of different owners straying hut not trespassing. — Where the petitioner does not allege that the animals seized were trespassing upon real property owned or occupied by him, and different persons own different animals seized, a separate special proceeding may be instituted, as prescribed in this title, against each owner, or against any two or more owners, with respect to the animals owned by him or them . Or the proceedings may be taken against all the owners jointly ; in which case, each person to whom the precept is directed by his name, and each person having an interest in an animal seized, has the same right to demand the possession of the animal owned by him, and the same right to answer separately, as if the special proceeding was against him separately ; and the final order may be in favor of one or more of the persons so answering with respect to the animal or animals owned by him or them and for his or their costs, and against the Animals ik Highways. 345 remainder of the persons answering or to whom the precept was directed, or for the sale of the remainder of the animals in like manner as if the former per- sons had not answered or had not been named in the precept. But the person first making a demand of the possession of any animal seized must pay all the costs to the time of the demand ; and a person sub- sequently making a demand is excused from the payment of any costs except those which have ac- crued since the former demand. (Id. § 3110.) Surplus where there are different owners. — Where proceedings are taken jointly against different per- sons who own different animals seized as prescribed in either of the last two sections, the surplus remain- ing in the justice's hands must be distributed be- tween them in proportion to the value of the animals owned by each, to be determined by the justice. Any owner may claim separately his proportion of the surplus ; and sections 3093 and 3094, supra, apply to a claim made and to the disposition of the surplus arising as prescribed in this section. (Id. § 3111.) Action by one having right, supersedes right of action hy others. — Where two or more persons, or an officer and a private person are authorized by this title to bring an action or to seize an animal and take the proceedings prescribed in this title for the disposition thereof, the commencement of an action, or the seizure of the animal by either of them super- sedes the right of any of the others to bring such an action or to make such a seizure with respect to the animal seized, or in question in the action. But the justice may, in his discretion, allow an officer or other person, who is interested in the recovery or in the application of the proceeds of the sale to appear 44 346 Highway Laws. in the action or special proceeding, for the purpose of protecting his interest, and to take such part in the proceedings therein, as the justice thinkp proper. (Id. § 3112.) Officer entitled to penalty, may prosecute where private person seizing, fails to. — Where a seizure is made by a private person, as prescribed in this title, and the possession of an animal seized is aban- doned by him, without filing a petition ; or where an action, brought by a private person, as prescribed in this title, is settled or discontinued by the plaintiff ; the officer to whom a penalty is payable, as pre- scribed in section 3083, supra, or in subdivision fourth of section 3092, supra, may, unless he has assented to the abandonment, settlement, or discon- tinuance, maintain an action against the owner of the animal in question, to recover the penalty so payable to him ; and, upon proof of the facts, which would have entitled the plaintiff in the former action, or the petitioner in the special proceeding, to re- cover, he is entitled to judgment accordingly. (Id. § 3113.) One having special property in animal, deemed owner. — When a person is, at the time of the seizure, entitled to the possession of an animal, as against the general owner thereof, by virtue of a special prop- erty therein, he is deemed, for all the purposes of this title, the owner thereof. (Id. § 3114.) Agent may act for principal. — The duly author- ized agent of the owner or person entitled to the possession of an animal, as specified in the last sec- tion, may, in his own name, answer, make any de- Animals in Highways. 347 mand, or take any other proceeding, wMcli the owner or person so entitled may take, as prescribed in this title. (Id. § 3115.) Menageries. — No owner or servant of any owner of any wild or rare animals, used for exhibition in any menagerie or show, shall suffer the same upon any highway, road, or street, without sending, at least half a mUe in advance, a person of mature age to notify and warn persons with horses or other domestic animals liable to be frightened by such wild animals, of their approach ; and any violation shall be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding ninety days, or both. (Laws of 1862, ch. 112.) 348 Highway Laws. CHAPTER XVI. HIGHWAYS BY DEDICATIOK. "Dedication" defined. 1 How accepted. ^ and against whom. How revoked. Efow made. I Dedication defined. — Dedication is an appropria- tion of land to some public use, made by the owner of the fee, and accepted for such use by or on behalf of the public. A common public road, originating in such an appropriation and acceptance, is a high- way by dedication. The interest which the public thus acquires is merely an easement, or right of passage over the soil ; the original owner stUl retain- ing the fee together with all rights of property not inconsistent with the public use. (AngeU on High- ways, 135 ; Hunter v. Trustees, etc., 6 Hill, 407 ; Kelsey v. King, 38 How. 39.) In the case of an ordinary highway, all which the public acquire by a dedication is the right of passing and repassing over the surface of the soil, and such privileges as are incident thereto. All else remains in the original owner or his assigns, subject only to such easement. Every right of use and ownership, and every right of action for an interference with either, which is not inconsistent with the free and common use of the highway, still belongs to the owner of the soU. If the highway is closed or the public rights are relinquished, the land at once revests in full and entire dominion. (Per Emott, J., in People v. Kerr, 27 N. Y. R. 196. See cases cited in Kelsey v. King, 33 How. 39.) By and against whom. — A dedication of lands to public uses can only be made by the owner of the Highways by Dedication. 349 fee. {Post V. Pearsall, 20 Wend. Ill ; Ward y. Davis, 3 Sandf. 602.) Dedication may be presumed against a married woman. ( Ward v. Davis, supra.) Whether it can be made by or presumed against a person laboring under any of the common-law dis- abilities, such as idiocy, infancy, etc., does not ap- pear to have been directly decided. But in Deven- peck V. Lamiert (44 Barb. 699), it was thought that, under the statute declaring that "aU roads, not recorded, which have been, or shall have been, used as public highways for twenty years or more, shall be deemed public highways" (1 R. S. 621, § 100)r the intention of the owner of the land is not mate- rial, and that such a user of lands for that period makes it a public highway, under the statute, though the owner be a lunatic, an infant or married woman, and has no knowledge thereof during the entire time. How made. — No particular formality is required to constitute a dedication. It may be made either with or without writing, by any act which will indi- cate the intention of the owner to dedicate. Thus, the intention may appear by the owner's throwing open his land to the public travel ; or platting it and selling lots bounded by streets designated in the plat ; or by an acquiescence in the use of the land for a highway ; or by a declared assent to such use. It is for the jury to decide, from the evidence, whether there is sufficient indication of intention on the part of the owner to dedicate his land. {Qould y. Glass, 19 Barb.195; OooTc v. Harris, 61 N.Y.R. 448.) The owner's acts and declaj:ations must be delib- erate, unequivocal, and decisive, manifesting a posi- tive and unmistakable intention to permanently abandon his property to the specific public use ; or 350 Highway Laws. else there must have been a user of such length of time by the public as will raise the presumption of acquiescence on the part of such owner in the free use and enjoyment of the way as a public road ; and, in the absence of other evidence of a grant or dedication, such user must have been for the period of twenty years. {McMannis v. Butler, 51 Barb. 436 ; 3 Kent, 451 ; Oould v. Glass, 19 Barb. 195.) A way may be dedicated as a public highway by an immediate act of dedication, and it will become a highway in fact and in law whenever it is laid out as such by the constituted authorities who are charged with the duty of laying out highways. {Trustees of Jordan v. Otis, 37 Barb. 61.) But where a road is opened by an individual, and is used by the public for less than twenty years, it is not a highway within the meaning of the highway act, unless it has been laid out by the commissioners. (Id.) The law does not require any specific time to estab- lish a dedication, and there may be such acts and declarations as would render a short time suflBcient. {Carpenter v. Owynn, 35 Barb. 395 ; Chapman v. Swan, 65 id. 210.) But where there is no evi- dence than lapse of time, twenty years must inter- vene before the presumption becomes conclusive. (Gould V. Glass, 19 Barb. 195.) In Golden v. Thurbur (2 Johns. 424), twelve years' use was heldi prima facie evidence that the road had been properly laid out. In Denning v. Roome (6 Wend. 651), wjiere a street in the city of New York was widened from forty to sixty feet, and accordingly used by the public for nineteen years, although no legal measures had been taken to divest the title of the owner, it was held that the non-claim of the Owner for such length of time, connected with his acts such as the payment of an assessment for paving the Highways by Dedication. 351 street to the full widtli, and the recognition of the appropriation of the twenty feet, were sufficient to establish the right of the public to the use of the street to the full width of sixty feet. A familiar way of evincing an intention to dedicate is by the owner making a plat or inap of his lands with streets laid down between, and selling the lots according to the plat or map. But in order to make this an evidence of intent to dedicate, there must be a sale of the lots with reference to the streets. {Bissell V. N. T. Cent. B. R. Co., 23 N. Y. K. 61 ; Matter of Twenty-ninth Street, 1 Hill, 189 ; Wyman v. Mayor, 11 Wend. 486.) When the only evidence of dedica- tion is an old map with the premises in question marked out thereon as a street, and there was no evidence that the maker of the map ever owned the premises or had authority to dedicate them, it was held not sufficient to show a dedication. {McMannis V. Butler, 49 Barb. 176.) Where the owner of land has opened a passage thereon he may negative any presumption of dedica- tion by placing at the entrance thereof any obstacle to public passage, or a notice that it is not for public use. {Carpenter v. Owynn, 35 Barb. 395.) How accepted. — A dedication, to be effectual so far as the public is concerned, must be accepted by the public. {Holdane v. Trustees, 21 IS". Y. E. 478; Fonda v. Borst, 3 Keyes, 48 ; Wohler v. Buffalo, etc., R. R. Go., 46 N. Y. R. 686 ; Niagara F. B. Co. V. BacTiman, 66 id. 261.) Such acceptance maybe indicated by a user of sufficient length of time, or by a laying out of the road by the commis- sioners under the highway act. In order to make the town chargeable with the repairs of a way dedi*" cated to the public, it must either have been laid out 352 Highway Laws. by tlie authorities or must have been used as a highway for twenty years. {Oswgo v. Oswego Canal (7o., 6 N. Y. R. 257 ; Bissell v. N. Y. Cent R. R. Co., 26 Barb. 630 ; Trustees of Jordan v. Otis, 37 id. 50 ; see Requa v. City of Rochester, 45 N. Y. R. 129. ) But when individuals have acquired right to a passage, as when they have purchased lots with reference to a plot or map in whith the owner from whom they purchased has laid out streets adjoining the lota purchased, such individuals have a right to such passage vsdthout regard to an acceptance by the public. Thus where the proprietors of lands in a village laid out the same by a plan, upon which an alley was laid down, and house-lots were conveyed bounded on the alley, — the court said : "As between the original proprietors and those to whom they conveyed, this act of the proprietors secured a right of way. But the alley thus designated, and in respect to which the purchasers had acquired an indefeasible right of way, did not thereby become a public highway. The dedication must be accepted. The highway must be laid out. Until that is done, the alley would remain the property of the original proprietors, subject to the right of way in those who had taken the deeds of lots bounded upon the alley." {Clements v. West Troy, 16 Barb. 251. See, also, Child v. Chappel, 9 N. Y. R. 257.) How revoked. — The owner of lands may revoke a dedication thereof at any time before it has been rendered complete by the acceptance of the public {Holdaney. Trustees, 21 N.Y. R. 478), except where individuals have acquired a vested right under the dedication, as when they have purchased lots bounded by land laid out as streets, but which have Highways by Dedicatioit. 353 not been accepted. (See Taylor v. Hepper, 5 N. Y. Sup. 178.) Where an owner has dedicated lands for a street, and conveyed by deed recognizing the dedication, his grantee cannot avoid such dedica- tion by fencing. {Brydges v. Wychoff, 67 N. Y. R. 130.) 45 354 Highway Laws. CHAPTER XVn. THE FEE IN HIGHWAYS. In general. I Boundaries by highways. Presumption from adjacent owner- ship. I In general. — A highway is nothing but an ease- ment, comprehending merely the right of all the in- dividuals in the community to pass and repass, with the incidental right of the public to do all acts neces- sary to keep it in repair. This easement does not comprehend any interest in the soil nor give the public the legal possession of it. The owner of the land over which a highway passes retains the fee and all rights of property not incompatible with the public enjoyment, and whenever the highway is abandoned, recovers his original unincumbered do- minion. (Roll. Abr. 392 ; Jackson v. Hathaway, 15 Johns. 447 ; Babcock v. Lamh, 1 Cow. 238 ; Car- penter V. Oswego, etc., M. JR. Co., 24 N. Y. R. 655.) The public have no need of the highway but to pass and repass. If it is used for any other pur- pose, not justified by law, the owners of the adjoin- ing lands are remitted to the same rights they possessed before the highway was made. They can protect themselves against such annoyance, by treat- ing the intruders as trespassers. {Adams v. Rivers, 11 Barb. 890.) The use of the highway by any per- son, for any purpose other than to pass and repass, is a trespass upon the person who owns the fee. (Id.; Bahcock v. Lamh, 1 Cow. 238 ; Jackson v. Hathaway, 15 Johns. 447.) The owner may sell the land subject to the easement ; and a deed of a farm The Fee in Highways. 355 of land -'reserving only the highway through the said farm," conveys the land subject only to the easement. ( WJiitbeck v. CooJc, 15 Johns. 483 ; Fair- field V. Williams, 4 Mass. 427.) The owner of the fee may sink a drain or water-course below the sur- face of his land covered with a way, if thereby he do not deprive the public of its easement. {Perley V. Chandler, 6 Mass. 454.) The herbage on the high- way belongs exclusively to the owner of the fee, and he may maintain trespass against one who puts his cattle in the highway to graze. {Dovaston v. Payne, 2 H. Bl. 527; Roladay v. Marsh, 3 Wend. 142; see Cole v. Drew, 44 Vt. 49.) The owner still retains his exclusive right in all mines, quarries, springs of water, timber and earth not incompatible with the public right of way. {JacTcson v. Hathaway, 15 Johns. 447; Lancaster v. Richardson, 4 Lans. 136.) Therefore, the owner of the fee may maintain trespass against one who builds upon the highway {Qortelyou v. Van Brundt, 2 Johns. 357); or who digs up and removes the soil {Oidney v. Earl, 12 Wend. 98 ; Willoughhy v. Jenks,2(i Wend. 96) ; or cuts down trees or timber growing thereon; and though an overseer niay, as agent of the town, cut such trees other than those left for shade and orna- ment, to be used in the repair of the way, or in order to improve it, yet if he cut them for his own use he is a trespasser. {Bahcock v. Lamb, 1 Cow. 238. See Bridge Go. v. Bachman, 4 Lans. 523 ; 66 N". Y. R. 261 ; Phifer v. Cox, 21 Ohio St. 248.) So the owner may maintain trespass against one who comes upon the sidewalk and there remains using abusive language toward him and refusing to depart. {Adams v. Rimrs, 11 Barb. 890.) In this case the court said : " The defendant committed a 356 HiGHWAT Laws. trespass while standing on the sidewalk by the plaintiffs lot where he lived and using toward him abusive language. While so engaged, he was not using the highway for the purpose for which it was designed, .but was a trespasser. He stood there but about five minutes. It was not shown that he stop- ped on the sidewalk for a justifiable cause ; on the contrary it was rendered probable that it was for a base and wicked purpose. It was therefore a tres- pass. Suppose a strolling musician stops in front of a gentleman's house and plays a tune or sings an obscene song under his window, can there be a doubt that he is liable in trespass ? The tendency of the act is to disturb the peace, to draw together a crowd and to obstruct the street. It would be no justificar tion that the act was done in a public street." In an action for an assault which took place while defendant was removing hay cut by plaintiflF on the highway, it was held that defendant was entitled to show as a defense that the title to the fee in the high- way was in him, and that plaintiff was at the time en- deavoring to prevent the removal of the hay. (Bliss V. Johnson, 73 N. Y. R. 529.) . The owner may also maintain ejectment against any person appropriating the highway to private use or occupation. (Ooodtitle v. Alker, 1 Burr. 183 ; Perley v. Ohandler, 6 Mass. 454.) But a hotel pro- prietor cannot, by license, confer on a coach proprie- tor exclusive right to occupy the street, before the hotel. {Deiz v. Larrib, 6 Robt. 537.) The fee in plank and turnpike roads remains also in the owner of the land the same as highways. HooTcer V. JJtica, etc.. Turnpike Co., 12 "Wend. 371, and cases.) The Fee in Highways. 367 I But where land was conveyed to a turnpike com- pany in fee for the uses and purposes of a road, held, that the surrender of the land by the turnpike company to a municipality within which the land was situated, and its use as a public street, and the dissolution of the corporation did not cause such land to revert to the original grantor. {Tiff6 v. City of Buffalo, 82 K Y. R. 204.) A turnpike company, taking a deed from the com- missioners, acquires only an easement. {Northern Lumber Go. v. Smith, 15 Barb. 365.) The rule that the public have nothing but an ease- ment of passage in highways seems to be somewhat modified so far as relates to streets in cities. With regard to them it has been held that the public have the additional right to construct sewers and to lay water and gas pipes. {Milhau v. Sharp, 16 Barb. 210; People v. Kerr, 27 N. Y. R. 202.) But a con- trary doctrine was advocated in Kelsey v. King (33 How. 39). The owner of the fee of a highway may also remove and sell the soil if it be done without injury to the highway or to the ingress and egress of adjoining owners. ( Williams v. Kenney, 14 Barb. 629.) Presumption from adjacent ownership. — Where the lands on the opposite sides of a highway belong to the same person, the presumption is that he owns the fee of the entire highway ; where it belongs to different persons, the presumption is that each owns to the center of the highway. ( Willoughby v. JenTcs, 20 Wend. 96; Bissell v. New York Central R. R. Co., 23 N. Y. R. 61.) But this presumption may be rebutted by evidence, for one man may own the fee and another the adjoining lands. {Bissell v. New 358 HiGHWAT Laws. YcyrTc Central R. R. Co., 23 N. Y. R. 61 ; Wager v. Troy Union R. R. Co., 25 id. 529.) Where one claims lands as being part of a street adjoining the premises described in his deed, he can- not also insist that the land is not subject to a servi- tude for such street. ( Wood v. City of Williams- lurgJi, 46 Barb. 601.) Where the adjoining owner on one side inclosed a portion of the highway which he cultivated, so in- closed, for twenty-eight years, it was held that the line of separation between the opposite owners con- tinued to be the center of the original highway. ( Watrous v. Southworth, 5 Conn. 305.) Boundaries by highways. — "The established in- ference of law, " says Chancellor Kent, "is that a conveyance of land bounded on a public highway carries with it the fee to the center of the road as part and parcel of the grant. The idea of an inten- tion in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be pre- sumed. It would be contrary to universal practice ; and it was said in Peck v. Bmith, that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference ; and it may be considered as the general rule, that a grant of land bounded upon a highway or river carries the fee in the highway or river to the center of it, pro- vided the grantor at the time owned to the center, and there be no words or specific description to show a contrary intent. But it is competent for the owner of a farm or lot having one or more of its sides on a The Fee in Highways. 