% m Cforn^ll ilavu i>rlynnl ICibraty Cornell University Law Library THE GIFT OF HMgSQn.,,,.. Rugs.,. ...Andrew, Woods & Goodyear .aQ.O...,M..&...T....Bldg.....Bufi'a.lQ.,....N..Y., Date 3e>te.mb.e.r.....9., 19.57 Pi Cornell University S Library The original of tiiis bool< 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/cu31924069394082 THOMPSON'S TREATISE ON THE LAW OF HIGHWAYS, INCLUDING WAYS, BRIDGES, TUNNELS, STRAYS, RAILROADS IN STREETS, ELEVATED ROADS, TURNPIKES, AND PLANK ROADS, ETC. "WITH AN APPENDIX OF FOEMS. BT CHARLES H. MILLS, Esq., OF THE ALBANY BAE. J_saaCU G t' a n"f~ "^1 0(^1^3 dti Juttttft ®ditifl» utith ^ttiriJlm«»t. ALBANY : WEARE C. LITTLE & CO., LAW PUBLISHERS. 1891. ' y Copyrighted 1868 By W. C. little & CO. Copyrighted 1879 By W. C. little & CO. Copyrighted i88i By W. C. little & CO. Copyrighted 1890 By W. C. little & CO. ^%> iA^ ^^ PREFACE. No apology is necessary to account for the appearance of another edition of this work. Since the third edition was issued in 1880 there have been nine years of law-making, during which the Legislature has passed seventy laws rSlating to the general subject of highways, besides a large number of local acts ; and in the numerous cases reported in thirty volumes of the Court of Appeals Reports, twenty-seven of Supreme Court Reports and twenty-six of the New York State Reporter, the courts have endeavored to bring order out of the chaos occa- sioned by hasty legislation. Among other important changes the liability of towns for damages has been established by chapter 700 of the Laws of 1881, and the courts have passed upon this point in many important cases. The subjects of telegraph poles, elevated ra;ilroads, railroads in streets, and kindred topics, have been litigated, and while the questions involved have not yet been satisfactorily settled, an advance has been made which has materially altered their status in the courts. All the cases bearing upon these subjects, as well as the ones already embraced in the work, have been studied, and their effect upon the previous laws carefully noted ; the entire work has been thoroughly revised, and every authority verified. In the later cases the date has been given, so that the effect of laws passed after their appearance may be guarded against by the practitioner. The work embraces decisions contained in 26 N. Y. State Reporter, 114 New York Reports, 53 Hun, and also the Laws of 1889. , I trust that this may receive the flattering reception accorded to the former editions, and may prove useful to the profession as well as to highway officers. Ghahles H. Mills. Albant, January 1, 1890. CONTENTS. CHAPTER I. PAGE, Definition, and different kinds of Highways 1 CHAPTER H, Concerning the Fee in Highways 20 CHAPTER HI. Highways by Dedication; 44 CHAPTER IV. Commissioners, their Powers and Duties 58 CHAPTER T. Overseers, their Powers and Duties 134 CHAPTER VI. Assessment of Highway Labor 148 CHAPTER VII. Performance of Highway Labor 161 CHAPTER VIII. Laying out Highways 185 CHAPTER IX. Altering and Discontinuing Highways 222 CHAPTER X. Assessment of Damages on Laying out Road 233 CHAPTER XI. Appeal from the Commissioners 249 CHAPTER XII. Obstructions and Encroachments 273 CHAPTER xm. Bridges 311 CONTENTS. CHAPTER XIV. PAGE. Railroads in Highways and Streets , 347 CHAPTER XV. Sidewalks 374 CHAPTER XVI. Travel upon Highways 384 CHAPTER XVII. Cattle in Highways 397 CHAPTER XVIII. Ways and Private Roads 41.3 CHAPTER XIX. Plank Roads and Turnpikes 427 APPENDIX. Appendix of Forms ? 493 INDEX. TABLE OF CASES. PAOE. Abendroth v. Manhattan Ey. Co 52 Super. Ct. 2T4; 7 N. T. St. Eep. 436 2T, 232, 355 Absor V. Frencb -.2 Show. 28 2 Acker v. Town of New Castle 48 Hun, 312; 15 N. Y. St. Eep. 894 75,177, 309 Adams v. Emerson 6 Pick. 57 31 V. Popham 76 N". Y. 410 283 V. Elvers 11 Barb. 390 22 V. Saratoga & Wash. E. E. Co 11 Barb. 414 .35, 57, 363 T. Van Alstyne 25 N. Y. 232 110 V. Wash. & Sar. E. E. Co 11 Barb. 449 ; 5 Adolph V. Central Park, N. & E. E. E. E. Co. .65 N. Y. 554 372 V. Central Park. N. & E. E. E. E. Co 76 N. Y. 530 388, 389 Adsit V. Brady 4 Hill, 630 72, 306, 317 Albany, City of v. Watervliet T. & E. E. Co.. .108 N. Y. 14; 13 N. Y. St. Eep. 525 32, 454 Albany, Mayor of, Ex parte 23 Wend. 277 270 Albany Northern E. E. Co. v. Brownell 24 N. Y. 345 131, 195, 208 V. Lansing 16 Barb. 68 237 Albro V. Eood 24 Hun, 72 120 Allen V. Atlantic & Pac. Tel. Co 21 Hun, 22 277 Allyn V. Commissioners of Schodack 19 Wend. 342 268 Altreuter v. Hudson E. E. E. Co... . ; 2 E. D. Smith, 151 387 Amsbey v. Hinds 46 Barb. 622 229,230, 292 Amsbry v. Hinds 48 N. Y. 57 217 Anderson v. Van Tassel 53 N. Y. 631 139, 177 Angelica, Trustees of, v. Morse 56 Barb. 380 152 Armine v. Spencer 4 Wend. 406 62 Aston V. Heaven 2 Esp. 533 389 Atkins V. Bordman 2 Met. 457 415 Attorney-General ex rel. Eothschild v. United Kingdom Tel. Co 30 Beavan, 287 277 Auburn & C. Plank Eoad Co. v. Douglass 12 Barb. 553 477 V. Douglass 9N. Y.444 477 Augustine v. Britt 15 Hun, 395 35 B Babcock v. Gifford 29 Hun, 186 71, 120 V. Lamb 1 Cow. 238 20,25, 92 Bacon v. City of Boston 3 Cush. 174 377 Bailey v. Frost 4 Week. Dig. 269 300 Bakeman v. Talbot 31 N. Y. 366 417, 418 Baker v. Johnson 2 Hill, 342 18 Baldwin v. City of Buffalo 35 N. Y. 375 238 vi Table of Cases. PAGE. Ball V. Herbert 3 T. R. (Durn. & East.) 263, U Ballard v. Dyson 1 Taun. 279 2, 417, 418 Bank of Ithaca v. King .' 12 Wend. 390 149 Barker v. Hudson K. R. Co 4 Daly, 274 388 V. Loomis :....6HiIl, 463 121, 139 Barnes v. District of Columbia 91 U. S. 540 76 Barse v. Herkimer, N. & P. N. G-. R. R. Co 13 N. Y. St. Rep. 215 368 Bartlett v. Crozier 17 John. 439. . ..65, 68, 137, 139, 140, 144 Barton v. City of Syracuse 36 N. T. 54 378 V. Port Jackson & U. F. Plank Road Co. . 17 Barb. 397 4-59 Bateman v. Bluek 14 Eng. Law & Eq 69. 3 Baxter v. Spuyten D. R. R. Co Abb. Pr. (N. S.) 178 351 V. Warner 6 Hun, 585 309 Baylis v. Roe 24 N. Y. St. Rep. 710 289 Beach v. Furman 9 Johns. 229 149, 169 Beaudely v. Brook Cro. Jac. 189 417 Beck V. Carter 68 N. Y. 283 23, 55, 2S4 Beckwith v. Whalen 9 Hun, 408 326 V. Whalen 5 Lans. 376 217, .S26 v. Whalen 65 N. Y. 322 217,326, 329 V. Whalen 70 N. Y. 430 327 Beekman's Petition 19 Abb. Pr. 244 82 Belton V. Baxter 54 K. Y. 245 392 Benedict v. Goit 3 Barb. 459. . . .5, 7, 8, 177, 454, 460 Bidelman V. State HON. Y. 232; 18N. Y. St. Rep. 107 311, 312 Bidwell V. Town of Murray 40 Hun, 190 74, 76 Birdsall v. Phillips 17 Wend. 464 268 Bishop V. Barton 2 Hun. 436 318 V. Barton 64 N. Y. 637 318 V. City of Centralia 49 Wis. 669 77 Bissell V. Collins 28 Mich. 277 176 V. N. Y. Central R. R. Co 26 Barb. 634 54 V. N. Y. Central R. R. Co 23 N. Y. 61. 21, 34, 35,36, 49, 54, 417 Blake v. Ferris 5 N. Y. 48 79 Blakelv v. City of Troy 18 Hun, 167 78 Bliss V. Johnson 73 N. Y. 529 34 Bloodgood V. Mohawk & Hudson R. R. Co 14 Wend. 51 233 V. Mohawk & Hudson R. R. Co 18 Wend. 9 234 Bloonifield Gas Light Co. v. Calkins 62 N. Y. 386 358 Bolton V. Colder 1 Watts. 360 389 Bond V. Smith 7 N. Y. St. Rep. 829 378 Boots V. Washburn 79 N. Y. 207. ..92, 121, 325, 326 Borries v. Horton 16 Hun, 139 291 Boss V. Litton 5 Carr. & Payne, 407 391 Boston & Alb. R. R. Co. v. Village of Green- bush 52 N". Y. 510 208 Bostwick V. Barlow 14 Hun, 177 64, 71 Boughton V. Carter 18 John. 405 460 Bouton V. Neilson 3 John. 474 169 Bowyer v. Burlew 3 N. Y. Sup. Ct. (T. & C.) 362 398 Boyce v. Brown 7 Barb. 80. .. .413, 415, 425, 426 Brace v. N. Y. Central R. R. Co 27 N. Y. 269 5, 370 Braden v. Berry 20 Wend. 55 463 Bradley v. Blair 17 Barb. 480 82, 212, 302 V. Buffalo, N. Y. & Erie R. R. Co 34 N. Y. 427 370 Brady v. City of Lowell 3 Cush. 121 378 Bridge v. Grand Junction R. R. Co 3 M. & W. 244 309 Bridges v. Wyckoff 67 N. Y. 130 217 Bridge water (feN. Plank Road Co. v. Robbins. . . 22 Barb. 662 475 Briggs V. Bowen 60 N. Y. 454 270 V. Doughty 7 Hun, 82 295 Table of Cases. vii PAGE. British Cast Plate Manufacturers v. Meredith. .4T.R. (Burn. & East.) 794, 179 Broadway & Seventh Ave. R. E. Co. v. Mayor 49 Hun, 126; 16 N. Y. St. of New York Rep. 950 282, 372 Broiestedt v. South Side R. R. Co 55 N. Y. 220 353 Bronk v. Becker 17 Wend. 320 109 Brooklyn, Matter of 73 N. Y. 179 18 Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co 22 Barb. 358 372 Brooks V. Hart 14 N. H. 310 386 V. N. Y. & Erie E. K. Co 13 Barb. 594 371 V. Schwerin 54 N. Y. 343 392 Brown v. Cayuga & Sus. R. R. Co 12 N. Y. 486 305, 365, 366 V. Chadbourne 31 Me. 9 16 V. Stone 10 Gray, 61 418 Bruner v. Lewis 22 N. Y. St. Rep. 93 325 Bruiii, Matter of 1 Barb. 187 270 Bruyn v. Graham 1 Wend. 370 265 Bryant v. Town of Randolph 24 N. Y. St. Rep. 825 76 Buckley v. Drake : 1 N. Y. St. Rep. 578. ..200, 247 Buffalo, City of, v. HoUoway 7 N. Y. 493 79 BuSalo .' Judges of Orange „.„„„„ Co 13 Wend. 432 2o8, 260, 265,268, 269 Washburn y. Tracy 2 D. Chip. (Vt.) 128 388 Washington Cemetery v. Prospect Park & C. „ „, „„ I R R Co 68 N. Y. .d91 ^■i Waterford'& W. Turnpike Co. v. People 9 Barb. 161. 461 Watkins V. Atlantic Ave. R. R. Co 20 Hun 237. ..^. 39o Watrous v. Shear 25 Week Dig. 164 64 xxvi Table of Cases. Watrous v. Southworth 5 Conn. 305 34 Wayde v. Carr 2 Dow. & Ry. 255 387 Webb V. Albertson 4 Barb. 51 123 Weber v. Eastern E. K. Co 2 Metcalf, 151 34 Weed V. Village of Ballston Spa 76 N. Y. 329 283, 309 Weet V. Trustees of Brockport 16 N. Y. 161. . . 71. 77, ISO, 378 Welling V. Judge 40 Barb. 193 387 Welsh V. Lawrence 2 Chitty, 262 391 V. Wilson 101 N. Y. 254 276 Wendell v. Mayor of Troy. ." 39 Barb. .329 24, 76, 77, 138 Wenzlick v. McCotter. 13 Week. Dig. 315 379 Westv. McGurn • 43 Barb. 198 424 Wetmore v. Atlantic White Lead Co 37 Barb. 70 18, 288 V. Tracy 14 Wend. 250 290, 301, 304 Whalen v. Gloucester 4 Hun, 24 379 Whitaker v. Eighth Ave. R. R. Co 51 N. Y. 295 372, 387, 395 Whltbeck v. Cook 15 John. 483 22 White V. Scott 4 Barb. 56 26 Whitney v. Town of Ticonderoga 24 N. Y. St. Rep. 950 76 Wiggins V. Tallmadge 11 Barb. 457 4, 50, 67 Wilbrand v. Eighth Ave. R. R. Co 3 Bosw. 314 371 Wildrick v. Hager 10 N. Y. St. Rep. 764. ... .. 221 William and Anthony Streets, Matter of 19 Wend. 678 236 Williams v. Hynes 55 N. Y. Super. Ct. 86 285 V. Kenney 14 Barb. 629 25, 66, 176 V. N. Y. Central R. R. Co 18 Barb. 222 285 V. N. Y. Central R. R. Co 16 N. Y. 97. ..8, 28, 57,125, 351, 352 V. Safford 7 Barb. 309 2, 393, 418, 420, 425 Willis V. Erie Tel. Co 37 Minn. 347? 34 Northw. Rep. 337 280 Willoughby v. Jenks; 20 Wend. 96 22 Wilson V. City of Watertown 3 Hun, 508 76 V. Mayor of New York 1 Denio. 595 72, 180, 317 V. Susquehannah Turnpike Road Co 21 Barb. 68 460 — - V. Waddell 19 Moak's Eng. Rep. 8 177 Wohler v. Buffalo & State Line R. R. Co 46 N. Y. 686 52 Wood V. City of Williamsburgh 46 Barb. 601 22 V. Veal 5 Barn. & Aid. 454 3, 45 Woodyer v. Hadden 5 Taunt. 125 3, 47, 48 Woolf V. Beard 8 Carr. & Payne, .373 391 Woolsey v. Tomkins 23 Wend. 324 205, 263, 264 Worcester v. Western R. R. Co .4 Met. 564 : 31 Worster v. Forty Second St. R. R. Co 50 N. Y. 203 367 Wright V. Saunders 65 Barb. 214 284 Wrought Iron Bridge Co. v. Barnett 1 N. Y. St. Rep. 600. ..105, 326 Wyinan v. Mayor of N. Y 11 Wend. 486 36, 49 Wynkoop V. Burger 12 John. 222 418 Yates V. Hathaway 15 John. 447 35 THE LAW OF HIGHWAYS. CHAPTER I. DEFINITION AND DIFFBKBNT KINDS OF HIGHWAYS. 1. Definition. 2. Extra Viam. 3. Cul de Sac. 4. Streets. 5. Turnpike and Plank Roads. 6. Railroads. 7. Bridges. 8. Ferries. 9. Navigable Rivers. 10. Canals. I. Definition. A highway is a way over which the public at large have a right of passage, whether it be a carriage way, a horse way, a foot way, or a navigable river. (3 Kent, 432.) It was considered formerly that no way which did not lead to a market town was a highway ; but it is now well settled that any way common to all people, without distinction, is a highway. (1 Sawk. P. C, ch. 76, § 1 ; Wellbeloved on High- ways.; Brand's Diet., tit. "Roads; " People ex rel. Williams v. Kingman, 24 N. Y. 559.) It was said by Lord Coke that there are three kinds of ways : a foot way ; a pack and prime way, which is both a foot way and horse way ; and a cart way, which includes the other two. (^Ooke Litt., 56 a.) But notwithstanding these distinctions, it is well established that any of the said ways which is common to all persons, may properly be called a highwaj'. (Bgremont on Highways, 2.) " There is no doubt," says Lord EUenborough, " that a pub- lic foot way, or bridle way, is a highway ; it is a highway for foot passengers, or for horse passengers; and the parish is bound to repair it, till they can throw the onus upon others. So all public bridges are prima facie repairable by the inhab- 2 The Law op Highways. itants of the county, without distinction of foot, horse, or car- riage bridges, unless they can show that others are bound to repair particular bridges. (^Rex v. County of Salop, 13 East, 95.) The size of the way is not material. A right of way for all persons to pass and repass with their carts and carriages, is not restrained because all carriages cannot pass and repass. (Rex V. Lyon, 5 Bow. and R. 497.) There is also at common law, a way termed a driftway, or a way over which cattle are driven ; but this is also included in the generic term " highway ; " for Lord Mansfield has laid it down that in general a public highway is open to cattle, though it may be so unfrequented that no one has ever seen an instance of their going there ; the presumption is for cattle as well as carriages ; otherwise cattle could not be driven from one part of the country to another. (Ballard v. Byson, 1 Taunt. 285.) 2. EXTEA VlAM. If passengers have used time out of mind, when the roads are bad, to go by outlets on the laud adjoining a highway in an open field, such outlets are parcel of the highway ; and therefore if they be sown with corn, and the track fouudrous, the public may go upon the corn, for highways are for the public service, and if the usual tract is impassable, the people are entitled to pass on another line. (1 Roll. Abr. 390 ; 2 Boug. 748 ; 1 Hawk. P. O. ch. 76, § 2.) So, if a highway be impassable or foundrous, or even dan- gerous to be traveled over, or incommodious from being out of repair, or from other causes, the public have a right to a new way for the time being, and for this purpose, may go on the adjoining land ; and it makes no difference whether it be sown with grain or not. And if the adjoining lands be inclosed, the traveller may remove so much of the fence as will enable him to pass around the obstruction; but he must do no un- necessary injury. ( Williams v. Safford, 7 Barh. 309 ; Sir W. Jones, 296 ; 2 Show. 28.) But this privilege of going over ad- joining lands if the way be impassable or foundrous is confined to highways ; and the grantee of a private way cannot take ad- vantage of any such liberty. (^Taylor v. Whitehead, Boug. 745 ; Bullard v. Harrison, 4: M. ^ S. 387.) Land adjoining a pub- Definition and Different Kinds of Highways. 3 lie highway, remaining unenclosed, is considered as dedicated to public use, and no action will lie by the owner against any person travelling over it. (^Cleveland v. Cleveland, 12 Wend. 172.) But in an earlier case in the same court, it was held that aU the land within a highway fence was not necessarily subject to the right of way ; and if not, may be occupied by the owner. And if he place an obstruction there and another be injured by it, he is not therefore liable. (^Harlow v. Humiston, 6 Cow. 189.) 3. CuL De Sac. It has been a subject of much doubt in the English courts, whether there could be a highway where there was no thorough- fare, or passage through — that is whether a road or street which is closed at one end, and communicates with a public highway or navigable river at the other, could be a highway. Such a passage is called a cul de sac. Lord Kenyon, in the case of The Rugby Charity v. Merryweather (11 East. 375 w.), decided that it made no difference whether or not a street was a thoroughfare; that there might be a highway where there was a cul de sac; and that it was a question for a jury on evidence, whether there was a public highway or not. Although there appear to be no decisions expressly overruling this case, yet it was afterwards doubted by Lord Mansfield in Woodyer v. Madden, (5 Taunt. 125,) and by Justices Abbott, Holeoyd and Best, in Wood v. Veal, (5 Barn. ^ Aid. 454). Mr. Well- beloved, also, in his treatise on highways, after an examination of the above cases, lays it down, " that there can be no high- way where there is no thoroughfare." (^Wellh. on Highways, 1.) But the more- recent English decisions are adverse to this proposition, and sustain the decision of Lord Kenyon. In the case of Bateman v. Black, (14 Eng. Law ^ Eq. 69,) which came before the Court of Queen's Bench in 1852, the question was directly in issue, and Lord Campbell announced his opin- ion as follows : " We must take it that there is a good finding on this issue, unless there cannot, in point of law, be a good highway where there is no thoroughfare. Now such a posi- tion cannot, I think, be supported. There may be, or there may not be, a highway under such circumstances. It would be very strong to hold that there could be no highway — even where there has been an express dedication to a public purpose 4 The Law op Highways. — ^because the place is no thoroughfare. There may be a large square with only one entrance to it, and if the owner allows the public to use it without restriction for a great many years, he cannot afterwards turn round and say they are all tres- passers. That would be, as said by Lord Kenyon, a trap to catch trespassers. In the Rughy Charity \. Merryweather, Lord Kenyon laid it down that there might be a public highway where there was a cul de sac ; and that it was a question for a jury, on evidence, whether such a place was a highway or not. I do not find that this case has ever been expressly overruled. In the other cases referred to, the judges do not hold that such highway does not exist, but only say that there is no evidence of there being a highway. It seems to me that it rests on principles of convenience, but there may be a highway with- out a thoroughfare ; and it is not inconsistent with what is laid down by Hawkins and other text writers on the subject." This was concurred in by all the judges in that case. The opinion of Eable J. was in brief, as follows : " The question is whether there can be in law a highway where no thorough- fare exists. It seems to me clear from the authorities that there can be such a highway, and convenience requires that this should be so. It is for the jury to consider whether on the whole of the facts proved they will presume a dedication to the public." In this State it may be regarded as settled that, both at common law and under the statute, a cul de sac may be a high- way. {People V. Kingman, 24 If. Y. 559; Wiggins v. Tall- madge, 11 Barb. 457 ; Eickoh v. Trustees of Plattsburgh, 41 Barb. 135; McCarthy y. Whalen, 19 Hun, 503, 508; Saunders V. Townsend, 26 Hun, 308.) But whether it is a highway, or a private passage, depends on the user or dedication, and is to be decided by the jury. Where a highway terminates at one extremity in a naviga- ble river, it is not, in any sense of the term, a cul de sac, since it connects the right of passage on the land with a like right on the water ; and any change in the line of the shore, either from natural or artificial causes, cannot affect the right of way to the river. If therefore, the owner of the adjoining land, under authority from the Legislature, builds a bulkhead in front of his land and the street, and fills up the intermediate space, the highway is not thereby cut off from the river, but Definition and Diffebbnt Kinds of Highways. 5 is extended by operation of law, over such new made land to the water. (^People v. Lambier, 5 Denio, 9 ; Smith v. Mayor New York, 68 N. Y. 552.) Where a highway extends to navigable waters, it cannot be used as a place of deposit by the public ; and it wase.ven held by Mr. Justice Cowen, in a most elaborate opinion that, " the landing of wagons, horses and passengers on the shores of a river, a sea or an ocean, even though it be upon a dedicated or recorded highway, on the land connected with the watery way, 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." (^Pearsall v. Post, 20 Wend. 131 ; see also Chambers V. Furry, 1 Yeates, (Penn.) 167 ; Cooper v. Smith, 9 S. ^ Rawle, 26.) But this dietum 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 embark and disembark at the landing places, provided such landing places be a highway. ( Wellb. on High- ways, 35 ; Peters v. Kendal, 5 B. ^ Cress. 703.) The laws relating to highways have been extended, so as to cover roads in Indian Reservations by Laws 1881, ch. 355. 4. Stkebts. The word " highway " is said to be the genus of all public •ways (Regina v. Saintiff, 6 Mod. 255), and includes the streets of a city or village. (^Benedict v. Goit, 3 Barb. 459 ; Adams V. Wash. ^ Sar. B. B. Co., 11 Barb. 449; In re Fitz- Water street, i S. ^ Rawle, 106 ; Brace v. iV. Y. Central R. R. Co., 27 J\F. Y. 271.) Nevertheless there is a wide distinction be- tween a highway in the country and a street in a populous city as regards the mode and extent of their enjoyment. The reason for the restricted use of highways in the country is that they are needed for no other purpose, than for passing and repassing ; but such is not the case with the streets of a city. There are certain uses — such as the construction of sewers, and the laying of water and gas pipes — to which, in modern times, such streets have generally been applied. These urban 6 The Law of Highways. servitudes, as they are called, are the necessary incidents of a street in a large city ; and whether the street be laid, out and opened upon property, belonging to the corporation, or whether they become public streets by dedication or by grant, or upon compensation being made to the owner of the fee, they have all the incidents attached to them, which are necessary to their full enjoyment as streets. And whether the corporation be the owner of the fee of the streets, in trust for the public, or whether it be merely the trustees of the streets and highways as such, irrespective of any title to the soil, it has the power to authorize their appropriation to all such uses as are conducive to the public good, and do not interfere with their complete and unrestricted use as highways, (Milhau v. Sharp, 15 Barh. 210; People v. Kerr, 27 N. Y. 202; White v. Oineinnati, 6 Peters, 432 ; Kehey v. King, 32 Barh. 410.) This doctrine, so far as it applies to highways acquired by dedication, was however, doubted by Davis, C. J., in Kelsey v. King, 38 How. 39. With regard to the streets in the city of New York, it is held that the fee in the soil of all such as are opened under the provisions of the acts of 1807 and 1813 rests, in the cor- poration for public use. (Hoff. Treatise, 289 ; People v. Kerr, 27 N. Y. 188 ; Brake v. Hudson, River B. B. Co., 7 Barb. 508.) The word " street " includes sidewalks and gutters. Qln the Matter of Burmeister, 76 iV. Y. 174.) The streets of a city or village may be used in any way which shall best promote the interest and business thereof. Where the trustees of a village authorized the erection of a soldier's monument in one of the public streets, it was held that they could do so without the consent of the owner in fee. (^Tompkins v. Hodgson, 2 Hun, 146; Chapman v. A. ^ S. R. B. Co., 10 Barl. 360; Plant V. Long Island B. B. Co., 10. Id. 26.) The common council of a city has no power to give a person permission to inclose part of the street for an indefinite period. (^8t. Vincent's Orphan Asylum v. City of Troy, 76 iV. Y, 108.) Such encroachment on the highway for twenty years could not destroy the public right. (Jc?. Abendroth v. Man. By. Co., 52 Super Ct. 274 7 JST. Y. St. Bep. 43.) The common council of Syracuse has power to pass an ordinance regulating the width of tire wagons using its streets. (^People v. James, 16 Hun, 426. See Sewell v. City of CohoeSy Definition AJfD Dibtekent Kinds of Highways. 7 75 iV. T. 45.) After a street in New York has been regu- larly laid out, the common council has no power to diminish its width by authorizing the lot owners to inclose a certain number of feet for court yards. ^Lawrence v. N'ew York, 2 Barb. 577.) And it was held that the act of 1867, ch. 399, incorporating the New York Bridge Company, did not author- ize the obstruction, by placing columns or pillars thereon, of any street crossed by approaches to the bridge. (^People ex rel. Stranahan v. Thompson, 98 iV. Y. 6.) 5. Turnpike and Plank-Roads. Turnpike and plank-roads are also regarded as public high- ways, established by public authority for public use. The only difference between these and common highways is, that instead of being made at public expense, they are authorized and laid out by public authority, and made at the expense of individuals, and the costs of construction and maintenance are reimbursed by a certain established toll. Every traveller has the same right to use them on payment of legal toll, as he would have to use any other public highway. Nor does a highway appropriated to the purposes of a turnpike or plank- road, cease to be a public highway. The general right of the public to use it remains unimpaired. The public in considera- tion of the payment of certain tolls, is relieved from the bur- den of amending and keeping it in repair ; and the duties, in this respect, which before belonged to the commissioners of ■ highways and other local officers, are transferred to the corpo- ration. But it seems that these local authorities are not ousted of their jurisdiction in the particulars in which their exercise would not conflict with the purposes or rights of the corporation, and which the public interest requires should be exercised ; and, especially, that they are not relieved from their duties in respect to encroachments upon highways, which are at the same time used as plank-roads or turnpikes. ( Walker V. Oaywood, 31 N. Y. 51; Benedict v. Q-oit, 3 Barb. 459; Commonwealth v. Wilkinson, 16 Pick. 175 ; Fort Edward, ^c. Plank-road v. Payne, 17 Barb. 567 ; see otherwise Estes v. Eelsey, 8 Wend. 555 ; explained in Walker v. Caywood, supra.') Since the corporation succeeds to the rights and duties of highway commissioners in making repairs and altering the grade of the road, it follows, that it is not liable to any person 8 The Law of Highways. suffering damages for a reasonable and proper exercise of its powers in repairing and grading; but for any unreasonable use of these powers the corporation is responsible. (^Benedict v. Goit, 3 Barb. 469 ; see Ireland v. Oswego, ^c, P. B. Co., 13 N. Y. 526.) 6. Railroads. It has been held, that a railroad, like a turnpike or plank- road, may be a public highway, to be used in a particular man- ner. (^Bex V. Severn Bailway Co.. '2. B. ^ Aid., 646 ; see People V. Kerr, 27 N. Y. 205) But such use is wholly unlike that of an ordinary highway, and, to a great extent, the two uses are inconsistent with each other ; and, it is well settled, that the laying of a railroad on a highway, imposes an additional burden on it, essentially different from the original object of a highway, and entitles the owner of the fee to additional com- pensation. ( Williams v. N. Y. Central B. B. Co., 16 iV. Y. 97 ; Presbyterian Society v. Auburn, ^c. B. B. Co., 3 lEll, 567 ; Springfield v Connecticut Biver B. B. Co., 4 Cush. 63 ; Mahon V. N. Y. Central E. B. Co., 24 N. Y. 658.) And the rule is the same, whether it be a street in a city or a common high- way in the country, except iii the city of New York, where the fee of most of the streets is said to be in the corporation. (^Id., Wager v. Troy Union Bailroad Co., 25 JV. Y. 529, Carpenter v. The Oswego and Syracuse B. B. Co., 24 N. Y. 655, Id. 658.) See further on this subject, postea, chap. XIV. With regard to street or horse railroads, it is thought that they approximate more closely to ordinary highways, and that the use of streets for such railroads is within the purpose for which such streets have been opened or dedicated, and consistent with the public use as highways ; and, that, therefore, the legis- lature can authorize the construction of such railroad in the streets of a city, without compensation to the owner of the fee. (See People v. Kerr, 27 K Y. 194, 202 ; S. C, 37 Barb. 357, and dissenting opinion of Suthekland, J., in Wager v. Troy Union B. B. Co., 25 iV. Y. 537.) The rights of a street railroad company to the use of a street for the purpose of its business is a property right, subject to condemnation for the public use ; the Legislature may authorize other persons, either natural or corporate, to do a similar busi- ness in the same street, or to use the tracks of the company, Definition aub Difpekbnt Kinds op Highways. 9 "whenever in their judgment the public good demands. (^Sixth Ave. B. B. Co. v. Kerr, 72 K Y. 330.) 7. Bridges. A public bridge may also be a highway, governed by the same principles of the common law which apply to highways in general. (2 Ld. Baym., 1174 ; 6 Mod., 255 ; Woolr. on Ways, 195.) The principal circumstance necessary to constitute a public bridge is, that people at large may have a free and uninter- rupted user of it, not upon sufferance, but as a matter of right. (8 Woolr. on Ways, 195.) Yet a bridge may be common to all people without becoming a public highway, so as to render the town responsible for its repairs. Thus, whel^e a corporation or an individual digs a race-way or canal across a highway, and builds a bridge over it, the party building it must keep it in jepair, and if an injury happen to another in consequence of its being out of repair, such party is responsible. (^Heacock v. Sher- man, 14 Wend. 58 ; Bygert v Schench, 23 Wend. 446.) This principle is commended both by its sound sense and its anti- quity. In RoUe's Abridgement QBoll. Ahr. 368 ; Bridges, pi. 2), citing a manuscript case of 8 Edw. 2, decided near the begin- ning of the 14th century, the principle is stated as follows : " If a man erects a mill for his own profit, and makes a new cut for the water to come to it, and makes a new bridge over it, -and the subjects are to go over this as over a common bridge, this bridge ought to be repaired by him who has the mill, and not by the county, because he erected it for his own benefit." So where a company in making a canal cuts through a high- way, and erects a bridge over the canal, they are bound to repair it, as the public derive no benefit from the bridge, more than they had from traveling along the solid highway. (^Bex V. Kerrison, S M. ^ 8. 526.) The public to become charge- able must derive some benefit from the bridge, which they manifestly do not, where the way was as good before the erec- tion of the bridge as after it. Where, however, a man builds a bridge which is useful to the public in general, it is the duty of the town to repair it, notwithstanding it may be of benefit to the builder. (^Bex v. The West Biding of YorJeshire, 5 Burr. 2594 ; Eeacoch v. Sher- man, 14 Wend. 58 ; see Bequa v. City of Bochester, 45 N. Y. 129. Spier v. Comrs. Town of Moreau, 20 N. Y. St. Bep. 389.) 10 The Law of Highways. As wliere an individual erects a bridge over a natural stream for Ills 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. {Id.,I)ygert V. Sehenok, 23 Wend. 446.) In accordance with these cases, where M built, for his pri- vate benefit, a bridge across the river Tave, where it inter- sected the highway, which bridge was used by the public, and was of great public utility, the court held that the public must keep it in repair. (King v. Ink. of Q-lamorganshire, 2 East, 356, note.') So, where a person about forty-five years back erected a mill and dam for his own profit, whereby he deepened the water of a ford, through which there was a public highway, but the passage through which was, before the deepening, very inconvenient to the public, and the miller, about five years afterwards, built a bridge over it ; and there was no doubt that the public had since used it ; but it was admitted that the miller had repaired it; the Court of King's Bench held that the county and not the miller were chargeable with the reparation, according to the principal, that "if a private person build a bridge, which afterwards becomes of public convenience, the county is bound to repair it." (Rex v. Inh, of Kent, 2 M. ^ S. 513.) But where the Medway Navigation Company were authorized by act of Parliament to make tlie river navigable, and to amend and alter such bridges or high- ways as might hinder the navigation, leaving them or others as eonvenieif, in their room; and under this authority the com- pany deepened a particular spot in the river, where before had been a ford, and afterwards built a bridge and kept it in re- pair till its destruction by a flood. It was held that the com- pany and not the county were bound to rebuild the bridge. And per Lord EUenborough, C. J. : " The power given to the company to take or alter the old highway was upon con- dition of leaving another passage as convenient in its room ; and if they do not perform the condition they are not entitled to do the act ; it is a continuing condition, and when the com- pany thought proper for their own benefit, to alter the high- way in the bed of the river, so that the public could no longer have the same benefit of the ford, they were bound to give an- Definition and Different Kinds of Highways. 11 other passage over the bridge, and to keep it for the public." (^Bex V. Inh. of Kent, 13 Hast, 220.) It is held not to change the rule that the bridge built by a private individual is of public utility only at certain seasons of the year. Thus a bridge was used by the public, at all times, on foot and with horse, but only occasionally with carriages, except in times of flood or frost, when it was unsafe to pass through the river, at which times carriages always passed over the bridge. In ordinary times the carriage road went through the ford, and the bridge was sometimes barred against carriages by means of a post and chain. It was held by the court that such a limited enjoyment was quite consist- ent with the idea of a public bridge. (^Eex v. Inh. of North- ampton, 2 M. ^ S. 262.) Again, a causeway and bridge were only used by the public in time of floods, and in time of very high floods the bridge itself was impassable, but they were at all times open to the public; it was held that this was a public bridge. {Rex v. Inh. of Devon, By. ^ M. 144. See 2 Camph. 455.) Lord Coke says : " If a man make a bridge for the common good of all the subjects, he is not bound to repair it; for no particular man is bound to reparation of bridges by the com- mon law, but by tenure or prescription." (2 Inst. 701.) But if a man erect a useless or a merely ornamental bridge, neither he nor the public are bound to maintain it. ( Wellb. on High- ways, 326.) At common law the duty of repairing public bridges rested upon the county at large, where it was not shown that any private person, or other body, was charged with that duty. (^Bex v. Inh. of West Biding of Yorkshire, 2 East. 342 ; Hill v. Supervisors, ^c. 12 N. Y. 52 ; People ex rel. Comr's V. Supervisors Dutchess, 1 Hill, 50 ; 8 Barh. 645.) But this law has never been in force in this State, since from the earliest times the care and reparation of highways, including bridges, has been committed to town officers. (^Hill v. Super- visors, Supra.') It was said by Lord EUenborough that " all public bridges are prima facie repairable by the inhabitants of the county, without distinction of foot, horse, or carriage bridges, unless they can show that others are bound to repair par- ticular bridges. (^Bex v. Inh. Salop, 13 East., 95.) A toll bridge may also be a highway, only differing from an ordinary public bridge in this, that the public in consideration 12 The Law of Highways. of the payment of certain tolls, are relieved from the respon- sibility of keeping it in repair; subject to the payment of such tolls, the rights and privileges of the public on such bridges are the same as on ordinary public bridges. In the case of Thompson v. Matthews, (2 Edw., 212) it appeared that the plaintiffs, under authority from the Legislature, had con- structed a bridge across the Harlem river in the manner and of the dimensions directed and required by the act authorizing its construction, and that the defendants were in the habit of hauling across such bridge immense loads of marble, weighing several tons, and thereby greatly endangering the bridge, and an injunction was prayed, restraining such defendants from transporting across the bridge any marble or stone in quan- tities exceeding at one time or in any one load the weight of two tons. The Vice Chancellor said, '' The motion for an injunction cannot be granted. The road across the bridge is undoubtedly a highwaj'^, though all persons and carriages passing must pay a toll j but still it is a public highway. The affidavits in opposition take very much from the force of the allegations in the bill. But this is a case in which the parties have legal rights. The bridge is a public one. If persons take improper loads and the bridge has been properly con- structed, 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 sus- tain an injury by a breaking from ordinary loads, the owners must respond in damages." (^See Laws 1887, ch. 526.) 8. Fereies. A ferry also, though its nature is sui generis, is not incon- sistent with the general principles of the law regarding high- ways, for it is a common passage, which is no more than a com- mon highway. (3 Mod. 294; Woolr. on Ways, 217.) Most of the confusion which has prevailed upon this subject, appears to have arisen from not distinguishing between the public privi- lege and the private right, which unite to form a ferry — the public privilege of passing across the water, and the private right to carry passengers over and to receive the toll. ( Wellh. on Highways, 33.) The interests of the public in a ferry is exactly similar to their interest in highways in general ; con- sequently they are only possessed of an easement, and can claim Definition and DnrPEHENT Kinds of Highways. 13 no property in the soil. The privilege of landing at either end of the ferry is an easement upon the freehold. in Qhamhers v. Furry, (1 Teates, 167) the Supreme Court of Pennsylvania held, that the owner of a ferry over a navigable stream had no right to land or receive freight or passengers on the adjoining banks, even though the landing place was a pub- lic highway, without the owner's consent. The dedication of ground for the purpose of a public road was said to give no right to use it for the other purpose. This doctrine was afterwards referred to, recognized and adopted by the same court, in Cooper V. Smith, (9 Serg. ^ Rawle, 26 ; see also Pipkin v. Wynns, 2 Bev. N. C. Hep. 403 ; Chess v. Manown, 3 Watts, 219 ;) also in this State by Mr. Justice Cowen, in Pearsall v. Post. (20 Wend. 132.) The same principle is to be found in Savile 11, pi. 29, where it is said, that in every ferry the land on both sides the -water ought to belong to the owner of the ferry, for other- wise he could not land on the other side. But this strict and severe rule is somewhat relaxed in England ; and in Peter v. Kendal, (6 Barn. ^ Cress. T03.) the King's Bench denied the justness of the conclusion in Savile, and held that the owner of a ferry need not have the property in the soil on either side. It was sufficient that the landing place was a public highway. It was a right incident to the ferry, to use such a landing place for the purposes of a ferry. The same conclusion was arrived at in this State by Mr. Justice Strong in Fowler v. Mott, (19 Barb. 219 ; see also aould v. Hudson R. R. R. Co., 6 N. Y. 622 ; 3 Kent. 421, note.') And this is the most reasonable con- clusion upon the right to the use of a public highway to which a ferry is connected. The rights which a ferry gain in the streets of New York City, are fully discussed in Jordan v. Met. Gras Light Co., 65 Barb. 255. 9. Navigable Rivees. A navigable river, common to all men, is a highway; and if the water change its course, and go over ground different from that on which it used to run, the highway will be along the new channel, in the same manner as the old. (1 Hawk. oh. 76, § 1 ; 4 Com. Dig. Chimin, A.l; 10 Mod. 382.) But if the river be choked up with mud, and impassable, that would not give the public a right to make use of the adjoining lands by cutting 14 The Law of 'Highways. other channel or passage ; though it is quite clear that if the usual track of a highway become impassable, the public have a right to go on the adjoining lands. (Per Buller in Ball t. Herbert, 3 T. R. 263.) By the common law of England those rivers are navigable where the tide flows and reflows ; and the crown has the ab- solute proprietary interest in such rivers, and in the shores belowthe ordinary high water mark. But above the flow of tide-waters, or where the tide does not ebb and flow, rivers are not technically navigable at common law, though of sufficient capacity for valuable floatage. i^Eale Be Jure Maris ; Ex parte Jennings, 6 (7ow. 518 ; Morgan v. King, 35 N. Y. 458.) The doctrine of the common law has been repeatedly recog- nized by the Supreme Court of this State as the law of our own State, and has as such received the sanction of high legal and judicial authority. (3 Kent, 414; Canal Commissioners v. The People, 5 Wend. 444 ; Canal Appraisers v. The People, 17 Wend. 595 ; Commissioners v. Kempshall, 26 Wend. 416 ; Hooker v. Cummings, 20 John. 100.) See, however, the opinion of Davis, J., in People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461. Upon this distinction is based k very important rule relat- ing to the ownership of the bed of the stream, and the right of fishery, in its waters, to wit : that navigable or tidal rivers, so far as the tide ebbs and flows in them belong to the king, or in this country to the State ; and rivers not navigable, that is, fresh water rivers, belong to the owner of the adjacent soil. This distinction has no reference however to the right to use the stream for the purposes of passage or transportation ; the rule in that respect being that the public have not only a right to all tide waters, but also a right of way or easement para- mount to the right of the riparian proprietors in all rivers which, though not tidal or navigable in the sense of the former rule, are navigable in fact. (Id. Morgan v. King, 35 N. Y. 458.) In the latter case, or above tide water, the public right is one of passage and nothing more, as in a common highway. It is called by the cases an easement; and the owner of the adjoining land has a right to use the land and water of the river in any way not inconsistent with the ease- ment. If he make any ei'ection rendering navigation incon- venient or unsafe, he is guilty of a nuisance ; and this is the Definition and Diffeeent Kinds of Highways. 15 only restriction which the law imposes on him. (JEx parte Jennings, 6 Cow. 627 ; Commissioners, etc., v. Kempshall, 26 Wend. 413.) By the common law, also, a river is, in fact, navigable, on which boats, lighters or rafts may be floated to market. (^Eale Be Jure Maris ; Commissioners, etc. v. Kempshall, 26 Wend. 413.) But this rule of the common law as to what degree of capacity renders a river navigable in fact, should be received in this country with such modifications as will adapt it to the peculiar character of our streams, and the comnierce for which they may be used. We have many streams of considerable extent not navigable by boats, lighters or rafts, but capable of float- ing to market single logs or sticks of timber. In many cases large tracts of land bordering upon their banks were originally covered with dense forests, the valuable products of which would have had no avenue to market, if the public easement in the streams had been restricted to navigation by boats or rafts. The true rule is, 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 condition 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 ves- sels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely 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 navig- able 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 supported (^Morgan v. King, 35 N. Y. 454; Shaw v. Crawford, 10 Johns. 236.) By the laws of Maine, a floatable stream is a common high- way, and the storage of logs by a log-driving company, across such stream, for several months, at such place and in such a manner as to completely block another's entrance into the same, is such an unreasonable and unauthorized use as will render the wrong-doer liable for the damages caused thereby. (McPheters v. Moose Biver Log Driving Co., 5 At. Bep. 270.) Nor is it essential to make a stream a public highway that 16 _ The Law op Highways. the capacity of the stream as above defined should be con- tinuous, or in other words, that its ordinary state, at all seasons of the year, should be such as to make it navigable. If it i» ordinarily subject to periodical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly 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. Brown v. Qhadbourne, 31 Maine, 9. See, however, Munson v. Hungerford, 6 Barb. 265 j Curtis v. Keesler, 14 Barh. 511.) But this is extending the principle quite far enough. And where it appeared that a stream was not capable 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 skiffs or on shore ; that the current was so broken and impeded by rapids and rocks, that the logs were sometimes badly injured, and the ends were always more or less bruised up ; and that tlie stream was used only occasionally for floating logs, etc., the Court of Appeals decided that such stream was not, in its natu- ral state, a public highway, even within the liberal rules above laid down. (Morgan v. King, 35 N. Y. 460.) The Hudson river, where in fact navigable above tide-water,, is a public highway, though not declared so in the act declar- ing certain rivers highways. (Palmer v. Mulligan, 3 Oaines,. 307.) So, the waters of the Albany ' basin, as well as the navigable waters of the river are a public highway. (Hart Y. Mayor of Albany, Z Paige, 213; S. 0. a£E'd, 9 Wend, 571.) So it was declared, that the Battenkill, in the county of Washington, though not enumerated in the statute declaring certain rivers and streams public highways (^Ses. 24, c. 186, § 34), yet having been used as such, by the public for the purpose of rafting down boards and timber for more than 2& years, the usage had created a public right; and that an action would He against the owner of a mill-dam for so obstructing the navigation, as to injure the raft of the plaintiff, in passing over. (Shaw v. Crawford, 10 Johns. 236.) A river which is declared by statute a public highway, is such only for the purposes of navigation, and is not such highway in places where it is not in fact navigable. (Mayor of Rochester v. Curtiss, Clark, 386.) Definition and Dippeeent Kinds of Highways. 17 By chap. 533 of Laws of 1880, it is made unlawful for any- one to build a dam in a navigable river, without an apron fifteen feet wide, and at a proper slope for the purpose of floating logs. This does not apply to the Hudson river, or to the Alleghany or Delaware rivers or their tributaries or the waters in Franklin County. (Laws 1881, ch. 74.) Chap. 74, Laws 1881, adds to the exempted waters, the Moose, Beavers, Oswegatchie, Grass and the Raquette rivers and their tribu- taries, and the waters located in Lewis county used for floating logs or lumber. By chap. 91 of the Laws of 1886, Grass River in St. Lawrence Co., is declared a highway and all dams must have a slide or apron below them, thirty feet wide, and all rooms must have an open passage way thirty feet wide. It was said by Sir Matthew Hale in his treatise De Jure Maris, that, " if any person at his own charge, makes his own private stream to be passable for boats or barges, either by making of locks or cuts, or drawing together other streams ; and hereby that river which was his own, in point of propriety , become now capable of carriage of vessels; yet this seems not to make it juris puhlici (or highway) ; and he may pull it down again, or apply it to his own private use. For it is not hereby made to be juris puhlici unless it were done at a com- mon charge, or by a public authority; or that by long con- tinuance of time, it hath been freely devoted to a public use." And the same principle has been confirmed in this country to the effect that if a person be the owner on both sides of a water course, and at his own expense makes it boatable by artificial means, it does not thereby become public ; it is still private property and cannot be infringed, even by the Legisla- ture, without compensation being made. ( Wadsworth v. Smithy 2 Fairf. (Jfe.) B. 278. The public have likewise a right to travel on a public river on the ice ; 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 travelling upon such way, without carelessness or fault on their part. (French v. Camp., 6 Shepl. (^Me.~) i2.433.) But it is held that one who makes an excavation on private property near high water mark on the sea shore, does not be- 2 18 The Law op Highways. come liable to a traveller, who without fault of his falls into the hole and is injured. Murphy v. City of Brooklyn, 98 N. Y. 642. The Legislature of a State cannot, bj' declaring a river nav- igable, which is not so in fact, or by nature, deprive the ripa- rian owners of their rights to the use of the water for hydrau- lic and other purposes, without rendering compensation. ( Walker v. Board of PubUo Works, 16 Ohio, 640.) Nor has the State a right, without compensation, to destroy the prop- erty of individuals 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 artificial erections or improvements. (Per Chancellor and Senator Allen, in Canal Commissioners v. The People, 5 Wend. 423. See Canal Apprais- ers V. People, 17 Wend. 571 ; Commissioners, etc., v. Kempshall, 26 Wend. 404.) The public have no highway along the margin of navigable rivers and lakes, unless the same has been acquired by express grant or prescription. (Ledyard v. Ten Eijck, 36 Barb. 102.) Nor has the public a free access to wharves and buildings, erected under authority granted by statute, on the margin of a navigable river. It does not follow from the river's being a highway, that land appropriated from its bed must remain a highway. ( Wetmore v. Atlantic White Lead Co., 37 Barb. 70 ; see Matter of City of Brooklyn, 73 iV: Y. 179.) 10. Canals. The State takes title in fee simple, in lands appropriated for use as a canal, and they will not revert upon the abandonment of their use for the purpose of a canal. (^R^ford v. Knight, 11 K Y. 308 ; Baker v. Johnson, 2 Hill, 342 ; 6 Hill, 359.) The canal becomes a public highway. (^Conklin v. The Phoenix Mills of Seneca Falls, 62 Barb. 299 ; Robinson v. Chamberlain, 34 K Y. 389.) The State is vested with the title to all the lands included within the boundaries of the map made at the time of appropriation. (1 R. S.p. 218, § 4.) If the highway is within these boundaries, of course it passes to the State. The statute (1 R. S. p. 221, § 19) authorizes the canal commissioner in charge of the work of constructing or improving any canal, to discontinue or alter any public highway whenever it inter- feres with the proper location or construction of such work. Definition and Dippeeent Khstds op Highways. 19 But the title of the owner subject to the easement remains per- fect, not only to the land covered by the highway but also to all the material within its boundaries, except such as may be needed to build or maintain the roads. (Siffffins v. Reynolds, 31 N. Y. 151.) By chap. 362 of the Laws of 1884 it is made lawful for any citizen of this State, residing in the vicinity of any of the canals of the State with the permission of the superintendent of public works, to cut, gather, and haul away to his own premises, for his own domestic use, any ice from the canals of the State when- ever the same can be done without causing damage to the banks or other structures of the canals. The use as a highway of a feeder to the canal, which had been covered with timbers and planks and earth, for more than twenty years, does not constitute it a highway, as that must depend upon a supposed grant, and a grant may not be presumed where it would have been unlawful. Donahue v. estate of New York, 112 K Y. 142. 20 KY. St. Bep. 243. 20 The Law of Highways. CHAPTER n. CONCBENING THE EEE IN HIGHWAYS. 1. Eights of the owner of the fee. 2. Depasturing highways. 3. How far public may use highways. 4. Concerning the fee in turnpikes, railroads, etc. 5. Carrying on business in highway. 6. Presumption from adjacent owner* ship. 7. Boundaries by highways. 8. Boundaries by rivers. 9. What rivers are navigable. 1. Rights oy the Ownek op the Fee. A highway, though common to all people, is said to be nothing but an easement on the lands over which it passes^ The public have no other right in it than the right of passage, with the powers and privileges incident to that right; such as digging the soil and using the timber and other materials found within the space of the road, in a reasonable manner, for the purpose of making and repairing the road and its bridges. The owner of the soil still retains his exclusive right in all the mines, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right of way. The person in whom the fee of the road is, may main- tain trespass or ejectment, or waste, in regard to the same ; and, upon the discontinuance or abandonment of the right of way, the entire and exclusive property and right of enjoyment revest in him. (^Jackson v. Hathaway, 15 Johns. 447 ; Carpenter V. Oswego, etc., B. B. Co., 24 N. Y. 655 ; 2 Stra. 1004 ; 1 Burr. 133 ; 11 East, 51 ; 1 Cowen, 238.) While this rule as to the extent of interest which the public acquire in highways is strictly true as to highways in the country, it must be taken with some limitation as to the streets of a city or large village. There are certain uses, such as the construction of sewers and the laying of gas and water pipes, to which the latter are generally applied. These — called urban servitudes — are the necessary incidents of streets in large cities, and are paramount to the rights of the owner of the fee. CONOBKNING THE FbB IN HIGHWAYS. 21 Whether the streets be laid out and opened upon property belonging to the corporation, or whether they become public streets by dedication, or by grant, or upon compensation being made to the owner of the fee, they have all the incidents attached to them which are necessary to their full enjoyment as streets ; and the corporation has the power to authorize their appropriation to all such uses as are conducive to the public good, and do not interfere with their complete and unrestricted use as highways. QMilhau v. Sharp, 15 Barb. 210, per Edwaeds, p. J.; People v. Kerr, 27 iV. Y. 202.) But see Kelsei/ v. King, (33 How. 89.) The distinction seems to be that lands taken for highways in this State are not taken in fee, but an easement only is acquired for the object in view, while lands taken for the purposes of a street or avenue are acquired in fee by the city. (^Matter of Lexington Ave., 29 Hun, 303 ; aff'd 92 N. Y. 629.) With regard to the streets of New York, it is held that the fee in the soil of all such as have been opened under the provisions of the acts of 1807 and 1813, vests in the corpo ration for public use. QHoff. Treatise, 289 ; People v. Kerr, 27 N. Y. 188; Brake v. Hudson River B. B. Co., 7 Barh. 508.) By chapter 63, of the Laws of 1878; as amended by chapter 452, Laws 1886, the commissioners are authorized to allow, upon application in writing, the laying of water pipes and hydrants in the highway, provided it shall not interfere with public travel and that all earth be replaced, etc. Provided further, that no such pipe shall be laid under the traveled part of such highway, except to cross the same. (As to right to lay gas pipe, see Calkins v. Bloomfield, etc., Gas Light Co., 1 N. Y. Sup. Ct. 541.) It is the established inference of the common law that the owners of the lands adjoining a highway, either in the city or country, are the owners of the fee of the highway, as well as the waste land bordering thereon. But this inference may be rebutted or narrowed by evidence, for it is quite possible, as we shall hereafter see, for one man to own the adjoining land and another the fee of the highway. {Bissell v. N. Y. Central B. B. Co., 23 N. Y. 61 ; Wager v. Troy Union B. B. Co., 25 N. Y. 629; 8 Kent, 484; Q-rose v. West, 7 Taunt. 39; 2 StarTc, N. P. 468.) Where one claims land as being a part of a street adjoining the premises described in his deed, he cannot also insist that 22 The Law of Highways. the land is not subject to a servitude as such street. It is only by assuming that it is a street that he acquires any title to the land therein. And being part of a street, his title is subject to the easement over it. (Wood v. City of Williams- burgh, 46 Barb. 601.) The title of the owner of the fee is absolute, subject only to the public easement ; and he may use the land in any way not inconsistent with this easement. He may sell the land through which the highway runs, without subjecting himself to an action for a breach of covenant of seizin and right to convey, contained in the deed of conveyance, since the seizin and right to convey still continue in him. ( Whitbeck v. Cook, 15 Johns. 483 ; Fairfield v. Williams, 4 Mass. 427 ; Washington Cemetery v. P. P. ^ C. I. B. B. Co., 68 N. T. 591.) He may, also, have an action of trespass against any person who exclusively appropriates the soil, or who digs up the soil, or cuts down the trees growing on the side of the road and left there for shade or ornament (3 Kent. 433 ; Gridney v. Earl, 12 Wend. 98 ; Willoughby v. Jenhs, 20 Wend. 96) ; or against one who stands in the highway opposite his land and uses abusive language towards him. (Adams v. Bivers, 11 Barb. 390.) Or, against one who digs on the opposite side of the highway so as to endanger the safety of the highway or cause the earth on the same to subside or fall down. QMilburn v. Fowler, 27 Hun, 568.) So, he may maintain ejectment against any person appro- priating it to private occupation. ( Q-oodtitle v. Alker, 1 Burr. 133 ; Carpenter v. Oswego, etc., B. B. Co., 24 JV. Y. 655.) In the case of Q-oodtitle v. Alker, where the plaintiff brought an action of ejectment for land over which was a public right of way, it was objected by the defendant that the land being subject to an easement, the sheriff could not deliver posses- sion. Lord Mansfield, C. J., said : " There is no reason why he should not have a right to all remedies for the freehold, subject still, indeed, to the servitude or easement. An assize would lie if he should be disseized of it ; an action of trespass will lie for an injury done to it. I see no ground why the owner of the soil may not bring ejectment as well as trespass. It would be very inconvenient to say, that in this case he should have no specific legal remedy ; and that his only relief should be repeated actions of damages for trees, mines, salt CONCBKNING THE FeB IN HIGHWAYS. 23 springs and other profits under ground. It is true, indeed, that he must recover the land subject to the way ; but surely he ought to have a specific remedy to recover the land itself, notwithstanding its being subject to an easement upon it." The owner of the fee may also carry water in pipes under the highway, or sink a drain or raceway, or any water-course beneath the highway, if he can so do it as not to deprive the public of their easement. It is a common practice for the owners of water-mills or sites for water-mills, to sink water- courses for the use of their mills in their own land under high- ways ; but care must be taken to restore the way to a safe and passable condition by building a bridge or otherwise — since, if injury is sustained by any one, in consequence of the highway's being less safe or passable, the water-course will be regarded as a nuisance, and the owner liable for damages to the party injured, in the absence of gross negligence on his part. (JDygert v. Scheneh, 23 Wend. 446 ; Perly v. Chandler, 6 Mass. 454 ; Matter of Petition of Rhinelander, etc., 68 N. Y. 105 ; Bech v. Carter, 68 N. Y. 283.) And, it is the duty of the one constructing the watercourse, to keep the way over it in repair at his own expense ; and, if he should neglect to do it, he may be indicted for the nuis- ance, and the nuisance abated, besides his liability to parties injured. (^Id., Harlow v. Sumiston, 6 Cow. 191.) So, if the owner of the fee, without special authority, makes and con- tinues a covered excavation, as an area, under a public street or highway, for private purposes, he is, in the absence of neg- ligence in the party injured, responsible for all injuries result- ing from the way being thereby less safe ; and, the fact that the covering of the area was done by a contractor, who con- tracted to do the work properly, will be no defense to an action for damages. The owner of the area is bound to make and at all times keep the street as safe as it would have been, if the area had not been constructed. (^Congreve v. Smith, 18 ■K Y. 79 ; Fatten v. K Y. HI. B. B., 3 Ahl. N. C. 307.) And one who undertakes to pave and grade a street, with- out having a contract with the authorities, licensing him so to do, is a wrong doer and whoever is aggrieved is entitled to an injunction. {Sersee v. City of Buffalo, 1 Buff. Super. Ct. 445.) It is held in Sevestre y.Oity of New York, (47 Super. Ct. Bep. 24 The Law of Highways. 341,) that where a corporation places barricades around an opening in the street while it was undergoing repairs, that it is not responsible for injuries to one falling therein through others having removed the guards. One who removes sidewalk, curb, etc., e. g., in making ex- cavation for building, is bound to supply as good a conduit for surface water as he takes away, and failing to do so, is liable to owners of adjacent premises for injuries to property. (^Mairs V. Manhat. Real Ust. Assn., 47 Super. Qt. Rep. 31.) But com- missioners in grading highways are not bound to provide a channel for the drainage of surface water. (^Grould v. Booth, 66 N. Y. 62.) Consent given by a municipal corporation to a citizen to make an excavation in a public street does not vary the rights and liabilities of the parties in respect to an action for injuries where it is based upon the wrongful and negligent manner in which the work was done. (^Village of Port Jervis v. First Nat. Bk., .96 N. Y. 550.) A hotel proprietor cannot confer on a coach proprietor an exclusive right to occupy the street before the hotel, having no such right himself. (^Deiz v. Lamb, 6 Robt. 537.) The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it ; and whoever without special authority materially obstructs it, or renders its use hazardous, by doing anything upon, above or below the surface, is guilty of a nuisance, and, as in all other cases of public nuisance, individuals sustaining injuries from it, without want of due care, have a remedy by action against the author or continuer of the nuisance. And it makes no difference whether the fee of the street is in a municipal corporation or in the individual doing the act ; in either case the act of injuring the easement is illegal. (icZ./ Wendell v. Mayor, etc., of Troy, 39 Barb. 329 and cases ; Harlow v. Humi- sto'n, 6 Cowen, 189.) Whenever the construction of vaults under the street, in- terferes with the public use of the street it becomes a nuisance, and a city permit cannot protect it. (^Patten v. N. Y. M. R. B. Co., 3 Abb. K a 306.) The owner of the fee of the highway may also remove the soil, or sell it to be removed, if it be done without injury to the highway, or to the ingress and egress of adjoining owners. Concerning the Fee in Highways. 25 i^WilUams v. Kenney, 14 Barh. 629.) In this case, the owner of the soil in a highway, sold P. a bank of sand therein in front of the plaintiff's premises, stipulating, however, that P. should not dig so as to injure the highway or the plaintiff's premises. P., in taking away the sand, dug down four or five feet below the surface of the ground for a distance of three rods opposite the plaintiff's land. The excavation was about •eight feet from the plaintiff's fence and the earth had partially caved in, to within about four feet of the fence, but none of the plaintiff's earth, or fences or improvements had been in the least disturbed. In delivering the opinion of the court, Johnson, J., said, " If there was a bank of sand valuable for building purposes, any portion of which could be removed without prejudice to the public easement or .the plaintiff's rights of ingress and egress, the defendant had a perfect right to remove it or sell it. He sold it, but was careful to stipu- late that no more of it should be removed than could be done ■without injury to the highway, or to the plaintiff. If Pratt went on and committed a wrong, in violation of his stipula- tion, the defendant is not responsible. Pratt was not his servant or agent, or acting under his authority while infring- ing on the plaintiff's rights. But I am of opinion that had the defendant himself done the act complained of, no action could have been maintained by the plaintiff." The owner of the fee is entitled to all trees standing or lying on the land over . which a highway is laid out, except such as may be necessary to make or repair the highway or bridges on the same land (2 B. S. 5th Ed. 415 ; 18 Eliza. B. B. cited 11 Jac. B. B.) ; and he may maintain trespass against any person who shall cut down or injure such trees or timber, unless such person was duly authorized to cut them, and did -cut them for the purpose of making or repairing the road or bridges on the same land as above provided. (See BabcocJc v. Lamh, 1 Cow. 238 ; Bridge Co. v. Baehman, 4 Bans. 523 ; 66 K Y. 261.) Several owners" of lots fronting on street, cannot bring a Joint action to restrain the construction of an elevated railroad on the ground that the railroad has not, and does not intend to make compensation. (Moran v. Lydecher, 27 Hun, 582.) The rule that one who has made maps laying out streets in a city or village and in conveyances the lots are described as 26 The Law of Highways. abutting upon the street, cannot thereafter appropriate such land to any use inconsistent with its use as a public street s ap- plied to the granting of rights to elevated roads by city of New York in Story v. N. Y. El. B. B., (90 K T. 122.) 2. Dbpastueing Highways, It is a well settled principle of the common law that the public have no right to depasture a highway, since the freehold and all its profits belong to the owner of the adjoining soil. (^Savage 0. J., 3 Wend. 147 ; 16 Mass. 33.) In Dovaston v. Payne (2 H. Black. 527), Bro. Air. Trespass, pi. 131 wa» cited to show that the owner of the soil of a highway may bring trespass, if cattle do anything but merely pass and repass. And Eyeb, C. J., and Heath, J., expressly called the right of passage along a highway an easement; and all the judges- agreed that it would be trespass if cattle were found depastur- ing on a highway. It was an action of replevin, for taking the cattle of the plaintiff ; and a plea was made in bar of the avowry of damage feasant, and the cattle, being in a highway,. escaped through defect of fences. To this plea a special de- murrer was put in, for that it did not show that the cattle were passing through and along the said highway. For if they were trespassing, then the defect of fences was no excuse. And the plea was decided to be faulty, because the cattle would be trespassing if they did anything more than pass and repass ; and, therefore, this fact being traversable, should be stated with certainty. This authority was confirmed in its fullest extent in the case of Stevens v. Whistler (11 East, 51). But a different rule was formerly adopted in this State, for the courts held that the statute which empowered the elec- tors of each town at their annual town meeting " to make rules and regulations for ascertaining the sufficiency of all fences in such town ; and for determining the times and manner in which cattle, horses or sheep shall be permitted to go at large on highways," had made it lawful in towns where such regula- tions had been made, for cattle, horses or sheep to go at large on, and depasture the highways, and that the compensation paid the owner of the land, on laying out the highway, covered not only the easement of a public way, but also the right to depasture the same. (&riffin v. Martin, 7 Barb. 297 ; Harden- burgh v. Lochwood, 25 Barb. 9 ; see contra White v. Scott, 4 Concerning the Fee in Highways. 27 Barb. 56.) These decisions were based solely on the idea that the Legislature had made it lawful for cattle to go at large on highways, and are, therefore, entirely superseded by the Code, which forbids any cattle, horses, sheep, swine or goats running at large in any public street, park place or highway." (Laws of 1880, chap. 178, §§ 3085 to 3107 inclusive. See Strays, chap. XVII.) 3. How Fae Public May Use Highways. Since the public acquire no right in a highway other than the right of passage and the privileges necessarily incident to that right, it follows that they cannot use or authorize others to use such highway for any other purposes. This limitation, however, does not apply to cities ; for there the public right is extended so as to authorize the use of streets for purposes of sewerage, for the distribution of light and water, and for the furtherance of public morality, health, trade and conven- ience, and reduces the interest of the owner of the soil to a naked fee of only nominal value. (Milhau v. Sharp, 15 Barb. 210 ; People v. Kerr, 27 N. Y. 202 ; Cincinnati v WhitCy 6 Peters, 432 ; Matter of Petition of BUnelander, &B N. Y. 105.) In the city of New York, as the fee is in the city, the owner of property abutting on a street cannot restrain the construction of an elevated railroad on the ground that his property is taken without compensation. (^Abendroth v. ManJi. By. Co., 52 Super. Ct. 274.) See postea. Subject to this easement of a public way, and to these urban servitudes in cities, the rights and interests of the owner of the fee remain unimpaired. In the case of Sir John Lade V. Shepherd (2 Stra. 1004), which was an action for trespass, it appeared that the place where the supposed trespass was committed, was formerly the property of the plaintiff who, some years before, built a street upon it, which had ever since been used as a highway ; that the defendant had land contiguous, parted only by a ditch, and that he had laid a bridge over the ditch the end whereof rested on the highway. It was insisted -for the defendant, that by the plaintiff's mak- ing it a street it was a dedication of it to the public ; and that, therefore, however he might be liable to indictment for a nuisance, yet the plaintiff could not sue him as for a trespass on his private property. The court remarked : It is certainly 28 The Law of Highways. a dedication to the public, so far as the public has occasion for it, which is only for a right of passage. But it never was understood to be a transfer of the absolute property in the soil. So the plaintiff had judgment. (^See also 2 Inst. 705.) It is clear that the Legislature has no power to authorize any individual, company or corporation to enter upon and ap- propriate the highway, for purposes other than those to which it has been originally dedicated, without providing a just compensation therefor. (^Presbyterian Society, etc., v. An^ hum, etc., R. B. Co., 3 Rill, 567 ; Williams v. JST. Y. O. E. R. Co., 16 K Y. 97 ; aiover v. Manh. Ry. Co., 51 Super. Ct. 1.) In accordance with this, it has been held that the laying of a railroad track in a highway imposes an additional burden upon the owner of the fee and is a taking of property, within the meaning of the constitutional provision which forbids such taking without compensation. The company can, there- fore, derive no title under acts of the Legislature, unless pro- vision is made for the appraisal and payment of damages in the mode provided by law. (Wager v. Troy Union R. R. Co., 25 N. Y. 526 ; Carpenter v. Oswego, etc., R. R. Co., 24 N. Y. 655 ; Mahon v. N. Y. Central R. R. Co., id. 658 ; Fletcher v. Auburn and Syracuse R. R. Co., 25 Wend. 462.) But where a railroad corporation acquires a right to cross a highway and does so below grade, and, for the purpose of re- storing the highway as required by the General Railroad Act, bridged its tracks and graded up the highway to the bridge level, plaintiff's premises adjoining the highway raised is not sub- jected to such a new or different use as will entitle him to re- cover. (ConUinY.N. Y. 0. ^ W.Ry. Co., 102 iV. T. 107.) Such use of the street, without acquiring the title of the owner of the fee, or his license, is a continuing trespass, and such owner may maintain ejectment to recover the land, subject to the public easement as a highway. (Wager v. IVoy Union R. R., supra, Fanning v. Osborne, 34 Hun, 121.) As to whether a railroad company can acquire an exclusive right to the use of piers. (See Matter of N. Y. C. and H. R. R R Co., 11 N. Y. 248.) ■ ■ So the Legislature cannot, by declaring a river a public highway which is not in fact or by nature navigable, deprive the riparian owners of their rights to the use of the water for hydraulic and other purposes, without rendering compensation. CONOEBNING THE FeE IN HIGHWAYS. 29 ( Walker v. Board of Public Works, 16 Ohio, 540.) Nor has the State a right, without compensation, to destroy the property of individuals situated upon rivers above tide water in making waters navigable which are not so by nature, nor to appropri- ate such waters to the public use by artificial erections or im^ provements. (Per Chancellor, and per Senator Allen in Canal Commissioners v. People, 5 Wend. 423 ; see Canal Appraisers V. People, 17 Wend. 571 ; also 26 Id. 404.) By the Laws of 1879, chapter 214, any turnpike company has power to lay iron rails in the highway for street railroad purpose, except in counties of Cortland, Orleans, Kings, Oneida, New York and Steuben. A street railroad cannot prevent another railroad company from laying a double track in the same avenue. (N. Y. and H. B. B. Co. v. Forty-second and Q-d. 8. B. B. Co., 50 Barb. 285.) Natural gas companies may lay their pipe in highways by complying with ch. 422 of the Laws of 1889. And by Laws 1873, ch. 737, any corporation organized under its provisions, which relate to water work companies in towns and villages, of less than 15000 inhabitants, is authorized to lay water pipes in any streets or avenues or public places, or in any streets or avenues of an adjoining town or village to the town or village where their application shall have been granted and the owner of an adjoining lot and fee of the street, in front thereof cannot obtain a temporary injunction restrain- ing the company from using the pipes until they have made compensation to him. (1882. Crooke v. Flatbush Water Works Co., 27 Run, 72.) Note. — The above law was amended by L. 1883, oh. 483, L. 1885, ch. 422 and L. 1876, ch. 415, which see. • It is not an unlawful interference with the rights of abut- ting owners to construct a horse railroad under legislative authority on the surface of a city street, the fee of which is in the city. (Mahady v. Bushwiek B. B. Co., 91 N. Y. 148.) But a street cannot be converted into a yard for storing cars to the injury of adjoining neighbors, and it was held in the case of Story v. K Y. Mevated B. B. Co., (90 If. Y. 122) that the taking of permanent and exclusive possession of a street for sidings and the permanent occupation with rows of standing cars, or the erection of permanent depot buildings is 30 The Law of Highways. a legitimate exercise of the power regulating the use of public streets for public purposes. The rule that when a city accepts a conveyance of realty to be held as a public street forever, the owners of land adjoining have the right to keep the street open forever as such, and that such owner take subject only to the simple right of the . public to pass and repass was applied in an action to restrain the erection of an elevated railway and removal of its struct- ures in Grlover v. Manhattan By. Co. (66 Sow. Pr. 77.) Where a manufacturing corporation erects factories and tenements upon its own lands for use of its employees and the streets leading thereto are subject to such public use as is in- cident to the wants, convenience and happiness of the people re- siding there, to that extent the company subjects its private property to the law regulating public rights and it cannot pre- • vent members of its community from buying supplies of a cer- tain person, nor him from delivering them, and an attempt to remove him from the street by force is an assault. (^People v. Moore, 50 Eun, 356.) By chap. 704 of the laws of 1887, bicycles, tricyles and other like vehicles are declared to be " carriages " within the meaning of that term as used in the Revised Statutes, and all persons riding on the same are entitled to the same rights and subject to the same restrictions as are prescribed in the Revised Statutes as to persons using carriages drawn by horses. By § 689 of the Penal Code a person who wilfully or mali- ciously displaces, removes, injures or destroys a public high- way or bridge or a private way laid out by authority of law, - or a bridge upon such public or private way ; or, 2. A pier, boom or dam, lawfully erected or maintained upon any water within the State, or hoists any gate in or about such dam, or ; 6. A mile-boara, mile-stone, or guide-post, erected upon a highway, or any inscription upon upon the same, is punishable by imprisonment for not more than two years. And by Penal Code, § 640, a person who wilfully cuts down, girdles or otherwise injures a fruit shade or ornamental tree standing on the lands of another, or of the people of the State, is punishable by imprisonment not exceeding six months or a fine not exceeding $250, or both. Concerning the Feb in Highways. 31 4. Concerning the Fee in Turnpikes, Railroads, etc. Turnpike roads, plankroads and railroads, like ordinary highways, are, as a general rule, simple easements, the fee re- maining in the owner of the soil, and, upon their abandonment, reverting without further incumbrance. During the existence of such road, the rights of the owner of the fee are subject to the same rule as in case of ordinary highways. (^People v. White, 11 Barh. 26 ; Hooker v. Utiea, etc.. Turnpike Oo., 12 Wend. 371; Worcester v. Western B. B. Co., 4: Met. 564; Saswell V. Vermont Central B. B. Co., 23 Vt. 228.) In the case of Davison v. Gill, Lord Kbnyon held, that the trustees of a turnpike road had not the soil thereof vested in them, so as to be enabled to give a sufficient consent to the diverting of a public footpath into their highway. His lord- ship observed, " the soil was not vested in them, but remained in the persons who were entitled to it before the act passed, by which they were appointed." The trustees have only the control of the highway. (See 1 East, 69.) Trespass lies -against a servant of a turnpike company for plowing on the road, unless it be done for the repairing of the road. (^Adams V. Emerson, 6 Pick. 57 ; Bobbins v. Borman, 1 Id. 122.) But it is an elementary principle of the law that where a power, right or thing is granted, either to a natural or artificial person, all the incidents are granted which are necessary to the enjoy- ment of the power, right or thing ; and it has, accordingly, been held, that a turnpike company have not only the right to use the road for the purposes of travel, but may make such use of the land below the surface as may be necessary to secure and maintain the proper enjoyment of their franchise; that they may sink posts in the earth for the gate to swing on, excavate the soil to drain the road, and it was even thought that they might place their toll-house in the road, and dig a cellar, well, etc., under the restriction that the highway be not too much straightened. (^Tucker \. Tower, % Pick. 10%; Bidge Turnpike v. Stoever, 2 W. ^ Serg. 548.) While the interest of incorporated companies in turnpike roads, plankroads and railroads, is usually nothing more than an easement, it is not clear that they may not, under some circumstances, become vested with the fee of the soil. In the case of Tlie People v. White, (11 Barb. 26,) the land in ques- tion had been taken i/j. pursuance of an act of the Legislature, 32 The Law of Highways. for the construction of a canal, and after having been used as the bed of a canal for a number of years, was abandoned by the State, and the canal located in a different place. The court held, in a very able and well considered opinion, that such land, when no longer necessary for public use, reverted to the original owner, although the act under which it was taken declared it should vest in the State, in fee simple. (See also cases cited by O'Conor, counsel for the appellants in Seyward v. Mayor, etc., of New York, 7 N. Y. 314.) But in Heyward v. The Mayor of New York, (supra and 8 Barb. 486,) where lands had been taken by the corporation of New York, in fee simple, under authority of Legislature for the ex- tension of an alms-house, and had been used as such for twenty- seven years, and then the alms-house had been removed to another site, the Court of Appeals held, that there was no reversionary estate in the representatives of the original owner, and that the corporation might sell such lands to private in- dividuals. The case of The People v. White, was neither cited nor alluded to. It may be safely said, that this case is distin- guishable from those of turnpikes, plankroads, and railroads, inasmuch as either of the latter is bound as a condition of its existence, to continue the road for the public use, and when it ceases, from abandonment or otherwise, to be a company, the title must, from necessity, vest in some one else, and it would seem reasonable that it should revert to the original owner. The cases bearing upon the question of reversion in such cases may be found in the points of the Hon. Charles O'Conor, coun- sel for appellants in Heyward v. Mayor, etc., cited above. The Watervliet Turnpike Company constructed a street railway upon its road so near one side that no vehicle could pass on that side, and used raised rails. The -city of Albany acquired title to a portion of the road for a public street and the turnpike road received the usual compensation. The city passed an ordinance directing the turnpike company to re- place the rails with others, flush with the street, leaving a pas- sage-way on either side, and it was held that the acquiescence in the proceedings and receiving the award estopped the turnpike company from objecting to the enforcement of the ordinance. (City of Albany v. Watervliet T. ^ B. B. Co., 108 N. Y. 14 13 N. Y. State Bep. 525.) Concerning the Fee in Highways. 33 5. Cakkying on Business in Highway. The right of the public to an uninterrupted passage in a highway being paramount to the owner's rights in the soil, it will be unlawful for him to carry on any part of his business therein to the annoyance of the public. A temporary occupa- tion, however, of a part of a street or highway, by persons en- gaged in building, or in receiving or delivering goods from stores or warehouses, or the like, is allowed from the necessity of the case ; but a systematic and continued encroachment upon a street, though for purposes of carrying on a lawful busi- ness, is unjustifiable. (People v. Cunningham, 1 Denio, 524.) The necessity to justify such temporary occupation 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 pleas- ure ; 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 mer- chant may have his goods in tlie street for the purpose of re- moving them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it. (Oommon- wealth V. Passmore, 1 Serff. ^ Bawl. 219.) So, one who has occasion to leave a load in a highway must remove it with promptness. If he lets it remain there an unreasonable length of time, it may be removed as a nuisance. (Northrop v. Bur- rows, 10 Ahl. 365.) The obstruction of streets while loading goods must not only be necessary but also convenient with reference to public use, (Oalla-mn,Y. aUman 12 N. Y. St. Bep. 21 ;. 107 N. Y. 360,) and a person owning property next to the street must not use the street for the purpose of storing property, such as steam boilers, to the damage of persons having occasion to use the street. (Stewart v. Porter, Mfg. Co., 13 iV. Y. St. Bep. 220.) See further on subject of obstructions in highway, fostea, chap. XII. 6. Pbbsumption from Adjacent Ownership. The presumption of law is that the owners of lands adjoining 3 34 The Law of Highways. a highway, either in the city or country, are the owners of the fee of the highway. (Bissell v. JST. Y. Central B. R. Co., 23 N. Y. 61 ; Wager v. Troy Union B. B. Co, 25 N. Y. 529.) This applies to the city of New York. (Mott v. JVew York, 2 Hilt. 3,58). If one man own the hands bordering on both sides of highway, then he is presumed to own the fee of the whole road ; but if different owners own the lands on the different sides, then each is presumed to own to the centre of the way — ad medium filum vice. But where an adjoining owner en- closed a portion of the highway, which he continued to culti- vate so enclosed, for twenty-eight years, it was held that even on the supposition that the public easement was therebj'' dis- charged, the line of separation between the opposite proprie- tors remained as it was previous to the enclosure, the centre of the original highway. ( Watrous v. Southworth, 5 Conn. 305 ; Peck v. Smith, 1 Conn. 127.) This presumption of ownership may, however, be rebutted, for one man may own the adjoining lands and another the soil of the road. 7. Boundaries by Highways. It is likewise a presumption of law that a conveyance of lands, bounded on a highway, carries with it the fee to the centre of the road as part and parcel of the grant. The idea of an intention in the grantor to withold 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 presumed. 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 centre of it; provided the grantor at the time own to the centre and there be no words or specific description to show a con- trary intent. (3 Kent. 433 ; Bissell v. N. Y. Central B. B. Co., 23 N. Y. 61 ; Cortelyou v. Van Brunt, 2 John. 357 ; Jackson v. Hathaway, 15 John. 447 ; Bliss v. Johnson, 73 N. Y. 529.) Whether the fee of the highway passes or not is purely a question of intention, to be ascertained in each particular case from the deed of conveyance, and by the locali- ties and subject matters to which it applies. ( Wehher v. I]ast- ern B. B. Co., 2 Metcalf, 151.) It cannot pass as incident or appurtenant to the bordering land, since it is in itself a dis- Concerning the Fee in Highways. 35 tinct and separate parcel of land. (Jackson v. Hathaway, 15 John. 447.) If the owner of land through which a road is laid out, convey the land on each side of it by metes and bounds, which exclude the highway, the right of property in the soil of the road does not pass. (Yates v. Hathaway, 15 John. 447 ; Munn v. Worrall, 53 N. Y. 44.) And the original owner may maintain ejectment for an encroachment thereon. (^Etz V. Daily, 20 Barh. 32 ; overruling 11 Barh. 414.) Where a farm is bounded along a highway, or upon a high- way, or hy a highway, or running to a highway, there is reason to infer that the parties meant to the middle of the highway, and the grant will be so construed. (Id.; Child v. Starr, 4 Hill, 369 ; Hammond v. MoLachlan, 1 Sandf. 323 ; Herring v. Fisher, id. 344.) But if the words describing the boundaries are hy the side of, or by the margin of, or by the line of a high- way, or by other equivalent expressions, the fee of the high- way is not included. (Id. Jones v. Cowman, 2 Sandf. 234 ; Augustine v. Britt, 15 Hun, 395.) 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 centre of the street, as if the line were de- scribed, 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. Bevereux, 16 Barb. 160) A conveyance of city lots bounded on a piece of land laid down and designated in a map of such lots, as a street, which lots were sold with reference to such map, carries the grantee to the centre of such projected street, although it was never adopted as a street by the public authorities. (Bissell v. iV. Y. Central B. B. Co., 23 N. Y. 61 ; Hammond v. MoLach- lan, 1 Sandf. 323.) In the case of Bissell v. iV. Y. Central B B. Co., the conveyances of the lands in question were exe- cuted by M., the original proprietor, to different individuals, and described the lots invariably by their numbers ; " refer- ences being had to the allotment and survey by Elisha John- son." In some cases the sizes of the lot was given, "being 33 feet , front and rear and 99 feet deep." There was no express mention of any street in any of the deeds. It ap- peared that before selling any of the lots, the said M. placed Ms map in the hands of agents engaged in selling his lots, 36 The Law op Highways. and that they made sales in reference to the map. On this map the' lands in controversy were laid down as " Erie street," and the lots conveyed, lay on both sides of such street. The question before the court was stated by the judge delivering the opinion, to be whether a conveyance of a lot bounded on a piece of ground thus laid out upon the map as a street, and called a street, but which was not in fact a public street or highway, carried the grant to the middle of the street. The court held that it did ; and that the same rules of construction were to be applied to grants bounded by city streets as were applied to those bounded by highways in the country. There is a class of cases called the New York City Street Cases (4 Cow. 542 ; 1 Wend. 262 ; 2 id. 472 ; 1 Hill, 189 ; 8 Wend. 85 ; 11 id. 486 ; 17 id. 650 ; 18 id. 411 ; 19 id. 128), which seem to assume fhat a different construction should be put upon such conveyances of city lots bounded by a projected street ; but in none of them is it distinctly decided as between grantor and grantee, that the former retains any title to the lands within the line of the street. (See as to these cases^ Oakley, C. J., in Hammond v. McLachlan; Bissell y. If. T. Central R. R. Co., supra; Mott v. New York, 2 Hilt. 358.) Yet it would seem that in grants of city lands, where there are nice measurements and small and exact quantities, which are more definite in respect of intent than by clear inference, the soil of the street may be excluded. (^Tyler v. Hammond, 11 Pick. 193 ; Union Burial Crround v. Robinson, 5 Whart. 21.) 8. Boundaries by Rivers. It is a well-settled principle of the common law, that the same rules apply in the construction of a grant bounded by a river not navigable, as are applied to grants bounded by a highway. (3 Kent, 432 ; Child v. Starr, 4 Hill, 369; Com. of Canal Fund v. Kempshall, 26 Wend. 404.) It is said by Sir Matthew Hale, in his justly celebrated treatise, B^Jure MariSy that "fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent ; so that the owners of the one side have of common right, the propriety of the soil; and, consequently, the right of fishing, usque filum aquae; and, the owners of the other side, the right of soil or owner- ship, and fishing unto the filum aquce pn their side ; and, if a CONCEENING THE FeB IN HIGHWAYS. 37 \ man be owner of the land of both sides, in common presump- tion, he is owner of the whole river." " But special usage may alter that common presumption, for one man may have the river and another the soil adjacent." The right of soil of owners of lands bounded by the sea, or on navigable rivers, where the tide ebbs and flows, extends, however, only to high- water mark; and the shore below and the bed of the stream belong to the State as trustee for the public. (3 Kent, 427.) The presumption is, that the riparian proprietor is the owner of the alveus, or bed of the river adjoining his land, if it be not navigable, to the middle or thread of the stream, and a grant of land bordering such river is, in the absence of ex- press terms of limitation, presumed to convey usque filum aquce, or to the thread of the stream. (3 Kent. 427 ; per ChancelljOr and per Allen, in Canal Commissioners v. People, 5 Wend. 423.) Thus, where the boundary is to a river, or along a river, or by a river or any other equivalent expression, the grantee takes to the centre or thread of the stream. (CMcZ V. Starr, 4l Hill, 369; per Walworth, Chancellor; see cases cited in Ex parte Jennings, 6 Cow. 644.) So, run- ning to a monument standing on the bank, and thence run- ning by the river, or along the river, etc., does not restrict the grant to the bank of the stream, for the monument in such case is only referred to as giving the direction of the lines to the river, and not as restricting the boundary on the river bank. (-M.) So, a boundary line running from a post on the north bank of a creek, " thence down the same and along the several meanders thereof to the place of beginning," or "from a stake standing on the bank of a river, thence running along the river as it winds and turn to the place of begin- ning," which is also on the bank, includes the bed of the stream to the centre. (^Seneca Nation v. Knight, 23 N. Y. 498 ; Luce v. Oarley, 24 Wend. 451 ; Jackson ex dem. Kingston y.Louw, 12 John. 252.) But there can be no doubt of the right of the general owner of the bed of a river, and of the adjoining lands, so to limit or restrict his conveyance of the one, as not to divest himself of his property in the other. He may sell the adjoining land and reserve to himself the bed of the stream ; or he may con- vey the bed of the stream separate from the land which bounds it. (8 Kent. 434; Child v. Starr, 4 EUl, 369; Hale's 38 The Law of Highways. Be Jure Maris.') Thus, if the boundary is described as ex- tending to the shore, or hanlc, or margin, or to high water mark, the bed of the stream will not be included. QChild v. Starr, 4 EUl, 369; Halsey v. McCormick, 13 iV. T. 296.) So, if the grantor, after giving the lines to the river, bound his land by the lanh of the river, or describe his lines as run- ning along the bank or shore, or margin of the river, he shows a clear intention of not carrying the grant to the center of the stream. (Id.) Thus, where the boundary was " to the Genesee river, thence northwardly along the shore of said river to Buffalo street," it was held that no part of the bed of the river passed. (Child v. Starr, supra.) So where the boundary was described as running to the shore of Gamaliel's neck, and thence by the shore, etc., the bed of the stream was not included. (Storer v. Freeman, 6 Mass. 435.^ So, a deed bounding the premises on the west by the east bank of a river entirely excludes the river. (Kingman v. Sparrow, 12 Barh. 201.) But where the boundary is fixed at the bank of a stream above tide water, the grant extends to low water mark. {Ealsey v. McCormick, 12, N. Y. 296.) 9. What Riveks aee Navigable. We have before remarked that grants of land bounded on navigable rivers only extend to high water mark ; while those bounded by rivers not navigable, in the absence of express words of limitation, extend to the thread or center of the stream. It is important in this connection to inquire what rivers are regarded as navigable. By the common law of England those rivers are navigable in which the tide flows and reflows ; all others are not navigable. This distinction is only applied in determining the ownership of the bed of the stream, and has no reference to the right to use the stream for purpose of passage or transportation ; the rule in that respect being that the public have not only a right to all tide waters, but also a right of way or easement paramount to the rights of the riparian owners, in all rivers which, though not tidal or navigable in the sense above stated, are nevertheless navi- gable in fact. (Morgan v. King, 35 N. Y. 458 ; Hale, BeJure Maris ; Ex parte Jennings, 6 Cow. 518.) It has been a question of much doubt in the courts of our State, as well as in the courts of other states, whether this Concerning the Fee in Highways. 39 common law definition of navigable and innavigable rivers vs^as applicable to this country. On the one hand it has been held that it is applicable, and that the State owns the bed of those rivers only where the tide ebbs and flows ; while on the other hand it has been held by equally high authority that the definition is not applicable, and that the State is the owner of the beds of all rivers that are navigable in fact. As long ago as 1805, in Palmer v. Mulligan (3 Oaines, 308), which was an action on the case for erecting and continuing a nuisance to the plaintiffs mills and dams, situated upon the Hudson, at Stillwater, Kent, Ch. J., who dissented from the majority of the court, said : " The Hudson, at Stillwater, is a fresh water river, not navigable in the common law sense of the term, for the tide does not ebb and fiow at that place." " The Hudson, at Stillwater, is capable of being held and en- joyed as private property, but it is, notwithstanding, to be deemed a public highway for public uses, such as that of rafting lumber, to which purpose it has heretofore been, and still is beneficially subservient." With this opinion Thomp- son, J., agreed. Spencer, J., who delivered the controlling opinion, thought that the common law doctrine was not ap- plicable, and that the bed of the river belonged to the State, but did not base his decision on that question. Again in Shaw V. Crawford (10 John. 236), the court acknowledge the defini- tion was applicable. So in the People v. Piatt (17 John. 195), which was an indictment against the defendant for obstructing the passage of salmon up the river Saranac, Spencer, Ch. J., after citing largely from Lord JHale's Be Jure Maris and other English authorities, to show that only tidal waters are navig- able, says : " I cannot discover that these principles and dis- tinctions have ever been denied or overruled ; and I venture to say that they are of indisputable authority." And in Rooker v. Cummings (20 John. 90), the same learned judge held that rivers are to be considered navigable so far as the sea ebbs and flows. Again in Ex parte Jennings (6 Cow. 518), which was a motion for a mandamus to compel the Canal Ap- praisers to appraise the damages which Jennings— who was the owner of lands bordering on the Chittenango creek — had sustained, by reason of the diversion of the waters of said creek into the Erie Canal above the lands of the relator, the court remarked, " By the term navigable river, the law does 40 The Law of Highways. not mean sucli as is navigable in common parlance. The smallest creek may be so to a certain extent, as well as the largest river without being legally a navigable stream. The term has, in law, a technical meaning; and applies to all streams, rivers or arms of the sea, where the tide ebbs and flows. A public grant, bounded on the margin of such waters, extends, by construction, no farther than high water mark and leaves as to the rest, an absolute proprietary interest in the public. Above the flow of the tide, the river becomes private, either absolutely so, or subject to the public right of way, accordingly as it is a small or a large stream." The next case, in point of time, in this State was that of the Canal Commissioners v. The People, (5 Wend. 423.) George Tibbits claimed to be the owner of a valuable waterfall in the middle sprout of the Mohawk river, which, in consequence of the erection of the State dam, above Troy, was overflowed and rendered useless. The Canal Appraisers refused to appraise the damages, on the ground assumed by them that he had not showed title to the premises ; the Supreme Court issued a mandamus, and the Appraisers sued out a writ of error. The Court for the Correction of Errors, by a vote of twenty to five, decided that from the facts in the case it did not appear that the middle sprout was embraced within the grant of the manor of Rensselaerwyck, by title linder which the relator claimed the premises. The question, therefore, as to the application of the common law definition of navigable rivers, to our own country, did not arise directly ; yet Chancellor Walwoeth and Senator Allen maintained that the rule of the common law, in that regard, prevailed here, while Senator Beardsley held otherwise. In Varick v. Smith (5 Paige, 137), Vice- Chancellor Williams held that it might be regarded as set- tled in this State that grants of land, bounded on rivers and streams above tide water, extend usque ad filum aquce. The case of Tibbits was again before the Court of Errors, in 1836, and is reported in 17 Wend. 571. The head note, which, it is claimed, expresses all the court actually decided is in these words : " If, in the improvement of the naviga- tion of a public river the waters of a tributary stream are so much raised as to destroy a valuable mill site situate thereon, and the stream be generally navigable, although not so at the particular locality of the mill site, the owner is not entitled Concerning the Feb in Highways. 41 ±0 damages within the provisions of the canal laws direct- ing compensation to be made for private property taken for public use." Chancellor Walwoeth regarded "the common law rule as applicable; but Senators Beardsley and Tracy, who wrote opinions, were of different mind. The same ques- -tion had been ably examined by Sutherland, J.^ when the •case was before the Supreme Court, and his conclusion was i;hat the common law rule was the law in this State. (13 Wend. 365.) In Variah v. Smith (9 Paige, 547), the Vice-Chancellor of the fifth circuit was of opinion tliat the construction of the term " navigable river" had long been well settled, and that it meant a river where the tide ebbed and flowed. He was also of opin- that the law, as laid down in the above Case of Tiblits (17 Wend. ), was restricted to and applicable only to the Mohawk river. The next case worthy of attention, is that of Starr v. Child (20 Wend. 149). The action was ejectment, and the ques- tion was, whether a grant of land on the Genesee river extend- ing to the river, and thence along the shore of said river, in <3luded the stream to the center. Judge Cowen, in the opin- ion of tlie court, reiterated the doctrine advanced by him in the note to Hx parte Jennings (6 Cow. 518), that in all grants bounded on fresh water rivers, the soil thereof passes, unless ■expressly excluded by the grant. Judge Beonson, in his dis- senting opinion, controverted this doctrine, and held, that all rivers, navigable in fact, belonged to the public. The case of The Commissioners of the Canal Fund v. Kemp- ^hall (26 Wend. 404), is a leading case, and was thought by -Chancellor Walwoeth (4 Rill, 372), to settle the question in this State. It was an action to recover damages for the ob- •struction, by the agents of the State, of the waters of the Genesee river at Rochester. The head note is in these words : " Fresh water rivers, to the middle of the stream, belong to the owners of the adjacent banks. If navigable, the right of the owners is subject to the servitude of the public interest for passage or navigation. The owners, however, are entitled to the usufruct of the waters flowing in the rivers, as appurte- nant to the fee of the adjoining banks, and for an interruption in the enjoyment of their privileges in that respect, in conse- quence of public improvements made by the State, are entitled 42 ' The Law of Highways. to compensation for damages sustained." Senator Verplank, who delivered the only opinion reported, insisted that the prin- ciple adopted here did not conflict with the decision in The Oanal Appraisers v. Tibbits, (17 Wend, supra ), as there were facts and circumstances in that case, upon which the decision may well be sustained, which did not exist in the case before him. In Ohild V. Starr, which was brought up to the Court of Errors, and is reported in 4 Hill, 369, the question did not properly arise ; but it was thought by the Chancellor that the above case of Kempshall had settled the rule here. The next case was that of The People v. Tibbitts, (19 N. Y. 523), which was an action for rent reserved by a lease of one-half the surplus waters of the Hudson river at the Troy dam, exe- cuted by the Canal Commissioners to George Tibbits, the father of the defendant. The defense was, that George Tib- bits, being owner of the lands bordering the river when the lease was executed, was owner of the surplus water mentioned j and, hence, the lease was without consideration. The court heldj that the defendant, being in possession as tenant, could not contest the title of his landlord. The question as to what shall constitute a river navigable, was discussed, and this proposition announced. " A river is considered as an arm of the sea, and, as such, navigable, so far as the tide rises and falls. That is the technical rule of early establishment, and of uniform and constant adherence." But the case being de- cided on other points, the remark is, of course, obiter. The last case, where the question was directly at issue, is that of The People, ex rel. Loomis, v. Canal Appraisers (33 N. Y. 461). This was a proceeding by mandamus to com- pel the Canal Appraisers to assess the damages which the relator had sustained by the use and diversion of the waters of the Mohawk river, at Little Falls, for the purpose of the Erie canal. It was decided that the Mohawk is a navigable stream; and that the title to the bed of the river is in the people of the State. Davis, J., who delivered the opinion of the court, after a most elaborate examination of the English and American cases on the subject, concluded that the common law rules, deter- mining what streams are navigable, are not applicable to this country. But, with all deference to the learned judge, we must- regard the decision as restricted and applicable only to the Concerning- the Fee in Highways. 