359 public highway to bound it by express terms on the side or edge of the highway, so as to rebut the pre- sumption of law, and thereby reserve to himself his latent fee in the highway. He may convey the ad- joining land without the soil under the highway, or the soil under the highway without the adjoining land. If the soil under the highway pass by a deed of the adjoining land, it passes as parcel of the land and not as appurtenant." (3 Kent's Com. 433.) Whether a conveyance of adjoining land carries the SOU of the highway is purely a question of inten- tion, to be ascertained in each particular case from the description contained in the deed, explained and illustrated by all the other parts of the conveyance, and by the localities and subject-matter to which it relates. ( Webber v. Eastern R. R. Co., 2 Mete. 151 ; MoU V. Mott, 68 N. T. R. 246.) A grant of land described as bounded generally "by," or "on," or "along" a highway, or "run- ning to " a highway, is evidence of an intention to convey to the center of the highway. {Jackson v. Hathaway, 15 Johns. 447 ; Child v. Starr, 4 Hill, 369 ; Hammond v. McLachlan, 1 Sandf. 323 ; Her- ring V. Fisher, id. 344.) On the other hand, if the description is " by the side of," or " by the line of," or " by the margin of," or expressions equivalent thereto, the soil of the highway does not pass. (Id. ; Jones V. Cowman, 2 Sandf. 234 ; Augustine v. Britt. 15 Hun, 395 ; affirmed, 80 N. T. R. 647.) Where the fee of the highway does not belong to the grantee, of course no words of description will carry to the center thereof ; and a deed of lands de- scribed as bounded on a highway is satisfied by a title extendin^'to the side of the road, where the title to the road-bed is not in the grantor. (Dunham 360 Highway Laws. V. Williams, 37 N. Y. R. 251.) So where a deed con- veying a plat of ground, lying on the southerly side of Stewart street, described its boundaries as run- ning along a certain road "to Stewart street, and thence along the southerly side of Stewart street," the deed was held to convey only to the side of the street. {Anderson v. James, 4 Rob. 35.) A line not described as running on a street, but which in fact does, by courses and distance, run along the side of a street, is to be held to convey the land to the center of the street, as if the line were described, in words, as running along the street. The road or street, though not mentioned, is in the nature of a monument, which controls the courses and distance. {Sizer v. Deverettx, 16 Barb. 160.) So a conveyance of land, with reference to a plat or a map thereof, on which map such land is bounded by a street, conveys to the center of the street, al- though it was never adopted by the public authori- ties. {Bissell V. N. T. Central B. B. Co., 23 N.Y. R. 61 ; Hammond v. McLacMan, 1 Sandf. 323.) The owner of a lot conveyed with reference to such a map acquires an easement in the adjoining street or public square, which will entitle him to an in- junction restraining the building of a railroad in such street or square without compensation. {Pratt V. Bufalo City B. B. Co., 19 Hun, 30.) There is a class of cases originating in the city of New York on appeals from assessments of damages for land appropriated as streets, in which it has been held that the owner of city land, which is platted into lots and intersected by streets, where he sells the lots, bounding them on the streets, does not thereby part with the fee of the streets. (Mercer street, 4 Cow. 542 ; Seventeenth street, 1 Wend. 262; The Fee in Highways. 361 Lewis street, 2 id. 472; Livingston v. Mayor, etc., 8 id. 85 ; Wyman v. Mayor, etc., 11 id. 487 ; Fur- man street, Yl id. 650 ; Twenty-ninth street, 1 Hill, 189.) But in Hammond v. McLachlan (1 Sandf.323, 342), the court entirely repudiated this doctrine, and refused to recognize any distinction between grants of lands bounded by highways in the city and in the country. (See, also, Bissell v. iV. T. Central B. R. Co.,23]Sr. Y. R61.) Where lands are bounded by a private lane run- ning through the lands of the grantor, and not con- nected with or necessary for the use of the bounded lands, the rules relating to boundaries by highways would probably not apply. (See Mott v. Mott, 68 K T. E. 246.) 46 362 Highway Laws. CHAPTER XVIII. WATS AND PRIVATE BOADS. Definition. Ways by grant. Ways by prescription. Ways by necessity. Uignt of way, how lost or aban- doned. Ways or private roads by statute. Jury to be called. Copy of application and notice to be delivered to applicant. Service of notice and application. List of jurors. Certain number may be strucic from list. Place of meeting. Jury to be sworn. Commissioners to swear jury. Proceedings of jury. Value of road discontinued. Proceedings after verdict. Proceedings may be adjourned. Damages to be paid before opening road. Description of road abandoned. Roads along division lines. Appeals. For what purpose road to be used. Width of road. Extra viam. Definition. — A right of way is the privilege which one person, or a particular description of persons, ijiay have of going over another man's ground. It is a right pertaining to the realty — a right which one has in another's land, termed in law an incor- poreal hereditament. (Per Nelson, J., in Oidnep v. Earl, 12 Wend. 98.) Since a right of way is only an easement it follows that the person or persons having such right have no interest in the soil of the way, but that, as in case of a highway, every right and privilege remains in the owner of the land, which is not essential to the enjoyment of the way. (Id.) A right of way ex m termini imports a right ^ of passing in a particular line, and not a right to vary it at pleasure. (3 Kent's Coram. 419.) A right of way may arise, 1. By grant ; 2. By pre- scription ; 3. From necessity ; 4. By proceedings under the statute. Ways hy grant. — A right of way may arise by grant, as where the owner of a piece of land grants Wats and Private Roads. 363 to another the liberty of passing over Ms land in a particular direction. This right can be created by a reservation in a deed of land. A can purchase of B by deed a right to pass over his farm or through a particular field, or to go to a spring or creek, etc. The deed can be so limited in its terms as that A may have the right of passing or repassing when he pleases, or his family, or on horseback, or with car- riages ; or it may be limited to certain purposes, as to get water, go to mill, or to church. ( White v. Crawford, 10 Mass. 183.) A reservation in a deed will establish a right of way. {Smiles v. Hasting, 24 Barb. 44.) It is a principle of law that nothing passes as inci- dent to the grant of an easement but what is requi- site to the enjoyment of the privilege. {Lyman v. Arnold, 5 Mason, 195.) In giving his opinion in this case, Justice Story says, " In the construction of grants, that is doubt- less to be adopted which gives entire and liberal effect to the intention of the parties. When the ob- ject is distinctly seen, the ordinary means by which it is to be attained are presumed to be within the purview of the parties. If the use of a thing is granted, whatever is necessary for the enjoyment of such use, or for the. attainment of such use, is, by implication, granted also. But if it be not necessary, but may be a convenience only, it is not granted. So, too, grants are to be construed according to the subject-matter, and the natural presumptions arising from their terms, and thus to render them expositions of rational intentions. The mere fact that a person having a grant of a privilege, servitude, or easement, in the land of another, bestows his labor upon the sail, or separates it, and gives it value, thereby con- stitutes no suiflcient ground to infer a change of 364 Highway Laws. property in the soil ; for such labor is bestowed in order to enjoy such privilege, servitude or easement." The grantee of a right of way to one piece of land cannot make use of it to pass into another and adjacent piece. {Rexford v. Marquis, 7 Lans. 249.) A grant of an estate with " ways heretofore used," or "ways in use," or the like, passes all existing ways in actual use at the time, whether the same are used by the grantor over other parts of his own es- tate, and so are not properly appurtenant to such granted parcel, or are appurtenant to the same by having been in use over the land of another. But a mere reference in the deed to an intended way, with- out an express grant, will not pass such way. (Wash, on Eas. 225.) Where a right of way is granted without any des- ignation of the place in the deed, it becomes located by usage for a length of time ; and, being so located, it cannot be afterward changed by the grantor. But if changed, the grantee, by usage of the newly desig- nated way for a length of time, will be deemed to have acquiesced in the change. ( Wynkoop v. Burger, 12 Johns. 222.) "Where the defendant had a right of way over plaintiff's land, and the plaintiff fenced up the old one which had been used for many years, and opened a new one which defendant thereafter used, and less than twenty years after, the plaintiff forbade the defendant from passing, and took down a bridge which formed part of the new way, it was held, that, the change having been made by the plaintiff, the defendant's prescription acquired as to the old track became good as to the new one; and that he was not bound to pass by the old way which would require breaking inclosures. {HamiUon v. White, 5 N. Y. R. 9.) The Fee in Highways. 365 The grantee of a private way which has become founderous and impassable cannot, without being a trespasser, go on the adjoining close and thus pass around the obstruction. The rule is the same where the owner of the close through which the private way passes caused the obstruction. It seems that the only remedy for the owner of the way is to re- move the obstruction, and to prosecute for damages. There is no distinction with respect to the right of passing extra viam, between a private way by grant, and a private way by necessity, after the latter has once been selected or assigned. ( Williams v. Saffordt 7 Barb. 309 ; Bakeman v. Talbot, 31 N. Y. R. 372.) The grantee of a private way for his own accom- modation must keep it in repair. {WynJeoop v. Burger, 12 Johns. 222 ; Bakeman v. Talbot, 31 IS. Y. R. 372.) And the owner of the right of way, whether by grant or prescription, has the right to repair it and to remove all obstacles to its enjoyment. {McMillan v. Gronin, 75 IST. Y. R. 474.) The grantee of an undefined right of way is only en- titled to so much as will satisfy his necessities at the tjme the easement was granted. {Atkins v. Board- man, 2 Mete. 457 ; Spencer \. Weaver, 20 Hun, 450.) Ways by prescription. — Aright of way may be acquired by prescription. The nature of this claim is, that a person or certain persons have so long been accustomed to pass over the land of another, that the law will 'presume that there was originally a grant. An uninterrupted enjoyment of a way for twenty years, without evidence that it had been used by leave, favor or mistake, is sufficient to leave to the jury to presume a grant. It must be an uninter- rupted use for twenty successive years. {Miller v. Oarlock, 8 Barb. 153.) To be conclusive evidence of 366 Highway Laws. a right, the use must have been continuous, uninter- rupted and exclusive ; that is, under a claim of right with a knowledge and acquiescence of the , owner. (Id.) The enjoyment is uninterrupted when it con- tinues from ancestor to heir, or from seller to buyer. {Corning v. Gould, 16 Wend. 534.) Actual knowledge of the owner of the servient tenement need not be shown if the use has been for the requisite time open, notorious, visible, uninter- rupted and undisputed under claim of right adverse to the owner. ( Ward v. Warren, 82 IS. Y. R. 265.) Knowledge of an agent in charge of the premises of such use is attributable to the owner. (Id.) The enjoyment of a way for more than twenty years, by license of the owner, confers no right by prescription. Boyce v. Brown, 7 Barb. 80.) To establish aright of way by user or prescription, the user must be confined to one certain tract. {Holmes v. Seeley, 19 Wend. 507.) Ways hy necessity. — If a man seUs land to another which is wholly surrounded by his own land, in this case the purchaser is entitled to a right of way over the land of the vendor, to pass and repass to his own premises. This is founded on the principle of law, that whatever is necessary to the enjoyment of the grant shall pass as incident to the grant ; and with- out a passage to the land the grant would be useless. {Holmes v. Seeley, 19 Wend. 507.) So if the land sold be not whoUy surrounded by the land of the grantor, but partly by lands of a stranger, a way is presumed ; for the grantee may not go over the stranger's land. {Smyles v. Hast- ings, 22 N. Y. R. 217.) The grantor may, in the first instance, designate the way, but if he neglect to do so, the grantee may Ways and Peivate Roads. 367 choose for himself ; but he cannot ciaim the right to several ways, for the right cannot be carried beyond the necessity. {Holmes v. Seeley, 19 Wend. 507.) A right of way from necessity is to be construed strictly, and this right will cease with the necessity for it ; as when the owner acquires the power of passing directly over his own land. It never exists where a man can get to his property through his own land. That the way through his own land is too steep or too narrow does not alter the case. It is only where there is no way through his own land that the right of way over that of another can exist. {Dodd V. Burchell, 1 H. & Colt. 122.) The right of way of necessity over the lands of the grantor, in a conveyance in favor of the grantee, and those subsequently claiming the dominant tene- ment under him, is not a perpetual right of way; but it continues only so long as the necessity exists. If the grantee obtains another convenient way, the way of necessity ceases. Not so, when a person has a right of way by prescription or express grant. (iV. Y. Life Ins. aihd Trust Co. v. Milnor, 1 Barb. Ch. 354.) If a man have several distinct parcels of inclosed land, and he sell all but one surrounded by the others, and to which he has no way or passage except over one of the lots sold, he is entitled to a right of way against his own deed, even where no right of way is reserved. (3 Kent's Com. 421.) A vendor cannot, without a reservation in his grant, impose a burden of a right of way upon property sold by him in favor of that retained, unless the ease- ment is apparent and strictly necessary to the enjoy- ment of the property retained. (Outerbridge v. Phelps, 68 How. Pr. 77.) 368 Highway Laws. BigM of way, how lost or abandoned. — A right of way acquired by deed can never be lost by non- user. {Smyles v. Hastings, 24 Barb. 44; 22 N. Y. R. 224 ; Wiggins v. McLeary, 49 id. 346.) But a right of way acquired by prescription may be lost by a non-user for twenty years. (Id.) The non-user to work an abandonment must have been continuous for twenty years. {Corning v. Oould, 16 Wend. 531. See Grain v. Fox, 16 Barb. 184.) But assent to a permanent obstruction may extinguish the right of way. {GartwrigM v. Maplesden, 53 N. Y. R. 622.) A right of way by grant cannot be lost by mere non-user. Nor v?iU loose verbal declarations operate to extinguish it. {Longendyck v. Anderson, 59 How. Pr. 1.) Ways or private roads by statute. — An applica- tion for a private road shall be made in writing, specifying its width and location, courses and dis- tances, and the names of the owners and occupants of the land through which the road is proposed to be laid out. (Laws of 1863, ch. 174, § 1.) The application is to be made to the commission- ers of highways. And it wUl be sufficient, if it states the width, location, courses and distances of the road, and the other matters specified by the sec- tion, in general terms, without more precision than is necessary to enable the owners of land to know what part of their property is intended to be taken, and to enable the jury to determine intelligently upon the necessity of the road, and assess the dam- ages. {People V. Taylor, 34 Barb. 481.) (See form No. 88.) The consent of the persons over whose lands the proposed road is to be laid must be obtained. (Demp- sey V. Kix^, 62 Barb. 311.) Wats and Private Roads. 369 Jury to te called. — The commissioner or commis- sioners, to whom such application shall be made, shall thereupon appoint as early a day as the con- venience of the parties interested will allow, when, at his office, a jury will be selected for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof. (Laws of 1853, ch. 174, § 2.) Copy of application and notice to he delivered to applicant. — Such commissioner or commissioners shall thereupon deliver to the applicant a copy of such application, to which shall be added a notice of the time and place appointed for the selection of such jury, addressed to the owners and occupants of such land. (Laws of 1853, ch. 174, § 3.) (See form No. 89.) Service of notice and application. — The applicant on receiving such copy and notice shall, on the same day or the next day thereafter, cause such copy and notice to be served upon the persons to whom it is addressed, by delivering to each of them who resides in the same town a copy thereof, or, in case of his absence, by leaving the same at his dwelling-house, and, upon such as reside elsewhere, by depositing in the post-office a copy thereof to each, addressed to them respectively at their places of residence, and paying the postage thereon, or, in case of infant owners, by like services upon their parent or guard- ian. (Id., § 4.) One entitled to the notice of the meeting of the jury waives the omission of it by appearing before the jury and contesting. {MohawTc, etc., v. ArtcTier^ 6 Paige, 83.) 47 370 Hi&HWAT Laws. List of jurors. — At sach time and place, on due proof of the aervice of sucli notice, such commis- sioner, or, in a town where there are more than one, either of them, shall present a list of the names of eighteen persons, residents of said town, who are freeholders, and in no wise of kin to such applicant, owner or occupant, or either of them, and not inter- ested in such lands. (Laws of 1853, ch. 174, § 5, as amended Laws 1860, ch. 468.) The remainder of the above section as amended, providing for an appeal, is given hereafter. Parties who agree upon the jurors cannot upon appeal object that it does not appear that such jurors were freeholders. {People v. Taylor, 34 Barb. 481.) Certain nurriber may he struck from list. — The owners or occupants of such lands may strike oflF from such list any number of names not exceeding six ; the applicant may, in like manner, strike off six names or less, and the persons whose names are not stricken off, or, if more than six names are left upon the list, then the six persons whose names stand first upon the list shall be the jury for the purpose afore- said. (Laws of 1853, ch. 174, § 6.) Place of meeting. — The commissioner shall then appoint some convenient time and place for the jury to meet and be sworn in the premises, and shall summon them accordingly. (Id., § 7.) Jury to he sworn. — If, at the time and place last mentioned, all the persons named as such jury shall meet, they shall be sworn well and truly to deter- mine as to the necessity of said road, and to assess the damages by reason of the opening thereof ; if Ways and Private Eoads. 371 one or more of such, six persons shall not appear, the commissioner shall summon, of the bystanders or others, so many, free from all legal objections, as will be sufficient to make the number six, who shall be sworn as aforesaid. (Id., § 8.) Commissioners to swear jury. — Such commis- sioner is hereby authorized to swear the jury, and to administer any oath necessary to carry this act into effect. (Id., § 9.) Proceedings of jury. — The jury shall view the premises, and, after hearing the allegations of the parties and such witnesses as they may produce, shall proceed to deliberate and make up their ver- dict ; and, if they shall determine that the proposed road is necessary, they shall assess the damages to the person or persons through whose land the same is to pass, and deliver their verdict, in writing, to the commissioners. (Laws of 1853, ch. 174, § 10.) (See form ISTo. 77.) In determining as to the necessity of the road, and in assessing damages, the jury should proceed in the same manner as in case of public highways. The proceedings in such cases have been heretofore given. Value of road discontinued. — If the necessity of such private road has been occasioned by the altera- tion or discontinuance of a public highway running through the lands belonging to the same person or persons, through whose lands the private road is proposed to be opened, the jury shall take into calculation the value of the road so discontinued, and the benefit resulting to such person or persons by reason of' such, discontinuance, and shall deduct 372 Highway Laws. tlie same from the damages assessed for the opening- and laying out of such private road. (Id., § 11.) Proceedings after verdict. — The commissioner shall annex to such verdict the application men- tioned in the first section of this act, and hand the same to the town clerk, who shall file the same, and the commissioner or commissioners shall lay out and make a record of said road, as described in the peti- tion of the applicant. (Id., § 12.) Proceeding may he adjourned. — In case any ac- cident shall prevent any of the proceedings required by this act to be done on the day assigned, the pro- ceedings may be adjourned to some other day, and the commissioner shall publicly announce such ad- journment. (Laws of 1853, ch. 174, § 13.) Damages to he paid hefore opening road. — The damages assessed by the jury shall be paid by the party for whose benefit the road is laid, before the said road shall be opened or used. But in case the assessors of said town shall certify that the necessity of such private road was occasioned by the altera- tion or discontinuance of a public highway, such damages shall be paid by said town and refunded to the applicant. (Id., § 14.) (See People v. ArtcTier, 6 Paige, 83.) Description of road abandoned. — Whenever any public highway, or any part thereof, by reason of alterations made therein, or by the opening of a new road, or in any other way, shall be abandoned by the public, and is no longer used as a public road, the commissioners or commissioner of highways shall file in the town clerk's office of the town a de- Wats and Private Roads. 373 scription in writing signed by them or him, of the road so abandoned, and the same shall thereupon be discontinued. (Id., § 15.) Roads along division lines. — Whenever a public or private road shall be laid along the division line between the lands of two or more persons, and wholly upon one side of said line, and the lands upon both sides of said division line shall be cultivated or im- proved, then and in that case the person owning or occupying the lands joining said road shall be paid for building and maintaining such additional fence as he may be required to build or maintain by reason of the laying out and opening said road, which said damages shall be ascertained and determined in the same manner that other damages are now ascertained and determined in the laying highways or private roads. (Laws of 1853, ch. 174, § 16.) Appeals. — And if any person shall consider him- self aggrieved by the said decision of the freehold- ers, either in laying out or closing a road, he may, within sixty days after such determination shall have been filed in the office of the town clerk, appeal to the county judge of the county in the same man- ner as appeals were heretofore allowed to be made to those judges under title first, article fourth, chap- ter sixteenth, part first of the Revised Statutes. (Last clause of section 5 of act of 1853, as amended 1860, ch. 468.) The county judge having acquired jurisdiction by the appeal becomes vested with the same authority to dispose of such appeal in the manner provided in reference to public roads, which includes the ap- pointment of referees. ( West v. McQurn, 48 Barb. 374 Highway Laws. 198.) For the manner of proceeding on appeal, see heretofore the chapter on that subject. For what purpose road to he used. — Every such private road, when so laid out, shall be for the use of such applicant, his heirs and assigns ; but not to be converted to any other use or purpose than that of a road. Nor shall the occupant or owner of the land through which such road shall be laid out be permitted to use the same as a road unless he shall have signified his intention of so making use of the same, to the jury or commissioners who ascertained the damages sustained by laying out such road, and before such damages were so ascertained. (1 R. S. 517, § 79.) If the occupant of the land, at the time a private way is laid out, does not signify his intention to make use of it, so that the damages may be assessed ac- cordingly, the person on whose application it is laid out has an exclusive right to use it, and may main- tain trespass on the case against the former for inju- ries done by his using it. {Lambert v. HoTce, 14 Johns. 383.) Width of roads. — All private roads to be laid out by the commissioner shall not be more than three rods wide. (1 R. S. 517, § 80.) The owner of the lands must so build his fence as to leave the road the full width as laid out by the commissioners ; he cannot build a Virginia or zig- zag fence, placing the center on the exterior lines of the road as laid out, with the angles projecting into the road. But a party will be deemed to have as- sented to such location of the fences, if he gave his consent to have the defendants' damages assessed with reference to such fence as was built, or if he Ways and Private Roads. 375 permitted the fence to be thus built without objec- tion. {Herrick v. Stover, 5 Wend. 580.) Extra viam,. — The owner of the private road has no right to go upon the adjoining lands when his road is obstructed or impassable, even where the road was so obstructed by the owners of such ad- joining lands. {Williams V. Saffordfl'R&xh. 309.) FORMS. No. 1. OEDEE FILLING VACANCY ; OFFICE OF COMMISSIONER. See ante, p. 33. CoFNTT OP Rensselaer, ) „ Town of Grafton. \ ** •' Whereas a vacancy has occurred in the office of commissioner of highways of the town of Grafton, by reason of the death {or, as the case may be), of Jo7in Doe, heretofore elected to said office from said town ; Now, therefore, by virtue of the power vested in us by the statute, in such case made and provided, we the undersigned, three of the justices of the peace or, two of the justices of the peace and the supervi- sor, of said town, do hereby, in order to fill such vacancy, nominate and appoint John Smith, com- missioner of highways of said town, to hold his said office until the next succeeding annual town meet> ing of said town, as by law provided. In witness whereof we have hereto set our hands this second day of August, 1878. Signatures. No. 2. commissioner's bond. See ante, p. 34. ivnow all men by these presents, that we, A. B,, C. D., and E. F., of the town of , county of , and State of New York, are held and firmly 48 378 Forms. bound unto , supervisor of said town, in the penal sum of one thousand dollars, to be paid to the said supervisor, or to his successor in office; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the 12th day of AprH, 1870. Whereas, the above named bounden A. B. was, on the 5th day of April, 1878, duly elected commis- sioner of highways of the town of , in the county of , Now, therefore, the condition of this bond is such, that if the said A. B. shall faithfully discharge his duties as such commissioner, and shall, within ten days after the expiration of his term of office, pay over to his successor all moneys remaioing in his hands as such commissioner, and render to such suc- cessor a true account of all moneys received and paid out by him as such commissioner, without fraud or delay, then this obligation to be void, otherwise to be of fuU force and effect. Signatures and Seals. Witness, . AFFIDAVIT OF JtTSTIFIOATION. County of , ss : C. D. and E. F., the sureties named in the forego- ing bond, being severally duly sworn, doth each for himself say, that he is a resident and freeholder (or householder) within this State, and worth one thou- sand doUars over and above all his debts and lia- bilities, and exclusive of property exempt from exe- cution. CD. Sworn, etc. E. F. Forms. 379 acknowledgment. County of , ss. : On this 12tli day of April, 1878, personally ap- peared before me, A. B., C. D. and E.. F., to me known to be the persons described in and who exe- cuted the foregoing obligation, and severally ac- knowledged that they executed the same. R. A., Justice of Peace. APPEOVAL. I approve of the within bond, and of the sufficiency of the sureties therein named. Gr. H., Supervisor of the town of . Dated, etc. No. 3. OATH OP COMMISSIONEB. See ante, p. 35. Albant Cotjnty, ss : I, J. B., of the town of WatervUet, is said county, having been elected commissioner of highways of said town, do solemnly swear (or affirm), that I will support the Constitution of the United States and the Constitution of the State of New York, and that I will faithfuUy discharge the duties of commissioner as aforesaid, according to the best of my ability. Sworn, etc. J. B. oektificate of justice. County of Albany, if Town of WatervUet, f * I, G. H., justice of the peace in and for the town of WatervUet, in said county (or town clerk of the town of Watervliet, in said county), do hereby certify, 380 FoKMS. that on the 12th day of April, 1878, personally ap- peared before me J. B. of said town, who then and there duly took and subscribed the foregoing oath. Dated, etc. Gr. H., Justice of the Peace, or, Town Clerk of the Town of WatervUet. No. 4. ORDEB ASOEETAININa AND DESCRIBING ROAD. See ante, p. 35. Whereas a road, used as a highway in the town of Portland, in the county of Chautauqua, leading from the Erie road, between the dwelling-houses of Elijah Fay and John R. Coney, to the old Erie road on the east line of EUsha Fay's farm, was laid out by the commissioners of highways of the said town, on the 10th day of June, 1860, but not sufficiently described : (or has been used as a public highway for twenty years last-past but not recorded). Now, therefore, we, the undersigned commissioners of said town, having met at the house of John Adams, in said town, for the purpose of causing said road to be ascertained, described and entered of record in the town clerk' s office, all the said commis- sioners beiag present, and having deliberated {or all the said commissioners having been duly notified to attend this meeting for the purpose of deliberat- ing) on the subject embraced in this order, do hereby order that the said road be ascertained, described and entered of record. And the said commissioners, having caused a survey of the said road to be made, do further order that said road is hereby ascertained and described according to the said survey, being as follows : beginning at {insert survey). And it is FoEMS. 381 further ordered that the line above described be the center liae of the said road, and that the said road be of the width of three rods. In witness whereof, the said commissioners have hereunto subscribed their names the first day of April, 1878. A. B., \ E. F., yGommissioners. C. D., ( No. 6. ORDEE DITIDDSTG TOWN INTO EOAD DISTEICTS. See ante, p. 56. The undersigned commissioners of highways of the town of Arkwright, in the county of Chautauqua, having. met and deliberated on the subject em- braced in this order; all said commissioners being present, and having deliberated thereon {or aU said commissioners having been duly notified to attend here for the purpose of deliberating thereon), do hereby order that the said town be and the same is hereby divided into ten road districts, as foUows, to wii: District No. 1 shall comprise all that part of the said town lying north of the south line of the road lead- ing from the dwelling-house of , to the east line of said town, and aD the inhabitants resid- ing in said district, and all those residing on the said road above mentioned, liable to work on highway, are hereby assigned to work in said district No. 1. (^ anp out of said district he assigned to work therein, insert) And the following inhabitants, re- siding, out of said district, are hereby assigned and requil-ed to work therein, to wit : J. C, etc., and all 882 Forms. persons residing with them on their farms, and liable to work on highways, are assie-ned the said district No. 1. District No. 2, etc. {proceed in like manner till all are desaribed). In witness whereof, we have hereto subscribed our names this tenth day of April, 1878. A. B., ^ C. D., > Commissioners. E. F., No. 6. commissioners' AinvrxJAL ACCOUNT. See ante, p. 61. The undersigned, commissioners of highways of the town of Auburn, in the county of Cayuga, here- by render to the board of auditors of said town their annual account for the year ending February 28th, 1878. 1. The highway labor assessed in said town for the year ending on the said twenty-eighth day of February was eight hundred and ten days, and the highway labor performed in said town during the said year was seven hund/red and eighty-nine days, as appears by the accounts rendered us by the several overseers of highways in said town. 2. The said commissioners have received, during the said year, the following sums of money for fines and commutations under the statute relative to high- ways, to wit : Date. From whom received. On what account. Amount. They have also received from other sources under said statute, etc. Forms. 383 3. The improvements which have been made on the roads and bridges in said town, during said year, are as follows: {Specify improvements.) And the roads and bridges in said town are {give state of them, and specify whether they are in good repair or otherwise). 4. The following improvements are necessary to be made on the roads and bridges in said town, to wit : {Specify necessary improvements.) 5. The probable expense of making such improve- ments, beyond what the labor to be assessed this year will accomplish, is by us estimated at $260. Given, under our hands this tenth day of March, 1878 Signatures, Commissioners. No. 7. CERTIFICATE OF TOWN AUDITOR. See ante, p. 62. Cayuga County, ) , Toijon of Auburn, j We, the undersigned, composing the board of town auditors of said tpwn, do hereby certify, that we have this day audited and allowed to E. F. {commissioner of highways), of said town, by whom the foregoing giiccount has been presented to us, the sum of $50, as and for his services as such commissioner {insert if necessary), and the disbursements necessarily paid out by him in the execution of his duty, up to and including the 28th day of February, 1878, and that we find a balance of $23 to be due from said E. F. to the town of Auburn. Dated, etc. Signatures. 384 FoBMS. No. 8. STATEMENT AND ESTIMATE FOR SUPERVISOE. See ante, p. 63. To the supertisor of the town of Watervliet, in the county of Albany : The commissioners of highways of said town do hereby report that the following improvements are necessary to be made on their roads and bridges in their said town, to wit: {Specif y improvements.^ That the probable expense of making such improvements is by US estimated at $250. Given under our hands, etc. No. 9. NOTICE OF APPLICATION FOR ADDITIONAL APT>EO- PRIATION. See ante, p. 64. Notice is hereby given to the electors of the town of Berlin, in the county of Eensselaer, that the com- missioners of highways of said town are of opinion that the sum of two hundred and fifty dollars, as now allowed by law, will be insufficient to pay the expenses actually necessary for the improvement of roads and bridges in said town, and that the additional sum of two hundred and fifty dollars is necessary to make a Dridge across the creek near , (or to repair the bridge, etc., or to improve the road at, etc.) And that we, the undersigned, commissioners of highways of said town, shall, at the next annual town meeting of said town, to be held at on the tenth day of March next, apply in open town meeting for a vote authorizing the said sum of two hundred and fifty dollars, to be raised for the purpose aforesaid. Dated, etc. Signed. FoEMS. 385 No. 10. DECISION OF FENCE VIEWEES. ^e& ante, p. 76. CotTNTY OF ReKSSELAEE, ] Town of Pittstown. j ** '' A dispute having arisen between Jolm Doe and Richard Roe, owners of adjoinrog lands in said town, conoeraing the proportion or particular part of the division fence running {describe the fence) to be main- tained by each, and the undersigned fence viewers of ; said town having been selected to settle such dispute, according to the statute in such case made and pror vided, and having examined the premises and heard the allegations of the said parties, we do hereby de-( termine and decide, that the said John Doe shall maintain aU that portion of said fence being between the highway on the north side of said adjoining lands and a point ten chains and three links south thereof on said boundary line ; and that the said Richard Roe shall maintain all that, portion of said fence between the last-mentioned point and the south boundary of said adjoining lands. And we do further determine, and decide, that the said John Doe shall pay one- third .of the costs and expense of this proceeding, to wit: the sum of three dollars, and .that the said Richard Roe phall paythe remaining two-thirds of' such costs and expense, to wit, the sum of six dollars.' In witness whereof we have hereto set our hands this tenth day of July, 1878. Signatures. 386 FoEMS. No. 11. STTBPOENA OP FENCE VIEWERS. See ante, p. 78. TTie People of the State of New YorTc, To ; We, fence viewers of the town of Pittstown, in the county of Rensselaer, command you, that (all and singular, business and excuses being laid aside) you appear and attend before us, at the house of John Doe, in said town, on the tenth day of July, 1878, at ten o'clock in the forenoon, to be examined as a witness, there and then, touching [insert object) ; and for a faUure to attend you will be deemed guilty of con- tempt, and will be proceeded against in the manner provided by law. Dated. Signed. No. 12. CEETIFICATE OP SHEEP KIXLED BY DOGS. See ante, p. 85. Rensselaer County, ) , Town of Brunswick, f William E. Smith, of said town, having applied to us, two fence viewers of said town, to appraise the value of certain sheep alleged to have been killed by dogs, and the amount of damage sustained by him, pursuant to the statute, and having this day inquired into the matter and viewed the sheep MUed, and ex- amined witnesses in relation thereto, we do hereby certify and find, that the said sheep were hurt and killed by dogs only, and in no other way, and that there were ten sheep killed, of the value of four dol- lars each, and that the owner, William E. Smith, FoKMS. 387 has sustained damage to the amount of twenty -five dollars. In witness whereof we have hereto set our hands the ninth day of October, 1878. Signatures. No. 13. OOMMISSIOWEES, CONSENT FOE EAILEOAD TO 0E0S8 HIGHWAY. See ante, p. 87. County op Rensselaee, ) Tovm of Pittstown. \ ** '' We, the undersigned commissioners of highways of said town, do hereby consent that the Troy and Boston Railroad company may construct a railroad across the public highway leading from {describe highway), provided the usefulness of said highway be not impaired. Given under our hands this tenth day of June, 1878. Signed. No. 14. AaKEEMENT TO TJSE HIGHWAY FOE PLANK EOAD, ETC. See ante, p. 89. This agreement made this day of , between A. B., supervisor of the town of , county of , and C. D. and E. F., commis- sioners of highways of said town, of the first part, and the Turnpike company of the second part. Witnesseth, That the said party of the first part, having first become satisfied that at least two-thirds of all the owners of land along the highway {describe if), and who actually reside thereon, have consented 388, FoEMS. in writiJig to the constructioii of a turnj)ike by said party of the second part, on such highway, do for values received^ hereby grant and convey to the said party of the second part the right to use and occupy the public highway above described for the purpose of a turnpike road, so long as the same shall be needed by said party of the second part. In witness whereof, etc. Witness. , No. 15. COMPLAINT TO COMPEL DELIVERY OP BOOKS, ETC., TO SUCCESSOR. See ante, p. 96. ^TATE OP New York, ) . County of . ( To the Hon. C. R. Ingalls, Justice of the Supreme Court : A. B. of said county, being duly sworn, makes complaint against C. D., late commissioner of highr way of the town of , in said county, and says : that the deponent was duly elected commissioner of highways of said town of , at an annual town meeting of such town, held on the 6th day of March, 1878, that he has taken and filed the oath prescribed by law, and has givea the requisite bond. That by virtue of such election he is successor to the said C. D., late commissioner as aforesaid. That he has required and demanded that the said C. D. deliver over to him, as such successor, all the records, books and papers in his possession or under Ms con^ trol, belonging or appertaining to the said office of commissioner of highways. And this deponent further alleges that the said C. t). has refused and neglected so to deliver such POBMS. 389 irfecords, books and tpapers, or any part ^jhereof, and that, as tMg deponent is: informed and believes, Said C. D. lias in Ms possession, or nnder Ms control, the followiiig records, books and papers appertaining to the said office of commissioner of highways {insert description if /known, if not say. so), and that he unjustly and unlawfully withholds the same from this depbnent. ' A. B. Sworn to, etc. .: , OBDEB THEEETTPON GEANTED. ?>ee anfeyp. 95. State of New Yoek, | „„ ' County of — , f**'V /'. : V Complaint iaving been made to me, the ttndersigned, as foUows, to wit: {insert a copy of the complaint), and being satisfied by the oath of the said complain- ant {add "and other testimony oflfered," if any such was offered), that the said books and papers (ot- either, according to the fact) are withheld as afore- said, I, therefore^ pursuant to the provisions of the statute in such case made and provided, do hereby order and direct the said C. D., the person so refus- ing, to show cause before me at my office in , in said county, on the tenth day of May instant, alt 10 o'clock in tiie forenoon, why he should not be tjompelled to deliver the same books and papers (or either as the case may be). Signature. Bated, etc. AFFIDAVIT OF DEHTEE,Y. %ee ante,^.W. State of New Yoek,' ) ^^ . County of ^. f ' C. D., of said county, being duly sworn, says, '.hat he is the person mentioned and described as late com- 390 Forms. missioner of highways of the town of , in said county, in a certain affidavit and complaint made by one A. B. before the Hon. C. E. Ingalls, Justice of the Supreme Court, on the tenth day of May, 1878, and that he has truly delivered over to his successor in said office of commissioner of highways all the books, records and papers in his custody or apper- taining to his said office, within his knowledge. Sworn, etc. C. D. WARRANT TO COMMIT THE PERSON WITHHOLDING. See ante, p. 96. The People of the State of New TorJc, to the Sheriff of the County of Rensselaer : Complaint having been made to the undersigned, as foUows, to wit : {Insert a copy of the complaint.'] Whereupon, pursuant to the provisions of the stat- ute, being satisfied by the oath of the said complain- ant {add, and other testiinony offered, if any such was offered), that the said books and papers {or either, according to the fact) were withheld as aforesaid, the undersigned granted an order, directing the said C. D., the person so refusing, to show cause before the undersigned, at, etc. {as in the order), why he should not be compelled to deliver the same books and papers {or either, as the case may be) at which place and time so appointed {or if at any other time, to which the matter was adjourned, so state), upon due proof being made of the service of the said order, the undersigned proceeded to inquire into the circum- stances, and the said C. D. having omitted to make the oath prescribed by the statute in such case made and provided, and it appearing to the undersigned that the said books and papers {or either of them, to he described) are withheld as aforesaid.* Forms. 