43 Mohawk. That the Mohawk is not siabject to the common law rule, was long before decided by the Court of Errors, iu the case of Tibhits (17 Wend. 571). In Morgan v. King (35 N. Y. 454), the common law rule was acknowledged. The action was brought for obstruct- ing the passage of saw logs of the plaintiff, in floating down the Racket river, near Potsdam. In delivering the opinion of the court, Smith, J., remarked: "By the common law of England, those rivers are navigable where the tide flows and reflows; all others are not navigable. Upon this dis- tinction is based a very important rule relating to the own- ership of the bed of the stream and the right of fishing in its waters, to wit: That navigable or tidal rivers, so far as the tide ebbs and flows in them, belong to the King ; and rivers not navigable, that is fresh water rivers, belong to the owner of the adjaoent soil." But as the Racket river was decided not to be navigable in fact, the question as to the application of this common law rule did not arise. Such is the history of the decisions, in this State, on this interesting and important subject. References to the decisions of the courts of other States will be found in the note to page 427, of Kent's Commentaries, in the note to I]x parte Jennings (6 Oow., 518), and in the opinion of Judge Davies in The People v. Canal Appraisers, supra. It will be ob- served that the current of the decisions is in favor of the com- mon law rule, and it is to be hoped that it may ultimately be firmly established as the law of the State. The learned com- mentator on American law, after noticing the decisions in other States -confirming the common law doctrine as stated above, says : These decisions in the courts of Illinois and Mississippi, are highly creditable to their learning and firmness ; and it is consoling to meet with such frank and manly sup- port of the binding force of the common law on which Amer- ican jurisprudence essentially rests. (3 Kent, 428, note.') 44 The Law of Highways. CHAPTER m. HIGHWAYS BY DEDICATION. 1. Definition and nature. 2. Who may make dedication. 3. How dedication proved. 4. How presumption of dedication re- butted. Principles deduced from the decisions. How accepted by the public. Dedication of bridges. Effect of dedication. 1. Definition and Nature. Highways usually originate either by dedication or by the acts of the proper public authorities, in pursuance of the statute. We will consider in this chapter some of the general principles relating to highways by dedication. Dedication may be defined to be an act by which the owner of the fee gives to the public an easement in his land. A road or street may become a public highway in consequence of a dedication of it by the owner of the soil to the public use. The only difficulty is in ascertaining what will be sufficient to constitute such a dedication. It is not essential that the dedication be in writing, but it may be done by an act in pais, as well as by deed. (^Hunter v. Trustees of Sandy Hill, 6 Hill, 407.) It must originate in the voluntary donation of the owner of the land, and be completed by the acceptance of the public. {Child Y. Chappell, 9 N. Y. 257.) The effect of a dedication is not to deprive a party of his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment, which the owner of prop- erty ordinarily has. He retains the right to use the land in any way compatible with the use to which it is dedicated. {Id. Tost V. Pearsall, 22 Wend. 451 ; Kelsey v. King, 33 How, 39.) The public acquire no more than the ordinary easement of passage and repassage over the surface of the soil, and the rights and privileges incident thereto. {Kelsey v. King, 33 How. 39, and cases cited.) A strip of land adjoining a public highway, which remains unenclosed, is deemed to be dedicated to public use. ( Cleveland v. Cleveland, 12 Wend. 172.) Highways by Dedication. 45 The use in a particular manner of a right of way granted to certain persons only, in no way inures to the benefit of the general public as dedication of the same for a highway. (People V. Livingston, 27 Hun, 105.) Miscellaneous trespasses by the general public in crossing a lot at different points will not establish a highway. (Id.') 2. Who may Make Dedication. In respect to who may dedicate lands to public uses, the rule seems to be the same as making grants of any kind, It can only be done by one having the fee in the land. ( Ward V. Davis, 3 Sandf. 502.) It cannot be done by a trespasser or tenant. (Washb. Ease. 180.) Thus, where land as far back as living memory could go, had been used in all respects as a public street, yet, having been under lease for ninety-nine years, which had but just expired, Lord Chief Justice Abbott held that the permission of the tenant could not bind the landlord, and that there was no dedication unless it was proved to have been made prior to the giving of the lease. (Wood V. Veal, b Barn. ^ Aid. 454.) But it is decided that if there has been a frequent change of tenants during the period when the public have had the use of the way, or if the land- lord be proved to have had express notice of the public being in the occupation of the way, his consent, as owner of the fee, must be implied, and the dedication wiU be complete. (Bex V. Barr, 4 Qamph. 16.) But under the statute of this State declaring that" 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." (1 B. 8. 521, § 100), it has been held that the intention of the owner of the land is not material, and that such a user of lands for that period makes it a public high- way under the statute, though the owner be a lunatic, an in- fant, or married woman, and has no knowledge thereof during the entire time. (Devenpeck v. Lambert, 44 Barb. 699, per Balcom, J.) ■ The above was, however, wholly obiter and contrary to the whole current of decisions both in this country and in Eng- land. In Matter Shawangunh Kill (100 N. Y. 642) the court said, « Here the use of the road by the public was only for about 46 The Law of Highways. four years, and if mere user by the public without any action of the town authorities laying out or recording, or improving or accepting the road, can make a highway (a point we do not determine) such user must continue at least twenty years." It is not necessary that there should be a grantee, as in the case of an actual grant, and a dedication will be valid with- out any specific grantee in esse at the time, to whom the fee could be granted. The public is an ever-existing grantee, capable of taking a dedication for public uses. {Post v. Pear- sail, 22 Wend. 435 ; Hunter v. Trustees, etc., 6 JTill, 407.) Land appropriated by the State to be used as a feeder to the canal, never can become the subject of any grant for the purpose of a highway, so that its use as such for twenty years would be a dedication, and the State owes no duty to protect those who so used it. (^Donahue v. State of Netv York, 112 N. Y. 142.) 3. How Dedication Proved. A dedication is supposed to take place through a mutual agreement between the owner of the land and the public; therefore the consent of both these parties must be expressly or impliedly given. We will proceed to consider, 1. What is suiEcient evidence of an intention to dedicate on the part of the owner of the soil ; and 2. How ftir the consent of the pubhc is requisite. To constitute a dedication of land to public use, there must be an intention to do it on the part of the owner, and such intention must be clearly and satisfactorily proved. It may be manifested by writing, declaration or by acts. As to what acts or omisions on the part of the owner are sufficient to con- stitute this dedication is a question upon which no certain rules can be laid down as applicable to every case. It is the province of the jury to decide from the circum- stances of each particular case, whether there is sufficient evidence of an intention on the part of the owner to dedicate the land to the public use as a highway. ( Grould v. Grlass, 19 Barb. 179, 195.) A dedication is not required to be in writ- ing and when accepted is irrevocable. ( Cook v. Harris, 61 JSr. Y. 448, Driggs v. Phillips, 103 N. Y. 77.) Where the acts by the owner are not so specific in their na- ture, or so determinate in their object, as clearly to prove his Highways by Dedication. 47 intention that the public should acquire a right of way, they are frequently aided by collateral evidence ; and the circum- stances of most common occurrence, which is considered suffi- cient to support the claim of the public, is the length of time during which they have had the uninterrupted use and enjoyment of their privilege. But, of course, the weight of this as of any other evidence, must depend, in each in- stance, on the particular feature of the case. Nor has any certain period been prescribed as necessary to support a dedi- cation. In some of the English cases, six years ; in others, eight and twelve years have been held sufficient, while in an- other case, nineteen years was held insufficient. The true principle to be deduced from the authorities is, that if there be no other evidence of a grant or dedication, than the presumption arising from the fact of acquiescence on the part of the owner, in the free use and enjoyment of the way as a public road, the period of twenty years, applicable to incorporal rights, would be required, as being the usual period of limitation. (3 Kent, 451; Gould v. Glass, supra; McMannis v. Butler, 51 Barh. 436.) But if there were clear, unequivocal and decisive acts of the owner, amounting to an explicit manifestation of his will to make a permanent abandon- ment and dedication of the land, those acts would be sufficient to establish the dedication within any intermediate period, and without any deed or other writing. (3 Kent, 451 ; Irwin V. Bixion, 9 How. [U. S.J 30.) Thus, if a man builds a double row of houses, opening into an ancient street, at each end making a street, and sells or lets the houses, that is instantly a, highway. ( Woodyer v. Sadden, 5 Taunt. 137.) So, if one make a plan of his land in a city, with certain streets laid down between certain lots, and sells the lots accordingly, a ■dedication of such streets will be presumed. And, more particularly so, if the public are allowed to occupy the streets ■accordingly. But a mere survey of such streets, without selling the contiguous lots or letting the streets be occupied, is not enough. (^Irwin v. Bixion, 9 Sow. [Z7. S.^ 31; Clements V. West Troy, 16 Barb. 251.) In the case of Sir John Lade v. Bhepherd, (2 Stra. 1004), it appeared that the owner of the property had some years be- fore huilt a street upon it, which had ever since been used as a highway, and the court held it a dedication. In Bex v. Lloyd 48 The Law of Highways. (^Oampi. 260,) the locus in quo was a narrow, oblong passage- leading from one part of the street to another, without hav- ing any outlet elsewhere ; the houses all the way round had once belonged to the same individual, and the passage had been opened as far back as could be remembered. Lord Ellbnbokough observed : " If the owner of the soil throws open a passage, and neither marks, by any visible distinction, that~ he means to preserve all his rights over it, nor excludes- persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public. Although the passage in question was originally intended only for pri- vate convenience, the public are not now to be excluded from it, after being allowed to use it so long without any in- terruption." In the well known case of Rughy Charity v. Merryweather (11 East, 375, note), the period of eight years, was held to be a sufficient length of time, whereon to pre- sume a dedication. Lord Kekyon said : " It is now too late to assert the right; for this is quite a sufficient time of pre- suming a dedication of the way to the public. In a great case, which was much contested six years was held sufficient." This decision has, however, been much questioned in subse- quent cases. In the case of Rex v. Hudson (2 Stra. 909), user for four years was considered too short a period. In Woodyer v. Had- den (5 Taunt. 125), the language of the court was that time was a material ingredient in the foundation of the presump- tion ; and nineteen years' use of a street for a public highway was held not to be clear and decisive, and, therefore, not suffi- cient evidence of a dedication of it to the public. But in the case of Regina v. Petrie (30 Ung. Law and Uq. R. 207), the court go so far as to say, that the enjoyment and user of a way by the public, with circumstances of publicity, for a period of six years, is evidence from which the assent of the owner, whoever he may be, is prima facie to be inferred. In a recent American case it was held that, in the absence of clear and unequivocal manifestation of an intention to dedicate, a dedication would not be presumed, until after the lapse of twenty years' uninterrupted user, and this is the view gener- ally taken by the courts of this country. QHoole v. Attorney- G-eneral, 22 Ala. 190.) In Golden v. Thurhur (2 John. 424), twelve years' use was Highways by Dedication. 49 held prima facie evidence that the road had been properly laid out. The failure by the commissioners of highways to cause a public highway, long in use, to be opened to its full statute width for a period of thirty years, does not operate to ex- tinguish the rights of the public to th* parcels not so opened and worked. (^Walker v. Gaywood, 31 N. Y. B. 51.) In Denning t. Roome (6 Wend. 651), where a street in the city of New York was widened from forty to sixty feet, and ac- cordingly used by the public for nineteen years, although no legal measure 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 street to the full width, and the recognition of the appropriation of the twenty feet, were suiBcient to establish the right of the public to the use of the street to the full width of sixty feet. So, where the owner of lands in a city make a map or plan of his land, with certain streets laid down between certain lots, and sells the lots accordingly, a dedication, as between the grantor and grantee, will be presumed, although no part of such streets have been adopted by the public authorities. iBissell v. K T. Central Railroad Co., 23 N. Y. 61 ; Mat- ter of Thirty-second Street, 19 Wend. 128 ; Matter of Twenty- ninth Street, 1 Hill, 189 ; Wyman v. Mayor of N. Y., 11 Wend. 486 ; De Witt v. Village of Ithaca, 15 Hun, 568.) " But there must be clear, unequivocal and decisive acts of the owner manifesting a positive and unmistakable intention to make a permanent abandonment of his property to the specific purpose intended, and the appurtenant right does not extend to streets and parts with which the property conveyed has no immediate connection. (Johnson v. Shelter Island Ass'n, 14 N. Y. St. Rep. 576, criticising 11 Wend. 486.) The coincidental use by the public of a private way, which the owners maintain prim- arily for their own convenience is permissive by license, and lacks the essential characteristics of the use required to work a pre- sumption of grant or title in the public for a public highway. (Speir V. Town of New Utrecht, 49 Hun, 294.) But the mere laying down of streets or squares upon the plat of a contem- plated city or village, even though the same may be publicly exhibited or declared by the proprietors thereof, does not con- stitute a dedication of them to public use ; there must be a 4 50 The Law of Highways. sale of some m. these lots, having reference to such streets or squares, and some adoption thereof by the public, as such, in order to create a dedication of them to the public. (Thomp^ son's Fro. Bern, and cases.} A map filed as a plan of future improTemeuts does not establish a street. {In re Rhinelander, 68 N. Y. B. 105, Johnson v. Shelter Island Ass'n, 14 N. T. St. Bep. 576.) So, where adjoining proprietors, for their own con- venience laid out a lane twenty feet wide on the boundary line, and the public used it for about thirty years, it was held to be a dedication. ( Wiggins v. Tallmadge, 11 Barh. 457 ; Walher v. Oaywood, supra.") "Where the only evidence of ded- ication is a map made in 1826, on which the premises were marked as part of a street, but there was no proof of an ac- ceptance by the citj^ or of ownership in the parties filing the map, held no dedication. (MoMannis v. Butler, 49 Barh. 176.) An owner of land cannot, by the mere removal of his fence impose upon the public a strip of land as a street, nor can the public deprive the owner of any right or interest in or control over it by that circumstance. It does not amount to a dedi- cation. (Bozell V. Andrews, 3 N. Y. St. Bep. 53 ; 103 N. Y. 150.) 4. How Pkesumption of Dedication May be Rebutted. It seems, however, to be agreed, both by the English courts and the courts of this country, that the owner may negative any presumption of dedication, by placing at the entrance of the passage a bar, post or gate, or notice of " no thorough- fare " or "private passage," or by other similar means. Thus, where a bar had been placed across a newly finished street, which bar, however, was soon knocked down, and the public used the street for some years as a thoroughfare, it was con- tended that a dedication, at least as far as a right of foot path, had been proved. Mr. Justice Heath held, that the putting up of the bar rebutted the presumption of a dedication to the public ; that the dedication contended for must have been made openly, and with a deliberate purpose, and the verdict negatived the right of way. (^Boberts v. Karr, 1 Campb. 262, note.") So, where it appeared that a gate had been once erected across the locus in quo, but, that for twelve years, the public had used a way over the locus in quo, there being no gate during that period, Mr. Sergeant Marshall directed the jury to Highways by Dedication. 51 find against the right of way, and the court ofTCing's Bench sustained his opinion. (Lethhridge v. Winter, 1 Camph. 263, note.^ So, where a manufacturing company opened a street on their own premises, and built houses on each side and wrought the way as a street, and the houses were occupied lay their operatives ; and it appeared that they had posted up at the opening of the passage, " private way," it was held to be such only, and the city was not responsible to a person who, in passing through it, sustained injury. (^Durgin v. Lowell, 3 Allen, 398.) So, where a land owner, in the village of New- burgh, laid out a strip of land of the ordinary width of a street, from one public street to another, and wrought it, at great ex- pense, into the condition of a street fit for public use ; when he began to work, he had gates at each end ; he took down one as he progressed, and in the end removed the other ; and while he was working it people on foot and in vehicles passed over it. After it was completed, he replaced the gates. A citizen of the town insisted on passing over it, on the ground that it had been dedicated to public use. The court held that it was not a dedicated highway. (^Carpenter v. Grwynn, 35 Barh. 395, 406.) Dedication and acceptance by the public authorities create a highway, without regard to the length of time it may have been used. Neither recognition nor acquiescence can operate by way of estoppel, until the expiration of twenty years from the commencement of the user. ( Chapman v. Swan, 65 Barh. 210.) 5. PRrsrciPLBs Deduced feom the Decisions. We see, therefore, that the question of dedication, as to the owner of the land is nothing more nor less than a question as to the intention of the supposed donor of the right of way. The owner's acts and declarations must be deliberate, unequivocal and decisive, manifesting a positive and unmistakable inten- tion to permanently abandon his property to the specific public use ; or else that there must have been a user of such length of time, by the public as will raise the presumption of acqui- escence on the part of such owner, in the free use and enjoy- ment of the way as a public road ; and that in the absence of other evidence of a grant or dedication, such user must have been for the period of twenty years; and further, that is a 52 The Law of Highways. question for the jury to decide, on the evidence of each par- ticular case, whether the facts show an intention to dedicate the locus in quo to public use. The intention is the point where the matter hinges ; and it follows, that whenever the owner has done any act inconsistent with the public right of passage, or where any other circumstances occur which negative the im- plication of his assent, the dedication cannot be inferred. Whether a public highway has been established by dedication or prescription is a matter of fact for the jury. {McCarthy V. L. S. and M. S. R. B. Co., 76 N. Y. 592 ; Johnson v. Shelter Island Asso., 14 K Y. St. Bep. 576.) 6. How Accepted by the Public. To render a dedication complete or effectual, it must be ac- cepted by the public; and before it has been accepted the owner is not precluded from revoking it at any time. (ZToZ- dane v. Trustees, ^c, 21 If. Y. 478; Wohler v. Buffalo and State Line B. B. Co., 46 JST. Y. 686 ; Niagara Falls Susp. B.. Co. V. Bachman, 66 N. Y. 261.) The common law mode of indicating an acceptance by the public of a dedication is by a user of sufficient length to evince, such acceptance — the length of time depending, of course,, upon , the circumstances of each case. ( Washhr Base. 139 ; Lade v. Shepherd, 2 Strange, 1004.) And the rule appears - to be now established that the acceptance may be proved by long public use or by the acts and conduct of the public authorities recognizing and adopting the highway. (2%e People V. Loehfelm, 102 N. Y. 1, citing Cooh v. Harris, 61 ISf. Y. 448; Holdane v. Trustees Cold Spring, 21 id. 474; McMannis v. Butler, 51 Barh. 436.) In this case the common council directed a survey of Beach sti-eet as the owner had mapped and dedicated it which was done, and also built a sewer through it, and it was held that no formal laying out was necessary in such case. (See also Vandemark v. Barter, 40 Hun, 397.) But courts of high authority, both in this State and other States, influenced by local statutes, have held that mere user of streets or ways, by the public does not con- stitute an acceptance or adoption of them as highways by dedication, unless there shall have been a location of the same, as public ways, by the proper officers of the town, city or county authorized to make such location. Highways by Dedication. 53 Thus in Underwood v. Stuyvesant (19 John. 186), Petrus Stuyvesant had surveyed and laid out a tract of land within the city of New York into city lots and streets, and had sold or leased part of the lots with reference to the survey. Mr. Justice Platt, in delivering the opinion of the court, said : *' We must intend that every person knew that these streets could not be established as public streets of the city unless they were sanctioned by the corporation, or other public agents having such power." So in the case of Clements v. West Troy, the proprietors of that village laid out the same by a plan, upon which an alley was laid down, and house lots were con- veyed 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 be- come 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." (16 Barb. 251 ; see also Child v. Chappell, 9 N". Y. 257 , per Morse, J., and to the contrary, Clements v. West Troy, 10 How. 199.) In the case of the Trustees, etc. v. Otis (37 Barb. 50), it was held that a way may be dedicated, and will become a high- way when laid out as such by the constituted authorities, or by an acceptance of the dedication by those authorized to act for tlie public. But it is not competent for an individual, by a simple act of dedication, to impose upon the public the burden and responsibility of maintaining a highway. Nor will the mere use of the way by the public make an acceptance, if for a less time than twenty years. Nor could the public prosecute the one who had dedicated it, for having shut it up before the same was accepted. And in the case of Oswego v. The Oswego Canal Company, (6 K T. 257), the Court of Appeals decided that streets and roads dedicated by individuals to public use, but not adopted by the local public authorities, or declared highways by statute, are not highways within the meaning of the high- way act; and there is no law by which any one can be com- pelled to keep them in repair. 54 The Law of Highways, On the other hand, it was held by Mr. Justice Weight, in - Clements v. West Troy (10 How. 199), that user by the public was sufficient evidence of an acceptance of a dedication with- out any act of affirmance by any local officer or body. So, in Bissell V. K Y. Cent. Railroad (26 Barh. 634), the court held that the acceptance must be by some express corporate or official act, or by user, distinct and unequivocal, of such street as a public street or highway ; and when the same case was before the Court of Appeals (23 iV. Y. 61), the same proposition was affirmed by Mason, J., who delivered the opinion of the court, although it was admitted that the ques- tion did not arise in the case. Again, it was held in Holdane V. Trustee, ^o. (23 Barb. 123), by the other judges, against Strong, J., that a dedicated way may acquire the character and qualities of a highway, if it has been openly used as such, though there has been no formal act of acceptance by the public authorities, and that it becomes a way for all persons. The same case came before the Court of Appeals in 1860, and is reported in 21 iV. Y. 474; the court said, "It is not neces- sary that there should be any formal act of acceptance by the public authorities, but it may be indicated by common user, under circumstances showing a clear intent to accept and enjoy, as such, the easement proposed to be dedicated." All the judges concurred in affirming the judgment of the Supreme Court; Seldbn, J., with a protest against any implication that a dedication can take effect without some public body to take, or without an acceptance to be proved by user or otherwise. The case of Oswego v. The Oswego Canal Co. was neither cited nor referred to. (See also Bevenpech v. Lambert, 44 Barh. 596.) and these decisions seem to be affirmed in 102 N. Y. 1, supra. Upon principle, it is difficult to see why a formal act of the public authorities, is requisite to affirm a dedication of a high- way. All highways are for the benefit of the people at large, in whatever part of the State they may reside. And though each town is bound to repair its own ways, yet the burden is the same upon all other towns ; and there seems no reason why any one of them should be allowed a veto as to the estab- lishment of new ways, which in the very user thereof by the public, are evidenced to be of general advantage. If a way be voluntarily travelled by the people at large, it must be pre- Highways by Dedication. 55 sumed to be beneficial to them; if it be of benefit, tbe town should be charged with its reparation. The principle upon which the liability to repair highways is founded is, that the public shall be at the expense of keeping in good order their own ways. The highway officers are selected only as a means whereby that charge can be effected. Whenever a way has become a public way then the town must repair it as the agent for the people. The intervention of the town is not re- quired until after the public nature of the way is established. That is done through its adoption by, and as a necessary con- sequence, its utility to, the people at large. It has been held that an alley need not be accepted by the public to be deemed a thoroughfare. ^Beck v. Garter, 68 N. Y. 283.) The failure to open and work one part of a highway within the statutory time of six years does not prevent another part from remaining a highway. (Vandemark v. Porter, 40 Hun, 397.) 7. Dedication of Bridges. The general rules of dedication apply equally to highways and bridges ; there is, however, this distinction between them. If a way be opened and dedicated to public use by the owner of lands, it is optional with the public to accept it by user, or not to accept it by non-user ; but if a private bridge be built in a highway the passage over it is a matter of necessity, and not of choice. No one can traverse the highway without pass- ing over the bridge ; and it follows, that its user by the public is no evidence of their consent to its erection, nor any crite- rion of its utility. But if a bridge be of public utility and be used by the public, they are obliged to repair it, though built by an individual for his private benefit ; it is otherwise, how- ever, if built by him for his own benefit, and it is without public utility, though used by the public. And if a bridge built by an individual, and dedicated to the community, is not what it seems to be, but is of imperfect and inartificial con- struction, the public may reject and indict it for a nuisance, after discovering the cheat, though their previous conduct might, under different circumstances, have amounted to an acceptance. {Rex v. West Biding, 2 East, 842.) And if a bridge is thrown over a highway, and the public derive no benefit from it greater than they enjoyed before it was built, 5G The Law of Highways. the builder is bound to repair it. {Bygert v. Scheneh, 23 Wend. 446. See ante, page 8.) 8. Effect of Dedication. The effect of a dedication is not to deprive the owner of his land, but to estop him while the dedication continues in force from asserting that right of exclusive possession and enjoy- ment which the owner of property ordinarily has. He retains a right to use the land for any and all purposes compatible with the use to which it is dedicated. (^Hunter v. Trustees ^c, 6 mil, 407 ; Eelsey v. King, 33 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, ^ubject only to such easement. Every right of use and owner- ship, 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 soil. If the high- way is closed or the public rights are relinquished, the land at once revests in full and entire dominion. (^People v. Kerr; 27 N. Y. 196 ; Kelsey v. King, 33 How. 39.) But this rule must be regarded as not strictly applicable to streets dedicated to public use in cities or large villages. As to such streets it is said, though not perhaps directly decided, that whether they are acquired by grant, by dedication, or by purchase, they are subject to those uses which are incident to streets in cities ; such as the construction of sewers and the laying of gas and water-pipes, without entitling the owner to additional compensation. (Milhau v. Sharp, 15 Barb. 210, per Edwards, J.; -People v. Kerr, 27 iV. Y. 202, per Emott, J.) But a different opinion was expressed by Davies, C. J., in Kelsey v. King, (33 How., 39), to the effect that there was no difference between highways in the country and streets in cities in this regard, and that the dedication of land for a public street in a city or village, carries with it no other right or privilege than the ordinary easement of travel. That case was decided on other grounds, but the learned judge gives an elaborate review and analysis of the authorities, to show that the sewer commissioners of the city of Brooklyn had no power to construct a sewer in a dedicated street of that city, without Highways by Dedication. 57 acquiring title and making compensation therefor to the owner of the fee, or without his consent. The owner may revoke the dedication at any time before it has been rendered complete by the acceptance of the public. (Eoldane v. Trustees, ^c, 21 iV. Y, 478.) But where the •dedication has been once accepted by thef public, it cannot be revoked while the street continues in use. (^Adams v. Sara- toga ^ Washington M. M. Co., 11 Barb. 414.) If an owner sells lots by map, on which streets and public squares are designated, the purchaser where the squares have been used ;as highways, may restrain a railroad from laying its track there without compensation. (^Pratt v. Buffalo City M. B. Co., 19 Hun, 30.) The dedication of land to the use of the public as a high- way, does not preclude the owner of the fee subject to the public easement from maintaining an action against a railroad company, which, without his consent, or an appraisal of his damages, enters upon . and occupies such highway with the track of its road. ( Williams v. N. T. Central B. B. Co., 16 N. Y. 97.) Upon the discontinuance or extinction of the highway, in any manner, the land revests in the owner of the fee discharged of the public easement or right of passage. 58 The Law op Highways. CHAPTER IV. COMMISSIONBBS, THEIR POWERS AND DUTIES. Election and qualification. General powers and duties. To cause roads to be ascertained, described and entered of record. To cause the highways and bridges to be kept in repair. To divide the town into road dis- tricts and assigiL inhabitants thereto. To lay out and discontinue roads. To account to town auditor. In raising money for repairs of roads and bridges. 9. To appoint overseers, and to pros- ecute them for neglect of duty. 10. Miscellaneous powers and duties. 11. Action by or against. 12. May consent to use of highway by railroad company. 13. May agree with plank-road or turnpike company for use of highway. 14. Mandamus against. 1.5. Injunction against. 16. Fees of. 1. Election and Qualifications. By the Laws of 1866, chapter 30, it is provided that there shall be chosen, at the annual town meeting, in each town, one, two, or three commissioners of highways. The person or persons chosen for commissioners must be electors of the town, since it is provided that no person shall be eligible to any town office unless he shall be an elector of the town for which he shall be chosen. (1 B. S. 345, 7th ed., p. 817.) To take oath. — Every person chosen to the office of commis- sioner of highways, before he enters on the duties of his office,, and within teia days after he shall be notified of his election, shall take and subscribe before some justice of the peace, the- oath of office proscribed in the sixth article (twelfth in the Constitution of 1846) of the Constitution of this State, as. amended 1874. (1 B. 8. 345. See People ex rel. Williamson V. McKinney, 62 N. Y. 374.) The oath is iu these words : "I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of New York ; and that I will faithfully discharge the duties of the offices of com- missioner of highways, according to best of my ability; and I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contributed, or offered or promised to contribute, any money or other valuable thing, as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office; and Commissioners, Their Powers and Duties. 59 have not made any promise to influence the giving or withholding a vote at the election at which I was elected to said office ; and have not made any prom- ise to influence the giving or withholding any such vote." (For form, see Appendix No. 1.) Such oath shall be administered without reward, and the justice before whom the same shall be taken, shall also, with- out reward, certify in writing the day and year when the same was taken, and shall deliver such certificate to the per- son by whom the oath was made. (1 R. S. 345, § 14.) The oath may also be subscribed and sworn before the town clerk of the town in which such officer shall be elected. Such oath shall be administered and certified without fee or reward. (Laws 1838, Ch. 172.) (For form of certificate, see Appen- dix No. 2.) Acts directing persons to administer oath of office to officers are held to be merely directory. (^Uz parte math, 3 mil, 42.) Such person (i. e. the person sworn), within eight days thereafter, shall cause the certificate to be filed in the office of the town clerk. (1 B. S. 345, § 15.) If any person chosen or appointed 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. (Jc?., § 16.) But if he enter 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 H. S. 347.) Penalty for refusing to serve. — So, 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. (Id.') Number and term of office. — The electors of each town shall have power at their annual town meeting, to determine, by resolution, whether there shall be chosen one or three high- way commissioners, and the number so determined upon shall be balloted for and chosen; and if only one shall be determined upon and chosen,, he shall possess all the powers and discharge 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 60 The Law of Highways. 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 by ch. 455, laws 1847.) Vacancy, how filled. — 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 the peace, or two justices and the supervisor of the town. (icZ. ; see form No. 8.) To administer oath. — And every commissioner of highway shall be authorized to administer oaths to any witnesses or juries, in proceedings which may be had by or before them. Number, how changed. — And whenever any town shall have determined upon having three commissioners, and shall desire to return two or have but one, such town shall 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 com- missioner 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 the power to act until their terms shall severally become vacant or expire, as fully as if the three continued in office. (Laws of 1845, ch. 180, as amd. 1847, ch. 455.) A resolution, taken at an annual meeting, to change the number of commissioners, can- not be rescinded until the terms have expired, nor until noon. (People V. Sandman, 12 Hun, 165.) Appointment to fill vacancy. — In case of vacancy, if the com- missioner is appointed, he holds to the next annual town meet Commissioners, Theik Powers akd Duties. 61 ing after his appointment ; but if he is elected, he holds for the unexpired term. Where two persons are appointed to fill vacancies in the office of commissioner of highways, without designating the class to which they shall respectively belong, the one first named in the appointment is to be regarded as appointed to the first class. Where the commissioners , of the first and third class — the one to serve one year and the one to serve th ree years — ^failed to qualify themselves, and the vacan- cies were filled by three justices of the peace, by appointing two persons as such commissioners ; but the appointment failed to designate the class of either of the persons so appointed, it was thought by the court that the person first named in the appointment should be considered as appointed for the first class, or for one year, and the other for the third class, to serve three years. (^People ex rel, Aspinwall v. Supervisors Richmond Co., 20 N. Y. 252.) Should there be a failure to elect com- missioners at the annual town meeting, in consequence of a tie in the vote, and the meeting adjourn without making an elec- tion, it is competent for three justices of the town to appoint a suitable person to the office, who, and not a person subse- quently elected at a special town meeting, is entitled to hold office. (People ex rel. Simpson v. Van Home, 18 Wend. 615.) To give bond. — 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, with two sure- ties, to be approved by the supervisor by an endorsement there- on, and filed with him, in the penal sum of one thousand dollars, conditional that he will 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 render to such successor a true account of all moneys received and paid out by him as such commissioner. (Laws 1845, chap. 180, § 3.) (For form of bond and endorsement, see Appendix Nos. 3-5.) In case of default on the part of the commissioner in the performance of his duties, the bond must be prosecuted in the name of the supervisor of the town. No authority is given to a commissioner to sue his predecessor on the bond (See Ful- 62 The Law op Highways. ler V. FuUerton, 14 Barb 59 ; Jansen v. Ostrander, 1 Cow. 670 ; Armine v. Spencer, 4. Fewc? 406.) The omission to execute and file the bond, does not render his official acts void, so as to make him a trespasser. (Foot v. Stiles, 57 If. Y. 399.) When to meet. — It is the duty of the commissioners of highways of each town to meet within eighteen days after they are chosen, at the place of town meeting, on such day as they shall agree upon, and afterwards at such other times and places as they shall think proper, (1 R. S. 505, § 20.) Where there is but one commissioner he should attend at the same place. The object of this meeting is to make the as- sessment for highway labor. They can adjourn to another place, or appoint a subsequent meeting. This section is direc- torj^ and if they should omit a meeting within the eighteen days, according to the usual construction of such statutes, they could afterwards meet and their proceedings would not be void. As to their powers and duties in making assess- ments for highway labor, see postea Ch, VI. Resignation. — Should any commissioner of highways desire to resign his office, he may give notice of his intention so to do to any three justices of the peace of the town, who may, for sufficient cause shown -to them, accept the resignation. (1 It. S. 348.) It will be the duty of the justices thereupon to appoint some proper person to fill the vacancy. (See Form No. 7.) Sureties to the bond of the commissioners will be liable only for defaults of duty during the term for which they were chosen, at the time the obligation was entered into, and not for those under a re-appointment. (Kingston Mutual Ins. Co. V. Olarh, 33 Barb. 196.) 2. Genbeal Powers and Duties. The commissioners of highways in the several towns in this State shall have the care and superintendence of the high- ways and bridges therein ; and it shall be their duty : 1. To give directions for the repairing of the roads and bridges within the" 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 inconve- nient. COMMISSIONEES, ThEIR PoWEES AND DUTIES. 63 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 dis- tricts as they shall judge convenient, by writing under their hands, to be lodged with the town clerk, and by him to be en- tered in the town book ; such division to be made annually, if they shall think it necessary, and in all cases to be made at least tea 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, however, that whenever the commissioners 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 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 applied to the same, and cause the same to be worked and put in good order for vehicles and travellers within one year, under the •direction of any of the said inhabitants whom such commission- ers may appoint 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 ife annual labor be taken and applied 64 The Law op Highways. to any road not embraced in said district. (1. R. S. 501 [7tli, Ed. 1212.] as am'd 1853, ch. 63. 7. To require the overseers 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. (1. R. 8. 601, § 1.) The above statute imposes on the commissioners the duty of active oversight, constant diligence, and requires them to exercise a reasonable degree of watchfulness in ascertaining from time to time the condition of the highways and bridges and in preventing them from becoming dilapidated or danger- ous. (^Bostwick V. Barlow, 14 Hun, 177.) And where it is made the duty 'of the commissioners of highways to keep a road in repair, by the act under which the road was built such as L. 1873, ch. 364, that duty involves the duty to keep the road safe and to erect guards at danger- ous places. (Monk v. Town of New Utrecht, 23 Weekly Dig^ 112.) Commissioners are to act as inspectors of plank roads (Laws 1873, chap. 440, as amended,) and as water commissioners- (Laws 1871, ch. 308, § 16). They are also authorized to lay out the unexpended highway labor on the sidewalks (Laws- 1880, ch. 805, as am'd 1884, ch. 479. See Watrous v. Shear, 25 Week. Big. 164.) Special commissioners have an implied authority to do all the several acts and duties connected with their position. (Odell v. Be Witt, 53 iV. Y. 643. Farman v. Town of Ellington, 10 N. Y. St. Rep. 840; 46 Run, 41.) Care and Superintendence. — The commissioners shall have the care and superintendence of the highways and bridges in their town. They are superior to the overseers of highways, and have the general control and direction of them in their official acts. All the powers of the overseers miast, therefore, be taken to be subordinate to, and under the superior control of, the orders of the commissioners, whom they are bound to obey. It is further to be observed that the duty of overseers is confined to the highways, and it is the commissioners alone who are directed to keep in repair bridges as well as high- ways. The overseers have no concern with bridges erected Commissioners, Thbik Powers and Duties. 65 over streams, except so far as they are directed generally to execute the orders of the commissioners. (^Bartlettv. Crozier, 17 John. 447, per Kent, Chancellor.) It must be remembered that the term road is used in our statutes synonymously with highways. (Fowler v. Lansing, 9 John. 349.) To direct repairs. — It is made the duty of commissioners to give to the overseers directions for the repair of roads and bridges, and as to the manner in which such repair shall be done — as for instance, how to grade, drain, or level the roads, or how a bridge shall be repaired ; and it is the duty of over- seers to obey such instructions. (Bartlett v. Orozier, supra.") 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 dollars for each refusal or neglect, to be sued for by the commissioners, and to be by them ap- plied in making and improving the roads and bridges in the town. (1 B. S. 504.) An overseer, is liable for not remov- ing obstructions in the highway, although not specially re- quired by the commissioners. (McFadden v. Kingsbury, 11 Wend. 667.) To regulate and alter. — By the second subdivision, com- missioners are authorized and it is made their duty to regu- late the roads already laid out, and to alter such of them as they, or a majority of them, shall deem inconvenient. They may 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 making such al- teration it becomes necessary to take more or other land of the adjoining proprietor, compensation therefor must be made, the same as on the original location of roads. The power to alter is given for the purpose of making the road better by changing its site, and should only be exercised when the road is deemed " inconvenient." (See People ex rel. ConCrs High, ways of Gortlandville v. Jaidges Cortland Co., 24 Wend. 493.) The commissioners have no power to make alterations in a public highway without the aid or intervention of a jury. (See Ch. IX., postea.) Under the above authority to regu- late or alter roads, it seems that the commissioners may cut down and grade roads, although by so doing the adjoining 5 66 The Law of Highways. premises would sustain indirect and consequential damages, proyided the commissioners act in good faith and without malice. (Badcliff^s ex'rs v. Mayor of Brooklyn, 4 N. Y. 195. See also, 14 Barb. 629.) See further as to the power and duties of commissioners in altering road hereafter. 3. To Cause Roads to be Asceetained, Described and Entered of Record. The third subdivision of the above section, authorizing highway commissioners to cause such of the roads used as highways, as shall have been laid out, but not sufficiently de- scribed ; 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, does not authorize the com- missioners to sa:y 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 further than such intention has been manifested by permitting 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 commission- ers to create or enlarge, but only to perpetuate the evidence of a public right. Both the extent and fact of dedication de- pend on the user^ and the public must take aecwndum forma doni, that is, according to the form of the gift or dedication. (^People ex rel. Comers of Highways of Cortlandville v. Judges of Cortland Co., 24 Wend. 492, per Bronson, J.) Where the road has been originally laid out, it is of course competent for the commissioners to remove any encroachments thereon, if they proceed in the manner provided by statue, but before it can be determined whether there is an encroachment, the limits and boundaries must be ascertained and determined ■in some legal manner. The jury, which is called to determine the disputed question of an encroachment, has no power to determine the question of the width and boundary of a high- way, according to previous dedication or use which has been neither laid out nor ascertained and described by the commis- sioners of highways. That duty belongs exclusively to the commissioners, and is to be performed by them is an entirely different manner. (Talmage v. Huntting, 29 N. Y. 447.) In ascertaining and describing a road which has not been laid cue, but has become a highway merely by public use for twenty Commissioners, Their Powers and Duties. 67 years, the powers of the highway commissioners is limited to ascertaining the boundaries of the road according to actual use for twenty years. They have no right in the exercise of this power, to alter and change the boundaries, with reference to present public convenience. (Ji.) They have no power to as- certain, describe and enter of record a road dedicated to public use. (Com. of North Hempsted v. Judges of Queens Co., 17 Wend. 9.) Where the minutes of a road laid out in 1784 had been en- tered in the records of the town in 1790, but not signed by the commissioners and the commissioners of highways in 1805 ascer- tained the same road and caused a certificate thereof, with the description, to be duly entered of record, and the road, after 1784 had been used as a public road for twelve years, the court held, in an action of trespass against a person for passing over it, that the use of the road as a public highway for twelve years, was prima fade evidence of its being laid out by proper authorities, and that the acts of the commissioners, in 1805, dujy constituted the road a public highway. ( Colden v. Thurbur, 2 John. 424.) So, where the owners of adjoining lands laid out a lane twenty feet wide on their boundary line, for their own convenience, and it was used by all persons having occasion to pass that way, for a great number of years, until 1826, when the commissioners of highways laid out and recorded a highway, referring to and connected with the lane, and giving egress through the lane to a road beyond ; and the public use of the lane was continued until 1848, when the commissioners described it and entered it upon the record as a highway, it was held to be a public high- way, and that an owner of adjoining land was liable for an en- croachment in extending his fences to the middle of it. (_Wig- gins V. Tallmadge, 11 Barh. 457.) It seems that the uninterrupted use of land as a public high- way for twenty years, according to the statute, entitles the com- misjioners to cause it to be ascertained, described and entered of record, without regard to the intention of the owner in per- mitting such use. (Bevenpeck v. Lambert, 44 Barh. 599.) The proper method to ascertain, describe and enter of record a road, is to have a survey thereof made, and to draw and sign a certificate or order that such road is ascertained and described according to the survey, giving the metes and bounds, and to have the said certificate or order and survey filed and re- 68 The Law of Highways. corded, in the town clerk's office. (For forms of order or cer- tificate, see Appendix No. 9.) In ascertaining, describing and recording a road that has been used for twenty years, or that has been laid out but not sufficiently described, thfe commissioners perform little more than a ministerial duty, and no appeal lies from their proceed- ing. (^People ex rel. Gomr's v. Judges of Cortland Co., 24 Wend. 491.) The proper remedy for a party aggrieved, would bably be certiorari. 4. To Cause the Bridges and Highways to be Kept ik Repair. It is made the duty of the highway commissioners, by the fourth subdivision of the foregoing section, to cause the high- ways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair. Primarily, it is the duty of the commissioners to keep the highways and bridges in repair, either directly or by giving the necessary and proper directions to the overseers for such reparation. This is, in general, to be done through orders to the overseers. It is also made the duty of overseers to repair and keep in order the highways within their several districts (1 B. S. 503), but they have nothing to do with bridges over streams, except so far as they are directed, generally, to execute the orders of the commissioners. (^Bartlett v. Crozier, 17 John. 452.) The provisions of the statute imposing upon the overseers the duty of keeping the highway in order, do not relieve the commissioner from the duty of seeing that the roads are kept in suitable repair. (1887 Farman v. Town of Ellington, 46 Hun. 41.) While commissioners are required to exercise reasonable care as to approaches to a bridge, they are not responsible for injury caused by runaway horses. (1888, Stacy v. Town of Phelps, 14 N. T. St. Rep. 177.) This duty of keeping a bridge or a highway in repair extends, not merely to the floor of the bridge, or the bed of the road, but to proper guards or railing on their sides or borders, where necessary for the safety or protection of the public. (Jlyatt V. Trustees of Rondout, 44 Barh. 391, Monk v. Town of New Utrecht, 23 Weekly Big. 112.) They owe the public an active duty of inspecting bridges. Commissioners, Thbik Powees and Duties. 69 and remedying defects • found to exist ; and they are not ex- cused from liability from injuries sustained merely because they had no knowledge of the defect. (1885, Cousins v. Oarncross, 21 Weekly Big. 435.) 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 traveller 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 mistaken, they will not be in fault if a traveller choses to try an experi- ment upon the part which is not thus prepared for travelling, (^Ireland v. Oswego, Sfc, Plankroad Co., 13 N. Y. 631, 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 exhibit the appearance of having been used by travellers, 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 man- ner 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 vrill turn the traveller from the wrong track. (Id.') But where a road bed sixty feet wide is flanked on either side by sidewalks eleven feet wide it is not negligence for the commissioners to omit to erect a railing or fence to prevent people from wandering into the adjacent fields. (^Monk v. Town of New Utrecht, 6 JST. ¥. St. Bep. 484. 104 N. Y. 552.) It is not negligence to guard against a contingency which never happened before, and which in its character is such as not to naturally occur to prudent men. (1887, Hubbell v. Yonkers, 104 JSf. Y. 434 ; 5 N: Y. St. Bep. 730.) And commissioners are not under any duty to extend a wing (or fence) across the untravelled part of a road near an embankment. (1889, Sam V. Troi/ and Sand Lake Turnpike, 25 iV". Y. St. Bep. 81.) A commissioner is not compelled to erect a barrier to pre- vent runaway teams from falling into an excavation made in erecting a bridge. (1888, Stacy v. Town of Phelps, 47 Hun, 14 K r. St. Bep. 177.) See however the opinibn of Judge Haeken in Maxim v. Town of Champion, 60 Hun, 88, in which the question of guards 70 The Law of Highways. or barriers is fully treated and a very thorougli comparison of the different cases drawn and the facts in a large number of cases stated in full. Lack of funds. — The duty to make repairs does not attach until funds are provided, or the authority to obtain the'm given. Thus, in an action brought against the commissioners of a town for damages sustained by reason of the breaking down of a bridge in such town. It appeared that one of the defend- ants had been notified of the unsafe condition of the bridge a year or so previous to the accident ; and that prior to and at the time of the accident the commissioners had in their hands a sufficient amount of funds applicable to the reparation of bridges, to have repaired or rebuilt the bridge in question. But that there were several other bridges in the same town needing repairs or rebuilding, and the funds in the defendant's hands were insufficient to repair or rebuild all the bridges Before the accident in question the defendants had procured materials for the construction of other bridges, the construction of which would have required more funds than the defendants had for such purpose. The court held that the commissioners had a discretion as to which of the bridges in the town they would repair, and that the action could not be sustained. (^Grarlinghouse v. Jacobs, as explained in Hover v. Barkhoof, 44 N. Y. 113, Lament v. Haight, 44 How. Pr. 1.) Proof that the commissioners had in their hands money un- expended sufficient to pay for certain repairs which were not made is all that is necessary to prove their possession of funds. It is not necessary to show that they had sufficient to make all desirable improvements. (^Malloy v. Town of Pelham, 4 N. Y. St. Bep. 828.) Lack of funds at the command of the commissioners is a matter of defense, and the burden of showing it is on the de- fendant. (Gretty v. Town of Hamlin, 11 N. T. St. Bep. 96.) Commissioners must not only show lack of funds, but must also show that they had sought through the proper channels to procure the said funds. ( Warren v. Clement, 24 Hun, 472.) Liability for not repairing. — The question as to whether commissioners of highways are liable to an action at suit of an individual who has sustained damages by reason of a clear COMMISSIONEES, ThbIR PoWEES AND DUTIES. 71 neglect or omission on their part to cause the necessary re- pairs, is settled in Hover v. Barkhoof, supra ; where Leonard, Comm'r, holds that commissioners of highways are liable to a private action for injuries caused by their neglect or omission to keep the highways in repair, if they have sufficient funds in hand, or are clothed with the power to obtain the means for repairing. (See People ex rel. Loomis v. Town Auditors Little Valley, lb N. Y. 316 ; Lament v. Haight, 44 How. Pr. 1.) Under the Revised Statutes and the statutes of 1853 (provided the defendants had the' requisite funds, or could do it upon the credit of the town), it was their absolute and imperative duty to repair. (Opinion of Earl, J., in same case.) Lack of notice of existence of defects does not relieve (jommissioners from liability to one who has been injured by reason of their failure to discover and repair the same. CBostwick v. Barlow, 14 Hun, 177.) Previous to 1881, a judgment against a commissioner of highways for damages through reglect to repair was not a town charge, and a mandamus could not be granted to compel town auditors to audit it. (1878, People ex rel. Loomis v. Board Town Auditors Little Valley, 75 N. Y. 316.) If an individual can in any case sustain an action against commissioners for damages sustained by a road negligently and wrongfully left out of repair by them, it can only be when the damages sustained are special and peculiar to the plaintiff; but it cannot be for such damages as are incident to all who travel on the road. (^Oristman v. Paul, 16 How. 17.) But a private action would probably lie for an affirmative act by which some injury is done, as for negligently and un- skilfully constructing a bridge, or for the negligent execution of a duty resulting in the creation of a public nuisance. (See 16 N. Y. 161.) An action will lie against one of the commissioners of highways individually, for a failure to keep the highways and bridges in proper repair, even though all of the commissioners were guilty of negligence in failing to make the requisite repairs. (1883, Babcock v. G-ifford, 29 Hun, 186.) Commissioner cannot escape liability by pleading that he has given overseer directions to make repairs. (Farman v. Town of Ellington, 46 Hun, 41.) And where a slight repair, requiring the use of a little gravel applied with shovel and 72 The Law op Highways. hoe, was all that was required to repair the defect, and pre- vent the injury, the court refused to allow an amendment to the answer pleading lack of funds. (1889, Cooh v. Village of Waterford, 25 JST. Y. St. Rep. 90.) The commissioners, however, may be indicted for neglect- ing to make the proper reparation. (Per Wright, J. in G-arlinghouse v. Jacobs, supra, and per Bbaedslby, J., in Wilson V. Mayor of New York, 1 Denio, 599; see also 11 Wend. 539.) But an indictment against them will not lie unless they have funds; and an indictment against them is defective unless it avers that the defendants have funds or other means to defray the expenses of the repairs, or the power to obtain them. (^People v. Adsit, 2 Hill, 619 ; 4 Hill, 630 ; Hover v. Barkhoof, 44 N. Y. 113 ; but see Getty v. Town of Hamlin, 11 N. Y. St. Rep. 96.) Commissioner is not liable for not repairing railroad bridge. (^Boe V. Elmendorf, 52 How. Pr. 282.) Nor is he liable for not constructing a bridge strong enough to support vehicles such as a traction engine weighing 8500 pounds, (fJlapp v. Town of Ellington, 51 Hun, 58,) And chap. 526 of the Laws of 1887, postea expressly exempts towns for liability as to damage resulting from the breaking of a bridge, over which a traction engine of over four tons is being drawn. See further on this point in chap. VII, subd. 9, postea. Liability of towns. — Neither at common law nor by the statute were towns under any legal liability to respond in damages even to persons injured by defects in the highways until after the enactment of chapter 700 of the Laws of 1881. (1887, MonTc v. The Town of New Utrecht, 6 N. Y. State Rep. 484 ; 104 N Y. 552.) No recovery could be had against it for injuries sustained by reason of neglect on the part of its officers to keep the highway or bridges in a safe and secure condition. (^People ex rel. Loomis v. Auditors Little Valley, 75 N. Y. 316 ; People ex rel. Van Keuren v. Town Auditors Esopus, 74 N. Y. 310), and a judgment having been rendered against an overseer acting under direction of a commissioner, he was not entitled to a mandamus compelling the audit and allow- ance of the claim by the town. (^People ex rel. Van Keuren, V. Town Auditors, 10 Hun, 551 ; S. C, 74 N. Y. 310 ; People ex rel. Loomis v. Bd. Town Auditors, 75 N. Y. 316.) Commissioners, Theik Powers and Duties. 73 So, at common law, it was held, that if a traveller receive «,ny special damage by the badness of the roads, and a corpo- ration or private person is bound to repair it, he may have an action on the case for the damage he receives ; but if it be- longs to a township, etc., not corporate, he can have no action for special damage, but they are liable to be indicted. ( Vaugh. 340; Cro. Eliz. m^.') Chapter 700 of the laws of 1881 is as follows : Section 1. The several towns in this state shall be liable to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead •of such commissioner or commissioners of highways. § 2. Upon the recovery of any judgment for any damage 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. § 3. 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 de- fective highway or bridge, may bring an action against such •delinquent commissioner or commissioners of highways, and xecover the amount of such judgment. § 4. The board of town auditors of any town in the 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 re- covered 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 commissioners against whom the same was rendered, have acted in good faith, and the defect causing such damage, shall not have been caused by the wilful misconduct or neglect of the commissioner or commissioners, against whom such judgment «hall have been recovered. 74 The Law of Highways. § 5. Nothing in this act shall be construed to relieve any commissioner of highways in this state from liability to indict- ment or criminal prosecution in cases where, by law, they are now liable thereto. § 6. The provisions of this act shall not apply to the county of Dutchess. (Repealed Laws 1883, ch. 254.) This act took effect Aug. 13, 1881, and did not render the towns liable for damages theretofore occasioned, (1883, Frasier V. Town of Tompkins, 30 Hun, 168.) Section four was amended by chap. 146, Laws 1889, so as to read as follows, § 4. The board of town auditors of any town in this State shall have the 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 claim for damages to person or property already sustained, and any claim for dam- ages which may be hereafter sustained by any person or cor- poration by reason of defective highways or bridges in suclt town ; if in their judgment it be for the interest of the town so to do ; the amount so audited in settlement of any one claim not to exceed the sum of five hundred dollars, and any judg- ment already recovered and not paid, and any judgment which may be hereafter recovered against any commissioner or com- missioners of highways of such town for such damages to per- sons or property arising from defective roads or bridges in such town whenever such board of town auditors shall b& satisfied that the commissioner or commissioners against whom the same was rendered have acted in good faith, and the de- fect causing such damage shall not have been caused by the willful misconduct or neglect of the commissioner or commis- sioners against whom such judgment shall have been recovered and the board of town auditors may be convened in special session for such purpose by the supervisor, or in his absence by the town clerk, upon the written request of the claimant or a. commissioner of highways. This law took effect April 15, 1889. This law is constitutional, (^Bidwell v. Town of Murray, 40 Hun. 190.) Towns in their corporate capacity have no control over highways, and are under no legal obligation to keep highways and bridges within their limits in repair, and the provisions of Commissioners, Their Powers and Duties. 75 Laws 1881, ch. 700 do not change the relations of the town to the highways in the towns, or to the commissioners, so far as relates to the control and supervision of the highways and the duty to keep them in repair. Neither does it create a primary liability on the part of the towns for the neglect of duty by the highway commissioners. (1887, Rhines v. Town of Roy- alton, 11 State Rep. 231, People ex rel Everett v. Board of Supervisors, 93 N. Y. 397.) By the act of 1881, however it was provided that towns should thereafter be liable for such injui'ies in cases where the " commissioner or commissioners of highways of said towns are now liable therefor." It is seen that the liability of the towns is thus made co- extensive with that of the commissioners of highways in towns, which was only a limited responsibility arising out of their negligence to the extent only that they were possessed of, or had power to obtain means to make necessaiy repairs. QMonk V. Town of New Utreeht, supra ; Bines v. City of Lockport, 60 N. Y. 238 ; Hover v. Barkhoof 44 Id. 113.) In order to sustain an action against a town under chapter 700 of laws 1881, facts must be alleged sufficient to have con- stituted a cause of action against the commissioners of high- ways prior to the enactment of the act. (1888, Acker v. Town of Newcastle, 48 Hun, 312.) As a general rule no claim against a town is obligatory upon or enforceable against it until it has been audited and allowed by the board of town auditors. Its jurisdiction over claims against the town is not only original, but it is conclusive until brought under review in another court in the manner pre- scribed by law. (1885, Osterhoudt v. Rigney, 98 N. Y. 222 1889, People ex rel. Myers v. Barnes, 114 N. Y. 317.) A town is not liable for an error in judgment on the part of its highway commissioners, in a case where they were unable from want of means to repair all of the defective places in the highways of the towns. (1887, Monk v. The Town of New Utrecht, supra.^ By chapter 526 of the Laws of 1887, no town is liable for any damage resulting to person or property by reason of the breaking of any bridge by a traction engine in crossing the same, of the weight of four tons or over, while such person is engaged in transporting or driving such engine along or upon any of the highways of this State. 16 The Law of Highways. Declarations of one of the commissioners of highways made the summer before the accident, to the effect that he had got to go and repair a bridge is admissible in an action against a town for injuries sustained while crossing it, as be'aring upon the question of his knowledge of the condition of the bridge. (Bidwell V. Town of Murray, 40 Hun, 190. 1888, Clapp v. Town ofMlengton, 20 N. Y. St. Rep. 412.) A town not notified to defend is not liable for the costs of a suit against its commissioner of highways. (JPeople ex rel. Van Keuren v. Town Auditors of Usopus, 10 JSun. 551, affd. 74 jv. r. 310.) The obligations of 2 M. S. (7th ed.) 1212, making it the duty of the commissioners to direct repairs, etc., is co-ordinate only wittf the means furnished to the commissioners to discharge them, and do not authorize expressly or by implication the incurring of any debt or obligation on the part of the town in carrying them into effect. (1883, Peo. ex rel Everett t. Suprs of Ulster, 93 N. Y. 397.) It is no defense for a town to allege, in action for injury caused by an improperly constructed highway, that the high- way has been in such condition for thirty years past. (1889, Bryant v. Town of Randolph, 24 St. Rep. 825.) A highway whereon a heavy scraper over four feet wide by about seven feet long, had been left standing for the night in the roadway, unguarded and unhitched, is a "defective highway " within the meaning of chap. 700, Laws 1881. (1889, Whitney v. Town of Ticonderoga, 24 St. Rep. 950.) Liabilities of Cities and Villages. — But the rule is different with regard to incorporated cities and villages ; and where trustees of an incorporated village are, by its charter, made commissioners of highways therein, if a road within the cor- porate limits is out of repair, and the trustees neglect to repair it, an absolute obligation and liability rests on them in regard thereto ; and for an injury sustained by an in- dividual in consequence of their negligence, the corpo- ration is liable. (Ryatt v. Trustees of Rondout, 44 Barh. 385 ; Wendell v. Mayor of Troy, 39 id. 329 ; Clark v. City of Lockport, 49 id. 580 ; Hines v. The City of Lockport, 60 N. Y. 236 ; Sewell v. City of Cohoes, 75 id. 45 ; Wilson V. City of Watertown, 3 Hun, 508 ; Barnes v. District of Columbia, Commissioners, Their Powers and Duties. 77 91 U. S. 540 ; Ehrgott v. Mayor of JST. Y. 96 N. Y. 264.) They are bound to keep the streets and highways in a proper state of repair, and free from all obstructions or defects in the road-bed ■which vigilance and care can detect and remove. Thus, where they constructed a bridge in so negligent and un- skilful a manner, that by means thereof, the plaintiff's building was carried away during a freshet, the corporation was held liable. (^Conrad v. Trustees of Ithaca, 16 N. Y. 158.) So, where the trustees of a village neglected to fill up the ditch which a wrong-doer had excavated in the street, it was held to be a corporate duty to keep the street in a safe condition. (^Hickok V. Trustees of Plattshurgh, 16 K Y. 161.) So, where such trustees undertook to construct a platform to con- nect a sidewalk with a bridge, and, while the work was in progress, carelessly left an uncovered space therein during the night without placing any guard or signal to warn passengers of such opening, the corporation was held liable to one who had fallen through such opening and sustained injuries thereby. (Weet V. Trustees of Brockport, 16 N. Y. 16l.) It was held in Wisconsin (June, 1880), that the city was not liable for an injury to one passing over the sidewalk of an approach to a bridge not owned by it in its limits. {Bishop v. Citi/ of Oen- tralia.) So, where a corporation caused a culvert to be con- structed to carry off the waters of a natural stream, and a freshet having occurred, the culvert, in consequence of Its want of capacity and the unskilfulness of its construction, failed to discharge the waters, so that they were set back upon the fac- tory of the plaintiffs, and injured their property situated there- in ; it was held, that the corporation was Kable for damages. (Rochester White Lead Co. v. Rochester, 3 N. Y. 463.) So, where a corporation had authorized a private individual to con- struc't a drain across the street of a city for his own private benefit, the corporation was held liable for damages sustained from the negligent and improper manner in which the work was done. (Wendell v. Mayor of Troy, 39 Barb. 329.) To render a city liable for injuries received through a gas company negligently excavating a ditch in the street, it is necessary that the city had notice actual or constructive thereof. The fact that an alderman of the city saw the excavations being made, is not per se evidence that the city was guilty of negligence. (^MoDermott v. City of Kingston, 19 Eun, 198.) No actual 78 The Law of Highways. notice to the city of a defect is necessary, when ample time has elapsed after a defect has become notorious. (Bequa v. (7% of Rochester, 45 N. Y. 129 ; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459 and cases cited.) The mere neglect of the city to remove ice from a sidewalk before 1 P. M., was not such negligence as to render it Uable for injuries received by the reason thereof. (^Blahely v. City of Troy, 18 Hun, 167 ; id. 340; but see Theall v. City of Yonkers, contra; JST. Y. Weekly Digest, vol. 10, No. 10, p. 218.) The city is entitled to a reasonable time within which to perform its duty of keeping sidewalks clear of ice, and may wait a reasonable time for the citizen to attend to it. Taylor V. City of Yonkers, 105 K Y. 202.) If an awning exists by authority of the city, it is liable for any injury arising from a defect, although there be no exter- nal indication of imperfection. (Hume v. Mayor, 74 N. Y. 264.) Where the officers of a corporation have taken charge of a piece of land, regulating and paving it, the same as other streets, although it has not been laid out legally as a street, the corporation is chargeable the same as if it had been properly laid out, and is estopped from setting up that it is not a legal highway. (^Sewell v. City of Gohoes, 75 iV. Y. 45.) Where a municipal corporation in constructing a gutter and curb inter- feres with a natural stream, flooding the land of a city, it is liable. (Byrnes v. City Cohoes, 67 N. Y. 204.) The trustees or corporation may, under certain circum- stances, be temporarily exempt from liability where repairs or other work and labor in the street are performed by contrac- tors for the work, and the injury complained of occurs in the progress of the work, by carelessness or negligence on the part of the servants of these contractors. Thus, where a corpora- tion had contracted with an individual to furnish materials and do the work in regulating and levelling a certain street, and the injury complained of had been occasioned by the negligent blasting of rocks, in the execution of the work under that con- tract, the city corporation was held not liable. (Pack v. Mayor of New York, 8 N. Y. 222; Kelly v. Mayor of New York, 11 N. Y. 432.) But where the injury is the result of the work itself, how- ever skillfully performed, the corporation, and not the con- tractor, is liable. Thus, where a sewer was dug in a street by Commissioners, Their Powers and Duties. 79 a contractor, which was left open and unguarded at night, with no light or other signal to warn passers of the danger, and there was no stipulation in the contract between the cor- poration and the contractor, that the corporation should cause proper lights to be placed at the excavation, to prevent acci- dents, the corporation was held liable. (^Storrs v. Oity of Utica, 17 N. Y. 104.) It was thought, in this case, that the city- would have been liable even if the contractor had stipulated to keep the proper lights. But in Blahe v. Ferris (5 N. Y. 48), where the defendants — private individuals — had license from the city to construct a sewer across a street for their own benefit, and let the work to third parties, binding them as they themselves were bound to the city, to cause proper lights to be placed at the excavation to prevent accident, it was held that the contractor, whose servants were guilty of the neglect, was liable, and that the defendants were not. See, however, the Qity of Buffalo v. Holloway (7 N. N. 493, and also Flynn V. N. Y. Mev. R. B. Co., 49 N. Y. Super. Ot. Bep. 60.) And a city is liable for damages to an owner of property abutting on a street, caused by the turning of a water course upon his property by excavations made by a contractor to grade the street, where such contractor abandons the work and the city omits for years to take charge of the work and complete it. (1883, Vogel v. Mayor of N. Y., 92 N. Y. 10.) The fact that a party deposits building materials in the street and keeps them there during the erection of the building, with the full knowledge of the trustees and superintendent of the village, is sufficient to imply a consent on the part of the village au- thority to such use of the street. ( Village of Seneca Falls v. Zalinski, 8 Hun, 671.) Where a city has been compelled to pay a judgment to one injured by reason of a pile of sand in the street, the corporation may maintain an action against the owner of the building, who caused the sand to be left there. (Oity of Bochester V. Montgomery, 9 Sun, SM; Village of Sen- eca Falls v. Zalinski, 8 Sun, 571.) In absence of statute or contract a village cannot recover over against owner for neglect to repair sidewalk. (Village of Fulton v. Tucker, 3 Sun, 529.) Change of Grade.— Whenever the grade of any street, high- way or bridge in any incorporated village in this state shall 80 The Law of Highways. be changed or altered so as to interfere in any manner witk any building or buildings situate thereon, 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 commissioners to ascertain and determine the amount of damage sustained thereby ; due notice of such application shall be given to the person or persons hav- ing competent authority to make such change or alteration. (Laws 1883, ch. 113.) § 2. All the provisions of the general railroad act relative to the appointment of commissioners, their powers and duties,, shall be applicable to the appointment of, and the powers and duties of commissioners appointed in pursuance of the provi- sions hereof ; but it shall be the duty of said commissioners in assessing and ascertaining the damages sustained by prop- erty owners adjoining such street or highway to take into con- sideration and to ascertain the value of any benefits or advan- tages to the property in consequence of the alteration of the grade ; and in all cases the value of such benefits or improve- ments shall be offset against and deducted from the damages ; and no person or property owner shall be entitled to recover any damages who shall in writing request or assent that the said grade of any such street shall be changed or altered. (7(^., as amended ch. 281, Laws 1884.) § 3. All damages ascertained and determined under the provisions of this act, together with the costs of such proceed- ings shall be a charge, when allowable, upon the village, town or other municipality chargeable with the maintenance of the street, highway or bridge so altered or changed ; but no prop- ertj' owner or person instituting proceedings to recover dam- ages under the provisions of this act shall be entitled to costs, unless the claim for such damages shall have first been pre- sented 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 shall have made an offer to settle or compromise 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 Commissioners, Thbie Poweks and Duties. 81 than offered, he shall be liable for the costs of such proceed- ings. (Id.') § 4. This act shall not apply to or affect any proceedings already taken and now pending under the provisions of the act hereby amended. (As amended May 12, 1884.) Repair of bridges. — All public bridges zxe prima fade repair- able 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 public, the one who erected it must keep it in repair ; as where a man digs a ditch or canal across a highway and makes a bridge over it. In such case, although the pub- lic would have to use the bridge in travelHng 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. (JDygert v. Sohenck, 23 Wend. 446.) But if the bridge be built over a natural stream, and the pub- lic cross and recross thereon, the town should keep it in re- pair, although it was built for the private benefit of the builder. (Id.) A company lawfully cutting a canal across a highway, for its own purpose, is bound to build and keep in repair a bridge across it, and so maintain the highway. (Heacock v. Sherman, 14 Wend. 58.) (See further on this subject ante, page 11.) Where the permission is granted, by the commis- sioners of highways, to a railroad company, to construct and maintain a bridge over a crossing, the acceptance thereof by the company and the construction of a bridge thereunder, im- poses upon it the duty of maintaining the same in good re- pair. (Hayes v. N. Y. O. andH. B. B. B. Co., 9 Hun, 63.) Uxpenditure of State Moneys. — In any case where, by any act or acts of the legislature 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 commissioner or commissioners appointed therefor, and where by reason of the expiration of the official life of the commissioner 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- 6 82 The Law of Highways. 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 or 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 appointing such commissioner or commissioners in anticipation of the passage of this act are hereby ratified and confirmed. (Laws 1879, ch. 275.) 5. To Divide Town into Road Districts and Assign Inhabitants thereto. It is further the duty of highway 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 annually, if they shall think it necessary, and in all cases to be made at least ten days be- fore the annual town meeting. In making this division the com- missioners should meet and confer ; but the order of division will be valid if signed by two of them. It should, however, show that the third met and deliberated with the other two on the subject, or was duly notified to attend for that pur- pose. (1 R. S. 525, § 125 ; see Beekman's Petition, 19 Ahh. 244 ; People, ex rel. Bann et al. v. Williams, 36 J7. Y. 441.) Where a road district was formed from parts of two other districts, and was afterwards ordered to be discontinued by the commissioners of highways, as it was held that order was valid, though it did not expressly provide for embracing the territory to which it related within any other road district ; the effect being to restore the two districts to their original limits. (^People v. Sly, 4 Hill, 593.) Where commissioners of highways of two towns lay out a road upon the line of the towns, they must divide it into two or more road districts, and allot an equal number of the districts to each town, and each district thenceforth wholly belongs to the town to which it is allotted for the purpose of opening and improving the road and keeping it in repair. (1 R. /S'. 516, §§ 73, 74, 75; Bradley v. Blair, 17 Barb. 480.) This provision of the Revised Statutes is not repealed by chap. 311, of Laws of 1870. (Jones v. City Commissioners, Their Powers and Duties. 83 of Utica, 16 Hun, 441.) An agreement between the officers of a city and those of a town dividing the street between the places into road districts, filed in the office of the clerk of the city, is valid. (Jones v. City of Utica, supra.) So, all highways here- tofore laid out upon the line between any two towns shall be divided, allotted, recorded and kept in repair in the manner above described. (i2. S. 516, § 76.) For the manner of pro- ceeding in so dividing highways on the line, see Laws of 1870, ch. 311, postea, Chap. VIII, subdivision 8. Separate road districts. — Sec. 1-. Whenever a majority of the owners of real estate lying along the line of any highway which shall have been occupied by any plank-road or turnpike com- pany, whose charter has expired, and no proceedings have been taken for the renewal thereof for one year, for a distance of not less than one-half mile continuously, and not included within the limits of any incorporated city or village, shall apply in writing to the county court of the county in which such road shall be situated, and shall present to such court the assent in writing of the supervisor and commissioners of highways of the town or towns in which such road is situated, the said court at any session thereof shall constitute that portion of such road described in such application a separate road district to be ex- empt from the jurisdiction of the commissioners of highways of the town or towns in which such district shall be situated. (Laws 1876, ch. 373, as amended 1881, ch. 464, as amended 1882, ch. 289.) Commissioners to be appointed. — Whenever a road district shall be constituted, as provided in the preceding section, the said court shall appoint, under its seal, three commissioners, whose duties shall be as herein prescribed, and in addition thereto they shall possess the same powers in regard to the said road district as are possessed by commissioners of high- waj's of towns. Before entering upon the duties of their office the commissioners shall take and file in the office of the clerk of the town, in which they shall reside, the Constitutional oath of office, and shall execute to the supervisor of the town a bond for such amount as the supervisor shall prescribe with sufficient sureties, to be approved by him and conditioned for the faith- ful performance of their duties. (Laws 1876, ch. 373, § 2, as am'd ch. 289, Laws 1882.) 84 The Law of Highways. Sec. 3. The commissioners, immediately, upon being so quali- fied, shall call a meeting of the owners of real estate fronting on such road, of which meeting, at least six days' personal notice shall be given to each resident owner, if such owner can be found within said district, with due diligence, and if not, then such notice may be served by leaving the same at his place of residence, and a similar notice in writing mailed to each non- resident owner at his usual post-ofSce address ; at which meet- ing when held, it shall be lawful by the vote of the majority of the real estate owners personally attending, to direct the grading, macadamizing or otherwise improving of such road, and the raising, by tax on the property fronting on such road, the sums necessary to be expended for the same. (As amended Laws 1882, ch. 289.) Sec. 4. The taxes authorized to be raised by section two of this act shall be assessed by the commissioners on the prop- erty liable for the same in the following manner : there shall be assessed against each owner such a proportion of the entire expense of improving said road as the number of feet frontage of such owner on said road bears to the entire number of feet frontage on said road. Where other roads or streets abut on such road, the assessment shall be made against the town in which such roads or streets are situated, for such proportion of the total expense of such improvement as the number of feet width of such roads or streets bears to the whole number of such improved road. The tax list, when completed, shall be verified by the oath of the commissioners and be filed in the office of the clerk of the town, and a copy delivered to the supervisor, who shall present the same to the board of super- visors of the county at their next succeeding annual session, and the said board shall cause such tax to be levied and col- lected in the same manner as other taxes are levied and col- lected by their authority. The tax for such road district shall be stated in the assessment roll of the town in a separate item from other taxes. The avails of such tax, when collected, shall be paid to said commissioners, and shall by them be applied to the purposes only for which such tax was raised. This section shall apply to all districts heretofore constituted in which the assessment have not been made and the money collected there- on. (Id., as amended Laws 1882, ch. 289.) Commissioners, Their Powers and Duties. 85 Map to he filed. — The commissioners above named shall cause to be made and filed in the office of the town clerk, in which such road district shall be situated, a map describing the lands situated therein liable to taxation for the purposes of this act. (Laws 1776, chap. 373, § 5.) Term of office. — The term of office of such commissioners shall be one year from the time they shall be qualified, as herein provided; and one week before the expiration of their term of office, on notice published in the nearest news- paper, the persons liable to be taxed for the purposes herein provided, in any such district, shall assemble at some place within the district, to be named in the notice, and elect by the votes of a majority of their number present, three com- missioners to take tlie place of the commissioners first ap- pointed. The commissioners thus chosen shall perform the same duties and be subject to the same liabilities as the com- missioners first appointed, and shall hold their office for one year and until their successors shall be duly elected and qualified as herein provided ; and elections for the choice of such commissioners shall thereafter be held annually in the same manner, one week before the expiration of term of the outgoing commissioners. At each annual meeting for the elec- tion of officers, the lawful voters thereat, shall, by the vote of a majority of their number, fix the sum to be raised during the year for the maintenance and improvement of the road in their district. (^Id. § 6.) Annual statement. — At each annual meeting, such commis- sioners shall present thereat a detailed statement of their receipts and expenditures for the past year, which statement shall, within six days after such presentation, be filed in the office of the town clerk. (^Id. § 7.) Loam. — The commissioners shall have authority to borrow, on their official bond, any sum of money not exceeding in any year the amount of the tax authorized to be raised therein, and in anticipation of such tax, which they shall need for the pur- poses contemplated by this act. (Id. § 8.) The commissioners shall receive no compensation for their services, but may appoint such foreman as they shall deem 86 The Law op Highways. necessary to superintend the work to be done in the district, and pay them a reasonable compensation for their services. Bnt the commissioners may be reimbursed, out of the funds of the district for the actual expenses which they may neces- sarily incur in the discharge of their duties, the accounts for which expenses they shall respectively verify by their oaths. Qd. § 9.) Sections 10 and 11 of chap. 373, of the Laws of 1876, ex- empting from toll any person who was taxed to support road, were repealed by chap. 464, of the Laws of 1881. Roads through unimproved lands. — The board of supervisors of any county in this State containing more than three hun- dred 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 con- sist of contiguous 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 commissioner or commissioners to lay out and construct highwa5'S in any such district and to prescribe their powers and duties, and may also direct the maimer in which highway taxes shall be assessed, levied and collected upon the lands embraced in any such district, and likewise the manner of expenditure thereof. The said board of supervisors may also authorize commissioners appointed under this act to bor- row 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 loEln, 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. (Laws of 1880, chap. 175.) Commissioners, Their Powers and Duties. 87 Damages. — The damages upon such laying out shall be assessed in the same manner as if it were laid out through improved lands (Laws 1857, oh. 491 amended Laws 1858, ch. 51.) Consolidation of road districts. — By chap. 258, of the Laws of 1876, the supervisors have the power to authorize the con- solidation in any town of two or more of the established road districts therein, and the division of any established road dis- trict into two or more ; and to constitute the territory of any incorporated village into a separate road district, and to pro- vide for the election or appointment of overseers of highways in such districts, and prescribe the manner in which the high- way labor assessed and highway taxes collected in such con- solidated, or separate districts, shall be expended and account- ed for, except that whenever an incorporated village shall con- stitute a separate and independent road district, the commis- sioner or superintendents of streets, or officers of said village, by whatsoever 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. To assign work to inhabitants with regard to proximity. The sixth subdivision of see 1. Act 1, Tit. 1, ch. XVI. 1 B. S., pro- vidse for the assignment to each of the road districts of such of the inhabitants liable to work on the highways as they may deem proper, having reference to proximity of residence as much as may be. It also provides that where the commissioners shall have neglected, for one year after a road has been laid out and title thereto acquired, to open and work the same, that any number of inhabitants of the town iu or through which such road passes, may give ten days' notice to the commis- sioners of the town that they desire to apply their labor to the working of said road, and that the commissioners shall thereupon assign the said inhabitants to such road, and direct their labor to be performed thereon under the direction of one of their number ; and that, if the labor assessed against such inhabitants for the current year shall not be sufficient to put the road in proper repair, they may anticipate their labor for three years, but that from no one of the districts of the town shall more than one-half of its annual labor be so taken and applied. (1 B. S. 502.) 88 The Law op Highways. Whenever any plank road or turnpike road shall be built in pursuance of the statute, upon the site of an old highway, it shall be the duty of the commissioners of the highways of the town where such road shall be made, to designate some district or districts, within their town, on which the highway labor of the inhabitants residing along the line of said plank or turnpike road shall be performed. Laws 1849, ch. 260, § 11. (See Form No. 10.) Warning. — It is made the duty of the commissioners by subdivision seven of the above section, to require the over- seers 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. It is the duty of overseers to warn all such persons, when so required by the commissioners, or any one of them, and for every refusal or neglect so to do, such overseers shall for- feit the sum of ten dollars, to be sued for and collected by the commissioners. (1 R. S. 504, § 16.) To act as Inspectors of plank roads. — By chapter 779 of the Laws of 1872, the highway commissioners were to inspect the plank roads on the complaint of three freeholders, but by the Laws of 1873, chapter 440, as amended by Laws of 1877, chapter 164, it shall be the duty of said officers 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 con- veniently 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 cause such road to be put in good condition within forty-eight hours from the service of such notice, or in default thereof, to order the toll-gate or gates upon said road to be immediately thrown open, and such gate or gates shall not be closed until sucli road shall be fully repaired or be in proper condition, to the satisfaction of said officers, or a majoritj'' thereof. The notice to said toll-gatherer shall point out the part of such road, to which the said officers shall object. Commissioners, Their Powers and Duties. 89 Fees of inspectors. — The fees of each of said officers, for the ■services in this section mentioned, shall be two dollars for each day actually employed in such service, to be paid by the cor- poration 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, audited and paid in the same manner as the other fees and expenses of commis- sioners of highways. Any party feeling himself aggrieved by the order of said plankroad 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 appeal to be brought within twenty days after the service of said order. The notice of appeal shall be served upon one of said inspec- tors 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 hearing 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, said toll-gate or gates shall remain open. This act does not apply to the counties of Courtland (Laws 1873, chap. 699), Clinton, Chenango, Seneca, Queens, Orange, Essex, Cayuga (Laws 1874, chap. 224), Warren (Laws 1877, ■chap. 440), Ulster and Rensselaer (Laws 1876, chap. 416, as -amended by Laws of 1878, chap. 176, and 1880, chap. 137. See also ch. 530, Laws 1875.) Ch. 102, Laws 1876. The Commissioners must also see that noxious weeds are ■destroyed under Laws 1878, as amended. See chap. XII sub. '7, postea. 7 To Lay Oft and Discontinxje Roads. The commissioners of highways 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 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 ; see forms Nos. 44-54.) One who has a title to real estate is a "freeholder," irrespec- jfcive of the amount or value of his interest therein. (^People 90 The Law op Highways. ex rel. Shaw v. Scott, 8 Hun, 566.) A commissioner of high- ways is not prohibited from acting in the laying out of a high- way, by the fact that he is an owner of lands through which the projected highway runs. (^Foot v. Stiles, 57 N. Y. 399 ; Southern Boulevard, 3 Ahh. Pr. [N. S.J 447. People ex rel. Tompkins v. Landreth, 1 Hun, 544.) The restrictions above alluded to are, that no road shall 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 has been cultivated for four years or more before the leying out of such road. Nor shall any such road be laid out through any buildings or fixtures or erections for the purposes of trade or manufactures, or any yards or inclosures necessary to the use and enjoyment thereof, with- out the consent of the owner, unless the proceedings required by the statute (see Chap. VIII. post') are taken, (1 R. S. 514. § 57, as am'd 1873, chap. 773.) And, further, that no highway- 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 twelve reputable free- holders of the town, in the manner hereinafter provided. (Id. § 58.)* Nor through the lands of an incorporated soldier's monument association, without the consent of the trustees thereof, except by special permission of the Legislature. (Laws- 1866, chap. 278, § 6.) Consent — A parol consent to lay out a road through any premises above described, is valid, provided it be acted upon, and the road laid out before any revocation, but such consent is revocable, and is revoked by a sale and conveyance of the land in good faith, prior to the laying out of the road. (Peo- ple ex rel. Bodine v. Goodwin, 5 iV". Y. 568 ; People ex rel Martina. Albright, 23 How. Pr. 306.) Although such consent may be revoked, it must be done before the road is laid out. If the commissioners act immediately on the faith of the virtual consent by laying out the road, the owner will be estopped from denying the legality of the act. (Marble v. Whitney, 28 N. Y. 297.) Prudence would dictate that the con- sent of the owner should be obtained in writing. * Except where the land Is assessed at less than five dollars. See Chap. VIII, postea. Subd 6. "■ Certain towns exempted." Commissioners, Their Powers and Duties. 91 Who may apply. — 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 such town to alter, discontinue or to lay out any road through the same. (Laws of 1836, chap. 122.) The word " same," in the above act, refers to the town, and not to the land of a non-resident. {^People ex rel. Wait v. Eggleston, 13 Sow. Pr. 128.) Without application. — It is not essential to the validity of the proceedings of commissioners in laying out a road, that there should be an application therefor in writing; nor in fact any application, since it is decided that they may lay out a highway upon their own motion, and without any application therefor. People ex rel. Aspinwall v. Supervisors of Richmond, 20 N. Y. 252 ; Marble v. Whitney, 28 N. Y. 805.) Nor is it any objection that the. proceedings are taken on the appli- cation of one not liable to assessment for highway labor. {Id.') Through buildings, fixtures, etc. — They have no power to lay out a road through a court-yard contiguous to a dwelling, nor ground adjoining a factory, and actually used and occupied by its machinery and appurtenances. {Clark v. Phelps, 4 Cow. 190; Lansing v. Caswell, 4 Paige, 519; Ux parte Clapper, 3 Hill, 458.) But grounds adjacent to an establishment, used for trade or manufacture, and occupied for its purposes, but not defined by any visible marks, or by definite occupation within some certain lines, are not within the provisions of the 57th section above cited. {People ex rel. Williams v. King- man, 24 iV". Y. 559.) Nor is a ditch or canal by which water is conducted to a mill, a building, fixture or erection, within the meaning of said section. {Id.} So, the provision of the statute, that no road should be laid out through an orchard is not violated by laying out a road through an inclosed field in which there are fruit trees, if not so laid out as to deprive the owner in whole or in part of the beneficial enjoyment of the trees. {People ex rel. Seward v. Judges of Dutchess, 28 Wend. 360.) If a road be laid through an orchard of four years' growth, without the consent of the owner, entering to open and work it is a trespass. {Harrington v. People, 6 Barb. 60T.) 92 The Law of Highways. The owner cannot defeat the laying out of a road, by erect- ing or moving a building upon the proposed line, after an application has been made: in such case the commissioners may proceed and lay the road through it. (^Oarris v. Commis- sioners of Waterloo, 2 lEll, 443.) When two may act. — Commissioners of highways, in laying out a road, must all be present and deliberate on the subject, or else must have been duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon, but a majority of them may decide. It must appear, how- ever, in the order filed by them that all the commissioners met and deliberated on the subject, or were duly notified to attend a meeting of the commissioners for the purpose of de- liberating thereon. (1 R. S. 525, § 125 ; Bahcock v. Lamb, 1 Cow. 238.) An order laying out a highway through improved, inclosed or cultivated land, signed by only two of the commissioners, and not reciting that the third participated in the proceedings, or was notified to do so, is void. (People ex rel. Ottman v. Hynds, 30 N. Y. 470 ; Stewart v. Wallis, 30 Barl. 344.) The order must be sufficient on its face. Its defects cannot be helped out or supplied by parol. (Id. ; Fiteh v. Commissioners of Kirhland, 22 Wend. 132.) Where the third commissioner did not participate in the proceeding, the order must show that he was duly notified to attend /or the purpose of deliber- ating on the 'subject of laying out the road. A simple allegation that one of them had been duly notified to attend is insufficient. (JFitch V. Commissioners of Kirkland, supra.") One commissioner cannot authorize another to sign his name to orders, laying out a highway. (Todd v. Todd, 5 If. Y. Sup. Ct. Hep. (T. ^ (7.) 531.) But the commissioners having all met, and consulted and agreed upon the alterations, the power to make them may be deputed to and vested in one of their number. (Smith v. Helmer, 7 Barb. 416, 423 , see Boots v. Washburn, 79 K Y. 207, 212.) Where an order was made by two commissioners of high- ways laying out a road, in which it was recited that all the commissioners met and deliberated on the subject, and the referee found, as facts, that all three of the commissioners met and viewed the proposed route, and that subsequently » COMMISSIONEES, ThEIK PoWEES AND DUTIES. 