391 Now, therefore, you are commanded that you take the said C. D., if he may be found in your bailiwick, and commit him to the jail of the said county of Eensselaer, there to remain until he shall deliver the said books and papers (or either or such of them as are withheld), or be otherwise discharged according to law. Witness, C. E. I. justice of the Supreme Court, at the city of Troy, this tenth day of July, 1878. Seal. Signature. SEARCH WARRANT FOR StTCH BOOKS OR PAPERS WITH- HELD. See ante, p. 96. The People of the State of New TorTc, to the Sheriff of the County of Rensselaer, or to any Consta- ble of any Town in said County : [As in the form above fo.*] And the undersigned being required by the said complainant, A. B., to issue this warrant : Now, therefore,' you are commanded, in the day- time, to search C. D.'s house, situated {insert a par- ticular designation or description of the said house, and of any other place to be searched), for the said books and papers (or either of them, as the case may be), so withheld, and all other such books and papers as belonged to the said C. D., as commissioner of highways as aforesaid, in his official capacity, and which appertained to the said office of commissioner of highways, and seize and bring them before the undersigned. Witness, C. R. I., justice of the Supreme Court, at the city of Troy, this tenth day of July, 1878. Signature and Seal. 392 Forms. No. 16. ORDER APPOINTING OVERSEERS. See ante, p. 108. State op New York, ) . County of ■-, \ We the undersigned, commissioners of highways of the town of , in the county of , having met and deliberated on the subject of, this order, being present, and all the commissioners having deliberated thereon {or all the commis- sioners, etc., having been duly notified to attend said meeting of the commissioners, for the purpose of deliberating thereon), do, hereby appoint the following named persons overseers of highways of and for the several road districts in said town, set opposite their respective names, to wit : District No. 1, John Doe ; district No. 3, John Smith. Each of said overseers to hold his said office for and during the term of one year from the third day of March, 1878. In witness whereof we have hereto placed our hands this third day of March, 1878. Signed. No. 17. APPOINTMENT OP OVERSEER IN CASE OP VAOANOY. See ante, p. 109. Town op- County of- \ ss: Whereas, a vacancy has occurred in the office of overseer of highways for road district number eight, in said town, by reason of the refusal to serve {or as the case may he) of A. B. Now, therefore, by virtue Fo-EMS. 393 of the power vested' in ug by tlie st&tute in sucli case made and pi'bvided, we, the Tiridersigned, commis- sioners of Mghways of said town, having met and deliberated on the subject embraced in this warrant {where only two sign, add all the commissioners of highways of said town having met and delibie'rated, or all i the commissioners, etc., having been duly notified.to attend this meeting of the commissioners for the purpose of deliberating on the subject em- bodied in this warrant),^do hereby, in order to fill said vacancy, appoint Peter Cook, overseer of high- ways, of and for said road district number eight, in said town. . .:■. .; In witness whereof^ we have hereto placed our hands this tenth day of July, 1878. Signed. No. 18. ASSESSMENT? BY OVBESEEB FOE SCEAPEE OE PLOW*? See dnie, p. 114. Whereas, the commissioners of highways pf the town of BUicott, in the county of Chautauqua, on the ipth day of AprU, 1878, by writing under their hands, directed and empowered me, Henry Baker, overseer of highways of road district No. 5, in said town, to procure a good and suflicient iron \or steel] shod BCTdi^ei 2iD.di 2i ^lo-Wjlpr either separately ,] for the use of my said road district, to be paid for by the moneys arising from commutations and fines within such district ; and whereas, Siich moneys are insufficient for the purpose, by the amount of $8.60. ' Now, therefor, I, the said overseer, according to the form of the statute in such case made and pro- vided, do hereby assess the. deficiency of eight dollars and fifty cents aforesaid, upon the inhabiti 50 394 Forms. ants of the said district, in the proportion they are respectively assessed on the assessment roll of said town, which said assessment is as follows, viz. : Town Overseer's Names of InliaMtanU. Assessment Assessment. John Johnson, $9 00 |0 90 James Smith, 12 00 1 20 A. B., Overseer of Dist. No. 3. Dated April 26, 1878. No. 19. oveeseee's list of peesons liable to do high- way LABOE. See ante, p. 114-119. I, John Doe, overseer of highways for road district No. of the town of Brutus, in the county of Cayuga, do certify that the following is a true and correct list of aU the inhabitants who are liable to work on highways, in said district No. in said town. Beuttjs, June 1, 1878. John Smith, I Richard Roe, George Johnson, | Thomas Ingraham. JOHN DOE, Overseer road district No. — . No. 20. oveeseee's eetuen to sttpeevisoes. See ante, p. 138. To the Swpermsor of the town of Brunswick, county of Rensselaer : The following is a list of all the resident land-hold- ers residing in district No. 5, in the town of Bruns- Forms. 895 wick, Rensselaer county, who have not worked out their highway assessment, or commuted for the same, with the number of days not worked or commuted for by each, at one dollar and fifty cents per day : Names. William Agan, John Riley, No. of days. Amount. 4 $6 00 8 12 00 The following is a list of aU the lands of non-resi- dents and of persons unknown, which were assessed on my warrant by the commissioners of highways, or were added by me according to law, on which the labor assessed has not been paid, and the amount of labor performed or commuted for, and the number of . days' labor unpaid by each, at one dollar and fifty cents per day : Description of lands. Assessed value. No. days. Amount. E. pt., L. 14, range 14, T. 9, 75 acres, $400 4 $6 A. B., Overseer of District No. 5. aitidavit to such list. Rensselaee Coitntt, ss : A. B., being duly sworn, says, that he is overseer of highways of road district No. 5, in the town of Brunswick, in the county of Rensselaer, and that he has given the notices required by the thirty-second, thirty-third and thirty -fourth sections of title 1, chap. 16, of part first of the Revised Statutes, and that the labor for which such persons and lands are returned has not been performed or commuted. A. B. Subscribed and sworn to before me ) this 7th day of September, 1878. j J. D., JustiGe of Peace 396 Forms. No. 21. commissioners' list of non-resident lands. See ante, p. 120. The following is a list and statement of the contents rf all lots, pieces or parcels of land, within the town of Lansingburgh, in the county of Eensselaer, owned by non-residents therein. Made this third day of April, 1878, by the commissioners of highways of said town : NAME OP TRACT OK PATENT. o ■s 6 1 2 i 4 5 6 4J 1 o 1 2 2 2 2 2 2 CO 1 ° d ^; 1 1 ■s 1 i 1 -0 o 1 s 6 e 2 1 1 1 ^ , S ' d |Z| 8 3 3 3 3 . HoUEUid Company, do do do do do North part. 1 1 200 200 200 20D 100 SO (500 00 600 00 600 00 400 00 200 00 100 00 Bounded N. by A. B., B.byC.D.,B.VE.F., and W. by a. H. Signatures. No. 22. ASSESSMENT OF HIGHWAY LABOR. See ante, p. 123. The undersigned commissioners of highways of the town of Pittstown, in the county of Rensselaer, hav- ing met at Johnsonville, in said town, for the purpose of ascertaining, estimating and assessing the highway labor to be performed in said town the ensuing year ; all the commissioners being present and having de- liberated thereon (or all the commissioners having been duly notified to be present at this said xneeting, for the purpose of deliberating thereon), do hereby ascertain, estimate and assess such labor as follows : FoKMS. 397 1. The whole niimber of [days' -work assessed for the year is twelm Jiundredi being at least three times the number of taxable inhabitants in said town. 3. Every male inhabitant above the age of twenty one years (excepting ministers of the gospel and priests of every denomination, paupers, idiots and lunatics), there being four hundred and fifty-three, is assessed one day {or two days, etc.) 3., The residue of such work being seven hundred hundred and forty-seven days, is assessed as foUows, to wit : No. orday& William Akin, 4 John Scott, 6 Ahtliohy Snyder, , 7 . The lands in said town owned by non-residents are assessed as foUows, to wit : [Insert description and assessment as in preceding form. J In ^witness whereof, we have hereto set our hands this 3d day of April, lg78. Signatures. No. 23. ; CVBESEEES' ASSESSMENT OP PEESOKS OMITTED. < ' See ante, p. 126. The following named persons having been left out of the list of persons assessed to work on the high- ways in road district No. 6, in the town of Hoosick, in the county of Rensselaer {or having become inhab • itants of road district No. 6 ifi the town of Hoosick^ in the county of Rensselaer, since the list of assess- ments of highway labor for said district was made). Now, therefore, I, James AUen, overseer of high- ways of said district, according to the statute in such 398 FoKMS. case made and provided, do hereby assess and rate the said persons in proportion to their real and per- sonal estate, to work on the highways, as others are rated by the commissioners on such list, subject to an appeal to the commissioners, which said assessment is as foUows, viz. : No, of daje. George BrowneU, 4 James Kinnear, 3 In witness whereof I have hereto set my hand this 9th day of April, 1878. JAMES ALLEI!?', Overseer. APPEALS TO OOMMISSIOBTEBS FROM ASSESSMENT OP OVERSEERS. To the Commissioners of Highways of the town of Pittstown, in the county of Rensselaer : The undersigned having been assessed by the over- seer of road district No. 3, in said town, four days' labor on the highway, on the ground that he is a new inhabitant of said district {or that his name has been omitted by the commissioners in said town), and con- ceiving himseK aggrieved by said assessment does hereby appeal from said assessment so made by said overseer to the commissioners of highways of said town. A. B. Dated, etc. APPEALS BY NON-RESIDENTS. See ante, p. 127. Town op Pittstown, ) Rensselaer county. \ '' A. B., a non-resident owner of lands ia said town, considering himself (or C. D., agent of A. B., a non- resident owner of lands in said town, who considers) Forms. 399 A. B. aggrieved in the assessment for highway labor by the commissioners of highways of said town, upon the following described lands, to wit : {here insert the description as in the list or statement made hy the commissioners,) does hereby appeal from the assess- ment of said commissioners, to the honorable E. Smith Strait, county judge of Rensselaer county, that being the county in which said lands are situ- ated. A. B. or A. B. by C. D., Agent. Dated, etc. No. 24. oveeseer's ahtsttjal account. See ante, p. 116, 129. To the Qommissioners of Highways of the Town of Schodack, Rensselaer County : The undersigned, overseer of highways of road district No. 3, in said town, pursuant to law, renders the following annual account : 1. The names of all persons assessed to work on the highways in said road district No. 3 are as fol- lows: Names. No. of days. John Jones, •. 5 Job Frost, 6 2. The names of aU those who have actually worked on the highways, with the number of days they have worked, are as follows : Names. '^°- "' ^^'^ John Jones, S Job Frost, 44 400 FOEMS. 3. The names of all those who have been fined, and the sums in which they have been fined, are as foUows : Names. Snm». John Greer, $1 60 John Roes, ; . 5 00 4. The names of those who have commuted are as follows : Names. " Days. Amonnt George Ingraham, 5 $5 00 The manner in which the moneys, arising from fines and commutations, have been expended by me is as follows : Whole amount received from fines and commutation, as above stated, $41 60 Expended for scraper, by order of com- missioners, $23 00 Expended for repair of bridge over Muskrat creek, 13 60 36 60 Leaving balance in my hands of, . . $5 00 5. The list of persons whose names he has returned to the supervisor as having neglected or refused to work out their highway assessments, with the num- ber of days and amount of tax so returned for each person, is as follows : {insert copy of list.) The list of all lands which he has returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned, is as fol- lows : {insert copy of list.) JOHN GREEN, Overseer of nigTiways Dist. No. 3. Dated, etc. FOKMS. 401 Rensselaer Coxtntt, ss. : Jolm Green, overseer of Mghways for road district No. 3, of the town of Scliodack, in said county, be- ing duly sworn, says that the foregoing account is, in all respects, true. JOHN GREEN. Subscribed and sworn to before me") this 6th day of April, 1878. J JoHK Williams, CoTMnissioner of Highways. No. 25. APPLICATIOK TO LAY OUT ROAD. See ante, p. 149. To the Com/missioners of Highways of the town of Half moon, in the county of Saratoga : The undersigned, residents of said town {or own- ing lands in said town), and liable to be assessed for highway labor therein, hereby apply to the said com- missioners of highways to lay out a road in said town, commenciag at the northwest corner of a lot of land in the possession of Abraham Rowan, and running, etc. {describing the proposed road), which proposed road will pass through the inclosed, im- proved and cultivated lands of L. M. and M. O. G. G. No. 26. ORDER FOR LATINO OITT A HIGHWAY. See ante, p. 151. At a meeting of the commissioners of highways of the town of Wilton, in the county of Saratoga, at Doe's Corners, in the said town, on the 29th day of January, 1878, all the commissioners having met and 51 402 FoEMS. deliberated on the subject-matter of tMs order {or if but two of the commissioners met, say, all the com- missioners having been duly notified to attend the said meeting, for the purpose of deliberating on the subject-matter of this order), upon the application of Daniel Gailor, a resident in said town, and liable to be assessed to work on the highways therein for the laying out of the highway hereafter to be described, and on the certificate of nine jurors of said town, convened and duly sworn after due public notice, as required by the statute, certifying that such highway is necessary and proper ; and no- tice, in writing, of at least three days, having been given ia due form of law to S. M. and R. S., occu- pants of the lands through which such highway is to run, that the undersigned commissioners would meet at this time and place, to decide on the application aforesaid ; and we having heard all reasons offered for and against laying out such highway, it is or- dered, determined and certified that a public highway shall be, and the same is hereby, laid out pursuant to said application, whereof a survey has been made, and is as foUows, to wit : beginning, etc. {as in the survey), and the line of said survey is to be the cen- ter of said highway, which is to be three rods in width. Witness our hands this 29th day of January, 1878. Signatures. No. 27. CONSENT OF OWNBE. See ante, p. 153. Whereas, a highway is proposed to be laid out by the commissioners of highways of the town (Jf , Forms. 403 in the county of , on the application of , commencing at (insert description), and which will run through my orchard; therefore, I do hereby consent that such road be so located, opened, worked and used through my said orchard. Witness my hand this day of , 18 . A. B. No. 28. NOTICE OF APPLICATION TO LAr OUT OE ALTER HIGHWAY. See ante, p. 160. Notice is hereby given that the subscriber, a per- son liable to be assessed for highway labor in the town of. , in the county of , has applied to the commissioners of .highways of said town, to lay out a highway in said town, beginning {insert a de- scription of the proposed road), which said highway is proposed to be laid through the improved lands of J ohn Doe and Richard Roe {specify the several tracts of land through which highway is to he laid), and that nine .lurors of the town wiU be drawn on the , at 10 6'elocTc a. m., at the town clerk's office, to examine the ground through which the said highway is proposed to be laid. Signed. No. 29. jurors' CERTIFICATE TO LAY OUT ROAD. See ante, p. 163. County of ) .,^ , Town of , " " We, the undersigned, being freeholders of the town of Brownville, in said county, and not inter- 404 FoEMS. ested in the lands througli wMcli tte higliway herein- after described is proposed to be laid, nor of kin to the owner thereof, having met on the day and date hereof at , in the said town, and having been first dnly sworn, and having personally examiaed the route of the said proposed highway, and heard the rea- sons offered for or against the laying out a highway, pursuant to the application of E. F., commencing at, etc. {here insert the description as in the application and notice) and which highway will pass through the improved {or inclosed, or cultivated) lands of A. B. and C. T>., do hereby certify to the commis- sioners of highways of said town, that we are of opinion that such highway is necessary and proper. In witness whereof, we have hereunto subscribed our names the 10th day of September, 1878. Signatures. No. 30. NOTIOB TO OCCUPANT. See ante, p. 168. To William Smith : Take notice that we, the undersigned, the commis- sioners of highways of the town of , in the county of , shall meet at , in the said town, on the 10th day of October, 1878, at 10 o'clock in the forenoon, to decide on the application made by A. B., to us, to lay out a highway, commencing at, etc. {here give the description as in the applica- tion), and which will pass through your inclosed {or improved, or cultivated) lands ; nine jurors having certified that it is proper and necessary to lay out said highway. Dated, etc. Signatures. Forms. 405 No. 31. OEDEE LAYING OUT HIGHWAY. See ante, p. 111. See form No. 26. No. 32. NOTICE OP HIGHWAY AOEOSS EAILEOAD TEACK. See ante, p. YIA. To the Albany & Boston Railroad Company : Take notice, that the commissioners of highways of the town of Schodack, in the connty of Rensselaer, have duly laid out a highway, commencing at {m- sert description), and that said highway crosses the railroad track of your said company jive rods north of your depot at Schodack, and that said road will be opened for use after the expiration of thirty days from the service of this notice upon you. You are therefore required to cause the said highway to be taken across your said track, as shall be most con- venient and useful for public travel, and to cause all necessary embankments, excavations and other work to be done on your road for that purpose, as by the statute provided. Yours, etc.. Dated, etc. Signatures. No. 33. APPLICATION FOE THE ALTEEATION OF A EOAD. See ante, p. 189. To the Commissioners of Highways of the town of Hector in the County of Tompkins : The undersigned, residents of said town (or own- ing lands in said town), and liable to be assessed for 406 Forms. Wgliway labor therein, do apply to said commission- ers to alter the highway leading from the house of Burton White to the N"orthem turnpike in said town, as follows : {Insert particular description of the proposed alteration by Jcnown boundaries or objects, or courses and distances.) The proposed alteration passes through lands which are not improved, in- closed or cultivated (or passes through the lands of John Doe and Samuel Johnson, who give their con- sent to said alterations.) T. R. Dated, etc. C. D. (See form No. 26.) No. 34. APPLICATION TO DISCONTINUE OLD KOAD. See ante, p. 190. To the Qommissioners of Highways of the Town of Volney, in the Gounty of Oswego : The undersigned, residents of said town, and liable to be assessed for highway labor therein, do hereby apply to you, the said commissioner, to discontinue the old road in said town, beginning, etc. (insert gen- eral description), on the ground that said road has become useless and unnecessary. Dated, etc. Signatures. Na 36. SITMMONS FOE JUKT TO DISCONTINUE KOAD. See ante, p. 192. Albany County, ss. : To John Smith — You are hereby summoned and required to appear at the house of William Wait, in FoKMS. 407 the town of WatervKet, in said county, on fhe 7th day of September, 1878, to make a jury of freehold- ers to consider, examine and certify in regard to the propriety of discontinuing the highway between {in- sert description of road to he discontinued). Hereof faU not. Witness our hands, etc., Dated, etc. J. B. G. F. J. L. Oormnissioners. No. 36. FEEEHOLDEES' OEETIFIOATE TO DISCONTINUE A EOAD. See ante, p. 192. The subscribers, disinterested freeholders of the town of Corinth, in the county of Saratoga, having met at the dwelling-house of Hiram Clothier, in said town, in pursuance of a summons from the commis- sioners of highways of the said toAvn, to examine and certify in regard to the propriety of discontinu- ing the highway from {describe the highway to be discontinued), and having been duly sworn, and having viewed the said road, do therefore certify that we are of opinion that the same is useless and un- necessary. In witness whereof, we have hereto set our hands this 10th day of June, 1878. Signatures. No. 37. OEDER TO ALTEE EOAD. See ante, p. 193. The undersigned, commissioners of highways of the town of , in the county of , having 408 Forms. met at the dwelling-house of , in the said town, to decide upon the application of , a resident of said town, liable to be assessed for highway labor therein, for the alteration of the road between the chair shop of Norman Neff and Shnmla. All the said commissioners being present, and having delib- erated {or all the said commissioners having been duly notified to attend this meeting of the commis- sioners, for the purpose of deliberating) on the sub- ject of this order, do hereby order that the line of the said road be, and the same is hereby, so altered as to mn from a point thirty feet south of the southeasterly corner of said Ifeff's chair shop, in a straight line ; south, thirteen degrees east, till it strikes the present center of the road, thence along the present line thirty rods, and thence continuing in a straight line sixty rods to the center of the present road on the summit of the hill north of Shumla, the said line to be the center of the road, which shall remain of the width of three rods. And it is further ordered, that such parts of the present road as are not included in the above description be, and the same are hereby, dis- continued. Dated, etc. Signed, etc. No. 38. ORDER FOR DISCONTINUING A ROAD. See ante, p. 193. At a meeting of the commissioners of highways of the town of Carmel, in the county of Putnam, at Benton, in said town, on the 14th day of December, 1867, all the commissioners having met and deliber- ated on the subject of this order {or all the commis- FoEMS. 409 sioners Timing leen duly notified to attend the said meeting, for the purpose of deliberating on the sub- ject of this order) upon the application of George White, of said town, for the discontinuance of the road hereinafter described, and on the certificate of twelve disinterested freeholders, duly summoned and sworn, who have in due form certified that said road is useless and unnecessary; and the said commis- sioners having caused a survey of said road to be made as follows, viz. : {here insert the survey or de- scription.) It is ordered and determined by the said commissioners, that the said road be, and the same is hereby, discontinued. In witness whereof, we have hereto set our hands this 9th day of June, 1878. Signatures. No. 39. ORDEE EEFTJSING TO DISCONTINUE A EOAD. At a meeting of the commissioners of highways of the town of Pittstown, in the county of Rensselaer {as in last form). It is ordered and determined by the said commissioners, that the said application of the said A. B., to discontinue the said road, be refused. In witness, etc. No. 40. DESCEIPTION OP EOAD ABANDONED. See ante, p. 196. At a meeting of the commissioners of highways of the town of , in the county of , at , in said town, on the day of , 1878, all the com- missioners being present, and having deliberated on 52 410 Forms. the subject of this order {or all the, etc., as in No. 37), ordered that, whereas, the highway hereinafter described has been abandoned by the public, and is no longer used as a public road, the same is discon- tinued ; and that the following is a description of the said road so abandoned : {Insert description.) In witness, etc. No. 41. APPEAL PBOM OEDEE LAYrNG OUT, ALTEBING OE DISCONTINTJIWG HIGHWAY. See ante, p. 202. To the Hon. E. Smith Steait, County Judge of Rensselaer County : I, John Doe, of the town of Berlin, in said county, conceiving myself aggrieved by the determination of the commissioners of highways of the town of Berlin, in said county, made on the first day of August, 1878, in laying out (or altering, discontinuing, refusing to lay out, alter or discontinue a highway in the said town, from {describe the road as in the order of the commissioners), upon the application of John Gruy, do hereby appeal from the said determination of the said commissioners, and pray the appointment of referees, according to the form of the statute in such case made and provided, to hear and determine my said appeal. The ground upon which this appeal is made is, that {here set forth the cause of com/plaint), and said ap- peal is brought to reverse entirely the determination of the commissioners {or if part only, then) to re- verse the determination, etc. {specifying the part sought to &e reversed). Dated, etc. JOHN DOE. FOKMS. 411 No. 42 a. APPOINTMENT OF KEFEKEES. See ante, p. 201-204. Kensselaee County, ss. : Wliereas, A. B., of tlie town of Pittstown, in said county, has appealed from the determination of the commissioners of highways of the said town, made on the 1st day of August, 1878, in (JLaying out, altering, discontinuing, refusing to lay out, alter, discontinue), a highway in said town, which highway is particularly described in said appeal hereto an- nexed {and, whereas, RicTiard Bailey and John Smith have also appealed from the same determina- tion of the com/mis sioners, which said appeals are also hereto annexed), and sixty days having elapsed after such determination has been filed in the office of the town clerk of the said town ; Kow, therefore, I, E. Smith Strait, county judge of the said county, to whom the said appeal was {or appeals were) addressed, according to the form of the statute in such case made and provided, do hereby appoint James Monroe, of the town of Schaghticoke, William Otis, of the town of Lansingburgh, and Henry Myrtle, of the town of Hoosic, three disinter- ested freeholders, who have not been named by the parties interested in the appeal, and who are resi- dents of the county, but not of the town wherein the road is located, as referees, to hear and determiae all the appeals that have been brought in relation to the said determination of the said commissioners. Given under my hand &is 3d day of September, 1878. E. SMITH STKAIT, County Judge of Rensselaer County. < 412 Forms. No. 42 b. APPOINTMENT OF EEFEEEES BY JUSTICE OP SESSIONS ■WHEN JUDGE IS DISQUALIFIED. See ante, p. 201-204. Rensselaer County, ss. : Whereas, on the 10th day of June, 1867, C. D., of the town of Nassau, in the said connty of Rensselaer, appealed to the Hon. A. B., county judge of the said county, from the order and determination of E. F., commissioner of highways of the said town, made on the 1st day of August, 1878, Isbjing out {alterinff, or as the case may be) a highway in the said town, which highway is particularly described in the said appeal hereto annexed, and sixty days having elapsed after such determination has been filed in the office of the town clerk of the said town, and whereas the said county judge is a resident of said town of Nassau {or whatever the disability may be), now, therefore, in accordance with the statute in such case made and provided, I, the undersigned, one of the justices of the sessions of the said county of Rensse- laer, do hereby appoint I. J., K. L., and M. N., all residents of the said county of Rensselaer, but not one of them residents of the said town of Nassau, referees to hear and determine the said appeal {or appeals). Given under my hand this 3rd day of Sept. 1878. No. 43. NOTICE BY REFEREES TO THE COMMISSIONERS OF HIGHWAYS. See ante, p. 206. To E. F., C. D. and J. G., Commissioners of High- ways of the town of P.ittstown, in the county of Rensselaer : Take notice that we have been duly appointed referees to hear and determine an appeal made to A. Forms. 413 B., county judge of the county of Rensselaer, by C. L. of the town of Pittstown, from your determina- tion contained in your order, made on the 10th day of July, 1878, and filed and recorded in the oflice of tho town clerk of the said town, on the 13th day of July, 1878, refusing to lay out, etc. {as in the appeal) ; and that we shall attend at the house of M. N., in said town, on the 5th day of October next, at 10 o'clock in the forenoon of that day, to hear and determine such appeal. Signed, Dated, etc. Referees. No. 43 a. NOTICE TO COMMISSIONEES, OF APPEAL. See ante, p. 207. To A. B., C. D. and E. F., Commissioners of High- ways of the tovm of Pittstown, in the county of Rensselaer : Take notice, that I have appealed to the county judge of the said county of Rensselaer, from the de- termination made by you on the first day of August, 1878, laying out {altering, or as the case may be) a highway in said town, beginning {insert descrip- tion), and that said appeal is brought on the ground, etc. {insert ground), and is brought to reverse entirely your said determination {or if part only), to reverse your determination in so far — {specifying the parts to he reversed). Dated, &c. Signature. 414 Forms. No. 44. NOTIOE TO OCCUPANTS OF LAND. See ante, p. 207. To A. B. : Take notice that we shall attend at the house of J. R., in the town of Pittstown, in the county of Rensselaer, on the 6th day of October, 1878, at ten o'clock in the forenoon of that day, to hear and de- termiae the appeal made by 0. D., of said town, to G. L., county judge of the said county, from the order and determination of E. B., A. C, and D. L., commissioners of highways of the said town of Pitts- town, made on the 3d day of April, 1878, and filed and recorded in the town clerk's office of the said town, on the 16th day of April, 1878, refusing to lay out, etc. {as in the appeal). Signed, Dated, etc. Referees. No. 46. SUBPCElSrA FOE WITNESS UPON AN APPEAL. See ante, p. 209. County of Rensselaer, 1 „„ . Town of Berlin, [ ' To E. F. and J. K. : You, and each of you, are hereby commanded, in the name of the people of the State of New York, to appear before the undersigned, referees, appointed by the county court of Rensselaer county, at the house of L. R., in the town of Berlin, county of Rensselaer, on the 3d day of July, 1878, at ten o'clock in the forenoon, to testify respectively in a matter of a certain appeal from the decision of the commis- FoEMS. 415 sioners of highways of the said town of Berlin to the said county court, and then and there to be heard on the part, and in behalf of E. F. appeUant (or of the said commissioners as the case may be). Given under our hands this 20th day of June, 1878. Signatures. No. 46. DECISION OF EEFEEEE8 ON APPEAL. See ante, p. 213, Whereas, Holloway Long, of the town of York, in the county of Livingston, on the first day of July, 1878, appealed to the Hon. Scott Lord, county judge of said county, from the determination of the commissioners of highways of the said town, made on the 15th day of June, 1878, in {laying out, altering, discontinuing, refusing to lay out, alter, discon- tinue), a highway in the said town, which highway is particularly described iu the said appeal hereto an- nexed {and whereas, Richard Bailey and John Bmith also appealed from the same determination of the said commissioners, which said appeals are also hereto annexed), and whereas, after the expira- tion of sixty days after such determination had been filed m the office of the town clerk of the said town, the said county judge, according to the form of the statute in such case made and provided, appointed us, James Johnson, of the town of Avon, Hiram Dennison, of the town of Lima, and James S. Wads- worth, of the town of Geneseo, three disinterested freeholders, who had not been named by the parties interested in the appeal, and who are residents of the county, but not of the town wherein the road is located, as referees, to hear and determine all the 416 Forms. appeals that had been brought in relation to the said determination of the said commissioners, which said appointment is hereto annexed, and we having given notice pursuant to law, to the said commissioners of highways (and to John Rogers, an applicant for such road), specifying the 25th day of August, 1848, as the time, and the dwelling-house of Jacob Howe, in the said town of York, as the place, at which we would convene to hear the appeal, which notice was duly served at least eight days before the said time of convening, to wit : on the 16th day of August, 1878, and we having convened at the time and place speci- fied in said notice, and before proceeding to hear said appeal {or appeals) having been duly sworn by an officer authorized to take affidavits to be read in courts of record, to wit : Robert Jones, Esquire, a justice of the peace of the said county, faithfully to hear and determine the matters referred to us, have heard the proofs and allegations of the parties, and do there- upon order, determine and adjudge that the said de- termination of the said commissioners of highways be and the same is hereby reversed (or affirmed, or reversed in so far {stating part reversed], and affirmed as to the residue, [and, if the road is to he laid out by the referees add] ), and we do further order and determine that the said highway be laid out in accord- ance with the application of the said A. B., and the same is hereby described as follows : {insert descrip- tion.) Witness our hands this 25th day of August, 1878. Referees' Signatures. FOEMS. 417 No. 47. NOTICE TO REMOVE EENOES. See aTvte, pp. 181, 217. Whereas, the undersigned, commissioners of high- ways of the town of Wilton, in the county of Saratoga, have laid out a public highway, by an order dated November 25, 1878, and duly filed with the town clerk of said town, which said road passes through inclosed lands, owned {or occupied) by you {insert route as in survey) ; and, whereas, our de- termination in the matter of laying out such road has not been appealed from : Now, therefore, please to take notice, that you are required to remove your fences from within the bounds of said highway, with- in sixty days after service hereof. Yours, etc. Dated, etc. No. 48. AFFIDAVIT FOB OEETIOBAEI. See ante, p. 219. Kensselaer CorrNTT, ss. : J. G., being duly sworn, says that he is a resident of the town of Berlin, in said county, and liable to be assessed for highway labor therein ; that on the 3d day of July, 1878, G. L. and D. S., two of the commissioners of highways of the said town of Berlin, on the application of E. C, made an order laying out a highway in said town, commencing, etc., {insert description), which said order was filed and recorded in the town clerk' s office of said town, on the 5th day of July, 1878, and is in the words and figures follow- ing, to wit : {insert copy of order) that the highway go laid out passes through the improved and culti- 53 418 FoEMS. Fated lands of tMs deponent, and of M. "N. and O. P. And this deponent further alleges that the said road so laid out, as aforesaid, was laid out without the certificate of twelve freeholders ; and that W. D., one of the alleged freeholders who certified to the necessity and propriety of the said road, had, at the time of making such certificate, no legal title to any real estate. And this deponent further alleges, that the said order laying out the road, as aforesaid, was made by the above named two commissioners, with- out the intervention of G. D., one of the commis- sioners of highways of said town, and without any notice to him to attend the meetings of the commis- sioners for the purpose of deliberating on the subject of such order ; and that the order laying out said road does not show that the said G. D., participated in the proceeding, or was notified to do so. Sworn, etc'. J. G. No. 49 a. WKIT OF CERTIORARI. See ante, p. 219. The People of the State of New York: To A. W., J. W. and W. H., referees appointed by the county judge of Washington county, on the 3d day of June, 1878, to hear and determine the appeal of John McFarland and William McFarland, from the determination of the commissioners of high- ways of the town of Salem, in said county, in refus- ing to lay out a highway in said town. We, being willing, for certain causes, to be certified of a certain decision made by you on a certain appeal of John McFarland and William McFarland, from the determination and decision of the commissioners FoKMS. 419 of Mgliways of tlie town of Salem in the county of Washington, aforesaid, in refusing to lay out a road in said town, under and by virtue of tlie statutes made and provided, we command you, that the said appeal, together with the testimony given, and offered to be given, on the hearing thereof, with your deci- sion thereon, with all things touching and concerning the same, by whatever names the parties thereto are called, before our justices of our Supreme Court, at the City Hall of the city of Albany, on the first Monday of May next {time and place of the next general term), you send, under your hands, together with this writ ; that our said court may further, there- upon, cause to be done therein what of right ought to be done. Witness, A. M. Osborn, one of the Justices of our Supreme Court; at the court-house inthevUlage of Catskill this 10th day of January, 1878. JOHN WILEY, Clerk. {Indorsed.) On the application of Edward Long, counsel for the applicant, and on the affidavit of J. G., dated the 3d day of October, 1877, I allow the within writ of certiorari to issue ; and let said affi- davit be filed in the office of the clerk of Columbia county. A. M. OSBOEIS", Justice Supreme Court. No. 49 b. EBTUKN TO "WEIT OE CEETIOEAEI. See ante, p. 219. WASHinrGTON County, ss. : By virtue of and in obedience to a writ of the people of the State of New York, hereunto annexed, and directed and delivered unto us, A. B., C. D. and E. 420 FoKMS. F., referees, appointed by the county judge of Wash- ington county, on tlie 3d day of June, 1877, to hear and determine the appeal of John McFarland and WiUiam McFarland, from the determination of the commissioners of highways of the town of Salem, ia said county, in refusing to lay out a road in said town. We do hereby certify and return that on the 3d day of June, 1877, we were appointed, by the county judge of Washington county, referees to hear and determine the appeals of William McFarland and John McFarland, from the order and determina- tion of the commissioners of highways of the town of Salem, in refusing to lay out a highway in said town, which order and determination were made on the 6th day of April, 1878, and filed and recorded in the town clerk's oflBice of said town of Salem, on that day, and that the order appointing us is in the words following, to wit: {insert copy order appomting). We do further certify, that the appeal of the said William McFarland and John McFarland, and which was delivered to us by the said county judge, is in the words following (insert copy of appeal, proceed giving a detcdled statement of every step taken, with copies of all orders, papers, evidence, etc.). In testimony whereof, we have respectively, to these presents, affixed our seals and subscribed our names, this 20th day of January, 1878. Signatures, [l. s.J No. 60 a. APPLICATION TO COUNTY COURT TO APPOINT OOM- MI8SI0NEES TO ASSESS DAMAGES. See ante, p. 224. To the County Court of Albany County : Whereas, we, the commissioners of highways of the town of Watervliet, in said county, by an order dated Forms. 431 September 20th, 1878, have laid out a highway in said town, beginning, {insert description as in the order). Now, therefore, we the said commissioners, do hereby apply for the appointment of commissioners to assess the damages occasioned by the laying out of said highway, pursuant to the statute in such <3ase made and provided. Dated, etc. Signatures. No. 60 b. OEDEB APPOINTING OOMMISSIONEES TO ASSESS. See cmte, p. 224. At a term of the county court of Albany county, held at the court-house in the city of Albany, in said county, on the 25th day of September, 1878. Present — Hon. John Doe, County Judge. In the matter of the application of I the Cominissioners of Highways of >- the town of Watervliet. \ On reading and filing the application of E. Gr., H. B. and N. B., commissioners of highways of the town of Watervliet, in said county, setting forth the laying out of a highway in said town, beginning, {insert description), and praying the appointment of commissioners to assess the damages ascertained thereby, it is ordered that P. G., H. J. and L. M., of said town, be and they are hereby appointed such commissioners, whose duty it shall be to take the oath of office prescribed by the constitution, and to proceed, on receiving at least three days' notice of the time and place, to meet the said highway commis- sioners and take a view of the premises, hear the 422 Forms. parties and such witnesses as may be ofltered before them, and to administer oaths to such witnesses ; and they shall all meet and act, and they or a majority of them shall assess aU damages which may be re- quired to be assessed on the said highway, and shall deliver their said assessment to the said commissioners of highways. No. BO c. NOTICE OF MEETING OP COMMISSIONERS TO ASSESS DAMAGES. See ante, p. 224. To John Cole : Sir — Take notice that the commissioners appointed by the county court, by an order bearing date on the 25th day of September, 1878. to assess the damages occasioned by a highway laid out by the commission- ers of highways of the town of Berlin, in the county of Rensselaer, beginning, {insert description of road), will meet for the purpose of making such as- sessment, at the house of William Wood, in said town, on the 13th day of February next. Signature. Dated, etc. No. 61. ASSESSMENT BY COMMISSIONERS. See ante, p. 226. Whereas, the undersigned. Walker Gilbert, Daniel GaUor and Ira Wood, were appointed by an order of the county court, of the county of Albany, made on the 2.5 th day of September, 1878, on the application of E. G., H. B. and N. R., commissioners of high- FoEMS. 423 ways of the town of Wilton, in said county, commis- sioners to assess the damages occasioned by the laying out of a highway in the said town, beginmng, {insert descfrvpUon as in the order), which highway passes through the improved lands of P. D., D. C. and J. I., and was laid out by the commissioners of highways of the said town, by an order dated September twen- tieth, 1878. Now, therefore, we, the said commissioners, having taken the oath of office prescribed by the constitution and having all met and acted on the matter commit- ted to us, at the residence of P. D., in said town, this twenty -fourth day of November, 1878, pursuant to a notice from said commissioners of highways, of at least three days, according to law, and having taken a view of the premises, and heard the parties and such witnesses as have been offered before us, do, thereupon, determine and assess the damages required to be assessed on the said highway as follows, viz : We assess the damages of P. D. at one hundred dol- lars ; we assess the damages of D. C. at one hundred and fifty doUars, etc. Witness our hands this 24th day of November, 1878. Signatures. No. 52. NOTICE OF DBA WING OF JTTET TO EE- ASSESS DAMAGES. See ante, p. 227. Notice is hereby given that I, John Doe, "conceiv- ing myself aggrieved by {or we, the corrmiissioners of highways, feeling dissatisfied with) the assessment of damages made by H. F., H. C. and J. S., com- missioners appointed by the county court of the county of Eensselaer, to assess damages occasioned bv the laying out of a highway in the town of Berlin, 424 FOEMS. in said county, beginning, {insert description), which said assessment was filed in the office of the town clerk of the said town, on the 24th day of November, 1878, do hereby ask for a jury to re-assess the said damages, and such jury will be drawn at the clerk's office of the town of Nassau, ia said county, adjoin- ing the said town of Berlin, on the 20th day of De- cember, 1878, at ten o'clock in the forenoon of that day, by the town clerk of the said town of Nassau. Dated, etc. Signature. No. 52 a. NOTICE TO ADJOrNING TOWN CLEBK OF DEAWINft OP JTTET. See ante, p. 228. To J. K., town clerk of the tovm of Nassau, in the county of Rensselaer : Take notice that the undersigned, feeling himself aggrieved by the assessment of certain commissioners appointed by the county court of said county to assess damages occasioned by the laying out of a highway in the town of Berlin, in said county, and having asked for a jury to re-assess such damages, such jury will be drawn by you at the town clerk' s office in said town of Nassau, on the 20th day of December, 1878, at ten o'clock in the forenoon of that day. Dated, etc. Signature. No. 53. TOWN clerk's CERTIFICATE OF DRAWING OP JUET. See ante, p. 228. Rensselaer County, ss. : \. J. K., town clerk of the town of Nassau, in said cotinfy, do hereby certify that the following twelve FoBMS. 