93 two of them caused it to be surveyed and made the order, as of that date, laying out the road ; and that one of the commis- sioners was not present at the survey, 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 highway; the presumption being that all the commissioners 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 validity to the order laying out and establishing the highway. (^Marble v. Whitney, 28 N. Y. 297.) Act% may he impeached. — In laying out a highway the com- missioners exercise a special and limited jurisdiction, and al- though it may be presumed that their acts were legal until the contrary appear, their acts may be impeached. If they have no jurisdiction, as where they lay out a road through a yard or building, without the consent of the owner, their or- der is void, and is not helped by the affirmance of the judges on appeal. (^a; parte Clapper, 3 Hill, 458; People ex rel. Wait V. Eggleston, 13 Eow. Pr. 123 ; Miller v. Brown, 56 N. Y. 883.) But a void order is no bar to a new proceeding. (^People V. Eggleston, supra.') The application to lay out a new road, and to discontinue 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 ex rel. Dana v. Robertson, 17 How. Pr. 74.) Discontinuing road. — To authorize the commissioners to dis- continue an old road, it must appear to them on the oaths of twelve freeholders of the "same town, to hav& become unneces- sary. The statute, by " freeholders," means such as have the legal title to real estate— such as are freeholders without a pro- ceeding in court to make or declare them so. (See People ex rel. Ottman v. Hynds, 30 N. Y. 470.) If the jury proceed without the oath of twelve freeholders, their proceedings will be void. (Id.) For proceedings to be taken see Chap. IX., Sub. 2, vostea. 9-i The Law of Highways. 7. To Account to Town Auditoes. 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 chap- ter, 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. 3. The improvements which have been made on the roads and bridges in their town, during the year immediately pre- ceding 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 M. S. 502, § 3, as amended chap. 396, Laws 1884. See Form No. n.) By the act of 1863 it is provided that, "The town auditors in the several towns of this State, shall examine the accounts of the overseers of the poor and the commissioners of high- ways of such town, for all moneys received and disbursed by them, and shall meet for the purpose of examining the same, annually, in each town of this State, on the Tuesday preced- ing the annual town meeting to be held in each town. " The commissioners of highways 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 disbursed by them by virtue of their offices. The said 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 highway commissioners and other oificers at the date of the certificate ; which statement and certificate shall be filed with the town clerk of the town, and be by him pro- COMMISSIONBES, THEIR PoWBRS AND DUTIES. 95 duced at the next annual town meeting, and publicly read " (Laws 1863, chap. 172.) Under the above law and chap. 180 of Laws 1875, which pro- vides for the election of town auditors as independent officers, the commissioners are to account annually before the board of town auditors and not before the board of town officers. (People ex rel Bechtel v. Welhrook, 27 Hun, 598.) 8. In Raising Money for Repairs op Roads and Bridges. The commissioners of highways of each town shall deliver to the supervisor of such town a statement of the improve- ments necessary to be made on the roads and bridges, to- gether with the probable expense thereof ; which supervisor shall lay the same before the board of supervisors at their next meeting. (See Form No. 12.) The board of supervisors shall cause the amount so esti- mated to be assessed, levied and collected in such town, in the same manner as other town charges; but the money to be raised in any such town shall not exceed in any one year the sum of two hundred and fifty dollars. (1 B. S. 502, § 4.) Votes to raise money. — § 1. All votes in town meetings authorizing the raising of money or incurring any town liability exceeding five hundred dollars shall be by ballot. § 2. The town clerk, at the expense of the town, shall give twenty days' notice, posted in five conspicuous places in town of any proposed appropriation or tax for the raising or borrowing of money, and shall provide a ballot-box or boxes labeled " appropriation," and furnish for the use of the electors ballots on which shall be written or printed "for appropria- tion " or " against appropriation." § 3. This act shall take effect the first day of June, 1883. (Laws 1883, chap. 122.) Additional appropriation. — By the act of 1832 (chapter 274), "for the more effectual improvement of roads and bridges," it was provided that when the commissioners should not deem the sum of two hundred and fifty dollars sufficient to pay the expenses actually necessary for the improvement ■of roads and bridges, a further sum, not exceeding two hun- 96 The Law of Highways. dred and fifty dollars, might be raised. The act is in tli& following words: " § 1. Whenever the commissioners of highways of any town in this State shall be of opinion that the sum of two hun- dred and fifty dollars, as now allowed by law, will be insufficient to pay the expenses actually necessary for the improvement of roads and bridges, it shall be lawful for such commissioners 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." Notice of application. — " § 2. Before making such applica- tion, 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 preceding the annual town meeting; such notice shaU specify the amount to be applied for, and the purposes to which the same is to be ap- propriated, with the probable amount necessary to be expended at each place, if there shall be more than one." (See Form No. 12.) To exhibit accounts and estimates. — " § 3. Whenever any application of a grant of money 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 improvement of roads and bridges in such town the ensuing year." ITow money to be raised. — " § 4. If the town meeting shall, by their votes, determine that a sum over and above the amount now allowed by law, will be necessary for the improvement of roads and bridges, or to pay any balance that may be due, the clerk shall enter such resolution as shall be agreed to in the minutes of the meeting, and deliver a copy thereof to the super- visor of the town, who shall lay the' same before the board of supervisors, at their next annual meeting ; and 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." Commissioners, Their Powers and Duties. 97 Moneys already voted. — "• § 5. If any town shall, at an an- nual 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 said town is situated to assess, levy and collect the sum so voted to be raised upon said town. Further appropriation. — By the fifth subdivision of section first of the act of 1838 (chap. 314), " to enlarge the powers of boards of supervisors," the board of supervisors, of each county is empowered : " 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 exceeding 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." By the second section of the same act it is provided that, " No moneys shall be raised under the authority conferred by the fifth subdivision of the preceding section (which is the sub- division cited above), unless a written notice of the application to such town meeting 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 elect- ors present immediately after the opening of the meeting." See Form No. 13.) A further act was passed in 1857, chap. 615, which provided that, " Whenever the commissioners of highways of any town in this State shall be of the opinion that the sum now provided by law will be insufficint to pay the expenses actually necessary for the improvement of roads and bridges, and to pay any balance that may be due for such improvement, it shall be law- ful for such commissioners to apply in open town meeting 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 com- missioners of their intention to apply for the raising of such 7 98 The Law of Highways. additional sum as is now required bj"- law for the raising of money for roads and bridges above the amount of two hundred and fifty dollars." See Form No. 13. This does not repeal Laws 1840, chap. 143. (^People ex rel. Roosevelt v. Supervisors of Westchester, 40 Hun, 353.) Legalizing informal acts. — By Laws of 1869, chapter 855, § 5, as amended by Laws of 1871, chapter 695, the board of super- visors of any county, except New York and Kings, may legal- ize the informal act of any town meeting in raising money for road or bridge purposes, provided such legalization shall be rec- ommended by the county court of such county. Money for stone crusher. — 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 shall present his account and vouchers for such purchase to the board of town auditors of his town for audit. (Chapter 220, Laws of 1884.) • Notice. — 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 in 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." (^Id., § 2.) Custody of machine. — Such machine when purchased shall be deemed to be, and shall be, under the care and custody of the supervisor of the town, and, where there is an incorporated village constituting a separate road district in any town, he shall permit an equitable use of said machine to said separate road district. (Id., § 3). Tax to pay for same. — The board of supervisors of the county shall cause to be levied and collected by tax in any town having authorized the purchase of a stone crushing machine, in the same manner as any other town taxes are levied and collected, such sum as shall be necessary to pay for the pur- chase of the same. (Id., § 4.) COMMISSIONEES, ThBIR PoWEES AND DtJTIES. 99 Whenever any town shall have purchased a machine for crushing stone by virtue of the provision of this act, the town clerk of such town on the application of the commissioners of highways, or a majority of them, shall pall a special town meeting of the electors of said town, to vote on the question of raising by tax a sum of money to be specified in said call not exceeding two thousand dollars in any one year, for the purpose of purchasing rock or stone, quarrying, breaking, crushing and placing the same on the highways in said town, and to defray all the expenses of operating said stone crush- ing machine ; such vote may be taken, either at a special town meeting called for that purpose or at any annual town meeting ; in either case the town clerk shall give at least eight days notice that such vote will be taken, by posting notices thereof in not less than five public places in said town ; and the vote when taken shall be by ballot, either written or printed, and shall read as follows : " For the appropriation to defray the expenses of supplying and operating the stone crusher, or " Against the appropriation to defray the expense of supplying and operating the stone crusher." If a ma- jority of the ballots cast are "For the appropriation to de- fray the expenses of supplying and operating the stone crusher," the board of supervisors of the county shall cause to be levied and collected by tax in any town having voted as aforesaid, either at special or annual town meeting the amount so voted, in the same manner as other town taxes are levied and collected, and the same shall be paid over to the com- missioners of highways, to be used by them for the purposes aforesaid. (Jd., § 6, as added by chap. 471, Laws 1887.) Borrowing money. — Again, the board of supervisors in each county are empowered by the ninth subdivision of section four of the act of 1-849 (chap. 194). " To authorize any town in such county, by a vote of such town to borrow any sum of money, not exceeding four thou- sand dollars in one year, to build or repair any roads or bridges in such town, and prescribe the time for the payment of the same, which time shall be within ten years, and for assessing the principal and interest upon such town." By chapter 855 of the Laws of 1869, as amended by the Laws of 1874, chapter 260, the boards of supervisors of each 100 The Law of Highways. county in this State, except New York and Kings shall have power at their annual meeting, or any other regular meet- ing, to authorize the supervisor of any town in said county by and with the consent of the commissioner or commis- sioners of highways, town clerks and justices of the peace of such town to borrow such sum of money, for and on the credit of each town, not exceeding, howevei', in any year, the amount of one-half of one per cent, on the assessed valuation of the taxable property of the town for such year as the said town officers may deem necessary, to build or repair any road or roads or bridge or bridges in such town, or which shall be partly in such town, and partly in an adjoining 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 prescribe 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 obligation and the rate of interest there- on not exceeding seven 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. Supervisors have unlimited power as to improvement of highways and as to apportion the expense among the towns under the above law. (^People ex rel. Morrell v. Supervisors, 48 Hun, 324; 15 N. Y. St. Bep. 860.) Meeting. — By the same act the town officers hereinbefore mentioned are directed to meet at the town clerk's office in the town for which they are elected or appointed, on the first Monday of September in each year, at ten o'clock in the morn- ing, to determine what amount, if, any, sh'all be borrowed on the credit of such town for the purposes contained in the first section of the act hereby amended, and for what roads or bridges such amount shall be borrowed or appropriated ; 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. COMMISSIONEES, ThBIK PoWEES AND DUTIES. g Certificate to he indorsed on bonds. — The bonds authV.^v..,t ^^^er capita or poll-tax. Ministers or priests are not to be excepted unless they are engaged in religious teaching as a business; those who have abandoned or retired from the calling are not to be exempted, even though they occasionally teach or exhort. An idiot is one that has had no understanding from his infancy ; a man is not an idiot if he has any glimmering of reason, so that he can tell his parents, his age, or the like common mat- ters. (1 Black. Com. 303.) A lunatic is one who has had un- derstanding, but by disease, grief or other accident has lost the use of his reason ; the fact that he has lucid intervals does not alter the case. (-K.) The number of days assessed on the male inhabitants is to he deducted from the whole number of days' work to be as- sessed in the town, and the balance of such days is to be ap- portioned upon the estate, real and personal, of the inhabitants, non-residents land owners, and moneyed and stock corpora- tions. Corporations. — In making the estimate 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 inhabitants therein, above the age of twenty-one years, as provided in the sixteenth chapter of the first part of the Eevised Statutes, entitled " of Highways and Bridges " the 154 The Law of Highways. ' commissioners of highways shall include among the inhabi- tants of such town, among whom such residue is to be appor- tioned, all moneyed or stock corporations which shall appear on the last assessment-roll of their town to have been assessed therein. (Laws 1837, chap. 431, § 1 ; see Form No. 31.) Under this provision the commissioners are to follow the previous action of the assessors. They are not to assess such, corporations ■ as are situated in their town, or such as may properly be considered inhabitants of such town. They 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 corporation which is not so assessed upon the- roll. The highway law itself affords no rule or principle for discriminating between such corporations as are and such as are not taxable in the towns, nor between such portions of the property of the corporations as may or may not be thus, taxable. The highway law does not even direct the commis- sioners to include in their assessment such corporations, or such corporate property as ought to be, or to have been taxed in the town and upon the last preceding assessment.. The rule for the commissioners is to ascertain whether the corporations appears in the assessors' roll, not whether it ought to appear there. The error, if there be one, can only be 'corrected by correcting the town roll. (^People ex rel. Sudson. B. R. R. Co. V. Pierce, 31 Barl. 138.) Associations formed under the general banking law are moneyed or stock corporations and liable to taxation. (^Peo- ple ex rel. McMaster v. Supervisors of Niagara, 4 Hill, 20 ; T Hill, 604.) Railroad companies are not taxed upon their capital, but upon the valuation of their real estate in the several towns through which the road passes. (^Mohawk and Hudson R. R. Co., V. Olwte, 4 Paige, 384 ; People ex rel. McMaster v. Supervisors of Niagara, supra.) The real estate of railroad companies should be assessed at its value for the purpose to which it has been adapted, and not as farming lands. (^People ex rel. Buffalo ^ State Line R. R. Co. V. Fredericks, 48 Barh. 173.) The structure, rails, etc., of an elevated road is to be taken as real estate. (N. Y. Ct. of Appeals, Nov. 9, 1880. People ex rel. N Y. Mev. R. R. Co. v. Comr's of Taxes of N. Y., 82 N. Y. 459.) Assessment of Highway Labor. 155 The foundation and superstructure of elevated railroads are taxable as real estate. {People ex rel. K Y. Mev. R. R. Co. V. Comr's of Taxes of N. Y. 19 Hun, 460.) Villages. — By Laws of 1871, chapter 171, in all cases where there is an incorporated 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 corporation, situated partly within the limits of such village or city, and partly with- out 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 on that part of said real estate lying without the limits of said city or village, and designate the same upon their assessment list. (§ 1.) The valuation of the real estate lying without the limits of any city or village, so fixed and determined by the assessors, 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. (§ 2.) If the trustees of a village, incorporated under chap. 291 of the Laws of 1870 fail to lay out a street asked for by petition upon the precise line designated in the petition, any proceed- ings taken thereon to collect the amount expended would be wholly void. (^People ex rel. Johnson v. Village of Whitneys Point, 2 N. Y. St. Rep. 1.) Private roads. — It shall be the duty of the commissioners of highways of each town to credit such persons as live on private roads, and work the same, so much on account of their assess- ments as such commissioners may deem necessary to work such private road, or to annex such private roads to gome of the highway districts. (1 R. S. 507, § 29.) Separate assessments.— Vfhenevev the commissioners of high- ways shall assess the occupant 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, 156 The Law op Highways. of the occupant thereof. But, when any such land shall be assessed in 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 B. S. 608, § 30.) Assessment for 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 making application, in writ- ing, to the commissioner or commissioners of their respective towns, on or before any day previous to the time of making the highway warrants by such commissioners, be assessed the appor- tionment of highway labor, for such property upon such plank- road; and the commissioner or commissioners 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, chap. 626, § 1, as amended 1872, chap. 128.) It shall be the duty of the highway commissioner or com- missioners 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 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 highway tax, as the overseers of highways now have by law, and shall make like returns to the commissioners of highways. (Id., § 3.) Any person so assessed may commute for the tax assessed upon him or his property, by paying the sum fixed by law to any of said directors. (Id., § 4.) This does not embrace assessments for the personal property generally of the owner of land on the road, or of the capital of a bank, or of personal property held in trust. (People ex rel. O-eneseo, M. M. ^ Y. Plank Road Co. v. Hall, 15 How. Pr. 76.) TFAere assessors have omitted to assess. — Whenever the asses- sors of any town shall have omitted to assess any inhabitant or property in such town, the commissioners of highways shall Assessment of Highway Labor. 15T assess the person and property so omitted, and shall apportion highway labor upon such persons or property in the same man- ner as if they had been duly assessed upon the last assessment- roll. (Laws 1837, chap. 431, § 6.) Lists to he filed. — The commissioners shall ai£x to the name of each person named in the list furnished by the overseers, and 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 high- way labor, as herein directed ; and the commissioners shall sub- scribe such lists and file them with the town clerk. (1 H. S, 50T, § 24, sub. 5, as amended 1835, chap. 154, § 3.) Copy of list. — The commissioners of highways shall direct the clerk of the town to make a copy of each list, 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 conclusive evidence that such overseer is duly chosen or appointed to such office, although the acceptance required by section eighteen, article two, title three, chapter eleven (see ante, p. 157), has not been filed as- required by said section. (1 JR. S. 507, as amended 1863, chap. 444.) It will be a great aid to overseers of the highway if the com- missioner will cause the list of names to be annexed to a printed slip, similar to Form No. 32. (See Appendix.) This form may be procured from Avery Eerrick of Albany, K T. or any publisher of law books. Names omitted. — The names of persons left out of any such list, and of new inhabitants, shall from time to time be added to the several lists, and they shall be rated by the overseer in proportion to their real and personal estate, to work on the highways, as others rated by the commissioners on such list, subject to an appeal to the commissioners. (1 R. S. 507, § 26 ; see Form No. 33.) Appeals hy non-residents.— Whenever any non-resident owner 158 The Law of Highways. shall conceive himself aggrieved by the assessments to any com- missioners of highways, in carrying into effect the provisions of this article, it shall be lawful for such owner, or his agent, within thirty days after such assessment, to appeal to the county judge of the county in which such land is situated. (1 M. S. 507, § 27, as modified by Laws 1847, chap. 280, § 29.) The appeal must be taken within thirty days after the assessment is actually made, and the list signed by the commissioners. (See Form No. 34.) By § 3, subdivision 6, of chap. 245 of the Laws of 1880, the repeal of the different acts therein set forth does not affect the power, authority or jurisdiction of the county court respecting turnpike roads or appeal from determination of commissioners of highways. Proceedings thereon. — It shall be the duty of such judge, within twenty days thereafter, to decide on such appeal, the said owner or agent giving notice to the commissioners of the time of the meeting of the judge ; and his decision shall be final and conclusive in the premises. Each judge shall be en- titled to receive for his services on such appeal two dollars for each day he may be employed thereon, to be paid by the party appealing, if the proceedings of the commissioners and over- seers shall be affirmed : but if reversed or modified favorable to the party appealing, to be levied and paid as part of the con- tingent expenses of sucb town. (1 R. S. 507, § 28, as modi- fied by Laws 1847, chap. 280, § 29.) By chapter 564 of the Laws of 1857, county judges are no longer allowed to receive fees except for services which may be performed by justices of the peace and commissioners of deeds. Tenant to 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 pre- ceding section, and shall actually perform such work, or com- mute therefor, he shall be entitled to a deduction from the rent due, or to become due, from him, for such land, equal to the full amount of such assessment, estimating the same at the rate of sixty-two ajid a half cents per day, unless otherwise pro- vided for by covenant or agreement between such tenant and his landlord. (1 B. S. 508, § 31. This was amended 1864, Assessment of Highway Labok. 159 chap. 395, so as to increase the sum to one dollar as respects "Westchester, Putnam, Delaware and Columbia Counties only.) Grading, etc., road. — It shall be lawful for the inhabitants re- siding 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 construction 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 anticipated 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 road. (Laws 1849, chap. 250, § 12.) Errors how corrected. — Where the highway commissioners shall err in their assessment, such error is to be corrected by certiorari. (^Thomp. Pro. Bern. 310.) Additional assessment hy overseer. — When the quantity of labor assessed on the inhabitants of any road district by the commissioners, shall be deemed insufBcient by the overseer of such district, to keep the roads therein in repair, it shall be the further duty of such overseer to make another assessment on the actual residents in such district in the same proportion, as near as may be, and not exceeding one-third of the number of days assessed in the same year by the commissioners, on the in- habitants of such district ; and the labor so assessed by an over- seer shall be performed or commuted for, in like manner as if the same had been assessed by the commissioners of highways. <1 B. S. 503, § 8 ; see Form 98.) To remove snow. — Whenever the labor in any ward or district has been worked out, commuted for or returned to the super- visor, and the highways are obstructed 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 ^all 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 removing such obstructions ; and such labor, so called for by the over- 160 The Law op Highways. ♦ seer, shall be assessed upon those liable to perform the same, ia proportion to their original assessments, and all persons so called out and failing to appear at the place designated 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 justice'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 high- ways 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 highways for the use of the town. (Laws 1869, chap. 593.) Sow tax enforced. — ^A tax for labor not worked or commuted for can be enforced only by levy on chattels. (1871, opiniou of Atty.-Genl. 570.) Pebpobmance of Highway Labob. 161 CHAPTER VII. PEBFOKMANCE OP HIGHWAY LABOB. 1. Notice to work on highways. 2. Commuting for labor. [work. 8. Teams, etc., substitutes, hours to 4. Abatement of tax. 6. Penalties for not working, how collected. 6. Proceedings to collect non-resi- dent labor unpaid. V. Penalties against corporations and how collected. 8. Annual return of overseers. 9. Bights and liabilities in perform- ance of labor. 10. Changing system of working high- ways. 1. Notice to Work on Highways. The assessment lists for labor on highways having been prepared by the commissioners, copied by the town clerk, and subscribed by the commissioners, are to be delivered to the respective overseers of highways of the several districts in which the highway labor is assessed, and the overseers are thereupon to proceed to cause the labor assessed to be per- formed in their several districts. The delivery of the assess- ment roll to the overseer will be a sufficient order to warn persons assessed to work on the highways. The manner in which they are to proceed is as follows : It shall be the duty of overseers of highways to give at least twenty-four hours' notice to all persons assessed to work on the highways and residing within the limits 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 be- tween the hours 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 said land or property is situated, 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 162 The Law of Highways. or district where the disposition of the highway tax has been provided for by special enactment. (1 B. S. 508, as amended by Laws of 1876, chap. 348.) This notice need not be in writing. Where a person elects to work in a district where he has lands, but does not reside, he should, to avoid any controversy, obtain the written con- sent of the commissioners. After working the required num- ber of days, he should bring a receipt or certificate to that effect from the overseer of the district where the labor is per- formed to the one where he resides, who will give him credit accordingly. (For consent of commissioners, see Form No. 35.) Notice to Agent. — It shall be the duty of the several over- seers of highways to notify the agent of every non-resident landholder, whose lands are assessed (if such agent resides 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 B. S. 509, § 33.) If the overseer cannot ascertain that such non-resident has an agent within such town, he shall affix a written notice on the outer door of the building in which the last town meeting in such town was held, 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 daj^s' labor assessed on each tract, and a specification of the time when, and place where such labor is to be performed ; which notice shall be posted at least twenty days before the time appointed for performing such labor. (^Id. § 34.) Where the agent can be found it is not necessary that the notice be in writing although it would be proper to have it in writing. (See Form No. 36.) Notice to corporations. — Moneyed 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 transact- Peefoemakcb op High-way Labor. 163 ing the business or concerns of the said company ; which labor shall be performed in such district or districts as the commis- sioners of highways of the town shall direct ; and any number of days' work, not exceeding fifty, may be required to be per- formed by any such corporation in any one day. (Laws 1837, chap. 431, § 2.) By chap. 770, Laws 1866, the highway tax upon any land or property is to be worked out or commuted for in the district in which said land or property is situated, and if com- muted 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 the act is not to apply to or affect any county, city, village, town or district where the disposition of the highway tax has been provided for by a special enactment. The statute of 1866 was not intended to repeal that of 1837 and was not in- tended as a substitute for it, or any part thereof ; but it was intended to apply only to this general law as it then stood in the Revised Statutes ; nor was there any such manifest intent on the part of the legislature to substitute the general pro- visions of the statute of 1866 for the special ones of the act of 1837 as would work a repeal of the latter by implication. (K Y., L. JE. ^ W. By. Co. v. Bd. of Supers, of Delaware County., 67 Sow. Pr. 5.) The commissioners of highways of a town have the power to assess a moneyed or stock corporation having property therein, for highway labor to be performed in a road district in such town other than that in which such property is sit- uated. (Idl) 2. Commuting for Labor. 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 therefor, at the i^ate 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 district 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 B. S. 509, § 35, as amended by Laws 1880, chap. 308.) Every person intending to commute for his assessment, or 164 The Law op Highways. for any part thereof, shall, within twenty-four hours after he shall be notified to appear and work on the highways, pay the cornmutation money for the work required of him by such, notice ; and the commutation shall not be considered as com- plete until such money be paid. (^Id. § 36.) Corporations may commute. — Every moneyed or stock cor- poration may commute for the highway labor assessed upon it, in the same manner, and at the same rate as is allowed by law to individuals, or by paying such commutation to a commis- sioner of highways of the town ; and the commutation money so paid may be expended by the commissioners 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. (Laws 1837, chap. 431, § 3. See Laws 1866, chap. 770, page 163, ante.') Whenever any railroad corporation assessed in any town or road district for highway labor shall elect to commute therefor,, as provided by law, such corporation shall pay the commuta- tion money to the commissioner or commissioners of highways of such town, and such moneys shall be applied and expended in the improvement of the roads and building and maintenance of bridges in such town. (Laws of 1878, chap. 44, amending Laws 1877, chap. 344.) This seems to make the money payable to the commissioners instead of to the overseers as directed by chap. 770, Laws 1866,. page 163, ante. Tax expended on sidewalks. The commissioners of highways, of any of the towns of this state shall from time to time upon the written application of a majority of the persons living within the limits of any road district of any unin- corporated village, who are subject to assessment for high- way labor, authorize not less than one quarter and such ad- ditional part of the highway labor assessed upon the inhabitants- Performance op Highway Labor. 165 and property of any unincorporated village within the limits of any road district as in their judgment is expedient and proper and not necessary for the maintenance of the high- ways therein, to be performed, or the commutation moneys re- ceived therefor expended, by and under the direction of the overseer of highways for such district, in the construction, re- pairs and improvements of sidewalks within the limits of such village ; and for such purpose may also from time to time, by writing signed by them, or a majority of them, and filed with the town clerk of such town, authorize such additional proportion of the highway labor of such village as in their judgment is not needed for the annual repairs of the highways therein, to be anticipated for one or more years, not exceeding three, and thereupon any person or corporation resident of or owning prop- erty within such village and assessed for highway labor in the district in which such village is situated, may in the years so des- ignated in such order anticipate his, her or its assessment for highway labor for such time as he, she or it may see fit within the limits so prescribed by the commissioners, and may perform the labor so anticipated, under the direction of such overseer, within such year, or commute therefor to such overseer. (Laws 1880, chap. 305, § 1, as amended 1884, chap. 479.) It shall be the duty of such overseer to give to such person or corporation, upon the performance of such labor or commuta- tion therefor, a certificate signed by him, showing the number of days' labor so anticipated and worked or commuted for by such person or corporation ; and in each succeeding year, upon pre- sentation of such certificate, such person or corporation shall be credited and allowed by the overseer of highways with the performance of the number of days' labor so assessed to him, her or it for such year, until such credit shall equal the number of days so stated in such certificate to have been anticipated, and shall indorse thereon a statement signed by him showing such credit and allowance. (Laws 1880, chap. 305, § 2.) Upon a transfer of any real estate, upon or for which assess- ments for highway labor may have been so anticipated and worked or commuted for, the certificate mentioned in section two may also be transferred to the grantee of such real estate, and the provisions of said section shall apply thereto, and such certificate shall be operative and have the same effect in favor of the then owners of such real estate as in the hands of the 166 The Law of Highways. original owner thereof ; and upon the death of any person when owning property, real or personal, upon which the high- way labor has been anticipated, such certificate shall in like manner be operative and have the like effect in favor of the devisees, legatees, heirs or personal representatives of the de- ceased, who may be the then owner of such property, or any part thereof, and assessed for highway labor thereon. (iS., § 3.) 3. Abatement of Tax. Any inhabitant liable to highway tax who shall hereafter transplant by the side of the public highway adjoining his premises, any forest shade trees, fruit trees, ornamental trees, or any nut-bearing trees, of suitable size for shade trees, shall be allowed by the overseers of highways or other officer having charge of said highway in abatement of his highway tax, one dollar 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 highway. And no allowance, as before mentioned, shall be made unless such trees shall have been set out the year previous to the de- mand for said abatement of highway tax, and are living and well protected from animals at the time of such demand. (Laws 1883, chap. 371.) Said shade trees shall not be set nearer the travelled portion of said highway, than eight feet from the outside line of any highway three rods wide, and not more than one additional foot for each additional rod in width. (Id. § 2.) Any trees transplanted by the side of the public highway, as aforesaid, in the place of trees which have died, shall be allowed for in the same manner as is provided in section one of this act. (Id. § 3.) No person shall be allowed an abatement of his highway taxes, as aforesaid, more than oue-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 abatement of highway tax allowed the person claiming the same as shall have equalled the whole number of trees set out at the rate of one dollar for every four trees set out. Qld. § 4.) Peefokmancb of Highway LAboe. 167 For removing fence. — Any inhabitant liable to highway tax, who shall remove from lands owned or occupied by him the fence along any public highway for the purpose of preventing the drifting of snow into such highway, shall be allowed by the overseer of highways, in abatement of his highway tax, the time actually expended in removing such fence and in replac- ing the same ; provided, however, that no allowance shall be made as hereinbefore provided unless such fence shall have been removed pursuant to the direction of the overseer of high- ways. (Laws 1875, chap. 196.) 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 inhabitant 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 fresh water, the surface of which shall be two or more feet above the level of the ground, and easily accessible for horses and vehicles; but the said commissioners of highways, repectively, may designate the number necessary for the public conveni- ence in each district, and no others than those designated shall be allowed this abatement of tax. (Laws 1872, chap. 274, § 1.) For street lamp. — Any person, firm or corporation owning or holding real estate or other property liable to highway tax, in any of the towns of this state, except in the county of Kings, other than in cities and incorporated villages who shall, with the consent of the overseer of highways in charge of the dis- trict in which such property is assessed and in such places as he may direct, 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 higliways in abatement of such highway tax six dollars annually, or such portion of six dollars as the annual taxes upon such real estate or other property may be. (Laws 1884, chap. 251.) 4. Teams, etc.. Substitutes, Houes to Woek. Every overseer of highways shall have power to require a team, or cart, wagon or plough, with a pair of horses or oxen, and a man to manage them, from any person having the same 168 "The Law of Highways. within his district, who shall have been assessed three days or more, and who shall not have commuted for his assessment ; and the person furnishing the same upon such requisition shall be entitled to a credit of three days for each day's service therewith. (1 B. 8. 609, § 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 substitute, and the person or substitute so appearing shall actually 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 default, to be imposed as a fine on the person assessed. {1 B. S. 510, § 38, as amended by Laws 1880, chap. 308, § 3.) 5. Penalties foe not Working, and how Collected. If any such person or his substitute shall, after appearing, remain idle or not work faithfully, or hinder others from work- ing, such offender shall, for every offense, forfeit at the rate of twelve and a half cents an hour for each day. (1 B. S. 510, § 39, as amended by Laws 1880, chap. 308, § 4.) Penalties for not working, etc. — 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 or neglect to comply, he shall be fined as follows : 1. For wholly omitting to comply with such requisition, three dollars for each day of eight hours, and three dollars arid 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 dollar 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 dollar and twenty- five cents for each day of ten hours. Pekformancb or Highway Labor. 169 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. (1 M. S. 510, § 40, as . amended by Laws 1880, chap. 308, § 5.) Complaint, how made. — It shall be the duty of every over- seer 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 peace of the town. (Ji. § 14 ; see Form No. 37.) No one but an overseer can make complaint against one ■neglecting to work. The justice has no jurisdiction of a com- jplaint by any other person. ( Walker v. Moseley, 5 Denio, 102.) If the overseer should decide that an excuse offered was not :satisfactory, and should enter a complaint even unreasonably, he will not be liable to the party complained of, unless he- acts maliciously. (Potter v. Benniss, IJohn. 515; Freeman y. Corn- wall, 10 John. 470.) The complaint must be made to one of the justices of the town, and before a justice of the peace as justice, and not before a justice's court. (^Rice v. Milks, 7 Barb. 337.) A justice is not disqualified to entertain these proceedings by reason of his being an inn-keeper. (itZ.) Proceedings thereon. — The justice to whom such complaint ^hall be made shall forthwith issue a summons, directed to any •constable 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 sum- mons shall be served personally, or by leaving a copy at his personal abode. (1 B. S. 510, § 42.) This summons should be served personally, by leaving a copy with the person served, ■or at his residence, and the service must be made by a constable -of the same town. (Bouton v. Neilson, 3 Johns. 474 ; Beaeh V. Furman, 9 Johns. 229 ; see Form No. 38.) If, upon 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 offence complained of, and shall forthwith issue a warrant under his hand and seal, directed to 170 The Law op Highways. any constable of the town where such delinquent shall reside, commanding him to levy such fine, with the costs of the pro- ceedings, of the goods and chattels of such delinquent. (Id. § 43.) On return of the summons the justice should allow a reason- able 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 holding open the court for the appearance of the delinquent, or to allow him to procure witnesses. The justice has a large discretion, in passing upon the sufficiency of , the excuse. He is the sole judge, and his decision is final ; no appeal or certiorari will lie from his decision. (See Forms 38-40.) The constable to whom such warrant shall be directed 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 wha 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.) It is questionable whether any property is exempt from levy under this warrant. The exemption is "under any execution" in the justice's act, and the same words are used in reference- to executions issued out of a court of record. (2 R. S. 367^ § 22.) There has been no judicial exposition of the subject. It would seem, however, that the exemption does not apply. Penalties to be 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, as amended Laws 1880, chap. 308, § 6.) Excuses. — The acceptance by an overseer of any excuse for refusal or neglect, shall not in any case exempt the person excused from commuting for, or working the whole number of days for which he shall have been assessed during the year. (1 R. S. 511, § 46.) 6. Peoceedings to Collect Non-Resident Labor Unpaid. Every overseer of highways shall, on or before the first day Performance op Highway Labor. 171 of October in each year, make out and deliver to the super- visor, of his town a list of all resident landholders residing in his district, who have not worked out their highway assessment or commuted for the same, with the number of days not woi'ked 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 persons 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 number of days' labor unpaid by each, charging for the same at the rate of one dol- lar and fifty cents per day ; which list shall be accompanied by the affidavit 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 commuted. (1 B. S. 511, § 47, as amended Laws 1870, chap. 461.) 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 It- S. 511, § 48, as amended by Laws 1865, chap. 522.) It shall be the duty of the supervisors of the several towns to receive the lists of the overseers of highways, when delivered pursuant to the preceding forty-seventh section, and to lay the same before the board of supervisors of the county. (1 R- S. 511, § 49.) It shall be the duty of each board of supervisors, at their an- nual meeting in each year, to cause the amount of such ar- rearages for highway labor returned to them severally as pro- vided in the preceding section, estimating each day's labor at one dollar and fifty cents a day, to be levied and collected from the real or personal estate of the person, corporation or non- resident real estate from which said arrearages of highway labor may remain unpaid, and to be collected by the collector of the several towns in the same manner that other taxes are col- 172 The Law of Highways. lected, and order the same when collected by said collector to be paid over to the commissioners of highways of the town wherein the same is collected, to be by them applied toward the construction, repair, and improvement of the roads and bridges in the district in which the labor was originally as- sessed. (1 B. S. 511, § 50, as amended by Laws 1877, chap. 197.) A tax for labor not worked out or commuted can only be enforced by levy on chattels. (1871, Opinions of Attys.-Gen. 570.) 7. Penalties Against Corpoeations, and How Collected. Every moneyed or stock corporation shall be liable to the same penalties for every day's work required, and for every default of any substitute sent by them, as is provided 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 com- missioners of highways of the town, by the constable collecting the same, and may bc 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, ac- cording 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 sum- mons issuing out of courts of record against corporations. (Laws 1837, ch. 431, § 4 ; see Forms Nos. 37, 40.) In case any such penalty cannot be collected, as herein provided, the commissioners of highways of that town may file a bill in the Court of Chancery against any such delinquent corporation for the delivery and sequestration of its property; whereupon the same proceedings shall be had as are provided by law for the collection of county taxes assessed against incorporajted 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 delinquent com- pany in any court of record in this state. (JcZ. § 5.) 8. Annual Return op Overseer. Every overseer of highways shall, on the second Tuesday, Peefoemance op Highway Laboe. 173 next preceding the time of holding the annual town meeting in his 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 moneys arising from fines and commuta- tions have been expended by him. 5. A list of all persons whose names he has returned 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 returned. (1 R. S. 512, § 61, as amended Laws 1865, ch. 522 ; see Form 29.) The oath to the above account may be administered before any commissioner of highway. (Laws 1833, chap. 149.) To pay over moneys. — Every such overseer shall also then and there pay to the commissioner all moneys remaining in his hands unexpended, to be applied by the commissioners in mak- ing and improving roads and bridges in the town in such man- ner as they shall direct. (1 B. S. 512, § 52.) Neglect of overseer to account. — 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 ten dollars, to be recovered, together with any balance of moneys remaining in his hands, by the commis- sioners of highways, to be applied to making and improving the roads and bridges in said district ; and it shall be the duty of said commissioners to prosecute for such penalty in every instance in which no return is made, or such delinquency oc- curs. (1 B. 8. 512, § 53.) 174 The Law of Highways. Re-assessment in case of neglect. — "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 highways (other than non-residents) has neglected to work the whole number of days to him assessed, and has not commuted for, or otherwise satis- fied such deficiency, then it shall be the duty of the commis- sioners of highways to re-assess such deficiency to the person so delinquent, at the next assessment of work for highway pur- poses, and to add to it his annual assessment. (Laws 1832, chap. 107, § 2.) Such re-assessment shall not exonerate any overseer of high- ways from any penalty which he may have incurred under the sixteenth section of the last aforesaid chapter. (Id. § 3.) 9. Rights and Liabilities in Performance op Labor. It is proper in this connection to ascertain the rights and liabilities of the highway officers in repairing and performing labor on highways. What rights have such officers in improv- ing the road over the soil, and to the materials within the limits of the road ? The general rule is that they may dig the soil and use the timber and other materials found within the space of the road in a reasonable manner for the purpose of making and repairing the road and its bridges. There is, however, this exception, that all the trees standing or lying on an}"- land over which a highway shall be laid out, shall be for the proper use of the owner or occupant of such land, except such of them as may be requisite to make or repair the highways or bridges on the same land. (1 B. S. 525, § 126.) This limitation restricts the use of trees by the public officers to the reparation of the roads and bridges on the same lands whereon such trees stand. The overseers have not the right to cut down the trees growing on the side of the road, and left there for shade or ornament. (Ante, p. 25.) The owner of lands adjoining a highway not less than three rods wide, may plant or set out trees on the side of such highway contiguous to his lands, which trees shall be set in regular rows at a distance of at least six feet from each other; and whoever shall cut down, destroy or injure any tree that has been, or shall be, so planted Peepoemancb op Highway Labor. 175 or set out, shall be liable in damages to the owner of such ad- joining lands. (1 R. S. 525, § 127.) As to action for cutting or injuring trees, see Laws 1880, ch. 178, § l'667 and 1668. (See also Laws 1883, chap. 371, page 166, ante.) The courts have held that where, to reach and prepare the surface of the road in accordance with its grade line, superin- cumbent material is necessarily removed, it may be used upon other parts of the road and on the premises of other land owners, and that where there has been no negligence in construction consequential injuries necessarily resulting cannot be recov- ered. It was said in Pumpelly v. Grreen Bay Oo. (13 Wall, U. S. Sup. Ct., 166, 181,) that this class of decisions " have gone "to the uttermost limit of sound judicial construction " and " in some cases beyond it. This decision is approved by FnsrcH, J., in Rohert v. Sadler (104 N. Y. 229, reversing 37 Hun, 377; 1889), Ladd v. French, (24 N. Y. St. Bep. 952). In that case the grade of the avenue was fixed and a contract for its con- struction made with one Curran. By the terms of the contract he was required to cover the roadway to the depth of fifteen inches with gravel hard pan or other materials approved by the commissioners. The land within the road lines crossing plaintiff's premises was higher than the grade fixed and required a removal of the earth to the depth of such grade and possibly fifteen inches below.it. The contractor not only removed this material above grade and used it upon the avenue for the purpose of filling and construction, but he dug pits in the roadway to a depth of six feet below the grade in order to get gravel with which to perform his contract without paying for it, and these pits thus made were " intended and required " to be filled up again with earth before the avenue was completed, etc. Judo-e Finch says : " It is perfectly well settled that in a case like the present the public acquire only a right of way with the powers and privileges incident to that right (Jackson V. Hathaway, 15 John. 447, 452.), and that the owner of the iee retains his exclusive rights in all mines, quarries, springs of water, timber and earth for all purposes not incompatible with the right of way. The question in every case turns upon what is "incident " to the construction or maintenance of the right of way. In Higgins v. Reynolds, (31 K Y. 151) 176 The Law of Highways. stone was taken from the limits of a highway and its value recovered. In Niagara Falls Suspension Bridge Company v. Bachman, (4 Xans. 523,) it was said that gravel might be re- moved to other parts of the road, but it is quite apparent that this was gravel necessary to be removed in order to get the highway to its grade. In Fisher v. City of Rochester, (6 Lans. 225) the work done was the construction of a sewer and the contractor used stones excavated from within the street limits. It was held that they belonged to the land owner. In Williams V. Kenney, (14 Barh. 629) the owner of the fee took away sand from within the limits of the highway but without injury to the public right of travel and his action was sustained. In Benniston v. Clark, (125 Mass. 216) the gravel removed was a. bank above the grade necessary to be cut through and such as afterwards from natural causes fell down from the side slopes, and filled the ditches which it became necessary again to open. None of these cases admit of the conclusion reached in 37 Hun, 377, supra, and they justify only the " taking of earth or soil which the process of construction or repair requires and neces- sarily compels to be removed." No case in this State goes further. The court in City of New Haven v. Sargent, (38 Conn. 50) speaks of the soil taken as that " which must neces- sarily be removed by some one in grading the street." Bissell V. Collins (28 Mich. 277) goes further because " the major por- tion of the gravel was taken from below the level of the street." The powers of the highway officers are co-extensive with the territory included in the public way, and they may work and improve every part and parcel of it at pleasure, being only re- sponsible for a wanton or malicious injury to the rights of ad- jacent owners. It may very well be that in some places, and especially in thickly settled villages, the whole width of the street requires regulation and improvement, not only for the public convenience, but to avoid danger to teams of travellers on account of some irregular formation or roughness of surface. Indeed the whole breadth may be required, in the judgment of the commissioner, for the convenience of the public travel. {Q-raves v. Otis, 2 Hill, 466.) Therefore the highway officers were held to have power to cut down an eminence in a public street and sidewalk, whereby the plaintiff's store was left some six or eight feet above the level of the sidewalk adjacent to premises. {Id.) Peepoemance of Highway Labor. 177 Commissioners and overseers of highways acting in the pro- per discharge of their duties, and without malice, may grade, level and improve streets and highways, and, if they exercise proper skill, are not answerable for consequential damages ■which may be sustained by those who own lands bounded by the street or highway. And this is so whether the damage re- sults either from cutting down or raising the street ; and al- though the grade of the street has been before established, and the adjoining land owners have erected buildings with refer- ence to such grade. QMadcUff's Executors v. Mayor of Brooklyn, 4 N. Y. 195, and cases.') They may, for the purpose of grading a highway, cut down a hill or raise an embankment in the road adjacent to the premises and dwellings of citizens and if those citizens suffer expense and inconvenience thereby, no action can be maintained for the injury. (^Benedict v. Groit, 3 Barb, 459 ; Graves v. Otis, supra ; Anderson v. Van Tassel, 53 N. Y. 631.) But if the power be exercised in an unrea- sonable manner, or wantonly and maliciously, the rule is other- wise. (7cZ.) If an action against an overseer of highways, for causing breaks to be made across the road, on a hill, whereby the plaint- iff was thrown from his wagon and injured, he is not allowed to show that others were injured at the same place. (^Sher- man V. Kortright, 52 Barb. 267.) An overseer has no right, in making repairs upon a high- way to change a natural watercourse. (Moran v. McClearn, 63 Barb. 185.) Nor can he so relieve his own premises, at the expense of the public. {Kellogg v. Thompson, 66 N. Y. 88 ; Burbank v. Fay, 65 N. Y. 57.) But commissioners in grading highways are not bound to provide a channel for the drainage of surface-water, and are not liable for injuries resulting from their omitting so to do (^aould V. Booth, 66 N. Y. 62, Acker \. Town of New Castle; 48 Hun, 312 ; 15 N. Y. St. Bep. 894. See also cases collected in 19 Moak Eng. Bep. 8.) In the case of Badcliff's Executors v. Mayor of Brooklyn, supra, it appeared that the plaintiff's testator was seized of a lot of land in Brooklyn, with a dwelling-house, out-houses and gar- den thereon, adjacent to the East river, but a considerable distance above it, which were sustained by a natural bank 12 178 The Law op Highways. having a gradual descent to the river; that defendants, acting in the capacity of commissioners of highways, in grading and level- ing the street, dug away such natural bank, whereby the premises were undermined, and a part of the inclosed grounds, together with the shrubbery, fixtures, fences, etc., fell and were wholly lost, etc., it was held that no action could be sustained. So in Fish v. Mayor of Rochester (6 Paige, 268), where the defendants, as commissioners of highways, were proceeding to level and grade the street in front of plaintiff's dwelling-house and store, and to dig down and remove the earth therefrom, by which proceeding the plaintiff alleged his premises would be irreparably injured, it was held that no action would lie, and an injunction was refused. It has been decided in Maine that a surveyor — whose office is similar to that of overseer in this State — has no authority to appropriate land not lying within the limits of the road. That he has no authority to make a ditch through adjoining improved lands, for the purpose of having water turned off from the highway however important to the public it may be to have it done ; and that for such an act the owner of the laijd may maintain trespass. (^Plummer v. Sturtevant, 32 Maine, 325.) Where the corporation of the city of New York, in whom are vested the powers and duties of commis- sioners of highways, in grading the public streets raised the same several inches without making any drain or sewer, there- by obstructing the former flow of water from the plaintiff's premises, so that the water ran from the street, and from the adjacent lots, upon such premises, and stood there for several months, the court held that no action could be maintained. Bbardsley, J., who delivered the opinion of the court, said : " The corporation of New York had an undoubted power to raise, pitch, grade and make the street and avenue, as was done in this instance ; and it was conceded on the trial of the cause that the proceedings for these purposes had been regular. What was done it was therefore lawful to do ; and if the plaintiff was thereby incommoded, it was damnum absque in- juria, and gave her no right of action against those who had only exercised a legal power vested in them for the public con- venience and welfare. It would, indeed, be remarkable if such an act would, in any case, subject a party to an action ; and I think the law is not chargeable with so gross an absurdity. Performance op Highway Labor. 179 The 'plaintiff does not allege that any part of her land was taken for the street or avenue ; but one portion of her com- plaint is that she was injured by making the street and avenue on land which bounded two sides of her lot. She certainly may thus have sustained some damage, for more or less inconveni- ence results to individuals in every case of this description. It is so in the opening of new highways, and in the construction of canals and other public works ; but if those on whom powers for such purposes are conferred do not exceed their jurisdiction, they are not responsible for collateral consequences to individ- als. As was said by Lord Kbnyon in a case which, in prin- ciple, is like the point now under consideration : ' If this action could be maintained, every turnpike act, paving act and naviga- tion act would give rise to an infinity of actions. If the legisla- ture think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power the parties are without remedy, provided the commissioners do not exceed their jurisdiction. But it does not seem to me that these com- missioners, acting under this act, have been guilty of any excess of jurisdiction. Some individuals suffer an inconvenieuce under all these act of Parliament ; but the interest of indi- viduals must give way to the accommodation of the public' (^Grovernor, etc., of Oast Plate Manufacturers v. Meredith, 4 Durn. ^ East. 794.) In the same case Buller, J., observed : * There are many cases in which individuals sustain an injury for which the law gives no action ; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the king's enemies. The civil law writers indeed say that the individuals who suffer have a right to resort to the public for satisfaction ; but no one ever thought that the common law gave an action against the individuals who pulled down the houses, etc. This is one of those cases to which the maxim applies, salus populi suprema est lex. If the thing complained of were lawful at the time, no action can be sustained against the party doing the act. In this case ex- press power was given to the commissioners to raise the pave- ment ; and not having exceeded their power, they are not liable to an action for having done it.' (See &ls,o Sutton y. Clarke, Q Taunt. 29; Eall v. Smith, 2Bing. 156.) So, this corporation having power to make the street and avenue along the plaint- 180 The Law of Highways. tiff's land, and not having transcended its authority in what was done, is not liable to an action at the suit of the plaintiff for any damage she may have sustained." ( Wilson v. Mayor of New York, 1 Benio, 595.) But it is clear, from the authorities cited above, that if the highway officers are actuated by malice or ill-will in making alterations in the highway by which, another is injured, they are liable. So municipal corporations are liable for any care- lessness or unskillfulness in repairing or altering a highway whereby injuries are sustained. Thus, where trustees of an incorporated village undertook to construct a platform to connect a sidewalk with a bridge, and while the work was in progress, carelessly left an uncov- ered space therein during the night, without placing any guard or signal to warn passengers of such opening, the corporation was held liable to one who had fallen through such opening and sustained injuries thereby. ( Weet v. Trustees of Brochport, 16 N. Y. 161.) So where a corporation caused a culvert to be constructed to carry off the water of a natural stream, and a freshet having occurred, the culvert, in consequence of its want of capacity and the unskillfulness of its construction, failed to discharge the waters, so that they were set back upon the factory of the plaintiffs and injured their property situated therein ; it was held that the corporation was liable for the damage. Roches- ter White Lead Co. v. Rochester, 3 N. Y. 463.) See further as to the liability of commissioners, towns and incorporated cities and villages, ante, page 85, et seq. Where the road crosses a natural stream, a bridge or cul- vert is to be constructed so as notto obstruct the current. So, if a highway is laid out along a watercourse, comprehend- ing it in whole or in part within the limits of the highway, and it becomes necessary to work the road to its entire width, it must be done by constructing a roadway over the channel, so as not to obstruct the flow of the water. (^People, ex rel. Wil- liams, V. Kingman, 24 N. Y. 559 ; Thompson v. Allen, 7 Lans. 459.) But it is held in (^Mairs v. Manhattan R. E. Ass'n, 47 N. Y. Super, Ct. 31,) that one who removes the sidewalk, curb and gutter from a public street, e. g. in making excavation for building, is bound to supply as good a conduit for surface Peefoemance of Highway Laboe. 181 water as he takes away, and is liable for injury done from his omitting to do so. 10. Change of System of Woeking Highways. For such towns in this State as may wish to change the mode of working the highways from the system as set forth in 1 R. S. 506, it is provided that, upon the written request of twenty-five taxpayers 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 meeting upon the ques- tion of changing the manner of working the highways. Such vote shall be by ballots, upon which shall be written or printed respectively for " changing the mode of working the highway," and " against changing the mode of working the highways." The ballots shall be deposited in a separate box by themselves, be counted by the inspectors of election or other officers pre- siding 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 caus- ing a minute of its action to be entered by the town clerk in the town records. (Laws 1873, chap. 395, § 2, as amended by Laws 1875, chap. 341, § 2.) It shall be lawful for any town voting in favor of such change to raise by tax, to be levied and collected the same as any other tax, for the repair of its highways an annual sum of money which shall be at least equivalent to one-half the value of the days' works theretofore assessed at the commuta- tion prices ; but in any town in which there may be an incor- porated village, which forms a separate road district, and where- in the roads and streets are maintained at the expense of such village, all property within such village shall be exempt from the levy and collection of such tax for repair of the highways of such town ; and the assessors of such town are hereby required to indicate on the assessment-roll the property included in such incorporated village, in a column separate from that containing a list of the property in the town not included in such village, and shall also place on the assessment-roll the names of all per- sons liable to poll-tax who are not residents of such village, and the board of supervisors are directed to levy a tax of one dollar 182 The Law of Highways. on each person liable to poll-tax as thus indicated, but this act shall not apply to assessments made for damages and charges for laying out or altering any road, or for erecting or repairing any bridge in such town ; nor to assessments made under the proyisions of section one of chapter one hundred and three of the laws of one thousand eight hundred and fifty-eight, or the acts amendatory thereof. (Laws 1873, chap. 395, § 3, amended Laws 1874, chap. 169 and Laws 1889, chap. 259.) The amount of such tax shall be determined by the com- missioner or commissioners of highways and the board of town auditors, or a majority of them who shall certify the same to the board of supervisors the same as any other town charges. (Laws 1873, chap. 395, § 4, as amended Laws 1889, chap. 259.) Board of Commissioners. — The commissioners of highways shall constitute a board to be known as " the board of high- way commissioners of the town of ." They shall elect one of their number president, and in the event of their failure so to do, the commissioner longest in office shall be entitled to that position. The president of said board is hereby authorized to receive, and the collector of taxes is directed to pay, the moneys collected for highway purposes. Before receiving such moneys the said president shall execute to the supervisor of the town a bond with sureties in penalty of double the sum which may come into his hands, conditioned for the faithful accj)unt- ing of such moneys ; the said bond to be approved both as to its form and sufficiency, by the supervisor of the town. ild. § 5.) Powers of Board. — The said " board of highway commis- sioners " shall have full power to do any and all acts necessary to the prompt and effectual repairs to the highway. They may divide or consolidate the road districts in their town ; may give out the work to the lowest bidder, or contract, or appoint an overseer to do the same. They may contract for the work on some districts, and have that on others done by days' labor, as they think best. Their pay and general duties shall remain the same as now provided by law. If any town has but one high- way commissioner, the powers and duties hereby conferred on the board of highway commissioners is hereby conferred on such highway commissioner. (Laws 1873, ch. 395, § 6. This Pekpokmance of Highway Labor. 183 section was amended by Laws 1881, chap. 644, and this Law of 1881 repealed by Laws 1883, ch. 196, which leaves it as above.) To render accounts.— At the annual meeting of the board of town audit the said commissioners of highways shall render a detailed account of the moneys received and the manner in which they have been expended, which account must be verified by oath. (^Id. § 7.) To lay out road districts— It shall continue as heretofore the duty of said commissioners of highways to lay out the several roads in their town in districts, and in the application of the road money shall have due regard to the interests of all sections. (Id. § 8.) When change to take effect. — In any town which may have voted or may hereafter vote to change the system of working and repairing the highways as herein provided, such change shall not take effect until the next annual meeting of the board of supervisors after the town meeting at which it was decided to make such change; and until such annual meeting of said board of supervisors the former system of repairing highways shall remain in force in said town. (Added to Laws 1873, ch. 395 as § 10, by Laws 1888, ch. 240.) Return to original system. — Upon the written application of twenty-five tax payers of any such towns, it shall be the duty of the justices, or other officers who preside at the town elec- tion of any such town, to submit to the electors, and the elec- tors of any such town may vote at the next regular annual town meeting upon the question of returning to the said for- mer system of working and repairing the highways. Such vote shall be by ballot, upon which shall be written or printed respectively, " for returning to the system of working and re- pairing the highways provided for in article second and article third of chapter sixteen, title one, part one of the Revised Statutes," and, " against returning to the system of working and repairing the highways provided for in article second and article third of chapter sixteen, title one, part one of the Revised Statutes. (Laws 1879, chap. 31, as amended Laws 1381, chap. 120.) 184 The Law op Highways. How vote taken. — The ballots shall be deposited in a sepa- rate box by themselves, be counted by the inspectors of elec- tion, or other of&cers presiding at such town election, and if a majority of the electors shall vote in favor of returning to said former mode, the town voting therefor may avail itself of the privileges of this act, and of said article second and arti- cle third of chapter sixteen, title one, part one of the Revised Statutes, upon causing a minute of its action to be entered by the town clerk in the town records. In any town which may have voted or may hereafter vote to return to the system of working and repairing the highways as herein provided, such change shall not take effect until the next annual meeting of the board of supervisors after the town meeting at which it was decided to make such change ; and until such annual meeting of said board of supervisors the former system of re- pairing highways shall remain in force in said town. (Id.') Laying out Highways. 185 CHAPTER Vm. LAYING OUT HIGHWAYS. 1. Commissioners to lay out. 2. Application. 3. Survey. 4. Order to be posted. 5. Consent of owner, when necessary. 6. Oath of freeholders, when neces- sary. 7. How laid out across railroad tracks. ■8. Between different towns or coun- ties. S. Width of roads. 10. Eoads along division lines. 11. Eemoval of fences. 12. To he opened and worked within six years. 13. What roads are public highways. 14. When turnpike xoads become highways. 15. Special commissioners to lay out roads. 16. Papers, when and where filed. 1. Commissioners to Lay Out. A highway can be created only by laying it out and record- ing it under the laws of this State, or by a public use for twenty years or more. Working a private way as a highway does not make it such. (Miller v. G-arlooJc, 8 Barb. 153.) '' The commissioners of highways shall have power, in the man- ner 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 highways as shall appear to them, on the oaths of twelve freeholders of the same town, to have become unneces- sary. (1 a. S. 502, § 2). One who has a title to real estate is a freeholder, irrespective of the amount or value of his interest therein. (People ex rel. Shaw v. Scott, 8 Sun, 566.) In laying out a highway the commissioners exercise a special and limited jurisdiction, and although it may be presumed, until the con- trary appears, that they have acted legally, their acts may be im- peached by showing that they have exceeded their powers. If they have no jurisdiction, as where they lay out a road through a yard or building, without the owner's consent, their order is void, and is not helped by an affirmance on appeal. (^Ux parte Clapper, 3 Hill, 458; Miller v. Brown, 56 N. Y. 383.) A commissioner can lay out a road only by order as prescribed by statute. His promise to make such order is not enough, and 186 The Law op Highways. will not estop the town. {Matter of Shawangunk Bridge, 20 Week. Dig. 503; 3 East. Bep. 209.) That a commissioner owns land taken, does not invalidate proceedings. (^People ex rel. Tompkins v. Landreth, 1 Sun, 544.) Two commissioners may act. — Any two commissioners of high- ways of a town may make the order laying out a highway, provided it shall appear in the order filed by them that all the commissioners of highways of the town met and delib- erated on the subject embraced in the order, or were duly noti- fied to attend a meeting of the commissioners for the purpose of deliberating thereon. (1 B. S. 525, § 125.) An order laying out a highway through improved, inclosed or cultivated lands» signed by only two of the commissioners, and not reciting that the third participated in the proceedings, or was notified to do so, is void. (^People ex rel. Ottman v. Hynds, 30 N. Y. 470 ; Stewart v. Wallis, 80 Barb. 344, Chapman v. Swan, 65 Barb, 210.) The order must be suflEicient .on its face. Its defects cannot be helped out or supplied by parol. (JcZ.) Where the third commissioner did not participate in the proceedings, the order must show that he was duly notified to attend the meet ingfor the purpose of deliberating on the subject of laying out the road. A simple allegation that he had been duly notified to- aWewc? is insufficient. {Fitch r. Commissioners of Kirkland, 22 Wend. 132.) The survey must be incorporated in the order, and the record of the laying out of the road may be impeached by any person interested in it. QPratt v. People, 13 JETun, 664.) An order purporting to accord with a survey recorded at the same time is a substantial compliance with the statute. (McCarthy v. Whalen, 19 Hun, 508 ; Van Bergen v. Bradley,. 36 K r. 816.) 2. Application. 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 application shall be in writing, addressed to the commissioners, and signed by the person ap- plying. (1 B. S. 513, § 54.) So 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 Laying out Highways. 187 highways of the town in which the lands are situated to alter, discontinue, or to lay out any road through the same. (Laws 1836, chap. 122.) The word " same " in this act refers to the town and not to the lands of non-residents ; so that a non-resident owning lands in a town, and assessed for highway lahor, is placed on equal grounds with residents as to application. {People ex rel. Wait v. Eggleston, 13 How. Pr. 123.) Although the appli- cation does not state that applicant is liable to be assessed for highway labor, the defect will be deemed cured on certiorari to review proceedings, by an allegation of the fact in the re- turn. (1883, People ex rel. Brookway, v. Whitney, 17 Week. Dig. 456.) (For form of application, see Appendix No. 42.) It is no objection to proceedings for laying out a highway that they are taken on the application of a person not liable to as- sessment for highway labor. The commissioners may even proceed to lay out a road on their own motion, and without^ application by any person. {Marble v. Whitney, 28 N. Y. 297 ; People ex rel. Aspinwall v. Supervisors of Richmond, 20 N. Y. 252 ; G-ould v. Glass, 19 Barb. 179 ; see contra, Harring- ton V. People, 6 Barh. 607.) It is not necessary that the applica- tion should be in writing. (McCarthy v. Whalen, 19 Hun, 503.) It may lawfully include a portion of a highway already in ex- istence, and may for a portion of its distance be laid upon, and identical with an existing highway. {People ex rel. Thomas v. Com'rs of Milton, 37 iV. Y. 360.) But the statute does not authorize an application to lay out an old road as a public highway. {Christy v. Newton, 60 Barb. 332.) Notice of Application.— Where the application is for a road through inclosed, improved or cultivated land, notices in writing must be posted up at three of 'the most public places of the town, specifying, as near as may be, the route of the proposed 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 examine the ground. Such notices are to be posted up at least six days before the time specified for the meeting of the freeholders. (1 B. S. 514, § 59.) In laying out such road the commissioners are not limited to the route specified in the application, but may, in the exercise of a sound discretion, make such variations as 188 The Law of Highways. tliey think proper. The departure, however, from the route of the proposed highway must not be so great as to induce the belief that the preliminary proceedings have been wholly disre- garded ; the general course of the road must be preserved. {Halloch V. WooUey, 23 Wend. 328 ; MoOarthy v. Whaleni 19 Hun, 503 ; for form of application and notice, see Appendix Nos. 42, 46.) A notice by an applicant for laying out, given to the commissioners and other oiScers but not specifying the time for drawing the jury, held sufficient, where the drawing had been regularly made. (1874. People ex rel. Ludlum v. Wallace, 4 Supm, Ot. (T. ^ C.) 438.) 3. Stjevey. By Laws of 1875, chap. 482, § 1, sub. 11, the boards of supervi- sors of the several counties are empowered to authorize and direct the highway commissioner or commissioners of any town to cause surveys to be made at the cost of the town, of any or all highways in such town, and to make a complete and sys- tematic record thereof or to revise, collate and rearrange ex- isting records of highways and to correct and verify the same by new surveys, and to establish the location of highways by suitable monuments whenever such commissioner or commis- sioners may deem expedient. Such records so made or re- vised, 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 rights pending in any judicial proceedings commenced prior to the deposit with the town clerk of such new or revised records. Whenever the commissioners of highways shall lay out, alter or discontinue any road, either upon application to them or otherwise, they shall 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 H. S. 613, § 55) ; but if it is attached to it, that is sufficient. All the commissioners should sign the order. ( Van Bergen v. Brad- ley, 36 JSr. Y. 316 ; Pratt v. People, 13 Eun, 664 ; People ex rel. Dann v. Williams, 36 N. T. 441 ; for form of survey and order, see Appendix No. 44.) It is a sufficient survey to run a single line which will be intended as the center of the road, Laying out Highways. 189 unless something appears on the record of the commissioners to show that such was not their intention, and a specification of the quantity of land which the road will take from each propri- etor over whose grounds it passes, will ascertain its width. {People ex rel. Hanover v. Commissioners of Redhook, 13 Wend. 310 ; People ex rel. McFarland v. Commissioners of Salem, 1 Cow. 23. ) The fact that but two of the commissioners of highways were present when a proposed road was surveyed, and signed the survey, is not of itself a fatal objection to the val- idity of their acts. In the absence of evidence to the con- trary, it will be presumed that the third commissioner met and consulted with them in reference to their proceedings, at or before the time the paper was signed. (Tucker v. Rankin^ 15 Barb. 471.) The survey is a mere ministerial act, not re- quiring the presence of the third commissioner to give val- idity to an order laying out and establishing the highway. (Marble v. Whitney, 28 N. Y. 297. ) The clerk, in recording the survey, acts as ministerial officer, and he cannot refuse to record it because of some supposed omission or mistake in the name of one of the commissioners, or because the commissioners had not taken the oath of office and filed a certificate of the oath. The clerk may be compelled by mandamus, to record the survey. (People ex rel. Bush V. Collins, 7 John. 549.) All roads or highways laid out by commissioners since De- cember 31, 1805, and prior to April 14, 1826, are confirmed, provided such commissioners shall have caused a survey to be filed and recorded. (Parker v. Van Houton, 7 Wend. 145. ) 4. 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 hereinafter limited for appealing from any such order shall be computed from the time of recording the same. (1 B. S. 513, § 56 ; see form of order. Appendix No. 44.) 6. Consent of Owner, when Necessary. No public or private road shall be laid out through any or- 190 - The Law op Highways. chard 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 been cultivated for four years or more before the laying out of such road. Nor shall such road be laid out through any buildings or any fixtures or erections for the pur- pose of trade or manufactures, or any yards or inclosures neces- sary to the use and enjoyment thereof, without the consent of the owner. 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 prem- ises, certify to the county judge that the public interest will be greatly promoted by the laying out and opening of such road, the commissioners shaU 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 hear- ing of said matter ; if the county judge shall affirm the decision of said commissioners they shall present the order of the county judge for confirmation to the supreme court, at a general term, in the judicial department in which said premises are situated upon the usual 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 said court shall confirm the said order, it shall then be the duty of the commissioners to proceed and lay out and open said road, as in other cases. (1 R. S. 514, § 57, as amended Laws 1873, chap. 773.) Section 57 as amended by chap. 773, Laws 1873, and section 60 as amended (nub nom., § 75) by chap. 696, Laws 1881, are not inconsistent and highways cannot be laid through buildings or yards unless authority is acquired pursuant to § 57. (Matter of James, 43 Sun, 67.) There must be a retrial of the ques- tion before the county judge if the matter is there contested by the owner, (iif.) The restrictions on the powers of the commissioners apply only to cases where the owner withholds his consent. The commissioners may lay out a road through any kind of prop- erty with the consent of the owner. {Lansing v. Caswell, 4 Faige, 519 ; People ex rel. Bowen v. Jones, 63 K Y. 306.) The commissioner does not acquire jurisdiction to make an order laying out a road until his certificate as to public benefit has been affirmed by the county judge and such affirmation has been confirmed by the general term. (1882. People ex rel. Ban- Laying out Highways. 191 rer v. Temple, 27 Hun, 128 ; People ex rel. Small v. Molinson, 8 K F. St. Bep. 840.) No jury is necessary under this law to pass upon the neces- sity of the road. (^People ex rel. Small v. Robinson, 8 N. Y. St. Rep. 840 ; People ex rel. Wolford v. Strevell, 27 Hun, 218.) It is the clear duty of the commissioners to examine the property affected by the proposed highway, and from that in- spection and the evidence given on the hearing before them to determine and certify whether locating the proposed high- way through the buildings, yards or inclosures, will greatly promote the public interest. If they so certify they are re- quired to give the owner five days' notice of a hearing before the county judge. The section does not require them to serve any papers on the owner, except the notice of hearing ; nor upon what papers, etc., the county judge is to hear the matter, but it has been held that the county judge should determine the question on the certificate, and upon such evidence as may be taken by him, or in other words, that there should be a re-trial of the question if the landowner contests. If the county judge affirms the decision, they must give the landowner eight days' notice of the presentation of the county judge's order to the General Term, of the department in which the land is situated, for confirmation. The hearing in the General Term should be on the evidence taken, and proceedings had before the county judge. Affidavits verified since the hearing before the county judge will not be considered. {Matter of James, 43 Hun, 67.) Consent. — The oral consent of the owner to the laying out of a highway through his orchard, garden, fixtures, etc., is valid, provided it be acted upon immediately by the commis- sioners, and the road laid out before any revocation of such consent. But such consent is revocable, and is revoked by a sale and conveyance of the land in good faith before the road is laid out. (People ex rel. Bodine v. Goodwin, 5 N. Y. 568 ; McCarthy v. Whalen, 19 Hun, 503.) Although such consent may be revoked, it must be done before the road is laid out. If the commissioners have acted on the faith of the verbal consent, by laying out the road, the owner will be estopped from denying the legality of the act. iMarhle v. Whitney, 28 N. Y. 297.) Where such consent has been given ^nder a 192 The Law of Highways. mistake of law merely, no relief can be given, even on a bill in equity, filed for that purpose. (i«^.) And consent may be inferred from the acts and conduct of the owner. Thus, if he appear before the referees on appeal and litigate the question of damages, his consent may possibly be presumed. (Jjansing v. Caswell, 4 Paige, 519. For form of consent, see Appendix No. 55), and written consent is re- quired by section 60, see postea. Orchard. — Commissioners of highways cannot lay out a road through an orchard of four years' growth without the consent of the owner, except as above.* But this restriction does not prevent them from laying out a road through an enclosed field because there are fruit trees in any part of it, however distant they may be from the highway. It does not follow that a whole field is an orchard because there are fruit trees in some part of it. But the road cannot be laid out in such a manner as to deprive the owner, either in whole or in part, of the bene- ficial enjoyment of his fruit trees. (^People ex rel. Seward v. Judges of Dutchess, 23 Wend. 360.) In the latter case there were two apple trees standing in the lane where a road had been laid out, which trees had formerly belonged to the orchard, but had been separated from it by a fence for several years. They stood in an open lane contiguous to the public highway ; they had not been trimmed, and no care had been taken of them for a long time ; and one of the trees was dead and the other nearly so, and in the opinion of witnesses, would never bear fruit again. The lane in which the trees stood had long been a common passage way from the public road to a saw mill, and was used at pleasure by the customers of the mill owner, with the consent of the proprietor of the land; the court held that the locus in quo was not an orchard within the meaning of the statute. So it seems the commissioners have no right to deprive an owner of the benefit of his fruit trees, in an orchard of the growth of four years or over, by an order for the opening of an old road to the width of two rods. (Snyder v. Plass, 28 K Y. 465 ; Snyder v. Trumphour^ 38 id. 355.) If a highway is laid out through an orchard of four years* * Eoads may be laid out through orchards in Westchester and Putnam coun- ties. (Laws 1834, chap. 300.) Laying out Highways. 193 growth, without the consent of the owner, the commissioners of highways, and their agents, will be trespassers if they enter upon the premises to open and work such highway. (^Harring- ton V. People, 6 Barh. 612.) Garden. — To prevent the laying out of a highway through a plat of land, on the ground that it is a garden, it must appear that such land has been cultivated as a garden for four years or more before the laying out of such highway. What con- stitutes a garden is a question of fact. The general definition is, a piece of ground appropriated to the cultivation of herbs or plants, fruits or flowers. (People ex rel. Cooke v. GorrCrs of G-reenhurgh, 57 N. T. 549 ; People ex rel. Stanton v. Horton, 8 Hun, 357.) Building. — Though the commissioners are not authorized to lay out a road through any building without the owner's con- sent, yet the erection or removal of a building upon the pro- posed line of a road, after an application therefor, for the pur- pose of defeating such application, cannot have that effect, but the road may be laid through it. (Qarris v. Commission- ers of Waterloo, 2 Hill, 448.) If the commissioners exceed their jurisdiction by laying out a road through a building, without the owner's consent, the order is void, and is not helped by the affirmance of the judges on appeal. (Uxparte Clapper, 3 Hill, 458.) Fixtures or erections. — Only such fixtures or erections are exempt as are for the purposes of trade or manufacture. Over other fixtures and erections a road may be laid out by the oaths of freeholders, unless such fixtures and erections amount to buildings. The tenter bars of a fulling mill are within the prohibition. (Clark v. Phelps, 4 Cow. 190.) So the incline plane of a railroad, with its ropes and fixtures, are fixtures and erections for the purpose of trade within the statute. (Mohawk, ^c, B. R. Co. v. Artoher, 6 Paige, 83.) So is a barn yard. {Matter of James, 43 Hun, 67.) A ditch or canal, by which water is conducted to a mill, is not a building, fixture or erection within the meaning o| the statute. (People ex rel. 'Williams v. Kingman, 24 N. Y. 559.) The term " erection " implies some structure super-imposed 13 194 The Law of Highways. upon the land; and means sometliing which a highway may be laid through, and which would be rendered useless by the act. (Jc?.) What are or are not fixtures and erections, within the above statute, is a question of fact, to be determined in each case in reference to the situation and nature of the property. Yard or enclosure. — It is not every yard or enclosure which is appurtenant or contiguous to a building, or fixture, or erec- tion for the purpose of trade or manufactures, through which the commissioners are prohibited from laying out a road or highway. It is only such yards or enclosures as are necessary to the use and enjoyment of such building, fixtures or erection. This clause must be construed with reference to the situation and nature of the propertj'- to which the yard or enclosure is appurtenant. (^Lansing v. Caswell, 4 Paige, 519.) In the country, where there is an abundance of vacant land which may be appropriated for the purpose of making roads, and where the public would be equally well accommodated by the laying out of the road through such lands, it would be highly improper for the commissioners of highways to attempt to lay out a road through a court yard or enclosure attached to a dwelling-house or manufactory, although such yard or enclo- sure was not absolutely necessary to its use or enjoyment. But in the case of urban property, where vacant ground for the location of streets is not easily obtained, and where a particular location is frequently a matter of importance to that part of the community for whose accommodation the street or high- way is principally intended, the restriction is more limited. {Id.') It is not necessary that the yard should be protected by fences, but it must be definite in some way, either by an enclo- sure, by visible marks, or by a definite occupation within cer- tain exterior lines. {People ex rel. Williams v. Kingman, 24 M Y. 559.) Thus, where there was unoccupied land adjacent to a saw mill, and belonging to the mill owner, a portion of which was used to deposit logs, and to pile lumber, it was held that the commissioners could lay out a road through such land, but were bound to leave land enough, between the road and th^ mill, out of which the owner could form a mill-yard. (Id.') The extent of the area to be thus left is not a question affect- ing their jurisdiction, but it is a matter which the law has com- Laying out Highways. 195 mitted to their official discretion. It is possible that a clear abuse of their authority might subject them to an action on the case at the suit of the party injured ; but, so far as the public is concerned, the highway thus laid out is a legal high- way, and it is the duty of the commissioners to proceed to open it. {Id.) An extension of a door-yard, after a highway has been laid out, where the yard was of sufficient size before, was held not to bring the case within the prohibition. (1874, People ex rel. Miller V. Comes, 1 Jlun, 530.) The term " yard or enclosure " applies as well to the court yard contiguous to a building or dwelling as to lands adjacent to trade fixtures and erections. (^Clark v. Phelps, 4 Cow. 190; Lansing v. Caswell, 4 Paige, 519.) And where the commis- sioners had laid out a road through the door-yard of a person, leaving his well, cow-shed, and part of his corn-crib in the street, it was held that the proceeding was void on the ground of excess of jurisdiction. {Ex parte Clapper, 3 Hill, 458.) A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine house, etc., neces- sary for its use at a station. {Albany Northern B. M. Co. v. Brownell, 24 N. Y. 345.) Nor across a beach taken as the terminus of a railroad to the sea beach for station purposes. Pros. Park ^ C. I. B. B. Co. v. Williamson, 91 JV. Y. 552.) A highway may be laid along a ditch or canal by which water is conducted to a mill, and it may comprehend such ditch or canal, in whole or in part, within the limits of the road ; but if it is necessary to work the road to its entire width, it must be done by so constructing a bridge or roadway over the channel as not to obstruct the flow of water. {People ex rel. Williams v. Kingman, 24 N. Y. 559.) The commissioners, in laying out a highway, exercise a special and limited jurisdiction, and although it may be pre- sumed, until the contrary appear, that they have acted legally, it is quite clear that their acts may be impeached by showing that they exceeded their power. {Ex parte Clapper, 3 Rill, 458.) The Legislature has power to appoint commissioners to lay out an avenue in a town, although there are already three com- missioners of highways in such town competent to act. Such commissioners are not town officers. {Hanlon v. Supervisors of Westchester, 57 Barh. 383.) 196 The Law op Highways. Soldier's monument. — No road or street shall be laid through lands held by a soldiers' monument association, without the consent of the trustees thereof, except by special permission of the Legislature. (Laws of 1866, chap. 273, § 6; as amended Laws 1888, chap, 299, § 6.) G-raveyard. — No private or public road shall be laid out or constructed upon or through any graveyard or burying ground in this State, unless the remains therein contained are first carefully removed and properly reinterred in some other bury- ing ground, at the expense of the persons desiring the road, (Laws 1868, chap. 843.) Cemetery associations. — By chapter 138, of the Laws of 1847, as amended by chapter 31, of the Laws of 1877, ceme- teries are exempt from taxation, and during the time they shall remain dedicated to the purposes of a cemetery, no street, road, avenue or thoroughfare shall be laid out through such cemetery, or any part of the lands held by such association for the purposes aforesaid, without the consent of the trustees of such association, except by special permission of the Legislature of the State. 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 highways 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 purposes^ and shall not apply to lands within the corporate 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, chap. 24.) The towns of Urbana and Wayne, Steuben county, are ex- empted from the operations and provisions of the above law. (Laws of 1883, chap. 99.) In counties having more than 300,000 acres of unoccupied land. — The board of supervisors of any county in this State containing more than three hundred thousand acres of un- occupied and unimproved forest lands, in addition to the powers now possessed by said board, is hereby authorized to Laying out Highways. 197 establish separate highway districts in such county; such highway districts to be established only upon the application of the owners of more than one-half of the non-resident lands to be included therein. (Laws of 1880, chap. 175.) Districts to consist of contiguous tracts. — Any highway dis- trict established under the provisions of this act shall consist of contiguous 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. (Jd.') Commissioners. — Said board of supervisors shall have power to appoint a commissioner 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 embratjed in any such district, and likewise the manner of expenditure thereof. (^Id.') May he authorized to borrow money. — 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 exceed- ing ten years from the time of making such loan. {Id.) 6. Oaths of Fkeeholdeks, when Necessary. No highway shall be laid out through enclosed, • improved or cultivated land without the consent of the owner or oc- cupant thereof, unless certified to be necessary by the oath of twelve reputable freeholders of the town, in the manner here- inafter provided. (1 R. S. 514, § 58.) Although the number is here stated to be twelve, in the further proceedings under § 60 as amended 1881, chap. 696, if nine of the freeholders drawn appear and certify, etc., it is declared sufScient. The commissioners have no jurisdiction to lay out a road through enclosed, improved or cultivated lands, without either 198 The Law of Highways. the consent of the owner or occupant, or unless certified to be necessary by the oath of reputable freeholders. When speak- ing of improved land it is generally understood to be such as has been reclaimed and is used for the purposes of husbandry, whether appropriated to .tillage, to meadow or to pasture. Al- though the above section used the words " owner or occupant" it can hardly be supposed that where the land is occupied by a tenant, his consent would be sufficient. In such case the consent of both owner and occupant should be obtained. The consent need not be in writing. {Noyes v. Chapin, 6 Wend. 461 ; People ex rel. Martin v. Albright, 14 Alh. Pr. 305 ; 23 How. Pr. 306 ; Clarh v. Phelps, 4 Cow. 190 ; People ex rel. Bowen v. Jones., 63 N.Y. 306.) But written consent is required by § 60 as amended. See page 199.) Freeholders' certificate, — The statute by freeholders, means such as have the legal title to real estate — such as are free- holders without a proceeding in court to make or declare them so ; a legal title to land is requisite. {People ex rel. Ottman v. Hynds, 30 N. Y. 470.) It will be presumed by the court, that the freeholders who certify to the necessity of the road were reputable freeholders. {Olark v. Phelps, 4 Cow. 190.) If there be not a certificate by twelve freeholders, the subsequent proceeding will be void, as where one omits to sign the certifi- cate, or is not a freeholder. {Town ofQ-allatinv. Loucks, 21 Barh. 678; People ex rel. Ottman v. Commissioners of Seward, 27 Barh. 94; People ex rel. Ottman v. Hynds, supra.) But the Laws of 1877, chap. 465 as amended 1881, chap. 696, makes nine a sufficient number. A recital in the order laying out a road, that twelve freeholders have certified as to its necessity, is not conclusive evidence of the fact. That being a juris- dictional fact, is open to contradiction. {People ex rel. Ott- man V. Commissioners of Seward, supra.) The commission- ers have no right to require an undertaking from the applicant to pay all damages sustained through laying out the highway. {Ham v. Silvernail, 7 Hun, 83.) The certificate is not invali- dated by proof that the landholders consented verbally to claim no compensation, but had subsequently revoked that consent. {People Van Rensselaer v. Van Alstyne, 3 Ahh. Ct. of Ap. Dec. 575.) Note.— Under L. 1880, chap. 568, § 88, allowing local improvements in Sing Sing, if the necessity be certified to by twelve freeholders " in the man- Laying out Highways. 199 ner allowed for laying out highways through improved lands, etc. — the statute cei-tificate is sufficient, even though the freeholders were not drawn and as- sembled in the manner required by the highway laws. (1883, Matter of Main 8t. in Sing Sing, 30 Hun, 424.) Notice of application. — Every person who shall apply for the laying out of the 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 proposed 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 examine the ground. Every such notice shall be posted up at least six days before the time specified therein for the meeting of the freeholders. (1 B. S. 514, § 59.) It is not necessary for the applicant to specify courses and distances. That is the business of the commissioners, if they conclude to lay out the road. The application will be sufficient if it give the termini and general route of the proposed road. [People ex rel. Seward v. Judges of Dutchess, 23 TFewc?. 360; Hallock V. Woolsey, id. 328 ; for form of notice, see Appendix No. 43.) Demand for jury hy owner of land taken. — In all cases of the alteration of any road or the laying out of any new road, except whei-e the same is altered, opened or laid out with the consent in writing of the owner or owners of the land 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 highways thereof, asking for a jury to certify to the necessity of the same, and specifying a time not less than ten nor more than twenty days from the time of serving 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 occupants 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, m the manner prescribed by law for the service of legal notices. 200 The Law of Highways. (Laws of 1877, chap. 465 as amended 1881, chap. 696; amend- ing 1 E. S. 514, § 60 ; for form of notice, see Appendix No. 47.) The error in numbering the paragraph as § 75 in above laws, is corrected to § 60 by Laws 1885, chap. 267, § 11. Drawing of jury. — At the time and place mentioned the town clerk of such town having received 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 his town whose names are on the lists filed in said town clerk's office, of those selected and returned as jurors, pursuant to article second, title four, chapter seven, part third of the Re- vised 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 jus- tice of the peace or' commissioner, draw therefrom the names of twelve persons, and shall make a certificate of such names and the purposes for which they were drawn, and shall deliver the same to the person asking for the jury, and the applicant for such jury shall pay to the said town clerk one dollar for drawing such jury. (Laws 1877, chap. 465, as amended.)