425 names were tMs day drawn by me from a box con- taining tlie names of all such persons, now residents of said town, whose names are on the last list filed in the town clerk's office of said town, of those se- lected and returned as jurors, pursuant to the Ee- vised Statutes, who are not interested in the lands through which a road in the town of Berlin was laid out by the commissioners of highways of said last- mentioned town, on the 20th day of September, 1878, or of kin to either or any of the parties, and that the said twelve names were so drawn by me to make a jury to re-assess the damages occasioned by the lay- ing out of the said highway. A. B., E. F., C, D., G. H., etc., inserting the twelve names. Witness my hand this 20th day of December, 1878. R. P., Town OlerJc. No. 64. STJMMOIfS FOB JUBT. See ante, p. 229. Rensselaeb Cottntt, ss. : To Walteb Scott, one of the constables of the town of Berlin in the said county : You are hereby directed to summon {name the twelve persons) to appear at , in the said town, on the 25th day of September, 1878, to make a jury to re-assess the damage occasioned by the laying out of a highway in the said town, by the highway com- missioners thereof, on the 10th day of August, 1878. Hereof fail not. Witness my hand this 8d day of September, 187&. J. B., Justice of Peace. 54 426 FoKMS. No. 54 a. OATH OF JTJBT. YoTi, and each of you, do solemnly swear, in the presence of Almighty Grod, well and truly to deter- mine and re-assess such damage as shall be submitted to your consideration. No. 65. VERDICT OF EE-ASSESSMENT. See ante, p. 229. We, the subscribers, a jury duly drawn and sworn to determine and re-assess the damages occasioned by the laying out of a highway in the town of Ber- lin, in the county of Rensselaer, by the highway commissioners thereof, on the 18th day of September, 1867, which said highway runs from {describe the higJiway as in the order, and state whose lands it passes through), having taken a view of the premises, and heard the parties and such witnesses as have been offered by them and sworn before us, do hereby determine and re-assess the said damages as follows, viz. : We determine and re-assess the damages of H. B. at one hundred dollars. {Specify each person^ s damages passed upon.) To be signed by the six Jurors. ReNSSELAEE COTJISTTY, SS. ." I, J. B., the justice of the peace, by whom the within {or above) named jury were summoned, drawn and sworn, do certify that the within {or above) is the verdict of re-assessment rendered by the jury, pur- suant to the said proceedings, this 28th day of Sep- tember, 1878. J. B., Justice of Peace. FoEMS. 427 No. 56. AOEEEMENT OF OWNEE AND COMMISSIONEES AS TO DAMAGES. See ante, p. 222. Whereas, the commissioners of highways of the town of Pittstown, in the county of Kensselaer have, by an order dated the 10th day of January, 1878, laid out a highway in said town, beginning {describe it as in the order), which said highway passes through the improved lands of John Clark : Now, therefore, the damages of the said John Clark by reason of the laying out of said highway, are hereby ascertained by agreement of the said John Clark, and the said commissioners of highways, at the sum of one hun- d/red dollars. In witness whereof we, the said parties, have hereto get our hands this 12th day of January, 1878. Signatures. No. 57. EELEASE OE DAMAGES BY OWNEE. See ante, p. 222. A highway having been laid out, on the day of the date hereof, by the commissioners of highways of the town of Rome, in the couny of Oneida, on the appli- cation of John W. Tallmadge, through the improved land of me, Henry Palmer, commencing at, etc., {insert the description of the road as in the order.) Now, know an men by these presents, that I, the said Henry Palmer, for value received, do hereby release all claim to damages by reason of the laying out and opening the said highway. Witness my hand and seal the 12th day of Janu- ary, 1878. HENRY PALMER, [l. s.] 428 FoEMS. No. 58. NOTICE OF APPLICATION TO SITPEBVISOES. See ante, p. 238. Notice is hereby given tliat the undersigned, E. Gr., of the town of Berlin, in the county of Rensselaer, ■will apply to the board of supervisors of said county, at fhetr next annual meeting to be held at the court- house in the city of Troy, in said county, on the 3d day of December, 1878, to be caused to be levied, col- - lected and paid to the treasurer of the said county of Rensselaer, such sum of money as may be necessary to construct and repair bridges in said county, and to prescribe upon what plan and in what manner the moneys so raised shall be expended. Dated, etc. E. G. No. 59. See ante, p. 286. Whereas, a highway was laid out in the town of Berne, in the county of Albany, on the 10th day of July, 1878, by the commissioners of highways of the said town {orby E. G., 0. D. and E. F., referees, etc.), beginning {insert description as in the order, including a statement of the width of the road), which road is encroached upon by the fence of R. C, to the extent of {state how much), on the north side (describe where). Now, therefore, we, the commissioners of highways of the said town {state the attendance of, or notice to all the commissioners, unless they all sign the order), do hereby order that such fence be removed, so that such highway may be of the breadth originally intended. Dated, etc. Signatures. FOEMS. '429 No. 60. NOTICE TO BEMOVB ENCROACHMENT. See ante, p. 286. To Mr. R. C. : Sir — Please to take notice tliat an order, of which the annexed is a copy, has been duly made by the commissioners of highways of the town of Berne, in the county of Albany, and that you are hereby required to remove the fence therein specified, as encroaching upon the highway, within sixty days after service hereof. Dated, etc. Signatures. No. 61. DENIAL OP ENCBOACHMENT. See ante, p. 289. To the Commissioners of Highways of the town of Pittstown, in the county qf Rensselaer : Take notice that I hereby deny that the fences mentioned in the order and notice heretofore served on me, and dated June 3d, 1878, encroach upon the highway mentioned in said order and notice. Dated, etc. Yours, etc., G. W. No. 62. APPLICATION TO JUSTICE THEEEON. See ante, p. 289. To T. R., Justice of the Peace of the town of Pitts- town, in the county of Rensselaer : An order having, on the 3d day of June, 1878, been made by the commissioners of highways cf the 430 FoEMS. said town of Pittstown, of which the following is a copy {insert copy), and notice of said order having been duly served on A. B., one of the persons named therein, and through whose land said highway runs, requiring him to remove within sixty days according to said order, his fences therein mentioned as an en- croachment upon the said highway, and said A. B., having in writing denied that said fences encroached on said highway, therefore, I, E. G., one of the com- missioners of highways of the said town of Pittstown, do hereby apply to you, T, E,., one of the justices of the peace of said county of Rensselaer, for a precept, directed to any constable of the said town of Pittstown, to summon twelve freeholders thereof, to meet on the 5th day of September, 1878, at the dwelling-house of M. N"., in said town, to inquire into the premise, according to the statute in such case made and provided. Dated, etc. Signature. No. 63. SUMMONS TO FBEEH0LDEE8 IN CASE OF ENOKOAOH- MENT. See ante, p. 289. Oneida County, ss. : To any constable in the town of Oamiden, in the said county : You are hereby commanded to summon twelve freeholders of said town to meet on the 5th day of July, 1878, in the dwelling-house of E. J., in said town, to inquire into the matter of an alleged en- croachment upon the highway in said town leading from {here describe the place and the alleged en- croachment, as in the order) and you are to give at FOEMS. 431 least three days' notice to the commissioner of high- ways of said town and to C. D., of the time and place at which such freeholders are to meet. J. W., Dated, etc. Justice of the Peace. No. 64. OATH OF JUET. See ante, p. 290. You and each of you do solemnly swear, that you will weU and truly inquire whether any encroach- ment has been made, and by whom, on the highway now in question. No. 66. OATH TO WITNESS. See cmte, p. 290. You do swear, that the evidence you shaU give, in relation to the encroachment on the highway now in question, shaU be the truth, the whole truth, and nothing but the truth. No. 66. OEETIFIOATE OP JTJEY WHEN EKOEOACHMENT IS FOUND. See cmte, p. 290. Oneida County, ss : The undersigned, freeholders of the town of Cam- den, in said county, having met on the day of the 432 FoEMS. date hereof, at the dwelling-hoxise of E. J., in said town, pursuant to a summons from J. W., Esq., a justice of the peace of the said county, to inquire into the matter of an alleged encroachment on the highway, in said town ; specified in an order of the commissioners of highways of said town, dated Jan- uary 3d, 1878, a copy whereof is hereto annexed, having been duly sworn, and having heard the proofs and allegations which were submitted, do certify* that an encroachment on the said highway has been made, and that the same was made by John Jones, the present occupant (or hy Samuel Smith, a former occupant). Witness our hands this 13th day of July, 1878. Signatures. CEETIFIOATE WHEN NO ENOEOAOHMENT IS FOUND. {As above to*, continuing,) that no encroachment has been made, as was alleged, and we also ascertain and certify the damages which John Jones, the pres- ent occupant, has sustained by these proceedings at ten dolla/rs. Witness our hands this 13th day of July, 1878. Signatures. No. 67. ASSESSMENT BY OVEESEEE OP ADDITIONAL LABOB. See ante, p. 146. Whereas, the labor in road district No. 9, of the town of Schodack, in the county of Rensselaer has been worked out, commuted for or returned to the supervisor, and the highways of said district, are obstructed by snow {or as the case may be) and writ- ten notice has been given to me by two or more in- Forms. 433 habitants of tlie town, liable to payment of highway tax, requesting the removal of such obstruction. Therefore, I do hereby further assess the following named persons — actual residents in said district — the amount of labor set opposite their respective names, being in the same proportion, as near as may be, to the original assessment of labor on said high- ways for the year. Names. Days. Names. Days. James Holt 6 John Jones 4 Witness my hand this 9th day of January, 1878. JOHN JAY, Overseer. No. 68. NOTICE OF commissioner's RESIGNATION. See ante, p. 36. To A. B., C. D., and E. F., Esqrs., Justices of the Peace of the Town of Oreenhush : Take notice, that I hereby tender my resignation of the office of commissioner of highways of the said town of Grreenbush, for the following reasons : (CHve reasons.) Dated, etc. L- J- No. 69. COMPLAINT TO COMMISSIONER AGAINST OVERSEER. See ante, p. 115. To the Commissioners of Highways of the Town of Oreenhush : The complaint of A. B., a resident of the town of Greenbush, respectfully shows that C. D., the over- seer of highways for road district number five, in said 55 434 Forms. town, has neglected and refused to warn B. F. to work on the highways in said district, after having teen required so to do hy the commissioners, or one of them. And the said A. B. hereby requires the said commissioners of highways to prosecute the said C. D., for said offense. Dated, etc. A. B. No. 70. SEOTTEITT TO COMMISSIONEES FOR PROSECUTING OVEESEEE. See ante, p. 115. Whereas, John Doe has made complaint to the commissioners of highways of the town of Pittstown, that John Doe, overseer of highways for road district number 2, in said town, has neglected and refused to {insert matter complained of). Now, therefore, we, J. D. and W". H., of said town, do hereby undertake, pursuant to the statute in such case made and provided, that we will well and truly indemnify and save harmless the said commis- sioners of highways against any costs which may be incurred in prosecuting for the penalty annexed to such refusal or neglect. Dated, etc. A. B. [l. s. J C. D. [L. s.] No. 72. PETITION BY OVEESEEE OP HIGHWAYS WHERE OWNEE OP ANIMALS UNKNOWN. See ante, p. 327. To Chas. D. Lockwood, Esq., Justice of the Peace of the Town of Pittstown, Rensselaer county, N. T. : The petitioner states that the following animals: jJ'oBMS. 435 one black cow, with broken right horn, one brown mare, slightly lame in right fore leg, one bay colt, with white star in forehead and white hind fetlocks, two Berkshire swine, each with a slit cut in the right ear, and four Merino sheep, each marked with the letter B, were running at large on the first day of October, 1881, in a highway in said town leading from the house of Ira Allen to the house of John B. Sherman, and were then immediately seized by andtaken into the possession of the petitioner, and are now kept by him. (a) That the petitioner is an overseer of* highways of said town.(&) That the owner of said animals is not known to the petitioner, and cannot be ascertained by him with reasonable diligence, (c) Wherefore, the petitioner asks for a final order directing the sale of said animals above- mentioned, and the application of the proceeds thereof, as prescribed in title 10 of chapter 19 of the Code of Civil Procedure. PiTTSTOVP'N, Oct. 1, 1881. WILLIAM GORMAN. Rensselaer County, ss. : WiUiam Gorman, being duly sworn, says that the foregoing petition is true to his own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. WILLIAM GORMAN. Sworn to before me, this 1st ) day of October, 1881. ) Chas. D. Lookwood, Justice of the Peace. 436 Forms. No. 73. PETITION BY OWNER OF LANDS ADJOINING HIGHWAY. See ante, p. 327. As in No. 72, except what is contained between (a) and (6), in place of which insert this : That the highway where said animals were running at large bordered upon real property owned by the petitioner. No. 74. PETITION WHERE OWNER OP ANIMALS KNOWN. See ante, p. 327. As in ISo. 72, except what is contained between (S) and (c), for which insert this : That the owner of said animals, as petitioner is informed and believes, is John Doe. No. 75. PRECEPT UPON PETITION BY OVERSEER. See ante, p. 328. The people of the State of New York (a) to all persons having any interest in (6) the following animals, one black cow, with broken right horn, one brown mare, slightly lame in right fore leg, one bay colt, with white star in forehead and white hind fetlocks, two Berkshire swine, each with a slit cut in the right ear, and four Merino sheep, each marked with letter B. Whereas a petition was on the 1st day of October FoKMS. 437 1881, presented to me, stating that the above-described animals were, at the day mentioned, running at large in a highway in the town of Pitts town, leading from the house of Ira Allen to the house of John B. Sherman, and were then immediately seized by and taken into the possession of the petitioner subscrib- ing said petition, and are now kept by him, that said petitioner is an overseer of highways of said town, (c) and that the owner of said animals is not known to him,(d) wherefore he asks for a final order directing the sale of such animals and the application of the proceeds as directed by title 10 of chapter 19 of the Code of Civil Procedure : You are, therefore, required to show cause before me on the 15th day of October, 1881, at 9 o'clock, a. M., at my office in the village of Johnsonville, in said town, why the prayer of the petition should not be granted. PiTTSTOWif, October 1, 1881. CHAELES D. LOCKWOOD, Justice of the Peace. Where owner is known, insert in place of what is contained in No. between (a) and (&) this : To (John Doe) the owner of And in place of what is between (c) and (,d) this : that the owner of said animals is John Doe. No. 76. CERTIFICATE OP PEESONAL SERVICE UPON OWNER OF AKIMALS. See ante, p. 330. I certify that on the 2d day of October, 1881, in the town of Pittstown, in Rensselaer county, I served the within precept upon John Doe, who is described 438 FoEMS. therein as the owner of the animals named therein(a) by delivering to him personally a copy of the 8ame.(6) PiTTSTOWN, October 15, 1881. SHERMAN W. BELDING, Constable. No. 77. CBETIPICATE OF SERVICE WHERE OWNER NOT FOTJJSTD IN COUNTY. See ante^ p. 330. As in TSo. , except between (a) and (&), instead of which insert this : By leaving a copy thereof at his dwelling-house in said town, which is his last place of residence in said county, with Martha Doe, aged twenty years, a per- son of suitable age and discretion, and I further cer- tify that said John Doe cannot with reasonable diligence be found in the said county. No. 78. CERTIFICATE BY CONSTABLE OF SERVICE OP PRE- CEPT BY POSTING. See ante, p. 330. I certify (a) that on the 2d day of October, 1881, I served the within precept by posting a copy thereof in the following public and conspicuous places in the town of Pittstown, therein named, viz. : on the outer door of post-office at Johnsonville, on the outer door of district school-house No. 16 (which is the nearest district school-house to the place where Forms. 439 the seizure was made), in the public room of the hotel at Tomhannock, in the waiting-room of the Troy and Boston railroad station at Valley Falls, in the public room of the hotel at Raymertown, &,nd on the outer door of the store of Jonas Carr at Pitts- town Corners. (6) PiTTSTowN, October 15, 1881. SHERMAN W. BELDING, Constable. No. 79. INDORSEMENT ON PRECEPT AUTHORIZING ELECTOR TO SERVE BY POSTING. See ante, p. 329. Arthur S. Pile, an elector of the town of Pittstown, is hereby specially authorized to serve the within precept by posting a copy thereof in at least six public and conspicuous places in said town, accord- ing to the provisions of section 3088 of the Code of Civil Procedure. PiTTSTOWN, October 1, 1881. CHARLES D, LOCKWOOD, Justice of the Peace. No. 80. AFFIDAVIT OF ELECTOR OF SERVICE BY POSTING. See ante, p. 330. State of New York, ) , County of Rensselaer, I ' ' Arthur S. Pile, being duly sworn, says, I am an elector of the town of Pittstown, in said county, and 440 Forms. the person designated in the authority indorsed upon the within precept (continue as in JSo. 78, be- tween (a) and (&). ARTHUE S. FILE. Sworn before me, this 15th ) day of October, 1881. ) Chakles D. Lookwood, Justice of the Peace. No. 81. ANSWER BY OWNER OP ANIMALS. See ante, p. 331. John Doe, of Pittstown, for answer to the petition of William Grorman, dated October 1, 1881, in pro- ceedings under title 10 of chapter 19 of the Code of Civil Procedure, states, upon information and belief, that the animals named in the petition were not at large in the highway as stated in said petition when seized by the petitioner, but were in an inclosed lot belonging to the estate of Eri Barnes. He further states that the said animals are owned by him. JOHN DOE. ( Verification as in form No. 72.) No. 82: FINAL ORDER OP SALE WHERE NO APPEARANCE. See ante, p. 332. County op Rensselaer, Town of Pittstown, \ **• On the Ist day of October, 1881, a petition was presented to me by William Gorman, overseer of highways of said town, stating that the following Forms. 441 animals, namely, one black cow, with broken right horn, etc. {name the animals described in petition), were running at large on the 1st day of October, 1881, in a highway in said town leading from the house of Ira Allen to the house of John B. Sher- man, and were there immediately seized by, and taken into the possession of, the petitioner, and that the owner of said animals was not known, and could not be ascertained with reasonable diligence, and asking a final order directing the sale of said ani- mals, etc. On the same day I issued a precept directed to all persons having any interest in said animals requiring them to show cause, before me, on the 15th day of October, 1881, at 9 o' clock, a. m., at my oflSce in the village of Johnsonville, in said town, why the prayer of the petition should not be granted. At the time and place mentioned in said precept for the return thereto, (a) I waited one hour, and no person appeared and answered.(&) Wherefore, it is ordered that said animals seized be sold and the proceeds thereof applied as prescribed in title 10 of chapter 19 of the Code of Civil Procedure. PiTTSTOWN, October 15, 1881. CHAS. D. LOCKWOOD, . Justice of the Peace. No. 83. FINAL OBDER OF SALE "WHERE ANSWER PUT IN. See ante, p. 332. As in No. 82, except between (a) and (6), instead of which insert this : John Doe, of Pittstown, appeared and answered that he was the owner of said animals, that they 56 442 Forms. were not at large in the highway, as stated in said petition, but were in an inclosed lot belonging to the estate of Eri Barnes. A trial was had of the matter, and witnesses on behalf of petitioner and the claim- ant sworn and examined. Thereafter I rendered a decision granting the prayer of the petition. No. 84. WARRANT DIRECTING SALE. See ante, p. 332. The People of the State of New Yorlc to any Con- stable of the County of Rensselaer., greeting : On the 15th day of October, 1881, in proceedings under title 10 of chapter 19 of the Code of Civil Procedure, I made a final order directing the sale of the following animals seized when running at large in a highway in the town of Pittstown, in said county, viz. : one black cow, with broken right horn, etc. {name the animals described in petition) and the application of the proceeds thereof, as prescribed in said title. You are, therefore, commanded to sell said animals at public auction, for the best price which you can obtain therefor, and to make return thereof to me on the 26th day of October, 1881, at my office in the village of Johnsonville, in the town of Pittstown, aforesaid. Pittstown, October 15, 1881. CHAS. D. LOCKWOOD, Justice of the Peace. Forms. 