* The fact that the town clerk is a brother of one of the signers of the petition does not disqualify him from drawing the names. (1885, People ex rel. Downey v. Dains, 38 JSim, 43.) One who signed the application for the road is a competent juror and is not intended by the phrase " interested in the lands." (1886, Buckley v. Drake, 1 JST. Y. St. Hep. 678 ; 1885, People ex rel. Downey v. Dains, 38 Run, 43.) Any error in the detail of preparation of the box, not pre- judicial to owners of the lands, and not depriving them of any substantial right will not destroy the jurisdiction of the com- missioners to lay out. (1887, People ex rel. Beardslee v. Dolge, 12 N. T. St. Rep. 481 ; 45 Hun, 310.) A failure to exclude from the box the names of parties re- quired by the statute to be excluded would not deprive the commissioners of jurisdiction, if, notwithstanding the error, no person's name who was interested in the real estate to be taken or of kin to the applicants was drawn. (lA^ * QuEBT.— As Part III., ch. VII., Til. IV. of the Revised Statutes was re- pealed by Laws of 1877. ch. 417, what lists are referred to ?— Ed. Laying out Highways. 201 It is not error to omit to place in the box the names of per- sons who had signed the application for the highway or who were of kin to the relator within the sixth degree, where the relator was not prejudiced, thereby. (1885, People ex rel. Hdivards v. Potter, 36 Hun, 181.) Nor is the omission of a name by clerical mistake a ground for relief. (Idl) It was held in Matter of Tiffany (24 N. Y. St. Rep. 906,) that, where twelve names were drawn, eleven of whom after- Tvards acted and certified to the necessity of a highway, and one of the men so drawn, but who took no part in the proceed ing, was not, at the time of the drawing, a resident of the town, & complete jury was never obtained. Summoning jury. — The applicant for such road or alteration of a road on receiving such certificate, shall 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 sum- moned 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 of the 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 designated in such summons, the person or persons so neglecting or refusing to attend, shall be liable, unless a suificient excuse be established, to pay a fine of five dollars, which shall be sued for and- recovered by the •overseer of the poor of said town, and such fine shall be applied by them to the support of the poor thereof. (Laws 1877 as amended 1881, chap. 696 ; see Commissioners of Carmel V. Judgei of Putnam, 7 Wend. 264.) The term " kin " includes •all related within the ninth degree. (^People ex rel. Flint v. Cline, 2SBarh. 197 ; For form of summons, see Appendix No. 48.) Number, etc. — If nine or more of the persons, who shall Lave been so drawn, not interested in the lands through 202 The Law of Highways. which the road is to pass, 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 highway 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 administered to such per- sons, by any other justice of the peace or notary public of the county ; and the justice of the peace or notary public swear- ing such jury shall receive therefor from such applicant the sum of two dollars. Such jury shall theii personally examine the route of such highway, and shall hear any reasons that may be offered for or against such proposed route or altera- tion. If nine or more of the number thereof shall be of opinion that such highway or alteration of a highway is neces- sary and proper, they shall ma"ke and subsci'ibe a certificate in writing to that effect, which shall be delivered to the commis- sioner or 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. (^Id. For form of certi- ficate, see Appendix No. 49.) This does not require the certification of the first twelve names drawn. If, by inadvertence or oversight in the first instance, the names of interested or disqualified persons have been deposited in the box they should not be included in the certificate. (1883, Olark v. StiUman, 18 Week. Dig. 232.) The sole owner of lands being present at drawing of jury and assenting, waives irregularities. (/J.) Where the jury had to travel on foot a long distance to view the lands to be taken, were five miles from a hotel and had had no dinner, the fact that one of the applicants for the road gave a general invitation to the jurors to take dinner at his house, which was accepted, is no reason for annuling the pro- ceedings where there was no evidence of any improper motive in his so doing. (1887, People ex rel. Oronk v. Weld, 6 JV. Y^ St. Rep. 173.) Fees. — Every juror shall be entitled to receive for his services as such juror the sum of one dollar and fifty cents, to be paid by such applicant, and the constable who may summon such Laying out Highways. 203 jury, shall receive therefor from such applicant therefor, ten cents for summoning each juror summoned, and ten cents a mile actually and necessarily travelled 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 the cost of such proceedings as hereinbefore provided shall be a charge against such town in favor of such applicant. And it shall be the duty of the commissioner or commission- ers 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 date of such certificate the commissioner or commissioners of such town must proceed to lay out or alter such highway as determined by such certi- ficate in the manner provided for by Article four of Chapter sixteen of the first part of the Revised Statutes. (Laws 1877, as amended chap. 696.) Certain towns are exempted from this law. (Laws 1880, ch. 114.) See also as to Sing Sing (^Matter of Altering Main St., 98 JSr. Y. 454.) The commissioners have no authority to act until nine free- holders certify to the necessity of the road. If there are not that number of qualified freeholders, all subsequent proceed- ings will be void. (See Commissioners of Carmel v. Judges of Putnam, 7 Wend. 264 ; People ex rel. Ottman v. Rynds, 30 N. Y. 470.) See the remarks above, as to the character and qualifications of the freeholders. To examine route. — They shall then personally examine the route of such highway, and shall hear any reason that may be offered for or against laying out the same. If they shall be of opinion that such 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. (1 R. S. 514,. § 61 ; for form of certificate, see Appendix No. 49. See People ex rel. Cronk v. Weld, supra.) The freeholders act upon the notice of the applicant and general description of the route therein, and have no authf)rity to locate it with greater particularity. They determine whether such highway is necessary and proper, leaving the particular route to the decision of those whose business it is to 204 The Law of Highways. lay out the road. {Hallock v. WooUey, 23 Wend. 328 ; People ex rel. Seward v. Judges of Dutchess, 23 Wend. 360.) This certificate should be filed in the town clerk's office. It is a public document, open for inspection by all the inhabitants of the town in which the road is laid out ; and, if it come into the hands of a stranger, not a commissioner of highways, the court will compel him by attachment to file it with the town clerk. ^People ex rel. Palmer v. Vail, 2 Oow. 623.) But omit- ting to file the certificate at the time of making the order laying out a road does not affect the proceedings. (^Qommis- sioners of Bushwiek v. Meserole, 10 Wend. 122.) Notice to occupants. — Before the commissioners shall deter- mine to lay out the highway so applied for and certified, they shall cause notices 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 will meet to decide on the application. The notice shall be served by delivering the same to such oc- cupant, 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 ; for form of notice, see Ap- pendix No. 50.) The notice is to be served on the occupant of the land. An occupant may have very little interest in the premises. It is his duty, however, if a tenant, to notify his landlord. With- out such notice, the commissioners have no authority to pro- ceed, and the fact that the occupant was present and sworn as a witness, will not be deemed a waiver of notice. (^People ex rel. Udick v. Osborn, 20 Wend. 186 ; People v. Judges of Herki- mer, 20 Wend. 186 ; People ex rel. Orandall v. Supervisors of Allegany, 36 How. Pr. 544.) Under the Laws of 1881, chap. 696, a commissioner of high- ways cannot refuse to lay out a highway after a jury has found it necessary, and he must immediately file the certificate of the jury and within thirty days lay out the road. (1883, People ex rel, Brookway V. Whitney, 17 Week. Dig. 456.) Description of road. — The commissioners shall meet at the time specified in the notice, and shall 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 Laying out Highways. 205 and subscribe a certificate of such determination, describing the road so laid out, particularly, by routes and bounds, and by its courses and distance, and shall deposit the same with the town clerk. (IB. S. 514, § 63; for form of certificate see Appendix No. 47.) The determination of the commissioners must be confined to the highway applied for, but they are not limited to the precise route specified in the application ; they may, in the exercise of a sound discretion, make such variations as they may think proper. The departure, however, from the pro- posed route must not be so great as to induce the belief that the preliminary proceedings have been wholly disregarded ; the general course of the road must be preserved. (^Hallock V. Woolsey, 23 Wend. 328 ; Woolsey v. Tompkins, 23 Wend. 324; People ex rel. Cook v. Hildreth, 24 N. Y. St. Bep. 458.) The certificate of the commissioners required by the above section will be suificiently conformable to the statute, if in the description of the road a single line is given with the courses and distances. (Zc?.) Since the statute prescribes the width, an order laying out a road is sufficiently explicit if it specifies the central line. (Lawton v. Commissioners of Cambridge, 2 Gaines, 179 ; People ex rel. McFarland v. Commissioners of Salem, 1 Cow. 23 ; People ex rel. Wells v. Brown, 47 Hun, 459, 14 Y. Y. St. Bep. 457.) If a single line is run, it must be in- tended to be the centre of the road, unless something appears from the record to show that such was not the intention of the commissioners. {People ex rel. Hanover v. Commissioners of Bedhook,13 Wend. 310.) When a single line is run, and a speci- fication given of the quantity of land which the road will take from each proprietor over whose grounds it passes, the width may be ascertained by simple calculation. {Id.) It is also held, that the certificate of the commissioners will be sufficient if it state the termini (that is the beginning and end) of the road, and its route by courses and distances ; it is not necessary that it state the bounds of each course. (Woolsey v. Tompkins, 23 Wend. 324 ; Tucker v. Bankin, 15 Barh. 471 ; Pratt v. People, 13 Hun, 664.) It s advisable, however, that all the bounds and width, as well as the courses, be particularly stated, to avoid uncertainty and controversy. (See Appendix No. 47.) The court will not compel the commissioners by mandamus to follow the certificate and lay out the road where, if laid 206 The Law op Highways. out and opened, the road would be beneficial to the relator alone and not to the general public. (1886, People ex rel. Ashley V. Commissioners of East FisJikill, 4 N. Y. St. Rep. 850.) In determining the course of a highway the objects pointed out by the record at each end of the line direct its course, and control over the specification of the direction according to the compass. The line thus indicated must be taken as the centre line, where there is nothing in the record to the contrary, but where one of such termini is a school house, the highway will be deemed to run along one of its ends. (1883, Johnson v. Loveless, 18 Week. Dig. 49.) Certain towns exempted. — AH towns of this State whose real estate is assessed, as shown by their last assessment-roll, at an average price of less than five dollars per acre, are hereby ex- empted from the provisions of chapter 431 of the Laws of 1875, entitled " An act to amend an act entitled ' An act to amend the Revised Statutes in relation to laying out public roads and the alteration thereof,' " of which the Law of 1877 is an amendment. (Laws 1880, chap. 114, § 1). See People ex rel. Wells V. Brown, 47 Hun, 459, 14 N. K St, Rep. 457) Laying out roads in exempt towns. — The commissioners of highways of each of such towns so exempted from the provi- sions of the aforesaid 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, proceed to the laying out, alteration or discontinuation of the road designated therein, and adjust, in the manner provided in the following section, all 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 dis- continued 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 discontinuation 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. (.Id. § 2.) Laying out Highways. 207 Commissioners to adjust damages. — The commissioners of highways of such town are authorized to adjust with owner or owners of lands upon which roads shall be laid out, discon- tinued or altered as aforesaid, any claim for damages by reason thereof, providing the amount allowed by said commissioners for each of such claims shall not exceed fifty dollars ; and anj^ sum so allowed by said commissioners 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 afore- said, 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 aforesaid 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 a justice court, a jury of six freeholders, residents of such town, not of kin to the party or parties claiming said damages, nor interested 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 time and places stated in said notice to take a view of the road and premises 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 commissioners of highways, shall be deemed a final adjustment of such dam- ages, and the same shall become a lawful charge against the town in which such road is located, to be audited by the board thereof. {Id. § 3. ) Jurors\fees.— Each person acting as juror in the manner pro- vided in the foregoing section shall receive one dollar 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 im- paneling of juries by justice courts and serving of notices there- for, and the same shall be a charge against the town for \yhich such services have been rendered. (_Id. § 4. ) 208 The Law op Highways. / 7. 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 highway across the track of any railroad now laid, or which may her eaf ter be laid, without compensation to the corporation owning such railroad ; but no such street or highway shall be actually opened for use until thirty days after notice of laying out has been served per- sonally upon the president, vice-president, treasurer or a direc- tor of such corporation. (Laws 1853, chap. 62, § 1; see Form No. 51.) The authority given by the act does not extend to lauds taken for depot purposes. QPros. Park and Qoney Island B. B. Co. v. Williamson, 91 N. Y. 552.) A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine house, etc., nec- essary for its use at a station. (^Albany Northern Bailroad Company v. Brownell, 24 iV. Y. 345.) Nor where the ter- minus of the railroad is at a sea beach which is laid out for the purposes of a station, etc. (^Pros. Pk. ^ 0. 1. B. B. Co. v. Williamson, 91 N. Y. 552.) The above statute does not vio- late the constitutional provisions against taking private prop- erty for public use, or impairing the obligation of contracts. (^Id.) The term " track " does not include grounds upon which tracks are laid for storing cars, or exclusively for mak- ing up trains. {Boston and Albany B. B. Co. v. Village of areenbush, 52 K Y. 510.) Bailroad corporations to take road across their tracks. — It shall be the duty of any railroad corporation across whose track a street or highway shall be laid out as aforesaid, imme- diately after the service of said notice, to cause the said street or highway to be taken across their trade, as shall be most convenient and useful for public travel, and to cause all nec- essary embankments, excavations and other work to be done on their road for that purpose ; and all the provisions of the act passed April second, eighteen hundred and fifty, in rela- tion 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. (Laws 1853, chap. 62, § 2 ; 1889, Currier v. Ogdensburgh and Lake Champlain Bailroad Co., 25 N. Y. St. Bep. 87. Layikg out Highways. 209 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 improvements made on such streets or high- ways 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 high- way, 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 limited by this act. {Id. § 3.) A railroad company carrying a highway over the track is bound to keep the approaches thereto in suitable repair. {Peo- ple V. i\r. Y. O. ^ H. R. B. Co., 74 iV. Y. 302.) The railroad corporation has the right to determine where the crossing shall be located, but regard must be had to the convenience of both parties, and where the crossing is built in an inconvenient place for the one requesting it, he has a right of action. ( Wademan v. A. ^ S. It. B. do. 51 N. Y. 568.) The railroad corporation has also a right to determine the question as to the expediency of carrying the road over or under the track, but where it would be impracticable to re- store the highway to any reasonable degree of usefulness by a particular mode of crossing, that mode would not be per- mitted. {Peofle V. N. Y. 0. ^ H. B. B. Co., 74 N. Y. 302.) An equitable action may be maintained by one through whose farm a railroad runs against the acting trustees of the road to compel the erection of fences and the building of a farm crossing. (1880, Jones v. Seligman, 81 N. Y. 190.) A railroad is liable for injuries received by reason of a de- fective crossing. {Matter of Pros. Ph. ^ 0. I. B. B. Co., 20 Hun, 184.) See further on this subject Chap. XIV. § 4. 8. Betweek Diepbkent Towns or Counties. Proceedings in case of disagreement. — When the commis- sioners of highways of any town or officers of any city or vil- 14 210 The Law of Highways. lage, 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 in 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 village in an- other county relating to laying out a new road or altering an old road which shall extend into both counties, the commis- sioners 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. (1 H. S. 516, § 72, as amended by Laws 1881, ch. 513.) Commissioners to he appointed hy judge. — If they cannot agree, then they, or either of them, may certify that they can- not 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 residents of the same town, village 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 persons interested, view the road and take such evidence as they deem proper, and shall have power and authority to decide (subject to the approval 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, and in ease they decide 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 decision to said judge or justice, with their assessment or award of damages, if any, with all convenient speed. (-K.) Laying out Highways. 211 Fees of commissioners. — And the said commissioners shall each receive not exceeding three dollars per day for each day actually employed in such service, to be paid as the other ex- penses are paid, or as the judge or justice may direct. Qd.') Judges may confirm report or send it lack. — 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 laying 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 deci- sions 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. (-Z^.) Highway in two towns. — 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 vil- lage, or city, and a town, a better road than 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 part of the expense thus incurred to the other town or city, on the application^ in writing of either 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 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 justice shall, on notice to all interested parties adjust and ad- judge the amount to be paid to each owner and occupant, the amount of damages, if any, to each having been previously as- certained by commissioners as above provided, and he shall direct the same to be paid by each said town, village or city 212 The Law of Highways. as shall be just and equitable, and the same shall be paid and collected the same as if fixed bj the commissioners of highways of the town, village or city. (-K.) Commissioners to carry out directions of judge. — And the said ofBcers and commissioners shall, in all things pertaining to the laying out or altering of said road, carry out the direc- tions of said judge or justice without any unnecessary delay, and all questions 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. Road upon line of two towns. — ^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 commis- sioners of highways of each of said towns, either upon such line, or as near thereto as the convenience 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. (1 B. S. 516, § 73.) Mow divided into districts, — 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. (1 R. S. 516, § 74.)- Effect of allotment. — Each district shall be considered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the road, and for keep- ing it in repair ; and the commissioner shall cause such high- way, and the partition and allotment thereof, to be recorded in the office of the town clerk in each of their respective towns. (1 R. S. 517, § 75.) Where an encroachment has occurred upon a highway run- ning on the line between two towns, the commissioners of both towns cannot unite as plaintiffs, and bring an action to re- cover the penalty or forfeiture. (Bradley v. Blair., 17 Barh. 480.) Laying out Highways. 213 An agreement under the above provisions, dividing the high- way into districts and alloting them to certain towns, will relieve the town to which the district was not allotted for an injury caused by non-repair, although the injury occurred within its boundary. (1879, Jones v. City of Utioa, 16 Hun. 441.) Recording of allotment is not necessary to give agreement validity, (it?.) If city and town omit to agree annually a former agreement will remain in force, (it?.) Former roads. — All highways heretofore laid out upon the line between any two towns, shall be divided, allotted, re- corded and kept in repair in the manner above directed. (1 B. S. 51T, § 76.) The above provisions were not repealed by chapter 311 of the Laws of 1870, (Jones v. City of Utioa, 16 Sun, 441), which is : Whenever a highway, street or road shall be on the line between a city, town or 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 in the mayor's office in such city, if said highway be on the line between 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 a vil- lage, 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 possible. (§ 10 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 mention- ed, the officers of the city, town or village present may perform the said duty, and when done, the divisions thus made shall be of the same force and effect as if made by the joint action of such city and town, or such city and village, or such town and village. (§ 2.) The statement of the division made pursuant to the provis- 214 The Law of Highways. ions of the first or 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. (§ 3.) 9. Width of Roads. All public roads to be laid by the commissioners of highways of any town, shall not be less than three, rods wide, and aU. private roads shall not be more than three rods wide. (1 B. S, 517, § 80.) This applies only to roads laid out by the commissioners. Where roads are claimed from a user of twenty years, they may be more or less than three rods wide ; the width will de- pend on the actual user. (^Harlow v. Humiston, 6 Cow. 189.) But the board of supervisors have the power 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. (Laws of 1875, chap. 482, (sub.) § 10, as amended by Laws of 1876, chap. 257.) It is not necessary that any petition shall be presented to the board or any notice given to parties interested. (1885, People ex rel. Downey v. Bains, 38 Hun, 43.) It is the duty of the commissioners to order the 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 R. S. 521, § 101.) The jury, which is called to determine the disputed question of an encroachment, have no power to determine the question of the width and boundaries of a highway, according to the prev- ious dedication or use, which has been neither laid out nor ascer- tained 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. ( 1864, Talmage v. Huntting, 29 K Y. 447.) 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 Laying out Highways. 215 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 intersection with the old road, as one in perfect accordance with 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 subsequent order to that effect ; the whole is consistent and harmonious, and entirely within the power of commissioners. (^Snyder v. Plass, 28 N. Y. 466 ; Snyder v. Trumphour, 38 N. Y. 355.) Where the roads are laid out under the statute, they will be deemed to be at least three rods wide, and a person will be liable for an obstruction within that width. ( Walker v. Gay- wood, 31 iV; Y. 51.) The Legislature may appoint commis- sioners for the purpose of widening a designated street in a village. (^People ex rel. Kilmer v. McDonald, 69 N. Y. 362.) 10. 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 join- ing 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 man- ner that other damages are now ascertained and determined in the laying highways on private roads. (Laws 1853, chap. 174, § 16.) 11. Removal op Fences. Whenever the commissioners of highways shall have laid out any public highway, 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 B. S. 520, § 96.) 216 The Law of Highways. If the determination of the commissioners shall li.ive besii appealed from, then the sixty days' notice shall be given afte;- the decision of. the judges upon such appeal shall ha\e been filed in the office of the town clerk of the town. (1 H. S. 520, § 97.) Sixty days' notice must be given before proceeding to open the road, as well where it has been established by an altera- tion made by judges after the same has been laid out by them on appeal, as when a road is originally laid out by commis- sioners. 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. (^Kel- ly V. Horton, 2 Cow. 424 ; for form of notice, see Appendix No. 52.) 12. To BE Opened and Worked Within Six Years. 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 highway 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 proceeding 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, shall cease to be a highway for any purpose. (1 B. S. 520, § 1)9, as amended 1861, chap. 311.) This does not req^uire the road to be opened and worked throughout, and a failure to open and work a portion would not prevent so much as has been opened and worked, placed in a district and used by the public from remaining a high- way. (1886, Vandemarh v. Porter, 40 Hun, 397.) Where an avenue had been invaded by the owners of the fee to an extent to make it impassable in parts, so long as any portion of it remains open and in use, it is not such disuse as to bring it under the above law. (1888, Horey v. Village of Haverstraw, 47 Hun, 356 14 K Y. St. Bep. 498.) The provisions of this act apply to every public highway Laying out Highways. 217 and private road laid out and dedicated to the use of tlie public within the last six years, and to every such highway hereafter to be laid out. (Laws 1861, chap. 311, § 2.) The limitation of the second section prevents the application of that law to a case where a road has been a public highway by user up to 1844, when it was shut up for a period of over .six years, when it was again opened, and has since been used by the public down to the time of the trial in 1865. (Amshry v. Hinds, 48 N. Y. bl.~) And the law does not apply to streets laid out in cities. (1887, Vanderbeck v. Oity of Rochester, 46 Hun, 87, 15 N. Y. ■St. Bep.} The commissioners have six years in which to cause the roads they have laid out to be opened and worked, but if it be not done within that period, their order laying out the road has no legal effect. The road must be both opened and worked. It is not necessary that every part of it should be worked. The statute does not prescribe how well or how Tauch it shall be worked. (^Marble v. Whitney, 28 N. Y. ■297 ; Walker v. Caywood, 31 N. Y. 51 ; Bechwith v. Whalen, •65 N. Y. 322; rev'g 5 Bans. 376.) Where, after the making ■of an order by the commissioners of highways in 1839, for laying out a road, the road was that year opened in fact, and ■during 1839 and succeeding years, was opened and partially worked throughout the routes, and was traveled by the public more or less every year from the time of its being laid out, ■opened and worked, it was held that this was an opening and working of the road within six years, as contemplated by the -statute. (Marble v. Whitney, supra.) The statute does not apply to a case where land dedicated for a street has not been accepted until within six years. .(1876, Bridges v. Wyckoff, 67 K Y. 130.) The statute applies only to those cases where there has been a failure to open and work the road at all, and not where the highway has been in full use for the whole time, though not in all places open to its full width. The failure, by the commis- sioners, to cause a highway, long in use, to be opened to its full statute width for a period of thirty years, does not operate to extinguish the rights of the public to the parcel not so •opened and worked. {Walker v. Caywood, supra.) If the joad has been properly laid out and recorded, though not 218 The Law of Highways. opened to its full width for over six years, the commissioner may proceed to so open it, and may remove the fences thereou — and the fact that the road has been used at a less width than laid out for over twenty years, will not prevent a removal of the fences. {Id.) The statute applies to highways or roads dedicated to the public use by the owner of the soil, as well as those laid out by proceeding in invitum. (1881, Ludlow v. City of Oswego, 25 Em, 260.) 13. What Roads are Public Highways. 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. (1 R. S. 521, § 100.) This but enacts what the common law has already declared,, that roads which have been used as public highways for twenty years, though not recorded, shall be deemed public highways. {People ex. rel. QonCrs of Cortlandville v. Judges of Cortland, 24 Wend. 491 ; see ante p. 44, et seq.) It is the duty of the commissioners to cause such roads to be ascer- tained, described and entered ofrecord in the town clerk's office. (See further on the subject, ante p. 66.) A way which has been neither laid out and entered of record as required by law, nor used as a public highway for twenty- years, is not a highway. A village constitutes a separate highway district, and the trustees have power of highway commissioners. (Laws 1871, chap. 870.) That the public authority allow individuals to place a fence across a highway, with gate to allow the public to pass, is not evidence that the road is divested of its public character. (^Mc- Carthy V. Whalen, 19 Hun, 503.) 14. When Tuknpike Roads become Highways. Whenever any turnpike corporation shall become dissolved or the road discontinued, its road shall become a public highway, and be subject to all the legal provisions regulating highways. (Laws 1838, chap. 262, § 1.) Laying out Highways. 219 Whenever any plank road company shall, for any reason, fail to have its corporate existence extended, or when any judgment of ouster, or dissolution, or any order or judgment restraining the exercise of its former franchises, has been made or rendered against any such company, in any action pending, when the act hereby amended was passed, or shall be hereafter rendered in any action which has been or shall be brought for such purpose, then and in any such case such portion of the line of said road as was built over lands which were originally purchased by said company for that purpose, and was no previously a public highway'', shall not^be used as a public highway nor taken possession or control of by the town in which the same may lie, or be claimed or worked or used as a public highway, until the said town shall pay over to the treas- urer, or receiver or other legal representatives of such com- pany, or to his or its, or their assigns, the principal sum of the amounts paid by said company for the same, as shown by the deeds of conveyance thereof given to said company there- for and any judgment rendered hereafter, as above specified, shall provide accordingly. Such payments shall be made within three months after the expiration of the corporate existence of any such company, or, when any such judgment as above mentioned has been or shall be rendered, then within three months after service of written notice of the entry thereof on the supervisor of such town ; and the person receiving such payment is authorized and required to execute a proper discharge therefor, and a conveyance to said town of all the title and interest which said company had in such lands at the expiration of its corporate existence. (Laws 1881, chap. 337, amending chap. 484, Laws 1880, § 2.) 15. Special Commissioners to Lay out Roads. It was provided by an act to enlarge the powers of boards of supervisors (Laws 1838, chap. 314, § 1, sub. 4), that the super- visors of each county have power, af 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 highways cannot or will not be exer- cised to accomplish the laying out of such road. 220 The Law of Highways. 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 such highway is intended to be laid, at least six days previous to presenting such application, specifying therein the object thereof, and names of persons proposed to be appointed such commissioners. (Laws 1848, chap. 164.) The supervisors shall have power to provide for the payment of the special commissioners appointed under the above provi- sion, for their time and expenses. The decisions 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 commissioners of highways of any town. Special commissioners have an authority to do all the several acts and duties connected with their position. QOdell v. De Witt, 53 K Y. 643.) The roads so to be laid out by such special commissioners, or the same as settled on appeal, shall be recorded, opened and worked as public highways of the towns 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 1838, chap. 314, § 4.) In any case where, by any act or acts of the Legislature of the 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 commissioner or commis- sioners appointed therefor, and where, by reason of the expira- tion of the official life of the commissioner or commissioners so appointed to receive, expend, and account for said non-resident highway taxes, any balance or remainder so set apart or appro-' priated has not been received or expended, it shall be lawful for the boards of supervisors of the counties wherein said non- resident lands are situated to appoint a commissioner or com- missioners to receive and expend any such unexpended balance under the same regulations and conditions for the faithful per- formance of his or their duties, as were provided for in said original act or acts ; and any act or acts of any board of super- visors appointing such commissioner or commissioners, in anticipation of the passage of this act, are hereby ratified and confirmed. (Laws of 1879, chap. 275.) Laying out PIighways. 221 16. Papers, When and Whekb 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 B. S. 518, § 83 ; see ante, p. 243.) For the law relating to appeals from the determination of the commissioners laying out or refusing to lay out a road, and for that relating to the assessment of damages for laying out a road, see hereafter. The clerk cannot refuse to file papers, if the commissioners were duly elected and in the actual exercise of the office. (^People ex rel. Bush v. Collins, 7 John, 549.) When the commissioners of highways have made and filed an order laying out a highway, such order is conclusive evidence of the laying out and boundaries of the road. If any substantial errors has been committed, it must be corrected on appeal or certiorari. Where evidence is given showing that records of highways of the town clerk's office, and that such records, extending, over the period from 1830 to 1863, had been destroyed by fire secondary evidence may be given of the contents of the sa;ne. (1887, Wildrieh v. Eager, 10 K Y. St. Rep. 764.) 222 The Law of Highways. CHAPTER IX. ALTEEING AND DISCONTINUING HIGHWAYS. 1. Altering highways. 2. Discontinuing highway. 3. Discontinuance by non-user. 4. Description of road abandoned. 5. Effect of discontinuance. 1. Altering Highways. As we liave already seen, the commissioners of highway have power, and it is their duty, to alter such highways as they, or a majority of them, shall deem inconvenient. QAnte p. 62.) This power to alter is given for the purpose of mak- ing the road better by changing its site, and should only be exercised when the road is deemed inconvenient. They may 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 so doing, it becomes necessary to take more or other lands of the adjoining pro- prietor, compensation therefor must be made the same as on the original location. (See People ex rel. Coirirs of Cort- landville v. Judges of Cortland, 24 Wend. 493.) They are empowered to widen a highway. This is an alteration not "laying -out" of a new highway. (^People ex rel. Lasher v. McNeil, 2 K Y. Sup. [T. & C] 140.) Where a highway runs obliquely across a farm, changing it so as to run on the lines and strike a highway at right angles is an alteration, not a new highway. (1875, People ex rel. Bowen, v. Jones 63 JSF. Y. 306.) See Form of order. Appendix No. 44.) Application. — The commissioners may alter a road without an}'- application (^Gould v. Glass, 19 Barb. 179), or upon the application of any person living in the town, liable to be assessed for highway labor (1 R. S. 513, § 54), or upon the application of any person liable to be assessed for highwaj-- labor, and owning lands in a town in which he is not a resi- dent. (Laws 1836, chap. 122 ; People ex rel. Wait v. Eggle- Altering and Disi;oNTiNiriNG Highways. 223 ston, 13 Hozv Pr. 123.) Where application is made it must be in writing, addressed to the commissioners, and signed by the person applying. (Id. ; see Form No. 43.) Jury necessary. — The commissioners have no power to alter a public highway without the intervention of a jury, except where the same is altered with the consent in writing of the owners of land through which the alteration is to be made. It was held in Garretson v. Clark, Lalor's Supp., 162, that they had such power, but the amendment to section 60, article 4, title 1, chapter 16, part 1, of the Revised Statutes, by Laws of 1877, chap. 465, expressly includes all cases of the alteration of any road, etc. Survey. — Whenever the commissioners shall alter any road, either upon application or otherwise, they shall 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 record- ing the same. (1 B. S. 513, § 55.) As to the manner in which the survey is to be made, see ante, Chapter VIII. Order to be posted. — It is the duty of the town clerk when- ever any order of the commissioners for altering a road shaU 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 appealing from such order, shall be computed from the time of recording the same. (1 B. S. 513, §56.) When two commissioners may act. — Any two commissioners may make the order altering a highway, provided it shall ap- pear in the order filed by them, that all the commissioners of highways of the town met and deliberated on the subject em- braced in such order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon. (1 E. S. 525, § 125.) The order must be sufficient on its face. Its defects cannot be helped out or supplied by parol. (People ex rel. Ottoman v. Hynds, 30iV. Y. 470.) Where the third commissioner does not participate in the proceeding, the order must show that he was 224 . The Law of Highways. duly notified to attend for the purpose of deliberating on the- subject embraced in the order. A simple allegation that he has been duly notified to attend is insufficient. (^Fiteh v. Com- missioners of Kirkland, 22 Wend. 132.) If the order is signed by only two of the commissioners, and does not recite the fact, that the third participated in the proceedings, nor that" he was notified to do so, it is void. (^People ex rel. Ottmany. Hyndsy supra; see also ante^ p. 89.) Disagreement respecting certain roads. — When the commis- sioners of highways of any town or officers of a city or village- shall disagree with those of any other town or city or village in the same county, relating to the alteration of an old road extending into both ; or those in one county, shall disagree with those in another county, relative to altering an old road which, shall extend into both counties, they shall meet on five days,, notice to make their determination in writing, etc. If they cannot agree they may so certify to the county judge or su- preme court judge who may appoint their commissioners, etc., who shall take evidence, view the road and decide the question. For full text of the Law (chap. 513, Laws 1881,) see Chap.. VIIL, sub. 8, ante. Papers where filed. — All applications, certificates and other papers relating to altering any road, shall be filed by the com- missioners 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.) Damages and appeals. — Damages arising from the alteration of a road, are to be assessed in the same manner as in laying out a road. Appeals from the order of the commissioners, altering, or refusing to alter a road, are also to be taken in the same manner as in case of laying out a road. For the law and practice on those subjects, see the succeeding chapters. Damages caused by alteration of grade in streets and high- ways in villages are ascertained under Laws 1883, chap. 113, as amended 1884, chap. 281. For full text of said laws see page 91 ante. An adjoining owner is entitled to damages for injury caused by change of grade by railroad, (1888. Matter of Stack, 50 Run. 385 ; 21 K T. St. Hep. 953.) Alteeing and Discontinuing Highways. 225 2. Discontinuing Highway. The commissioners of highways have power 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.) The supervisors of a county are authorized to provide for the use and improvement of abandoned turnpike, plank or macadamized roads within any town as public highways ; and to provide for an alteration, reduction or change in the rate of toll charged by such roads. (Laws of 1869, chap. 855.) Under this, a board of supervisors may, on its own motion, under the specified restrictions, apportion the expenses on one or more towns " as may be just " although the expenditure may be wholly within one town, but on a highway that is com- mon to the several towns. (1889, People ex rel. Morrill v. Supervisors of Qneens Co., 112 N. Y. 585, 21 iV. Y. St. Rep.) But 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 where there has been no change of circumstances, removing the occasion for it, and rendering it unnecessary. (^People ex rel. Miller v. (rriswold, 67 If. Y. 59.) Although the mode of discontinuing roads may be changed by the act of 1880, (chap. 114,) yet the cases in which that power can be exercised remain the same. And the power is to be exercised only in regard to old, useless and unnecessary roads, not to a uselessness existing at the laying out. (1887, People ex rel. Runtly v. Mills, 8 iV. Y. St. Rep. 734.) Application. — They may proceed to discontinue a road of their own motion, and without any application therefor. ( Crould V. Glass, 19 Barb. 179 ; Marble v. -Whitney, 28 N. Y. 297.) Or they may proceed on the application of any person living in the town, liable to be assessed for highway labor (1 R. S. 513, § 54) ; or of any person liable to be assessed for highway laber and owning lands in the town, although he be a resident of another town. (Laws 1836, chap. 122.) Every such applica- tion shall be in writing, addressed to the aommissioners and signed by the person applying. (Pd.~) The application to lay out a new road, and to discontinue an old one, may be in one form. (^People ex rel. Dana v. Robertson, 17 How. 74 ; see Form No. 53.) 15 226 The Law of High-ways. Defective application does not invalidate. (1873, People ex rel. Bristol y. Mehols, 51 K T. 470.) Two commissioners may act. — Any two commissioners of the town may make the order discontinaing an old road, provided it appear in the order filed by them that all the commissioners of highways of the town met and deliberated on the subject embraced in the order, or were duly notified to attend a meet- ing of the commissioners for the purpose of deliberating there- on. (1 B. S. 525, § 125.) The order must be sufficient on its face. Its defects cannot be helped out or supplied by parol. If it is signed by only two, and does not show that all were pre- sent and participated in the proceedings, or were notified to attend a meeting of the commissioners for the purpose of deli- berating on the subject of the order, the order will be void. (^People ex rel. Ottman v. Hynds, 30 N. Y. 470 ; Fitch v. Qonir missioners of Kirkland, 22 Wend. 132. See further hereon, awie, Chap. VIII.) Notice of discontinuance. — Upon application being made ac- cording 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 occu- pants, residing upon lands through or along which the high- way 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 contain the name of the applicant, and a brief de- scription of the highway describe^ in the application. And in case such jury shall certify that said highway is useless and un- necessary, 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 the meeting of such commissioners to hear and determine such application. The notices required by this act shall be served by delivering the same to such owner or occupant, or, if he be absent, by leaving them at his dwelling- house, and in either case, at least six days before the time of meeting of which notice is given. (Laws 1878, chap. 114, amending Laws 1873, chap. 69 ; see Forms Nos. 54 and 55.) To summon jury. — Whenever application shall be made for Altering and Discontinuing High-ways.' 227 the discontinuance of an old road, on the ground that it has become useless and unnecessary, the commissioners of high- ways 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 B. JS. 517, § 81.) The statute does not require the commissioners to issue or to have any process — it only requires them to summon the freeholders. The fact that the freeholders have assembled under void process does not disqualify them for acting when they were afterwards legally requested so to do. (See People ex rel. Mliott v. Commissioners of Gfreenbush, 24 Wend. 367.) It seems that the commissi oners must themselves summon the jury, instead of calling in the aid of some ofiScer who usually per- forms such services. {J^d.) Twelve freeholders. — The statute by freeholders means such persons as have the legal title to real estate — such as are free- holders without a proceeding in court to make or declare them so ; a legal title to lands is requisite. {People ex rel. Ottman V. Hynds, 30 N. Y. 470.) The commissioners have no authority to act until twelve freeholders certify that the road is useless and unnecessary. If there are not that number of qualified free- holders, all subsequent proceedings will be void. {Id.; Town of Grallatin v. LoucTcs, 21 Ba,rh. '578.) A recital in the order discontinuing a road, that twelve freeholders have certified that it is useless and unnecessary, is not conclusive evidence of the fact. That is a jurisdictional fact and is open to con- tradiction. (See People ex rel. Ottman v. Commissioners of Seward, ^IBari. 94 ; see further as to the qualification, etc., of the freeholders, ante. Chap. VIII, sub. 6.) Jury to he sworn. — The jury are to be sworn well and truly to examine and certify in regard to the propriety of such dis- continuance. Such oath may be administered by one of the commissioners. (Laws 1845, chap. 180.) Proceeding of jury. — They shall then proceed to view such road, and if they shall be of opinion that the same is useless 228 ■ The Law op Highways. and unnecessary, they shall make and subscribe a certificate in writing to that effect, which shall be delivered to the com- missioners of highways, who shall thereupon proceed to decide upon such application. (1 R. S. 518, § 82 ; see Form No. 55.) The commissioners have no power in any case to discon- tinue a road without the oath of the freeholders. After the freeholders have made the certificate, the commissioners may grant or refuse the application. An appeal may be had from their decision; A certificate is not necessary where the owner consents thereto, and files with the town clerk a release of damages. {People ex rel. Bowen v. Jones, 63 N. T. 306.) 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 discontinued, nor for appearing to make such examination. (Laws 1845, chap. 180, § 14.) Survey. — Whenever the commissioners of highways shall discontinue any road, either upon application to them or otherwise, they shall 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 B. S. 513, § 55.) In recording such survey and order, the town clerk acts ministerially, and cannot refuse to do it on the ground of some defect in the order, nor on the ground that the commis- sioners have neglected to take the oath of office and file the certificate of such oath. (^People ex rel. Bush v. Collins, T John. 549.) The clerk may be compelled by mandamus to record the order. The survey is to be made in the same man- ner as in laying out highways, as to which, 'see ante Chap. VIII. Order to he posted. — It is the duty of the town clerk when- ever an order 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 limited for ap- pealing from any such order, shall be computed from the time of recording the same. (1 R. S. 513, § 56.) Failure of town clerk to post the notice as required by law does not affect the validity of the order. QMgleman v. Langhorsty 1887, 6 N. Y. St. Rep. 322.) Altering and Discontinuing Highways. 229 What roads may be diseontinued.~The power of commission- ers to discontinue roads, is limited to roads which have, since they were laid out, become, or proved upon trial to be useless and unnecessary. It does not enable them, or a jury of free- holders called by them, to reverse decisions laying out roads, especially where such decisions have been affirmed on appeal! {Peoj>le ex rel. Lyon v. Pile, 18 Sow. Pr. 70.) So a formal discontinuance of a road as a highway, which was never in fact a public highway is a nullity. {Miller v. G-arloch, 8 Barb. 153.) A defective application does not invalidate the proceedings, and any portion of a road may be discontinued without affect- ing the residue. (People ex rel. Bristol v. Nichols, 51 N. T. 470.) A decision of the referees refusing to lay out, alter or dis- continue, does not bar another application for the same thing made within four years. {People ex rel. Bowen v. Joyies, 63 N. Y. 306.) The referees cannot pass upon the question of the jurisdiction of the commissioners to make such order, but are confined to an examination of the case upon the merits. (1878, People ex rel. Bailey v. Sherman, 15 Hun, 575.) Papers when and where filed. — All applications, certificates and other papers relating to the discontinuing of any road, shall be filed by the commissioners as soon as they shall have decided thereon, in the office of the town clerk of the town. (IB.S. 618, § 83.) 3. Discontinuance by Non-user. It is provided, among other things, by chapter 311 of the Laws of 1861, amending section 99 of the Highway Law, that any highway laid out and dedicated to the use of the public, that shall not have been opened or worked as a highway within six years from the time of being so laid out, shall cease to be a road for any purpose. By the second section of the same act, it is provided that the provisions of this act shall apply to every public highway 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. The limitation of the second section prevents the application of that law to a case where a road has been a public highway by user up to 1844, when it was shut up for a period of six years, when it was again opened and had since teen used by the public down to the time of trial in 1865. {Amsbey v. Hinds, 46 Barb. 622.) 230 The Law of HiaHWAxs. This act does not apply to streets laid out in cities. (1887, Vanderbeck v. City of Rochester, 46 Hun, 87, 16 N. Y. St.- Rep. 148.) Independent of the above provision, the Revised Statutes established no rule or law for the discontinuance by non-user of a highway once established. The only means by which such discontinuance could be affected are by non-user for a period of twenty years, or by such an entire and absolute abandonment as could leave, under the circumstances, no question of intent. {Id. per Boardman, J.) An abandonment can only be predicted upon the acts of those entitled to the easement. The public alone can work an abandonment by obstruction. One individual cannot do it; least of all the person from whom the easement is due. (Id. ; Oorninff v. Crould, 16 Wend. 531.) In respect to a public highway, the public, alone, can work an abandonment by acts of obstruction ; one individual cannot do it ; least of all the person from whom the easement is due. {Amsbei/ v. Mnds, 46 Barb. 622; 1877, Hood v. Smith, 5 Week. Big. 117.) The exclusion of the public from a street by the wrongful and unlawful encroachments of adjoining owners can never work an abandonment of a highway. (1888, Horey v. Village of Haverstraw, 47 Hun, 356 ; 14 iV. Y. St. Rep. 498.) A highway is subject to discontinuance, though never opened, and such discontinuance is effectual as against an alternative writ of mandamus requiring the opening of the road, although occurring after the service of the alternative writ. {People ex rel. Clark v. Commissioners of Reading, 1 iV. Y. Sup. (^T. ^ (7.) 193; People ex rel. Miller v. Q-riswold, 67 K Y. 59; 1887, People ex rel. Huntly v. Mills, 8 N. Y. St. Rep. 734.) The compulsory abandonment of an old highway in the ab- sence of the acquisition of a new way is not conclusive of an intent to relinquish the old right. {Horey v. Village of Haver- straw, 14 N. Y. St. Rep. 498 ; Driggs v. Phillips, 103 N. Y. 11; B JV. Y. St. Rep. 69 ; Freeholders v. Com'r of Town Qlen, 20 N. Y. St. Rep. 394.) 4. 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. Altering and Discontinuing Highways. 231 or in any other way, shall be abandoned by the public, and is no longer used as a public road, the commissioners or com- missioner of highways, shall file in the town clerk's office of the town, a description in writing signed by them or him, of the road so abandoned, and the same shall thereupon be discon- tinued. (Laws of 1853, chap. 174, § 15; see ante 246; see Form No. 57.) 5. Effect of Discontinuance. Whenever a highway is discontinued or abandoned, the entire and exclusive enjoyment of the land over which it was located, reverts to the owner of the soil. (Jackson ex dem. Yates v. Eathaway, 15 John. 447.) So on the discontinuance of an old road in the city of New York, the fee is not in the corpora- tion, but presumptively in the owners of the adjoining lands. ( Van Amringe v. Burnett, 8 Bosw. 357.) But where the adjoining land is owned by one person and the fee of the highway by another, on discontinuing the high- way, the soil does not pass to the adjacent owner but reverts to the owner of the fee. As where the owner of lands adjoin- ing a highway sells them, and bounds the grants on the sides of the highway, or by other equivalent expressions, the fee of the highway does not pass, and on its discontinuance, the soil reverts to the grantor. (Jackson ex dem. Yates v. Hathaway, supra.') When any person shall be the owner of any land over which any highway shall run, and such highway shall be dis- continued 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 damages shall take into- calculation the value of the road so discontinued, and the benefit resulting to such person by reason of such discontin- uance, and shall deduct the same from the damages assessed for the opening and laying 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.) Such deduction can be made only when such highway shall be discontinued in whole or in part, hy reason of some other road to be established and laid out through the lands of the same person. Where an old road, the fee of which is in one person, is discontinued, and a road laid out over the land of another 232 The Law op Highways. person, which land is contiguous to the old road, the proprie- tor of the land is not entitled to the old road, as a compensa- tion for the land taken for the new road. (Jackson ex dem. Yates V. Hathaway, supra ; Van Amringe v. Barnett, 8 Bosw. 357.) The effect of discontinuing a road district which has been formed from parts of two other districts is to restore the latter to their original bounds. (People ex rel. Seward v. Sly, 4 Hill, 593.) Where an adjacent owner makes substantial improvements upon a portion of the street abandoned by act of the city, the latter is not estopped from setting up a claim thereto, and such encroachment, though for twenty years, could not destroy the public right. (^St. Vincent Orphan Asylum v. City of Troy, 76 K Y. 108; Ahendroth v. Manh. By. Co., 52 Supr. Ct. Rep. 274 ; 7 iV. F. St. Rep. 48.) The right to damages on the closing of a highway is per- sonal and belongs to the owner at the time of closing, although before the award he conveyed his title. (\.^M, King y. Mayor, N. Y., 102 N. Y. 171.) As to the principles governing the closing of streets in New York City under Laws 1867, chap. 697, see Feariny v. Irwin, 55 N. Y. 486; 1886, King v. Mayor, 102 N. Y. 171; 1888, Peters V. Carleton, 15 JST. Y. St. Rep. 980. Assessment of Damages on Laying out Road. 233 CHAPTER X. ASSESSMENT OE DAMAGES ON LAYING OUT EOAD. 1. Compensation to be made. 2. By agreement. 3. Damages, how to be assessed. 4. Provision in case persons conceive themselves aggrieved. & Costs of assessments, and by whom paid. 6. Damages assessed to be audited bv supervisors. 7. Damages and expenses, how col- lected. 8. Certiorari of proceedings. 1. Compensation to be Made. Although the Legislature of the State, by virtue of the Tight of eminent domain, may take private property for public use — as for a highway — yet it must provide for making compen- «ation for the property so taken. A provision for compensa- tion is a necessary attendant on the due and constitutional ■exercise of the power of the law given to deprive an individual of his property without his consent. (2 Kent, 339.) The •Constitution of this State, as well as those of most of the other States, provides that private property shall not be taken for public use without just compensation. When compensation to be made. — Although compensation must be made for the land taken, it appears not to be essential that such compensation, or offer of it, precede or be concur- rent with the taking of the property. The statute provides that the damages shall be assessed before the roads shall be opened, or worked or used. (1 R. S. 515, § 64.) But there is no provision that such damages shall be paid before such opening and use. The appraisal of damages is a condition precedent to the opening of the road, but the payment of such damages is not. It has never been deemed necessary that the compensation which the Constitution requires to be made for private property taken for public use, should be actually paid before entering upon or taking possession of the property. {^Bloodgood v. Mohawk and Hudson R. R. Co., 14 Wend. 51. 234 The Law of Highways. and cases cited; 8. C, 18 id. 9; Smith v. Helmer, T Barb. 416 ; Chapman v. aates, 54 N. T. B. 132.) 2. By Agreement. The damages sustained by reason of the laying out and opening sucli road, may be ascertained by the agreement of the owner and commissioners of highways, provided such damages do not exceed one hundred dollars, 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 manner prescribed by law before such road shall be opened, or worked or used. Every such agreement or release shall be filed in the town clerk's office, and shall forever preclude such owner from aU further claim for such damages. (1 21. S. 515, § 64.) The word " owner " here includes a vendor under an executory contract of sale. (_Smith v. Ferris, 6 ITun, 553.) If the owner of improved land, does not within the time prescribed, elect the mode in which he would have the damages assessed he loses the right and they may be assessed in the ordinaiy way. ( Johnston v. Supervisors of Herkimer, 19 Johns. 272.) The agreement should be in writing, as it is required to be filed. The release must be in writing. No one but tlie owner of the land is entitled to damages. The occupant or tenant has no claim. If he is disturbed in his possession, he must look to his landlord for redress. This is, however, other- wise in the city of New York. There the damages of each person interested in the premises, as landlord and tenant, mortgagor and mortgagee, are to be estimated separately. (Ooutant v. Oatlin, 2 Sand. Oh. 485; see Forms Nos. 58,59.) 8. Damages How to be Assessed. Whenever anj' damages are now allowed to be assessed by law, when any road or highway shall be laid out, altered or discontinued, in whole or in part, such damages shall be assessed by not 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 requested so to Assessment of Damages on Laying out Road. 235 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 shall proceed, on receiv- ing at least six days' notice of the time and place, to meet the commissioners of highways and take a view of the premises, hear the parties and such witnesses as may be offered 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 authorized to administer oaths to wit- nesses who may be produced before them under this section ; and when they 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 the same, shall file it in the town clerk's office in said town. The said commissioners for each day actually and necessarily employed in the aforesaid ser- vice shall be paid the sum of five dollars. (Laws 1845,^ chap. 180, § 5, as amended by chap. 428 of Laws 1888.) Application. — If the owner of land taken for a highway has a right to damages, it is the duty of the commissioners of high- ways to apply to the county court for the appointment of commissioners to assess such damages. If they refuse to dis- charge that duty, they may be compelled to perform it by mandamus. {Chapman v. Grates, 46 Barb. 313.) The application is to be made to the court and not to the judge. Notice of the application should be given to the land- owner interested. , The commissioners appointed should be disinterested persons, not of kin to the owner of the land. (See form of application and order, Appendix Nos. 60, 62.) JVotice of meeting. — Notice of the meeting of the commis. sioners, for the purpose of making the assessment, .should also be given to the land owners in time for them to procure wit- nesses, etc. (See Form No. 61.) Commissioners to he sworn.— The commissioners must be sworn before proceeding to make the assessment. Taking the 236 The Law of Highways. requisite oath is an act necessary to^ give thein jurisdiction. The parties to the proceeding have no right to waive such an irregularity as an omission of the oath, since the whole town has an interest in the proceeding. (See People ex rel. QomW of Cohocton V. Oonnor, 46 Barb. 333 ; for form of oath, see Appendix No. 1.) Proceedings oti assessment. — The first thing that the com- missioners are required to do, after taking the oath of office, is to view the premises. They are then to hear the parties and such witnesses as may be offered before them. • It is said that they may take the opinion of others in whose integrity and judgment they have confidence, without swearing them as witnesses. They may converse with all classes of men con- cerning the business in hand, and collect information in all ways which a prudent man usually takes to satisfy his own mind concerning matters of the like kind, where his own interests are involved in the inquiry. The commissioners must exercise their own judgment at the last, but they may first seek light from other minds the better to enable them- selves to arrive at just conclusions. Estimates from mechanics and builders may become important in the discharge of the duties of the commissioners, and in these and other cases they may require the sanction of an oath to the estimates which they receive. If, in any case, they make the opinions of others the basis of action, without exercising their own judgment, those opinions should be given upon oath. But when they only seek information for the purpose of enlightening their own judgments, they may obtain it in any way in whicb men usually acquire knowledge. (^Matter of William and AntJiony Streets, 19 Wend. 678, per Beonson, J.) What damages to he allowed. — The value of the land taken is not restricted to its agricultural or productive qualities, but inquiry should be made as to all other legitimate purposes to which the property could be appropriated ; and just compen- sation cannot be less than the damage which the owner of the property taken has sustained. (^Matter of Hamilton Avenue,, 14 Barh. 405.) In making appraisals of this kind, the true rule, the only rule which will do equal justice to all parties, is to determine what will be the effect of the proposed change Assessment op Damages ok Laying- out Road. 237 upon the market value of the property. The proper inquiry- is, what is it now fairly worth in the market, and what will it be worth after the improvement is made ? The question is not what estimate does the owner put upon it, but M'hat is its real worth in the judgment of honest, competent and disinterested men ? (^Matter of Furman Street, 17 Wend. 649, per Beonson, J.; see also Troy and Boston R. H. Co. v. Lee, 13 Barb. 169.) As to how the value of a leasehold is to be estimated, see Matter of Central Park, 54 Bow. Br. 313. To whom allowed. — There ought to be separate assessments of the damages to lessor and lessee ; but if a gross sum be awarded to the landlord, the tenant is entitled to recover his proportion thereof in equity. QGoutant v. CatUn, 2 Sand, Ch. 485 ; Turner v. Williams, 10 Wend. 139.) Where there are conflicting claims of title the damages should be awarded to " owners unknown." (^Matter of Eleventh Ave, 49 How. Pr. 208.) Such an award when confirmed by the Supreme Court is conclusive ; there can be no subsequent question raised, except as to who are such owners, the quantum. of their interest is immaterial. {Matter of Department of Parks, 73 N. Y. 560.) The right to damages for the closing of a road accrues at the time of the closing to the then owner even though they are not at once fixed and ascertained. (1886, King v. Trustees St. Pat- rick's Cathedral, 1 N. Y. St. Rep. 401 ; 102 N. Y. 171.) Contingent Damages. — The commissioners cannot take into consideration any remote, contingent or speculative damages, yet 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 will affect the residue of the owner's land. Will it leave that residue in an inconvenient and unmarketable shape ? If so, that fact may properly be taken into account in determining the compensation. (See Albany Northern B. R. Co. v. Lansing, 16 Barb. 68.) Although the language of the above section is broad enough to include consequential damages, they can only be allowed where some portion of the applicant's land has been taken for the highway. {People ex rel Newton v. Supervisors of Oneida, 19 Wend. 102.) 238 The Law of Highways. An action will not lie to restrain the erection, for public purposes, by a city corporation, of a bridge within the limit of the city, upon one of the streets thereof, at the suit of a land owner whose property is not taken or touched, and in such a case the owner is ffot'entitled to compensation for indirect or consequential damages. (Swett v. Citi/ of Troy, 62 Barb. 630.) Except where a highway is laid out along the line of a farm, taking no portion of the land of the owner, but subjecting him to the expense of maintaining the whole of the fence, the expense of half of which was formerly borne by him, such owner or person occupying such land 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 such road. Such damages shall be ascertained and determined in the same manner that other damages are now ascertained and determined in laying out highways. (Laws 1853, chap. 174, §16.) Deductions for old road. — Where 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 persons who shall assess the damages shall take into calculation 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 enclose so much of the highway so discontinued as shall belong to him. (1 B. S. 516, § 71.) The deduction, as above provided, is only to be made when the old road is discontinued by reason of some other road to be laid out through the lands of the same person. Where the premises over which the highway is laid out have been already laid out or dedicated^to the public as a highway, the owner is not entitled to damages, notwithstand- ing that he is in possession of the premises, claiming adversely at the time the proceedings are commenced to open the road. (Baldwin v. City of Buffalo, 35 N. Y. 875.) Description of route. — In the assessment any description Assessment of Damages on Laying out Road. 239 which designates the_.route of the road and shows that the as- sessment was for damages thereon, is sufficient ; and in an ac- tion for the damages, after their collection by the officers, parol evidence to show that the route on which the assess- ment was made differed from that -laid out by the appellate tribunal, is inadmissible. {Halloch v. 'Woolsey, 23 Wend. 328.) Vested rights. — When the damages have been finally as- sessed, the owner's right to them is vested, and cannot be divested by statute, or by a discontinuance of the highway. When a highway is laid out the public acquire nothing more than an easement, and there is always a contingency by which the owner may return into full possession on its being no longer required by the public. When this contingent event will happen is ordinarily unknown, and is wholly immaterial as regards the rights of the landholder. Whether the public retains the use of the land for a century, or for a year, or but for a single day, cannot affect his title to compensation. That becomes fixed and vested the instant his property is taken for public use. {Peo^ple ex rel. Fountain v. Supervisors of Westches- ter, 4 Barh. 64.) Repayment. — But where the proceedings for laying out the road were void from the beginning, the land owner to whom the damage assessed has been paid has no legal right to retain it, and those tax-payers from whom the money has been col- lected are entitled to have it restored to them. The town, however, in its corporate capacity, has no connection with the transaction, and cannot maintain an action to recover back such money. {Town of G-allatin v. Loucks, 21 Barh. 578.) In this case one of the twelve freeholders, sworn to examine and certify as to the necessity of the road having omitted to sign the certificate, neither the commissioners of highways, nor the county court, nor the referees who laid out the road acquired any jurisdiction in the case. The court held that the assess- ment of damages was unauthorized, and the tax levied upon the inhabitants of the town for the payment of those damages, was illegal ; that those from whom the money had been col- lected were entitled to have it restored to them ; and that the defendant, the land owner, had no legal right to retain it. It was further held that the town, in its corporate capacity, had 240 The Law of Highways. no connection with the transaction, and could not maintai» the action to recover back the money. Award. — The commissioners are to make their award of damages in writing, and are to deliver it to the commissioners of highways, who within ten days after receiving 'it, are to file it in the town clerk's office. (See form of award, Appendix No. 63.) Through umnclosed lands. — Where a highway shall here- after be laid out through uninclosed, unimproved and unculti- vated lands, the damages shall be assessed in the same manner as if the same were laid out through inclosed, improved and cultivated lands. (Laws 1857, chap. 491, as amended 1858,. chap. 51. See, however, as to laying out highway through unoccupied and unimproved land in any county containing more than 300,000 acres of unoccupied and unimproved forest land under Laws 1880, chap. 175, (ante, Chap. VIII., § 6.) Vacane-ies, how filled. — -If, for any cause, any commissioners or referee appointed under the above provision shall be pre- vented from serving, or shall refuse to serve, the court or offi- cer who appointed him shall have power to appoint another tO' supply his place. (Laws 1847, chap. 455, § 20.) Orders to be filed. — All orders for the appointment of com- missioners or referees, under the above provisions, shall be filed and recorded in the office of the town clerk of the towa in which the road shall be located. {Id. § 21.) Costs. — In all cases of the assessment of damages under the above provision, by the. commissioners appointed by a county court, the costs thereof shall be paid by the town in which the damages shall be assessed (Laws 1847, chap. 455, § 7), and are to be audited by the board of supervisors, levied and col- lected in the same manner as the damages assessed. (See Id. § 23.) 4. Pko VISION IN Case Persons Conceive Themselves Aggeibved. Any person conceiving himself aggrieved, or the commis- Assessment op Damages on Laying out Road. 241 sioner or commissioners on the part of the town feeling dis- satisfied with any such assessment, 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 commissioners of highways as the case may be, asking 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 ad- joining town to the same county, by the town clerk thereof, which notice shall be served upon said opposite party within three days after service upon the town clerk as aforesaid, and may be served personally, 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 dwelling-house. (Laws 1847, chap. 455, § 3 ; for form herein, see Appendix -No. 67.) This act does not apply to Kings, Queens, Suffolk or New York Counties. (Id.) Wherever there are more than one commissioner of high- ways in a town, notice of appeal from an assessment of dam- ages must be served on each and all of them. {People ex rel. Mitchell v. Lawrence, 54 Barh. 589.) The assessment of the commissioners is not annulled or in- validated by applying for a re-assessment. Nor is such assess- ment affected where the proceedings to re-assess are discon- tinued or the jury fail to agree. The award of the commis- sioners is in effect a judgment in favor of the owners of the land against the town ; it is final and conclusive until re- versed or vacated or a new judgment is rendered by the jury by whom the re-assessment is made. {People ex rel. Lumley v. Lewis, 26 Sow. Pr. 378.) Where no proceedings were taken for eleven months to call out a new jury, after the first failed to agree, it was held that the party applying for such re-assessment had abandoned the proceeding. {Id-) In re-assessing damages^ occasioned by the laying out of a new highway, it is necessary to give the parties interested notice of each and every step. And where parties asking such re-assessment were notified of the drawing of the jury 242 The Law of Highways. by the town clerk but not of subsequent proceedings, the pro- ceedings will not stand. (1888, People ex rel. Lentz v. &ray, 18 iV. F. St. Rep. 17; 49 Hwn,A&b.) Where two or more apply. — 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 1847, chap. 455, § 7.) The above provision for re-assessing damages is decided not to be in conflict with the constitution. {Clark v. Miller, 42 Barh. 255.) Proceedings. — Any person conceiving himself aggrieved may have such re-assessment whether he is in fact aggrieved or not. The notice and demand of a jury must be served on the town clerk within twenty days after the filing of the assessment of the commissioners. But the time of serving such notice is really less than twenty days, since such notice is to specify a time not less than ten nor more than twenty days from the time of filing the assessment, for the drawing of the jury. The notice is to be served on the opposite party within three days after the service on the town clerk. The party asking such re-assessment should also give immediate notice to the town clerk of the town in which the jury is to be drawn, specifying the time. He must have at least three days' previous notice of such drawing. (See Forms Nos. 64, 65.) Where the notice was served upon the town clerk more than twenty days after the filing of commissioner's assessment, the jury had no jurisdiction and a re-assessment by them was void. (1875, People ex rel. Mann v. Mott, 60 N. Y. 649.) The notice may be given not less than ten days from the service and upon a day within the twenty days after the filing of the award. The notice is a prerequisite to the jurisdiction of the subject matter. Jurisdiction could not be conferred by the appearance of the commissioners at the re-assessment. (1883, People ex rel. Stephens v. See, 29 Hun, 216. Citing the People ex rel. Mitchell v. Lawrence, 54 Barh. 589 ; Dudley v. Mayhew, 2> N. T. 9; Merritt v. Village of Portchester, 71 Assessment of Damages on Laying out Road. 243 N. Y. 309, and People ex rel. .Oom'r of Oohocton v. Connor, 46 Barb. 333.) Jury, how drawn. — At, the time and place mentioned in the preceding section, the town clerk of such adjoining town, having 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 res- idents of his toT,rn, whose names are on the last list filed in said town clerk's office of those selected and returned as jurors, pursuant to article second, title four, chapter seventh, part third of tlTe 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 persons, and shall make a certificate of such names and the purposes for which they were drawn, and shall deliver the same to the party fi.rst asking for the re- assessment. (Laws 1847, chap. 455, § 4 ; see Form No. 66.)* Jury, when to he summoned. — The party receiving such cer- tificate shall, within twenty-four hours thereafter, deliver the same to a justice of the peace of the town wherein the dam- ages are to be assessed ; and it shall be the duty of such justice forthwith to issue a summons to one of the constables of this town, directing him to summon the persons named in such certificate, and shall specify a time and place in said summons at which the persons to be summoned shall meet, but no meeting of such persons shall be had within twenty days from the time of filing the assessment of damages in the town clerk's office by the commissioner or commissioners of highway. {Id. § 5. For form of summons, see Appendix No. 67.) The party applying for a jury and obtaining a certificate of the names of the persons drawn for that purpose, may select the justice of the proper town. Care should be taken to de- liver such certificate to the justice within twenty-four hours from the time of its receipt. A justice is entitled to two dollars for empanelling and swearing a jury, in these proceed- ings. {Code Civ. Pro., § 3322.) *QUEBY.— Art. 2, Tit. 4. ch. 7, part 111 of the Revised Statutes was en- tirely repealed by Laws of 1877, c. 417. What list is referred to ?— Ed. 244 The Law of Highways. Six Jurors to be drawn. — Upon such persons appearing at the time and place mentioned in the summons, the justice wlio issued the summons shall draw by lot six of the persons attending to serve as a jury, and the first six persons drawn who shall be free from all legal exceptions, shall be the jurj' to re-assess all the damages required to be re-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 such 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. (iS. § 6. For form and verdict and certificate, see Appendix No. 68.) This provision is consti- tutional. (^Olark V. Miller, 54 K Y. 528.) It is not essential to the validity of the proceedings that the same justice who issued the summons for the jury should cer- tify their verdict. The statute in that respect is merely directory, and where the justice refuses or is unable to act, the verdict may be certified by another justice of the town. (People ex rel. Lefever v. Supervisors of Ulster, 34 If. Y. 268, overruling same case, 32 Barb. 473.) Notice of the time and place of empanelling the jury, and of the subsequent proceedings, must be given to the opposite parties, and in the absence of such notice the whole proceed- ings will be set aside with costs. {People ex rel. Stephens v. Tollman, 36 Barb. 222; People ex rel. Lentz v. Giray, 18 N. St. Rep. 17 ; 49 Hun, 465.) In making the re-assessment, the fury are to proceed in the same manner as the commissioners on making the assessment. The manner in which such commissioners proceed is fully set forth in the former part of this chapter. The jury are judges of the law and of the fact, and their decision is final and will only be disturbed in case of manifest irregularity in the proceedings, or clear violation of principle in the assessment of damages. ^People ex rel. Van Sickle v. Mdredge, 3 Hun, 541.) Where jury disagree. — In case the jury fail to agree on a re- Assessment op Damages on Laying out Road. 245 assessment of such damages, after having been kept together for such time as the justice by whom they were impanelled shall deem reasonable, such justice may discharge them. A new jury may be summoned and impanelled, before whom the same proceeding shall be had for such re-assessment as might have been, had before the first jury. {People ex rel. iMmley v. Lewis, 26 How. Pr. 378.) The jury should not separate until they have agreed, or are discharged by the justice. Where the first jury cannot agree, it is the duty of the person applying to see that a new jury is summoned. If any of the jury drawn shall refuse, or be prevented from serving, the justice may draw others to fill the vacancy. When the assessment is completed and delivered to the com- missioner of highways the power of the jury is exhausted ; they caiinot thereafter substitute another, and a paper, purporting to be a revised or amended assessment subsequently filed, has no legal force or validity. (1875, People ex rel. Mann v. Mott, 60 K Y. 649.) 5. Costs of Assessments, and by Whom Paid. In 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 dam- ages shall be assessed, and in cases of re-assessments of dam- ages by a jury, on the application of the commissioners of highways of any town, and the first assessment shall be re- duced thereby, the 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 appli- cation 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 appli- cations shall be made by two or more persons for the re-assess- ment of damages by a jury, such jury shall be obtained in conformity with thd" terms of the notice first served upon the clerk of the town in which the damages are to be assessed ; and all persons who may be liable for costs under this sec- tion shall be liable in proportion to the amount of damages respectively assessed to them by the first assessment, and may be recovered in an action of assumpsit at the suit of any 246 The Law op Highways. person or persons entitled to the same, before a justice of the peace. (Laws 1847, chap. 455, § 7.) Commissioners of highways, who have paid the jurors' fees and other costs of a re-assessment of the damages of a land owner, occasioned by laying out a road through his lands, on appeal by them from the original assessment, upon which ap- peal the amount of the assessment is reduced, can maintain an action to recover such costs of the land owner. (^Cary v. Marston, 56 Barb. 27.) AUowanee. — 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 sum- moned from an adjoining town, and shall attend, but not serve, shall be entitled each to fifty cents ; and if they shall 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. (Laws 1847, chap. 455, § 19.) 6. Damages Assessed to be Audited by Supekvisoes. 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 super- visors by the supervisor of the town, to be audited with the charges of the commissioners, justices, surveyors, or other per- sons 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 com- missioners of such town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid. (Laws 1847, chap. 455, § 23.) The award of damages by the commissfoners or jury is con- clusive on the board of supervisors, and cannot be revised by them ; but they must cause it to be raised by tax. {People ex rel. Parish v. Supervisors of St. Lawrence, 5 Cow. 292.) Under the provisions of the Revised Statutes (1 JR. S. 515, § 69), the board of supervisors might examine into the principles on Assessment op Damages on Laying out Road. 247 which such assessment had been made, and increase or reduce the damages, but the act of 1847, above cited, gives them no such power. Supervisors, how compelled to audit damages. — Should the board of supervisors refuse to audit the damages so assessed, they may be compelled to do so by mandamus. {People ex rel. Dubois V. Supervisors of Ulster, 3 Barb. 332, and cases cited.) 7. Damages and Expenses, How Collected. The amount of damages, as finally settled, together with the charges of the commissioners of highways, justices, sur- veyors, and other persons or officers employed in making the assessment, shall be levied and collected in the town within which the highway shall be situated. The moneys so col- lected shall be paid to the commissioners of highways of the same town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges. (1 B. S. 516, § 70, as modified by chap. 180 of 1845; Clark v. Miller, 42 Barb. 255.) 8. Cektioeaei of Peoceedings. If the proceedings for the assessment of damages by the commissioners appointed by the county court, or for the re- assessment of such damages by the jury, are in any respect irregular, a certiorari may be had for a review of the proceed- ings. (People ex rel. Stephens v. Tollman, 36 Barh. 222 ; People ex rel. Lumley v. Lewis, 26 Sow. Pr. 378 ; 1886, Buckley V. Brake, 1 N. Y. St. Bep. 578.) If the proceedings to re-assess are reversed on certiorari, the original assessment of the com- missioners stands subject to be annulled on re-assessment reg- ularly made. People ex rel. Lumley v. Lewis, supra.') The ap- plication for re-assessment of damages by a jury is not an ap- peal, in any sense ; but is like a motion for 're-argument of the same matter before another tribunal. It is not objection to such an application that it is made by several land owners. (People ex rel. Lewis v. White, 59 Barb. 666.) The power of the commis- sioners is expended when they make and sign their assessment and file it in the town clerk's office, and they cannot review their action by filing another assessment. People ex rel. Mann v. Mott, 5 N. Y. Sup., T. i 0. 207; aff'd 60 N. Y. 649.) 248 The Law of Highways. A certiorari should not be granted upon the application of two or three out of a large number of persons interested in assessments for local improvements. (^People ex rel. Kilmer V. McDonald, 4 Run, 187 ; S. 0., 69 K Y. 362.') The review is had on the return alone. (1887, People ex rel. Stockwell v. Talmage, 46 Hun, 603, 12 N. 7. St. Bep., 760.) Appeal Fbom The Commissioneks. 249 CHAPTER XL APPEAL PKOM THE COMMISSIOKEES. 1. Bight of appeal— appointment of referees. 2. Proceedings of tlie referees. 3. Powers and duties of referees. 4. Eeferees' decision and its effect. 5. Commissioners to carry out de- cision. 6. Effect of appeal. 7. Referees' fees. 8. In what cases no appeal lies. 9. Certiorari of proceedings. 1. Right op Appeal — Appointment of Referees. Any person who shall conceive himself aggrieved by any determination of the commissioners of highways either in lay- ing out, altering or discontinuing any road, or in refusing to lay out, alter or discontinue any road, may at any tifne 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 be 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 land 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 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 all the powers and discharge all the duties heretofore possessed and discharged by the three judges, and give the same notices heretofore re- 250 The Law op Highways. quired to be given under title first, article four, chapter six, part one, aforesaid, and before proceeding 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 1847, chap. 455, § 8; for forms herein see Appendix Nos. 69-78.) Who may appeal. — The right of appeal to the county judgCf from an order of the commissioners of highways laying out,, altering or discontinuing or refusing to lay out, alter or dis- continue a highway, is given to every resident tax-payer of the town in which such road is located. It is not restricted to the applicants for the laying out, altering or discontinuing of such highway, nor to the owners of the land through which it runs. (^People ex rel. Ridgeway v. Cortelyou, 36 Barb, 164.) According to the spirit and reasoning of this case the right of appeal is also given to every person liable to be assessed for highway labor and owning lands in a town in which he is not a resident ; since every such person may apply to alter, dis- continue or lay out a highway in the town where he owns the- land. (See 1 R. S. 613, § 54, as amended 1836, chap. 122.) Every person deeming himself aggrieved may appeal, and he is not concluded by .a decision made on an appeal from the same order taken by another. QClarkY. Phelps, 4 Oow. 190.) It is not essential to the right of appeal that the person taking it should be in fact aggrieved ; if he conceives himself so it is sufficient. (^People ex rel. Shant v. Champion, 16 John.. 61.) A corporation owning lands on which a highway is laid out, is a " person " within the meaning of the statute giving the right of appeal. The design of the statute was to give the right to all .persons or parties, whether natural or artificial, who should conceive themselves aggrieved. (^People ex rel. Dayton V. May, 21Barh. 238.) A court of equity cannot entertain an action to restrain commissioners from proceeding, etc. QPros. Park and Coney Island R. R. Co., v. Williamson, 24 JSun, 216.) An innkeeper, whose .only interest is that his trade will be injured by the diversion of travel, cannot sustain a certiorari to review the proceedings of the highway commissioners. (^People ex rel. Lawrence v. Schell, 5 Lans. 352.) Appeal Feom The Commissioners. 251 An adjudication that the highway is necessary is not re- viewable collaterally on the ground that one of the petitioners was not a freeholder. (1876, Ham v. iSilvernail, 7 Sun, 33.) To what judge. — The appeal is to the county judge of the county in which the road is situated. But in case such judge resides in the town where the road is situated, or is interested in the lands through which the road is laid out, or is of kin to any of the persons interested in said lands, or in case of his disability for any cause, he is note to appoint the referees, but they are to be appointed by one of the justices of sessions. It is an objection to the competency of the judge or justices of sessions to entertain the proceedings that such judge or justice was one of the twelve freeholders who certified to the neces- sity or propriety of laying out or discontinuing the road, but such objection may be waived. (^Commissioners of Carmel v. Judges of Putnam, 7 Wend. 264.) The county judge has no right to make an order designat- ing the justice to make the appointment. (People ex rel. Cooke V. Commissioners of G-reenburgh, 67 iV. T. 549.) Time to appeal. — The appeal must be taken within sixty days after the order of the commissioners laying out, altering or discontinuing, or refusing to lay out, alter or discontinue a highway shall have been filed in the town clerk's office. By the fifty-sixth section of the Highway Law it is provided that the time for appealing shall be computed from the time of re- cording the order in the town clerk's office, but the same con- struction must undoubtedly be given to this provision as is given to that providing for the Recording of deeds of real es- tate— that is, that they shall be deemed recorded from the time of their delivery to the clerk. Form of appeal— 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 determination 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 1847, chaj). 455, § 8, see form No. 69.) 252 The Law of Highways. The grounds on which the appeal is made should be explic- itly, though briefly stated. But a notice of appeal stating as a ground merely that the order of the commissioners is illegal, has been held to be good. (^Commissioners of Bushwieh v. Meserole, 10 Wend. 122.) So an appeal from the determina- tion of commissioners refusing to lay out a road, in the follow- ing form:' "I do hereby appeal from the determination of commissioners of highways in this matter to A, B & C, three judges of the Court of Common Pleas in and for the county of Putnam. August 26, 1829. Signed, etc.," was decided to be a sufficient compliance with the above section. (Commis- sioners of Carmel v. Judges of Putnam, 7 Wend. 264.) Under the existing law this form would, of course, have to read: " To A. B., county judge of Ptitnam county." In other re- spects the section under which these decisions were made is the same now as it was at the time they were given. A notice of appeal, specifying that the order of the commissioners is unlawful and erroneous is sufficient to give the county judge jurisdiction fo appoint referees. It is not necessary to state all or any of the reasons tending to show the order to be erroneous or illegal. (^Rector v. Clarh, 78 N. Y. R. 21.) It was formerly decided that the judges, on appeal, could only affirm or reverse the decision of the commissioners in toto, except in cases where roads were laid out without the inter- vention of freeholders ; that they had no power, except in such cases to affirm in part, and that the statement in the appeal as to whether it was brought to reverse, in whole or in part, applied only to such exceptional case. (^Commissioners of Sherburne v. Judges of Chenango, 25 Wend. 463.) But the act of 1847 (Laws 1847, chap. 455, § 9), extends the power of the referees on appeal to a partial reversal or modification of the order of the commissioners. (People ex rel. Babcoch v. Commissioners of Cherry Valley, 8 JV. Y. 482 ; People ex rel. Walker v. Baker, 19 Barb. 240 ; for form of appeal, see Appen- dix No. 69.) Notice to commissioners of appeal. — There is no provision made requiring notice of the appeal to be given to the com- missioners until the referees are appointed and are ready to proceed. But it would be well to give the commissioners such Appeal from the Commissionbes. 253 notice that they may suspend all proceedings for opening the road. (See form No. 70.) On an appeal from a determination of commissioners of highways laying out a highway, no notice of the time and place of hearing the appeal before referees is required to be given to the owner or occupant of the lands to be taken. The only notice is to the commissioners and to one or more applicants for the road. {People ex rel. Becker v. Burton, 65 N. Y. 452.) Notice to one commissioner is sufficient. (1886, Malloy v. Town ofPelham, 4 N. T. 8t. Rep. 828.) Appointment of Referees. — At the expiration of sixty days after the order of the commissioners appealed from shall have been filed in the town clerk's office, the county judge, or in case he is a resident of the town, or is interested in the land through which the road shall be laid out, or is of kin to anj^ of the persons interested in such land, or is otherwise dis- qualified, then one of the justices of sessions shall appoint, in writing, three referees, who are to hear and determine all the appeals brought within the sixty days. Such referees are to ■be three disinterested freeholders — residents of the county but not of the town wherein the road is located. They are not to be named bj"- the parties interested in the appeal, and should not be of kin to any such parties, as in such case they would have no jurisdiction to hear the appeal, and their deci- sion would be void. (People ex rel. Bisosway v. Flake, 14 How. Pr. 527.) Where several persons separately appeal, there should be but one set of referees, one hearing, and one order. (Bisosway v. Winant, 34 Barh. 578; People ex 'rel. Odle v. Kniskern, 54 K T. R. 52.) Where the order appointing the referees recited that the three referees named therein were disinterested freeholders, and the relator raised an objection to the eligibility of one of the referees, who certified for himself in the return that he was not a freeholder, it was held that as tlie only evidence upon the subject properly in the record was- the recital of the order of the county judge making the appointment, the ques- tion was not legitmately within the record brought before the court, and could not be considered. (1887, People ex rel. Stockwell V. Talmage, 46 Eun, 603 ; 12 N. Y. St. Rep. 760.) 254 The Law of Highways. The referees are not to be appointed until after the expira- tion of the sixty days, that they may hear and determine all the appeals that are to be brought. But it is probable that if they should be appointed within that time, and should pro- ceed to hear the appeals, their proceeding and decision would not be void ; but it would be an error which might be rem- edied by certiorari. (^Harrington v. People, 6 Barh. 607.) Should the judge refuse or neglect to appoint the referees, he may be compelled to do so by mandamus. (For form of ap- pointment, see Appendix No. 71.) 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, chap. 455, § 21.) Notice to Referees. — It is the duty of the judge making the appointment to notify the referees of their appointment, and to deliver to them all papers pertaining to the matter referred to them. If, from any cause, any of the referees appointed shall be prevented from serving, or shall refuse to serve, the judge who appointed him may appoint another to supply his place. {Id. § 20 ; see form of notice. Appendix No. 73.) 2. Pbocebdings or the Rbfbeebs. Notice. — It shall be the duty of the referees to proceed thereon as soon as may be convenient. Where the determi- nation appealed from was against an application for lajung out, altering or discontinuing a road, the referees shall give notice to the commissioners by whom such determination was made. When appeal is from a determination in favor of an applica- tion for laying out, altering or discontinuing a road, the notice shall be given to the commissioners and to one or more of the applicants for such road. In all cases, the notice shall specify the time and place at which the referees will convene to hear the app'Bel. Ql B. S. 518, § 87, as modified by Laws 1847, chap. 455, § 8. For form of notice, see Appendix No. 75.) Service of notice. Every such notice shall be served at least eight days before the time mentioned therein, by deliver- ing the same to one of the commissioners whose determination Appeal from the CoMMissioNfiRs. 25^ is appealed from, or by leaving the same at his dwelling-house. If the notice be also directed to one of the applicants, it shall be served in the same manner. (1 E. S. 519, § 88.) After the appointment of the referees on an appeal they become actors, and are bound to notify the parties to proceed; and their neglect cannot be imputed to the appellant as his laches. (Clark y. Phelps, 4 Cow. 190.) The notice must be in writing, and should be served personally if possible. They should, as early as possible, determine upon the time and place of meeting to hear and determine appeals, and should prepare the notices of such meeting and cause them to be served as above provided. The notices must be in writ- ing. The referees have no jurisdiction to proceed oh the appeal, until the notice of eight days of the time and place of meet- ing has been served in the manner above prescribed. (^People ex rel. Edick v. Judges of Herkimer, 20 Wend. 186.) Notice should also be given to the parties bringing the appael, although no special provision is made for such notice. Should the referees proceed to hear and determine the appeals without no- tice to the appellants, their proceedings may be reversed on certiorari. (See People ex rel. Stephens v. Tallman, 36 Barl. 222.) Although the notice geed only be delivered to one of the commissioners, it is notice to all ; and the one who receives it should give information to the other commissioners. (1886, Malloy V. Town of Pelham, 4 IST. Y. St Rep. 828.) Notice to occupants. — A three days' notice in writing to the occupants of the land through which the road runs, of the time and place of their meeting, is necessary, where the appeal is from an order of the commissioners refusing to lay out or alter a road. The eighth section of the act of 1847, above cited, declares that the referees "shall possess all the powers and discharge all the duties heretofore possessed and dis- charged by three judges." Among the powers and duties possessed and discharged by the three judges, it was provided that when an appeal had been made from a determination of the commissioners refusing to lay out or alter a road, and the judges shall reverse such determination, such judges shall lay out or alter the road applied for ; and in doing so, shall pro- 256 The Law op Highways. ceed in the same manner in which the commissioners of high- ways are directed to proceed in like cases. (1 H. S. 519, § 91.) But before the commissioners of highways shall deter- mine to lay out a highway, they are required to give three days' notice in writing to the occupant of the land through which the road is to run of the time and place at which they will meet to decide on the application. (1 M. S. 514, § 62.)' Where the order laying out the road, made part of the com- missioners return to one H. stated that notice in due form of law was given, and the return also alleged such service and that H. attended the meeting, these statements are conclusive, although in the affidavits and evidence it appeared that J. was the occupier. (1875, People ex rel. Becker v. Burton, 65 N. Y. 452.) As the review is solely on the return to the writ, the objection that it does not appear by the return that the notice was given to owners is not available where none of the evidence taken by the referees appears in the record. (1887, People ex rel. Stoehwell v. Talmage, 46 Sun, 603; 12 N. Y. St. Rep. 760.) The referees being required to proceed in the same manner as the commissioners, must give the same notice. (Terpening v. Smith, 46 Barh. 208 ; People ex rel. Edick v. Judges of Serlcimer, 20 Wend. 186 ; People ex rel. Dana v. Robertson, 17 How.Pr. 74; 1883, People ex rel. Crooks v. Sweet, 18 Week. Big. 258.) The fa^t that the occupant was present and sworn as a witness, is no waiver. (People ex rel. Ediek V. Judges of Herkimer, supra.) And where the occu- pants of the land waive notice of the proceedings of the referees, but afterwards, and before any action was had on such waiver, withdraw it, the referees cannot proceed without giving the required notice. {People v. Crosier, 12 Ahl. Pr. 445 ; for form of notice, see Appendix No. 79.) Referees to meet. — The referees having given the requisite notices, it is their duty to convene at the time and place mentioned in the notice, and hear the proofs and allegations 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 necessary. Their decision, or that of any two of them, shall be conclusive in the premises ; and every such decision shall be reduced to writing, signed by the referees making it, and be filed by them in the office of the Appeal prom the Commissioners. 