443 No. 85. NOTICE OF SALE. See ante, p. 332. By virtue of a warrant issued pursuant to title 10 of chapter 19 of Code of Civil Procedure, command- iag the sale, at auction, of the following animals, namely, one black cow, with broken right horn, etc., (Ticmiing the animals), I hereby give notice that I shall expose said animals for sale, at public auction, to the highest bidder, on the 24th day of October, 1881, at 10 o'clock in the forenoon, at the hotel of Luke Reed in the town of Pittstown. PiTTSTOWW, October 17, 1881. SHERMAN W. BELDING, Constable. No. 85. BETITKN BY CONSTABLE OP SALE OE ANIMALS. See ante, p. 332. Rensselaee County, ss.: To Chas. D. Lockwood, Justice of the Peace of the Town of Pittstown, in said County : I, Sherman W. Belding, one of the constables of said town and county, and to whom was delivered a certain warrant, issued by you and directed to any constable of the said county, commanding him to sell the following animals : one black cow with broken right horn, etc. {naming the animals), do hereby certify that on the 24th day of October, 1881, having given at least six days' public notice of the 444 FoEMS. time and place of sucli sale, did sell at public auc- tion, at the hotel of Luke Reed in said town, the animals mentioned and described in said warrant, to the following persons and for the following prices, viz.: One black cow, with broken right horn, to James C. Sherman, for the sum of twenty-five dollars, he being the highest bidder and that being the highest price bid therefor {naming the other animals and price and purchaser in like manner). PiTTSTowN, October 2Q, 1881. SHERMAN W. BELDING. No. 86. DEMAND OF POSSESSION BY OWNER OF ANIMALS. See ante, p. 337. To Chas. D. Lockwood, Justice of the Peace of the Town of Pittstown : I hereby demand possession of one brown mare and one bay colt, of which I am the owner, seized by William Gorman on the 1st day of October, 1881, while at large in the highway leading from the house of Ira Allen to the house of John B. Sherman in said town. Pittstown, October 14, 1881. JAMES C. SHERMAN. No. 87. AFFIDAVIT UPON DEMAND OF POSSESSION OP OWNERSHIP. See ante, p. 337. State of New York, ] County of Rensselaer, \ **"' James C. Sherman, being duly sworn, says that FoEMS. 445 lie is the owner of the following animals, seized while at large on the highway leading from the house of John B. Sherman to the house of Ira Allen, in the town of Pittstown, in said county, by William Gorman, overseer of highways, on the 1st day of October, 1881, viz., one brown mare, slightly lame in right fore leg, and one bay colt with white star on forehead and white hind fetlocks, (a) JAMES C. SHERMAN. Sworn before me, the 14th ) day of October, 1881. j Chas. D. Lookwood, Justice of the Peace. AFFIDAVIT THAT ANIMALS WERE SET AT LAEGE. In case the animals have been set at large by some person other than the owner, add after (a) : That deponent is informed and believes that the running at large of said animals was caused by the wilful act intended to eJSect that purpose of Richard Roe, who drove them from a field adjoining said highway, where they were pastured, into said high- way. AFFIDAVIT WHBEE DEMAND WAS MADE AFTEE FINAL OEDER. Where the demand is made after the final order and before sale, give a reason thus : That the reason why claimant failed to apC^ear upon the return of the precept was that he was absent from the town of Pittstown, where he resides, and did not know of the seizure of such animals, or 446 FoEMS. that they were at large, until after the time of such return. No. 87a. (r) AFFIDAVIT OF THIRD PERSON SHOWING WILFUL SETTING AT LARGE. See ante, p. 337. State of New York, ) . Bensselaer County, f " John Jones, being duly sworn, says that he, while upon the highway near the house of John B. Sher- man, in the town of Pittstown, in said county, about nine o'clock on the morning of the 1st day of October, 1881, saw Richard Roe open a gate leading from said highway where a brown mare and black colt, the property of James C. Sherman, were pastured, and drive said mare and colt into the highway and shut the gate behind them, and that thereafter said mare and colt wandered along said highway toward the house of Ira Allen, and were last seen by depo- nent grazing in company with a cow and some sheep and pigs. JOHN JONES. Sworn before me, this 14th ) day of October, 1881. ) Charles H. Miter, Notary Public. Forms. 441 No. 88. APPLICATION FOE A PRIVATE EOAD. See avie, p. 368. To the Commissioners of Highways of the Tmon of Mendon, in the County of Monroe : The subscriber, a resident of said town, and liable to be assessed for highway labor, hereby makes application to you to lay out a private road for his use, beginning, etc. {insert description, specifying its width and location, courses and distances), that said road runs through the lands of Henry Barton and John Jones. Dated, etc. . A. B. No. 89. NOTICE TO OWNER OR OCCUPANT. See ante, p. 369. To Lemon Grippen : Please take notice that on the 20th day of July, 1878, at 11 o'clock in the forenoon, at the house of James S. Forbes, in Wilton, a jury wiU be selected for the purpose of determining upon the necessity of the road asked for in the application, of which a copy is annexed, and to assess the damages by rea- son of opening the same. Dated, etc. Signatures, Commissioners. 448 Forms. No. 90. OEETIPICATE OF JURY UPON APPLICATION FOR A PRIVATE ROAD. See ante, p. 371. We, the undersigned, being disinterested freehold- ers of the town of Green, in the county of Erie, hav- ing met on the 23d day of May, in the year 1875, at the residence of Anson Eoice, in said town, having been duly sworn well and truly to examine and cer- tify with regard to the necessity and propriety of the road described in the annexed application of A. B., and having viewed the lands through which it is pro- posed to be made, do certify, that in our opinion it is necessary and proper to lay out a private road for the use of the said A. B., pursuant to his said applica- tion, and we do assess the damages as follows : to John Hall, $100. In witness whereof, we have hereunto subscribed our names, this 23d day of May, 1878. P. W., S. T., etc. No. 91. ORDER POR LAYING OUT A PRIVATE ROAD. See ante, p. 872. At a meeting of the commissioners of highways of the town of Mendon, in the county of Monroe, at the residence of Anson Boice, in the said town, on the 23d day of November, 1878, all the said commission- ers having met and deliberated on the subject of this order (or if tut two of the commissioners met, say, Forms. 449 all the said commissioners having been duly notified to attend the said meeting, for the purpose of deliber- ating on the subject of this order), upon the applica- tion of A. B., for the laying out of the private road hereafter described, and on the certificate of twelve reputable freeholders of said town, convened and duly sworn, after due notice to the owner {or occu- pant) of the lands through which said road is to pass, as required by the statute, certifying that such road was necessary : It is, therefore, ordered and deter- mined by the said commissioners that a private road be laid out for the use of the said A. B., pursuant to his application, the courses and distances whereof, according to a survey thereof which the said com- missioners have caused to be made, are as follows : {insert the survey.) And it is further ordered, that the line above described shall be the center of said road, and that said road shall be of the width of two rods. In witness whereof, we have hereunto subscribed our names this 23d day of November, 1878. A. B., ) C. D., >- Commissioners. E. F.,j No. 92. commissionee's consent to woek in anotheb district. See ante, p. 131. Whereas, A. B., a resident of road district No. 7, in the town of Hoosic, in the county of Eensselaer, is assessed six days' labor in district No. 3, in said town, for lands situate therein, therefore at his re- 57 450 FoEMS. quest we hereby approve of his applying the work so assessed in respect to such lands in said district No. 3, where the same is situated. Dated. (Signed.) No. 93. NOTICE TO AGENT OF NON-EESIDENT. See ante, p. 132. To C. D., Agent of A. B., a Non-resident Owner of Lands in the Town of Brunswick, in the Coun- ty of Rensselaer : Take notice that A. B., a non-resident of the said town, is assessed four days' labor in road district No. 6, in said town, and that said labor is required to be performed on the road between the house of J. K. and Millville in said district, on the third day of May next and the days following. Dated, etc. Yours, etc. J. D., Overseer. No. 94. NOTICE IN CASE OF NON-EESIDENTS. See ante, p. 132. Notice is hereby given that the highway labor as- sessed on the following described parcels of land in the town of , county of , owned by non- residents, is required to be performed from the 6th to the 12th days of June next, in road district No. 2, FoEMS. 451 in said town, on the highway leading from {describe locality with reasonable accuracy). Owner's names. Description of lands. Assessment. Jared Rust N". pt., L. 10, 100 acres. 10 days. Dated, etc. A. B., Overseer of Dist No. 2. No. 95. overseer's COMPLAINT FOR REFUSAL TO "WORK, ETC. See ante, p . 135. Seneca County, ss. : A. B., being duly sworn, says, that he is overseer of highways of road district No. 9, in the town of Ovid, in said county ; that on the 17th day of June, 1878, he gave C. D., who resides in said district, and is assessed to work on the highways therein, notice to appear on the 19th day of June aforesaid, with a {state what Mnd of team or implements were re- quired) on the road {state where), to do such work ; and that the said C. D. did not appear nor furnish any one in his stead {or did not bring such team or implement as was required, stating it ; or when he so appeared was idle, or hindered others from work- ing, or whatever the complaint is), and has not paid the commutation money for said work, nor rendered a satisfactory excuse for such neglect. A. B, Subscribed and sworn to before me, ) this 3d day of July, 1878. f T. E., Justice of the Peace. 462 PoBMS. No. 96. SUMMONS. See ante^ p. 135. Seneca County, ss.: To any Constable of the Town of Ovid, in said County : Whereas, A. B., overseer of highways of road dis- trict No. 9, in said town, has made complaint on oath before me, a justice of the peace of said town, that CD., a resident of said road district, and assessed to work on the highways therein, after being duly notified to appear on the 19th day of June, instant, with {state what team or implements were required) to do such work ; and that the said C. D. {stating the matter of the complaint), and has not paid the commutation money nor rendered a satis- factory excuse. You are, therefore, hereby required to summon the said C. D. to appear forthwith before me at my office in the said town, to show cause why he should not be fined according to law for such refusal {or neglect or misconduct). Ovid, June 21, 1878. G. H., Justice of Peace. No. 98. constable's return on summons. See ante, p. 135. The within summons, personally served on Richard Roe, by reading the same to him, this 22d day of June, 1878. JOHN DOE, Constable. Forms. 453 No. 98. JUDGMENT THEREON. See ante, p. 136. In the matter of the complaint of A. B., overseer of highways, lis. CD. The said 0. D., having been duly summoned to appear before me, J. B., the justice of the peace to whom the said complaint was made, to show cause why he should not be fined, according to law, for the refusal (or neglect, or misconduct) set forth in said complaint ; and no sufficient cause having been shown by said C. D., I do therefore impose upon the said 0. D. a fine of three dollars for said offense, together with two dollars for the costs of the pro- ceedings under the said complaint. Gr. H., Dated, etc. Justice of Peace. No. 99. WARRANT TO LEVY PINE. See ante, p. 186. Seneca Cottntt, ss.: To any Constable in the Town of Ovid, in the said County : You are hereby commanded to levy of the goods and chattels of C. D. four dollars and eighteen cents ; being one dollar for fine imposed by me, for {^specify the neglect or misconduct), as set forth in the complaint of A. B., overseer of highways of road district No. 3 in the said town ; and also three dollars and eighteen cents, for the cost of the pro- ceedings on said complaint ; and bring the said sum of money before me without delay. Ovid, June 23, 1873. G. H., Justice of Peace, [l. s.] INDEX. ABATEMENT : Page. of actions by or against commissioners 100 of highway labor for shade trees 144 of highway labor for watering trough 145 of obstructions in highways 309 ABUTTING OWNER: rights of 21 ACTION: against towns for neglect to repair 98 by and against commissioners 47, 98 against railroads 100 against successors 100 how brought 103 commissioners may employ counsel in 103 when not to abate 103 judgments in, how collected 104 for special damages for obstructing highway 313 under the law as to strays 334, 338 , 343, 345, 346 ACCOUNT: of commissioners to board of town auditors 61, 93, 93 of commissioners for money 61 overseers to render, to commissioners , 116 ADJOINING LANDS: right of public to travel on 4 uninclosed 5 ADJOURNMENT: of referees on appeal 138 AGREEMENT: as to damages on laying out highway 333 ALTERATION OP HIGHWAYS: commissioners may alter 188 application for 189 survey on 191 order for, to be posted 191 jury, when required 191 order for, how made 193 papers to be filed 172» 193 456 Index. ALTERATION OF HIGHWAYS: Page. between towns 193 of appeals from order for 201 AOTMALS IN HIGHWAY: action for permitting animal to stray 334 amount of penalties 325 seizure of animal 326 proceedings after seizure 327 petition and precept 827 service of precept 328, 329 proceedings on return of precept 331 answer by claimant or owner 331 warrant for sale of animal 331 manner of sale 331 application of proceeds of sale 332 disposition of surplus 333, 334 appeal from order as to surplus 334 proceedings upon decision for owner 335 demand of possession by owner 336, 337, 339 actions by owner and by petitioner or officer. . . 838, 345, 34(J order on demand 839 appeals from orders 840, 341 . limitation of actions 84'J actions for seizure 343 animals of different owners 343, 344 agent may act for principal 346 menageries 347 APPEAL: from assessment of labor 127 from orders laying out, altering or discontinuing high- ways 201 who may appeaL . 201 to what judge 201 within what time 201 non-residents may take 202 when appeal does not lie 203 how brought 204 appointment of referees 205 order to be iiled 206 notice to referees 206 referees to give notice , 206 proceedings of referees 208 referees to be sworn 208 referees may summon vyitnesses 209 authority of referees , 209 decision of referees 211 determination, how made 213 notice of decision 214 commissioners to carry out decision 215 IKDEX. 457 APPEAL — ConUnued. Page. decision to remain unaltered four years 215 decision conclusive 316 wlien stays proceedings 316 removal of fences 317 referees' fees 217 certiorari of proceedings 318 , in cases of encroachment 292 in proceedings under the stray law , 334, 340, 841 in proceeding for private road 373 APPLICATION: to lay out highway 149 notice of 160 to be filed 172 to alter roads 189 to discontinue roads 189 APPOINTMENT: of overseers of highways 108 ASSESSMENT: of damages on laying out highway 222 ASSESSMENT OP LABOR. (See " Labor on Highways.") AUDITORS : commissioners to account to 61, 92 BICYCLE : right to use in highway .... 323 BOND: of commissioners of highways 33 liabilities of suj:eties to 34 how prosecuted 34 BOOKS : delivery of, how compelled 95 BOUNDARIES : by highway 358 BRIDGES : overseers have no care of .... , 45 duty of commissioners "to repair 44 commissioners not bound to repair without funds 46 liability of commissioners for not keeping in repair 46 what are public 235 defined , 335 when, are highways 236 what constitutes public bridge 236 what bridges commissioners to repair 337 58 458 Index. BHIDO'ES— Continued. Page. when to be built or repaired at expense of county 238 repair of, between towns 343-353 money for repair of, how raised 353 notice on, as to riding or driving 254 injuiy to 355 over canals 355 powers of supervisors 240-345 (See "TollBridge.") BUILDINGS : laying out road through 156 BURYING GBOUND : highway through 158 (See ' ' Cemeteries.") CANALS : are public highways 25 appropriation of lands for 35 public bridges over 355 CARTS : overseer may require 134 CARRIAGES : on meeting to turn to the right 314 running horses attached to 819 owners of, when liable for acts of driver 330 term defined 330 hackney coaches 321 CATTLE : may be driven on highway 4 CATTLE IN HIGHWAY. (See "AnimaUin Highway.") CEMETERIES : lands in, exempt from assessment 129 CENTER OP ROAD : what is 315 in winter 316 CERTIFICATE : of freeholders on laying out road 168, 193 CERTIORARI : of proceedings of referees on appeals 318 of proceedings to assess damages on laying out highway, 233 CITIES : liability of, for unsafe streets ' 52, 278 liability of, for defects in sidewalks 276 Index. 459 COMMISSIONERS OP HIGHWAYS : Page. number of 33 term of office 33 election of gg vacancy in office of 33, 33 to administer oaths 33 number of, how changed 33 to give bond 33 when there is a failure to elect 34 to take oath 35 penalty for neglecting to take oath. 35 penalty for refusing to serve 36 resignation of 36 when two may act 36 general powers and duties of '. 37 to repair roads and bridges 37, 43 to regulate roads 37, 40 to alter inconvenient roads 37 to cause roads to be ascertained, described and entered of record 37, 40 to divide town into road districts 37 to assign inhabitants to districts 37, 57 to require overseers to warn inhabitants to work 38, 58 when they act in a ministerial capacity 43 duty, as to repair of bridges 44 not bound to repair without funds 46 liability of, for not keeping roads and bridges in repair. 47 when plank and turnpike roads exempt from jurisdiction of. 54 to divide roads between cities, towns and villages 56 to act as inspector of plank roads and turnpikes 59 to lay out and discontinue roads 61 to render account to town auditors 61, 92 to account for money 61, 93 how to raise money for repair 63 repair, when roads and bridges are damaged or destroyed. 71 duty of, as fence-viewers 73 may consent to use of highway by railroad 86 may agree with turnpike or plank-road company for use of highway 89 to erect mile stones 90 to erect guide posts 90 when to procure scraper and plough 91 duty of, in case of fire in woods 91 to deliver records, books, papers, etc., to successor 93 legal proceedings by or against 98 actions by, against railroads 100 against successors 100 mandamus against 93 injunction against 95 ■when to prosecute overseers 117 460 IlTDEX. COMMISSIONERS OP HIGHWAYS — Continued. Page. when and where to meet to assess labor 119 when and how to assess highway labor 118 proceedings of, on laying out road 149-187 are trespassers when they exceed their jurisdiction 159 to carry out determination of referees on appeal 315 may alter highways ■ • • 188 may discontinue roads 188 what bridges to repair 337 how to repair bridges between towns , 245 COMMUTATION : for labor on plank roads 137 for labor on highways 133 by corporations 139 COMPENSATION: of fence-viewers 80 of commissioners of highways 97 of overseers of highways 117 of referees on appeal 217 CONSENT: of owner on laying out highway 153 CORPORATIONS: how assessed for highway labor 138 to perform highway labor 139 commutation by, for labor 139 penalties for neglect to work 189 COSTS: on re-assessment of damages 230 in cases of encroachment 391 in proceeding under the cattle act 332 COUNSEL : commissioners may employ 103 COUNTIES: roads, how laid out between 176 when bridges to be built or repaired at expense of 238 CUL DE SAC : may be highway 5 DAMAGES: assessment of, on laying out highway 332 may be ascertained by agreement 332 how assessed 323 measure of 325 Index. 461 DAMAGES — Continued. Page. proceedings where persons are aggrieved by assessment of. 236 jury to be drawn 228 jury, how drawn 228 costs, and by whom paid , 230 to be audited by supervisor as assessed 232 how collected 238 certiorari of, proceedings to arrest 234 special, for obstructing highway 235 DECISION : of referees, on appeal 211 DEDICATION: what is 348 what rights public acquire by 348 by whom made 348 how made 349 no specified time required 850 how accepted 351 may be revoked 352 DEFINITION: of highway 3 DESCRIPTION: of road abandoned 196 DISCONTINUING HIGHWAYS: commissioners may discontinue 188 application for 189 survey on 191 order for, to be posted 191 jury to be drawn 191 jury, how summoned 192 proceedings of jury 192 order for, how made 198 papers to be filed 198 description of road abandoned 196 ownership of discontinued highway 196 appeal from order for 197 plank road 198 time for 198 DIVISION LINES: road along 180 DOGS: sheep killed by, fence-viewers to appraise 85 DRIFT- WAT: definition of 4 462 Index. DRIVER: Page. drunken, not to be employed 318 penalty for employing 318 penalty for intoxication 818 EJECTMENT: owner of fee may maintain 356 ENCROACHMENTS : on highways by fences 286 how removed 386, 387 order to remove 386, 387 on plank and turnpike roads 288 penalty for not removing 288 when encroachment is deiiied 289 hearing on, before jury 290 certificate of 391 appeals in cases of 392 ERECTIONS: laying out road through 156 EXCUSES: when accepted by overseer 137 EXTRA VI AM: right of passing 4 owner of private way cannot go 375 FEES: of commissioners 97 of fence- viewers 80 of overseers 117 of referees on appeal. 