257 town clerk of the town who shall record the same. (1 R. S. 519, § 89.) If the judges to whom the appeal is made refuse to act, the proper course is to apply for a mandamus to compel them to proceed. (^Lansing v. Caswell, 4 Paige, 519.) Referees after the first meeting may meet outside the town. (1882, People ex rel. Wolford v. Strevell, 27 Hun, 218.) Referees to be sworn. — Before proceeding to hear the appeal, the referees 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 1847, chap. 455, § 8.) The taking of the oath prescribed is an act neces- sary to give the referees jurisdiction to proceed to hear and determine the appeal ; and an omission to do so will render all their acts coram non judice and void. Nor can the parties to the proceeding waive such an irregularity as the omission of the referees to be sworn. It is unlike proceedings between private parties, where they may waive any irregularity they choose. The whole town have an interest in the proceeding, and have a right to require that the proceedings shall, in all material respects, conform to the requirements of the statute. (People ex rel. CorrCr of Cohocton v. Connor, 46 Barb. 333.) It would be well to annex the affidavit to the decision, as it will then appear of record that the requirement of the statute has been complied with. The oath may be taken before a clerk, deputy clerk, or special deputy clerk of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds, within the dis- trict in which the officer is authorized to act ; and, when certi- fied by the officer, to have been taken before him, may be used in any court, or before any officer or before any other per- son. (Laws 1880, chap. 178, § 842.) To compel attendance of witnesses. — The referees have power to issue process to compel the attendance of witnesses, and should do so at the request of either party. This process should be a subpoena directed to the witness, and requiring his attendance before them at the time and place therein mentioned. The signature of one of the referees to such 17 258 The Law of Highways. subpoena would probably be sufficient, but where it is possible the signatures of all should be obtained. (For form of sub- poena, see Appendix No. 77.) May adjourn. — The referees may adjourn from time to time, as may be necessary, (1 R. S. 519, § 89.) and may adjourn to meet outside the town. (1882, People ex rel. Wolford v. Strevell, 27 Run, 2^.8.) There is no limit to the adjourn- ments so long as they are necessary, which is a matter of dis- cretion with the referees. {People ex rel. Rohinson v. Ferris, 41 Barh. 121.) After the hearing has been closed they may ad- journ from time to time to enable them to make the decision. (Id.') But when once the decision has been made, and they have adjo.urned without day, their power and jurisdiction over the matter is spent, and they cannot afterwards proceed in the matter. (Rogers v. Runyan, 9 How. 248 ; People ex rel. Robin- son V. Ferris, 41 Barh. 121.) It is not necessary that the order should show that all the referees met, nor is it void because signed by only two of the referees. (1875, People ex rel. Becker V. Burton, 65 N. Y. 452.) 3. Powers and Duties op Rbpeeebs. The referees possess all the powers and are to discharge all the duties heretofore possessed and discharged by the three judges. (Laws 1847, chap. 455, § 8.) They have no author- ity to entertain an objection to the regularity of the proceed- ings anterior to the decision of the commissioners ; their decis- ion can only be on the merits, as to the necessity and propriety of laying out, altering, or discontinuing the road. If any irregularity has intervened previous to the decision of the com- missioners, it can be corrected only by certiorari, directed to the commissioners. (^Commissioners of Warwick v. Judges of Orange, 13 Wend., 432 ; People ex rel. Hubbard v. Harris, 63 N. T., 391 ; People ex rel. Van Rensselaer v. Van Alstyne, 3 Keyes, 35 ; 1887, People ex rel. Stockwell v. Talmage, 46 Hun, 603, 12 N. Y. St. Rep. 760.) They are required to hear and decide the appeal on the facts existing at the time of the hearing before them, and not on the facts existing at the time of the original application for the road. In this respect such hearing is in the nature of a new proceeding. {People ex rel. Bodine v. Giood- loin, 5 N. Y. 568. (They cannot review the proceeding before Appeal peom the Commissioners. 259 the jury of freeholders, who made the certificate. Evidence that the applicant for the road made false representations before such freeholders is not admissible. (1873, People ex re}. Odle v. Kniskern, 54 N. Y. 52) They are like other inferior and subor- dinate officers and tribunals that are creatures of statute, to be confined to powers expressly conferred, or such as are neces- sarily incident to express powers. (^People ex rel. Rohinson V. Ferris, 41 Barh., 121.) It is the duty of the referees to proceed to hear proofs and allegations of the parties, and to make and file their decision in writing, affirming, reversing or modifying the order appealed from. They have no power to dismiss the appeal and refuse to proceed further on the ground that the order of the county judge was improvidently or irregularly granted, or that the appellant had no right to bring the appeal. But if they dis- miss the appeal, the remedy of the party aggrieved is not by certiorari but by mandamus to compel them to proceed. (People ex rel. Ridgeway v. Cortelyou, 36 Barh., 164.) Such referees are vested with the power possessed by the three judges to whom appeals were formerly carried prior to 1847, with the additional power granted by § 9 to reverse or affirm in whole or in part. (1888, People ex rel. Wilkinson v. Carman 14 'N. Y. St. Rep. 543 ; 47 Hun, 380.) To decide on merits. — As has been before stated, the referees are to hear and decide the appeal, not on the facts existing at the time of the original application for the road, but on the facts existing at the time of the hearing before them. (People ex rel Bodine v. Goodwin, 5 N. Y., 568.) But in People v. Cortelyou, supra, it was intimated by the learned judge that the facts and proceedings necessary to give jurisdiction to the com- missioners in making the order appealed from, was a subject for consideration by the referees on the appeal. And in the case of People ex rel. Flint v. Cline, 23 Barh, 197, it was said by Strong, J. : " The statement in the determination or order of the commissioners, that twelve freeholders had met and decided that the proposed road and alterations were necessary and proper, was in effect an admission by them that such free- holders were competent and unobjectionable. As,_ however, it involved the question of jurisdiction, it was not conclusive, 260 The Law of Highways. and might be re-examined by the referees when the matter came before them." And People ex rel. Bodine v. Goodwin (5 I^. Y. 568), was cited as sustaining these views. But in The Commissioners of Warwick v. Judges of Orange (13 Wend. 432), it was decided that the judges had no authority to entertain an objection to the regularity of the proceedings anterior to the decision of the commissioners. And since the referees now possess all the powers, and are to discharge all the duties here- tofore possessed and discharged by the three judges, this decision is as applicable now as it then was. In delivering the opinion of the court, Nelson, J., said : " In the case of Lawton v. Commissioners of Cambridge (2 Caines, 179), the opinion was expressed by Mr. Justice Spencek, and as I understand it, it was the opinion of the court, that the authority of the judges to hear the appeal was confined to the merits alone — the fitness or unfitness of laying out the road. No different opinion has been expressed in any subsequent case that has come under my notice. The proceeding by appeal was not intended to be a review of legal questions, or irregularities that might exist in the preliminary steps, as on a writ of certiorari ; but to be an examination of the necessity or propriety of the road, assum- ing all the previous steps to have been regularly taken. A cer- tiorari directly to the commissioners is the appropriate remedy for the correction of errors committed by them. The decision of the judges is conclusive upon the parties in the premises. [1 H. S. 519, § 89.] It is obvious if they had jurisdiction to confirm or reverse the decision of the commissioners for mere error of law^ their judgment would be final, which could not have been intended by the Legislature ; nor has such been the exposition of their powers by this court, and had it been, it would be the only answer necessary to be given to the numer- ous points of law raised in this case. The judges can only entertain, examine and decide the appeal on its merits, and then their decision is final and conclusive so far as the merits are involved. * * * * Upon the whole, therefore, I per- ceive no solid reasons against the position laid down in the case of Lawton v. Commissioners of Cambridge, that the au- thority of the judges to hear the appeal is confined to the merits alone ; on the contrary, much inconsistency and violation of sound principles is avoided, and the spirit of the statute faith- fully executed, by confining them to that question. The power Appeal fkom the Commissioners. 261 of this court can be legitimately exerted to keep both the com- missioners and the judges within their proper bounds in con- ducting their. proceedings, and then the determination first by one, and then by the other on appeal, will be conclusive in the premises, according to the letter of the statute. Upon any other view, a road might be laid out, upon a reversal of the determination of the commissioners, on mere legal questions, without involving their opinion upon the merits. The act con- templates such an opinion before the judges can act." So in People V. Judges of Suffolk (24 Wend., 249), the court decided — Mr. Justice Cowbn delivering the opinion — that an q,ppeal to three judges does not lie from a determination which is void for want of jurisdiction. The original order being coram non judiee and void, is no more the subject of such an appeal than would be a judgment rendered by the commissioners in a civil action. An excess of jurisdiction is correctable by certiorari only. In People ex rel. Euhbard v. Harris, 63 N. Y. 391, Eael, J., after an elaborate opinion thoroughly reviewing the decision on this point, says : " I am therefore of opinion, both upon the weight of authority and upon a fair consideration of the objects and purposes of the statutes regulating the laying out of highways, and the appeals from the determination of highway commis- sioners, that it was the duty of the referees to consider only the merits of the case ; and that they did not err in refusing to receive evidence assailing the jurisdiction of the commis- sioners to make the order appealed from." (See also People ex rel. Bailey v. Sherman, 15 Hun, 575 ; and in Rector v. Clark, 78 N. Y., 21,) Chuech, Ch. J., says : " The duties of the referees are prescribed. They proceed to a hearing de novo ; they are required to hear the proofs and allegations of the par- ties and render their decision upon what appears before them, and they do not sit in review of the evidence or proceedings before the commissioners. The whole merits are before the referees, and the fitness or unfitness of the alteration is the question to be determined." {People ex rel. Hubbard v. Harris, 63 JV. Y. 391.) To consider damages. — The damages are a proper subject for the referees to consider only so far as to inquire whether the benefit will equal the expense. This must be inquired into 262 The Law op Highways. by the referees as well as by the commissioners. The refer- ees pass in review upon the acts of the commissioners, and are substituted in their place; all the considerations which are proper for the one, are also proper for the other tribunal. (^Commissioners of Bushwick v. Meserole, 10 Wend. 122.) Reversal in part. — The referees may reverse the decision of the commissioners in part, and affirm it as to the residue. (People ex rel. Walker v. Baker, 19 Barb. 240 ; 1853, People ex rel. Bahcock v. Commissioners of Cherry Valley, ?> N. Y. 476.) It was formerly decided that the judges or referees could only affirm or reverse the whole decision, except in a case where the road was laid out by the commissioners without the intervention of the freeholders. (^Commissioners of Sher- burne v. Judges of Chenango, 25 Wend. 453.) But the act of 1847 (Laws 1847, chap. 455, § 9), extends the power of the referees on appeal to a partial reversal or modification of the order of the commissioners. Although the referees have the power to reverse or affirm the action of the highway commis- sioners in whole or in part or to make some deviation from the route of the road originally proposed, they cannot lay out an entirely new road on an independent line or affirm part of the commissioners' action and lay out the rest as on a new line. (1888, People ex rel. Wilkinson v. Carman, 47 Bun, 380 ; 14 If. Y. St. Rep. 543.) Wlien to lay out or alter road. — Since the referees possess all the powers, and are to discharge all the duties heretofore possessed or discharged by the three judges (Laws 1847, chap. 455, § 8), therefore, where an appeal is made from a determi- nation of commissioners refusing to lay out or alter a road, and the referees shall reverse such determination, such referees are to lay out or alter the road applied for ; and in doing so, are to proceed in the same manner in which commissioners of highways 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 themselves. (1 R. S. 519, § 91). The referees should make such orders in relation to the laying out or altering the road, as in their judgment the commissioners should have made. (People ex rel. Babcock v. Commissioners of Cherry Valley, 8 N. Y. 476 ; People ex rel. Appeal prom the Commissioners. 263 Shant V. Ohampion, 16 John. 61.) And where they simply reverse a decision of the commissioners, refusing to lay out or alter a highway, a mandamus lies to confpel the referees to lay out or alter such highway. (People ex rel. Zimmer v. Barber, 12 Barb. 193.) The manner in which the commissioners are to proceed in laying out or altering a highway, and which is to be followed by the referees, is fully set forth in the preced- ing chapters. In laying out the road on appeal the referees are not limited to the route specified in the application for the road; they may, in the exercise of a sound discretion, make such varia- tions as they think proper. The departure, however, from the route of the proposed road must not be so great as to induce the belief that preliminary proceedings have been \yholly dis- regarded ; the general course of the road must be preserved. (Hallochv. Woohey, 23 Wend. 328; Woolsey v. Tompkins, 23 Wend. 324; see Ux parte Commissioners of Danube, 1 Cow. 142 ; 1888, People ex rel. Wilkinson v. Carman, 14 N. Y. St. Bep. 543, 47 Hun. 380 ; 1889, People ex rel. Cook v. Eildreth 24 N. Y. St. Bep. 458.) An order laj^ing out a highway may be void for uncer- tainty; it should make its location certain, both as to line and width. (^People ex rel. Waters v. Diver, 19 Hun, 263.) But an order describing road by courses and distances from terminus to termini, commencing at a definite point, capable of identification and running by definite courses and distances to the centre of a highway, but which did not state that the prescribed route was to be the centre of the proposed road, nor state the width contemplated but referred to the appli- cation, which did state the course as intended for the centre of the proposed road, is a compliance with the provisions of section 63, title 1, chap. 16, 1 R. S. (1888, People ex rel. Wells V. Brown, 47 Sun, 459, 14 JST. Y. St. Rep. 457 ; People ex rel. Waters v. Diver, distinguished.^ Commissioners to open. — When the commissioners refuse to open the road laid out by the referees on reversing the com- missioners' decision, a mandamus lies to compel them to open it. (^People ex rel. Shant v. Champion, 16 John. 61.) Such writ is to be directed to " The Commissioners." It is only in case of disobedience to the writ, that the commissioners are to 264 The Law of Highways. be proceeded against personally. (J^.) But where the ref- erees siniply reverse an order refusing to lay out a highway, without giving further directions, the commissioners are not; bound to lay out the highway, and a mandamus will not be granted to compel them to proceed to do it. (^People ex rel. Babcock v. Commissioners of Gherry Valley, 8 N. Y. 476 ; People ex rel. Babcock v. Commissioners of Plainfield, 7 How. Pr. 27.) 4. Refbkebs' Decision and its Effect. Having heard the proofs and allegations of the parties, and agreed upon their decision, they are to reduce such de- cision to writing, sign it and file it in the town clerk's office. Where they cannot all agree as to the decision of the matter, two of them may decide it and sign the decision. (1 R. S. 519, § 89.) Where several appeals are heard by them, they should embrace the whole matter in the one decision. The order should not be signed until they have all deliberated on the matter and agreed upon their decision. Where the referees heard the appeal, and then separated, intending to meet again, but did not, and an order was drawn by the attorney of the appellant and signed by the referees at their several resi- dences, it was held to be ground for reversal. (^Harris v. Whitney, 6 How. Pr. 175; Keeler v. Frost, 22 Barb. 400; Downing v. Bugdr, 21 Wend. 178.) Where the 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. The only power then left them is to decide ; which includes the incidental power of adjourning from time to time for that pur- pose, and to sign and cause to be filed the evidence of their decision. {People ex rel. Robinson v. Ferris, 41 Barb. 121; for form of decision, see Appendix No. 78.) Amending decision. — 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. Tomp- Appeal prom the Commissionbes. 265 kins, 23 Wend. 324 ; Rogers v. Runyan, 9 How. Pr. 248 ; see Matter of Meventh Ave., 49 id. 208 ; People ex rel. Reynolds v. Oity of Brooklyn, 49 Barb. 136.) Effect of decision. — It is provided by the 89th section that the decision of the referees, or any two of them, shall be con- clusive in the premises. {People ex rel. Bailey v. Sherman, 15 Hun, 575.) But this means only that it shall be conclusive on the merits as to the particular case in which the appeal is taken, and ■does not prevent or affect a new application for the same road. (JBruyn v. Grraham, 1 Wend. 370.) Nor is one person con- cluded by the decision of another's appeal in the same matter. (^Clark V. Phelps, 4 Cow. 190.) The determination is conclu- sive as to the necessity of the road. (1884, People ex rel. Cash- man V. Heddon, 32 Hun, 299.) 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 irregularity occur in their proceedings, or in the proceedings of the commissioners in making the order appealed from, such irregularity may be corrected by the Supreme Court on certiorari. {Commissioners of Warwick v. Judges of Orange, 13 Wend. 432.) Due notice must be given to land owners and occupants, ^fter the decision of the referees before laying out the road, ■otherwise the proceedings of the referee will be void. {People ex rel. Odle v. Kniskern, 54 N. Y. 52 ; reversing 50 Barh. 87.) And on reversing the order of the commissioner they must give three days' notice of a day upon which they wUl proceeds to lay out the road. (1888, People ex rel. Wells v. Brown, 47 Hun, 459 ; 14 N. T. St. Rep. 457.) 5. Commissioners to Carey Out Decision. It is the duty of the commissioners of highways of the town to carry out the decision of the referees in the same manner prescribed by section 13 of chapter 180 of the act of 1845. By that section it was provided that " whenever there shall have been any final determination upon any appeal or appeals provided for as aforesaid, making it necessary that any road or highway shall be laid out, altered, opened or discontinued, it shall be the duty of the commissioner or commissioners of highways of the town where the same is to be done, to carry 266 The Law or Highways. 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." Should the commissioners neglect or refuse to carry out such determination, a mandamus may be had to compel them to do it. 6. Effect op Appeal. The appeal operates as a stay of proceedings until the appeal is decided, and the commissioners cannot, in obedience to the decision in A's appeal, lay out a road through B's land while B's appeal is pending. If they do so, they are trespassers. QOlark V. Phelps, 4 Cow. 190.) But the appeal operates as a stay only from the time it was taken, and cannot undo or render illegal what has been lawfully done under the order appealed from. {Drake v. Rogers, 3 Hill, 604.) Where the determination of the commissioners laying out a road is ap- pealed from, the sixty days' notice to remove fences is to be given after the decision of the referees is filed in the town clerk's office. (Laws 1847, chap. 455, § 8 ; Kelly v. Horton, 2 Cow. 424.) It must be given as well where a road has been established by an alteration, after the same had been laid out on appeal, as where a road is originally laid out by the commissioners, and actual notice must be shown. {Case v. Thompson, 6 Wend. 634.) 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 1847, chap. 455, § 9.) The affirmance of the decision of the commissioners laying out a road, is making a decision laying out a road within the mean- ing 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 ex rel. Lyon v. Pike, 18 How. Pr. 70.) But this provision does not apply to a refusal to lay out, alter or discontinue. {People ex rel. Bowen v. Jones, 63 N. Y. 306.) 7. Refbbbb's Fees. Every referee appointed as above provided shall be entitled Appeal peom the Commissioners. 267 to receive two dollars for every day employed in the hearing and decision of such appeal or appeals, to be paid by the party appealing where the determination of the commissioners shall be confirmed, but where it is reversed to be a charge upon the county. (Laws 1847, chap. 455, § 9.) This embraces the case in which the determination is reversed only in part. {People ex rel. Scott v. Supervisors of Orange, 20 Hun, 196.) The statute makes no provision as to who shall pay the referees' fees where they affirm in part and reverse in part the order of the commis- sioners. In such case the county would probably be charge- able for such fees. The affirmance by the referees of an order of commissioners gives them a prima facie right to recover their fees of the appellant, and such right is not suspended by the suing out of a certiorari upon such order to the Supreme Court. {Disos- way V. Winant, 33 Sow. 460, reversing same case, 34 Barh. 578.) Where there are several appeals taken by different per- sons from the same order of the commissioners which are all heard at the same time, the referees are entitled to two dollars for each day occupied in the hearing, as of one appeal only, not two dollars a day as against each appellant separately. Id.') When all the appeals are heard as one, all the appel- lants are to be regarded as the party appealing, and all jointly liable to pay the referees' fees. Consequently, where the ref- erees in such case bring an action against one of tlia appellants severally, for their fees, the action cannot be sustained where the defendant sets up, in answer, the non-joinder of the other appellants. {Id.) It is undoubtedly consistent for the ref- erees to give each appellant a separate hearing, in which event each would be liable for the time occupied in his particular appeal, although the question was the same in all. {Id.) May assign demand for /ees.— The referees may assign their demand for fees, the same as any other demand, and the as- signee can maintain an action for their recovery in his own name. (Id.) 8. In What Cases no Appeal Libs. Where the commissioners of highways of two adjoining towns, in different counties, assemble together in joint board and unite in an order laying out, altering or discontinuing, or 268 The Law op Highways. refusing to lay out, alter or discontinue a road or highway, their judgment and determination cannot be reviewed by ap- peal to a county judge of one of the counties. The statute makes no provision for an appeal in such case. The determination of the joint board of commissioners must be considered final, and equivalent in all respects to an order of one board of com- missioners, affirmed by three referees on appeal. (^People ex rel. Clarhson v. Nelson, 26 How. Pr. 346.) So an appeal does not lie from a determination of the com- missioners, which is void for want of jurisdiction. (^People v. Judges of Suffolk, 24 Wend. 249.) Nor has a party aggrieved a right of appeal to the county court from the determination of commissioners, ascertaining, describing and entering of rec- ord a road used for twenty years. (People ex rel. Com'rs of Cortlandville v. Judges of Qortland, 24 Wend. 491.) What the proper remedy would be in such a case, has not, so far as I know, been decided. But this is certain, that if the proceeding of the commissioners are in any respect, irregular, or if thej'' have no jurisdiction, or exceed their powers, certiorari would be proper. In other cases the party might treat their proceed- ings as void, and set up the matter complained of in any action for penalty, etc., brought by the commissioners, (ic?. ; see also Allyn v. Commissioners of SchodacTc, 19 Wend. 342.) 9. Ceetiokari op Proceedings. Either party, if dissatisfied with the decision of the referees, may sue out a writ of certiorari to the Supreme Court to re- view their proceedings'. But on the return of the referees to the certiorari no other question can be raised than those relat- ing to the jurisdiction of the referees, and the regularity of their proceedings. QBirdsall v. Phillips, 17 Wend. 464 ; Prin- die v. Anderson, 19 id. 391 ; People ex rel. Bodine v. Groodwin, 5 JV. Y. 568 ; People ex rel Van Reneselaer v. Van Alstyne, 32 Barb. 131.) The court on such certiorari cannot examine into the merits of the appeal, or of the decision — the determi- nation of the referees thereon-is final and conclusive, but it may examine info the regularity of their proceedings, and into all questions whether of law or fact on which the referees' juris- diction depends. (^People ex rel. Bodine v. Groodwin, supra ; Commissioners of Warwick v. Judges of Orange, 13 Wend. 432.) Among the questions of jurisdiction thus subject to review Appeal from the Commissioners. 269 is the question whether the owner of the inclosed, improved or cultivated lands, through which a highway is laid, has given his consent thereto. ^People ex rel. Bodine v. G-oodwin, 5 J}f. Y. 568.) Also the question whether the persons making the certificate of its necessity were freeholders (^People ex rel. Ottman v. Commissioners of Seward, 27 Barh. 94) ; also the question whether they were twelve in number (^Town of Q-al- latin V. Loucks, 21 Barb. 578) ; also the question whether the highway was laid out through 'the yard or garden of the owner without his consent (^Ux parte Clapper, 3 Sill, 458), or through an orchard. (^People ex rel. Seward v. Judges of Dutchess, 2S Wend. 360 ; see also People ex rel. Van Rennselaer v. Van Al- styne, 32 Barh. 131.) If any irregularity has intervened previous to the decision of the commissioners, it can be corrected only by certiorari directed to the commissioners. ( Commissioners of Warwick v. Jvdges of Orange, supra; People ex rel. Lasher -sr. Me- Neil,2K Y. Sup. Ct. \T. ^ C] 140. It was held in People ex rel. Nellis v. Smith, 7 Hun, 17, that a recitation in order that notice was given is not proof. A'certiorari is not proper while an appeal is pending to the county judge from the decision of the commissioners. (^People ex rel. Ludlum v. Wallace, 4 N. Y. Sup. Ct. IT. ^ C] 438.) The court will not reverse the decision of the commissioners and referees, if they inspected the premises and heard the witnesses, unless the evidence of the violation of the law by them is conclusive. (1876, People ex rel. Stanton v. Norton, 8 Hun, 357.) Who may have. — The right to have a certiorari is reciprocal and belongs as well to the commissioners as to the appellant. (^Commissioners of Kinderhook v. ClaW. 15 John, 537.) Application for writ. — The application for the writ is found- ed on affidavit, which should set forth facts showing a prob- ability that wrong has been done, and that it is of a nature that can be corrected on certiorari. The application is to be made to the court at special term. It cannot be made to a judge at Chambers. QGrardner v. Commissioners of Warren, 10 Row. Pr. 181.) Notice of the application need not in general be given. (Id. ; See Form No. 79.) 270 The Law of Highways. AUoWance.-^The court may, in its discretion, either allow the writ in the first instance, or grant an order to show cause (^Matter of Bruni, 1 Barh. 187.) Writ and its form. — The writ issues in the name of . the people, and should recite the names of the parties aggrieved and set forth the cause of complaint, with the proceedings, and the people's desire to be certiiied Qcertiorari^ of them, and command the referees to certify and return the record and proceedings to the Supreme Court on a specified day, called " return day," so that the court may cause to be done in the matter what of right ought be done. (^Uz parte Mayor of Albany, 23 Wend. 211 ; People ex rel. McFarlandY. Commis- sioners of Salem, 1 Cow. 23.} The writ should be directed to the referees, by name, and give their title as referees appointed by the county judge, etc., and command them to certify and return to the Supreme Court at general term, on a day to be therein named, the appeal, to- gether with the testimony given, and. offered to be given on the hearing thereof, with their decision thereon, with all things touching and concerning the same. (People ex rel. MoFarland V. Commissioners of Salem, supra.') The writ should be made returnable at general term of the district in which the proceedings sought to be reviewed were had. (^People ex rel. Caldwell v. Kelly, 35 ^aj-5. 444.) It should be tested, signed and sealed in the usual manner. (2 Burr. Pr. 195.) An indorsement should also be made upon the writ, signed by the clerk, showing that the writ was issued by or- der of the court. (^Mott v. Commissioners of Rush, 19 Wend. 640 ; for form of writ, see Appendix No. 80.) Effect of ^ writ. — The "writ, after service, acts as a stay of proceedings (^Patchin v. Mayor of Brooldyn, 13 Wend. 664) and the commissioners should not proceed to carry out the determination appealed from until the proceedings on certiorari are decided. But the pendency of the certiorari does not suspend the right of the referees to collect their fees. (Bissosway v. Winant, 38 Sow. Pr. 460.) The proceedings of the commissioners having been reviewed and reversed on certiorari, makes them illegal and void from the beginning. {Briggs v. Bowen, 60 iV. F. 454.) Appeal feom the Commissionbes. 271 When superseded. — If the writ lias been improperly granted, a motion may .be made to supersede it ; as where it was granted before the proceedings removed were wholly termi- nated, and the motion to supersede it maj' be made either before or after the writ is returnable. (1 Qrary's Pr. 161, and cases cited.) So, after the writ is returned, if it is misdirected, or is otherwise bad in point of law, or was irregularly or im- properly allowed, the court will order it to be quashed. It cannot be quashed before it is returned, or at least return- able. (Jd.) Return to writ. — The referees, prior to the return day men- tioned in the writ, must certify and return to the Supreme Court at general term the appeal, together with testimony given and offered to be given on the hearing thereof, with their decision thereon, with all things touching and concern- ing the same. The return must show affirmatively that the referees had authority to act ; and where their authority and jurisdiction 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 ex rel. Bodine v. Goodwin, 5 N. T. 568 ; People ex rel. Van Rensselaer V. Van Alstyne, 32 Barb. 131.) The decision of the referees being conclusive as to the merits, the court will not compel a return of the evidence relating solely to the merits. (People ex rel. Van Rensselaer v. Van Al- styne, supra.) Such evidence should, however, be included. (For form of return, see Appendix No. 81.) Proceeding to compel return. — Should the referees refuse or neglect to make return to the certiorari, the court may compel them to do so. ( Overseers of Brookhaven v. Overseers of South- hold, 2 Cow. 575. See furtJier as to the practice on certiorari, 1 Crary^s Pr. 151.) Costs. — Referees are not county officers within the meaning of section 6, of 1 B. S. 384, and can in no event be personally charged with the costs of a certiorari issued to them to review their decision. {People ex rel. Bailey v. Sherman, 15 Hun, 675.) On an appeal from an order of referees made on reviewing an 272 The Law op Highways, order of commissioners of highways touching the laying out of the highway, no costs can be allowed the prevailing party. (Peo- ple ex rel. Harvey v. Heath, 20 How. Pr. 304.) It is irregular to insert costs in the record, without a special application to the court (People ex rel. Keenholts v. Robinson^ 25 How. Pr. 345.) Obstructions and Encroachments. 273 CHAPTER XII. OBSTRUCTIONS AND ENCROACHMENTS. 1. Obstructions at common law. 2. Obstruction of navigable rivers. 3. Encroachment by fences. 4. Fallen trees to be removed. 5. Swinging gates in highways. 6. Penalties for obstruction underthe statute. 7. Noxious weeds. 8. Abatement of obstruction, 9. Remedy by indictment. 10. Actions for special damages. 1. Obstructions at Common Law. The public have a right to an uninterrupted passage along a highway for themselves and their carriages to its utmost extent, unobstructed by any impediment, subject, however, to such temporary obstructions as all public highways must suffer in cases of evident necessity. They are entitled to the use and enjoyment of the whole of a highway, and no in- dividual can appropriate a portion of it to his own exclusive use, and shield himself from responsibility to the public, by saying that enough is still left for the accommodation of others. {Hart v. Mayor of Albany, 9 Wend. 571 ; People v.. Cunningham, 1 Denio, 524.) An obstruction of a highway for an unreasonable length of time, although in the prosecution of a lawful business, as in the loading or unloading of wagons or drays, or by stages waiting and soliciting passengers, is in- dictable as a public nuisance, although room enough might still be left for the accommodation of the public on the op- posite side of the street. (Id.) It is immaterial for what length of time the practice may have prevailed, for it is a well known maxim that no length of time will legalize a nuisance. The law of the public street of a city is motion, and any use of a street, though a new one, which does not materially abridge or obstruct the right of passage and repassage, of ingress and egress, and the light and air of the abutting owner gives no cause of action. But every unnecessary material abridgment or obstruction, though of a temporary character, and every con- tinuous material abridgement or obstruction, though made in 18 274 The Law of Highways. the pursuit of a lawful business, and to some extent called for by circumstances arising in the course of such pursuit, by which the right of an abutting owner to pass and repass, to have free access to and egress from his premises, and to enjoy the light and air from the street is unreasonably affected gives to the injured party, in case of special damage therefrom, a right of action against the offending party for the recovery of the damages actually sustained; and each case must be disposed of on its own facts and circumstances. (See Greene V. N. Y. Central, etc., B.It. Co., 1883 ; opinion of Feeedman, J., at trial term, 12 Abb. JV. C, 124.) The question in the above case was as to the right of plaintiff an abutting owner, to recover damages for injury caused by a railroad being built past his house, closing up a park, etc. In connection with the case is a very valuable note by Austin Abbott in which is grouped all of the authorities, both foreign and American, upon the question as to who is authorized to bring an action for obstruction to highways. Any unauthorized obstruction which unnecessarily incom- modes or impedes the lawful use of a highway is a public nuisance at common law. (1 Hawh. P C. chap. 76, § 48.) Thus it is a nuisance at common law to dig a ditch or make a hedge or fence across a highway, or to lay logs or lumber therein, or to do any other act which will render it less com- modious to the people. ( Wellb. on Highways, 440.) But an excavation by consent of the municipal authorities, is not per se a nuisance, and the person making it is not absolutely liable for injuries to travellers, but only for want of proper care to avoid such injury. (1882, Mairs v. Manhattan Real Estate Assn. 89 N. Y. 498.) Slight inconvenience and occasional interruptions in the use of a highway or navigable stream, which are temporary and reasonable, are not illegal, merely because the public may not for the time have- the full use of the highway or stream. (People V. Horton, 64 K Y. 610.) By § 385 of the Penal Code, it is a " public nuisance" for any one to do an act or omit to perform a duty which unlawfully interferes with, obstructs or tends to obstruct or render danger- ous for passage a lake or a navigable river, bay, stream, canal or basin, or a public park, square, street or highway. But if a party follows the direction of a commissioner of liighways, in Obstructions and Enceoachmbnts. 275 making the obstruction complained of, he cannot be punished criminally under the above section for doing so. (1889, People V. Crounse, 21 N. Y. St. Rep. 687.) Where a person is injured by falling off the end of a culvert built by the city of New York over an artificial passage for water overflowing from the New York City acqueduct under authoritjr of the legislature, the town is not liable. The obstruction in the highway, if it be one, is not a nuisance, because it was legalized by act of the Legislature. .(1888, Riley V. Town of Crreenburgh, 21 N. Y.St. Re-p. 434.) What obstructions are allowed. — A temporary occupation, however, of a part of a street or highway by a person engaged in building, or in receiving or delivering goods, from stores and warehouses or the like, is allowed from the necessity of the case ; but a systematic and continued encroachment, though for purposes of carrying on a lawful business is unjustifiable. (^People V. Cunningham, 1 Denio, 524.) The necessity to justify such temporary occupation 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 thrflw wood in 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 in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it. {Com- monwealth V. Passmore, 1 Serg. ^ Rawle, 217.) So, one who has occasion to leave a load in a highway must remove it with promptness. If he let it remain there an unreasonable length of time, it may be removed as a nuisance. (^Northrop v. Burrows, 10 Abb. Pr. 365 ; 1887, Callanan v. aHman, 12 N. Y. St. Rep. 21; 107 K Y. 360.) It is not negligence to allow a plank to lie across a gtitter. (Bush v. Trustees of Greneva,^ K Y. Sup. Ct. [T. ^ C] . 409.) And one doing business in a populous city has the right to temporarily obstruct the sidewalk in front of his place of business, for the purpose of loading merchandise, exercising the right however so as not to unnecessarily incumber the side- 276 The Law of HiGHWAys. walk although he is not required to furnish to those passing a safe passage around the obstruction, such as providing for the passing over steps where skids bar the sidewalk. (1886, Welsh V. Wilson, 101 iK Y. 254.) But where the skids remained in use sometimes tvi^o hours and generally five hours each business day, it is unreasonable and a public nuisance. (1887, Callanan. V. Qilman, 12 K Y. St. Bep. 21 ; 107 K Y. 360.) And it is incumbent upon defendant to show not only that such use of the sidewalk is necessary, but also that it is reasonable in refer- ence to public convenience. (Id.') And the act of defendant driver in backing his wagon upon a sidewalk to receive goods is not per se unlawful. (1887, Sand v. Klinker, 7 N. Y. St, Bep. 21.) It is said to be no nuisance for the inhabitants of a town to unload wood, etc., in the street before their houses, by reason of the necessity of the case, unless they suffer it to continue there an unreasonable time after it is unloaded. (2 Bol. Abr, 137 B.; 1 Eawk. P. 0. chap. 76, § 49.) A work of art, such as an ornamental statue, may be erected in a highway when it does not obstruct travel. {Tompkins v. Hodgson, 2 Hun, 146.) Canal Commissioners may occupy highways when necessary for the pursuit of 'their work, and may make a new road through the adjoining land. QBogers v. Bradshaw, 20 John, 735.) By Laws 1853, chap. 471, § 2, telegraph companies are' authorized " to erect and construct, from time to time, the necessary fixtures for such lines of telegraph, upon, over or under any of the public roads, streets and highways, and through, across or under any of the water within the limits of this State," and the company is bound to use reasonable care in the construction and maintenance of its line. And if it appears that a post was not originally reasonably sufficient or that it was carelessly permitted to become insufficient by decay, then responsibility attaches ; but the company is not absolutely bound to have its posts in the streets so strong and secure that they cannot be blown down or broken by any storm, nor is it bound to insure the safety of passengers in the streets from injuries resulting from the falling thereof. ( Ward v. A. ^ P. Tel. Oo.,llKY.%l.) Where the proximate cause of the breaking and fall thereof was a collision with a runaway team of horses and the wagon. Obstetjctions and Encroachments. 277 to which they were attached, the company is not liable. {Allen V. A. ^ P. Tel. Oo., 21 Hun, 22.) Several owners of lots abutting upon the line of a street, may unite in a biU for an injunction to prevent the erection of a common nuisance, when they ai'e all affected. (1885, Eewett V. W. U. Tel. Co., 13 Wash. Law Reporter, 466.) • It was held in this case in the Supreme Court of the District of Columbia, that a telegraph company can only justify its claim to occupy any portion of the public streets for the con- struction of its lines, by showing a competent legislative grant authorizing such occupation and the existence of a legislative license to a private company to occupy a public , street for its particular purpose cannot exonerate the company from liabil- ity to a citizen who has sustained an injury from the exercise of the franchise. The occupation of the streets of a city by telegraph poles is not an . ordinary servitude imposed upon the highway, like the laying of tramways of stone or iron or the erection of lamp-posts, which are in aid of the easement connected with its service, but is an extraordinary and permanent appropriation of a portion of the surface, for purposes in no way connected with its enjoyment by the public. Judge Hagnbr, in the above case has written a learned opin- ion upon the question of the rights of telegraph companies which would make at least twenty pages of a work of this character and to which reference is made. In Atty-G-en'l ex rel. Rothschild v. United Kingdom Tel. Go., 30 Beavan, 287, the company undertook to dig trenches in which to put their wires, without parliamentary grant but by the assent of the guardians of the highway. A freliminary injunction was refused, leaving the question for the court to decide on trial. In Reg. v. United Kingdom Tel, Co., 9 Cox Crim. Cases, 174, an indictment was found against this com- pany for obstructing the highway by erecting posts, and the jury found defendant guilty as it did not have authority from Parliament although it had from the guardians of the road. Justice Lush in Vernon v. Vestry of St. James, 16 L. R., Ch. Div. page 449, says : " You cannot put anything what- ever upon the public highway and justify it by saying it does far more good to the public than it does harm. A telegraph company could not lay a line of posts along a public highway without the authority of Parliament." 278 The Law of Highways. To the same effect is a case in 9th L. R. Ch. App,, page 221 Groodson V. Miehardson, Judge Hazen" continues as follows : " I see no reason why the citizens should be obliged to submit in silence to the disfigurement and injury to their property from the erection before it of these huge poles, which have been tripled in size since they were first introduced, looking like giant gibbets, or the unsightly remnants of a burnt forest j to the risk of life and limb from their falling and from the breaking and fall of the wires from wind or sleet, etc., etc." " Unless the telegraph company can justify its claim to erect these poles under a legislative grant, direct or derivative, its acts of interference with the streets by incum- bering them with the poles lying along the curbstones, the displacing of the paving, and digging holes in the bed of the streets or in the pavements, the planting of the poles and stringing the overhead wires upon them, would each and all be an illegal intrusion upoo the public which would con- stitute the company a trespasser and its acts a nuisance." Much as we would like to give Judge Hagner's opinion in full, space will not permit ; but any who are interested in this subject will find it most instructive and valuable. Reference is made to' Wood on Nuisances (Highways) sec. 274; 2d Dillon on Mun. Corp., sec. 698. In Commonwealth v. City of Boston, 97 Mass., 554, where the city under a general statute authorizing the erection of poles under direction of the municipality by companies incorporated by the State of Massa- chusetts, granted license to a New York Company, the poles were declared a nuisance. In Dickey V. Maine Tel. Co., 46 Me. 483, where a stage, out of the beaten road,ran against a wire hanging too low, and injured a passenger, the telegraph company was held liable, because the traveler had the right to go over all portions of the road, however wide, and whether it was kept in order by the highway commissioner or no. (See also Sheldon v. West. U. Tel. Co., 51 Hun, 591). We now come to the cases in our own State. By the Law of 1853, ch. 471, the Mutual Telegraph Company was authorized to construct their lines over private lands, " subject to the right of the owner or owners thereof to full compensation for the same." The company planted its poles and stretched its wires over them in front of the plaint- iff's lots and residence, without previously making compensa- Obstructions and Enckoachments. 279 tion to him. He brought proceedings for their removal and the company contended that the plaintiff's right was clear to resort to an action at law to compel compensation, but the court held that as the payment did not precede the appropriation, the poles should be abated. (jDmenbury v. Mut. Tel. Oo., 11 AU. N. O. 440.) In Clausen v. Baltimore ^ Ohio Tel. Co. (Sup. Ct. Chamb. N. Y. Daily Reg. Sep. 19, 1884), it was held that if a proposed telegraph pole would interfere with or obstruct the light, air or access to any building which the abutting owner might erect, or render more difficult the access to his premises, under any use to which they might be applied, such owner is enti- tled to claim that the pole shall not be erected until proceed- ings have been instituted to acquire the right to do so, and that the act of Congress as to post roads does not impair this right. The erection of telegraph poles in the streets, although under legislative and municipal authority was held by the Superior Court of New York, not to be a street use, and to be illegal ; that the legislature had no power as far as the rights of abutting owners are concerned, to authorize the use of the streets of New York for the erection of poles to conduct tele- graph and telephone wires, the legislative authority over the streets being limited to regulations of the use for which the streets are held by the city in trust. {Met. Tel. Co. v. Col- well Lead Co., 50 iV: F.' Super. Ct. Rep. 488.) The same court refused to issue an injunction to restrain the erection of poles for supporting the wires necessary for electric lights, on the ground t"hat this was a legitimate ser- vitude upon a public highway. (^Twttle v. Brush Illuminating Co., 50 N. Y. Super. Ct. 464.) O'GOKMAN, J., in a special Term Decision, held that the Leg- islature has no power to permit the erection of poles for the support of wires in front of a person's premises, which impair his use and enjoyment of light, air and free access to his prem- ises without due compensation. (^Tiffany v. U. S. Illuminat- ing Co., iV. Y. Daily Reg., April 9, 1884.) In this case an injunction »was granted although the com- pany denied that they intended to place poles in front of plaint- iff's property. In the case of the People v. Met. Telephone Co. (31 Run, 280 The Law op Highways. 596), it was held that the people could maintain an action to have certain poles adjudged a public nuisance as interfer- ing with the highway and the same abated and the defend- ant enjoined from erecting more poles and structures, and could recover damages. This case further holds that if the poles had been of proper size, etc., as authorized, they could not be alleged to be a nuisance or unlawful obstruction. The case of the People ex rel. McManus v. Thompson (32 Hun, 93), was for a mandamus to compel the removal of an electric light pole, and it was held that even if the ordinance author- izing it was void, that the proper remedy was by action. Concerning these two cases Judge Hagner in Sewett v. W. U. Tel. Co., supra, says, " These are cases where the sovereign attempted to punish and restrain companies from the plain exercise of its own grant, the sovereign may tie its own hands by its grants, while it would be powerless to deny a right of •action to a citizen who has been injured by the exercise of its granted franchise." The Supreme Court of Minnesota has decided that the erection and maintenance of telephone poles and wires in a city street, the fee of which is in the adjacent proprietor, is an infringement of the property rights of such proprietor, notwithstanding that the proper public authorities had con- sented to such a use of the street. (1887, Willis v. IJrie Tel- . egraph ^ Telephone Co., 37 Minn. 347 ; 34 Northwestern Re- porter, 337.) The legislature of New York by an act passed March 8, 1886, directed that whenever any wire used for any telegraph, tele- phone, electric light or other electric purpose, or for the pur- pose of communication otherwise than by the aid of electricity is or shall be attached to, or does or shall extend upon or over any building or land, no lapse of time whatever shall raise a presumption of any grant of, or justify a prescription of any perpetual right, to such attachment or extension. (Laws 1886, chap. 40.) What are not allowable. — But if the obstruction in such case be continued beyond a reasonable time, it becomes a public nuisance. (See page 314 ante.') Thus in the case of Rex v. Russell (6 East. 427), a wagoner was convicted of a nuisance for occupying one side of a public street in a city, before his Obstructions and Encroachments. 281 -warehouse, in loading and unloading his wagons for several hours at a time, both by night and by day, and having one wagon at least usually standing before his warehouse, so that no carriage could pass on that side of the street, although there was room for two carriages to pass on the opposite side of the street. 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 anything which impeded that free passage, without necessity, was a nuisance ; that if the nature of the defendant's business was such as to require the loading and unloading of so many more wagons than could con- veniently be contained within his own private premises, he must either enlarge his premises or remove his business to some more convenient spot. So in Rex v. Cross (3 Gampb. 224), the defendant was indicted and found guilty for keeping coaches at a stand in the street waiting for passengers. The same principle was acknowledged in Rex v. Jones (3 Camph. 230), where 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 neces- sary for his trade, and that it occasioned no more inconven- ience than draymen letting down hogsheads of beer into the ceUar of a publican. But Lord Ellbnborough said : "If an unreasonable time is occupied in the operation of delivering 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 in- convenience 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 nuisance. The defendant is not to eke out the inconvenience of his own premises by taking the pubUc highway into his timber yard ; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." Again, in People v. Cunningham (1 Denio, 524), where the defendants, brewers, were in the habit of de- 282 The Law op Highways. livering their slops in the public street to purchasers, and the street was obstructed and rendered inconvenient by the carts and teams resorting thither for it and waiting for a load, it was held that the defendants were guilty of a nuisance, and that the consideration that the teams and wagons were not. owned by them, or under their control, did not excuse them,, they having in effect, by the manner of conducting their business, invited these assemblages at that place. The fact that the defendants' business is lawful, does not afford them a justification in annoying the public in transact^ ing it; it gives them no right to occupy the public highway^ so as to impede the free passage of it by the citizens generally- (Id.) And a person has no right to incumber the street with steam boilers, (1888, Stewart v. Porter Manufacturing Co., 13 N. T. St. Rep. 220) nor a street railroad to leave snow piled up in the street which it has removed from its tracks (1888,, Broadway, etc., B. B. Co. v. Mayor of New York, 16 N. Y. St. Bep. 950.) Where a municipal corporation without authority to do so^ gives a permit to a grocer to allow his wagon to stand day and night in front of his store, and a person is injured by the thills of the wagon, which were held up by strings, falling upon him, such storing of the wagon is a public nuisance,, and the city is liable. (1889, Cohen v. Mayor of New York,. 113 N. Y. 632 ; 23 K Y St. Bep. 509.) In the case of Bex v. Carlile (6 Carr. ^ Payne, 636), the- defendant, who was a bookseller in Fleet street, having been distrained for the non-payment of a church rate, put into one of his windows the efSgy of a bishop of the Established Church, under which was written "Spiritual Broker," and into the other window, a man in ordinary dress, under which was written " Temporal Broker," and afterwards added the figure of the devil, through the arm of which was tucked that of the bishop. The exhibition attracted a crowd to look at it,, so that passengers were obliged to go off the foot-path into the^ carriage-way, as there was not room for them to walk on the- foot-pavement. Pakkek, J., admitting that the defendant had a right to do as he chose on his own premises, provided he did nothing to injure or annoy his neighbors, or the public,, instructed the jury that, if the exhibition caused the foot-way to be obstructed, so that the public could not pass as they Obstkuctions and Enceoachments. 283 ought to do, this was an indictable nuisance, and that it was not essential that the figures should be libelous, or that the crowd attracted should consist of idle, disorderly and dissolute persons. He said, " if a place is situated 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 occujjation of their houses, this is a nuisance for which the party is indictable." It is, no doubt, a nuisance to dig a ditch or lay logs or wood in a highway; and whosoever sustains an injury from such a cause, without any fault of his own, may maintain an action against the author of it. (^Harlow v. Sumiston, 6 Cow. 189.) The placing of a log at the threshold of a ferry, is an ob- struction in the highway, and any one sustaining damages' thereby may recover. ( Oshorn v. Union Ferry Co., 53 Barh. 629.) It is also a nuisance to maintain on one's land a stag- nant pond, injurious to the health of his neighbor. {Adams v. Popham, 76 N. Y. 410.) One travelling on the highway is justified in assuming that it is safe, and where he is injured, in consequence of a defect, he may recover. {Weed v. Village of Ballston Spa, 76 N. Y. 329.) A bridge across the street has been held to be a nuisance. {Knox v. Mayor of New York, 55 Barb. 404.) But all lands within a highway fence are not necessarily subject to the right of way, and where they are not so subject, they may be occupied by the owner, and if he place an obstruction there and another is injured by it, he is not, therefore, liable. {Id.) Where the road is laid out by the commissioners, the public are entitled to the uninterrupted and free use of the road, to the full width laid out ; and where the road is claimed by the user, the extent of such user deter- mines its width. But the public are entitled to the use of the road to a greater width than laid out in the one case, or used in the other ; and if a man occupy his lands beyond those limits, without fencing it, and place an obstruction there, he cannot be made liable to one injured thereby. Where a building stands in whole or in part upon a public highway and obstructs the travel of the public thereon, the commissioners may order its summary removal even although there is still room enough left on the highway to enable the public to drive past with teams without danger. (1884, Van Wych v. Lent, 33 Em, 301.) 284 The Law op Highways. Any act of an individual done to a highway, though per formed on his own soil, if it detract from the safety of travel- lers, is a nuisance. Therefore, 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 ut- most care to prevent it, he is, in the absence of gross negli- gence on the part of the party injured, liable for damages, and the raceway will be adjudged a nuisance. {Dygert v. Schench, 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 af- fected by it, but because it obstructs a passage which all have a right to use. {Lansing v. Smith, 8 Cow. 146.) Where a coal hole had been made in a sidewalk and was not properly covered — ^held that the lessee of the building is liable, separately or jointly with the lessor for injuries resulting there- from. (^Irvine v. Wood, 51 JV. Y. 224.) All that is neces- sary to prove is, the existence of the hole, defendant's re- sponsibility therefor and that in passing plaintiff fell into it. (1880, Clifford v. Dam, 81 N. Y. 52.) Yet, it seems, that where an excavation is made by consent of the municipal authorities, it is not per se unlawful and a nuisance and the person making it is not absolutely liable to persons injured thereby, but only for want of proper care to avoid such injury. (1882, Mairs v. Manh. Ileal Ust. Asso., 89 JV. Y. 498.) Although no formal municipal license to the owner to make a coal hole in the sidewalk in front of his premises is shown, yet authority to do so may be reasonably inferred from an acquiescence of eighteen years without ob- jection from the city. (1888, Jennings v. Van iSchaick, 20 Abh. If. C. 324.) So, an excavation made adjacent to a high- way, renders the owner of the land liable to a traveler who, using ordinary care, falls into it, (^Beck v. Carter, 68 iV. Y. 283,) such as post holes, though they may be in a part not used in passing. ( Wright v. Saunders, 65 Barb. 214.) This principle applies to the tow-path of a canal. (^Conklin v. Phoenix Mills, 62 Barb. 299.) Obstetjctions and Encroachments. 285 If a pile of stones has a tendency to frighten horses and is of a dangerous character, although not technically a defect in th'e highway, the turnpike company can be made liable for damage caused to travellers thereby, after notice of its char- acter and neglect to remove it. (1880, Eggleston v. Columbia Turnpike B. Co., 82 N. 7. 278.) And where defendant who owned land on both sides of the, highway left heaps of stones by the highway for a number of years some within a foot of the travelled track, he rendered himself liable for damages to plaintiff through injuries occurring to plaintiff by her horse becoming frightened and running away. (1889, EougTitaling V. Shelly, 51 Sun, 598 ; 22 N. Y. St. Bep. 17.) And this although defendant did not leave all the stones there. (7i.) Whatever is permitted by a statute which the Legislature is constitutionally competent to pass, is not, in judgment of law, a nuisance. {Leigh v. Westervelt, 2 Duer, 618 ; Williams V. JSr. Y. Central B. B. Co., 18 Barb. 222.) Unless there is an excess or irregularity in the exercise of the power conferred, in which case it becomes a public nuisance pro tanto. (^Ben- wick V. Morris, 3 Hill 621 ; affirmed, 7 Rill, 575.) An insecure wooden awning made for private purposes, if unauthorized, is an encroachment on the public street, and a nuisance. (^Hume v. Mayor of N. Y., 74 N. Y. 264.) While a staircase leading into the basement with a railing, if within the stoop line, is not a nuisance per se, the question as to whether it is dangerous as to its relation to the travelled part of the sidewalk is one of fact and the burden of proof is on plantiff to show that it is a nuisance in fact or contrary to ordinances. (1887, Williams v. Hynes, 55 Super. Ot. 86.) Where a party has obtained permission from a municipal corporation to lay gas pipes in a street, he is liable for injuries sustained in consequence of the failure of his servant to restore the street to a safe condition. (^Mo Camus v. Citizens' Cfas Light Co. of Brooklyn, 40 Barb. 380.) It is unlawful for any person or persons or corporation, to deposit, cast, leave or keep, or cause to be deposited, cast, left or kept, upon or near any highway or route of public travel, either on the land or on the water, any noisome or un- wholesome substance, or to establish, maintain, continue or carry on, or cause to be maintained, continued or carried on, upon or near any public highway or route of public travel, 286 The Law of Highways. either on the land or on the water, any business, trade or manufacture which is or shall be noisome or detrimental to public health. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hun- dred dollars, or by imprisonment not less than three nor more than six months. (Penal Code § 431). By the second section of the above law, which does not seem to have been repealed by chap. 593, Laws 1886, but prob- ably is by implication, persons aggrieved are to serve a notice upon persons guilty of violation, when such person must re- move the substance or discontinue the manufacture, or in de- fault forfeit the sum of twenty-five dollars for each day's neg- lect. But the person bringing the action must give bonds, to be approved by a justice of the Supreme Court. Section 661 of the Penal Code as amended 1885, chap. 523, is as fol- lows : Any person who wilfully throws, drops or places, or causes to be thrown, dropped or placed upon any road, high- way, street or public place any glass, nails, pieces of metal, or other substance which might wound, disable or injure any animal, is guilty of a misdemeanor. An obstruction in a ditch beside the highway which throws the water upon the high- way so as to render passage over it less convenient is an obstruction not an encroachment. (1887, Dominick v. Hill, 6 N. Y. St. Rep. 329). Public parades. — By chapter 590 of the Laws of 1872, as amended by chapter 42 of the Laws of 1880 and chap. 543, Laws 1886, no procession or parade is to interfere with the free passage of cars on railways, and all processions or parades are forbidden to occupy the streets to the exclusion of other citizens, unless six hours' notice has been given to the police, who may lay out the line of march and the width of the column. The national guard, police and fire departments and associations of veteran soldiers are excepted. Parades are forbidden on Sunday, excepting funeral processions in the course of which there shall be no music, fireworks, discharge of cannon or firearms, or other disturbing noise, provided that in any military or Grand Army of the Republic funeral, music may be played while escorting the body, but not within one block of a place of worship, when worship is being celebrated. Obsteuctions and Enceoachments, 287 The throwing of certain substances, upon the streets of Ne\r York, the interference with street cars by parades, parades without permission from police and all parades on Sunday are forbidden by Laws 1882, chap. 410, § 19^8, 1942. The penalty is twenty dollars, or an imprisonment of ten ■days. Any injury to persons through explosion of fire-works in the street, makes the wrong-doer liable. (^Conklin v. Thompson, 29 Barb. 218.) Steam Engine. — ^It shall not be lawful for any owner or owners or the servant or agent of any owner or owners of a carriage, Tehicle or engine propelled by steam, to allow, permit or use the same to pass over, through or upon any public highway, road or street, unless sucR owner or owners or agent or ser- vant shall send before the same a person of mature age at least one eighth of a mile in advance, to notify and warn persons travelling or using said highway, road or street with horses or other domestic animals of the approach of such car- riage, vehicle or engine, and at night said person to carry a led light, except in incorporated cities and villages. 2. Any person violating the provisions of this act shall be guilty of a misdemeanor and liable for any damages sustained by any person or persons travelling or using said highway with horses or domestic animals as aforesaid. § 3. This act shall not apply to steam railroads. (Laws 1886, chap. 269.) Wild animal. — A person who wilfully drives or leads or causes to be lead or driven along any road or highway any wild and dangerous animal, unless a person of full age precedes such animal at least a half a mile to give warning of its ap- proach, is punishable by imprisonment not exceeding six months or a fine not exceeding |250 or both. (Penal Code, § 640, sub. 11.) 2. Obsteuction op Navigable Rivees. It has been before said (ante p. 13) that a navigable river com- mon to all men, is a highway : and it is governed by the same rules, so far as obstructions and nuisances are concerned, as are highways on the land. All citizens may use it only as a high- 288 The Law op Highways. way for purposes of navigation. They have no right exclu- sively to occupy any part of it, by either floating ot perma- nent buildings or obstructions. {Hart v. Mayor of Albany, 9 Wend. 671.) The right of each citizen to use such river as a highway must, everywhere, within reasonable limits, accom- modate itself to the same right in the public at large. Every unauthorized obstruction of a navigable river is a public nuis- ance. (See Wood on Nuisances, § 478.) Lord Hale, in his treatise De Jure Maris, chap. 3, after stat- ing the clause in magna charta, which directs the removal of nuisances, says : " These nuisances, are such as hinder or ob- struct the passage of boats : as wiers, piles, choking up the pas- sage with filth, diverting of the river by cuts or trenches,, decay of banks, or the like." Mr. Hawkins says : It seems certain that it is a common nuisance to divert part of a public navigable river, whereby the current of it is weakened and made unable to carry vessels- of the same burden as it could before. 1 Hawk. P- C. chap. 75,. § 11. So it is a common nuisance to lay timber in a public river, although the soil on which it is laid belong to the party, provided it obstruct the necessary intercourse. (3 Bac. Abr. 686.) So it is unlawful for an individual, without special au- thority, to construct and moor a floating storehouse or vessel for the purpose of receiving and delivering goods and merchan- dize in any public river, or in any port or harbor. Such per- manent appropriation and exclusive occupation of a portion of a public river, is an obstruction to its free and common use, and is indictable as a public nuisance. QHart'y. Mayor of Albany, 9 Wend. 571 ; see also People v. Vanderbilt, 26 N. Y. 287.) The erection of a building on, the bank of a navigable river, below the line of low water, is not per se a nuisance. (^Wet- more v. Atlantic White Lead Co., 37 Barb. 70.) It is not allowable to permanently anchor a raft of timber in a navigable stream. (^Moore v. Jackson, 2 Abb. iV. (7. 211.) 3. Encroachment by Fences. Sow removed. — In every case where a highway shall have been laid out, or ascertained, described and entered of record in the town clerk's office, and all roads not recorded, which have been or shall have been * used as public highways for * So in the statute. Obsteuctions and Enceoachments. 289 twenty years or more, and the same have been, or shall be ob- structed in any manner or encroached upon by fences or other- wise, the commissioner or commissioners of highways of the town shall, if in his or their opinion it be deemed necessary, order such obstructions or encroachments to be removed, so that such highway may be of breadth originally intended. The commis- sioner or commissioners making the order shall cause the same to be reduced to writing and signed, and shall also give notice in writing to the occupant or owner of the land to remove such obstructions or encroachments within sixty days. Every such order and notice shall specify the breadth of the road origin- ally intended, the extent of the obstruction or encroachment, and the place or places where the same shall be. (1 B. S. 521, § 103, as amended by Laws of 1878, chap. 245 ; for forms of order and notice, see Appendix Nos. 82 and 83.) Since the passage of the act of 1878 amending this statute, commissioners of highways have authority to compel the re- moval of all obstructions or encroachments upon a highway, whether the highway shall have been laid out, ascertained, de- scribed and entered of record or shall nob have been recorded but shall have been used as a public highway for twenty years or more. (1886, People ex rel. Butler v. Hunting, 39 Hun, 452.) No person shall be required to remove any fence under the preceding provision, except between the first day of April and the first day of November in any year. (1 B. S. 522, § 109.) This is a simple, speedy and inexpensive mode of proceeding, and it is only when some special reason exists requiring it, that the remedy can be pursued by a citizen in his individual char- acter, and to sustain an action for injunction he must show that he has sustained damage peculiar to himself, and beyond that of the general public. (1889, Wakeman v. Wilbur, 21 K Y. St. Bep. 556.) The old rule that a road must be technically laid out to pre- vent an action for an obstruction or infringement of a high- way was abrogated by the above amendment. All highways whether laid out or used as highways for twenty years, were subject to the penalty. The rule laid down in Peckham v. Henr derson, (27 Barb. 207), of an encroachment not amounting to a public nuisance is not in harmony with Priggs v. Phillips, (103 JSr. Z. 77 ; 3 iV. F. St. Bep. 69. See Baylis v. Boe, 24 JST. Y. St. Bep. 710.) 20 290 The Law of Highways. Service of notiee. — Where a statute prescribes a notice as a precedent to doing an act, and does not prescribe the mode of giving it, personal service is necessary. {McDermott v. Board of Police, 5 Ahh. Pr. 422 ; Rathbun v. Acker, 18 Barb. 393.) Penalty for not removing. — If such removal shall not be made within the time above mentioned, the said commissioner or com- missioners may summarily remove, or cause to be removed, such obstructions or encroachments, and the owner or occupant of the premises to whom the notice shall be given, shall pay to such commissioner or commissioners all reasonable charges therefor, and shall forfeit the sum of fifty cents for each day that such obstruction or encroachments shall remain unre- moved, after the expiration of the time mentioned in said notice, which shaU. be collected by suit in justice's court, and shall be applied to the improvement of the roads and bridges of said town. (1 R. S. 522, § 104, as amended by Laws of 1878, chap. 245.) The statute does not abrogate the common law remedy of abatement of nuisance by the mere act of individuals, or abolish the proceeding by indictment. ( Wetmore v. Tracy, 14 Wend. 250.) Proceedings. — To bring a person in default for not obeying the order of the commissioners, and render him liable for the penalties for an encroachment on the highways, it is necessary that the commissioners should meet, deliberate and decide on the alleged encroachment, and give notice to the party to re- move his fences within sixty days, which notice ought to state specially the breadth of the road originally intended, the extent of the encroachment, and the place or places where, so that the party may know how to obey the order for removing his fence. (Spicer v. Slade, 9 John., 359.) When the encroachment is not denied, all the commissioners must confer together in regard to making an order for its removal, or be duly notified to attend a meeting of the commis- sioners for the purpose of conferring thereon and the majority may act (1 R. S. 525, § 125 ; 1877, Phillips v. Schumacher, 10 Hun, 405) ; but when the encroachment is denied, and the fact is to be inquired into by a jury, it was held, in an early case, that one of the commissioners only may act, and make complaint to a justice of the peace ; or that, at least, a want of joint con- Obstructions and Encroachments. 291 sultation of all the commissioners will not vitiate an inquest subsequently found. The safer course is, however, for all the commissioners to meet and deliberate, or to have notice to meet and deliberate on the matter, before the notice is given in every ease. And in Fitch v. Commissioners of Kirhland (22 Wend. 132), it was held that an order for the removal of fences, made by two commissioners in the case of an encroachment on a highway was void, it not appearing on the face of the order that the third commissioner was duly notified to attend a meeting of the board for the purpose of deliberating on the subject of the order. A complainant is not estopped from disputing the validity of an order of the commissioners, directing removal of his fence as an encroachment, by failing to serve a written notice denying such encroachment. {Borries v. Horton, 16 JBun, 139.) The breadth of the road originally intended, the extent of the encroachment, and the place or places in which the same shall be, must be given with precision. In Mott v. Commissioners of Rush (2 Hill, 472), the court held it to be an incurable defect that the notice and order omitted to specify the original breadth of the road, and the extent and places of the encroach- ment. The order and notice in that case described the en- croachments as being " of the average width of one rod or up- wards." It was insufficient ; " The statute," says the court, " is very explicit, and for an obvious reason, viz. : to enable the party, if he see fit, to comply with the order at once." The description should be full and precise, so as to fix the place and extent of the encroachment beyond all doubt or embarrass- ment to the occupant. The commissioners are required to put the party in possession of all the particulars of the encroach- ment necessary to enable him to go upon the ground, where it is alleged to exist, and remove it at once. (For form of order and notice, see Appendix Nos. 82, 83, 84.) Where proceedings to remove an encroachment of fences upon a highway are instituted under the provisions of the B. S. as amended by chapter 125, Laws of 1870, the notice must specify the breadth the highway was originally intended to have been. {Cool v. Covil, 18 Hun, 288.) How width to he ascertained. — The commissioners are to as- 292 The Law of Highways. certain the width from the survey of the road recorded with the order laying it out. In Talmage v. Huntting (29 N. T. 447), which was an action to recover penalties for encroach- ments, alleged to have occurred on a highway, brought under an act regulating highways in the counties of Suffolk, Kings and Queens, under which act the provision, with regard to en- croachments, is not limited to laid out highways, the court held that, before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertained and determined in some mode prescribed by law ; and that the jury called to determine the disputed question of an encroachment, has no power to determine the question of width and boundaries. Proof of laying out. — Although it is essential that the road shall have been laid out and recorded, or used as a highway for twenty years, yet it is not necessary that the commissioners prove all the proceedings preliminary to the laying out of the road. It will be sufficient for them to show the record thereof, and that it was opened and used as a public highway. (^Sage V. Barnes, 9 John, 365 ; 1873, Chapman v. Crates, 46 Barb. 313 ; 54 N. Y. 132 ; Marvin v. Pardee, 64 Barl. 353.) Where highway is discontinued. — If a highway is obstructed by a fence, and the commissioners discontinue the highway, the fence thereupon ceases to be a public nuisance, and an appeal from the order discontinuing such highway does not make the fence illegal. (Drake v. Rogers, 3 Hill, 604.) But the owner of the land cannot himself work an abandonment of a highway by obstructing it ; the public alone can do that by a non-user for twenty years, or by such an entire and absolute abandonment as can leave, under the circumstances, no question of intent. {Amsbey v. Hinds, 46 Barb. 622.) How penalty collected. — It is provided that the penalties- and charges for removing the fences shall be " collected in the same manner provided in the forty-fifth section of said title." This is evidently a mistake, for the forty-fifth section does not provide any manner for collecting penalties. The penalties should be collected by bringing an action before a justice of the peace in the same manner that other Obstructions and Enceoachments. 293 actions are commenced. See as to the manner in which com- missioners are to sue, ante p. 136 et seq. Plea of title. — Some doubt has existed in the courts as to whether a plea of title by a defendant sued for penalties for €ncroaching on a highway, ousted the justice of jurisdiction. In Parker v. Van Houten (7 Wend. 145), it was held that a plea of title was no bar to an action by commissioners for an obstruction of a highway, inasmuch as the public did not claim title, but only an easement of passage. But in Randall V. Crandall (6 Mil, 342), it was held that the question of the Tight of way, either public or private, is a question of title to real property which a justice of the peace has no jurisdiction to try. This case was cited in Little v. Denn (1 Keyes, 235), which was a case in the Court of Appeals, and it was there said that the question was well settled. However, if the defendant wishes to take objection to the jurisdiction of the justice on the grounds that the question of right of way involves a question of title, he must, at the time of answering, deliver the undertaking prescribed by section fifty-six of the Code (§ 2952 of Code of Civil Procedure) ; and if he do not deliver such undertaking, he is precluded from drawing the title or right of way in question in his defence. {Id.) But though the defendant, by omitting to give the requisite undertaking, has precluded himself from drawing the right of way in question, he has the right to introduce evidence to show that the obstruction complained of, is not within the boundaries of the highway. This does not involve the ques- tion of title. (Id.) Where encroachment is denied. — If the occupant to whom notice is given shall, within five days, deny such encroach- ment, the commissioners, or some one of them, shall apply to anj' justice of the peace of the county, for a precept directed to any constable of the town, to summon twelve freeholders thereof, to meet at a certain day and place, to be specified in such precept, and not less than four days after the issuing thereof, to inquire into the premises. The constable to whom such precept shall be directed, shall give at least three days' notice to the commissioners of highways of the town and to the occupant of the land, of the time and place at which such 294 The Law op Highways. freeholders are to meet. (1 B. S. 522, § 105; for forms herein, see Appendix No. 85.) The denial of the occupant must be in writing {Lane v. Cary, 19 Barl. 537.) The application of the commissioners to the justice should also be in writing. The statute, by free- holders, means such as have the legal title to real estate — such as are freeholders without a proceeding in court to make or declare them so; a legal title is requisite. (People ex rel. Ottman v. Synds, 30 N. Y. 470.) See further as to the free- holders, ante Chap. VIII, svh. 6. It was held in Pugsley v. Anderson (3 Wend. 468.), that the justice acted ministerially in these proceedings, and had no duty to perform except to issue the precept for the jury, and to swear the jury and witnesses; and that he had no right to decide upon the qualifications of the jurors. But by the act of 1862 (chap. 243, § 1), it is provided that the justice shall preside at the trial in the same manner as upon trial of an issue joined in a civil action commenced before him, and that he shall have the power, and it shall be his duty to decide as to the competency of the jurors, the competency and admissi- bility of evidtoce, and all other questions which may arise before him in the same manner, and with the like effect, as upon a jury trial in civil actions before him. The justice should not annex to the precept the list of jurors to be sum- moned. If he should do so, the proceeding would be irreg- ular, but the irregularity is waived by appearing and taking no objection to the jury on that ground. {Mott v. Commis- sioners of Bush, 2 Mill, 472.) As to whether appeal lies from the verdict of such a jury to the County Court, see Commissioners of Jamaica v. Van Allen, 32 Hun, 61. Proceedings on trial. — On thfe day specified in the precept, the jury so summoned shall be sworn by such justice, well and truly to inquire whether any such encroachment has been made and by whom ; such witnesses as may be produced by either party shall also be sworn by such justice, and the jury shall hear the proofs and allegation^ which may be produced and submitted. (1 B. S. 522, § 106 ; for form of oath, see Appendix No. 86.) Upon the hearing before the jury, as provided in the above Obstructions akd Enckoachments. 295 section, the justice who has issued the precept to such a party, shall preside at the trial in the same manner as upon the trial of an issue joined in a civil action commenced before him; six of the jurors summoned shall be drawn and empanelled in the same manner as upon trial by jury in civil actions before him, and he shall have the power, and it shall be his duty to decide as to the competency of jurors, the competency and admissi- bility of evidence, and all other questions which may arise before him, in the same manner and with the like effect as upon a jury trial in civil actions before him ; and such justice shall adjust and determine the cost of such inquiry, and in case the jury shall find an encroachment, he shall render and docket a judgment to that effect, and for such costs against the person or persons who shall have denied such encroach- ment; in case the jury find no encroachment, he shall render and docket a judgment to that effect against the commissioner or commissioners prosecuting the proceedings, and also for such costs, together with the damages, if any, which may have been fixed by the jury, and payment thereof shall be enforced by such justice, as in other cases of judgment rendered by him. (Laws of 1862, chap. 243, § 1.) The judgment finding that an encroachment has been made, should state the particulars of the encroachment, so as to guide the party in removing it. (^Fitch v. Commissioners of KirUand, 22 Wend., 132; Briggs v. Doughty, 7 Hun, 82.) Should the jury disagree, the justice may discharge them and issue a new process to summon another jury. (^People ex rel. Ridgeway v. Oortelyou, 36 Barb., 164.) It was provided by sections 107, 108 of the Revised Statutes (1 B. 8., 522), that if the jury find that an encroachment has been made, they shall make and subscribe a certificate, in writing, stating the particulars of such encroachment, and by whom made ; which shall be filed in the office of the town clerk. The occupant of the land, whether such encroachment shall have been made by him or by any former occupant, shall remove his fences within sixty days after the filing of such certificate, under the penalty provided in the one hundred and fourth section of this title (cited above). He shall also pay the costs of such inquiry ; and if the same shall not be paid within ten days, the justice shall issue a warrant for the col- lection thereof in the manner provided in the forty-third sec- tion of this title. 296 The Law of Highways. If the jury find that no encroachment has been made, they shall so certify, and shall also ascertain and certify the dam- ages which the then occupant shall have sustained by such proceeding; which, together with the costs thereof, shall be paid by the commissioners, and shall be charged in their favor against the town by which they shall have been elected. It is provided by the act of 1862, the first section of which is above cited, that the payment of the judgment rendered by the justice, in case of an encroachment, shall be collected in the same manner as in other cases of judgment rendered by him, so that the provisions in section one hundred and seven, above cited, in relation to the collection of the judgment, is superseded. But in other respects there does not appear to be anything in the act of 1862 inconsistent with the sections last cited. The jury should make and subscribe a certificate in writing, stating the particulars of the encroachment, and by whom made, and the same should be filed in the town clerk's office. The occupant has sixty days to remove the fence after the filing of such certificate. Right of appeal. — The person or party against whom such judgment shall be rendered, may, within sixty days after filing the certificate of the jury, appeal from the finding and judg- ment 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 duty of such justice, in his return to such appeal, to embrace copies of all the papers made and served in the proceeding prior to issuing the precept for such jury, and all evidence and proceedings before him, together with the finding of the jury and judgment entered thereon. All the provisions of title eleven, chapters third and fifth of the Code of Procedure are extended to such appeals, so far as the same are applicable thereto. (Laws 1862, chap. 243, § 2.) The appeals in encroachment cases are governed by Code Civ. Pro. governing appeals from justices' judgments. (Gris- wold V. Buller, 2 N. Y. Sup. Ot. [T. ^ C.,] 673.) Title eleven, chapters third and fifth of the Code related to Obstectctions and Enceoachmbnts. 297 *' appeals to the Supreme Court from an inferior court, and appeals to the Court of Common Pleas for the city and county of New York, or to a County Court from an inferior court," and are embodied in the Code of Civil Procedure, in sections 1340 to 1355 inclusive, and sections 3044 to 3073 inclusive — so that appeals from the judgment in case of alleged encroach- ments, as above provided, are governed by the same rules^ and are to be taken in the same manner as in civil cases. Judgment on appeal, — In case the decision of the jury find- ing an encroachment shall be affirmed by the Appellate Court, «uch 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, chapter sixteen, part first, of the Revised Statute aforesaid (above cited), for such period as shall intervene be- tween the time fixed for the removal of fences, as provided by section one hundred and seven of the said article, title and chapter (above cited), and the decision of such appeal ; and in <3ase of the continued neglect or refusal of the occupant, after judgment, to make such removal, the court rendering judg- ment may, by order, from time to time, enforce the additiong,l penalties incurred, or maj^ provide for the removal of such fences at the expense of the occupant ; payment of such ex- pense to be enforced by order. Such application to be made according to the usual practice of the court. (Laws 1862, y the bridge, existed previously. (1877, Beckwith v. Whalen, 70 JSf. T. 430.) Where the bridge was part of the highway between Yonkers and the town of Eastchester, outside the city bounds of Yonkers, held that an action to be maintained, must be brought against the towns jointly. (Theall v. City of Yonkers, 21 Hun, 265. See also Hawxhurst v. Mayor of New York, 43 Hun, 588, 6 iV. Y. St. Rep. 637.) But counties are liable to pay for the construc- tion of bridges over streams forming their boundary line. (Laws 1883, chap. 346. See ante, p. 313.) Commissioners to make joint contract. — 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 commissioners or their represent- ative 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 1841, chap. 225, § 2, as amended Laws 1857, chap. 383.) .Such contract may be enforced against the commissioners jointly or severally. {Harris v. Houck, 57 Barb, 619.) The court may order the building of the bridge even where the commissioners have no funds, and if they cannot agree upon the kind of a bridge, it amounts to a refusal and gives the court jurisdiction to make order. (1886, Matter of Mt. Morris, 2 K Y. St. Rep. 691.) In case of neglect or refusal to repair such, bridges. — If the commissioners of highways, of either of such towns, after notice, in writing from the commissioners of highways of any other of 328 The Law of Highways. such towns, shall not, within twenty days give their consent, in writing, to build 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 bridge 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 plaint- tiff or plaintiffs shall be entitled to recover so much from the defendant or defendants, respectively representing said other towns, as the town or towns would be liable to contribute to the same, together with cost of suit and interest, without prov- ing any contract ; and in an action in pursuance of the act hereby amended, to recover the expense of building or repairs, it shall not be necessary to entitle such commissioner or com- missioners 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 posses- sion 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 costs and interest, on the taxable property of any town, against the commissioner or commissioners of which such judgment has been obtained, but the commissioner or commissioners of such town shall not be personally liable for such judgment. (Id., § 3.) _ In such an action where the complaint alleged that the towns were divided or separated by a public highway ; that across said highway was a creek, and over said creek a bridge for passage to those traveling on said highway, and that said bridge had been constructed and maintained for a number of years by said towns, it establishes a legal liability on the towns to repair and a recognition of such liability. (1887, Getty v. Town of Hamlin, 11 K T. St. Rep., 96.) Judgment a charge on town. — Any judgment recovered against the commissioners of highways in their official capacity under the provisions of this act, shall be a charge on said town, and col- lected in the same manner as other town charges, except in cases where the court before which the judgment shall be recovered Bridges. 329 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 individ- uals. {Id., § 4.) Petition of freeholders. — Whenever any adjoining towns shall Tae liable to make or maintain any bridge over any stream divid- ing such towns, whether in the same or in diiferent counties, it shall be lawful for three freeholders in either of such towns, \)j a petition in writing signed by them, to apply to the com- missioners of highways in each of said towns, to build, rebuild or repair such bridge, and if such commissioners refuse to build, rebuild or repair such bridge within a reasonable time, either for the want of funds or any other cause, the said freeholders, upon affidavit 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 spe- cial 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 commis- sioners to build, rebuild or repair such bridge, and such court ■or judge upon such motion may in doubtful cases refer the matter to some disinterested 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 shall 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 thereof shall be raised in each town. (Laws 1857, chap. 639, § 1.) This act is not inconsistent with that of 1857, ante, and either law may be enforced without interference with the other. {Beekwifh v. Whalen, 65 N. Y., 322.) This law does not authorize proceedings to repair a bridge, where the stream does not form the boundary, although the bridge be a joint bridge of the two towns. The remedy in such a case is under Laws 1841, chap. 225, as amended 1857, chap. 330 The Law op Highways. 383. (Matter of Pet. of Freeholders of Cattaraugus Co., 59 N- Y. 316 ; reversing CMeara v. Com\s of Allegany, 3 N. Y. Sup. Ot. IT. ^ C] 235.) The local authorities will be left to control and decide as to the care and construction of its highways and bridges, and the courts ought not to interfere unless the action of the local author- ities seems to be actuated by other considerations than public interest. (1888, Freeholders v. Towns Glen and Florida, 20 iV. Y. St. Rep. 394.) And where a bridge had been destroyed eighty years before, and the road for forty years has been in another direction, it was held that the decision of the commis- sioners would not be reversed. (Jd.) Proceedings on reference. — In case a reference shall be ordered as specified in the first section of this act, the referee shall appoint a suitable time and place for taking the evidence, and shall notify one of said freeholders and the said commissioners thereof, or cause them to be notified ; he shall have power to issue such 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 subpcena by attachment, and may punish defaulting witnesses for contempt by fine or imprison- ment ; he shall have power to adjourn such proceedings, from time to time, and to administer the requisite oath to witnesses before him. The referee shall report the evidence 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. {Id., § 2.) Commissioners 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 proceed- ings under this act, to compel the commissioners of such adjoin- ing towns, to join in the building, rebuilding or repair of any- such bridge, in like manner as the said freeholders are hereby authorized so to do. {Id., § 3.) Locating bridge. — Upon the said order for building, rebuild- ing or repairing such bridge being made, and a copy thereof being served on the commissioners of highways of such. Beidgbs. 331 adjoining towns respectively, the commissioners of highways of said two towns, shall forthwith meet and fix on the place of such bridge, or the manner of repairing such bridge, and shall cause such bridge to be built, rebuilt or repaired, out of any funds in their or either of their hands, applicable 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 commissioners 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.^ Report to auditors. — 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 commissioners, 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 counties, its share of the cost of building, rebuilding or repairing such bridge, after deduct- ing all payments actually made by said commissioners, thereon ; which tax, including prior payments, shall, in no case, exceed the amount suecified in said order. {Id., § 5.) Bight of appeal. — 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 division. The Supreme Court, at the general term, shall have power to alter, modify, or reverse such order, with or with- out costs. {Id., § 6.) Costs. — The Supreme Court, at 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 disburse- 332 The Law op Highways. ments. The appeal provided for in the last section, shall 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.) 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 whenever such bridge shall have fallen down, or been swept away by a freshet or otherwise, if the commissioners of highways of such adjoining towns, 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 corpo- ration, shall be a charge upon such adjoining towns, each being liable for its just proportion ; and the person or persons, or cor- poration, who has made such expenditure, 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 severally to reimburse such expenditures, which application 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 author- ized 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 shall be granted, it shall be the duty of the commissioners of highways, in each of such towns, forthwith to serve a copy of such order upon the supervisor of each of such towns, who shall present the same to the board of supervisors at their next annual meeting. The board of super- visors 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 incurred such expenditure. The right of appeal is given to such party under this section, provided for under the sixth section of this act. {Id., § 8.) The proceedings authorized by this act can only be instituted in the cases specifically provided for by the terms of the act, i. e. of bridges " over streams dividing towns " {Matter of Petition of Bridges. 333 Freeholders of Cattaraugus Co., 59 N. Y. 316), and the act confers no authority as to bridges over bays, lakes or other bodies of water not "streams," or as to causeways or bridges over marshes, between two towns. (^Matter of Freeholders of Irondequoit, etc., 68 K Y. 376.) , 5. Toll Bridges. A toll bridge may also be a highway, only differing from an ordinary public bridge in this, that the public, in consideration of the payment of certain tolls, are relieved from the responsibil- ity of keeping it in repair. Subject to the payment of such tolls, the rights and privileges of the public on such bridges are the same as on ordinary public bridges. (See ante, p. 11 .) A toll bridge over a navigable river is properly assessed and taxed as real estate. {Sudson R. Bridge Co. v. Patterson, 74 N. Y. 365.) lAahility for repair. — A corporation which, in pursuance of its charter, builds a bridge and takes tolls from passengers, thereby becomes bound to keep the bridge in repair. {Town- send V. Susquehannah Turnpike Road, 6 John. 90; Katie v. People, 3 Wend. 363.) In Townsend v. Susquehannah Turnpike Road, supra, the ac- tion was for the value of a horse killed by the faU of defend- ants' bridge, it was held that the defendants were bound to bestow ordinary care and diligence in the construction of their bridges and keeping them in repair ; but were not responsible for ac- cidents which did not arise from their neglect or want of such ordinary care and skill. The plaintiff in that case had gone on to the bridge with a heavy load. There was some conflict of evidence about the sound condition of the bridge. The jury gave verdict for the plaintiff, and the court sustained it on appeal — with great reluctance — on the ground that it was not so strongly against the evidence as to justify them in setting it aside. In Thompson v. Matthews (2 Fdw. 212), which was an action by the plaintiffs, owners of a toll bridge, to restrain the defendant from crossing the bridge with extraordinary loads, the court said : If persons take improper loads, and the bridge has been improperly constructed, then the owners of it have a remedy by a special action on the case, or in trespass for dam- 384 The Law op Highways. ages done ; while on the other hand, if passengers and their property should sustain an injury by a breaking from ordinary loads, the owner must respond in damages. A toll bridge company, so long as they continue to take toll, cannot discharge themselves from liability to individuals by simply giving notice of danger. To give the notice such effect they must likewise cease to take the toll. {Randall v. Cheshire Turnpike, 6 N. H.B. 147.) Bridge reported unsafe. — Whenever complaint, in writing, on oath, shall be made to a commissioner of highways of any town, in which shall be in whole or In part, any toll-bridge belonging to any person or corporation, 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 commissioner forthwith to make a careful and thorough examination of such bridge so complained of, and if, upon such examination of such bridge, the said highway commissioner 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 own- ers 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, immedi- ately to commence repairing the same within one week from the day of such notice given, or such reasonable time thereafter as maybe necessary to thoroughly 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 effective measures so to repair such bridge, the person or corporation owning such bridge, shall forfeit twenty-five dollars for the benefit of the town in which the highway commissioner making such examina- tion and giving such notice shall reside, to be sued for and re- covered by such highway commissioner, and expended for the improvement of highways of said town ; and after the expira- tion of the time for such repairs and failure to make the same, it shall be unlawful for such bridge owner, or owners, to de- mand or receive any toll for using said bridge until the same shaU be fully repaired. (Laws of 1873, chap. 448, § 1.) Bridges. 335 Commissioner to repair. — In case of neglect of the owner or owners of such toll-bridge, for one week, to take such measures, as by the first section of this act are required, to repair such bridge, so as to make the same safe and convenient for public use, it shall, without further proceedings or notice, be the duty of such highway commissioner to proceed at once to procure all necessary materials of good and suitable quality, and to secure the requisite skilled workmen, for the needful repairs of such toll-bridge, keeping or causing to be kept a just and true ac- count 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 highway commissioner, shall be paid on demand by such bridge owner or owners, together with two dol- lars per day for the services of such highway commissioner, for each day during which he shall have been engaged in the ex- amination and repair of such toll-bridge, the purchase of ma- terial and labor, and keeping and rendering to such bridge owner or owners such account. Qld., § 2.) Expense of repairs, how collected. — In case of the neglect of such bridge owner or owners to pay such account on presenta- tion and demand, it shall be the duty of said highway commis- sioner 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, to pay said account for material, labor and commis- sioner's fees, which are hereby made a charge upon such town. ild., § 3.) Must rebuild bridge destroyed. — If a bridge be carried away by a sudden flood, the company must rebuild it within a reason- able time, regard being had to the importance of the road, the magnitude of the work, the opportunity for procuring 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 company 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 proceedings must be instituted to obtain judgment of ouster. (Jc?.) And where a toll-bridge is out of repair, the public are 3S6 The Law of Highways. not limited to the remedy of having the gates thrown open, but may proceed by information. (Id.') Under the act of 1848j hereafter cited, the bridge must be rebuilt within three years,. or the company shall cease to be a body corporate. Indictment — Should a bridge company not keep their bridge- in repair, they may be indicted for maintaining a nuisance ; but in analogy to the rule in like cases, to authorize a conviction it is necessary to allege in the indictment, and prove on the trial, not only that the bridge has been out of repair, but also that it continues so to be, down to the time of the finding of the in- dictment. (People v. Branchport, etc., Flankroad Go. 5 Park. Or. 604.) Injuring bridge. — A person who wilfully or maliciously dis- places, removes, injures or destroys a bridge upon a public or private way is punishable by imprisonment for not more than two years. (Penal Code, § 639.) Free passage to National Gruard, etc. — By the Laws of 1870, chap. 80, § 261, any person belonging to the military forces of this State, going to or returning from any parade, encampment^ drill or meeting which he may be required by law to attend, shall, together with his conveyance and the military property of the State, be allowed to pass free through all toll-gates and over all toll-bridges and ferries. This seems to have been re- enacted with some changes by Laws of 1878, chapter 35, and a penalty attached, as follows : Any member or members of the national guard of this State,, when in uniform, going to or returning from any parade, drill or meeting, which he or they may be required to attend in com- pliance with orders from any competent authority, shall, to- gether with such conveyance or conveyances or military prop- erty of the State as he or they may be in charge of, be allowed,, without any hindrance or delay, to pass free through all toll- gates and over all toll-bridges and ferries within the State. Penalty. — Any toll-gate or toll-bridge keeper or any ferry master, or any person or persons, who may be in charge of any toll-gate, toll-bridge or ferry, who shall willfully hinder or delay any member or members of the national guard, or shall refuse Bridges. 337 passage to such member or members of the national guard, who shall be acting under the provisions of the first section of this act, shall be guilty of a misdemeanor, and on conviction be fined no less than ten dollars, and no more than twenty dollars, or being imprisoned no less than five days and no more than ten days. 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 doUar, to be sued for in the name of the corporation or person or persons owning such bridge, and to be recovered with costs of suit. (Laws 1838, chap. 262, § 2.) Bridges to become highways. — 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. (Id., §3.) In such case it becomes the duty of the commissioner to keep in repair, as in case of other bridges, and they may be compelled so to do by mandamus, or may be indicted, provided they have the necessary funds for the repair. 6. Bridge Companies — How Incoepoeated. The following is the act of 1848, chapter 259, providing for the incorporation of bridge companies : Corporation may be formed. — § 1. 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 hereinafter provided, upon complying with the follow- ing 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 shall be divided into shares of 23 338 The Law of Highways. twenty-five dollars each, the number of directors and their names, who shall manage the concerns of the corporation for the first year, and until others are elected; the location of such bridge, and the plan thereof : 2. Each subscriber to such articles of association shall sub- scribe thereto his name and place of residence, and the number of shares of stock taken by him in such corporation. 3. Whenever one-fonrth 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 office of the State En- gineer and Surveyor, 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 aforesaid, and such other persons as shall become stockholders in such company, and their successors, shall be a body corporate, by the name speci- fied 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 provisions are consistent with the pro- visions of this act. (As amended Laws 1881, chap. 313, § 1, but this does not apply to the waters of Kings, Queens, New York or to Hudson River below Waterford.) Liability of stockholders. — § 2. All the stockholders of every company incorporated under this act, shall be severally and iur dividually liable, to an amount equal to the amount of the cap- ital stock held by them respectively, to the creditors 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 certificate 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 company, and if not so paid in, such corporation shall be dissolved. If the directors of any corpo- ration formed under this act shall contract debts for the com- pany, exceeding in the aggregate the amount of the capital stock, they shall be personally liable for all the debts of the corporation. Bkidges. 339 Amount to be paid before filing. — § 3. Such articles of asso- ciation shall not be filed as aforesaid, until five per cent, on one-fourth of the amount of the stock of such company fixed as aforesaid 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 endorsed 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. Copies of articles to he evidence.^^ 4. A copy of such articles of association filed in pursuance of this act, with a copy of such affidavit endorsed 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. Meetion of directors. — § 5. The business and property of every such corporation 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 cor- poration or some part thereof shall be located, as shall be pre- scribed 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 successive weeks, in a public newspaper, published in each county in which such bridge or any part thereof, shall be located, and if in any county no such paper shall be published, such notice shall be published 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 Sta,tes 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, administrator 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, ad- ministrator or guardian, and entitled to vote at the election at which he shall be chosen, nor unless he shall be a citizen of this 840 The Law of Highways. 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 until the next election by the remaining directors. The directors of every such company shall be elected in the 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 directors chosen at any election shall hold their offices, to and including the Tues- day next after that appointed by law for holding the election next succeeding that at which they were chosen. If an elec- tion of directors shall not be held on the day prescribed by this act for holding the same, the directors in oflQce on that day shall hold their offices until their successors shall be elected, but after the expiration of their regular term of office as pre- scribed by this section, they shall be incapable of doing any act, as such directors, except such as may be necessary to give effect to an election of directors. The provisions of the second article of the second title of the eighteenth chapter of the first part of the Revised Statutes, shall apply to every corporation formed under this act, so far as such provisions shall be con- sistent with the provisions of this act. Application for leave to erect bridge. — § 6. When any bridge coi-poration shall be desirous of constructing a bridge or any part thereof, in any county, it shall apply to the board of super- visors of such county at the annual or any special meeting thereof, for authority to construct such bridge ; of which ap- plication, such corporation shall give notice, by publishing the same in at least one public newspaper in such county, or if no newspaper is published therein, then in an adjoining county, once in each week for six weeks successively, previous to the time of presenting such application to such board specifying such time and the location of such proposed bridge. If the place of the location of such bridge shall be situated in more than one county, such application shall be made to the board of supervisors of every such county. Such application shall also specify the length and breadth of such bridge ; the notice of such application shall set forth all the particulars required to be specified in such application. Upon the hearing of the said application, all persons residing in such county or interested in Bridges. 341 such application, may appear and be heard in respect thereto Such board may take testimony in respect to such application, or may authorize it to be taken by a county judge or justice of the peace of such county ; and it may adjourn the hearing from time to time. A copy of the articles of association of such corportion certified by the State Engineer and Surveyor, or by the clerk where such articles are filed, shall be attached to and filed with such application. No such corporation shall be authorized to bridge any stream, in any manner that will prevent or endanger the passage of any raft of forty-five feet in width, or any ark, where the same is navigated by rafts or arks. Where the notice is given before the incorporation of the company, but the company is duly incorporated at the time of the application, the preceding will be valid. (Laws 1852, chap. 372.) Where the stream is navigable, or the bed of it belongs to the State, application must be made to the legislature. {Fort Plain Bridge Go. y. -Smith, 30 K Y. 44.) Assent of hoard to he recorded. — § 7. If, after hearing such application, such board shall be of opinion that the public in- terests will be promoted by the construction of such bridge on the proposed site, it may, if a majority of all the members elected to such board, shall assent thereto, by an order to be entered in its minutes, authorize such company to construct such bridge, as shall have been specified in the application which shall be particularly described in such order. Such cor- poration shall cause a copy of such order, certified by the clerk of such board, with su(^ application, to be recorded in the clerk's office of such county, before it shall proceed to do any act by virtue thereof ; and such board shall cause such applica- tion, when it shall have finally acted on the same, to be filed at the expense of the corporation, with all the other papers relating thereto, or to the proceeding of said board thereon, in the office of the clerk of the county in which it shall have been made. Any corporation formed under this act, may use, in such manner as such board shall prescribe, so much of any public highway on either side of any stream, as may be necessary for the construc- tion and maintenance of such bridge and toll-houses. Over streams navigahle hy rafts.— % 8. In case any bridge shall 342 The Law of Highways. be constructed, under the provisions of this act, over any stream navigable by rafts, it shall be the duty of the corporations con- structing such bridge, at all times, to keep the channel of said stream, both above and below said bridge, free and clear from all deposits, in any wise prejudicial to the navigation thereof, which may be formed or occasioned by the erection of such bridge. Penalty for delaying rafts. — § 9. Any corporation organized under the provisions of this act, which shall construct a bridge over any stream, navigable by rafts as hereinbefore provided, shall be liable to pay all persons who may be unnecessarily or unreasonably hindered or delayed in passing such bridge, all damages which they shall sustain thereby, to be recovered with costs of suit. How constructed. — § 10. Every bridge constructed by virtue of this act, shall be built with a good and substantial railing or siding, at least four and a half feet high. Whenever such bridge shall be completed, and a certificate signed by the county judge of the county in which such bridge is situated, or if such bridge shall be located in more than one county, by the county judge of each of such counties, and such certificate filed in the office of the clerk of such county, or of each of said counties, if such bridge shall be located in more than one county, that such bridge is constructed and completed in a manner safe and con- venient for the public use, the directors may erect a toll-gate at such bridge, and demand and receive such sum as shall be, from time to time, prescribed by the supeifpisors of the county or counties where the bridge is located. Exemptions from toll. — §11. No tolls shall be collected for crossing any bridge constructed by any corporation formed under this act, from any person going to or from public worship, or to or from a funeral, or to or from school, or to or from a town meeting or election, at which he is entitled to vote, for the purpose of giving such vote, and returning therefrom ; or to or from a military parade which he is, by law, required to attend, or to or from any court which he shall be required to at- tend, as a juror or witness, or to or from his legally required work upon any public highway. {Ante, p. 375.) Bridges. 343 Calls on stockholders. — § 12. The directors of any incorpora- tion, formed under this act, may require payment from the stockholders, of the sums subscribed to the capital stock, at such times and in such proportions, and on such conditions as they shall see fit, under the penalty of the forfeiture of their stock, and all previous payments thereon ; and they shall give notice of the payments thus required, and of the place and time when and where the same are to be made, at least thirty days previous to the time fixed for the payment of the same, for the time and in the manner herein prescribed for giving notice of the election of directors, and by sending such notice to such stockholder, by mail, directed to him at his usual place of resi- dence. Transfer of shares. — § 13. The shares of any corporation, formed under this act, shall be deemed personal property, and may be transferred in such manner as shall be prescribed by the by-laws of such corporation ; and the directors of every such corporation may, at any time, with the consent of a majority in amount of the stockholders in such corporation, provide for such increase of the capital stock thereof, as may be necessary for the completion or reconstruction of such bridge, and the certificate of the amount of any such increase, within thirty days thereafter, shall be .filed in the offices of the state engineer and surveyor, and the clerk or clerks of the counties in which such bridge is located, which certificate shall be authenticated by the signatures and oaths of a majority of said directors. Taxation. — § 14. So much of any such bridge or toll-houses constructed by virtue of this act, as shall be within any town, city or village, shall be liable to taxation in such town, city or village, as real estate. When ceases to he a lody corporate. — § 15. Every company, incorporated under this act, shall cease to be a body corporate : 1. If, within two years from the filing of their articles of as- sociation, they shall not have commenced the construction of their bridge, and actually expended thereon at least ten per cent, of the capital stock of such company ; or, 2. If within five years from the filing of such articles of as- sociation such bridge shall not be completed according to the provisions of this act ; or, 344 The Law op Highways. 3. If in case the bridge of such company shall be destroyed, it shall not be reconstructed within three years thereafter. Annual report. — § 16. It shall be the duty of the president and secretary of every corporation formed under this act, to report annually to the State Engineer and Surveyor, and the county clerk where the papers are filed, under oath, the cost of their bridge, the amount of all moneys expended, the amount of their capital stock, and how much paid in, and how much actually expended, amount received during the year for tolls, and from all other sources, stating each separately, the amount of dividends made, and the amount of indebtedness of such com- pany, specifying the object for which the indebtedness accrued ; and such other particulars in respect to the business affairs of such corporation, as the State Engineer and Surveyor, or the Legislature, or either branch thereof, required to be so re- ported. Private bridges. — § 17. When any bridge may be in process of construction by private subscriptions at the time of the pas- sage of this act, the subscribers may organize into a corporation pursuant to the provisions of tMs act, with the same power and privileges as if such bridges had not been so commenced. Subject to visitation. — § 18. All companies formed under this act shall at all times be subject to visitation and examination by an officer or agent, in pursuance of law, or by the Legislature, or by a committee, appointed by either house thereof ; and the courts of this State shall have the same jurisdiction over such corporations and their officers as over those created by special acts. Report, jvhen lo be made. — § 19. Every report required to be made by the sixteenth section of this act, shall be made in the month of January in each year, and shall show in respect to the particulars required therein to be set forth, the affairs and business of the corporation, making the same at the close of the year, ending on the thirty-first day of December, next preced- ing the time of making the same, and shall be published in the nearest newspaper four weeks, and every corporation formed under this act, which shall neglect to make such report as there- Bridges. 345 « hj required, shall forfeit to the people of this State for every such neglect, the sum of two huudred dollars, and for every week such corporation shall neglect to make such report after the expiration of the time, within which it is required as afore- said to make the same, it shall forfeit as aforesaid the further .sum of fifty dollars. The State Engineer and Surveyor shall report to the attorney-general every such forfeiture, by whom the same shall be sued for and recovered with costs in the name of the people; and the certificate of the said State Engineer and Surveyor of any such neglect shall be presumptive evidence thereof, and if any such river, water-course or lake, now so navigable, shall hereafter be rendered navigable up stream by "vessels or steamboats, power to require such bridge to be altered or removed is reserved to the Legislature. Saving clause. — § 20. Nothing in this act shall be construed so as to authorize the bridging of any river or water-course "where the tide ebbs and flows, or any water used for a harbor, ■any lake, river or water, which is navigable by sail vessels or ■steamboats, nor the construction of any bridge within the limits prescribed by any existing law for the erection or maintenance of any other bridge. Authority from the Legislature is necessary to erect a bridge over a navigable stream, or over one the bed of which belongs to the State. {Fort Plain Bridge Co. v. Smith, 30 N. T. 44.) § 21. Any existing corporation having for its object the con- struction and maintenance of any bridge whose charter shall expire, may be continued as such corporation by complying with the provisions of this act, so far as the same are applicable to them, with the consent of the supervisors of the county or coun- ties in which their bridge is located, to be obtained on appli- "Cation to them as hereinbefore provided. 7. Bkidges over Cakals. The provisions in relation to canal bridges will be found con- venient for those officers who have the care of roads and bridges in those parts of the State intersected by canals. The follow- ing provisions will be found in 1 Revised Statutes, page 247 : § 174. " 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 erec- 346 The Law of Highways. ti n of a new bridge over the canal, for the accommodation of the road, such bridge shall be so constructed and forever main- tained, at the expense of the town in which it shall be situate. § 175. " No 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. § 176. " Every person who shall undertake to construct or to locate such bridge without such consent, and shall proceed there- in so far as to place any materials 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, superintend- ents, or engineers, shall be authorized to remove all such materials, as soon as they are discovered, wholly withoi ^ the banks of the canal." Railroads in Highways and Steeets. 347 CHAPTER XIV. EAIIiEOADS IN HIGHWAYS AND STEEETS. 1. When railway may be constructed in higliway. 2. Compensation to owner of fee. 3. Elevated roads. 4. Horse railroads in streets. 5. Over or under turnpikes and plank- roads. 6. Kemedy of owner of fee. 7. Eailroaids In city of New Tork. 8, Consequential damages. 9. Company to restore road. 10. Action by commissioners. 11. Cattle guards at crossings. 12. Eight of public to travel with wag. ons, etc., on street railways. 13. Company to give signal at cross- ings. 1. When Raileoad may be Consteuctbd in Highway. Whenever any association or individual shall construct a rail- road, upon land purchased for that purpose, on a route which shall cross any road or other public highway, it shall be lawful for the commissioners 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 individual shall be author- ized 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, chap. 300; for form of commissioners' consent, see Appendix, No. 18.) 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, abutting a highway, be first obtained ; and provided further, that the con- sent in writing of the supervisors of the town in which any rail- road proposed to be built under this act is located, be also iirst obtained ; and provided further, that this act shall not apply to any city or village ; and provided further, that no such railroad 348 The Law of Highways. shall be located, graded, built or operated as to interfere with, or obstruct the travelled part of any highway, or interfere with or obstruct the public use of any highway, or any highway intersecting the same. (Laws of 1882, chap. 140.) By order of court. — By subdivision five, section twenxy-eight of chapter 140 of the Laws of 1850 (as amended chap. 582, Laws of 1 864, and chap. 133, Laws of 1880, § 2), railroad com- panies are authorized to construct their road across, along or upon any stream of water, water course, street, highway, plank- xoad, turnpike, or across any of the canals of this State, which the route of its road shall intersect or touch ; but the company shall restore the stream or water course, street, highway, 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 sub- ject to the power vested in the canal commissioner by the 17th section of chapter 276 of the session Laws of 1834. 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 sail 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 anj' city, with- out the assent of the corporation of such city ; nor to authorize any such railroad company to construct its road upon or along any highway, without the order of the Supreme Court of the judicial district in which said highway is situated, made at a special term of said court, after at least ten days notice in writ- ing of the intention to make application for said order shall .have been given to the commissioners of highways of the town in which said highway is situated. (As amended by chap. 582, Laws of 1864, and Laws 1880, chap. 133.) The duty to thus restore a highway is a continuous one, and if by an increase of business upon the highway, the facilities first provided become inadequate, the corporation must make such changes as are reasonably necessary to provide for the needs of the public. (1888, Hatch v. Syracuse B. and N. Y. JR. B. Co., 50 Hun, 64; 24 N. Y. St. Bep. 36.) And the change being made within the original lines of the highway, an adjoining owner is not entitled to recover damages Railroads in Highways and Streets. 349 for the raising of their grade thereby. (1886, Qonklin r. K Z., 0. and W. By. Go., 102 N. Y. 107.) Commissioners to lay out railroad in streets must have permis- sion. — Whenever it shall appear, by the application of fifty reputable householders and tax payers of any county in this State, verified upon oath before a justice of the Supreme Court, that there is need in such county of a steam railway or rail- ways for the transportation of passengers, mails or freight, the board of supervisors of said county may, within thirty days after presentation to them of such application duly verified as afore- said, appoint five commissioners who shall be residents of the said county and who shall have full power and authority to do and provide all that they are hereinafter directed to do and provide, and a certificate of whose appointment, signed by the chairman and clerk of such board, shall be filed in the office of the Secretary of State, and a duplicate thereof in the office of the clerk of such county. But whenever any such proposed railway shall be wholly within the limits of any city in the State, then such application shall be made only to the mayor of said city, and such mayor shall appoint such commissioners as aforesaid. (Laws 1875, chap. 606, as amended 1882, chap. 393, and 1886, chap. 551.) Commissioners appointed under the above act are to deter- mine upon the necessity of the railway and fix the route. (See Laws 1875, chap. 606, § 4, as amended 1882, chap. 393, and 1886, chap. 551.) Certain streets are exempted by said lavrs. The consent of the owners of one half in value of the property bounded on and the consent also of the local authorities having control of the street or highway must be obtained or commis- sioners appointed by the court. For full text of the laws, see the statutes above cited. None of the provisions of the acts apply to the counties of Kings, New York or Westchester. (Laws 1886, chap. 551.) Right of entry. — Every corporation formed under this act shall have power to enter upon and underneath the several streets, avenues, public places and lauds designated by the said commissioners, and enter into and upon the soil of the same ; to construct, maintain, operate, and use in accordance with the plan adopted by said commissioners, a railway or railways upon 350 The Law of Highways. the route or routes and to the points decided upon, and to secure the necessary foundations and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and maintenance of the railways constructed upon the plan adopted by the said commissioners, and for operating the same ; except that, nothing in this act shall authorize the construction of a railway crossing the track of any steam railway now in actual operation at the grade thereof, or the erection of piers or supports for any elevated railway upon a railway track now actually in use in any street or avenue; and it shall be lawful to make such excavations and openings along the route through which such railway or rail- ways shall be constructed as shall be necessary from time to time ; in all cases the surface of said streets around such founda- tions, piers and columns shall be restored to the condition in which they were before such excavations were made, as near as may be, and shall avoid any interference with, or change in the watermains, or in the sewers or lamp-posts, except such changes as may be made with the concurrence of the proper department or authority ; and in all cases the use of the streets, avenues, places and lands designated by the said commissioners and the right of way through the same for the purpose of a railway or railways as herein authorized and provided, shall be considered and is hereby declared to be a public use, consistent with the uses for which the roads, streets, avenues and public places are publicly held; but no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction. (Laws 1875, chap. 606, § 26, sub. 6.) Crossinff horse-railroad track. — Whenever the route selected by the said commissioners for the construction of said railway shall intersect, cross or coincide with any horse-railway track occupy- ing the surface of said streets or avenues, the said railway cor- poration is hereby authorized to remove, for the purpose of con- structing the said work, the tracks of said horse-railways ; but the same shall be done in such manner as to interfere as little as possible with their practical operation or working, and uppn the Railroads in Highways and Steebts. SSl construction of said railway, where such removals or changes have been made, the same shall be restored as near as may be to the condition in which they were previous to the construction of said railroad. All such removals shall be made at the proper cost and charges of the said corporation. Nothing contained iu this act shall authorize any corporation formed thereunder to ■use the tracks of any horse-railway. (Laws 1875, chap. 606, §35.) Highway commissioners cannot prevent construction of rail- Toad over highways, if the court has given authority. {Baxter V. Spuyten D. B. B. Co., 11 Abb. Pr. N. S., 178.) Use thereof relates only to public interest. — The power con- ferred on a railroad company to enter upon and occupy a public highway, after having obtained the consent of the commissioners or an order of the court, relates only to the public property iu the road, and confers the right as far only as the public ease- ment is concerned, leaving the companies to deal with the private rights of individuals in the ordinary mode. The stat- utes effectually protect the company, if they comply with the conditions, from an indictment, or against any interference with their works as a public nuisance, on account of their occupation of the highway, but not against claims for private damages aris- ing from the use and occupation of the highway. (Fletcher v. Auburn, ^ S. B.B. Co., 25 Wend. 462; Bobinsony.N. Y. §- Erie B. B. Co. 27 Barh. 512 ; Williams v. JV. T. Central B. B. Co., 16 N. T. 97; Matter of Prospect P. ^ C. I. B. Co., 67 K Y. 371.) 2. Compensation to Owner op Fee. We have already seen in Chapter II, of this work, that an owner of lands is not divested of the fee of the land by the lay- ing out of a highway across it, and that the public do not acquire any greater interest therein than a right of way, and the powers and privileges incident to that right of way, and that subject to this easement, and this only, the rights and interests of the owners of the fee remain unimpaired. It is quite clear, therefore, that the above statutory provisions do not authorize a company to enter upon and appropriate a highway, without; first obtaining the consent of the owner of the fee, or making a just compensation therefor. Nor has the Legislature power to 352 The Law of Highways. authorize such company to enter upon and appropriate a high- way, for purposes other than those to which it has been origi- nally dedicated or laid out, in pursuance of the highway act, without first providing a just compensation therefor. ( Williams V. K Y. Central B. R. Co., 16 N. Y. 97.) It must be regarded, as fully settled in this State, that the occupation of a street or highway, by a railroad, imposes an ad- ditional burden on it, essentially different from the original object of a highway, and entitles the owner of the fee to addi- tional compensation. ^Second Presbyterian Society v. Auburn, ^ Book. B. B. Co. 3 mil, 567 ; Mahon v. K Y. Central B. B. Co. 24 If. Y. 658 ; Wager v. Troy Union B. B. Co. 25 id, 526 ; Mat- ter of the Petition of N. Y. C. and H. B. B. B. Co. , 7 Week. Dig. 171.) And the rule is the same, whether it be a street in a city, or a common highway in the country, except in the city of New York, where the fee of most of the streets is said to be in the corporation. (^Id.; Wager v. Troy Union B. B. Co, supra ; see People v. Kerr, 27 iV. Y. 188.) The case of Williams v. JV. Y. Central B. B. Co., above cited, is a leading and controlling authority on this subject. The plaintiff in that case had dedicated certain lands to the public use as a street in the city of Syracuse, but was the owner of the fee of such street as well as of lots fronting thereon. The defendants had, under authority of the Legislature, and express consent of the municipal authorities of the city of Syracuse, constructed their railroad upon and along such street, without having acquired the consent of the plaintiff, or having made compensation therefor. It was distinctly held that to occupy a street or highway with railroad tracks, and to use it for railroad purposes is to charge it with a new easement, not within the purposes, intent and legal effect of its dedication as a street or highway to the public ; and that consequently a railroad cannot be built upon a highway without compensation to the owner of the fee. The learned judge who delivered the controlling opinion, examined and explained the various cases in this and other States which seem to hold a contrary doctrine, and showed that nothing which was necessarily decided in any of them was in conflict with his own opinion. The opinion of the court in the above case is in perfect accord- ance with, and to a great extent based upon the case of Davis Railroads in Highways and Streets. 353 T. Mayor of New York (14 N. T., 506), and the case of Pres- byterian Society in Waterloo v. Auburn v. Boch. B. R. Co., (3 Hill., 567.) In the latter case the declaration was in trespass for entering upon the plaintiff's premises, digging up the soil, and constructing their railroad track upon it. The defense was that the locus in quo was a public highway, and that the charter of the company expressly authorized it to construct its road upon and across any highway. The point was therefore presented in the most direct manner possible, and the defense was most emphatically overruled. The language of Chief Justice Nelson is most pertinent and forcible. He says : " But the plaintiffs were not divested of the fee of the land by the laying out of a highway ; nor did the public thus acquire any greater interest therein than a right of way, with the powers and privileges incident to that right ; such as digging the soil and using the timber and other materials found within the limits of the road, in a reasonable manner, for the purpose of making and repairing the same — subject to this easement, and this only, the rights and interests of the owner of the fee remained unimpaired. It is quite clear, therefore, even if the true construction of the eleventh section accords with the view taken by the counsel for the .defendants, that the Legislature had no power to authorize the company to enter upon and appropriate the land in question for purposes other than those to which it had been originally dedi- cated, in pursuance of the highway act, without first providing a just compensation therefor." The same views are reiterated in Mahon v. New York Central B. B. Co. (24 N. Y. 658) ; Wager v. Troy Union B. B. Co. (25 id. 526) ; Carpenter v. Oswego ^ S^ B. B. Co. (24 id. 655) ; Craig v. Boehester City ^ B. B. B. Co. (39 Barb. 494) ; Fletcher Y.Auburn ^ S.B. B. Co. (25 Wend. 4.Q2') ; LozierY.N. Y. Central B. B. Co. (42 Barb. 465) ; Broiestedt v. South Side B. B. Co. (55 N. Y. 220) ; Strong v. City of Brooklyn (68 id. 1). In Wager v. Troy Union B. B. Co. {supra), the complaint was that the defendants had entered upon and unlawfully withheld the possession of a street in the city of Troy, which was part of the plaintiff's land, subject only to the public easement. The defendants had, under authority from the Legislature, and the assent of the municipal authorities of the city, constructed their road on said street without the consent of or compensation to the 24 354 The Law of Highways. plaintiff. The court decided, very emphatically, that the use of a street for a railroad is a new burden beyond the public easement which cannot be imposed by legislative authority, without com- pensation to the owner of the fee ; that such use, without acquiring the title of the owner of the fee, or his license, is a continuing trespass, and that such owner may maintain ejectftient to recover the land, subject to the public easement as a highway. "Where an owner of land makes and files a ipap on which streets and public squares are designated, and thereafter sells lots with reference thereto, the purchasers of such lots acquire such an easement therein, as to authorize an injunction on their application, restraining a railroad from laying its track on the said square without compensation made to tliem therefor. {Pratt v. Buffalo City Ry. Co., 19 Hun., 30.) Where land has been taken for public highwaj', and damages assessed back on adjoining land for benefits of opening the highway, and thereafter it is sought to subject it to the addi- tional burden of a railroad, the compensation for such additional use should be the same as if the highway had been opened. (Matter of Prospect Park and Coney Island JR. H. Co., 16 Hun, 261 ; see 67 N. Y. 371.) 3. Elevated Railroads. An elevated railroad, in the streets of a city, operated by steam power and built on a series of columns, on the edge of the sidewalk, which support cross ties for three sets of rails, with cars eleven feet high above the tracks, reaching within a few feet of the house fronts and running every few minutes, is a perversion of the use of the street from the purposes originally designed for it, and is a use which neither the city authorities nor the legislature can legalize or sanction without providing compensation for the injury inflicted upon the property of abutting owners. (See 1882, Story v. JV. Y. Elevated B. B. Co., 90 JSf. Y. 122; 1887, iaAr v. Met. M. By. Co., 104 N., Y. 268-, 1888, Carter -f. New York El. B. B. Co., 14 N. Y. St. Bep., 859, cases cited.) Abutters upon a public street claiming title to their premises from the municipal authorities, which contains a covenant that a street to be laid out in front of such property, shall forever thereafter continue for the free and common passage of, and as public streets and ways for the inhabitants of said city, and all Railroads ik Highways and Stebets. 355 others passing and returning through or by the same, in like manner as the other streets of the same city now are or lawfully ought to be, acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of property situated thereon. {Id. ) The ownership of such easement is an interest in real estate constituting property within the meaning of that term, as used in the constitution of the State and requires compensation to be made therefor, before it can lawfully be taken from its owner for public use. {Id. ) The erection of an elevated railroad, the use of which is intended -to be permanent, in a public street, and upon which cars are propelled by steam engines, generating gas, steam and smoke, and distributing in the air cinders, dust, ashes and other noxious and deleterious substances, and interrupting the free passage of light and air to and from adjoining premises, consti- tutes a taking of the easement and its appropriation by the rail- road corporation, rendering it liable to the abutters for the damages occasioned by such taking. {Id. ; 1887, Ahendroth v. Manh. By. Co., 1887, 7 K Y. St. Bep., 43.) No legal difference exists with reference to the interest ac- quired by an abutting owner in a public street in New York City, between that created by a grant from the municipality, with a covenant, or that acquired through a series of mesne conveyances from the original owner, whose property was taken in invitum under the act of 1813. {Lahrv. Met. M. By. Co., supra; 1885, Feyser v. Met. M. By. Co., 13 Daly, 122.) The owner of premises who also owned the fee in one half of adjoining street, is entitled, no matter when he became owner of the premises, to judgment restraining the use, without com- pensation, of his property by an elevated railroad upon the streets in front thereof, if the railroad structure, as erected and used, is inconsistent with the free use of the streets under the condition of the grant to the city. (1883, N. Y. Super. Ot. Glover V. Manh. By. Co., 66 How. Pr. 77.) A surface street railroad company owning premises in city of New York abutting on street opened under act of April 3, 1807, has a right to an injunction against operation and main- tenance of elevated railroad. (1887, Third Ave. B. B. Co. v. N. Y. El. B. B. Co., 19 Abh. N. C, 261.) 356 The Law of Highways. A bill in equity to restrain taking street for purpose of ele- vated road, is the proper remedy where compensation is not made to abutting owner. (1888, Jewett v. Union M. R. R. Co., 15 K Y. St. Rep., 878 ; see also Nutting v. Kings Co. M. R. R, Co., Id., 877.) Elevated roads in Brooklyn must make compensation for operating a road in streets taken under chap. 132 of Laws of 1885. (1887, Meth. Soc. v. Brooklyn R. R. Co., 46 Hun, 530.) The right to go over a sidewalk is given to make a proper and safe road, and where an elevated railroad, as proposed to be built, would, in order to pass from one street to another, make a considerable curve, at one corner crossing the sidewalk in front of plaintiff's property, and within a few feet of his store, and cutting off a piece of the house on the other corner^ but by cutting deeper into the house the sidewalk could be saved, it was held that the radius of the curve being the same in either case, a court of equity would not interfere, and the fact that the house belonged to a construction company or even to a railroad company would be immaterial. (1888, Schmitz V. Union El. R. R. Co., 21 K Y. St Rep., 424.) 4. House Railkoads in Streets. The ground is taking by Emott, J., who delivered an opinion in People v. Kerr, (27 N. Y., 188), that there is a difference in rerp'^ct to property subject to an urban servitude between a city railroad and ordinary railway running from one town to another, and that the use of a street for a horse railroad approx- imates more closely to ordinary highways, and is consistent with the original dedication of such street. (See also Mahady v. Bushwiok R. R. Co., 91 iV. F., 148; 1889, JTussnery. Brooklyn City R. R. Co., 23 K Y. St. Rep., 856 ; 114 K Y, 433.) The distinction between horse railroads and those on which steam is the motive power, is not made by any of the cases in the Court of Appeals before cited, but is expressly denied by some of them, and is in conflict with the reasoning and principle of all of them. Thus, in Wager v. Troy Union R. R. Co., 25 If. Y. 526, the court says: "It is true that the actual use of the street by the railroad may not be so absolute and constant as to exclude the public also from its use. With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the Raileoads in Highways and Stebbts. 357 street might be very trifling, and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property, or of the increase of the burden upon the soil. It would present, simply, a question of degree in respect to the enlargement of the easement, and woiild not affect the principle, that the use of a street for the purpose of a raih-oad imposed upon it a new burden." Even Mr, Justice Sotjtheeland, who delivered a dissenting opinion, repudiated any such distinction. He says : " In this case the railroad, I assume, was intended to be, and was oper- ated by steam. I cannot see how that affects the question of power, although it is plain, that in a city, a road operated by steam would probably occasion much more serious consequen- tial damages to the adjoining lot owners or occupiers than a horse railroad." The precise question came before the Court of Appeals, in Craig v. Rochester City, ^ B. R. R. Co. (39 Barh. 494 ; affirmed 39 N. T. 404), as to a distinction in this respect between railroads on which the cars are moved by animals, and those on which the motive power is steam. In this case, Millbe, J., says : " I am at a loss to see any apparent distinction in the ap- plication of the rule between cases where steam power is em- ployed, and those cases where the road is operated by horse power. It is true there is some difference in the manner in which the road is constructed, and the speed with which its cars are propelled, at times ; but there is precisely the same exclusive appropriation of the track for the purposes intended in each case to the absolute exclusion of all who may interfere with its mode of operation. * * * The use of a railroad, no matter how it is operated, whether by horse or steampower, necessarily includes, to a certain extent, an exclusive occupation of a portion of the highway, for the track of the road and the running of its cars by the company, and a permanent occupation of the soil. It requires that all other parties shall stand aside, and make way for its progress. This is clearly inconsistent with the legal object and design of a highway, which is entirely open and free to all, for pur- poses of locomotive travel and transportation. The enjoyment of the easement in a highway never confers an exclusive right upon any one who may have occasion to use it, while the laying down of rails, and the employment of cars, is to the detriment 358 The Law of Highways. and exclusion of all others at the time the cars are running, and a restraint upon a free, undisturbed and general public use. It is an assertion of a right to the possession of the highway by the corporation, and an appropriation of it to private occupa- tion which, by lapse of time, might ripen into a right, and vest a title in the company." Three of the judges dissented from this opinion and Mason, J., writes a very able opinion, which space will not permit us to insert, but to which we would refer as containing a full reference to all the leading cases on this subject up to that time (1868.) The case was approved in 1875 in Bloomfield Gras Light Co. V. Calkins (62 N. T. at p. 386.). These decisions have no ap- plications when the fee as well as the easement is vested in the public, and it was held in Kellinger v. Forty Second Street R. a. Co. (50 iV. Y. 206), that the owners of property adjoining a street in the City of New York, laid out under the act of 1813, have an easement in the street in common with the whole peo- ple to pass and repass, and also to have free access to these premises, but the mere inconvenience of such access occasioned by the lawful use of the street is not the subject of an action, and that the fact that a street railroad had laid its track so near plaintiff's sidewalk in front of his premises as not to leave suffi- cient space for a vehicle to stand, and that he and his family are thereby incommoded in leaving and returning to their resi- dence, and the rental value of his premises were greatly depre- ciated, did not entitle him to recover damages. The Kerr and Kellinger cases are commented upon and dis- tinguished in the case of Story v. N. T. JElevatedB. B, Co. (90 N. Y. 122, 157, 160), and it was held that the positions upon which the judgment in these two cases rests have no place in the Story case, which related to elevated railroads. But where a street railroad obtains permission to use a steam motor, its right to do so is limited to the route laid out, and if the motor is run into other streets than those named in the law granting such right it becomes a nuisance, and abutting owners have such an ease- ment in the street as to enable them to insist as against the de- fendant that it should be devoted to such use only as was con- sistent with its purposes as a public street. (1889, Hussner v. Brooklyn City B. B. Co., 23 N. Y. St. Bep. 856 ; 114 K Y. 434.) In such a case the plaintiffs may waive their rights to recover nominal damages for a trespass, and recover only substantial damages for injury to the premises. (iS.) Railroads in Highways and Streets. 359 The mode of forming a company for construction, extension, maintenance and operation of street surface railroads in cities, towns and villages is provided by Laws 1884, chap. 252 q. v ; by chap. 65 of the Laws of 1886 as amended by chap. 642 of the same year, the local authorities must require that the fran- chise must be sold at public auction to the bidder who will agree to give the largest percentage per annum of the gross receipts of the company, and give security, with privileges to the Legis- lature to reduce the fare. Such consent may be sold to a railroad already incorporated. The notice for and the manner of sale is specified. This law does not affect the New York Arcade Rail- way Company. A railroad constructed beneath the surface of a street is a street railroad within § 18, Art. 3 of the Constitution. (1886, Matter of N. Y. Dist. By. Co., 4 K Y. St. Hep. 739.) Under the Law of 1886, supra, municipal corporations have absolute power to grant or withhold consent to construction of street railways, and may impose any condition however onerous and difficult as the terms on which it will be granted. Such conditions must be specified in notice of sale, and no other can be exacted. (1888, People ex rel. West Side St. Ry. Co. v. Barnard, 18 K Y. St. Rep. 542; 110 N. Y. 548.) The title to streets in New York City is vested in the city in trust for the people of the State, but under the Constitution and statutes it has authority to convey such title as is necessary for the purpose to corporations desiring to acquire the same for use as a street railroad ; and the city has authority to limit the estate granted either as to the extent of its use or the time of its enjoyment, and also had power to grant an interest in the public street in perpetuity which should be irrevocable. (1888, People V. O'Brien, 19 K Y. St. Bep. 173.) PlanTc-road may lay rails. — By the laws of 1879, chapter 214, any plank-road or turnpike company shall have power and is authorized to lay iron rails on their road suitable for the use of wagons and vehicles drawn by horses going over its road, except in the counties of Cortland, Orleans, Kings, Oneida, New York and Steuben, but nothing contained in the act shall permit or authorize the using of steam on any plank-road or turnpike. Easement not exclusive. — A street railroad does not acquire 360 The Law of Hxghwavs. such an easement in the highway as to prevent another railroad company from laying a track through the same avenue. ( iV. ¥. ^ Harlem E. B. Co. v. Forty-second St. E. E. Co., 50 Barh. 285.) Where a street railroad contracts with the city to keep the street in and about its rails safe for the passage of the public, it includes so much of the street surface outside the rails as was disturbed in laying them, presumably a foot out- side the rail. (^McMahon v. Second Ave. E. E. Co., 75 N. T. 231.) The fact that a street railroad company has agreed to keep a portion of a street in repair, does not deprive the city authorities of the power or absolve them from the duty to keep such streets in a safe and proper condition — and even if the city fails to require the company to perform its contract, this is not an objection to an assessment upon owners of lots upon the street for necessary repair. (People ex rel. Marhey v. City of Brooklyn, 65 N. Y. 349.) 6. Over or Undek Ttjenpikes and Plank Roads. Where land has been taken for a turnpike and afterwards transferred by legislative authority to a railroad company, with- out compensation by the latter to the owner of the fee, he may maintain an action for damages resulting from such occupation. . {Mahon v. New York Central E. E. Co., 24 N. Y. 658.) So the statute permitting a railroad to construct its road over or along a plank-road or turnpike does not preclude such plank- road or turnpike from recovering of the railroad all damages sustained by it, the company having entered upon the plank- - road or turnpike without causing damages to be assessed under the statute. {Ellioottville Cr. V. Plank-road Co. v. Buffalo, ^ Pitts. E. E. Co., 20 Barb. 644 ; Seneca Eoad Co. v. Auburn, ^ Eooh. E. E. Co., 5 Hill, 170 ; see Laws 1880, chap. 682.) Where a railroad crosses a highway, it will not be permitted to cross in any particular way that would render it impractica- ble to restore the highway to a reasonable degree of usefulness. (^People V. N. Y. C. ^ H E. E. E. Co., 74 N. Y. 302.) The rail- road company must not only make the approaches to a bridge crossing the highway, but it must keep them in suitable repair. ' If it does not do so, it may be indicted as a nuisance. (^Id.) The question to be maintained in indictment for such crossing, is whether the bridge unnecessarily impaired the usefulness of the highway. (1882, People v. iV. Y, N. H. ^ H. E. E. Co., 89 iV. r. 266.) Railroads in Highways and Streets. 361 Tunnels. — By chapter 582 of the Laws of 1880, it is provided that whenever according to the route and plans adopted by any railroad company heretofore or hereafter formed under any special act of the Legislature of this State, or under chapter 140 of the Laws of 1850, entitled " An act to authorize the forma- tion of railroad corporations, and to regulate the same," and all acts supplementary thereto or amendatory thereof, for the building of its railroad, it shall be necessary or proper to build said road, or any part of the same underground, or to tunnel or bridge any river or waters, it shall be lawful for said company to enter upon and acquire title to and use such lands under ■water and uplands, except on or along any canals owned by the State, as shall be necessary for purposes herein mentioned, and they shall have the power to construct, erect and secure the necessary foundations and other structures which may be re- quired for the operating of such road or connecting the same with another, and for maintaining the same and purchase or ac- quire, in the manner now provided by law, such land or rights or easements in land along their said route upon, over or be- neath the surface thereof, as may be necessary for the building of their said road and making such connections ; provided, how- ever, that where said road runs underneath the ground at such conviction the offender may be fined ten dollars. 6. CONCEKNING DeTJNKEN DkIVEES. No person owning any carriage running or traveling upon any road in this State, for the conveyance of passengers, shall em- ploy or continue in employment any person to drive such car- riage who is addicted to drunkenness, or to the excessive use of spirituous liquor ; and if any such owner shall violate the provi- sions of this section, he shall forfeit at the rate of five dollars per day for all the time during which he shall have kept any such driver in his employment, to be sued for by the district attorney of the county in which such owner shall reside. 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 com- piensation for his services and expenses, beyond the taxable costs.' (IE. S. 695, § 2.) When to be discharged. If any driver, whilst actually employed in driving any such carriage, shall be guilty of intoxication to such a degree as to endanger the safety of the passengers 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 certified 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 aiffer the receipt of such notice, any driver who shall have been so intox- icated, shall forfeit at the rate of five dollars per day for all the time during which he shall keep any such driver in his employ-, ment after receiving such notice, to be sued for and applied as directed in the last preceding section. (1 It. S. 695, § 3.) Tbavel TTPOif Highways. 395 Leaving horses without being tied. 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 run- ning ; and if any such driver shall offend against the provisions of this section, 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 ^uch recovery be paid forthwith, an execution shall be immediately issued therefor. (1 B. S. 696, § 5.) Owners liable for acts of driver. — The owners of every carriage running or traveling 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, while driving such carriage, to any per- son, or to the property of any person ; and that whether the act occasioning such injury or damage, be wilful or negligent, or otherwise, in the same manner as such driver would be liable. (1 E. S. 696, § 6.) The conductor of a street car is not a driver of a carriage with- in the meaning of the above statute, and therefore the company is not liable for his wilful act. (^Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122 ; Whitaker v. Mghth Ave. R. R. Co., 51 iV. Y. 295.) The question of negligence in driver of a horse car should go to the jury. ( Watkins v. Atlantic Ave. R. R. Co., 20 Sun, 237.) Steam vehicle. — It shall not be lawful for any owner or owners, or the servant or agent of auy owner or owners of a carriage, vehicle or engine, propelled by steam to allow, permit or use the same to pass over, through or upon any public highway, road or street, unless such owner or owners or agent or servant shall send before the same a person of mature age at least one eighth of a mile in advance to notify and warn persons traveling or using said highway, road or street, with horses or other dom- estic animals of the approach of such carriage, vehicle or engine, and at night said person to carry a red light, except in incor- porated cities and villages. (Laws 1886, chap. 269, § 1.) 396 The Law of Highways. Any person violating the provisions of this act shall be, guilty of a misdemeanor and liable for any damages sustained by any person or persons traveling or using said highway with horses or domestic animals as aforesaid. (Id., § 2.) This act shall not apply to steam railroads. (Id., § 3.) Cahle in Highways. 397 CHAPTER XVII. CATTLE IN HIGHWAYS. The Law of 1862 (chapter 459), to prevent atiimals running at large in the public highways, was decided by the Court of Appeals to be unconstitutional, so far as it authorized the seizure and sale, without judicial process, of animals found tres- passing within a private enclosure. (^Rockwell v. Nearing, 35 N. Y. 802.) In order to bring the act within the limits of the constitution, it was amended by the Legislature in 1867 (chap. 814), and provision was made for conducting the pro- ceedings as other legal proceedings are conducted, and it was again amended by chapter 776, Laws 1872. But all of these acts are repealed by the Laws of 1880, chapter 245, and the law is codified in chapter 178 of the Laws of 1880, as follows : Action for suffering animals to stray. — 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 penalties specified in the next sec- tion ; and any resident of the town, or the officer to whom a fine is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, or the overseer or superintendent of the poor of the town or district in which 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 penalties 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 prescribed in this section to be applied by him to the support of the poor within his town or district. (Laws 1880, chap. 178, § 3082.) i 398 The Law op -Highways. Penalties. — 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, besides the cost 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 recovered in one action, although it exceeds the sum, for which a justice can render judgment in an ordinary action. (_Id., § 3083.) It is no defense to an action for the penalty imposed by the foregoing section that the cattle have escaped from the owner's premises by the breaking down of fences by an unruly cow belonging to him, or defective fences. ( Cotton v. Maurer, 1 JVI Y. Sup. Ot. [0. ^ y.] 481.) The party accused owes the duty of keeping his horses from straying on the highway to every person traveling thereon ; a breach of duty constitutes negli- gence, which entitles one to whom the duty is owing and who has been injured by the breach to recover. (^Bowyer v. Bur- lew, 3 X. Y. Sup. Ct. IT. ^ C] 362.) Certain officers to seize animals. — Where one or more cattle, horses, colts, asses, mules, swine, sheep, or goats are found run- ning at large, or being herded or pastured in a public street, highway, park or place, elsewhere than in a city, the overseers of highways of the road district, or, if they are so found within an incorporated village, the street commissioner thereof, having personal knowledge or being notified of the fact, must imme- diately seize the animal or animals, and keep it or them in his possession, until disposed of as prescribed in the following sec- tions of this title. (Jd., § 3084.) This is in substance chapter 814, Laws of 1867, which is de- clared to be constitutional in Cooh v. Gregg (46 N. Y. 439), and in Fox v. Bunckel (38 How. Pr. 136.). The act of 1867 cured the defects of the act of 1862, which were regarded as fatal in Rockwell V. Wearing (35 N. Y. 302.) It is no objection to the proceedings that personal notice to the owner or other claimant of the property is not made necessary by the act, or essential to the jurisdiction of the magistrate, or that the pro- ceedings are to some extent, summary. (^Campbell v. Evans, 45 N. Y. 356 ; see McConnell v. Van Aerman, 56 Barl. 534.) • Cattle in Highways. 399 When private persons may seize animals. — 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 tres- passing upon real property so owned or occupied, having en- tered thereupon from such a public 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. (^Id. 3085.) The law as it stood previous to 1880 did not specify whether the trespassing must be from the highway/, and several cases held that the law had no reference to animals taken under its provisions unless they had so escaped, and that it was uncon- stitutional so far as to the case of trespass by the cattle of one gaining access through a division fence to the lands of ah ad- joining owner. (^Campbell v. Evans, 64 Barb. 566 ; McConnell V. Van Aerman, 56 Barb. 534 ; Jones v. Sheldon, 50 N. T. 477.) But the wording of the present law seems to settle the point satisfactorily. Officer to present petition. — An officer or other person, who seizes an animal or animals, as prescribed in either of the last two sections, must immediately file, with a justice of the peace of the town in M'hich the seizure was made, a written petition, verified by his oath ; setting forth the facts, which bring the ■case within either of those sections; briefiy 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 prop- erty owned or occupied by the petitioner, it must state the amount of damages, if any, which the petitioner has sustained 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; for forms of petition, see Appendix Nos. 88 and 89.) The petition should show that the animal escaped upon the 400 The Law of Highways. complainant's premises from the highway ; and if omitted, it is- improper to amend when the answer is put in. (^Coles v. Burns, 10, Week. Big. 131.) It is not necessary to state that the animals were running at large, " by the suffrance or permis- sion of the owner." (^Campbell v. Uvans, 54 Barb. 566.) Precept thereupon. — Upon the presentation of the petition, the justice must issue a precept under his hand ; directed ta 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 reciting 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 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 ; for form of precept, see Appendix. No. 90.) When one has seized cattle under these proceedings, he holds them by virtue of the original seizure, as authorized by the act j and upon presenting the petition, his duty is performed, and his right to hold the cattle is not affected by any irregularity in the precept issued by the justice to whom the petition was presented, nor by an omission to post the precept as required by the act. (^Leavitt v. Thompson, 52 JV". T. 62.) How served. — The precept must be served upon the person to whom it is directed by his name, within the same time, and in like manner as a summons is required to be served, as pre- scribed in section 2910 of this act. Where it is directed gener- ally 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 in- dorsement 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 Cattle in Highways. 401 person by his name, and proof is made by a£6davit, 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, direct that service thereof be made, by posting copies thereof, at least five days before the return day as pre- scribed in this section, in which case service thereof may be made accordingly. {Id., § 3088.) The " nearest " school-house is the one nearest the place where the animal was seized. (^Camphell v. Evans, 54 Barb. 566.) The service of a summons referred to above is as follows : The constable must, at least six days before the return day of the summons, serve the summons upon the defendant, by deliv- ering to him personally, a copy of the same, if he can, with reasonable diligence be found within the county ; or, if he cannot be so found, by leaving a copy of the same 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 de- fendant at his residence ; 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. {Id., § 2910.) Proof of service. — At the place where the precept is return- able and at the expiration of the time specified in section 2893 of this act, the petitioner must, unless the precept is directed to a person by his name, and he appears, 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 written 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., § 3089, Appendix No. 91.) Section 2893, above referred to, is, 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. Answer. — The owner or a person having an interest in any animal seized, may appear upon the return of the precept, and 27 402 The Law of Highways. thereby make himself a party to the special proceeding. The person so appearing may, upon the return of the precept, file a written answer, subscribed by him or his attorney, and verified by the oath of the person subscribing it, denying, absolutely, or upon information and belief, one or more 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. (Jd., § 3090.) Final order to sell. — If no person 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 application of the proceeds thereof as prescribed in this title. (Id., § 3091.) Mode of gale. — Thereupon the justice must issue a warrant, under his hand, directed generally to any constable of the county, commanding him to sell the animal or animals seized, at public auction, for the best price which he can obtain there- for ; 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 upon the like notice, and in like manner, as a sale of property, by virtue of an execu- tion issued by a justice 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 execu- tion. (Id., Appendix No. 92.) Application, of proceeds of sale. — The justice must apply the proceeds of 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 service of the precept, either personally or by posting, at the rate allowed by law for personal service of a summons by a constable. Cattle in High-ways. 403 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 making the seizure, the following fees, for the seizure of each animal seized and sold, to wit : one dollar for each horse, colt, ass, or mule; fifty cents for each bull, 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 animal, from the time of the seizure to the time of the sale ; and, also, where any animal was seized, while tres- passing upon real property owned or occupied by the.petitioner, the damages sustained by the petitioner in consequence thereof, as ascertained 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 this act, the following 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 per- son or persons entitled thereto, as prescribed in the following sections of this title. (Id., § 3092.) The fifty cents per head allowed to the party taking up cattle found trespassing on his lands are allowed as compensation, not for the mere taking, but for pursuing the remedy provided, and the right thereto is not complete until the sale of the cattle. (Miekox v. Thurstin, 7 Lans., 421.) Disposition of surplus. — 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 Sun- day 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 de- termining them, he must hear 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 404 The Law of Highways. not more than thirty days in all. After hearing the allegations and proofs of all 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 expiration of a year from the return of the warrant; and, thereupon, the justices must proceed, as prescribed in this section with respect to a claim filed within ten days. (iS., § 3093.) When no claim made within a year. — ^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 provisions 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 2875 of this act; and, thereupon, all persons are forever barred from any claim thereto. But if a claim, filed as prescribed in the last section, remains undetermined at the expiration of the year, the justice must determine it within ten days thereafter ; and, for that pur- pose, he must retain the surplus in his hands until the determi- nation. (Jd., § 3094.) Appeal. — An appeal from an order determining a claim as prescribed in the last two sections, 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 sum equal to the claim ; and the proceedings thereupon are the same, except that an undertaking is not necessary for any pur- pose. Upon such an appeal each other claimant, whose interest is affected by the order appealed from, must be made a respond- ent. 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 extending the time, within which payment of the surplus must be made, as prescribed in the last section, and staying payment accord- Cattle in High-wats. 405 ingly. Unless such an order is made, and a copy thereof is served upon the justice, 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., § 3095.) When decision is favorable to defendant. — If the decision of the justice, or tlie 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. If the justice or the jury find that the seizure was malicious, and without probable cause, the de- cision or verdict must assess the damages sustained by the per- son answering, by means of the seizure and detention. The justice must thereupon make a final order, awarding to the per- son 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 ; also twice the sura assessed 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, relating to a judgment and an execution in such a case, applies to a final order made and a warrant issued thereupon, as prescribed in this section. (Id., § 3096. See Millard v. Severance, 1 Row. Pr. {N. S.'^ 521.) Demand of possession before trial. — At any time after the pre- cept is issued, and before the commencement of the trial, the owner of any animal seized may file with the justice a writ- ten demand of the possession thereof. Thereupon he is en- titled 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 time of the 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 pos- session is so demanded, as prescribed in subdivision third of the 406 The Law of Highways. same section : which sums must be fixed by the justice, after hearing the allegations and proofs of the parties. 2. He must also pay to the justice, a fee of one dollar for each animal, whereof possession is so demanded. 3. If the petitioner is an oflScer, to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, the claimant must also pay to the justice, for the petitioner's use, the sum specified therein on account of each animal whereof possession is so demanded. 4. The claimant must also prove, to the satisfaction of the justice, by affidavit or competent evidence, that he is the owner of each animal whereof possession is so demanded. Each person who has appeared must have notice of, and may oppose the claim. (Id., § 3097.) The right to detain cattle is not terminated, until the owner has by a payment to the justice of the several sums specified in the act, entitled him to a return thereof. (Leavittv. Thompson, 52 N. Y. 62.) Animal wilfully set at large. — But where, in a case specified in the last section, the person filing a demand, presents there- with to the justice sufficient proof, by affidavit or otherwise, that the running at large, herding, pasturing, or trespassing, by reason whereof the animal or animals, of which he demands possession, were seized, was caused by the wilful 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 pay- ing to the petitioner, or to the justice for his use, a reasonable sum, to be fixed by the justice, after healing the allegations and proofs of the parties, as compensation 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.) Action hy owner of animal set at large. — The owner of an ani- mal, seized in consequence of a wilful act specified in the last section, may recover in an action against the person who com- mitted it, all damages sustained by him, in consequence thereof, including the sum paid in order to recover possession of the animal, as prescribed in the last section : and in addition there- Cattle in Highways. 407 to, the sum of twenty dollars for each animal seized. (Id., § 3099.) Action hy petitioner and officer. — Where the possession of an animal has been delivered, 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 wilful act, to recover in addition to all damages sustained by the plaintiff in consequence of the wilful act, all sums, to which the plaintiff would have been entitled out of the proceeds of the sale, as prescribed in section 3092 of this act, other than the compensation paid for the care and keeping of the animal. In the like case, if the petitioner is a private per- son, the ofiScer, to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, may maintain an action against the person, who committed the wilful act, to recover the penalties to which the plaintiff would have been entitled, out of the proceeds of the sale, as prescribed in that subdivision. Neither of the actions specified in this or the last section is affected by the pendancy of, or the recovery of judgment in, either of the others. (Id., § 3100.) Demand of possession after final order. — 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 precept, 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 competent evidence, a sufficient excuse, to the satisfaction of the justice, for his failure to appear. 2. He must, in all respects, comply with the provisions of section 3097 of this act ; except that it is necessary for him to pay only one-half of the justice'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 prescribed in sub- division third of section 3092 of this act. (Id., § 3101.) Order. — Where a demand for the return of the possession of 408 The Law op Highways. an animal is filed, as prescribed in either of the last five sections, the justice must, at the request 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 proceeding, at any time before the final order in the special proceeding is made ; and each person or party so entitled to appeal 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 of appeal from order. — 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 the 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 abso- lutely^ or unless further security is given, in his discretion. (Jc?., § 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 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 prescribed in the next section. (iS., § 3104.) Appeal from final orderly claimant. Stay. — An appeal from a final order, taken, as prescribed in the last section, by the person answering, 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, Cattle in Highways. 409 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 purpose of perfecting an appeal from a judgment, and staying the execution thereof ; and also an undertaking, in the same or other 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 exceeding 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 prescribed in section 3092 of this act. 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 ioi-thwith entitled to the possession of the animal or animals seized. (Id., § 3105.) Proceedings upon affirmance. — 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 re- turned, and the proceeds thereof paid to him by the constable as prescribed in section 8092 of this act. The undertaking upon the appeal enures 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, (icif., § 3106.) Limitation of action. — "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, im- mediately files his petition, and diligently prosecutes the same, as prescribes 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 410 The Law of Highways. the cause of action accrues. (Id., § 3107, Millard v. Severance, J. 1 How. Pr. K S. 521.) Who may maintain an action. — A person, to whom the precept was directed by his name, and who was personally served there- with, or a person who has appeared and answered in the special proceeding, or demanded the return of any animal seized, can- not 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, except as specified in this section, the owner of an animal seized or detained, under color of any provision 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 pastured, or trespassing as the case may be, as specified in the foregoing provisions of this title. (Id.y § 3108.) Proceedings where several animals trespass. — For the purpose of determining the damages sustained by the petitioner, where two or more animals are found simultaneously trespassing upon real property, owned or occupied by him, 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 different persons, who are known, own difEerent 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 ascertained 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 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 of this act, 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 of this act, 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. Cattle in Highways. 411 with respect to the animal or animals, of which possession is not so delivered, and against the proceeds of the sale thereof, as if those, whereof possession is so delivered, had not been tres- passing upon the property. (Id., § 3109.) Proceedings as to different owners. — Where the petitioner does not allege, that the animals seized were trespassing upon real property owned or occupied by him, and different persons owned 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 remainder of 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 persons had not answered, or had not been named in the precept. But the person, first making the demand of the possession of any animal seized, must pay all the costs to the time of the demand; and a person subsequently making a demand, is excused from the payment of any costs, except those which have accrued since the former demand. (Id., § 3110.) Surplus where there are different owners. — Where proceedings are taken jointly against different animals seized, as prescribed in either of the last two sections, the surplus remaining in the justice's hands, must be distributed between them, in proportion to the value of the animals owned by each, to be determined by the justice. Any owner may claim separately his portion of the surplus;- and sections 3093 and 3094 of this act apply to a claim made, and to the disposition of the surplus arising as prescribed in this section. (Id., § 3111.) Where one action supersedes any other. — Where two or more persons, or an officer and a private person, are authorized, by 412 The Law of Highways. 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, supersedes 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 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 thinks proper. (iS. , § 3112.) Officers^ right to prosecute. — Where a seizure is made by a private person, as prescribed in this title, and the possession of an animal seized is abandoned 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 offi- cer, to whom a penalty is prescribed in section 3083 of this act, or in subdivision fourth of section 3092 of this act, may, unless he has assented to the abandonment, settlement, or discontin- uance, 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. (Jd. § 3113.) Who deemed owner. — When a person is, at the time of the seiz- ure, entitled to the possession of an animal, as against the gen- eral owner thereof, by virtue of a special property therein, he is deemed, for all the purposes of this title, the owner thereof. ( Id., § 3114.) Agent may act for principal. — The duly authorized agent of the owner or person entitled to the possession of an animal, as specified in the last section, may, in his own name, answer, make any demand, or take any other proceeding, which the owner or- person so entitled may make, as prescribed in this title. (Id., § 3115.) New York City. — As to the laws governing the driving of cattle through the city of New York, see Laws 1882, chap. 410, §§ 1933-1938 ; Laws 1883, chap. 350. Ways and Pbivate Roads. 413 CHAPTER XVIir. "WAYS AND PRIVATE EOADS. 1. Definition and nature of ways. 2. Ways by prescription. 3. Ways by grant. 4. Ways from necessity. 5. Private roads under the statute. 6. Bight of way, how pleaded. 1. Definition and Natube op Ways. A right of way is a privilege which one person, or a particu- lar description of persons, may have of going over another man's land in some particular line, and is termed, in law, an incorpo- real hereditament. (3 Kent, 419; WasTib. on Hase. 160 ; Boyce V. Brown, 7 Barb. 80.) It may arise by proceedings under the statute, by grant, reservation, prescription, or necessity. ( Boyce V. Brown, supra. ) A right of way is but an incorporeal hered- itament, an easement which per se does not divest the owner of the fee of the land ; and, for every other purpose, except the use or servitude as a way, the soil belongs to him, and he is en- titled to the same remedies for an injury to his residuary inter- est, that he would be entitled to if it was entire and absolute. QGridney v. Uarl, 12 Wend. 98 ; per Nelson, J.) So, a grant of a way across a man's land conveys no right to the soil, rocks or other things, within the bounds of the way. {Jamaica Pond V. Chandler, 9 Allen, 159.) In gross or appendant. — A right of way is either in gross or appendant to land. A right of way is said to be in gross, when it is attached or limited to the person using it ; but a way is never presujmed to be m gross when it can fairly be construed to be appurtenant to the land. ( Case of Private Road, 1 Ashm. 417 ; G-arrison v. Budd, 19 111. 558 ; Derrickson v. Springer, 5 Har- rington, 21.) If a right of way be in gross or a mere personal right, it can- not be assigned to any other person, nor transmitted by descent. It dies with the person, and is so exclusively personal, that the 414 The Law of Highways. owner of the right cannot take another person into partnership with him. (3 Kent, 420.) But when a right of way is appendant or annexed to an estate, it may pass by assignment when the land is sold, to which it was appurtenant. Thus, if one be seized of lot A and lot B, and he use a way from lot A over B, to a mill or to a river, and he sell lot A, with all ways and easements, the grantee shall have the same privilege of passing over lot B that the grantor had. (3 Kent, 420.) Appendant. — Ways are said to be appendant or appurtenant, when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, con- cern the premises, and be essentially necessary to their enjoy- ment. They are of the nature of covenants, running with the land, and like them, must respect the thing granted or demised and must concern the land or estate conveyed. A way append- ant cannot be turned into one in gross, because it is separately united to the land to which it is incident. ( Washl. on Ease. 162.) A right of way appurtenant to land attaches to every part of it, though it may go into the possession of several persons. Each owner will be entitled to a way. ( Underwood v. Carney, 1 Qush. 285 ; Lansing v. Wiswall, 5 Denio, 213.) 2. Wats by Peescription. A right of way may arise by prescription. A prescription supposes a grant before the time of legal memory. It is founded on the immemorial use of the way by the claimant and his ancestors, or by those whose estate he has, which last is called prescribing in a que estate. Immemorial use is a use time out of mind. Time out of mind in this State is twenty years. (_Miller V. Grarlock, 8 Barb. 153, per Paige, J.) An uninterrupted use and enjoyment of a right of private way over the land of another for twenty years become an ad- verse enjoyment sufficient to raise the presumption of a grant. The use fur twenty years to be conclusive evidence of right, must have been continuous, uninterrupted and exclusive ; that is, under a claim of right, with the knowledge and acquiescence of the owner. The time of the enjoyment is deemed to be uninterrupted when it is continued from ancestor to heir and Ways and Private Roads. 415 from seller to buyer. (Id.; 3 Kent, 444 ; Corning v. G-mld, 16 Wend. 531.) The use of the easement for twenty years unexplained, will be presumed to be under a claim or assertion of right, and adverse, and not by leave or favor of the owner. (Id., Lansing V. Wiswall, 5 Denio, 213.) There are various methods of meeting, qualifying and explain- ing the evidence adduced to establish the user during twenty years ; and where a case the least questionable is made, it has commonly been the course to leave it to a jury to say whether they will presume a grant. (Corning v. Crould, 16 Wend. 531, and cases cited.) In one case it was said that if the jury find a verdict in favor •of a prescription, the court will not take notice judicially, whether as a matter of fact such a prescription could have existed. As where one prescribed to travel in coaches and chariots between certain limits, it was urged that this could not be because coaches and chariots, being of modern invention, had not been in use time out of mind. But the court said that the jury found it ; that it was a matter of fact of which they could not take notice after a verdict ; but on the contrary they were bound to receive it according to the finding of the jury. (^Chichester v. Lethhridge, Willes, 71.) The enjoyment of a way for more than twenty years by license of the owner, confers no right by prescription. [Boyce V. Brown, 7 Barh. 80.) So where a right of way is reserved by deed, and the grantor and those claiming under him have used it in a manner nearly corresponding with the terms of the reservation, though long enough to give a prescriptive title, the use must have been intended to have been under the deed, not adverse, and therefore the right will be limited by the terms of the reservation. (Atkins v. Bordman, 2 Met. 457.) To establish a right of way by user or prescription, the user must be confined to one certain tract. (Holmes v. Seely, 19 Wend. 507.) Where the owner of lands across which others have a pre- scriptive right of way, for his own convenience closes such way and opens another across other parts of his lands for the use of those having the right, and they assent to the change and use the new way for a period less than twenty years, the owner cannot close such new way and prevent its use, without 416 The Law of Highways. first restoring the old one to its former condition. If the owner of lands, without restoring the old waj', remove a bridge over a stream crossing the new one, those having the prescriptive right to the old way may rebuild the bridge or fill the stream where such bridge stood, doing as little damage as possible to- the owner of the land, and continue the use of the new way until the old one is restored. {Hamilton v. White, 5 N. Y. 9.) The public cannot acquire easement by non-user. A prescrip- tion supposes a grant, and in the case of the public there can be no grantee. (Ourtis v. Keesler, 14 Barb. 611.) ffow extinguished. — A right of way acquired by prescription may be lost or extinguished by non-user for twenty years (Smyles v. Hastings, 22 iV. Y. 217), but not by a non-user short of that period. (JJorningy. Grould, 16 Wend. 531; Miller V. Grarloek, 8 Barb. 153.) A non-user for twenty years unac- counted for, will afford a presumption of a release or surrender of the right. But the mere non-user of an easement, even for twenty years, will not necessarily raise a presumption of its extinguishment, unless there has been in the meantime some act done by the owner of the land charged with the easement, inconsistent with, or adverse to the existence of the right. And in that case a release or extinguishment of the right will be presumed. (^Miller v. Grarloek, 8 Barb. 153, per Paige, J. ; see, however. Corning v. Q-ould, 16 Wend. 535.) The permission to make erections in a roadway being inconsistent with the con- tinuance of the easement, works an extinguishment ' thereof (^Cartwright v. Maplesden, 53 K Y. 622.) 3. Ways by Gkant. A right of way may arise by grant, as where the owner of a piece of land grants to another the liberty of passing over his land in a particular direction. It may be a grant to pass over the farm of another, or over a particular field, or to a spring or creek, etc. The deed can be so limited in its terms, as that the grantee may have the right of passing or repassing when he pleases, or his family, or on horseback, or in a carriage; or it may be limited to certain purposes, as to get water, go to mill or to church. It is a principle of law that nothing passes as incident to tho grant of an easement, but what is requisite to the fair enjoy- Ways and Pkivate Roads. 417 ment of the privilege. (Lyman v. Arnold, 5 Mason, 195.) A right of way for one purpose does not necessarily include a right of way for another purpose. The extent of the right must depend upon the circumstance. (Ballard v. Dyson, 1 Taunt. 279.) But the grantor is bound to afford reasonable facilities for the enjoyment of the way by the grantee. (^Bahe- man v. Talbot, 31 JST. Y. 366.) 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 estate, 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, without an express grant, will not pass such way. ( Wash, on Ease. 169.) However, if owners of lands survey and map it into lots, with a road marked out as separating them and convey, describing the lots by their num- bers and reference to the map, a right of way passes as appur- tenant to the land. (Smiles v. Hastings, 24 Barb. 44 ; Aff'd, 22 iV. Y. 217; Clements \. Village of West Troy, 16 Barb. 251? see also Bissell v. iV. Y. Central Railroad Co., 23 N. Y. 61, and the cases cited in Washb. on Ease. 170.) When by deed. — In general a grant of a right of way would be made by deed. But there is a difference in this respect between grants of land to which a way is appendant and a grant of way in gross. In the first case, although there were a parol lease for less than three years, the way would pass, ac- cording to the rule that whatever is incident to land passes by the description of the land ; but in the second case it goes with the person, and must take effect by deed. ( Woolrych on Ways, 15 ; 2 Bo. Abr. 60 ; Beaudely v. Brook, Cro. Jac. 189.) What words will pass. — Unless a way be appendant to land, a grant of that land will not include the way without express words. And it will not pass under the term "tenement." But if it be appurtenant, it will necessarily pass under the word appurtenances. (Woolrych on Ways, 17.) A grant is always construed strongly against the grantor — so that if he should grant premises with all ways, all ways ordinarily used will go ■ to the grantee. 28 418 The Law of Highways. How proved. — Where the deed, granting a way, defines its course, etc., it is not to be controlled by parol testimony as to what the parties intended, or to contradict the terms of the grant. {Shepherd v. Watson, 1 Watts, 35 ; Ballard v. Dyson, 1 Taunt. 279.) But where there is a question as to the width of the way and both parties claim, under one remote grantor and grantee, reference may be had to the deed of the original grantor who created it. (^Brown v. Stone, 10 Orai/, 61.) Where a right of way is granted without any designation of the precise place in the deed, it becomes located by usage for a length of time ; and being so located it cannot afterwards be changed by the grantor. But if it has been changed, and the grantee has used the new way for a length of time, his acquiescence in the alteration will be presumed. (^Wynhoop v. Burger, 12 John. 222.) Grantee to repair. — The grantee of a private way, for his own accommodation, must keep it in repair. ( Wynhoop v. Burger, 12 John. 222 ; Bakeman v. Talbot, 31 N. Y. 366, per Beown, J.) He cannot deviate from the way and go upon another part of the grantor's land when the way becomes impassable, whether the obstructions are accidental or the act of the owner of the soil. ( Williams v. Safford, 7 Barh. 309 ; Bakeman y. Talbot, supra.) He may, however, remove all obstructions placed in it. did.) Sow abandoned. — A right of way acquired by deed cannot be lost by non-user. Nothing short of a holding strictly adverse for twenty years can produce that result. (^Smyles v. Hastings, 22 N. Y. 217; affirming, 24 Barb. 44.) But a parol agree- ment may operate as an equitable estoppel to extinguish such right of way. (Pope v. O'Hara, 48 N. Y. 446.) 4. Ways from Necessity. It is a principle of law that the grant of a thing shall carry all things included, without which the thing granted cannot be had. Therefore, if A. have an acre of land in the middle of, and surrounded by other of his lands, and sell that acre to B., here of necessity a convenient way arises on B.'s behalf to go over A.'s ground, as a necessary incident. ( Woolr. on Ways, 20 ; 3 Kent, 420 ; Holmes v. Seely, 19 Wend. 507.) It is said to be the same though the land sold be not wholly inclosed by Ways and Private Roads. 419 the land of the grantor, but partly by the lands of strangers, for the grantee may not go over strangers' land. (^Clarke v. Rugge, 2 Boll. Air. 60 ; Smyles v. Hastings, 22 K Y. 217.) This way of necessity should be a convenient one over the adjoining close of the grantor, due regard being had to the interest of both parties. Subject to this rule the grantor may, in the first instance designate the way, and if he neglect to do so, the grantee may choose for himself ; but he cannot claim the right to several ways, for the right cannot be carried beyond the necessity. (Holmes v. Seely, 19 Wend. 507.) The right of way from necessity, over the land of another, is always of strict necessity, and this necessity must not be created by the party claiming the right of way. 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 land that the right of way over that of another can exist. That a person claiming a way of necessity has already one way is a good plea,jand bars the plaintiff. (^M' Donald v. Lindall, 3 Rawle, 492._) Nor can one claim a way by necessity because of its superior convenience over another way which he has. {Bodd V. Burchell, 1 Hurl. ^ Colt. 113.) When grantor has way of necessity. — If a man have several distinct parcels of inclosed land, and he sell all but one sur- rounded 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, 421, and cases cited.) How long exists. — A right of way from necessity, continues only so long as the necessity which creates it exists ; and this applies as well to a subsequent owner of the estate to which such way attaches, as to the first grantee in whose favor it was originally raised. It is not enough that it continues to be a way of convenience, if it ceases to be indispensable as a means of access to the land. ( Woolr. on Ways, 23 ; JV. Y. Life Ins. ^ T. Co. V. Milnor, 1 Barh. Ch. 353 ; Holmes v. Seely, 19 Wend. 607 ; Washh. on Ease. 220.) It would not be enough, however, that one having such way of necessity, should acquire a parcel of land adjoining that to which such way belongs, to which there is 420 The Law op Highways. access by a prescriptive right of way, since the owner of such prescriptive way could only use it as a means of access to the particular parcel to which it is appurtenant. (iV. T, Life Ins. ^ Trust Co. V. Milnor, 1 Barl. Ch. 353.) I assing extra viam. — It has been intimated in one or two cases — though the question was not in issue — that there is a distinction between a private way by grant and one of necessity, resting upon the ground that one is the grant of a specific track over the close, while the other is a general right to a way over it ; the one an express specific grant, the other a more general implied one , and that there therefore, in case of a way of neces- sity, a passage extra viam may be justified when the usual track is obstructed. (^Holmes v. Seelt/, 19 Wend. 507, per Nelson, Ch. J. ; Taylor v. Whitehead, Doug. 745.) But in Williams v. Safford (7 Barh. 309), it was expressly decided that there is no distinction between such ways, and that in no case is a passage extra viam justified. 5. Pkivatb Roads under the Statute. • Application, how made. — An application for a private road shall be made in writing, specifying its width and location, courses and distances, and the names of the owners and occu- pants of the land through which the road is proposed to be laid out. (Laws 1853, chap. 174, § 1.) An application to the commissioner under the above provi- sion is sufficient, if it states the width, location, courses and distances of the road, and the other matters specified by the section, in general terms, without more precision than is neces- sary to enable the owners of land to know what part of their property is intended to be taken, and to enable the jury to de- termine intelligently upon the necessity of the road, and assess the damages. (^People ex rel. Smith v. Taylor, 34 Barl. 481. For form of application, see Appendix, No. 94.) The commissioners of highways have no right to lay out a private road for one person over lands of another, without consent of the latter ; and that act in laying out must be at least in substantial accordance with the consent. (Bempsey v. Kipp, 62 Barh. 311. See page 189 ante.") Jury to he called. — The commissioner or commissioners, to Ways and Peivate Roads. 421 •whom such application shall be made, shall, thereupon, appoint as early a day as the convenience 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. (Ji., § 2.) Co'py 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 lands. {Id., § 3. For form of notice, see Appendix, No. 95.) Service of notice and application. — The applicant, on receiving such cofy 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 guardian. ild., § 4.) One entitled to written notice of the meeting of the jury to lay out a private road, by appearing before the jury and con- testing, waives omission of it. (MoTiawh ^ Hudson B. E. Oo. V. Artcher, 6 Paige, 83.) List of jurors. — At such time' and place, on due proof of the service of such notice, such commissioner, or in a town where there are mo^-e 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 interested in such lands. (JcZ., § 5, as amended in 1860, chap. 468.) The remainder of the above section as amended, providing for an appeal, is given hereafter. (For form of list, see Appendix, No. 96.) Certain number may he struck from list, — The owners or occu- 422 The Law of Highways. pants of such lands may strike off 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 aforesaid for the purpose aforesaid. (Id., § 6.) Parties who agree upon jurors who decide on such an applica- tion cannot, on appeal, object that it does not appear that such jurors were freeholders. {People ex rel. Smith v. Taylor, 34 Barl. 481.) 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 determine as to the necessity of said road, and to assess the damages by reason of the opening thereof; if 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 commissioner is hereby authorized to swear the jury, and to administer any oath nec- essary to carry this act into effect. {Id., § 9.) Proceeding 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 verdict ; 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. (Id. § 10 : for form of verdict, see Appendix No. 97.) No private roads shall be laid out through a graveyard, unless the remains are first carefully removed and re-interred at the expense of those desiring the road, (see ch. 843, Laws 1868, and Laws 1869, ch. 708,) and private lands in which a vine- yard has been planted having one or more years' growth can- not be taken without consent. (Laws 1869, ch. 24, as am'd Laws 1883, ch. 99.) Ways and Private Roads. 423 In determining as to the necessity of the road, and in assess- ing damages, the jury should proceed as in case of public high- ways. 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 alteration 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 the same from the damages assessed for the open- ing and laying out of such private road. (Jc?. § 11.) It is only where the necessity of such private road has been occasioned by the alteration or discontinuance, of a public high- way, running through lands belonging to the same person, that the deduction is to be made. Proceedings after verdict. — The commissioner shall annex to such verdict the application mentioned 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 petition of the applicant. (^Id. § 12.) Proceeding may he adjourned. — In case any accident shall prevent any of the proceedings required by this act to be done on the day assigned, the proceedings may be adjourned to some other day, and the commissioner shall publicly announce such adjournment. (^Id. § 13.) Damages to he paid hefore opening road. — The damages as- sessed 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 nec- essity of such private road was occasioned by the alteration or discontinuance of a public highway, such damages shall be paid by said town and refunded to the applicant. (Id. § 14; Mohawk ^ Hudson B. R. Go. v. Artcher, 6 Paige, 83.) Description of road ahandoned. — Whenever any public high- 424 The Law op Highways. way, or any part thereof, by reason of alterations here made in 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 description 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 improved ; then and in that case the person owning or occupy- ing 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. (iS. § 16.) Appeals. And if any person shall consider himself aggrieved by the said decision of the freeholders, either in laying out or closing a road, he may, within sixty days after such determina- tion 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 be made to those judges under title first, article fourth, chapter sixteenth, part first of the Revised Statutes. (Last clause of section 5, of act of 1853 as amended 1860, chap. 468,) The county judge having acquired jurisdiction by the appeal, becomes vested with the same authority to dispose of such ap- peal in the manner provided in referenceto public roads, which includes the appointment of referees. (^West v. McGrurn, 43 Barb. 198.) For the manner of proceeding on appeal, see here- tofore Chap. XL For what purpose road to be 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 pur- pose than that of a road. Nor shall the occupant or owner of the land through which such road shall be laid out, be permitted Ways and Private Roads. 425 to use the same as a road unless he shall have signified his inten- tion of so making use of the same, to the jury or commissioners who ascertained the damages sustained by laying out such roads, and before such damages were so ascertained. (1 M. S. 617, § 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 accordingly, the person on whose ap- plication it is laid out, has an exclusive right to use it, and may maintain trespass on the case against the former," for injuries done by his using it. (^Lambert v. Soke, 14 John. 383.) Width of roads. All private roads to be laid out by the com- missioners, shall not be more than three rods wide. (1 M. 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 assented to .such location of the fences, if he gave his consent to have the defendant's damages assessed with reference to such fence as was built, or if he permitted the fence to be thus built, without objection. (^Herrich v. Stover, 5 Wend. 580.) Cannot go on adjoining lands. 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 adjoining lands. ( Williams v. Safford, 7 Barb. 309. See McMillan v. Cronin, 75 iV. Y. 474.) 6. Right op Way, how Pleaded. In pleading a way by prescription or grant, the particular grounds of the title must be set forth, and, as a way of neces- sity, is in truth nothing else but a way by grant, it must be pleaded in the same manner ; and, if its origin cannot be any longer traced, must be claimed by grant or prescription, and pleaded as such, or, in some cases as a non-existing grant. (^Boyce v. Brown, 7 Barb. 80.) And if there once existed unity of possession, some authors have supposed that it must be "Claimed by way of grant. The better opinion now is, that a 426 The Law of Highways. way of necessity cannot be pleaded as in general terms. Indeed, it seems there is no general way of necessity, without specify- ing the manner whereby the land over which it is claimed be- comes charged with the burden. Such was the decision in Bul- lard V. Harrison (4 M. ^ S. 387.) It should be alleged, that the party pleading the way could not have gone upon his own land, or that there was no other way. (Boyce v. Brown, swpra, and cases there cited.) A right of way, whether by grant or prescription, carries with it as incident thereto, a right to make necessary repairs and to remove all obstacles to its enjoyment. (1878, McMillan v. Gronin^lhN. F. 474.) Plank Roads asd Tuenpikes. 427 CHAPTER XIX. PLANK ROADS AND TTJKNPIKES. 