217 PEE IN HIGHWAYS: owner retains 354 right of owner as to 355 trespass for injury to 355 owner of, may maintain ejectment 356 in cities 357 presumption from adjacent ownership 357 boundaries by highways 358 FEMALES: liable to assessment for highway labor 118 FENCES: to be removed when road is laid out 181 encroachments by 286 proceedings to remove 386 penalty for not removing. 388 how built along private roads 374 Index. 465 PENCE-VIEWERS: Page. duty of commissioners as 73 to settle disputes 75 proceedings of 75 on sale of land 76 may examine witnesses 78 compensation of 80 duty as to floating timber 81 duty in relation to strays 82 certificate of evidence 85 duty in relation to sheep killed by dogs 85 FEERIBS: principles governing 24 rights of boat to land 24 FINES: overseers to collect 110 what fines overseer to collect 110 for neglect to work on highway 134 FIRE IN WOODS: duties of commissioners in case of 91 FIXTURES : laying out road through 156 FORMS : order filling vacancy in office of commissioner 377 commissioner's bond 377 affidavit of Justification 378 acknowledgment 379 approval of supervisor 379 oath of commissioner 379 certificate of justice 379 order ascertaining and describing road 380 order dividing town into road districts 381 commissioner's annual account 383 certificate of town auditor 383 statement and estimate for supervisor 384 notice of application for additional appropriation 384 decision of fence- viewers 385 subpoena of fence- viewers 386 certificate of fence- viewers as to sheep killed by dogs. . . 386 commissioner's consent for railroad across highway 387 agreement to use highway for plank road 387 forms to compel delivery of books, etc 388-391 order appointing overseers 392 appointment of overseer in case of vacancy 392 assessment by overseer for scraper or plough 393 overseer's list of persons liable to do highway labor 394 overseer's return to supervisors 394 aflidavit to such list 395 464 Index. FORMS— Cmtinued. Page. commissioner's list of non-resident lands 396 assessment of highway labor 396 overseer's assessment of persons omitted 397 appeals to commissioners from assessment of overseers. . 398 appeals by non-residents 398 overseer's annual account 399 application to lay out road 401 order for laying out a highway 401 consent of owner. . . 403 notice of application to lay out highway 403 juror's certificate to lay out road 408 notice to occupant 404 order laying out highway 405 notice of highway across railroad track 405 application for the alteration of a road 405 application to discontinue old road 406 summons to jury to discontinue road 407 freeholder's certificate to discontinue a road 407 order to alter road 407 order for discontinuing a road 408 order refusing to discontinue a road 409 description of road abandoned 409 appeal from order laying, altering or discontinuing high- way 410 appointment of referees 411 appointment of referees by justice of sessions when judge is disquaHfled 413 notice by referees to the commissioners of highways 413 notice to commissioner of appeal 413 notice of appeal to occupants of land 414 subpoena for witness upon an appeal 414 decision of referees on appeal 415 notice to remove fences 417 afiidavit for certiorari 417 writ of certiorari 418 return to writ of certiorari 419 application to county court to appoint commissioners to assess damages 420 order appointing commissioners to assess damages 431 notice of meeting of commissioners to assess damages. . 432 assessment of damages by commissioners 422 notice of drawing of jury to re-assess damages 423 notice to adjoining town clerk of drawing of jury 424 town clerk's certificate of drawing of jury 424 summons for jury to assess damages 425 oath of jury 426 verdict of re-assessment 436 agreement of owner and commissioners as to damages. . . 427 release of damages by owner 427 Ikdex. 465 FORMS — Continued. Page, notice of application to supervisors for money to con- struct and repair bridges 438 commissioner's order to remove encroachments 428 notice to remove encroachments 429 denial of encroachment , 429 application to justice thereon 429 summons to freeholders in case of encroachment 430 oath of jury 431 oath to witness 431 certificate of jury when encroachment is found 481 certificate when no encroachment is found 432 assessment by overseer of additional labor 432 notice of commissioner's resignation 433 complaint to commissioner against overseer 433 security to commissioners for prosecuting overseer 434 petition under statute as to strays by overseer 434 petition by owner of land 436 petition where owner of animal known 436 precept on petition by overseer , . 436 certificate of personal service 437 certificate of service by leaving at house 438 certificate of service by posting 438 indorsement authorizing elector to post 439 affidavit by elector of posting 439 answer by owner of animals 440 final order of sale where no appearance 440 final order where answer put in 441 warrant directing sale 442 notice of sale - - • ■ 443 return of sale by constable 443 demand of possession by owner 444 affidavit of ownership. .'. 444 affidavit that animals were set at large 445 affidavit where demand after final order 445 affidavit of third person 446 application for a private road 447 notice to owner or occupant 447 certificate of jury upon application for a private road. . . 448 order for laying out a private road _. . ._ 448 commissioner's consent to work in another district 449 notice to agent of non-resident 450 notice in case of non-residents 450 overseer's complaint for refusal to work, etc 451 summons thereon 452 constable's return on summons 453 judgment thereon 453 warrant to levy fine 453 FREEHOLDERS : jj oath of, when necessary in laying out road 159 ^ 59 466 Index. FREEHOLDERS— 0(Wii7i««(i. Page. ■who are 166 certificate of 163 may petition for bridge between towns 247 GARDEN: laying out road through 156 GATES : swinging, not to be erected in highway 308 how erected and preserved 308 expense of, by whom paid 308 duty of overseer as to 308 to be closed 309 gate toll, injui-ing 259 GUIDE POSTS : commissioners to erect 90 penalty for injuring 91 when overseers to erect 113 HACKNEY COACHES : what rules do not apply to , 321 HARNESS : to be road-worthy 817 HIGHWAYS : what are 3 different kinds of 3 synonymous with road 3 size not material 8 cattle may be driven on 4 margins of lakes and rivers are not 4 right of passing, eod/ra •viam 4 cul-de-sac may be 5 need not be a thoroughfare 5 street in city is 7 tm-npikes are 11 plank roads are 12 railroads are 13 railroads in 14 horse railroads in , 21 ferries, in the nature of 24 canals are 25 navigable rivers are 26 commissioners of 81 to be ascertained, described and entered of record 40 railroads across 87, 321 how laid out by commissioners ' , 149 across railroad track 112 between different towns or counties 178 Index. 467 HIGHWAYS— Continued. Page. along division lines 180 what roads are 183 in villages 185 how altered 188, 300 how discontinued 188, 300 abandoned, description of 196 appeals from order laying out, altering or discontinuing. 301 331 damages on laying out 323, 234 encroachment on 386, 393 obstruction of 294, 313 by dedication 348, 353 fee in 354, 361 boundaries by 358 HORSE RAILROAD : in streets 31-34 right of public to travel on, with teams 33 HORSES : running prohibited 391 not to be left untied 391 ICE : in navigable river, travel on 39 accidents from, on sidewalks 380, 384 IDIOTS : not liable to highway labor - 123 INCLOSURES .• laying out road through 157 INDICTMENT : against comYnissioners for failing to repair 51 for obstructing highways » 311 INHABITANTS : to be assigned to road districts 57 INJUNCTIONS : against commissioners 106 JUDGMENTS : in actions by or against commissioners, how collected . . 104 JURISDICTION : of referees on appeal 309-311 JURORS : in laying out public road 161-166 in application for private road 369 468 Index. JURY: Page. when required to alter road 191 may be sworn by commissioners 33 on discontinuing road, how summoned 192 commissioners to administer oath 193 when not to be paid 193 to re-assess damages 239 how drawn 229 when to be summoned 228 when drawn in encroachment cases 289 proceedings of 390 on application for private road 371 JUSTICES OF PEACE: to flu vacancy in office of commissioner ... 32 LABOR ON HIGHWAY: when commissioners have neglected to work road for one year 37 assessment of 118 who liable to 118 assessment of non-resident lands 130 overseers to make list of persons liable to 119 meeting of commissioners to assess 119 how commissioners to assess non-resident lands 119 proceedings in making assessment 122 number of days to be assessed 123 corporations, how assessed 123 in villages 124 commissioners to deliver lists to overseers 125 when assessment to be separate 136 credit for labor on private roads 126 how assessed on plank roads 126 appeal from assessment of ' 127 proceedings on appeal 128 when labor may be anticipated 138 omissions in assessment of, how rectified 129 assessment of, against tenant 129 cemeteries, lands exempt from assessment , 129 performance of 130 on plank roads 131 notice to non-residents 133 commutation for 133 penalty for neglect to perform 134-137 of non-residents, when to be returned to supervisor 137 of corporations 139 extent of overseers' authority 143 abatement of, for shade trees 144 abatement of, for watering trough 145 additional assessment to remove snow, etc 145 new system of working or repairing 147 LAMPS: erection of on highways 145 Index. 469 LAND: Page. of non-residents, assessment of, for labor 130 LAW OF THE EOAD: carriages meeting to turn to the right 314 center of road, what is 315 does not apply to rail cars 316 does not apply to persons on foot 816 does not apply to persons on horseback 316 contributory fault 317 as to management of horses, etc 317 as to road-worthy harness, etc 317 as to drunken drivers 318 as to running horses , 319 LAYING OUT HIGHWAY: application, by whom and how made 149 power of commissioners to lay out 150 survey on 151 order to be posted 153 consent of owner, when necessary. 153 through orchard 155 through garden 156 through buildings 156 through fixtures or erections 156 tft'ough yards or inclosures 157 through vineyards 158 through burying-grounds 158 when commissioners exceed their jurisdiction 159 oath of freeholders, when necessary 159 notice of application 160 proceedings on 161 certificate of freeholders 163 notice of, to occupants 167 order for '. 169 order by two commissioners 171 papers to be filed 172 width of road . 173 across railroad track 174 between different towns or counties 176-179 along division lines 180 special commissioners to lay out 180 fences to be removed 181 when road to be opened and worked 183 appeal from order 201 damages, how assessed 333-334 LIST: of inhabitants liable to work on highways 114, 119, 125 LUNATICS: not liable to assessment 123 470 Index. MANDAMUS: Page. against commissioners 104 to lay out, open or discontinue highways 104 to compel referees to hear and decide an appeal 308 MEETING: of commissioners to assess labor 118 MENAGERIES: on highways 347 MILESTONES: commissioners to erect 90 penalty for injuring , 90 MINISTERS OF THE GOSPEL: not liable to assessment for highway labor 188 MONEY: for repairs of road and bridges, how raised 68 supervisors may authorize town to borrow 68 MUNICIPAL CORPORATIONS: liability of, for defects in streets 58, 876 NAVIGABLE RIVERS: • margin of, not highway 4 is a highway 4 wharf on bank of 4 are public highways 86 what are 87 fee in bed of 87 need not be navigable at all seasons 88 when frozen 29 winter way over 89 riparian owner's rights 89 NEGLIGENCE: contributory, in accidents on highway. 317 in management of horses 317 NON-RESIDENTS: lands of, to be assessed for highway labor 180 may appeal from order laying out, etc., highway 303 may appeal from assessment of labor 127 notice to 133 labor of, unpaid, to be returned 137 NOTICE: to overseers of appointment 108 of acceptance by overseer 109 of application to lay out road 160 to occupant, of laying out road 167 Index. 471 NOTICE— CowimwA Page. to referees, on appeal 306 referees on appeal, to give 206 to occupant of land 307 of decision of referees, on appeal 314 of certiorari 319 on bridges 354 on toll bridges 360 to remove encroachments from highways 386 NUISANCE: in highway. (See " Obstruction of Highway.") OATH: of freeholders, on laying out road 159 of referees, on appeal 208 of commissioners to assess damages 224 commissioners to administer 33 commissioners to take 35 OBSTRUCTIONS IN HIGHWAYS: what is ; 294 need not be in traveled part 294 carrjring on business in highway. 395, 301 by ditch or excavation in highway 301 by authority of legislature 303 by opening in sidewalk 303 when may not be summarily abated 305 processions and parades 303 unwholesome substances 304 noxious weeds .' 306 rafts 306 by fallen trees 306 by swinging gates 308 remedies for 309, 311 penalty for 309 abatement of 311 indictment for 311 special damages for 312 OCCUPANT: notice to, of laying out road. . . . , 167 notice to, on appeal 207 of lands, when to be assessed separately 136 OLD ROADS: roads used twenty years to be public highways 183 OMISSIONS: in assessment of labor, how rectified 129 OPENING HIGHWAY: when road to be opened and worked 183 472 Index. ORCHARD: Page- laying out road through 155 ORDER: when two commissioners may make 36 laying out highway 153, 169 to be posted 153 for laying out road 169 by two commissioners 171 to be filed , 173 altering or discontinuing road, to be posted 191 how made 193 appointing referees on appeal, to be filed 206 OVERSEERS OF HIGHWAYS: penalty for neglecting to perform duty 40 have no charge of bridges 44 when to procure scraper and plough 91 make additional assessment 91, 113 appointment of 108 town clerk to notify, of appointment . 108 notice of acceptance by 109 penalty for refusing to serve 110 general duties of HO to keep roads in repair 110 to warn persons to work 110 to destroy noxious weeds 110 to collect fines and commutation money 110 to obey commissioners 110 what fines to collect Ill to remove loose stones Ill what duties to perform without special order. Ill to erect guide-posts and mile-boards 91, 113 to purchase scraper and plough 113 to deliver to commissioners lists of persons liable to work on highways 114 penalties against, for neglect of duty 114 to render account to the commissioners 116, 141 to pay over moneys to commissioner 116 compensation of 117 duty of, in performance of labor 112, 130 may require teams, etc 134 to collect penalties for neglect to work , 134 to return to supervisor non-resident labor unpaid 141 to make annual return and pay over money 141 authority of, in performing work 143 when to make additional assessment to remove snow, etc. 146 duty as to gates 808 duty as to cattle in highway 324 OWNER OP FEE: entitled to compensation on laying railroad in street 15 of lands taken for canals 25 ISDBX. 473 PAUPERS: Page, not liable to highway labor 123 PENALTY: when commissioner neglects to take oath 35 refuses to serve 36 against overseer for neglect to perform duty 40 for injuring milestone or guide-post 90 commissioners to prosecute overseers for. 115 against overseers for neglect to account 117, 142 against corporations 140 against overseer for refusing to serve 110 neglect of duty '. 114 against commissioners for neglect to prosecute overseers. 115 for neglect to work, how collected 134 when to be set off 137 against railroad corporations for not taking highway across track 175 for not removing encroachments 288 for obstructing highways 288, 304, 310 against drunken drivers 318 for cattle in highway 339 for falling trees in highway 306 PERFORMANCE OP LABOR : notice to work 130 where labor to be done 130 on plank road .• 131 notice to non-residents 133 PERSONS : liable to be assessed for highway labor 118, 122 PLANK ROAD : on public highways 13 rights of public on 13 pass to the town on abandonment 13 railroad along 18 plank and turnpike districts, how constituted 54 when commissioners to act as inspectors of 59 commissioners may agree with, for use of highway 89 labor, how assessed on 136 labor on 131 PLOUGH : commissioners to procure 91 when overseers to purchase 113 overseers may require 134 PRIVATE ROAD : credit for labor on ISA (See "Ways and Private Roads.") 60 474 Ikdex. PROCESSIONS: > Page. in streets 304 RAFTS: are obstructions 306 RAILROADS : are public highways 13 when abandoned 14 in highways and streets 14 use of streets for 15 commissioners may consent to use of highway by 86 may be constructed across highway 87 how constructed across highway 88 actions by commissioners against 100 road how laid out across 174 REFEREES : on appeal from order laying out, etc., highway 301 appointment of 205 notice to, of appointment 206 to give notice 206 proceedings of 208 decision of 211 vacancies in office of 309 REPAIR: of roads and bridges, commissioners to direct 39 of roads and bridges 44 liability of commissioners for not making 47-51 money for, how raised 68 where roads and bridges axe damaged or destroyed 71 duty of overseers as to 110 of bridges, when commissioners to make 337 between town 245 money for, how raised 253 of toll bridges 256 RESIGNATION : of commissioner 36 RETURN : of overseers to supervisors 137 of overseers to commissioners 141 RIPARIAN PROPRIETOR : right of, in bed of river 26 effect of making stream navigable by artificial means. . . 29 right of use of water 29 what rights of, cannot be abridged by the legislature ... 29 RIVER. (See "Navigable Rivers.") Index. 475 EOAD : Page. synonymous with highway 3 (See "Highways.") ROAD DISTRICTS : town to be divided iuto 37, 55 between cities, towns and villages 56 SALE: of cattle found in highway, proceedings for , 331 SCRAPER : conunissioners to purchase 91 when overseers to purchase 118 SHADE TREES : abatement of tax for 144 may be planted along highway 273 how to be planted 373 SHEEP : killed by dogs, fence- viewers to appraise 85 SIDEWALKS: to be constructed 271 penalty for riding or driving on 271 part of highway tax may be expended on 273 shade trees along 373 injury to 274 in cities and villages 276 liability of corporation for defects in 276-384 snow and ice to be removed from 380-284 liability of adjoining owner 280 SNOW: additional assessment to remove 145 on sidewalk to be removed 280 SPECIAL COMMISSIONERS: to lay out road 180 STAY OP PROCEEDINGS: when an appeal from the order of the commissioners af- fects. , 216 STONE-CRUSHER: how provided 91 STONES: overseers to remove Ill STRAYS: duty of fence- viewers as to 82 STREAMS, NAVIGABLE. (See " Navigable Rivers.") 476 In"dex. STREETS: Page. to what uses may be applied 8, 9 railroads in : 14 are highways 7 SUBSTITUTES: may be furnished 134 how many hours to work 134 penalty for idleness 134 SUCCESSORS: actions by commissioners against 100 books, papers, etc., to be delivered to 93 SUPERVISORS: to prosecute commissioners' bond 34 may provide for use of abandoned turnpikes, etc 12 may regulate toll on turnpikes and plank roads 12 may authorize town to borrow money 68-71 overseers to return to, non-resident labor unpaid 137 duty of, as to non-resident labor 138 to pay special commissioners 181 may provide for use of abandoned plank and turnpike roads 185 to audit damages on laying out highway 332 when to build or repair at expense of county 238 SURVEY: on laying out highway 151 need not specify width 151 a ministerial act 152 clerk to record 162 TEAMS: overseers may require 134 TENANT! may deduct highway labor from rent 129 TERM: of office of commissioners 82 THOROUGHFARE: highway ueed not be 5 TIMBER: floating, duty of fence-viewers as to 81 TIME: within which appeals to be taken from orders laying out etc., highway _' 30I IlTDEX. 477 TOLL BRIDGE t Page. is a highway. 356 heavy loads over, how restrained 256 company to keep in repair 256 company must rebuild when destroyed 357 unsafe bridge 257 injuring or passing gate 333 notice on 360 when to become public highway 360 companies, how formed 360-370 TOLL GATE: injuring or passing. , 359 TOWNS: liability of, for unsafe highways 47-53 to be divided into road districts 55 roads, how laid out between 176-179 repair of bridges between 345-351 TOWN CLERK: to give notice to overseer of appointment 108 to deliver list of persons liable to highway labor 135 to record survey 153 TRAVELERS: rights of, on highway 33, 34, 314^320 TREES: how far used for repair of roads 143 abatement of tax for 144 fallen, to be removed from highway 306 penalty for falling, into highway 306 to be removed from streams . , 306 TRESPASS: owner of fee may maintain 355 TURNPIKES: are highways 11 difference between, and highways 11 jurisdiction of highway officers over 11 supervisors may provide for use of 13 ' supervisors may regulate toll on 13 commissioners may agree with, for use of highway 89 VACANCY : in office of commissioner 32, 34 when there is a failure to elect 34 in office of referee 233 VILLAGES: trustees of, when commissioners of highways 36 how assessed for highway labor 134 roads in 185 alterations in highways, etc., in 185 478 Index. VINEYARDS: Page, highways through 158 WAGON: overseer may require 134 WATERING TROUGH: abatement of tax 145 WAYS AND PRIVATE ROADS: what is 362 ways by grant 362 ways by prescription 365 ways by necessity 366 right of way, how lost 368 private roads under the statute 368 jury to be called 369 notice of application 369 list of jurors 370 meeting of 370 jury to be sworn 370 proceedings of jury 371 when damages to be paid 373 along division line 373 appeals from proceedings 373 for what to be used 374 rights of owners of 374 width of 374 fences along, how to be built 374 owner of, cannot go extra viam 375 WEEDS: overseer to destroy 110 noxious, in highway 306 WIDENING: highway 199 WIDTH OF ROAD: what to be 173 VSTINTER-WAY: on navigable rivers 29 WITNESSES: may be sworn by commissioner 33 fence-viewers may examine 78 on appeal from order laying out highway 309 WRIT: of certiorari, of proceeding of referees on appeal 218 YARDS: laying out road through 157