1. How Incoepoeated. Any number of persons, not less than five, may be formed into a corporation, for the purpose of constructing and owning a plank road, or turnpike road, by complying with the following requirements : Notice shall be given in at least one newspaper, printed in each county through which said road is intended to be constructed of the time and place or places where books for subscribing to the stock of such road will be opened ; and when stock to the amount of at least five hundred dollars for every mile of the road so intended to be built, shall be in good faith subscribed, then the said subscribers may, upon due and proper notice, elect directors for said company ; and, thereupon, they shall severally subscribe articles of association, in which shall be set forth the name of the company, the number of years that the same is to continue, which shall not exceed thirty years from the date of said articles, whether it is a plank road or a turnpike which the company is formed to construct ; the amount of the capital stock of the company ; the number of shares of which the said stock shall consist ; the number of directors, and their names, who shall manage the concerns of the company for the first 3'ear, and shall hold their officers until others are elected ; the place from and to which the proposed road is to be con- structed ; and each town, city and village into or through which it is intended to pass, and its length, as near as may be. Each subscriber to such articles of association, shall subscribe thereto liis name and place of residence, and the number of shares of stock taken by him in said company. The said articles of association may, on complying with the provisions of the next section, be filed in the oifice of the Secretary of State, and, there- upon, the persons who have so subscribed, and all persons who shall, from time to time, become stockholders in such company, shall be a body corporate, by the name specified insuch articles, 428 The Law qf Highways. and shall possess the powers and privileges, and be subject to the provisions contained in titles three and four, chapter eighteen of the first part of the Revised Statutes. ( Laws 1847, chap. 210, § 1, as amended 1849, chap. 250, § 13.) The titles of the Revised Statutes referred to relate to. the general powers, privileges and liabilities of corporations, and to special provisions relating to certain corporations. What defeats shall not invalidate. — By chapter 248 of Laws of 1862, and chapter 234, of Laws of 1869, it was provided that no plank road or turnpike road company, corporation or association, formed or organized under the above act, and the acts amend- ing the same shall be deemed invalid, or to have forfeited any of its powers, rights or franchises, by reason of any failure on the part of such company, or the persons organizing the same, to have complied with the requirements of such acts in the for- mation or organization of such company, as to the number of stockholders or persons who signed the articles of association of such company or association, or in the publication of notices in the organization thereof, or by reason of any informality or de- fect in the signing of such articles of association, or in the publi- cation of the notices aforesaid ; and the stockholders, officers and creditors of every such company, are hereby declared to have the same rights, and the stockholders to be subject to the same obligations and liabilities as if such company had strictly complied with all the requirements of the law aforesaid, to create and perfect a complete body corporate ; provided that this act shall only apply to such companies as shall have attempted an organizHition, and shall have actually constructed a road wholly or in part, according to their articles of association. Preliminary subscription. — It is no objection to the validity of a subscription to a capital stock of a company organized under the above law, that it was made upon a separate paper which only a portion of the stockholders had subscribed ; there having been several similar papers used in lieu of the books, required by the act, to be opened in different places for sub- scription. Nor is it any objection to the validity of such a sub- scription, or the rights of the company subsequently organized, to maintain an action upon it, that, at the time it was made there was no company in existence. {^Hamilton ^ D. Plank Road Go. v. Bice, 7 Barh. 157.) • Plank Roads and Tuknpikes. 429 It has, however, been recently decided that under this act, those only who subscribe the articles of association can be com- pelled to pay for stock. The preliminary subscription and other steps, prior to the signing of the articles of association, are provisional and inchoate, creating no fixed right and impoS' ing no obligation on the parties. (^PougKkeepsie ^ S. P. Plank Road Co. v. Griffin, 24 N. Y. 150 ; Dutchess and Col. Co. B. R. Co. V. Mabhett, 58 id. 397.) In the case of Eastern Plank Road Co. v. Vaughan (14 N. Y. 546), where the defend- ant signed an instrument stating that, for value received, he promised to pay two persons named, a specified sum for the purpose of building a plank road between two places, and au- thorized them to transfer such subscription to a corporation thereafter to be formed for that purpose ; and such corporation was afterwards formed and the subscription transferred to it. It was held that the defendant was liable, on such instrument, in an action by the corporation to recover its amount, not strictly as a subscriber for stock, but as on a promise resting, for its consideration, upon the object expressed in the instrument, and the equitable right of the company to the benefit of the promise in furtherance of such object undertaken in so far at the defen- dant's request. Subscription must he absolute. — The subscription to the stock of the corporation must be absolute. Conditional subscriptions are void. Thus, where the plaintiff's articles of association pro- vided for the construction of the road to a certain point, with the privilege of extending it to a certain other point, and a large majority of the stockholders became such by subscribing the articles, leaving such extension optional with the directors, and the defendant subsequently signed an agreement on the books of the company to take twenty-five shares of stock, provided the directors would make such extension, such agreement was held to be void by reason of the condition therein. {Fort Edward, ^ Ft. M. Plank Road Co. v. Payne, 15 N. Y. 583 ; see, also. Butternuts ^ Ox. Turnpike Co. v. North, 1 Hill, 518.) Stockholders may be directors. — Whenever the whole number of stockholders in any plank road company or turnpike road company shall not exceed the number of directors specified in the articles of association of such company, each stockholder 430 The Law of Highways. shall be in fact and in law a director of such company, and in such case the stockholders shall constitute the board of direc- tors, whatever may be their number, and a majority thereof shall form a quorum for the transaction of business. (Laws 1857, chap. 202.) Articles of association, when to be filed. — Such articles of asso- ciation shall not be filed in the office of the Secretary of State, until five per cent, on the amount of the stock subscribed thereto shall have been actually and in good faith paid in cash, to the directors named in such articles, nor until there is endorsed thereon, or annexed thereto, an affidavit made by at least three of the directors named in such article, that the amount of capital stock required by the first section has been subscribed, and that five per cent, on the amount has actually been paid in. (Laws 1847, chap. 210, § 2.) Five per cent. — This section does not require that each sub- scriber shall pay five per cent, upon his subscription for stock before the articles are filed ; but only that a sum equal to five per cent, on the gross amount of the subscription shall be paid. (^Eastern Plank Road Co. v. Vaughan, 14 iV. Y. 546 ; Rens- selaer, ^ W. Plank Road Go. v. Barton, 16 i\r. T. 457, note.) Proof of incorporation, etc. — A copy of any article of associa- tion filed in pursuance of this act, with a copy of the affidavit aforesaid endorsed thereon or annexed thereto, and certified to be a copy by the Secretary of this State or his deputy, shall in all courts and places be presumptive evidence of the incorpora- tion of such company, and of the facts therein stated. (Laws 1847, chap. 210, § 3.) Where a duly certified copy of the articles of association and affidavits required are used as evidence, other evidence that the payment of the five per cent, was made in good faith and in cash prior to the filing of the articles is not required, unless something to the contrary is proved. Want of legal organization not to work forfeiture. — Every com- pany formed or organized under the act entitled " an act for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads passed May 7, 1847 ; " Plakk Roads and Tuenpikes. 431 and the several acts amending the same shall be deemed to be a. valid corporation, although such company may not have com- plied with the requirements of such act in the formation and organization of such company, preparatory to the construction of its road, and no act or omission on the part of any such com- pany, or of its corporate powers or franchises, unless the same was willful and malicious ; but this section shall not affect or impair any right of action heretofore accrued. (Laws 1854, chap. 87, § 6.) Liability of Stockholders. — The stockholders of every com- pany incorporated under this act shall be liable, in their indi- vidual capacity, for the payment of the debts of such company, for an amount equal to the amount of the stock they severally have subscribed or held in such company, over and above such stock, to be recovered of the stockholder who is such when the debt is contracted, or of any subsequent stockholder ; and any stockholder who may have paid any demand against such com- pany, either voluntarily or by compulsion, shall have a right to resort to the rest of the stockholders who were liable to contri- bution ; and the dissolution of any company shall not release or affect the liability of any stockholder which may have been in- curred before such dissolution. (Laws 1847, chap. 210, § 44.) J)ehts and liabilities. — The debts and liabilities of any com- pany, under this act, shall not exceed in amount, at any one time, fifty per cent, of the amount of its capital actually paid in, and if such debts and liabilities shall at any time exceed such amount, the stockholders who were such at the time any excess of debts or liabilities shall be created or incurred, shall be jointly and severally individually liable for such excess, in addition bo their other individual liability, as provided in this act. (Laws 1847, chap. 210, § 45.) Extension of corporate existence. — Any plank road company or turnpike company which shall have been formed under and by virtue of an act entitled " An act to provide for the incorpora- tion of companies to construct plank roads and of companies to construct turnpike roads," passed May seventh, eighteen hun- dred and forty-seven, and the several acts amendatory thereof, or under and by virtue of an act of -the Legislature of the State 432 The Law of Highways. of New York, and which shall have managed and carried on any plank road or turnpike roads, or which shall own any plank road or turnpike road that has been managed and carried on for twenty years past, upon three miles in length thereof, or not less than one-third of the route named in their original arti- cles of association, may, at any time within five years before the termination of its corporate existence, or of the time speci- fied for its duration in its articles of association, continue its corporate existence for a period not exceeding thirty j'ears by first obtaining the consent, by resolution, of a majority of all the members of the board of supervisors of the county or counties in which any such road is located, adopted at any regular or special meeting thereof and by filing and recording in the office of the clerk of the county or counties in which such plank road or turnpike road is located, within one month before the expi- ration of the corporate existence of such companj', and in the office of the Secretary of State, such consent and a statement showing the actual capital expended in the construction of any such plank road or turnpike road, or the price paid on the pur- chase of any such road or franchise, exclusive of repairs, to- gether with the consent in writing from the person owning two- thirds of the capital stock of such company, and in which shall also be stated the number of years, which they shall desire such corporate existence extended; also the name of each town or ward through or into which said road passes. Such state- ment shall be made by the president and treasurer of such com- pany, and they shall annex or indorse thereon their affidavit of the above requirements. (Laws of 1872, chap. 283, § 1, as amended by Laws of 1876, chap. 135 ; of 1878, chap. 121, and of 1879, chap. 253.) Statement where road ie abandoned. — In case any part of any plank road or turnpike road, shall have been abandoned, accord- ing to the provisions of law, a statement of the actual cost of such remaining part, exclusive of repairs, shall be made as near as may be, and filed and recorded in the same manner as pro- vided in section one of this act. Any further abandonment of any part of any plank or turnpike road, shall only be made by and with the consent of a majority of all the members of the board of supervisors of the county in which any such road or any part thereof is located, which consent shall be filed with Plank Roads and Turnpikes. 433 the clerk of said county or counties. (Laws 1876, chap. 135, §2.) Annual statement. — Hereafter it shall be the duty of any plank road, or turnpike road, that shall avail themselves of the provi- sions of this law, to annually, on or before the first day of July in each year, make and file a statement in the o£Qce of the county clerk of the county or counties through or into which such plank road or turnpike road is located, of the re- ceipts from tolls, and also a statement showing the expenditure on such plank road or turnpike road to maintain and keep the same in repair. (Laws 1876, chap. 135, § 3.) Evidence of existence. A copy of the consent of such super- visors and stockholders, together with a copy of such affidavit annexed thereto and certified to be a copy by the Secretary of State or his deputy, shall in all courts and places be presump- tive evidence of the corporate existence of such company, for the term therein specified and of the facts therein stated. The corporate existence of such plank road company shall not be extended, except in accordance with this act. (iiZ. §§ 4 and 5.) Exceptions. — The provisions of this act shall not apply to the counties of Kings, Yates, Queens, Seneca and St. Lawrence. (jH. § 6, as amended by Laws 1879, chap. 253.) Explanatory act. In any proceedings heretofore taken under the existing provisions of law, or which shall be hereafter so taken, to extend the charter or corporate existence of any plank road or turnpike company, the filing and recording of a copy of the resolution by which the required consent of a majority of the supervisors of any county shall be given, verified either by the certificate of the clerk of the board of supervisors, or an affidavit of some members of the board of supervisors, shall be and be deemed a full compliance with the requisitions of law as to filing and recording such consent ; and the statement of the president and treasurer, and the consent in writing of the stockholders, now required by law to be filed within one month before the expiration of the term of the corporate existence of such company, may both or either of them be made and given, 29 434 The Law of Highways. and may also be filed at any time previous to said one month, but within one year as the time during which extension or con- tinuance of such charter or corporate existence may be made ; and where such original statement and consent of stockholders, or either of them, shall be filed in the office of the Secretary of State, a certified copy thereof may be filed in the county clerk's offices, as required by law, and the filing of such copy shall be deemed and held a fuU compliance with the law in that respect. (Laws 1879, chap. 441, § 1.) By the Laws of 1880, chapter 484, as amended ch. 117, and oh. 337, Laws 1881, it was made lawful for any company that through failure to file consent, etc., as required by the Law of 1876, had lost the right to extend its corporate existence, to make and file such statement and consent by complying with the conditions of said Law as amended. Where a corporation does not renew its existence under said provisions, the town cannot take possession of lands not origi- nally a highway until it repays the amount paid by the company therefor. (See chap. 837, Laws 1881.) 2. Management op Company. Board of directors. — The business and property of such com- pany shall be managed and conducted by a board of directors, consisting of not less than five nor more than nine, who, after the first year; sl:all be elected at such time and place as shall be directed by the by-laws of such corporation, and public notice shall be given of the time and place of holding such election, not less than twenty days previous thereto, in a newspaper printed in each county in or through which the road of such company is located. The election shall be made by such of the stockholders as shall attend for that purpose, either in person or by proxy. All elections shall be hj ballot; and each stock- holder shall be entitled to as many votes as he shall own shares of stock ; and the persons having the greatest number of votes shall be directors. Whenever any vacancy shall happen in the board of directors, such vacancy shall be filled for the remainder of the year by the remaining directors. The directors shall hold their office for one year, and until others are elected in their places. No person shall be a director unless he is a stockholder in the company ; and no stockholder shall be permitted to vote at any election for directors on any stock except such as he has Plank Roads akd Tukkpikes, 435 owned for the thirty days next previous to the election. (Laws 1847, chap. 210, § 38.) Number may he reduced. — It shall be lawful for any incor- porated plank road or turnpike company at any annual meeting of the stockholders, for the purpose of electing directors, by resolution to reduce the number of directors to not less than three, provided that such reduction shall not take place unless a resolution shall receive the affirmative vote of the stockholders holding and owning a majority in amount of the capital stock of the company, as shall appear by its books. (Laws of 1875, chap. 4.) Stockholders to be directors. — Whenever the whole number of stockholders, in any plank road company or turnpike road com- pany shall not exceed the number of directors specified in the articles of association of such company, each "stockholder shall be in fact and in law a director of such company, and in such case the stockholders shall constitute the board of directors, whatever may be their number, and a majority thereof shall form a guorum for the transaction of business. (Laws 1867, chap. 202.) By section 47, of the act of 1847, chapter 210, the following sections of the Revised Statutes are made applicable to com- panies formed under this act : Annual election. — An annual election for directors shall there- after be annually held, on the same day of the same month on which the first election was held ; and at each election, includ- ing the first, the stockholders present by a plurality of votes, shall elect by ballot three persons to preside at the next suc- ceeding election. (1 B. S. 5^8, § 7.) Jloto, if not held. — If an annual election shall not be held on the day fixed by law, it shall be held in the same manner and with like effect, on some early day, to be appointed by the direc- tors then in office, who shall give and publish the same notice thereof, as is required in respect to the first election ; and who, after the day on which such election ought to have been held, shall be incapacitated from doing any act as directors, except such as may be necessary to give effect to the election so to be ap- pointed. (Id., § 8.) 436 The Law op Highwats. Duty of presiding officer. — The persons presiding at each elec- tion shall, immediately after receiving the ballots, openly estimate the votes, and thereupon make and subscribe a certificate of the result. Of the first election they shall make return to the di- rectors chosen, at their first meeting thereafter. (^Id., § 9.) Quorum. — Five directors shall be a board for the transaction of business, and the acts of a majority of the board shall bind the corporation. (^Id., § 11 ; see Law 1875, chap. 4, supra.) Vacancies. — Tlie board shall supply every vacancy that may occur in the office of the director, and the person chosen shall hold his office until the next annual election. They shall also supply from the directors every vacancy that shall occur in the office of president, and one of the number present shall be chosen, by a plurality of votes, to preside at every meeting of the board from which the president shall^be absent. (1 B. S. 579, § 13.). Duties anc^ powers of directors. — The president and directors- shall have power, and it shall be their duty : 1. To meet from time to time, at such place as they may deem, expedient. 2. To make such by-laws, rules and regulations, as in their- judgment the affairs of the corporation shall require. 3. To appoint such subordinate officers, artists and workmen as they shall deem necessary to execute the business of the- corporation, 4. To continue to receive subscriptions of shares, until their whole capital stock shall be subscribed, unless it shall have been ascertained that a less sum will be sufficient to fulfill the ends of the incorporation. 5. To demand at such time and in such proportion as they shall see fit, from the respective stockholders, the sums of money due on their respective shares, under pain of the for- feiture of such shares, and of all previous payments thereon, to- the corporation. 6. To declare, by a by-law, in what manner, and under what restrictions, the shares of their capital stock shall be transfer- able. 7. To construct, complete, and keep in constant repair, the road, with all necessary building and appurtenances, for the making of which they shall be incorporated. Plank Roads and Tuknpikes. 437 8. To keep a fair and just account of all tolls received, and of all moneys disbursed, and, deducting costs and charges, to make and declare a dividend of the clear profits and income of the road, among the stockholders, on the first Tuesday of May and the first Tuesday of November, in every year. 9. To publish a notice of each dividend, in oue or more of the public newspapers printed nearest to the route of the road, and of the time and place" of the payment thereof, and to pay the same accordingly. 10. To report to the comptroller, within six months after the road shall be completed, an account of the expenses of its con- struction, and to exhibit annually to the Comptroller, au ac- count of the sums arising from the tolls, of the disbursements and of the dividends actually made within the year. (1 R. S. 679, § 14.) No company organized under the act entitled, " An act for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads," passed May seventh, eighteen hundred and forty-seven, and the several acts amending the same, shall be deemed to have forfeited any of its corporate powers or franchises by reason of the omission of the inspectors of election for directors in any such company to take the oath prescribed, prior to holding said election, (/c?. § 6.) Calls on stock. — The directors of any company incorporated under this act may require payment of the sums subscribed to the capital stock, at such times, and in such proportions, and on such conditions as they shall see fit, under the penalty of the forfeiture of their stock and all previous payments thereon ; and they shall give notice of the payments thus required, and of the place and time, when and where the same are to be made, at least thirty days previous to the payment of the same, in one newspaper printed in each county in or through which their road is located, or by sending such notice to such stockholder by mail, directed to him at his usual place of residence. (Laws 1847, chap. 210, § 39.) Shares transferable. — The shares of any company formed under this act, shall be deemed personal property, and may be transferred as shall bp prescribed by the by-laws of such com- pany. The directors of every such company may, at any time, 438 The Law of Highways. with the consent of a majority in amount, of the stockholders in such company, provide for such increase of the capital stock of such company as may be necessary to finish the making of the road actually commenced and partly constructed, but the whole capital stock of any company shall not exceed five thou- sand dollars per mile for each mile of the road. (Laws 1847, chap. 210, § 40.) Annual report. — It shall be the duty of the directors of every company formed under this act, to report annually, to the Secretary of State, under the oath of any two of such di- rectors, the cost of their road, the amount of all money ex- pended, the amount of their capital stock, and how much act- ually expended on such road j the amount received during the year for tolls, and from other sources, stating each separately, the amount of dividends made, and the amount set apart for a reparation fund, and the amount of indebtedness of such com- pany, specifying the objects for which the indebtedness accrued. ild. § 41.) Office of company to he located. — Within two weeks after the formation of any company, by virtue of this act, the directors thereof shall designate some place within a county in which, ac-' cording to the articles of association of such company, its road or some part thereof, is to be constructed, as the office of such company ; and shall give public notice thereof, by publishing the same in a public newspaper, published in such county, which publication shall be continued once in each week, for three suc- cessive weeks, and shall file a copy of such notice in the of- fice of the county clerk of every county in which any part of such road is constructed or is to be constructed. And if the place of such office shall be changed, like notice of such change shall be published and filed as aforesaid, before it shall take place, in which notice the time of making the change shall be specified. And every notice, summons, declaration, or other paper required by law to be served on such company, may be served by leaving the same at such office with any person having charge thereof, at any time between nine o'clock iq the forenoon and noon, and between two and five o'clock in the afternoon, of any day except Sunday. (^Id. 42.) List of stockholders to be recorded — It shall be the duty ol Plank Roads and Tubnpikes. 439 the directors of any such company to cause a book to be kept by the secretary, treasurer or clerk thereof, containing the names of all persons, alphabetically arranged, who are or shall, within six years, have been, stockholders of such company, and showing their places of residence, the number of shares of stock held by them respectively, and the time when they respectively became the holders of such shares ; which book shall, from nine o'clock in the forenoon until noon, and from two o'clock in the afternoon until five, on every day except Sunday and the fourth day of July be open for the inspection of all persons who may desire to examine the same, at the ofifice of such company, and any and every person shall have a right to make extracts from such book ; and no transfer of stock shall be valid for any pur- pose whatever, except to render the person to whom it shall be transferred liable for the debts of the company, according to the provisions of this act, until it shall have been entered therein, as required by this section, by an entry showing to and from whom transferred. Such book shall be presumptive evi- dence of the facts therein stated, in favor of the plaintiff in any suit or proceeding against such company, or against any one or more stockholders, or against such company and one or more stockholders jointly. Every officer or agent of any such com- pany vrho shall neglect to make any proper entry in such book, or shall refuse or neglect to exhibit the same, or show the same to be inspected and extracts taken therefrom, as provided by this section, shall be deemed guilty of a misdemeanor, and the company shall forfeit and pay to the^party injured, a penalty of fifty dollars for every such neglect or refusal, and all the dam- ages resulting therefrom. And every compan)' that shall neg- lect to keep such a book open for inspection, as aforesaid, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect, to be sued for and recovered in the name of the people, by the district attorney of any county in or through which the road of such company shall be constructed, or shall be according to its articles of association, intended to be con- structed, and when so recovered the amount shall be paid in equal portions to every county, for the use thereof. (Laws 1847, chap. 210, § 43.) Treasurer to prepare annual state-.nent. — The treasurer of every plank road company and turnpike company shall, at the 440 The Law of Highways. end of each fiscal year of said company, make and prepare, under oath, a statement of the affairs of said company, in which he shall state the amount received by said company during the year, and from what sources the same was received from each source separately ; and also the amount expended during the year, and on what account the expenditures were made, and the items of said expenditures, and shall also state the amount of liabilities of said company, and amount of indebtedness to said company. Which statement he shall exhibit, at all seasonable hours, to any stockholder in said company, on being requested so to do, and in case such treasurer shall refuse to exhibit such account or statement as aforesaid, to any stockholder, on request as aforesaid, he shall forfeit, and pay to the person making such request, the sum of five dollars for each offence, to be recovered in any court having cognizance thereof. (Laws 1855, chap. 546, § 8.) Sale of franchise. — Apy plank road or turnpike company may, on the consent of the owners of sixty per centum of its stock, sell, transfer, and convey the whole or any part of its rights, property, and franchises to any other plank road or turnpike company formed under any general law of this State ; and any conveyance made pursuant to this section shall vest the rights, property and franchises, thereby transferred, in the company to which they are thereby conveyed, for the 'term of its corporate existence. (Laws of 1879, chap. 441, § 2.) Sale to towns. — The board of supervisors have power to author- ize any town or towns, when application shall be made there- for by a vote of the majority of the electors voting on the question, at an)^ annual or duly called special meeting to pur- chase, and any company owning the same to sell the whole or any part of any plank, macadamized or turnpike road, or any toll-bridge in such town or towns, or the franchises thereof for free public use, and to determine the proportion of expense proper to be borne by each town, where there shall be more than one town applying for this purpose. (Laws of 1875, chap. 482, § 1, sub. 7.) 3. Application to Stjpervisoes pok Leave to Consteuct Road. Whenever anj- such company shall be desirous to construct a Plank Roads and Tuenpikbs. 441 plank road or turnpike road, through any part of any county, it shall make application to the board of supervisors of such county, at any meeting thereof legally held, for authority to lay out and construct such road, and to take the real estate necessary for such purpose ; and the application shall set forth the route and character of the proposed road, as the same shall have been described in the articles of association filed as aforesaid. Public notice of the application shall be given, by the company, previous to presenting the same to such board, by publishing -such notice, once in each week for six successive weeks, in all the public newspapers printed in such county, or in three of such newpapers, if more than three are published in such county, "which notice shall specify the time when such application will be presented to such board, the character of the proposed road, and each town, city and village in or through which it is pro- posed to construct the same. (Laws 1847, chap. 210, § 4. Special meetings, how called. — If such company shall desire a special meeting of the board of supervisors for hearing the same, any three members of such board may fix the time of such meeting, and a notice thereof shall be served on each of the other supervisors of the county, by delivering the same to him personally, or by leaving it at his place of residence, at least twenty days before the day appointed for such meeting. The expenses of such special meeting, and of notifying the members of such board thereof, shall be paid by such company. ild. § 5.) Owners of land may he heard. — Upon the hearing of the said application, all persons residing in such county, or owning real estate in any of the towns through which it is proposed to construct such road, may appear and be heard in respect thereto. Such board may take testimony in respect to such application, or may authorize it to be taken by any judicial officer of such county, and it may adjourn the hearing from time to time. (^Id. § 6.) Assent of supervisors. — If, after hearing such application, such "board shall be of the opinion that the public interests will be promoted by the construction of such road, on the proposed route, as shall be described in the application, it maj', if a ma- jority of all the members elected to such board shall assent 442 The Law of Highways. thereto, by an order to be entered in its minutes, authorize such company to construct such a road upon the route, specified in the application, and to take the real estate necessary to be used for that purpose ; a copy of which order, certified by the clerk of such board, the said company shall cause to be recorded in the clerk's office of such county, before it shall proceed to do any act by virtue thereof. (^Id. § 7.) 4. COMMISSIONBES TO BE APPOINTED TO LaY OuT. Whenever any such board shall grant such an application, it shall appoint three disinterested persons, who are not the own- ers of real estate in any town through which such road shall be proposed to be constructed, or in any town adjoining such town ; commissioners to lay out such road ; the said com- missioners after taking the oath prescribed by the Constitu- tion, shall proceed without unnecessary delay to lay out the route of such ,road, in such manner as in their opinion will best promote the public interest ; they shall hear all persons interested who shall apply to them to be heard ; they may take testimony in relation thereto ; they shall cause an accurate survey and description to be made of such route and of the land necessary to be taken by such company for the construction of such road, and the necessary buildings and gates, they shall subscribe such survey and acknowledge its execution as the execution of deeds is required to be ackiiowledged in order that they may be recorded, and they shall cause such survey to be recorded in the clerk's office of such county. If such company shall intend to construct its road continuously in or through more than one county, such application shall specify the number of commissioners which the company desire to have appointed to lay out such road, which shall not exceed three for each county, and an equal number of such commis- sioners shall be appointed by the board of supervisors of each, county in or through which it shall be proposed to construct such road ; but the whole number of such commissioners shall not be less than three, nor without the consent of such com- pany shall it exceed six, unless the number of counties in or through which it is proposed to construct such road shall ex- ceed that number. And the commissioners so appointed shall lay out the whole of such road, and shall make out a separate', survey of so much thereof as lies in each county, which shall Plank Roads anp Txtenpikes. 443 be subscribed and acknowledged as aforesaid, and recorded in the county clerk's office of such county. Such company shall pay each of the said commissioners two dollars for every day spent by him in the performance of his duties as such commis- sioner, and his necessary expenses. (Laws 1847, chap. 210, §8.) Commissioners to determine width. — The commissioners ap- pointed by the board of supervisors, as provided in the eighth section of the act to provide for the incorporation of companies to construct plank roads, and of companies to construct turn- pike roads, passed May 7th, 1846, are hereby authorized in lay- ing out a plank road, to determine the distance that the outer limits of the road shall be apart, as they may judge necessarj', provided, in no case shall the company take more than four rods in width, except by the voluntary sale of the same to the company. (Laws 1848, chap. 360, § 1.) 5. Lands, How to be Peocurbd. Lands, how to he procured. — Any company formed under the provisions of chapter 210 of the Laws of 1847, entitled " An act to provide for the incorporation of companies to con- struct plank roads and companies to construct turnpike roads," may procure by purchase or gift from the owners thereof, any lands necessary for the construction of so much of its contem- plated road as shall be intended to be constructed in any county. They may also procuie by agreement from the officers named in the 26th section of said chapter, the right to take and use any part of any public highway, necessary for the construction of so much of said road as shall be intended to be constructed in such county ; and when any such company shall have pro- cured all the lands necessary to be used for the construction of its road in such county, and the right to take and use such parts of the public highways in such county as shall be necessary for that purpose, such company may construct so much of its road as shall be intended to be constructed in such county, without making the application mentioned in the fourth section of the said chapter. (Laws 1847, chap. 398, § 1.) Survey to be made. — Before proceeding to construct such part of its road as provided in the first section of this act such com- 444 The Law of Highways. pany shall cause an accurate survey of sucli part to be made by a practical surveyor, signed by its president and secretary, acknowledged by them as conveyances of real estate are re- quired to be acknowledged in order to be recorded, and recorded in the county clerk's office of such county. It shall also, before proceeding to construct such part of its road, procure in man- ner provided by the said chapter, from the board of supervisors of every other county, if any there be, in which any portion of its road is intended to be constructed, authority to construct the same through such other county; but in such case, the com- missioners appointed to survey and layout the road of such company, shall not be required to survey and lay out that por- tion of it intended to be constructed in the county, in which such company shall have procured the lands, and the right to take and iise the public highways necessary for its construction as aforesaid. (^Id. § 2.) Where highways are used. — When any such company, by vir- tue of the provisions of this act, shall have procured the lands, and the right to take and use the parts of any highways neces- sary to construct its road in any county, and shall have con- structed the same without making the application mentioned in the fourth section of the said chapter, it shall possess the same rights, powers and privileges, and be subject to the same duties and liabilities in respect to its road, and the part thereof so constructed, as if such application had been made, and all the proceedings of such company had been had, pursuant to the provisions of the said chapter. (iS. § 3.) Saving clause. — Nothing in this act contained shall be deemed or construed to authorize the laying out or constructing of any road in the cases specified in section nine, of chapter 210, of the Laws of 1847, nor to authorize the bridging or obstructing of any stream navigable by vessels or steamboats. (icZ. § 4.) Iron rails. — Any plank road or turnpike company shall have power, and is authorized to lay iron rails on their road suitable for the use of wagons and vehicles drawn by horses going over its road, except in the counties of Cortland, Orleans, Kings, Oneida, New York and Steuben. Nothing contained in this act shall permit or authorize the using of steam on any plank road or turnpike. (Laws of 1879, chap. 214.) Plank Roads and Turnpikes. 445 Through orchards, etc. — No such road shall be laid out through any orchard, to the injury or destruction of fruit trees, or through any garden, without the consent of the owner thereof, if such orchard be of the growth of four years or more, or if such garden has been cultivated four years or more before the laying out of such road, nor shall any such road be laid out through any dwelling house or building connected therewith, or any yards or enclosures necessary for the use and enjoyment of such dwelling, without the consent of the owner, nor shall any such company bridge any stream where the same is navigable by vessels or steamboats, or in any manner that will prevent or endanger the passage of any raft of twenty-five feet in width. (Laws 1847, chap. 210, § 9.) The rules as to laying out turnpike, road or plank road through orchard, gardens, yard, &c., are similar to those in cases of or- dinary highways. (See ante. Chap. VIII.) Roadway of turnpike. — No plank road shall be made on the roadway of any turnpike company, without the consent of such company, and any plank road company formed under this act shall have power to contract with any turnpike company con- nected therewith, for the purchase of the roadway or part of the roadway, or the stock of such turnpike company, on such terms as may be mutually agreed upon ; and in case the purchase of such stock of such turnpike road company, such stock shall be held by such plank road company for the benefit of the stock- holders ofsuch plank road company, in proportion to the amount of stock held by each stockholder in such plank road company at the time of such purchase, or at any time afterwards. Upon and after the purchase of the whole of the stock of such turn- pike road company by such plank road company, the directors of such plank road company, for the time being, and their suc- cessors, shall be the sole directors of such turnpike road company, and shall manage the affairs thereof, pursuant to the charter of such turnpike road company, and shall render an account of the same annually to the stockholders of such plank road company. In case of a dissolution of such plank road company, the stock- holders of such plank road company at the time of such disso- lution shall be the stockholders of such turnpike road company, in proportion to the amount of stock held by each in said plank road company ; and from thenceforward, the stock of such turn- 446 The Law of Highways. pike road company shall be deemed divided into shares equal in number to the shares of stock of such late plank road company, and scrip therefor shall be issued accordingly to each of the last stockholders of such plank road company ; whereupon the officers of such turnpike road company shall be the same in number and power, as provided for in the charter of such turnpike road com- pany, and shall be chosen by such former stockholders of such plank road company or their assigns, each share of stock as above provided for, entitling the holder thereof to one vote. After such purchase of the stock of such turnpike road company, and prior to the dissolution of such plank road company, the assignment of stock in said plank road company shall carry with it its proportional amount of the stock in such turnpike road company, and entitle the holder thereof to his share of the divi- dends derived from such turnpike road. Whenever a plank road shall be made as provided in this act, on or adjoining a route of any turnpike road, the company owning such turnpike road is authorized to abandon that portion of their road on or adjoining the route of which a plank road is actually constructed and used ; but nothing herein contained shall be so construed as to prevent any plank road from crossing any turnpike road, nor any turn- pike road from crossing any plank road. (Laws 1847, chap. 210, § 10, as amended 1857, chap. 643.) Company may take possession. — The route so laid out and surveyed by the said commissioners shall be the route of such road, and such company may enter upon, take and hold, subject to the provisions of this act, all such lands as the said survey shall describe as being necessary for the construction of such road and the necessary buildings and gates. But before enter- ing upon any of such lands the company shall purchase the same of the owners thereof, or shall, pursuant to the provisions of this act require the right to enter upon, take and hold the same. (Laws 1847, chap. 210, § 11.) Town may buy hack purchased land. — Whenever any plank- road company shall for any reason, fail to have its corporate existence extended, or when any judgment of ouster or dissolu- tion, or any order or judgment restraining the exercise of its former franchises, has been made or rendered against any such company, in any action pending when the act hereby amended Plank Roads and Turnpikes. 447 was passed, or shall be hereafter rendered in any action which has been or shall be brought for such purpose, then and in any such case such portion of the line of said road as was built over lands which were originally purchased by said company for that purpose, and was not previously a public highway, shall not be used as a public highway nor taken possession or control of by the town in which the same may lie, or be claimed or worked or used as a public highway, until the said town shall pay over to the treasurer, or receiver, or other legal representatives of such company, or to his or its or their assigns the principal sum of the, amounts paid by said company for the same, as shown by the deeds of conveyance thereof given to said company therefor ; and any judgment rendered hereafter, as above specified, shall provide accordingly. Such payments shall be made within three months after the expiration of the corporate existence of any such company, or, when any such judgmeiit as above mentioned has been or shall be rendered, then within three months after service of written notice of the entry thereof on the super- visor of such town ; and the person receiving such payment is authorized and required to execute a proper discharge therefor, and a conveyance to said town of all the title and interest which said company had in such lands at the expiration of its corpo- rate existence. (Laws 1881, chap. 337, amending Laws 1880, chap. 484.) Where land cannot he purchased. — If any owner of such land shall, from any cause, be incapable of selling the same, or if such company cannot agree with him for the purchase thereof, or if after -reasonable diligence the name or residence of such owner cannot be ascertained, the company may acquire the title to such real estate by the special proceeding provided for the acquisition of land for railroad purposes by chapter 140 of the laws of 1850 and the laws amendatory thereof and supplement- ary thereto ; provided that the title so gained shall extend no further than the uses for a plank-road or turnpike, and all the provisions of said Article Fifth inconsistent with this act are hereby repealed. (Laws 1847, chap. 210, § 12, as amended Laws 1881, chap. 674 ; see also. Laws 1885, chap. 267.) ^ Case to hembmitted ^o^wy.'^^On' receiving such petition, the said judge shall appoint a timeY for "drawing such jury, which 448 The Law op Highways. shall be drawn from the grand jury box of the county by the clerk thereof, at his oiBce. At least fourteen days' notice of the time and place of such drawing shall be served personally upon each owner of lands described in the petition, who shall be known and reside in the county where the lands lie, or by leaving the same at his residence, and such notice shall be served on all other owners in the manner aforesaid, or by putting the same in the post office directed to them at their respective places of residence, and paying the postage thereon, or by publishing- the same once in each week for two successive weeks in a news- paper printed in such county, the first of which publications shall be at least fourteen days before such drawing. (Laws 1847, chap. 210, § 13.) In case of married women, infants, ^c. — In case any lands described in such petition shall be owned by a married woman, infant, idiot or insane person, or by a non-resident of the State,, the said judge shall appoint some competent and suitable per- son, having no interest adverse to such owner, to take care of the interests of such owner in respect to the proceeding to ascertain such compensation and damages. And all suck notices as are required to be served on any owner residing in such county shall be served upon the person so appointed in like manner as on such owner ; but any person so appointed ta take care of the interests of any such non-residents, may be superseded by him. (Id. § 14.) Duty of judge. — The said judge shall attend such drawing and shall decide upon any challenge made to any juror drawn by any person interested. Twenty-four competent and disin- terested jurors, and as many more as the said judge shall direct,^ shall be drawn ; the clerk shall make, certify and deliver to the judge, and to any party requiring the same, a list of them, and the ballots drawn shall be returned to the box. The said judge, if he shall deem it necessary, may at any subsequent time direct the drawing of an additional number of jurors, and they shall be drawn, and all proceedings in relation to such drawing shall be had in manner hereinbefore provided. Before proceeding to draw any such jury the company shall furnish to the said jduga proof, by affidavit, satisfactory to him, of the time and manner of serving and publishing notice of such drawing, which affida- Plank Roads and Turnpikes. 449 vit shall be filed in sacli clerk's office ; and no sucli jury shall be drawn unless it shall appear to the satisfaction of the said judge that the provisions of this act in respect to giving notice of such drawing have been complied with. (Id. § 15.) Jurors to he drawn. — From the jurors so drawn the said judge shall draw as many as he shall deem necessary to secure the attendance of twelve ; and he shall issue his precept, directed to the sheriff of such county, either of his deputies, or any con- stable of such county, to summon the jurors so drawn by the said judge, to attend at the time and place therein specified, to ascertain such compensation and damages. And he may, from time to time, in case of the absence or inability to serve of any juror directed to be summoned, draw and direct to be sum- moned as aforesaid, as many as may be necessary in his opinion to secure the attendance of twelve. (Id. § 16.) Jurors, when and how summoned. — Every juror named in any such precept shall, at least four days before the day therein specified for his attendance, be summoned personally, or by leaving at Ms residence a notice containing the substance of such a precept. The officer serving such precept shall return it to the said judge, with an affidavit of the manner of serving, the same, and of the distance necessarily traveled by him for that purpose; and such officer shall receive for making such service, six cents a mile for the distance so traveled, (/c?. § 17.) Penalty for neglect. — Every juror so summoned, who shall neglect or refuse to attend or serve, in pursuance of such sum- mons, shall be liable to the same penalties as in case of such neglect or refusal of a person duly summoned as a juror in a court of record, and may be excused by the said judge from attending or serving for reasons for which such juror might be so excused if summoned as a juror in such court. Every juror attending shall be entitled therefor to one dollar a day, and his reasonable and necessary expenses, to be paid by the company. (Id. § 18.) Subpoenaing witnesses. — On the application of any party inter- ested, any judge or justice of the peace may issue a subpoena 450 The Law of Highways. requiring witnesses to attend before such jury, and such sub- poena shall have the same force and effect, and witnesses duly subpoenaed by virtue thereof, and refusing or neglecting to obey the same, shall be subject to the same penalties and liabilities as though the subpoena were issued from a court of record, in a suit pending therein, (ic?. § 19.) Notice to owners of land. — The time and place of meeting of the jury, to ascertain such compensation and damages, may be fixed by the said judge, by an order to be made by him at any time after receiving such petition; and notice thereof shall be served on the owners whose lands are described in the petition, as foUows : on any owner residing in the county, or within fif- teen miles of the lands in question owned by him, personally, or by leaving the same at his residence, at leafet fourteen days before the time so fixed; on any other owner residing within this state, and whose residence is known, in the manner afore- said, or by putting the notice into the post-office, directed to him at his place of residence, and paying the postage thereon, on any owner residing out of the State, and not within fifteen miles of the lands in question, owned by him, by putting the notice in the post-office, directed and paid as aforesaid, at least forty days before the time so fixed ; and on owners whose resi- dence is unknown, by publishing the notice once in each weekt for six successive weeks, in one of the public newspapers printed in the county. (Id. § 20.) Duty of Jury. — The jurors so summoned, shall meet at the time and place fixed by the said judge for that purpose, and shall be sworn by him to diligently inquire and ascertain the compen- sation and damages which ought justly to be paid for the lands described in the petition, or for those of them in respect to which they shall be called upon to inquire, to the owners there- of, and for taking the same for such road, and faithfully to per- form their duty as such jurors, according to law. (Id. § 21.) Duty of Judge.— T\\Q said judge shall attend such jurors, shall administer oaths to witnesses called before them, shall take minutes of the testimony given, and admissions of the parties made before them, shall advise such jury as to the law applicable to any case that may arise, shall receive, certify and return to Plank Roads and Tuenpikes. 451 the county clerk's office the verdicts agreed upon by them, and while so attending, shall have all the powers possessed by a court of record when trying issues of fact joined in civil cases. (^Id. §23.) Damages. — The jury, after hearing the parties, and viewing the lands in question, in each case, shall, by a verdict, ascertain and determine the compensation and damages that ought to be paid to the owner for the land, to be taken by the company, and for taking the same for such road, and also the amount that ought to be paid to him for the time spent, and necessary expenses incurred by him in respect to the proceedings, to as- certain and determine such compensation and damages, of which time and expenses a bill of items shall be presented to the jury, verified by the oath of the owner or his agent, and such compen- sation and damages shall be ascertained and determined without any deduction on account of any real or supposed benefit which the owners of such lands may derive from the construction of such road. (^Id. § 23.) Proof of notice. — Such jury shall not proceed to a hearing in any case until the company shall have produced to the said judge, satisfactory proof by affidavit, that the notice of the meet- ing of the jury has been given in such case, according to the provisions of this act ; and such affidavit shall be attached to and filed with the certificate of the verdict in the case. And on any such hearing, no evidence or information shall be given, nor any statement made to the jury, of any proposition by, or negotiation between the parties or their agents, in respect to any such lands, or such compensation or damages, nor shall any such petition contain any such stq,tement or information. (^Id. §24.) Jury to make certificate. — Such jury, finding any such verdict, shall, after agreeing upon the same, make a certificate thereof, and sign and deliver the same to the said judge ; and shall em- brace therein a particular description of the land, in respect to which it is found. Such certificate may include one or more verdicts, in the discretion of the jury. Every such certificate shall be certified by the judge to have been made by such jury, and shall be recorded in the records of deeds in the clerk's office 452 The Law of Highways. of the county where the lands therein described shall lie, at the expense of the company. (^Id. § 25.) New trial may he applied for. — Any party interested in any such verdict may, within twenty days after being notified of the rendition thereof, apply to the Supreme Court for a new trial, and it may be granted, upon such terms as to the costs of the application and of the first trial, as that court shall deem reason- able. If a new trial shall be granted, a jury shall be drawn therefor, and the same proceedings shall be had as are herein- before provided. (Laws 1847, chap. 210, § 27.) Money when to be paid. — Within forty days after the rendi- tion of any such verdict, if a new trial shall not be applied for, the company shall pay to the person entitled to receive the same, the amount thereof, or shall make a legal tender thereof to him if he shall refuse to receive the same ; and the company may thereupon enter upon the lands in respect to which such verdict was rendered, and take and hold the same to it and its assigns, so long as it shall be used for the purposes of such a road as such company was formed to construct. (Id. § 28.) Provisions in ease of non-resident. — If any person entitled to receive the amount of any such verdict be not a resident of this State, or cannot be found therein after diligent search, the company may furnish to the said judge satisfactory proof, by affidavit, of such fact, and he shall thereupon make an order that the amount of such verdict be paid to the treasurer of the county, in which the lands lie, in respect to which such verdict was found, for the use of such owner, and that notice of such pay- ment shall be given by publishing the same once in each week, for six successive weeks, in a newspaper published in the county. On satisfactory proof being made to the said judge, by affidavit, within three months from the time of making the last mentioned order, of such payment and publication, he shall make an order authorizing the company to take and hold the land in respect to which such verdict was rendered, in the same manner and with the same effect as if such payment had been made to the owner personally. The affidavit and orders mentioned in this section, and all other affidavits and orders made, and precepts is- sued in the course of the proceedings under this act, in relation Plank Roads and Tubnpekes. 45B to the acquisition of the land to be used for such road, shall be filed in the county clerk's ofSce, and all such orders shall be re- corded by such clerk in the record of deeds, at the expense of the company. (Id. § 29.) When money may he deposited. — If any owner shall apply for a new trial, the company, upon depositing the amount of the verdict sought to be set aside, in such manner as the said judge shall, upon hearing the parties, direct, in trust that the same, or so much thereof as the said owner shall be entitled to receive, shall be paid to him on demand, and on giving such secu- rity by bond, as the judge shall approve, for the payment to such owner of any sum which he may be entitled to receive from the company, in respect to the land in question, by reason of any verdict or the judgment of any court, for such compen- sation, damages, cost and expenses, the company may enter upon and use such lands for the purposes of such road, but the title of the owner thereof shall not be divested until the payment or legal tender to him of the whole amount which he shall be entitled to receive from the company for such compensation, damages, costs and expenses ; and on such payment or tender being made, the company shall be entitled to take and to hold such lands to it and to its assigns, so long as the same shall be used for the purposes of such road as such company was formed to construct. (Id. § 30.) 6. Pkovisions in Case op Using 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 supervisors and commissioners of highway of the town in which such highway is situated, or a majority, if there be mt)re 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 said highway for the purpose 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 compensation and damages for taking such highway for such purpose, shall be ascertained in that same manner as the compensation and damages for taking the property of individ- uals. Such compensation and damages shall be paid to the 454 The Law op Highways. said comissioners, to be expended by them in improving the highways of such town. (Laws 1847, chap. 210, § 26.) If a plank road or turnpike company take possession of a highway, before making compensation therefore, the commis- sioners of highways have no action for damages. They should proceed, by indictment, for a nuisance or summary removal, or, by action, for the treble damages given by 1 R. S. 526, § 130. (^Cornell v. Butternutts ^ Ox. Turnpike Oo., 25 Wend. 365.) When a plank road or turnpike is constructed along a high- way, the company succeed to the rights and powers of the com- missioners of highways, and any inconvenience or damage which an owner of land suffers by proper and reasonable repairs or improvements of the highways, is damnum absque injuria. (Benedict v. Groit, 8 Barb. 459 ; Dexter v. Broat, 16 Barb. 337.) But such company have no right to exclude the public from the highway, or to interrupt their enjoyment of their right of way while the change is going on. They are bound, like town officers engaged in repairing roads, to carry on the work with as little inconvenience to the public as is reasonably practicable ; and if, through their neglect, a person passing with ordinary care and prudence suffer damage, the company are liable. (Ireland v Oswego, E. ^ S. Plank Road Oo., 13 N. Y. 526.) And where a turnpike company acquired title to certain lands " for the purpose of a highway " made a turnpike road and subsequently constructed a street railway upon said road, so near one side thereof, that no vehicle could pass between it and the side of the road — and raised the rails so as to impede passage over them, and the city acquired title to a portion of the road as a public street, it was held that the acquiescence of the turnpike company in the order by which the city obtained title to the road estopped the former from objecting to an ordinance which compelled it to place it^ tracks flush with the road. (1888, City of Albany v. Watervliet, T. ^ B. R. Co., 108 N. Y. 14 ; 13 N. Y. St. Rep. 525.) Where a plank road company takes and uses a public high- way for its purposes, the road thus appropriated does not cease to be a public highway. The general right to the public to use it for the purpose of travel, with horses, carriages and on foot, remain unimpaired. The change effected by said act is, the general public, in consideration of the payment of certain tolls, is relieved from the burden of keeping it in repair, and the Plank Roads and Turnpikes. 455 duties which, in this respect, before belonged to the commis- sioners of highways and other local officers, is transferred to the plank road corporation. But the local authorities are not there- by ousted of their jurisdiction in respect to encroachments upon highways thus used by plank roads. ( Walker v. Oaywood, 31 N. Y. 51.) The above provision authorizes the supervisor of the town and commissioners of highways to agree with the turnpike or plank road company upon the compensation and damages to be paid for taking and using a highway. The consideration must be a pecuniary compensation and damages to be paid to the commissioners, for the improvement of roads. It does not au- thorize those officers to release and grant to the company the public right to a highway, without a pecuniary consideration, nor to convey such public right upon conditions. Thus, where the right to take and use a highway for the construction of a plank road, was granted, in consideration of the public benefit to result therefrom, and upon conditions that no gate should be erected or tolls demanded on such road, within three miles of a certain point, and the company, after taking possession of the highway under the agreement, proceeded in violation of such agreement, to erect such toll-gates within the prescribed limits, and an action was brought to compel the company to perform it ; it was held, that the action would not lie. (^Palmer v. Fort Plain i C. Plank Bead Co., 11 K Y. 376.) But when the company, in consideration of the right to take and use forever the highway, agreed to keep the road and all bridges in good repair, according to law, without expense to the town, it was held not to be void for excess of authority by the commissioners ; such officers are not limited to a money com- pensation, but a consideration inuring to the benefit of the high- ways is sufficient. (Town of Fishhill v. Fishkill ^ B. Plank Road Co., 22 Barb. 634 ; Peofle v. Fishkill ^ B. Plank Road Co., 27 Barb. 445.) Under an agreement with the supervisor and commissioners, the company acquire nothing more than an easement in the land. (Northern Turnpike Road Co. v. Smith, 15 Barb. 355.) ■ The supervisor and commissioners cannot make the agree- ment as above provided, without the plank road or turnpike company shall first have obtained the consent in writing of at least two-thirds of all the owners of land along such highway, 466 The Law op Highways. who shall actually reside on that part of the highway on which such plank road or turnpike road is to be constructed. (Laws 1850, chap. 71, § 5.) After such turnpike or plank road company has procured by agreement from such supervisor and commissioners of the town, the right to take and use any part of the highway necessary for the consiruction of their road, such company may proceed to construct its road on such highway, without making application to the board of supervisors as was required by section 4, of chapter 210, of the Laws of 1847. (Laws of 1847, chap. 398, § 1.) Agreement with commissioners. — Every instrument in writ- ing, purporting to be an agreement between any plank road company and the supervisor or commissioners of highways of any town, in pursuance to section twenty-six of chapter two hundred and ten of the Session Laws of eighteen hundred and forty-seven, and heretofore filed or recorded in any town clerk's office, shall be deemed, and taken in all courts and places to be as valid and effectual an agreement as if the same had been madQ and executed at a regular meeting of such supervisor and commissioner or commissioners of highways. The provisions of this section shall not affect suits now commenced. (Laws 1855, chap. 546, § 3.) Highway, labor on. — Whenever any plank road or turnpike road shall be built in pursuance of the provisions of this act, or the act hereby amended, upon the site of an old highway, it shall be the duty of the commissioners of the highways of the town where such road shall be made, to designate some district or districts within their town, on which the highway labor of the inhabitants residing along the line of said plank or turnpike road shall be performed. (Laws 1849, chap. 250, § 11.) G-rading roads. — It shall be lawful for the inhabitants resid- ing 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 construction of such plank or gravel road, and after the completion of such plank or gravel road, the said in- habitants shall be exempted from the labor so anticipated and ap- plied, except so far as their labor may be necessaiy to keep their Plank Roads and Turnpikes. 457 said road or roads in repair ; such road to be in all cases free road. Qd. § 12.) Highway labor, how assessed. — Every person liable to do high- way labor, living or owning property on the line of any plank road of this State, may, on application, in writing, to the com- missioner or commissioners of their respective towns, on or any day previous to the time of making the highway warrants by such commissioners, be assessed the apportionment of highway labor for such property upon such plank road, and the commis- sioner or commissioners 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, chap. 626, as amended by Laws 1872, chap. 128.) Duty of highway commissioners. — It shall be the duty of the highway commissioneror commissioners of such town, to make a separate list of such persons, and such land or property so as- sessed, 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 overseers of highways are required by law to do. (^Id. § 2.) Power of directors. — 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 highway tax, as the overseers of highways now have by law, and shall make like return to the commissioners of highways. Qld. § 3.) May commute. — 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.) The court decided in the case of the Buffalo ^ B. Plank Road Co. V. Commissioners of Lancaster, (10 How. Pr. 237), that this power conferred on the commissioners is discretionary ; and that they cannot be compelled to exercise it. When old road is taken. — The following section of the Re- vised Statutes relating to turnpike companies, is made appli- 458 The Law of Highways. cable to plank road and turnpike companies organized under the act of 1847. (Laws 1847, chap. 210, § 47.) " Whenever an appraisement shall be made of the lands on any old road, used as such by prescription, on which a turnpike shall be laid out, the appraisers shall set down the value of the soil and of the improvements, and the moneys paid by any town for making such improvements in separate sums ; and the sum for which the soil is appraised shall be paid to the owners there- of, and the value of the improvements, and the sums paid therefor by any town shall be paid to the commissioner of high- ways of the town in which such old road shall be situate." (1 B. S. 584, § 30.) 7. Construction and Repair op Roads. Width of plank road. — Every plank road made by virtue of this act, shall be laid out at least four rods wide, and shall be so constructed as to make, secure and maintain, a smooth and per- manent road, the trabk of which shall be made of timber, plank, or other hard material, so that the same shall form a hard and even surface, and be so constructed as to permit carriages and other vehicles conveniently and easily to pass each other, and also, so as to permit all carriages to pass on and off where such road is intersected by other roads. (Laws 1847, chap. 210, § 31.) Width of turnpike roads. — Every turnpike road that shall be constructed by virtue of this act, shall be laid out at least four rods wide; and shall be bedded with stone, gravel, or such other material as may be found on the line thereof, and faced with broken stone or gravel, so as to form a hard and even surface, with good and sufficient ditches on each side, wherever the same is practicable. The arch or bed of such road shall be at least eighteen feet wide, and shall be so constructed as to permit carriages and other vehicles conveniently to pass each other, and to pass on and off such turnpike where it may be in- tersected by other roads. Qld. § 32.) The inspectors, or a majority of them whose appointment is provided for by the thirty-third section of the said act passed May 7, 1874, are hereby authorized to determine the distance that the outer limits shall be apart, of any plank road or anv turnpike road belonging to any company formed under said act» Plank Roads and Tuknpikes. 459 in case the same has not been determined by the commissioners appointed under the eighth section of said act : Provided, That in no case shall the company take more than four rods in width, except by the voluntary sale of the same to the company. (Laws 1849, chap. 250, § 7.) When a corporation organized to build a turnpike or plank road is required by its charter to cause its road to be laid out of a certain width, that is a condition which the corporation must perform to entitle it to a continuance of its franchise. The fact that it was laid out upon an ancient highway, furnishes no ex- cuse for the omission to make it of the required width. (^People V. Fishkill, ^ B. Plank Road Co., 27 Barh. 445. ) The following sections of the Revised Statutes relating to turnpikes, are made applicable to companies formed under this act. (Laws 1847, chap. 210, § 47.) Milestones. — A milestone or post shall be erected and main- tained by the corporation on each mile of the road, on which shall be fairly and legibly marked or inscribed the distance of such stone or post from the place of the commencement of the road; and when such road shall commence at the end of any other road, having milestones or posts, on which the distance from any city or town is marked, a continuation of that distance shall in like manner be inscribed. (1 M. S. 582, § 21. ) Guide-posts. — A guide-post shall also be erected at the inter- section of every public road leading into or from the turnpike, on which shall be inscribed the name of the place to which such intersecting road leads, in the direction to which the name on the guide-post shall point. ( Id. § 22.) Directors not to he contractors. — No director of the corporation to which it shall belong, shall be concerned, directly or indirectly, in any contract for the making or working of the road, or any part thereof, during the time he shall be director. (7cZ. § 23.) A contract by a director or directors of a plank road company to build the road is void. (Barton v. Port Jackson, §• U. F. Plank Road Co., 17 Barb. 397. ) No contractor, for the making of such road or any part thereof, shall make a new contract for the performance of his work or any part thereof, other than by hiring hands, teams, carriages or uten- sils, to be superintended and paid by himself, unless such new 460 The Law op Highways. contract and its terms be laid before the board of directors, and be approved by them. (1 i2. A 582, § 24.) Roads may he relaid with gravel, S^c. — Any plank road or turuN pike company within this State, which shall have once laid their road with plank, may hereafter relay the same, or any part there- of, with broken stone, gravel, shells, or other hard material, whereby they keep a good and substantial road ; such company shall be entitled to collect and receive the same tolls as is provid- ed by chapter 245, of the Laws of 1853. (Laws 1855, chap. 546, § 7, amending Laws 1854, chap 87, § 2.) • A turnpike or plank road company have a lawful right to re- pair their road in such a way as to prevent the effect of rains or freshets, but in the exercise of that right, they must not injure the owner of adjoining lands. If a damage arises from their negligence in this respect, he may recover against them therefor. (JBoughton v. Garter, 18 John. 405.) But where a turnpike or plank road is constructed along a highway, the company succeed to the rights and powers of the highway commissioners, and any inconvenience or dam- age which an owner of lands sustains by proper and reasonable repairs or improvements of the highway, is damnum absque injur ria. (^Benedict v. Groit, 3 Barb. 459 ; Dexter v. Broat, 16 Barb. 337.) When there is a failure on the part of a turnpike company to comply with an express requirement of the statute, either as to the width of the road, or the mode of its construction, and a person traveling over it sustains an injury in consequence of such omission, the turnpike company is liable, unless it ap- pears that the plaintiff could have avoided the jury by the ex- ercise of ordinary care and prudence. But if the plaintiff's in- jury was not chargeable to any such omission, the action is not silstainable. (^Wilson y. Susquehannah Turnpike Boad Co., 21 Barb. 68 ; Syracuse ^ Tully Plank Road Co. v. People, 66 Barb. 25.) A turnpike company is bound to exercise ordinary care and diligence in the construction and preservation of the bridges on the road, but is not liable for accidents not occasioned by want of such care and skill. (^Townsend v. Susquehannah Turnpike Road Co., 6 John. 90 ; Wilson v. Susquehannah Turnpike Boad Co., 21 Barb. 68.,) PLAiTK Roads and Turnpikes. 461 A turnpike road company is liable to an indictment, at com- mon law, for suffering their road to be out of repair, notwith- standing that by the terms of its charter a specific penalty is pro- vided, if the charter contains no negative words, nor anything from which it_can be inferred that the Legislature intended to take away the common law remedy. (Susquehannah ^ B. Turnpike Rood Co. v. People, 15 Wend. 267 ; Syracuse ^ Tully P. R. Co. V. People, 66 Barh. 25.) The want of funds is no answer to the indictment, as it might be in the case of public officers. And under the indict- ment, the company may be punished for contracting its road within the limits prescribed by its charter, as a nuisance. ( Waterford ^ W. Turnpike Co. v. People, 9 Barh. 161.) The mode of prosecution contemplated by the act (1 R. S. 687, § 47) declaring that the corporation, if convicted for neglect to repair after notice, shall be fined, is by indictment. (^People V. G-oshen ^ M. Turnpike Road Co., 11 Wend. 697 ; Syracuse, ^ Tully P. R. Co. V. People, supra.') 8. Inspectors to be Appointed. In each county of this State, in which there shall be any plank road, or turnpike road, constructed by virtue of this act, there shall be three inspectors of such roads, who shall not be interested in any plank or turnpike road in such county. They shall be appointed by the board of supervisors of the county, and shall hold their office during the pleasure of such board. Before entering on their duties such inspectors shall take and subscribe the constitutional oath of office, and file the same in the office of the clerk of the county. (Laws 1847, chap. 210, § 33.) These inspectors are a different class of officers from the in- spectors of turnpikes mentioned in the Revised Statutes and in the act of 1848, chapter 45. The duties of this office are of a much higher grade, requiring a much greater degree of knowl- edge and skill than is required merely for the purpose of deter- mining from time to time whether a road is kept in good travel- ing condition. These preliminary inspectors must not only be competent judges of the mechanical construction of the roads, but they must be familiar with the requirements of the laws upon the subject, which are numerous and minute. {Suydam v. Smith, 52 N. Y. 383-386.) 462 The Law op Highways. To inspect roads, etc. — Whenever any such company shall have completed their road, or any five consecutive miles there- of, it may apply to any two of the inspectors to be appointed pursuant to this act, in the county where said road or a part thereof, so completed and to be inspected, is located, to inspect the same ; or, if such inspectors or a majority of them are satisfied on inspection, that the road so inspected is made and completed according to the true intent and meaning of this act, they shall grant a certificate to that effect, which shall be filed in the office of the county clerk. The inspectors shall be allowed two dollars per day for their services, pursuant to this section, to be paid by the company whose road they inspect (Laws 1847, chap. 210, § 34.) To determine width. — The inspectors, or a majority of them whose appointment is provided for by the thirty-third section of the said act, passed May 7th, 1847, are hereby authorized to determine the distance that the outer limits shall be apart, of any plank road, or any turnpike road, belonging to any company formed under said act, in case the same has not been determined by the commissioners appointed under the eighth section of said act ; provided that in no case shall the company take more than four rods in width, except by the voluntary sale of the same to the company. (Laws 1849, chap. 250, § 7.) When to receive fees. — Whenever a complaint shall be made to the inspector or inspectors of any plank road or turnpike in this State, before such inspector or inspectors shall act upon such complaint, he or they shall receive from the complainant, the fees provided by law ; and in case it shall appear, upon examination of the road, that the complaint was well founded, the amount of said fees shall be paid to the complainant by the company. In case it is determined that the complaint was not well founded, the complainant shall not be entitled to receive back the fees so paid by him. (Laws 1849, chap. 250, § 10.) The inspector's certificate must show what part of the road is meant, and that the miles are consecutive miles. QHammonds- port Sf B. Plank Road Co. v. Brundage, 13 How. Pr. 448 ; Appendix Nos. 45, 46.) The following provisions of the Revised Statutes relating to turnpike roads are made applicable to plank and turnpike roads under this act. (Laws 1847, chap. 210, § 47.) Plank Roads and Ttjknpikes. 463 Duty of inspectors when roads are out of repair. — It shall be tlie duty of each inspector to whom a complaint in writing shall be made, that a turnpike road, or a part of such road in his county is out of repair, without delay to view and examine the road complained of ;,and if he shall find such complaint to be just, he shall give notice in writing of the defect, to the toll gatherer, or person attending the gate nearest to each place out of repair, and in such notice may, in his discretion, order such gate to be thrown open ; but no inspector or inspectors shall order such gate to be opened unless a notice in writing shall have been served on the gate-keeper nearest to the place out of repair, particularly describing such place at least three days previous to making such order. (1 R. S. 586, § 41,) The notice to the toll gatherer must point out the part com- plained of, or if the whole is intended, then say so in terms. (^Braden v. Berry, 20 Wend. 55.) By chapter 440 of the Laws of 1873, as amended by Laws 1877, chapter 164, the commissioners of highways of the several towns in the State, or other officers authorized to perform the duties of commissioners of highways, in cities and villages, are constituted inspectors of plank roads and turnpikes. As to their duties thereunder, see ante, p. 81. Proceedings. — Immediately after the service of such notice, each gate ordered to be thrown open, shall be opened ; nor shall it be again shut nor any toll be collected thereat until one of the inspectors for the county shall have granted a certificate that the road is in sufficient repair, and that such gate ought to be closed. Qd. § 42.) Penalty for not opening gate. — Every keeper of a gate ordered to be thrown open, who shall not immediately obey such order, or who shall not keep open such gate until a certificate permit- ting it to be closed shall be granted, or who, during the time such gate ought to be open, shall hinder or delay any person in passing, or take or demand any toll from any person passing, shall, for each offence, forfeit the sum of ten dollars to the party aggrieved. (Id. § 44.) Under this provision, the party aggrieved is not limited to one penalty, but may recover the same for each and every offence. iSuydam v. Smith, 52 N. Y. 383.) 464 The I.aw of Highways. When inspector to give notice. — It shall be the duty of each inspector, who upon due examination, shall have discovered a turnpike road, within his county, to be out of repair, or that any gate thereon is placed in a situation contrary to law, to give notice in writing of such defect or default, to one or more of the directors of the company to which such road shall belong. ild. § 45.) Contents of notice. — In such notice, he shall require the defec- tive road to be repaired, or the gate improperly placed to be re- moved, within a certain time to be fixed in the notice; and, in his discretion, may order that in the meantime, the gates on such road, or such of them as he shall specify, be thrown open. ild. § 46.) Proceedings if not complied with. — If the requisition of such notice be not obeyed, it shall be the duty of such inspector to make immediate complaint to the attorney-general, or the dis- trict-attorney for the county, whose duty it shall be to prosecute the delinquent company, in the name of the people of this State. Such corporation, if convicted of having suffered their road to be out of repair, or having placed one or more of the gates there- on in a situation contrary to law, shall be fined in a sum not exceeding two hundred dollars. (^Id. § 47.) Compensation of inspectors. — To each inspector of turnpikes, who shall view a turnpike road upon complaint made to him, shall be allowed the sum of two dollars for each day spent by him in the performance of such duty. If he shall adjudge the road viewed to be out of repair, such fees shall be paid by the company to which the road shall belong ; otherwise, they shall be paid by the party making the complaint. (Id. § 48.) How paid. — Such fees, when payable by the company, shall be paid by the toll-gatherer, nearest the road adjudged out of repair, on demand, and out of the tolls received or to be received by him ; and may be recovered, with costs, of such toll-gatherer if he shall neglect or refuse to make such payment. (Id. § 49.) When inspectors appointed in other case. — There shall be ap- pointed in the several counties of this State, in which there is Plank Roads and Tuknpikes. 465 or may be a turnpike road, whose act of incorporation contains no provision for protecting the public against the company taking toll when the road is out of order, not less than three nor more than five inspectors of turnpike roads. (Laws 1848, chap. 45. This is a different class of officers from those appointed by the Laws of 1847. (Suydam v. Smith, 52 K Y. 383.) By whom appointed. — The said inspectors of turnpikes shall be appointed by the board of supervisors of the several counties, at any meeting thereof, and shall hold their offices for two years. CId. § 2.) Powers and duties. — The said inspectors of turnpikes, when appointed, shall possess the same powers, perform the same duties receive the same compensation, and be subject to the same restrictions, penalties and liabilities in all respects, as is now provided by title one, article four, chapter eighteen, part one, of the Revised Statutes, (ic?. § 3.) 9. Erection of Gates. Whenever any plank road company, formed under the before mentioned acts, shall have finished their road, or any mil© thereof, and had the same inspected, as provided in the before mentioned act, it shall be lawful to erect a toll-gate thereon, and to exact toll thereat, at the rate in the said act provided. (Laws 1849, chap. 250, § 4, as amended 1865 ; see Session Laws 1866, p. 18.) It is provided by sections 35 and 36, of the act of 1847, chapter 210, which will be cited in full in the next subdivision, that upon filing the inspectors' certificate, any plank road or turnpike company may erect one or more toll-gates upon their road. No plank road or turnpike road company shall hereafter erect or put up any hoist-gate on their road. (Laws 1850, chap. 71, § 6.) Grates, how located. — It shall not, any time hereafter, be lawful for any plank road company, formed under the act of May seventh, eighteen hundred and forty-seven, or for any turnpike company, to erect or put up any toll-gate, gate-house or other 30 466 The Law of Highways. building within a less distance tlian ten rods from the ftont of any dwelling house, barn or other out-house, without the written consent of the owner thereof; and if any toll-gate or other such building shall hereafter be located, by any such company, within said distance, without such consent, the county judge of the county in which such building shall he so located, shall, on application, order the same to be removed. (Laws 1851, chap. 107, § 2.) The term '■'■located" in. this act is synonymous with "erect and put up." (Moule v. Macedon ^ B. Plank Road Co., 6 How. Pr. 3T.) Location, how changed. — The commissioners of highways of any town in which a toll-gate may be located on any such road, or in an adjoining town, whenever they, or a majority of them, shall be of opinion that the location of such gate is unjust to the public interest, by reason of the proximity of diverging roads, or for other reasons, may, on at least fifteen days' written notice to the president or secretary of the said company, apply to the county court of the county in which such gate is located, for an order to alter or change the location of said gate. The court, on such application, and on hearing the respective par- ties, and on viewing the premises, if the said court shall deem such view necessary, shall make such order in the matter as the said court may deem just and proper; and either party may, within fifteen days thereafter, appeal from such order to the Supreme Court, on giving such security as said county judge shall require. Such order, unless appealed from, shall be ob- served by the respective parties, and may be enforced by attach- ment or otherwise, as the said court shall direct. And, if ap- pealed from, the decision of the Supreme Court shall be final in the matter. The said county and Supreme Court may direct payment of costs in the premises as shall be deemed just and equitable. (Laws 1847, chap. 210, § 37.) In proceeding to remove a gate under the above provision, the precise point to be established is that the public interest is prejudiced. (^Commissioners of Sohroeppell v. Oswego ^ Syr. Plank Road Co., 7 How. Pr. 94.) A gate so placed as to compel persons coming on a converging road to the village to pay half toll for traveling 250 rods upon the plank road, is un- just to the public interest and its location may be changed. (_McAllister v. Albion Plank Road Co., 11 Barb. 610.) Plank Roads and Txjenpikes. 467 Appeal. — Whenever au appeal to the Supreme Court from an order of the county court, made in the cases provided by sec- tion 37, of the act entitled "An act to provide for the incorpo- ration of companies to construct plank roads, and of companies to construct turnpike roads," passed May 7, 1847, shall be brought pursuant to the provisions of said section, the Supreme Court on motion of either party on due notice, shall appoint three disinterested persons who are in no wise interested in such company, or in the question of the location of the toll-gate thereof, and are not residents of any town through or into which such road shall run, or to and from which such road shall be a principal thoroughfare, referees to hear, try and determine the said appeal. (Laws 1851, chap. 487, § 1.) Hearing. — Such referees shall proceed to view the premises and the location of the gate affected by the order appealed from, and shall proceed to a hearing of the respective parties in the same manner as is provided by law, and the rules and practice of the Supreme Court on references of civil actions, and shall report their decisions to the said Supreme Court as referees are required to report, together with the evidence taken by them, and the ground of such decision. And the report of such ref- erees may be reviewed by the said court, and judgment given thereon as justice and equity shall require, in view of the law and the facts so presented, and such judgment shall be final and conclusive. (^Id. § 2.) Judgment and costs. — Such referees shall be entitled to the compensation now provided by law for referees in civil actions, to be paid in the first instance by the party in whose favor their report and decision shall be, and the said Supreme Court, on motion, shall award judgment therefor together with such amount of costs, and expenses as shall be deemed reasonable by the said court, to the party succeeding on such appeal, which judgment shall be entered with the order and judgment of said court, affirming or reversing the order of the said county court appealed from, and thereupon the party succeeding may issue execution thereon, and collect and enforce the same as upon judgment in civil actions. (iS. § 3.) The court may order a rehearing before the referees when there has been irregularity in the proceedings, or in the admis- 468 The Law of Highways. sion of evidence. (^Commissioners of Schroeppell v. Oswego ^ Syr. Plank Road Co., 7 How. Pr. 94.) Where the referees modified the decision of the county court, to change the location of a gate, by changing it to a different place from that designated by the county court, it was held that neither party had succeeded in the appeal, and that the costs were to be awarded as seemed equitable under the circum- stances. (^Matter of Commissioners of Lewiston, 15 Barb. 136.) 10. Of Tolls and theik Collection. On plank roads. — Upon filing said certificate the company owning any plank road so inspected, may erect one or more toll gates upon their road, and may demand and receive the follow- ing rates of tolls : For every vehicle drawn by one animal, one cent per mile, and one cent per mile for each additional animal ; for every vehicle used chiefly for carrying passengers, drawn by two animals, three cents per mile, and one cent per mile for each additional animal ; for every horse rode, led or driven, three- quarters of a cent per mile ; for every score of sheep or swine, one and a half cents per mile ; and for every score of 'neat cattle, two cents per mile. (Laws 1847, chap. 210, § 35, as amended 1853, chap. 245.) No more toll per mile shall be taken as provided by this act, than for the number of miles which shall be traveled by the person or persons using such roads, to the end that where diverg- ing roads strike any plank road or turnpike road, at or near any toll gate, the toll charged for using such plank road or turnpike road shall commence from the point of such divergence, and the toll charged shall be only for the distanced (distance') travelled on such plank road or turnpike ; provided, however, that frac- tions of cents may be made units of cents in favor of said plank or turnpike road; provided, that the board of supervisors of any county in which any such plank road or turnpike may be situate and for so much thereof as shall lie within said county, shall, by a majority vote, pass a resolution, declaring it to be proper that such discrimination shall be made. (Laws of 1876, chap. 435.) Supervisors in fixing rates are not required to designate diverg- ing roads, nor to make the same application to all the towns in the county. (1881, Hathaway v. Tuttle, 12 Week. Dig. 240.) In the absence of a toll gatherer, his wife will be fleemed Plank Roads and Tuknpikes. 469 to be his agent, for the purpose of demanding and receiving toll, and as such she is authorized to determine the rate or amount of toll to be paid by travelers. (^Marselis v. Seaman, 21 Barh. 319.) On turnpikes. — Upon filing such certificate as aforesaid, the company owning any turnpike road so inspected, may erect one or more toll-gates upon its road, and may demand and receive toll not exceeding the following rates : For every vehicle drawn by one animal, three-quarters of a cent a mile ; for every vehicle drawn by two animals, one and one-quarter cents a mile ; and for every vehicle drawn by more than two animals, one and one-quarter cents a mile, and one-quarter cents additional a mile for every animal more than two; and for every score of neat cattle, one cent a mile ; for every score of sheep or swine one-half cent a mile ; and in the same proportion for any greater or less numbers of neat cattle, sheep or swine ; for every horse and rider, or led horse, one-half cent a mile. And in no case shall any such turnpike company charge or receive rates of toll which will enable it to divide mpre than twelve per cent on its capital stock actually paid in, in cash and invested in its road, after paying the expenses of managing the same and keeping it in repair. (Laws 1847, chap. 210, § 36, as amended 1854, chap. 87.) Board of supervisors may change rate of tolls. — Such boards of supervisors shall have power, by a vote of two-thirds, to author- ize an alteration, reduction or change of the rates of toll charged or received by any turnpike, plank or gravel road, or other toll road, within such county, or by any bridge company or ferry within such county, or if within more than one county, then by joint action with the supervisors of such counties, provided such alteration shall be asked for by the directors, trustees or owners of such road, bridge or ferry ; and, provided further, that no in- crease of toll shall be so authorized unless notice of intention to apply for such increase shall have been published in each of the newspapers published in such county, once in each week for six successive weeks next before the annual election of super- visors in such county ; and any alteration in rates of toll author- ized by any board of supervisors may be changed or modified by any subsequent board, on their own motion, by a like vote 470 The Law of Highways. of two thirds of all the members elected to such board. (Laws 1869, chap. 855, § 3.) Abatement of toll for watering trough. — The directors of the several plank road and turnpike road companies in this State, shall annually abate three dollars from the toll of any in- habitant, not an innkeeper, or all of it if, in the aggregate, not exceeding that sum, who shall construct on his own land, and keep in repair, a watering trough, beside the plank road or turn- pike road as the case may be, well supplied with fresh water, the surface of which shall be two or more feet above the level of the ground, and easily accessible for horses with vehicles ; but the commissioners of highways of the towns respectively shall, and they are hereby invested with full power and author- ity to designate those necessary for the public convenience along said plank road or turnpike road, as the case may be, and no others than those designated shall be allowed both such abate- ment of toll and highway labor. (Laws of 1872, chap. 274, §2.) In case directors refuse to abate. — In case the directors of any plank road or turnpike road company in this State, shall refuse or neglect to abate the toll as aforesaid, in compliance with the provisions of the preceding section, any inhabitant having con- structed a watering trough in compliance therewith, may notify the commissioner or commissioners of highways, as the case may be, of the town in which the same had been erected, of such neglect or refusal on the part of the directors aforesaid, whose duty it shall be, and who are hereby invested with full power and authority to proceed without delay, to an examination of said watering trough ; and if, upon a full examination of the same, the said commissioner or commissioners, as the case may be, or a majority of them, shall deem it necessary for the con- venience of the public that such watering trough ought to be maintained, he or they, as the case may be, shall forthwith notify the said directors accordingly by serving a written notice on the president of the company to that effect, in which the necessity of its maintenance shall be clearly expressed ; and if the said directors shall still refuse or neglect to abate the toll as aforesaid, and shall demand and take toll, on application for such abatement, in violation of the provisions of the preceding Plank Roads and Turnpikes. 471 section for the space of thirty days after the service of such notice, they shall be liable to a penalty of twenty dollars, to be recovered in an action at law at the suit of the person having constructed said watering trough. (^Id. § 3.) Who are exempt from tax on plank roads. — The following per- sons, and no others, shall be exempt from the payment of tolls at the gates of the several plank road companies, formed under the act entitled " An act to provide for the incorporation of companies to construct plank roads," passed May 7th, 1847 : 1. Persons going to or from religious meetings, held at the place where such persons usually attend for religious worship, in the town where they reside, or an adjoining town, or within eight miles of their residence. 2. Persons going to or from any funeral, and all funeral pro- cessions. 3. Troops in the actual service of this State or of the United States, and persons going to or from a militia training, which by law they are required to attend. 4. Persons going to any town meeting or general election at which they are entitled to vote, for the purpose of voting or returning therefrom. 5. Persons living within one mile of any gate by the most usually traveled road, shall be permitted to pass the same at one-half the usual rates of toll, when not engaged in the trans- portation of other persons, or the property of other persons. 6. Farmers living on their farms within one mile of any gate by the most usually traveled road, shall be permitted to pass the same free of toll, when going to or from their work on said farms. (Laws 1851, chap. 107, § 1.) The sixth subdivision above cited does not entitle farmers to pass toll-gates free to detached farms or parts of their farms on which they do not reside. The fact that they cultivate such detached land at the same time with the farm on which they reside, does not alter the case. ( Cummings v. Waring, 39 Barh. 630.) 7. Any person belonging to the military forces of this State, going to or returning from any parade, encampment, drill or meeting which he may be required by law to attend, shall, to- gether with his conveyance and the military property of the State, be allowed to pass free through all toll-gates, and over all 472 The Law of Highways. toll-bridges ana ferries. Laws 1870, chap. 80, § 261). Any mem- ber or members of the national guard of this State, ■when in uni- form, going to or returning from any parade, encampment, drill or meeting, which he or they may be required to attend in com- pliance with orders from any competent authority, shall, to- gether with such couTeyances or military property of the State as he or they may be in charge of, be allowed, without any hindrance or delay, to pass free through all toll-gates and over all toll-bridges and ferries within the State. (Laws 1878, chap. 35.) A company may demand and receive toll at a gate for the whole distance between it and the next gate, in the direction from which the traveler has come, without reference to the fact that he may not have traveled the whole distance upon the road. (^Mallory v. Austin, 7 Barh. 626 ; McAllister v. Albion Flank Bead Co., 11 Barb. 610.) But see Law 1876, chapter 435, at the beginning of this subdivision. A toll gatherer has a right to exact payment, in advance, of toll from his gate to the next or for the distance between them, which the traveler admits he is about to travel. (Kenyon v. Seeley, 14 Barb. 631.) TFAo are exempt from tolls on turnpikes. — The Revised Stat-, utes relating to turnpikes (1 B. S. 584, § 36), provides that no toll shall be collected at any gate of any company incorporated under this tile in either of the following cases : 1. From any person passing to or from public worship or a funeral ; to or from a grist-mill for the grinding of grain for family use ; or to or from the blacksmith's shop to which he usu- ally resorts for the work there to be done. 2. From any person going for a physician or mid-wife, or returning from such errand ; going to or returning from court when legally summoned as a juror or witness ; going to or re- turning from a militia training, which by law he is required to attend ; or going to a town meeting or election at which he is entitled to vote, for the purpose of giving such vote, and return- ing therefrom. 3. From any person residing within one mile of the gate at which'toU is demanded, unless he shall be employed in the car- riage or transportation of the property of other persons not so residing. •Plank Roads and Turnpikes. 473 4. From troops in the service of this State or of the United .'States. Under the above provision one is exempt going to a mill in a town different from that in which he resides. (^Chestney v. Goon, 8 John. 150.) To exempt a person going to or from a blacksmith's shop to which he usually resorts, the going thither must be for the purpose of getting work done. Going to pay for work previously done is not sufficient. (^Stratton v. Herrick, ■■9 John. 356.) And the purpose of getting the work done must be the principal, and not the incidental object of going. (^Strat- ■ton v. Eubbel, 9 John. 357.) By the thirty-seventh section of the same statute, it is pro- vided that from carriages having wheels of which the tire or track is : 1. Twelve inches wide, no tolls. 2. Nine inches wide, one-fourth only of tne tolls otherwise payable. 3. Six inches wide, one-haK only of such tolls shall be col- lected. List of tolls to he posted. — It shall be the the duty of the pres- ident and directors to affix and keep up, at or over each gate (turnpike gate) in some conspicuous place, so as to be conve- niently read, a printed list of the rate of toll demandable at such :gate. (1 B. S. 585, § 38.) Commutation. — The president and directors of every turnpike •corporation created, or to be created, may from time to time commute with any person whose place of abode shall adjoin or be near to their road for the toll, payable at the nearest gate -on each side of such place of abode ; but no such commutation shall be for a longer time than one year, and it may be renewed at the end of each period for which it shall be made. (1 B. S. 588, § 52.) Penalty for not paying toll.— Any person who shall pass any turnpike or plank-road gate, without paying the toll required ty law, and with intent to avoid the payment thereof, shall for «ach offence, forfeit and pay to the corporation injured thereby, ten dollars. The penalties in this and the preceding section may be sued for and recovered by any company injured there- 474 The Law op Highways. by, in any court having jurisdiction thereof, (Laws 1855, chap. 485, § 3.) One who passes a turnpike or plank-road gate, without pay- ing the toll is liable for the penalty imposed by the statute ; as his intention not to pay is sufficiently indicated by the act it- self. (^Rome and Oswego Road Go. v. Stone, 62 Barh. 601 ;, Glow V. Van Loan, 4 Hun, 184.) Where a person on passing agate says, " I am going to mill," and points to the bags, it amounts to a claim of exemption. (^Dexter Sf L. Plank Road Co. v. Allen, 16 Barh. 15.) Running gate. — Any person who shall pass any plahk-road gate, or turnpike gate, without paying the toll, and with the intent to avoid the payment of the same, by which a penalty accrues, or any person committing any depredation or trespass on any plank-road or turnpike, may be sued for said penalty or trespass in the county where such offence or trespass was com- mitted, or in the county where such person may reside. (Laws 1849, chap. 250, § 9.) Forcibly passing gate. — By the fourth subdivision of section 64 of the Revised Statutes, relating to turnpikes, and which is made applicable to plank roads and turnpikes, under this act, (Laws 1849, chap. 250, § 5, as amended 1850, chap. 71, § 2) it is provided that every person who shall forcibly or fraudulently pass any gate thereon without having paid the legal toll, for each offence shall forfeit to the corporation injured the sum of twenty-five dollars, in addition to the damages resulting from his wrongful act. The penalty named in the statute is intended as a punish- ment to the wrong-doer and not as a compensation for damages to the corporation, and it was given to the corporation whose franchise has been violated in order to make its enforcement more certain. Such corporation does not forfeit its right to recover such penalty, when it has leased a part of its road to be kept in re- pairs, in consideration of tolls which its lessee is authorized to collect and enjoy ; but it may maintain an action for such pen- alty where the offence was committed at the gate in the posses- sion of its lessee, collecting the tolls for his own benefit. (^Mon- terey, 0. P., P P ^ 0. Plank Road Co. v. Chamberlain, 32 JST. Y. 659 ; 33 JSF. Y. 46.) Plakd Roads and Turnpikes. 475 To constitute a forcible passage of a gate, the passage must be effected by actual force, or at least offering some violence. (Bridgewater ^ N. Flank Boad Co. v. Bobbins, 22 Barb. 662 ; Monterey, C. P., P. P. ^ C. Plank Boad Co. v. Faulkner, 21 Id. 212 ; Hammondsport ^ B, Plank Boad Co. v. Brundage, 13 How. Pr. 448.) Among the provisions of the Revised Statutes, relating to turnpike roads, made applicable to plank roads and turnpikes under this act, by Laws 1847, chap. 210, § 47, are the follow- ing: When toll-gatherer may stop travelers. — Eacli toll-gatherer may detain and prevent from passing through his gate, the persons riding, leading or driving animals or carriages subject to toll until they shall have paid respectively the tolls authorized by law. (1 B. S. 584, § 35.) A plank road or turnpike company has two modes of enforc- ing the payment of toll by those passing its gates: one is by closing the gates, and preventing the traveler from getting through until he pays ; the other by suing for the penalty those persons passing and not paying, after demand of the toll. (^Bome ^ Oswego Boad Company v. Stone, 62 Barb. 601 ; Jor- dan §■ S. P. B. Co. v. Morley, 23 N. Y. 552.) This remedy, by closing the gate, is cumulative and does not prevent the company from maintaining an action against one who, under claim of right, passes the gate without payment. Jordan ^ S. Plank Boad Co. v. Morley, 23 N. Y. 652.) Toll-gatherer not to hinder travelers. — Every toll-gatherer who, at any turnpike gate, shall unreasonably hinder or delay any traveler or passenger liable to the payment of tolls, or shall de- mand and receive from any person more toll than, by law, he is authorized to collect, shall, for each offence, forfeit the sum of five dollars to the person aggrieved. (1 B. S. 587, § 50.) This section does not apply to detention of persons who have a right to pass free. (^Conklin v. Elting, 2 John. 410 ; see, also, Norval v. Cornell, 16 id. 73 ; Skinner v. Anderson, 12 Barb. 648.) In the absence of a toll-gatherer, his wife will be deemed to be his agent, and her acts will bind her husband. If she de- mands and receives too much, her husband is liable for the 476 The Law of Highways. penalty imposed by statute. (^Marselis v. Seaman, 21 Barl. 319.) Penalty for hindering members of National Guard. — Any toll- gate or toll-bridge keeper or any ferry master, or any other per- son or persons, who may be in charge of any toll-gate, toll- bridge or ferry, who shall willfully hinder or delay any member or members of the National Guard, or who shall refuse pas- sage to such member or members of the National Guard, who shall be acting under the provisions of the first section of this act, shall be guilty of a misdemeanor, and on conviction be fined no less than ten dollars and no more than twenty dollars, or be im- prisoned no less than five nor more than ten days. (Laws 1878, chap. 35, § 2.) Penalty, how collected. — Whenever a judgment is obtained against a toll-gatherer for a penalty, or for damages, for acts done or omitted to be done by him in his capacity of toll- gatherer, and goods and chattels of the defendant to satisfy such judgment cannot be found, it shall be satisfied by the cor- poration whose officer he shall be ; and if on demand payment be refused by the corporation, the amount thereof may be re- covered, with costs, of such corporation. (1 R. S. 587, § 51.) Avoiding toll-gate, — Every person who, to avoid the payment of the legal toll, shall, with his team, carriage or horse, turn out of a turnpike road, or pass any gate thereon, on ground adjacent thereto, and again enter on such road, shall, for each offence, forfeit the sum of five dollars to the corporation in- jured. (1 B. S. 588, § 55.) The above provisions of the Revised Statutes, relating to turn- pike roads, is made applicable to plank and turnpike roads under this act. (Laws 1847, chap. 210, § 47.) A turning off about half a mile from the gate is held to be on ground adjacent within the purview of the above act. ( Carrier V. Schoharie Turnpike Co., 18 John. 56.) The fact that the person, after turning off, traveled on an old public highway makes no difference, for the only question , is, whether he turned off the road in good faith or with a view to avoid the toll. (Id. Dansville, ^ W. Plank Road Co. v. Hull, 27 Barb. 509.) Plank Roads and Turnpikes. 477 The company have no remedy against one who constructs a road on his own lands, opposite to a toll-gate, whereby travelers may avoid paying toll. {Auburn, §■ 0. Plank Road Co. v. Douglass, ^ K T, 444, reversing 12 Barb. 553.) But where after having traveled some miles on the plaintiff's road, when close to its toll-gate, he turned off and went with his team through the fields, where there was no wagon road, to his barn, past the gate, held that his intention to avoid the payment of tolls, was clear, and that it could make no difference that while so off the plaintiff's road he was on his own land. (Oanastota ^ Morrisville P. B. Co. v. ParUll, 50 Barb. 601.) G-ate may be thrown open. — Commissioner acting as inspector of plank roads, in case the same shall be out of repair, or such condition that the same cannot be conveniently used by the pub- lic, may order them thi-own open. (See ante, p. 88.) 11. Penalties foe Injuring ok Obstructing. Penalty for injuring road. — Any person who shall draw or haul, or caused to be hauled or drawn, any logs, timber, or other material, upon the road bed of any plank road or turnpike road, unless the same be entirely elevated above the surface of the road on wheels or runners, by which such road bed shall be in- jured, or who shall do or cause to be done, any act by which road bed or any ditch, sluice, culvert or drain appertaining to any turnpike or plank road shall be injured or obstructed, or shall divert or cause to be diverted, any stream of water so as to injure or endanger any part of any such turnpike or plank road, shall forfeit and pay the sum of five dollars as a penalty, in addition to the damages resulting from such wrong- ful act. (Laws 1855, chap. 485, § 1.) Under § 639, sub. 1, of the Penal Code, the penalty for wilfully displacing, injuring or destroying a public highway or bridge is an imprisonment for not more than two years. Fences encroaching. — "Whenever the president or secretary of any turnpike or plank road company shall notify any inspector of roads in the county where such roads are situated, that any person is erecting or has erected any fence or other structure upon any part of the premises set apart by due course of law, for any turnpike or plank road, the said inspector shall proceed 478 The Law op Highways. to examine the facts, and if it shall appear that such fence or other structures is upon any part of any such road, the said in- spector shall order the same to be removed ; and any person who shall neglect or refuse to remove the same within twenty days, or such further time, not exceeding three months, as may be fixed by the said inspector, shall forfeit and pay the sum of five dollars for every day during which said fence or other structure shall remain on the said road, to be sued for and recovered by the corporation owning such turnpike or plank road, in any court having jurisdiction thereof ; provided, that the said inspector shall not order the removal of any fence previously erected, between the first day of December and first day of April, (Laws 1855, chap. 485, § 4.) Willful injury to road. — The following section of the Revised Statutes, relating to turnpike roads, is made applicable to plank and turnpike roads, under the provisions of this act. (Laws 1847,- chap. 210, §47.) Every person who shall : 1. Willfully break, cut down, deface or injure any milestone or post on any turnpike road ; or, 2. Willfully break or throw down any gate or turnpike on such road; or, 3. Dig up or spoil any part of such road, or anything there- unto belonging ; or, 4. Forcibly or fraudulently pass any gate thereon without having paid the legal toll. For each offence, shall forfeit to the corporation injured, the sum of twenty-five dollars, in addition to the damages resulting from his wrongful act. (1 R. S. 588, § 54.) The corporation may maintain an action against one forcibly or fraudulently passing any gate, notwithstanding the fact that the franchise had been leased for a long term to an individual at a nominal rent. (^Monterey, 0. P., P. P. §■ C. P. H. Co. V. Chamberlain, 32 K Y. 659; 33 K Y. 46.) A turnpike corporation may lawfully remove fences or other encroachments upon their road, and are not compelled to resort to a remedy by action. (^Estes v. Kelsey, 8 Wend. 655.) The proper course, however, is to notify the inspector, as provided above. The company are entitled to damages for any interfer- ence that obstructs or impairs the use of its road, as far as the Plank Roads ajjd Tubnpikbs. 479 laying of a railroad track across it, though such railroad is au- thorized by law. (^Seneca Road Co. v. Auburn, ^ Roch. R. R. Co., 5 Sill, 170 ; Mahon v. Utica ^ Sch. R. R. Co., Lalor's iSupp., 156.) See also Penal Code, § 639. 12. Of Taxes on Roads. Taxes on roads. — So much of any such road and of the toll- houses, gates and other appurtenances thereof, constructed by virtue of this act, as shall be within any town, city or village, shall be liable to taxation in such town, city or village, as real estate. (Laws 1847, chap. 210, § 48.) When exempt from taxation. — Toll-houses and other fixtures, and all property belonging to any plank or turnpike road com- pany, shall be exempt from assessment and taxation for any purpose whatsoever, until the surplus annual receipts of tolls on their respective roads, over necessary repairs and a suitable re- serve fund for repairs and relaying of plank, shall exceed seven per cent, per annum on the first cost of such road. In case of any disagreement between the assessors of any town, village or city, and any such company, concerning such exemption claimed, said company may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to the appealing party of such appeal examine the books and vouchers of such company, and take such further proof as he shall deem proper, and shall decide whether such company is liable to taxation under this section, and his deci- sion shall be final. (Laws 1854, chap. 87, § 4, as amended 1855, chap. 546, § 5.) The acts of the directors, after the formation of the company, in extending the main line of the road beyond the point origi- nally specified, and increasing its capital stock, without the written consent of the persons owning two-thirds of the stock, «r a majority of the inspectors, &c., as provided by section one of the plank-road act, are unauthorized and illegal, and exon- erate the original stockholders from all liability to pay their subscriptions. Nor will the fact that the stockholder partici- pates in proceedings of the company contemplating the exten- sion, " if it can legally be done," and retains his stock after the extension has been made, and sells it for value, estop him from 480 The Law of Highways. denying his liability to pay his subscription. (Macedon ^ B. Plank Road Oo. v. Lapham, 18 Barh. 312.) Constructing branches. — The directors of any plank-road com- pany, or turnpike road company, formed under the act passed May seventh, eighteen hundred and forty-seven, entitled " An act to provide for the incorporation of companies to construct plank roads, and for companies to construct turnpike roads " may, with the written consent of the persons owning two-thirds of the stock, construct branches to their main line of road, or extend or change the route of their road, or any part thereof, whereby the public interest will be promoted, through any uncultivated or unimproved lands. (Laws 1859, chap. 209, § 1.) May take and hold real estate. — The directors of any such company may purchase, take and hold any real estate necessary for the aforesaid purposes, and by their agents, servants or other persons employed, may enter upon the lands of any person or persons which may be necessary for said purpose, and may construct their road upon any lands so entered upon, purchased or held. (Id. § 2.) Lands to be surveyed. — Before entering, taking or using any lands for the purpose of this act, the directors of any such com- pany shall cause a survey and map to be made of the lands in- tended to be taken or entered upon, for any of said purposes, and by which the land of each owner and occupant intended to be taken and used shall be designated, and which map shall be signed by the surveyor or engineer making the same, and by the president of such company and acknowledged by them, and be filed in the office of the clerk of the county. The directors of any such company, by any of its officers, agents, or servants, may enter upon any lands for the purpose of making any ex- amination, and of making survey and map, doing no unneces- sary damage. (Id. § 3.) Lands, how taken. — In case the directors of any such com- pany cannot agree with the said owners and occupants of said land intended to be taken and used for the purposes of this act, the directors may apply to the judge of the county court Plank Roads and Turnpikes. 481 for the appointment of three disinterested persons, not the owners of real estate in any town through which any land in- tended to be used for the purposes of this act, or in any town adjoining such town, as commissioners, by whom the compensa- tion to be paid for the damages suffered or to be suffered by any person or persons, by reason of taking any of said lands for the purposes of this act, shall be ascertained and determined ; and in case of the death, resignation, refusal or disability to act of any of said commissioners, the said judge may appoint others in their places. (Id. § 4.) Commissioners to give notice. — The commissioners shall give at least ten days' written notice of the time and place to hear the parties interested, to be served personally on the parties in- terested, or, in their absence from their dwellings or places of business, by leaving the same thereat, with some person of suit- able age ; and in case of any legal disability of such owner or owners to act thereupon, serving notice in like manner upon his or her guardian, or person appointed to act for him or her, as hereinafter directed ; and in case any of said owners shall be married women, insane, infants or idiots, the said judge shall appoint some suitable person to attend in their behalf, before the said commissioners, and take care of their interest in the- premises. The commissioners may issue subpoenas to compel the attendance of witnesses to testify before them, and they or any of them, may administer the usual oath to such witnesses. They shall determine the width of road through said lands, and make a report of all proceedings before them, containing the testimony taken by them, and make an actual survey and de- scription thereof, as laid out by them, and the sum awarded to each owner, or any other person, duly signed or acknowledged by them, and return the same to said judge to be filed on record. (Id. § 4.) Fees of Commissioners. — Each commissioner is entitled to re- ceive two dollars per day for his fees, to be paid by the com- pany. (Id. § 5.) Appeal, how taken. — The directors of any plank or turnpike road company, or any party to the proceedings of the commis- sioners, may appeal from any award or determination of the 482 The Law of Highways. commissioners to the said county judge, providing the party appealing shall, within ten days after such award or determi- nation shall be made, give written notice of the appeal to the other party or parties interested in the same ; and the said judge ^ shall examine the report of the commissioners, and if their pro-, ceediugs in the case have been irregular, the said judge may set the same aside and order new proceedings and appointments ; . and the said judge may make such orders in reference to the proceedings of the commissioners and of notice to be given by the parties as may not be inconsistent -with this act, and as the nature of the case and the interest of the parties may require'. ' And the said commissioners shall again examine the case, and ' the decision then made shall be final. (^Id. ^6.) When may enter upon lands. — Upon the payment or legal tender of the compensation determined as before provided,,^h® said directors of any plank road company, or any turnpike roa,d ; company, shall be entitled to enter upon, for the purposes cox\0 templated by this act, all the lands and real estate for whlcn - such compensation shall be paid or tendered, as aforesaid, and. to hold and use the same for the said purposes, to thera ann their successors forever. If any person to whom any compen- sation shall be awarded, or who shall be entitled to the same "by virtue of said award, can not be found, or shall refuse to re- ceive the sum awai'ded to him or her, then the said payment may be made by depositing the amount of the said award to the credit of said person, in such bank as may be appointed by said judge. If the person to whom compensation is awarded, or who is entitled to receive the same as aforesaid, be under legal disability as aforesaid, payment may be made to his guardian or person appointed as aforesaid, by said judge, and if said guard- " ian or person appointed cannot be found, then by deposit in- bank, as aforesaid. (Id. § 7.) Directors to take and hold real estate. — The directors of any plank road company or turnpike road company shall take, and hold for the purpose contemplated in this act, all the lands and real estate which they shall in any way legally enter upon and take by virtue hereof, to them and their successors so long as the same shall be used for a road. (^Id. § 8.) Town must pay for land abandoned hy plank road. — Whenevet Plank Roads and Ttjenpikes. 483 ally plank road company shall, for any reason, fail to have its 'Incorporate existence extended, such portion of the line of said ^road as was built over lands, which were originally purchased by said company for that purpose, and was not previously a f public highway, shall not be taken possession or control of by the town in which the same may lie, or be claimed or worked as a public highway, until the said town shall pay over to said com- pany the principal sum of the amounts paid by said company for the same, as shown by the deeds of conveyance therefor, given to said company therefor. (For full text of Law see Laws of 1880, chap. 484, § 2 ; as amended Laws 1881, chap. 117 ante, p. 514.) 14. Powers op Pueohasees on Sale undbe MoETGAaE oe Execution. •■ Purchasers on foreclosure to operate. — Whenever any plank road or turnpike road shall be sold, upon the foreclosure of any - mortgage, given by such company upon its road and franchise thereof, to secure the payment of any bond or bonds of such companjr, it shall be lawful for such purchaser or purchasers thereof, at such sale, and they are hereby authorized to main- tain and operate such road, in the same manner, with the same privileges, and subject to the same respects, as the company own- ing such road could do at the time such sale was made. (Laws 1866, chap. 780, § 1 ; see also Laws 1859, chap. 209, § 9.) When purchasers may form corporation. — Such purchaser or purchasers, on associating with him or them, not less than four persons, may be formed into a corporation for the purpose of ■ owning and operating such plank road or turnpike road, upon complying with the requirements of section second of an act entitled, " An act in relation to the sale of plank roads and turnpike roads on execution, and to provide for the incorpora- tion of purchasers at such sales, into companies, to own and operate such roads," passed April fifteenth, eighteen hundred and fifty-seven. (^Id. § 2.) This act shall. apply, as well to any such sale heretofore, as hereafter made, saving, however, to the stockholders of such company or any of them, such rights as they, or either of them, had at the time of the passage of this act, under any such sale heretofore made. (^Id. § 3.) 484 The Law op Highways. When purchasers on execution may operate. — Whenever any plank road or turnpike road shall be sold upon any execution, and shall not be redeemed from such sale according to law, then it shall and may be lawful for the purchaser or puchasers of such road, and they are hereby authorized to maintain and operate the same, in the same manner andsubjecb to the same privileges and restrictions in all respects, as the company owning such road at the time such sale was made. (Laws 1857, chap. 482, §!■) Purchasers may form association. — Such purchaser or pur- chasers, on associating with him or them not less than four persons, may be formed into a corporation for the purpose of owning such plank road or turnpike road, by complying with the following requirements : Articles of association. — They shall severally subscribe articles of association, in which shall be set forth the name of the com- pany, the number of years the same is to continue, which shall, not exceed the unexpired term of the original incorporation of the company whose road was so sold, whether it is a plank road or a turnpike road which the company has formed to own and operate ; the amount of capital stock of the company own- ing such road at the time of such sale ; the number of shares of which the said stock shall consist ; the number of directors and their names, who shall manage the concerns of the company for the first year, and shall hold their offices until others are elected ; the place from and to which said road is constructed, and each town, city and village into or through which said road shall pass, and its length, as near as may be. Each subscriber to such articles of association shall subscribe thereto his name and place of residence, and the number of shares of stock owned by him in said company. The said articles of association may then be filed in the office of the Secretary of State, and there- upon the persons who have so subscribed and all persons who- shall from time to time, become stockholders in such com- pany, shall be a body corporate by the name specified in such articles, and shall possess the same powers and privileges, and be subject to the same provisions as companies organized under the act entitled, " An act to provide for the incorporation of companies to construct plank roads, and of companies to con- Plank Roads and Turnpikes. 485 struct turnpike roads," passed May seventh one thousand eight hundred and forty-seven. (^Id. § 2.) Extent of this act. — The provisions of this act shall apply to all such sales the right of redemption upon which has heretofore expired or shall expire after the passage of this act. Qd. § 3.) 15. Actions by ob Against a Coepoeation and Stock- holders. Action against. — In any action against any company formed under the provisions of this act, the plaintiff may include as defendants any one or more of the stockholders of such com- Ipany, who shall by virtue of the provisions of this act, be claimed to be liable to contribute to the payment of the j)laintiff's claim ; and if judgment be given against such company, in favor of tte plaintiff for his claim ; or any part thereof, and any one or more of the stockholders so made defendants shall be found to be liable as aforesaid, judg- ment shall also be given against him or them, and shall show the extent of his or their liabilities individually. The execution upon such judgment shall direct the collection of the sum for which it may be issued, of the property of such company liable to be levied upon by virtue thereof ; and in case such property, sufficient to satisfy the same, cannot be found in the county of the officer to whom the same shall be directed, that the defi- ciency, or so much thereof as the stockholders, who shall be defendants in such judgment, shall be liable to pay, shall be collected of the property of such stockholders respec- tively. And, if in any such action, any one or more of such stockholders shall be found not to be liable for the demand of the plaintiff or any part thereof, judgment shall be given for the stockholders so found not to be liable, but no ver- dict or judgment in favor of any such stockholder shall prevent the plaintiff, in such action, from proceeding therein against the company alone, or against it and such defendants who are stockholders as shall be liable for such demand or some portion thereof. Suits may be brought against one or more stock- holders who are claimed to be liable for any debt owing by the company, or any part of such debt, without joining the company in such suit; but no such suit shall be so brought until judgment on the demand shall have been obtained against the company, 486 The Law of Highways. and execution thereon returned unsatisfied in whole or in part, or the company shall have been dissolved ; but it shall not be necessary that such dissolution shall have been declared by any judicial decree, sentence or determination ; and in such suit there may be a verdict and judgment in favor of any defandant not liable as aforesaid; but such verdict and judgment shall not prevent the plaintiff in such suit from proceeding therein against any defendant who shall be liable as aforesaid. (Laws 1847, chap. 210, § 46.) Proof of incorporation. — In any action hereafter brought by or against any plank or turnpike road company, organized under the laws of this State, which shall have been in actual operation, and being in the possession of a road upon which they have taken toll for five consecutive years next preceding the com- mencement of such action, parol proof of such coiporate exist- ence and use shall be sufficient for all purposes of the action', unless the opposing party shall set up a claim in his complaint or answer, duly verified, of title in himself to the road, or some part thereof, stating the nature of his title and right to the im- mediate possession and use thereof. (Laws 1855, chap. 546.) Any plank road or turnpike road company that shall avail itself of the provisions of chap. 135, Laws of 1876, to extend its corporate existence, must annually on or before the first day of July in each year, make and file a statement in tlie office of the county clerk of the count}'' or counties through or into wliich such plank road or turnpike road is located, of the receipts from tolls, and also a statement showing the expenditure on such plank road or turnpike road to maintain and keep the same in repair. (Laws 1876, chap. 135, § 8.) A copy of the consent of such supervisors and stockholders, together with a copy of such affidavit annexed thereto and certified to be a copy by the Secretary of State or his deputy, shall, in all courts and places, be presumptive evidence of the corporate existence of such company for the term therein speci- fied, and of the facts therein stated. (^Id. § 4.) Within what time action for penalties to he commenced. — No action to recover any penalty against any company formed under an act entitled " An act for the incorporation of companies to construct plank roads, and of companies to construct turnpike Plank Roads and Turnpikes. 487 roads, and the acts amending the same, or against any turnpike corporation, shall be commenced or maintained against such com- pany, or any of its officers or agents, unless the same is com- menced within thirty days after the penalty was incurred." (Laws of 1850, chap. 71, § 3.) Actions against stockholders. — Whenever any judgment shall have been recovered by any person in any court of record in this State, against any corporation organized or incorporated under and by virtue of the act entitled " An act to provide for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads," passed May seventh, one thousand eight hundred and forty-seven, on a demand arising upon a contract, and for the payment of which the stock- holders of such company are liable in their individual capacity as mentioned and declared in the said act, and an execution on such judgment shall have been duly issued to the proper county against the property of such corporation, and been returned unsatisfied in whole or in part, then any such creditor or credi- tors, his or their personal representatives, may commence an action in the mode now provided by law, in the supreme court in the county in which the office of such corporation is held, or in which the stockholders reside, on behalf of himself or themselves, and of all other creditors of such corporation who shall come in and seek relief by and contribute to the expense thereof, against all the stockholders and any former stock- holders, for the purpose of enforcing against such stockholders their respective individual liabilities under said law to pay the debts of such corporation, whether due at the commencement of such action or to become due thereafter if contracted or in- curred previously ; and any other person or party who may have an interest in the event or determination of such action may be made parties defendant at the commencement or in any sub- sequent stage of the action. (Laws 1855, chap. 390, § 1.) An action accrues against a stockholder in a plank road at the same time that it accrues against the company, therefore if an action against a stockholder is not commenced within the period prescribed by the statute of limitations, it is barred. COonklin v. Furman, 48 JST. Y. 527.) Judgment, how enforced. — The court in which such action may 488 The Law of Highways. be pending shall proceed therein as in similar cases, and shall have jurisdiction and authority to enforce the payment of all arrears due from and owing by any stockholder on the stock subscribed for and owned by him, and shall also ascertain all the debts of such corporation which the stockholders thereof are individually liable to pay, and shall assess and apportion the total amount of such indebtedness for' which the stock- holders are by law liable to pay, including the reasonable costs and disbursements of the plaintiff in such action on and among the respective stockholders or persons liable to pay the same, according to their individual liability, and shall enforce the pay- ment thereof by each stockholder by its judgment and by ex- ecution or executions, in the name of the plaintiffs in such action, or in the name of the receiver in the action, if one shall have been appointed against the respective stockholders, as in other cases. (Laws 1855, chap. 390, § 2.) Stockholders, when creditors. — Every stockholder of such cor- poration who at any time before the commencement of such ac- tion shall have due or owing to him any demand or claim aris- ing on contract against such corporation, or who may have paid any debt or demand against such corporation either voluntarily or by compulsion, and for which the stockholders of any such corporation are or would be personally liable under the provis- ions of the said act of May seventh, one thousand eight hun- dred and forty-seven, shall be deemed a creditor, and shall be entitled to appear in said action and to prove his claim and dcv mand, and to have judgment therefor, or a credit for the amount upon his individual liabilitj'^ as a stockholder, to pay. the debt of such corporation, to be ascertained and adjudged in said action ; and shall receive payment thereof in the mode or manner that may be directed or ordered by the court in the judg- ment in such action. (^2d. § 3.) Limitation of actions. — Whenever any such action shall have been commenced against the stockholders of any corporation, as provided in the first section of this act, the court shall pos- sess all the powers and authority in relation to such action and the proceedings therein and the parties thereto, as was ex- ' ercised by the late court of chancery in this State in proceed- ings against corporations in equity, under and by virtue of Plank Roads and Tuenpikes. 489 article second of title four, chapter eight, part third of the Re- vised Statutes, so far as the same may be consistent with this act, and any creditor of such corporation who shall not, on being duly required by the court, and in such manner as the court shall direct, exhibit his claim and become party to such suit within a reasonable time, not less than six months from the first publication of such notice by order of the court, shall be precludedfrom all benefit of the judgment which shall be rendered in such suit, and from any distribution of moneys which may be made under such judgment among the creditors of the said cor- poration. (Id. § 4.) Distribution of money recovered. — The court shall cause the moneys so assessed upon and collected from the stockholders of such corporation for the purposes contemplated by this act, by virtue of the judgment in such action, after paying the costs and disbursements of such action, to be applied to the payment and extinguishment of the debts against such corporation, which shall be established and proved in said action to be debts ■which by law the stockholders of such company are liable in- dividually to pay without preference, except where such prefer- ence exists by law ; and in case any debt so established shall not be due, and the person to whom it belongs or is payable ■declines to receive the same, in such case the court may make such order as to the deposit or investment of such moneys so due to any such creditor, or for his use or benefit, and for the payment thereof when due, as shall be just and equitable. (J.d. I 5.) 16. How Discontinued. Road may he surrendered. — The directors of any plank-road ■company or turnpike company, formed under the act passed May 7, 1847, entitled " An act to provide for the incorporation of companies to construct plank roads, and for companies to construct turnpike roads," and every plank road company or turnpike company incorporated under or by any law of this State, are hereby authorized to abandon the whole or any part of their plank road or turnpike road, at either or both ends thereof, whenever the stockholders holding two-thirds of the stock in said road company shall consent to the same, by a written declaration of the surrender of such part or parts of said 490 The Law op Highways. road, which said declaration shall be attested by their common. seal, and acknowledged by the president and secretary of said company before an officer empowered to take the acknowledg- ments of deeds. Such declaration and consent shall be filed and recorded in the clerk's office of the county in which the part or parts of said road abandoned shall be situated, and thereupon the plank or turnpike road, or the portion thereof so surren- dered, shall cease to be the road or property of the company, and revert and belong to the several towns, cities and villages through which it was constructed, and the said company shall be no longer bound to maintain it or be liable to be assessed thereon, or be permitted to collect tolls for traveling over the same, from the time of recording said declaration of surrender and consent, without impairing the right of said company to take toll on the remaining part of their plank road or turnpike road at the rate prescribed in its charter, or by the Laws of this State relating to any such company. (Laws 1854, chap. 87, § 1 as amended Laws 1883, chap. 409.) Any plank road corporation which, for a period of five con- secutive years, shall -have heretofore neglected or omitted to ex- ercise its corporate functions shall be deemed dissolved ; and provided its road-bed or right of way shall 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 tlie statute, and all Laws relating to the erec- tion, repairing and repaving of bridges, shall apply to such high- way. (Laws 1872, chap. 780.) Whenever any turnpike corporation shall become dissolved or the road discontinued, its road shall become a public hioh- way and be. subject to all legal provisions regarding highways. (Laws 1838, chap. 262, § 1.) But whenever any plank road company shall, for any reason, fail to have its corporate exist- ence extended, such portion of the line of said road as was built over lands which were originally purchased by said company for that purpose, and was not previously a public highway, shall not be taken possession or control of, by tlie town in which the same may lie, or be claimed or worked as a public high- way, until the said town shall pay over to said company the principal sum of the amounts paid by said company for the same, as shown by the deeds of conveyance therefor, given to Plank Roads and Ttjknpikes. 491 said company therefor. (Laws 1880, chap. 484, § 2, as amended chap. 337. Laws 1881. For full text of Law see ante, -p. 249.) Turnpike and plank roads are, as a general rule, like ordi- nary highways, simply easements ; the fee remainiiig in the owner of the soil, and upon their abandonment, reverting with- out further incumbrance. Where the language of an act, in- corporating a turnpike or plank-road company, is such as to vest the title to the land over which the road passes, in the company, it must, nevertheless, be considered as vested only for the purpose of the road ; and when the road is abandoned the laud reverts to the original owners. (JDunham v. Williams, 36 Barh. 1 36 ; Hooker v. Utica ^ M. Turnpike Road Co., 12 W end. 371 ; People v. White, 11 Barh. 26; see Rogers v. Brad- shaw, 20 John. 735 ; Estes v. Kelsey, 8 Wend. 559 ; Heath v. Barmore, 50 N. Y. 305, and ante, p. 26.) When a turnpike company becomes dissolved, or its road dis- continued, it is the duty of the commissioner to form it into a road district and to cause it to be worked and kept in repair in the same manner as other public highways, and in, case of their neglect or refusal so to do, a mandamus may be had to compel them to perform their duty. Corporation to cease. — Every company incorporated under this act shall cease to be a body corporate : 1. If within two years from the filing of their articles of as- sociation, they shall not have commenced the construction of their road, and actually expended thereon at least ten per cent, of the capital stock of such company, and, 2. If within five years from such filing of the articles of as- sociation, such road shall not be completed according to the pro- visions of this act. (Laws 1847, chap. 210, § 49.) What shall not work forfeiture. — Every company formed or organized under the above act of 1847, and the several acts amending the same, shall be deemed to be a valid corporation, although such company may not have complied with the require- ments of such acts in the formation and organization of such com- pany, and preparatory to the construction of its road, and no act or omission on the part of any such company, or of its stock- holders or officers, shall work a forfeiture of its corporate pow- 492 The Law of Highways. ers or franchises, unless the same was willful and malicious ; but this section shall not affect or impair any right of action heretofore accrued. (Laws 1854, chap. 87, § 6 ; see similar pro- visions, Laws 1850, chap. 71. ) Failure to complete road. — No plank road company shall be deemed to have forfeited any privilege or franchise by reason of not having completed their road the whole distance mentioned or described in their articles of association. (Laws 1855, chap. 546, § 2. ) No plank road or turnpike road company, corporation or as- sociation heretofore formed or organized under the act entitled " An act for the incorporation of companies to construct plank roads, and companies to construct turnpike roads," passed May seventh, eighteen hundred and forty-seven, and the several acts amending the same, shall be deemed invalid, or to have forfeited any of its powers, rights or franchises, by reason of any failure on the part of such company, or the persons .organizing the same to have complied with the requirements of such acts in the for- mation or organization of such company, as to the number of stockholders or persons who signed the articles of association of such company or association, or in the publication of notices in the organization thereof, or by reason of any informality or defect in the signing of such articles of association, or in the publication of the notices aforesaid ; and the stockholders, offi- cers and creditors of every such company, are hereby declared to have the same rights, and the stockholders to be subject to the same obligation and liabilities as if such company had strictly complied with all the requirements of the law aforesaid, to cre- ate and perfect a complete body corporate ; provided that this act shall only apply to such companies as shall have attempted an organization, and shall have actually constructed a road wholly or in part, according to their articles of association. (Laws 1862, chap. 248, § 1.) APPENDIX OF EOEMS. No. 1. Oath of Commissionee. See ante p. 58. Rensselaer Cottnty, ss : I., E. D., of the town of Pittstown, in 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 faithfully discharge the duties of com- missioner as aforesaid, according to the best of my ability. And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contrib- uted, or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giv- ing or withholding any such vote. E. D. Sworn, &c. No. 2. Ceetipicate op Justice. See ante p. 58. County op Rensselaer, ) ss : Town of Pittstown, \ I, Theodore C. Richmond, justice of the peace in and for the town of Pittstown, in said county (or town clerk of the town 494 The Law of Highways. of Pittstown, in said county), do hereby certify, that on the 12th day of November, 1890, personally appeared before me M. M. of said town, who then and there duly took and sub- scribed the foregoing oath. THEODORE C. RICHMOND, Dated, &c. Justice of the Peace. No. 3. Bond op Commissioners. See ante p. 61. Know all men by these presents, that we, A. B., C. D., and E. F., of the town of Grafton, county of Rensselaer, and State of New York, are held and firmly bound unto G. H., 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, administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated the 12th day of November, 1890. Whereas, the above named bounden A. B. was, on the 5th day of November, 1890, duly elected commissioner of highways of the town of Grafton, in the county of Rensselaer ; Now, therefore, the condition of this bond is such, that if the said A. B. shall faithfully discharge his duties as such com- missioner, and shall, within ten days after the expiration of his term of office, pay over to his successor, all moneys remaining in his hands as such commissioner, and render to such successor 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 full force arid virtue. Signatures and Seals. Witness, I Add justification and acknowledgment as in Ifos. 4 and 5. Appendix of Foems. 495 No. 4. Affidavit of Justification. County of Rensselaeb,, ss ; C. D. and E. F., the sureties uamed in the foregoing 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 thousand dollars over and above all his debts and liabilities, and exclusive of property exempt from execution. CD. Sworn, &c. E. F No. 5. Acknowledgment. County of Rensselaer, ss ; On this twelth day of November, 1890, personally appeared before me C. D. and E. F., to me known to be the persons de- scribed in, and who executed the foregoing obligation, and sev- erally acknowledged that they executed the same. R. A. Justice of the Peace. No. 6. Indorsement of Supervisor's Approval. See ante p- 61. I approve of the within bond, and of the sufficiency of the sureties therein named. G. H. Supervisor of the town of Grrafton. Dated, &c. No. 7. Notice of Commissioner's Resignation. See ante p. 62. To A. B., C. D., and E. F., Esqrs., Justices of the Peace of the town of Pittstown ; Take notice that I hereby tender my resignation of the office of commissioner of highways of the said town of Pittstown, for the following reasons : (Give reason.) C H. Dated, &c. 496 The Law op Highways. No. 8 Oedee Appointikg Commissioner to Fill Vacancy. See ante p. 60. County op Renssblaee,, Town of Pittstown, ' Whereas, a vacancy has occurred in the office of commissioner of highways of the town of Pittstown, by reason of tlie death (or, as the case may be.) of George Holmes, heretofore elected to said office from said town. Now, therefore, by virtue of the power vested in us by tbe statute, in such case made and provided, we the undersigned, three of the justices of the peace of said town, do hereby, in order to ffil such vacancy, nominate and appoint Charles Adams, commissioner of highways of said town, to hold his said office until the next succeeding annual town meeting of said town, as by law provided. In witness whereof we have hereto set our hands this tenth day of July, 1880. Signatures. No. 9. Oedek Asobetaining and Desoeibing Road. See ante p. 66. Whereas, a road, used as a highway, in the town of Pittstown, county of Rensselaer, leading from A. to B., was laid out by commissioners of highways of said town, on the first day of April, 1840, 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 high- ways of said town, having met at the house of Royal Abbott, in said town, for the purpose of causing said road to be ascer- tained, and described and entered of record in the town clerk's office, — all the said commissioners being present, and having de- liberated (or all the said commissioners having been duly noti- fied to attend this meeting for the purpose of deliberating) on the subject embraced in this order, do hereby order that the said road be ascertained, described and entered of record. And Appendix of Forms. 497 the 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 : begin- ning at (insert survey'). And it is further ordered that the line above described be the center line of the said road, and that the said road be of the width of three rods. In witness whereof, the said commissioners have hereunto sub- scribed their names the first day of April, 1880. Signatures. No. 10. Oeder Dividing Town into Road Districts. See ante p. 82. The undersigned, commissioners of highways of the town of Pittstown, in the county of Rensselaer, having met and deliber- ated on the subject embraced in this order ; all of said commis- sioners being present, and having deliberated thereon (or all 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 follows, to wit : Road district number one, shall include all that part of said town, lying between, etc., and, etc. ; and all the inhabitants residing in said district, and li- able to work on highways, shall be and are hereby assigned! to work in said district number one. (If any out of said district be assigned to work therein insert.) And the fol- lowing inhabitants, residing out of said district are hereby as- signed and required to work therein, to wit : J. C, etc.. Dis- trict number two, etc., (proceed in like manner till all described.) In witness whereof, we have hereto subscribed our names this tenth day of July, 1890. Signatures. No. 11. Commissioners' Annual Account. See ante p. 85. The undersigned, commissioners of highways of the town of Auburn, in the country of Cayuga, hereby render to the 32 498 The Law of Highways. board of auditors of said town, their annual account for the year ending February 1st, 1890 : 1. The highway labor assessed in said town for the year end- ing on the said first day of February, was seven hundred and ten days, and the highway labor performed in the said town during the said year, was five hundred and eighty^ne daj's as appears by the accounts rendered us by the several overseers of high- ways 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 highways, to wit : Date. Prom whom received. On what account. Amount. They have also received from other sources under said stat- ute, etc. (Insert account of any other moneys received.') 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 specif y 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 improvements, be- yond what the labor to be assessed this year will accomplish, is by us estimated at f 250. Given under our hands, this tenth day of February, 1890. Signatures — Commissioners. No. 12. Statement and Estimate for Stjpeevisor. See ante p. 95. To the supervisor of the town of Watervliet, in the county of Albany : The commissioners of highways of said town do hereby re- port that the following improvements are necessary to be made on their roads and bridges in their said town, to wit : (Specify improvements.) That the probable expense of making such im- provements is by us estimated at $250. Given under our hands, &c. Appendix op Forms. 499 No. 13. Notice of Application foe Additional Appeopeiation. See ante p. 97. Notice is hereby given to the electors of the town of Johns- town, in the county of Fulton, that the commissioners of high- ways 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 bridge across the creek, near , (or to repair the bridge, &c., or to improve the road at, &c.) And that we the undersigned, commissioners of highways of said town, shall, at the next an- nual town meeting of said town, to be held at Johnstown 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 pui'pose aforesaid. Signed. Dated, &o. No. 14. Oedee Appointing Oveeseees. See ante p. 106. Cotjntt of Rensselaer, ss : We the undersigned, commissioners of highways of the town of Pittstown, in the county of Rensselaer, having met and delib- erated on the subject of this order, {where only two sign, add all the commissioners in said town having met and deliberated thereon, or all the commissioners, &c., having been duly noti- fied to attend said meeting of the commissioners, for the pur- pose of deliberating thereon,) do, by virtue of the power vested in us by the statute, hereby appoint the following named per- sons overseers of highways of and for the several road districts in said town, set opposite their respective names, to wit: District No. 1, Peter Kemper ; district No. 2, George R. Hodg- son. Each of said overseers to hold his said office for and dur- ing the term of one year from the 3d day of March, 1881. In witness whereof we have hereto placed our hands this 3d day of March, 1889. ' ~ ' Signed. 600 The Law of Highways. No. 15 Appointment of Ovbeseek in case of Vacancy. See ante p. 106. Town of Pittstown, ) County of Rensselaer, \ 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 be') of A. B. Now, therefore, by virtue of the power vested in us by the statute in such case made and provided, we, the undersigned, commission- ers of highways 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 deliberated, or all the commissioners, &c., having been duly notified to attend this meeting of the commissioners for the purpose of deliberating thereon,) do hereby, in order to fill said vacancy, appoint Asa Shedd, overseer of highways, 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, 1890. Signed. No. 16. Complaint to Commissioners against (^vbksbbe. See ante p. 106. To the Commissioners of highways of the town of Pittstown : The complaint of A. B., a resident of the town of Pittstown, respectfully showeth that C. D., the overseer of highways for road district number five, in said town, has neglected and refused to warn U. F. to worh on the highways, in said district, after having been required so to do by 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 offence. Dated, &c. A. B. Appendix of Foems. 501 No. 17. Security to Commissioners for Prosecuting Overseer. See ante p. 106. Whereas, J. Wesley Wilson has made complaint to the com- missioners of highways of the town of Brunswick, that Henry Baker, overseer of highways for road district number three, in said town, has neglected and refused to (insert matter complained ofd Now therefore, we, J. D. and W. H. of said town, do hereby undertake, pursuant to the statute in such case made and pro- vided, that we will well and truly indemnify and save harmless, the said commissioners of highways, against any costs which may be incurred in prosecuting for the penalty annexed to such refusal or neglect. Signed. Dated, &c. No. 18. Consent for Railroad to Cross Highwat. See ante p. 124. County op Rensselaer, ) Town of Pittstown, \ ss. : 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 that the usefulness of said high- way be not impaired. Given under our hands this tenth day of June, 1890. Signed. No. 19. Agreement to use Highway for Plank Road, &o. See ante p. 126. This agreement made this third day of November, 1889, be- tween A. B., supervisor of the town of Pittstown, county of Rensselaer, and C. D. and E. F., commissioners of highways of 602 The Law op Highways. said town, of the first part, and the Northern Turnpike Com- pany 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 there- on, have consented in writing to the construction of a turnpike by said party of the second part, on such highway, do for value 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, &c. Signed. No. 20. Complaint to Compel Deliveky oe Books, &o., to StrccEssoK. See ante p. 131. State op New Yoek, | ^^ . County of Rensselaer, ] 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 highways of the town of Pittstown in said county, and says : That the deponent was duly elected commissioner of highways of said town of Pitts- town, at an annual town meeting of such town, held on the sixth day of March, 1890 ; that he has taken and filed the oath pre- scribed by law, and has given 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 suc- cessor, all the records, books and papers in his possession or un- der his control, belonging or appertaining to the said office of commissioner of highways. And this deponent further alleges that the said C. D. has re- fused and neglected so to deliver such records, book and papers, or any part thereof, and that as this deponent is informed and believes, said C. D. has in his possession or under his control, the following records, books and papers appertaining to the said Appendix of Fokms. 503 office of commissioner of highways (insert description if known, if not say so'), and that he unjustly and unlawfully withholds the same from this deponent. A. B. Sworn to, &c. No. 21. Oedek Thebeupon Gbantbd. See ante p. 132. State op New York, County of Rensselaer, \ **' ' Complaint having been made to me the undersigned as fol- lows, to wit: (insert a copy of the complaint), and being satis- fied by the oath of the complainant (add "and other testimony offered " if any such was offered) that the said books and pa- pers (or either according to the fact) are withheld as aforesaid, 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 refusing, to show cause before me at my office in the city of Troy in said county, on the tenth day of May instant, at 10 o'clock in the forenoon, why he should not be compelled to deliver the said books and papers (or either as the case may be.) Signature. Dated, &c. No. 22. Affidavit of Delivery. See ante p. 132. State of New York, , „„ County of Rensselaer, C. D., of said county, being duly sworn, says, that he is the person mentioned and described as late commissioner of high- ways of the town of Pittstown, in said county, in a certain affidavit and complaint made by one A. B. before the Hon. C. R. Ingalls, Justice of the Supreme Court, on the tenth day of May, 1890, and that he has truly delivered over to his succes- sor in said office of commissioner of highways, all the books, records and papers in his custody or appertaining to his said office, within his knowledge. C. D. Sworn, &c. 604 The Law op Highways. No. 23. Waeeant to Commit the Peeson Withholding. See ante p. 132. The People of the State of New York, to the Sheriff of the county of Rensselaer : Complaint having been made to the undersigned, as follows, to wit : (^Insert a copy of the complaint.') Whereupon, pursuant to the provisions of the statute, being satisfied by the oath of the said complainant (add, and other testimony offered, if any such was offered), that the said books and papers (or either ac- cording to the fact) were withheld as aforesaid, the undersigned granted an order, directing the said C. D., the person so refus- ing, to show cause before the undersigned, &c. (as in the order), why he should not be compelled to deliver the said books and papers (or either, as the case may he), 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 circumstances, 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.* 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 Rensselaer ; 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. R. I., justice of the Supreme Court, at the city of Troy, this tenth day of July, 1890. Seal. Signature. No. 24. Search Wakeant eoe such Books oe Papees Withheld. See ante p. 132. The People of the State of New York, to the Sheriff of the County of Rensselaer, or to any Constable of any Town in said County : lAs in the form above to*] And the undersigned being required by the said complainant, A. B., to issue this warrant : Appendix of Forms. 505 Now, therefore, you are commanded, in the day time, to search C. D.'s house, situated (insert a particular 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, 1880. Signature and Seal. No. 25. Notice op Appointment op Oveesebr. See ante p. 135. To E. J. Weatherwax, Of the town of Pittstown : Sir — Take notice that at a meeting of the commissioners of Mghways of the town of Pjittstown, held at Tomhannock, on the third day of April, 1890, you were duly appointed by such commissioners, overseer of highways for road district No. 8, of said town, which district includes the following territory : (Insert Boundaries of District.') Yours, &o., CHARLES B. COATES, Dated, &o. Town clerk. No. 36. Notice op Acceptance by Overseer. See ante p. 136. To Charles B. Coates, Town clerk of the town of Pittstown : Take notice that I hereby accept the office of overseer of highways, for road district No. 8, of said town. Yours, &c., E. J. WEATHERWAX. Dated, &c. 506 The Law of Highways. No. 27. Assessment by Overseer for Scraper or Plow. See ante p. 141. Whereas the commissioners of highways of the town of EUi- cott, in the county of Chautauqua, on the 10th day of April, 1870, 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 sufficient iron {or steeV) shod scraper and a plow {or either separately'), for the use of my said road district, to be paid for by the moneys arising from com- mutations and fines within such district ; and whereas such moneys are insufficient for the purpose, by the amount of $8.50. Now, therefore, I, the said overseer, according to the form of the statute in such case made and provided, do hereby assess the deficiency of eight dollars and fifty cents aforesaid, upon the inhabitants of the said district, in the proportion they are re- spectively assessed on the assessment roll of said town ; which said assessment is as follows, viz. : Town Overseer's Names of inhabitants, • Assessment. Assessment. Abner Hazeltine $11 90 |1 19 Horace Allen 17 90 1 79 A. B., Overseer ofDist. No. 5. Dated April 15, 1890. No. 28. Overseer's List op Persons Liable to do Highway Labor. See ante p. 143. The undersigned, overseer of highways for road district No. 3, of the town of Pittstown, hereby certifies that the following is a correct list of all the inhabitants in said district liable to work on the highways : Asa Shedd, Kingsley Worthington,. Josiah Slocum, Byron Clark. MARTIN BAUCUS, Overseer^ Dated, &c. Appendix of Forms. 507 No 29. Oveesebr's Annual Account, See ante p. 145. To the Commissioners of Highways of the town of Pittstown, Rensselaer County : The undersigned, overseer of highways of road district No. 8, 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. 8, are as follows : No. of Names. days. John Jones 5 Job Frost 6 2. The names of all those who have actually worked on the highways, with the number of days they have worked, are as follows : No. of Names. days. John Jones 5 Job Frost 4i 3. The names of all those who have been fined, and the sums in which they have been fin6d, are as follows : Names- Sums. John Greer fl 50 John Ross 5 00 4. The names of those who have commuted are as follows : Names. Hours. Amount. George Ingraham . . . . , 10 $1 25 The manner in which the moneys, arising from fines and com- mutations, have been expended by me is as follows : Whole amount received from fines and commu- tation, as above stated $41 50 Expended for scraper, by order of commis- sioners , . • $23 00 Expended for repair of bridge over Muskrat Creek 13 50 36 50 Leaving balance in my hands of. ^5^00 508 The Law of Highways. 5. The list of all persons whose names I have returned 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, is as follows : (insert copy of list.') The list of all lands which I have returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned, is as follows : (insert copy of listJ) ALFRED SKINNER, Overseer of Highways, Dist. No. 8. Renssblabe County, ss : Alfred Skinner, overseer of highways for road District No. 8, of the town of Pittstown in said county, being duly sworn, says, that the foregoing account is, in all respects, true. ALFRED SKINNER. Subscribed and sworn to before me this 6th day of March, 1890. CHAS. BELL, Qom. of Sighways. No. 30. COMMISSIONEBS' LiST OF NON-KBSIDENT LANDS. See ante p. 150. The following is a list and statement of the contents of all lots, pieces or parcels of land within the town of Grafton, in the county of Rensselaer, owned by non-residents therein. Made this third day of April, 1880, by the commissioners of highways of said town. „ . , No. ot Value accord- No. of Boad Desonption of Lands. acres. ing to last days, dlst E. part, L. 14, T. 5, Range 12, A parcel of land bounded as fol- lows : (Insert boundaries minutely') 1,500 f 15,000 17 6 Signatures. No. 31. Commissioners' Assessment op Highway Laboe. See ante p. 154. The undersigned commissioners of highways of the town of Pittstown, in the county 6i Rensselaer, having met at Johnson- Appendix op Forms. 509 ville, 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 hav- ing deliberated thereon (or all the commissioners having been duly notified to be present at this said meeting, for the purpose of deliberating thereon), do hereby ascertain, estimate and assess such labor as follows : 1. The whole number of days' work assessed for the year is twelve hundred, being at least three times the number of taxable inhabitants in said town. 2. Every male inhabitant above the age of twenty-one years (excepting soldiers and sailors disabled in the late war, ministers of the gospel and priests of every denomination, paupers, idiots and lunatics), there being/owr hundred and fifty-three, is as- sessed one day ( or two days, ^c.) 3. The residue of such work being seven hundred and forty- seven days, is as follows, to wit : Names. No. of days Leonard J. Abbott 8 Troy & Boston R. R. Co 37 John Hunter 6 John Snyder 3 The lands in said town owned by non-residents are assessed as follows, to wit : No. of Val'n accord- No. of Boad Description of lands. acres. ing to last days. dist. assessment. E. part L. 14, T. 5, range 11 (or a parcel of land bounded as follows : Insert boundaries) 1,500 $15,000 17 6 In witness whereof, we have hereto set our hands this 1st day of April, 1880. Signatures. No. 33. Road Wabrant. See^a^e 157. To John Doe, Overseer of Highways in District No. 11, of the ''^own of Sohaghticoke, which begins at The undersigned. Commissioners of highways of said town, having, at a meeting held by them for that purpose, estimated and assessed the highway labor to be performed in said town. 510 The Law op Highways. as set forth in the annexed schedule, you will therefore cause the several persons whose names are hereunto annexed, to labor on the highways in your district the number of days set oppo- site their names, or commute therefor at twelve and half cents per hour ; two-thirds to be performed by the first day of June next, and the residue by the first day of July next. You are also required to cause all noxious weeds on the highway in your dis- trict to be cut down once before the first day of July, and again by the first day of September; and also to cause the loose stones ly- ing on the beaten track of the road, to be removed at least once in each month, from the 1st day of April to the 1st day of December. Should any name in your district be omitted, or new inhabitants move in, you are to annex their names, and to assess them in proportion to their real and personal estate. And whenever the labor in your ward or district has been worked out, com- muted for or returned to the supervisor, and the highways are obstructed by snow, or otherwise, and written notice has been given to you by any two or more inhabitants of the town liable, to the payment of highway tax, requesting the removal of such obstruction, it is and shall be your duty, as such overseer of the highways, and you are required to immediately call upon all persons liable to highway tax in your district, to assist in remov- ing such obstructions, and such labor so called for by you, shall be assessed upon those liable to perform the same, in proportion to their original assessments. Also, to deliver to the supervisor of said town, on or before the first day of October next, a list of all resident landholders residing in your district, who have not worked out their highway assessment or commuted for the same, and a list of all the lauds of non-residents, and of persons un- known, which are taxed on your list, on which the labor assess- ed by the commissioners, or added by you, according to law, has not been performed or commuted for, and the number of days unpaid for by each, charging for the same at the rate of one dol- lar and fifty cents per day, which list shall be accompanied by your affidavit, dul>^ certified, that you have given the notice re- quired by the 32d, 33d, and 34th sections of title 1, chapter 16, part 3, of the Revised Statutes, and that the labor for whicjt such residents and such land is returned, has not been performed or commuted. You are to make return to one of the commissioners of highways on the second Tuesday next preceding the annual town meeting in your town, within the year for which you are Appendix op Foems. 611 appointed, verified by your oath, containing — 1st. The names of all persons assessed to work on the highways in the district of which you are overseer. 2d. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3d. The names of all those who have been fined, and the sums in which they have been fined. 4th. The names of all those who have commuted, and the manner in which the moneys arising from fines and commutations have been ex- pended by you. 5th. A list of all persons whose names you have returned 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 you have returned to the supervisor for non-pay- ment of taxes, and the amount of tax on each tract of land so returned — according to the statute in such case made and pro- vided. And you are to pay over to said commissioners all the moneys remaining in your hands, arising from fines and com- mutations. The law imposes a penalty of ten dollars on the overseers for neglect or refusal to make such return, or to pay over said moneys, which fines the commissioners are bound to enforce in every case of default.- Given under our hands this 3d day of December, 1890. WILLARD S. GIBBONS, WILLIAM TIFFANY, N. B. SPALDING, Commissioners of Highways. y. Days Days Hours Amount JNames. assessed, ■worked, commuted, of flues. County op Rbnsselabk, ss : N. B. Spalding, overseer of highways of road district No. 11, being duly sworn, deposeth and saith, that the above account is true, according to the best of his knowledge and belief. N. B. SPALDING. Subscribed and sworn before me, this 4th day of January, 1881. Thomas Rbid, Justice of the Peace, 512 The Law of Highways. No. 33. OvEESEEEs' Assessment of Peksoks Omitted. See ante p. 157. The following named persons having been left out of the list of persons assessed to work on the highways in road dis- trict No. 3, in the town of Pittstown, in the county of Rens- selaer, (or having become inhabitants of road district No. 3, in the town of Pittstown, in the county of Rensselaer, since the list of assessments of highway labor for said district was made.) Now, therefore, I, Reuben Miller, overseer of highways of said district, according to the statute in such case made and provided, do hereby assess and rate the said persons in propor- tion to their real and personal estate, to work on the high- way, as others are rated by the commissioners on such list, subject to an appeal to the commissioners, which said assess- ment is as follows, viz. : George Brownell, four days. James Kinnear, three days. . In witness whereof I have hereto set my hand this 9th day of April, 1890. REUBEN MILLER, Overseer. Appeals to Commissionees from Assessment of Ovbe- sbees. To the Qommissioners of Highways of the town of Pittstown in the county of Rensselaer: The undersigned having been assessed by the overseer of road district No. 3, in said town, four days' labor on the high- way, 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 conceiving himself 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 Pittstown, June 10, 1890. Appendix of Foems. 513 No 34. Appeals by Non-besident. See ante p. 157. Town op Pittstown, ) Rensselaer County, \ ss : A. B., non-resident owner of lands in said town, considering himself Qor C. D., agent of A B., a non-resident owner of lands in said town, who considers 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 ly the commis- sioners'), doth hereby appeal from the assessment of said com- missioners, to the honorable Jeremiah Romeyn, county judge of Rensselaer county, that being the county in which said lands are situated. A. B. or A. B. by C. D., Agent Dated, &c. No 35. Commissioners' Consent to Work in Another District. See ante p. 162. Whereas, A. B., a resident of road district No. 7, in the town of Hoosic, in the county of Rensselaer, is assessed six day'S' labor in district No. 3, in said town, for lands situate therein^ therefore at his request 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. Signed.. Dated. No 36. Notice to Agent op Non-Resident. See ante p. 162. To C. D., Agent of A. B., a non-resident owner of lands in the town of Brunswick, in the county of Rensselaer : Take notice that A. B., a non-resident of the said town, is assessed four days's labor in road district No. 5, 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 day following. Yours, &c., J. D., Overseer. Dated, &c. „ 514 The Law of Highways. • Notice in Case of Non-Residents. See ante p. 162. Notice is hereby given, that the highway labor assessed on the following described parcels of land in the town of Lansing- burgh, county of Rensselaer, owned by non-residents, is required to be performed from the 5th to the 12th days of June next, in road district No. 2 in said town, on the highway leading from — (describe locality with reasonable accuracy.') Owners' names. Description of lands. Assessment. Jared Rust. ... N. pt., L. 10, 100 acres. 10 days, A. B., Overseer ofDist. No. 2. Dated, &c. No. 37. Overseer's Complaint foe, Refusal to Wokk, etc. See ante p. 168, 172. Seneca Countt, 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, 1890, he gave C. D., who resides in said district, and is assessed to work on the highways therein, notice to appear on tlie 19th day of June aforesaid, with a (state what kind of team or implements were required) 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 im- plement as was required, stating it; or when he so appeared, re- mained idle, did not work faithfully, or hindered others from working, or whatever the complaint is), and has not paid the com- mutation 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, 1890. j T. R., Justice of the Peace. Appendix of Fobms. 615 No. 38. Summons. See ante p. 172. Sekeoa County, ss. : To any constable of the town of Ovid, in said county : Whereas A. B., overseer of highways of road district No. 9, in said town, has made complaint on oath before me, a justice of peace of the said town, that C. D., a resident of said road dis- trict, 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 satisfac- tory excuse. You are, therefore, hereby commanded to summon the said C. D. personally to appear forthwith before me at my office in the said town, to show cause why he should not be fined accord- ing to law for such refusal (or neglect or misconducf). G. H., Justice of the Peace. Ovm, June 21, 1880. No. 38. Constable's Retukn on Summons. See ante p. 172. The within summons personally served on Richard Roe, this 22d day of June, 1890, by delivering to and leaving with the said Richard Roe personally a copy thereof, and I know the person so served to be Richard Roe, the person mentioned and described in the above summons. JOHN DOE, Constable. Or, I have served the within summons on Richard Roe, with- in named, by leaving a true copy thereof, this day, at his per- sonal abode. JOHN DOE, Constable. June 22, 1890. 516 The Law of Highways. No. 39. JtTDGMENT ThEREON. See ante p. 172. In the matter of the complaint of A. B.1 Overseer of Highways, vs. CD. The said C. 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 miseonduet, set forth in said complaint) and no sufficient cause having been shown by said 0. D., I do therefore impose upon the said C. D., a fine of three dollars for said offence, together with two dollars for the costs of the proceedings under the said complaint. J. B., Justice of the Peace. Dated, &c. No. 40. Waeeant to Levy Fine. See ante p. 172. Seneca County, 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. J), 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 eigh- teen cents, for the costs of the proceedings on said complaint : and bring the said sum of money before me without delay. G. H., Justice of the Peace. Ovid, June 23, 1890. Appendix op Forms. 617 No. 41. Ovbksebb's Return to Supervisor. See ante p. 172. To the Supervisor of the town of Halfmoon, county of Saratoga : The following is a list of all the resident land-holders resid- ing in district No. 5, in the town of Half moon, Saratoga county, who have not worked out their highway assessment, or com- muted for the same, with the number of days not worked or commuted for by each, at one dollar and fifty cents per day ; and also a list of all the lands of non-residents and of persons unknown, which were taxed on my list, by the commissioners of highways, or added by me according to law, on which the labor assessed by the commissioners has not been paid, or com- muted for, and the number of days' labor unpaid at one dollar and fifty cents per day : Owners' names. Descrlpt'n of Lands. Assessed Value. No. Days. Am't. John Reed, E. pt., L. 14, range 14, T. 9, 75 acres. $400 ' 3 14.50 NAHUM NEWCOMB, Overseer of Bist. No. 5, Affidavit to such List. Saratoga County, ««. ; Nahum Newcomb being duly sworn, says, that he is overseer of highways of road district No. 5, in the town of Halfmoon, in the county of Saratoga, and that he has given the notices re- quired by the thirty-second, thirty-third, and thirty-fourth sec- tions of title 1, chap. 16, of part first of the Revised Statutes, and that the labor for which such persons and lands are re- turned, has not been performed or commuted. N. N. Subscribed and sworn to before ) me this 7th day of Sept. 1890. f J. D., Justice of Peace. 518 The Law op Highways. No. 42. Application to Lay out Road. See ante p. 186. To the Commissioners of highways of the town of Olay, in the county of Onondaga : The undersigned, residents, of said town (or owning lands in said town), and liable to be assessed for highway labor therein, hereby apply to the said commissioners of highways to lay out a road in said town, commencing at the north-west corner of a lot of land in the possession of Abraham Rowan, and running, &c. (describing the proposed road'), which proposed road will pass through the inclosed, improved and cultivated lands of L. M., and M. O. Signed. No. 43. Notice of Application to Altbk ok Lay out Highway. See ante pp. 157, 197. Notice is hereby given that the subscribers, persons liable to be assessed for highway labor in the town of Wilton, in the county of Saratoga, have applied to the commissioners of high- ways of the said town, to lay out a highway in said town, begin* ing (insert a description of the proposed road), which said high- way is proposed to be laid through the improved lands of Daniel Coreal and John Ingerson (if necessary for identity, describe the particular lots), and that twelve reputable freeholders of the town will meet on the 30th day of June instant, at 10 o'clock, A. M., at the dwelling house of Daniel Coreal, to examine the ground through which the said highway is proposed to be laid out. Signed, &c. Dated, &c. Appendix of Fokms. 619 No. 44. Oedek fok Laying Out or Altering a Highway. See ante p. 187. At a meeting of the commissioners of highways of the town of Duanesburgh, in the county of Schenectady, at Doe's Cor- ners, in the said town, on the 23d day of July, 1890, all the commissioners having met and deliberated on the subject matter of this order, (or if but two of the commissioners met, say, all the commissioners 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 James Thornton, a resident in said town, and liable to be assessed to work on the highways therein for the laying out or alteration of the high- way hereafter to be described, and on the certificate of (twelve') reputable freeholders of said town, convened and duly sworn after due public notice, as required by the statute, certifying that such highway (or such alteration), is necessary and proper; and notice in writing, of at least three days, having been given in due form of law to S. M. and R. S., occupants of lands through which such highway is to run (or such alteration to be made), that the undersigned commissioners would meet at this time and place, to decide on the application aforesaid ; and we having heard all reasons pffered for or against laying out (or alteration of) such highway, it is ordered, determined and certified that a public highway shall be, and the same is hereby laid out pur- suant to said application, whereof a survey has been made and is as follows, to wit : beginning, &c. (as in the survey) and the line of said survey is to be the centre of said highway, which is to be three rods in width ; or, and the same is hereby so altered as to run from a point thirty feet south of the southeasterly corner of said J^ejfs chair shop, in a straight line ; south, 13 degrees east, till it strikes the present centre of the road, thence along the present line thirty rods, and thence continuing in a straight line sixty rods to the centre of the present road on the summit of the hill north of Shumla, the said line to be the centre of the road, which shall remain of the width of three 520 The Law of Highways. 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 discontinued. Dated, &c. Signed, &c. No. 45. Notice op Inspector to Toll-Gathekek. See ante Chap. XIX., sub. 8. To John Wbidman, TollrG-atherer of the Jonesville Turnpike Grate M.St Take notice, that a complaint in writing stating that the Jones- yille turnpike near the Esopus creek is out of repair, has been served upon me, accompanied by the fees provided by law, and you will attend to the repair thereof immediately. THOMAS HYDEMAN, Plank Road Inspeetor. Dated June 3, 1890. No. 46. Oedek to Thkow Open Toll-Gatb. See ante Chap. XIX., sub. 8. To John Wbidman, Toll-Q-atherer of Gate No. 3, of the Jonesville Turnpike : Take notice, that a complaint in writing, stating that the Jones- ville turnpike near the Esopus creek is out of repair, having been served on me, accompanied by the fees provided by law, and a notice of the same having been served on you more than three days previous hereto, and said portion of said road not having been repaired. I hereby order and direct that Gate No. 3 be thrown open, and remain so open until further order. THOMAS HYDEMAN, Inspector of Plank Roads. Dated June 8, 1890. Appendix op Fokms. 621 No. 47. Ceetipicate of Town CiiEEK. See ante p. 200. Whereas, a proper application has been made by one James Thornton, for the laying out, or alteration of (describing the road), and a demand for a jury therein has been made on me, and proof having been made of the service of a notice of said de- mand on A. B., a justice of the peace, on the commissioners of highways, and on each of the owners or occupants of land through which said new road, or alteration, is proposed to be laid, or made, as the law requires. Now, therefore, this is to certify that I did, on the 15th day of June, 1890, at the office of the town clerk of Duanesburgh, county of Schenectady, N. Y., in the presence of said justice (or of said commissioner), deposit in a box the names of all persons residents in said town, whose names are on the lists filed in said office, of those selected and returned as jurors, pursuant to article two, title four, chapter seven, part three, 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 did publicly in the presence of such justice, or comr missioner, draw therefrom the following names : THOMAS WILBURN, DENNIS FAHEY, OTTO GARDINER, WILLIAM MARSH, JOHN BRADY, CHARLES BROWN, MICHAEL McGUIRE, JAMES TROWBRIDGE, THOMAS PATTERSON, JOHN LINCOLN, PATRICK PHALEN, PATRICK SULLIVAN. And the said twelve reputable freeholders are hereby consti- tuted a jury to certify as to the necessity of the proposed new road (or alteration.) „ ^ SYLVANS ROBB, Town Cleric, ^o. Dated June 15, 1890. 522 The Law of Highways. No. 48. SXJMMONS. See ante p. 201. State of New Yoke, \ Town of Duanesbtjkgh, V County of Schenectady. ) To any constable of the county of Schenectady, greeting : You are hereby commanded to summon (naming the jurors) to appear at the school-house, near Wilson's Corners, in said town, on the 30th day of June, 1890, at 10 o'clock in the fore- noon, then and there to examine and report as to the necessity of (insert the change desired, or a description of the road asked for'), and do you notify each of said persons so summoned, that a neglect to so appear will subject him or them to a fine of five dollars, unless a sufficient excuse be established. WILLARD PARNELL, Justice. No. 49. Fkebholdeks, Cektificate to Lay out Road. County of Schenectady, Town of Duanesburgh. We the undersigned, being freeholders of the town of Duanes- burgh, county of Schenectady, N. Y., having been summoned as a jury as required by law, not interested in the lands through which the road hereinafter described, is proposed to be laid (altered'), nor of kin to the owners thereof, having appeared at the school-house near Wilbur's Corners, in said town, on the 30th day of June, 1890, at 10 A. M., were duly sworn by Willard Parnell, Justice of the Peace, to well and truly certify as to the necessity of a highway (mseri description). And having personally examined the route of such highway, and heard the reasons offered for or against such proposed route (or alteration), and which highway will pass through the im- proved(or enclosed or cultivated) lands of Humphrey Davies, do Appendix of Forms. 523 hereby certify that such highway (or alteration of a highway'), is necessary and proper. In witness whereof we have hereto subscribed our names this 10th day of July, 1890. Signatures. No. 50. Notice to Occupakts. See ante p. 204. To John Doe : Sir — Please to take notice that we, the undersigned, the com- missioners of highways of the town of Duanesburgh, in the county of Schenectady, shall meet at Jamesville, in the said town, on the 10th day of August, 1890, at 10 o'clock in the forenoon, to decide on the application made by .lames Thornton, to us, to lay out a highway, commencing at, &c., (here give the description as in the application'), and which will pass through your enclosed (or improved or cultivated) lands ; (twelve) freeholders having certified that it is proper and necessary to lay out said highway. Signatures. Dated, &c. No. 51. See ante p. 208. To the Troy ^ Boston B. B. Co. : Take notice, that the commissioners of highways of the town of Pittstown, in the county of Rensselaer, have duly laid out a highway, commencing at (insert description), and that said high- way crosses the railroad track of your said company five rods north of your depot at Johnsonville, 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 convenient 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, &c., Dated, &e. Signatures. 524 The Law of Highways. No. 63, Notice to Remove Fences. See ante p. 215. Whereas, the undersigned, commissioners of highways of the town of Wilton, in the county of Saratoga, have laid out a public highway, by an order dated November 25, 1890, and duly filed with the town clerk of said town, which said road passes through enclosed lands, owned (or occupied') by you ; and, whereas, our determination 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, within sixty days after service hereof. Yours, &c. Dated, &c. No. 53. Application to Discontini:e Old Road. See ante p. 226. To the Commissioners of Highways of the town of Volney, in the county of Oswego : The undersigned, residents of said town, and liable to be as- sessed for highway labor therein, do hereby apply to you, the said commissioner, to discontinue the old road in said town, be- ginning, &c. (insert general description'), on the ground that said road has become useless and unnecessary. Signatures. Dated, &c. No. 64. Consent os Owner to Lay Highway in Okchaed, &c. See ante p. 189. Whereas, a highway is proposed to be laid out by the com- missioners of highways of the town of Grafton, in the county of Rensselaer, on the application of William I. Baucus, commenc- Appendix of Forms. 625 ing at (insert description^, and which will run through my orchard ; therefore, I do hereby consent that such road be so lo- cated, opened, worked and used through my orchard. Witness my hand and seal this 13th day of June, 1890. A. B. No. 54— A. Notice of Discontinuance op Old Road. See ante p. To John Doe : Sir — Take notice, that Thomas Wilbur and Eugene Simpson have made application to discontinue (insert general description'} and that a jury of freeholders will be convened at the house of William Johnson, on the 10th day of July, 1880, at 10 A. M., then and there to certify as to the uselessness of said highway. Dated July 3d, 1890. Signatures. No. 55. PeEEHOLDEES' CEETrPICATB TO DiSCONTINTJE A RoAD. See ante p. 228. The subscribers, twelve disinterested freeholders of the town of Glen, in the county of Montgomery, having met at the Wil- son House, in the said town, in pursuance of a summons from the commissioners of highways of the said town, to examine and certify in regard to the propriety of discontinuing the high- way 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 unnecessary. In witness whereof, we have hereto set our hands this 1st day of August, 1890. Signatures. 626 The Law of Highways. No. 56. Notice of Meeting of Commissioners. See ante p. 226. To John Doe: Sir — Take notice, that Thomas Wilbur and Eugene Simpson having applied to have (insert description^ discontinued, and a proper notice of the convening of the jury to decide as to,the use- fulness of said road, having been served on all owners and occupants residing upon lands through or along which the said highway passes, six days prior to the convening of said jury, and said jury having certified that said highway is useless and unnecessary. Now, therefore, take notice, that the commissioners of high- ways of , will hold a meeting on the 1st day of August, 1880, at the Wilson House, in the town of Glen, to hear and determine such application. Signatures. July 20, 1890. No. 57. Order for Discontinuing a Road. See ante p. 228. At a meeting of the commissioners of highways of the town of Glen, in the county of Montgomery, at the Wilson House, in said town, on the 1st day of August, 1880, all the commissioners having met and deliberated on the subject of this order (or all the commissioners having been duly notified to attend the said meet- ing, for the purpose of deliberating on the subject of this order^, upon the application of A. and B. of said town, for the discon- tinuance 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 commissioners having caused a survey of said road to be made as follows, viz. : (here insert the survey or description.^ It is ordered 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 1st day of August, 1880. Signatures. Appendix op Fobms. . 627 No. 58. Agkbement of Owner aot) Commissioners as to Damages. See ante p., 234. Whereas, the commissioners of highways of the town of Pittstown, in the county of Rensselaer have, by an order dated the 10th day of January, 1880, 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, there- fore, the damages of the said John Clark, by reason of the lay- ing 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 hundred dollars. In witness whereof we, the said parties, have hereto set our hands this 12th day of January, 1890. Signatures. No. 59. Release op Damages by Owner. See ante p. 234. A highway having been laid out, on the day of the date here- of, by the commissioners of highways of the town of Rome, in the county of Oneida, on the application of John W. Tallmadge, through my improved lands, commencing at, &c., (insert the de- scription of the road as in the order). Now, know all 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 of the said highway. Witness my hand and seal the 1st day of December, 1890. HENRY PALMER ( l. s.) No. 60. Application to County Court to Appoint Commissioners TO Assess Damages. See ante p. 234. To the County Court of Rensselaer County: Whereas the commissioners of highways of the town of Pitts- town, in said county, by an order dated September 20th, 1890, 528 . The Law op Highways. have laid out a highway in said town, beginning, (insert descrip' tion as in the order.') Now, therefore, we the undersigned commissioners of high- ways of the said town, 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 case made and provided. Dated, &c. Signatures. No. 61. Notice op MpETiNa op Commissioxees to Assess Damages. See ante p. 235. To John Carroll : Sir — Take notice that the commissioners appointed by the county court by an order bearing date on the 25th day of January, 1890, to assess the damages occasioned by a highway laid out by the commissioners of highways of the town of Pitts- town, in the county of Rensselaer, beginning, (insert description of road), will meet for the purpose of making such assessment, at the house of Asa Shedd in said town, on the 13th day of February next. Signature. Dated, &c. No. 62. Oeder Appointing Commissioners to Assess. See ante p. 235. 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 10th. day of September, 1890. Present — Hon. W. Clute, County Judge. In the matter of the application of the Commissioners of Highways of the town of Watervliet. On reading and filing the application of E. G., 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 appoint- ment of commissioners to assess the damages occasioned there- by, it is ordered that F. G., H. J., and L. M., of said town, be Appendix op Forms. 629 and they are hereby appointed such commissioners, whose duty it shall be to take the oath of office prescribed by the constitu- tion, and to proceed on receiving at least six days' notice of the time and place, to meet the said highway commissioners and take a view of the premises, hear the parties and such -witnesses as may be offered 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 all damages which may be required to be assessed on the said highway, and shall deliver their said assessments to the said commissioners of highways. No. 63. Assessment by Commissionees. See^a^e 236. Whereas, the undersigned, Walker Gilbert, Daniel Gaylor and Ira Wood were appointed by an oi-der of the county court, of the county of Albany, made on the tenth day of September, 1890, on the application of E. G., H. B. and N. B. commissioners of highways of the town of Wilton, in said county, commissioners to assess the damages occasioned by the laying out of a high-- way in the said town, beginning (insert description as in the or' of March, 1890, before me, ) John Guy, Justice of the Peace. 586 The Law of Highways. No. 75. Notice by Repeeebs to the CoMMissioisfEES op Highways. See ante p. 254. To E. F., C. D. and J. G., Commissioners of Highwuys of the town of Pittstown, in the county of Rensselaer : Take notice, that we have been duly appointed referees to hear and determine an appeal made to A. B., county judge of the county of Rensselaer, by C. L., of the town of Pittstown, from your determination contained in your order, made on the 10th day of July, 1890, and filed and recorded in the office of the town clerk of said town, on the 13th day of July, 1890, refusing to lay out, &c. (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, &c. Referees. No. 76. Notice to OcotrpAKTs op Land. See ante p. 254. 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, 1890, at ten o'clock in the forenoon of that day, to hear and determine the appeal made by C. 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 Pittstown, made on the 3d day of April, 1890, and filed and recorded in the town clerk's office of the said town, on the 16th day of April, 1890, refusing to lay out, &c. (as in the appeal.') Signed, Dated, &c. Referees. Appendix op Forms. 537 No. 77. SUBPCENA FOE WlTKESS TO ATTEND AND TeSTITY UPON AN Appeal. See ante p. 257. Town of Ogden, ) Monroe County, | ®* ' 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 Monroe county, at the house of L. R., in the town of Ogden, county of Monroe, on the 3d of July, 1890, at 10 o'clock in the forenoon, to testify respectively in a matter of a certain appeal from the ■decision of the commissioners of highways of the town of Ogden to the said county court, and then and there to be heard on the part, and in behalf of E. F., appellant (or of the said commis- sioners, as the case may be.) Given under our hands this 20th day of June, 1890. A. B. j J. K. > Referees. S. M. ) No. 78. Oedbb op Referees Deciding an Appeal. See ante p. 258. Whereas, HoUoway Long, of the town of York, in the county of Livingston, on the 1st day of July, 1888, 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, 1889, in Qaying out, alter- ing, discontinuing, refusing to lay out, alter, discontinue'), a high- way in the said town, which highway is particularly described in the said appeal hereto annexed, (and whereas, Richard Bailey and John Smith, also appealed from the same determination of the said commissioners, which said appeals are also hereto an- nexed), and, whereas, after the expiration of sixty days after such determination had been filed in 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, 538 The Law of Highways. James Johnson of the town of Avon, Hiram Deniiison of the town of Lima, and James S. Wadsworth 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 ref- erees, to hear and determine all the appeals that had been brought in relation to the said determination of the said com- missioners, 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 roacT), specifying the 25th day of August, 1889, 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, 1889, and we having convened at the time and place specified 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 allega- tions of the parties, and do thereupon order, determine and ad- judge that the said determination 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 hy the referees add), and we do further order and determine that the said highway be laid out in accordance 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, 1889. Referees' Signatures. No. 7^. Atfidavit for Cbetiobaki. See ante p. 268. Rensselaek -Cottnty, ss : John Gay, being duly sworn, says that he is a resident of the town of Pittstown, in said county, and liable to be assessed for liighway labor therein ; that on the 3rd day of July 1889, G. Appendix of Fokms. 539 L. and D. S„ two of the commissioners of highways of the said town of Pittstown, on the application of E. C, made an order laying out a highway in said town, commencing, &c. (insert de- scription), which' said order was filed and recorded in the town clerk's office of said town, on the 6th day of July, 1890, and is in the words and figures folio wing to wit : (insert copy of order'), that the highway so laid out, passes through the improved and cultivated lands of this deponent, and of M. N., and O. P. And this deponent further alleges that the said road so laid outj as aforesaid, was laid out without the cei'tificate of twelve free- holders ; and that W. D., one of the alleged freeholders who cer- tified 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, without the intervention of G. D., one of the commissioners of highways of said town, and without any notice to him to attend the meetings of the commissioners for the pur- pose 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, &c. JOHN GAY. No. 80. Wkit of Ceetioraei. See ante p.. 270. The writ must he granted and served within four months after the filing of the decision of referees. Laws 1880, eh. 178, § 21 25. 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 3rd. day of June, 1890, to hear and determined the appeal of John McFarland and William McFarland, from the determination of the commission- ers of highways 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 cer- tain decision made by you on a certain appeal of John McFar- 540 The Law of Highways. land and William McFarland, from the determination and de- cision of the commissioners of highways of the town of Salem in the county of Washington, aforesaid, in refusing to lay out a road in said town, under and by virtue of the statutes made and provided, we command you, that the said appeal, together with the testimony given, and offered to be given, on the hear- ing thereof, with your decision thereon, with all things touching and concerning the same, by whatever names the parties there- to 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 farther, thereupon, cause to be done therein, what of right ought to be done. Witness, Charles R. Ingalls, one of the Justices of our Supreme Court ; at the Court-house in the city of Troy, this 10th day of January, 1891. J. THOMAS DAVIS, aerk. BANKER & RISING, Attys. (Indorsed.) On the application of Banker & Rising, coun- sel for the applicant, and on the affidavit of John Gay, dated the 3d day of July, 1890, I allow the within writ of certiorari to issue ; and let said affidavit be filed in the office of the clerk of Rensselaer county. C. R. INGALLS, Just. Sup. Court. No. 81. Retxjen to Writ of Certioeaei. See ante p. 271. Washington 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 de- livered unto us, A. B., E. D. and E. P., referees, appointed by the county judge of Washington county, on the 3d day of June, 1890, to hear and determine the appeal of John McFarland and William McFarland, from the determination of the commission- ers of highways of the town of Salem, in said county, in refus- Appendix op Forms. 541 ing to lay out a road in said town. We do hereby certify and return that on the 17th day of September, 1890, we were ap- pointed, by the county judge of Washington county, referee.s, to hear and determine the appeals of William McFarland and John McFarland, from the order and determination of the com- missioners of highways of the town of Salem, in refusing to lay out a highway in said town, which oi-der and determination were made on the 5th day of July, 1890, and filed and recorded in the town clerk's office of said town of Salem, on that day, and that the order appointing us is in the words following, to wit: {insert copy order appointing J) We do further certify, that the appeal of the said William McFarland and Johu McFar- land, and which was delivered to us by the said countj'^ judge, is in the words following: (insert copy of appeal, proceed, giving a detailed statement of every step taken, with copies of all orders^ papers, evidence, &c.) In testimony whereof, we have respectively, to these presents, affixed our seals and subscribed our names this 20th day of October, 1890. Signatures, [l. s.] No. 82. Commissioner's Order to Remoahe Encroachments. See ante p. 288. Whereas a highway was laid out in the town of Wilton, in the county of Saratoga, on the 10th day of July, 1890, by the commissioners of highways of the said town (orly E. Cr., O. D., and U. F., referees, §-c.), beginning (insert description as in the order, including a statement of the width of the road as it was originally intended to have been), which road is encroached upon by the fence of Reuben Conkrite, 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 be of the breadth originally intended. Dated, &c. Signatures. 642 The Law of Highways. No. 83. Notice to Remove Enckoaohmbnt. See ante p. 289. To Mr. Reuben Conkkxtb : Sir — Please to take notice that an order, of which the an nexed is a copy, has been duly made by the commissioners of highways of the town of Wilton, in the county of Saratoga, and that you are hereby required to remove the fence therein speci- fied, as encroaching upon the highway, within sixty days after service hereof. Dated, &c. Signatures. No. 84. Notice to Remove Fences. See ante p. 289. To Mr. John Doe : Whereas, the undersigned commissioners of highways of the town of Lima, in the county of Livingston, have laid out a public highway, by an order, dated July, 23, 1890, and duly filed with the town clerk of the said town, which said road passes through enclosed lands, owned {or occupied') by you : and whereas our determination in the matter of laying out such road has not appealed from — Now, therefore, please to take notice that you are required to remove your fences from within the bounds of said highway, within sixty days after service hereof. Yours, &c., F. W. COLE, Dated, &c.> Oommissioner of Highways, No. 85. Denial of Encroachment. See ante p. 290. To the Commissioners of Highways of the town ofPittstown, in the county of Rensselaer : Take notice, that I hereby deny that the fences mentioned in the order and notice heretofore served on me, and dated June 3d, 1890, encroach upon the highway mentioned in said order and notice. Yours, &c., Dated, &c. G. W. Appendix op Forms. 543 Application to Justice thereon. See ante p. 290. To T. R., Justice of the Peace of the town of Pittstown, in the county of Rensselaer : An order having, on the 3d day of June, 1890, been made by the Commissioners of highways of the 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, re- quiring him to remove, within sixty days according to said order, his fences therein mentioned as an encroachment upon the said highway, and 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, do hereby apply to you, T. R., one of the justices of the peace of said county of Rensse- laer, 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, 1890, at the dwelling-house of M. N., in said town, to inquire into the premises, according to the statute in such case made and provided. Dated, &c. Signature. Summons to Freeholders in Case oe Encroachment. See ante p. 294. Oneida County, ss. : To any constable in the town of Camden, in the said county : You are hereby commanded to summon twelve freeholders of said town to meet on the 5th day of July, 1890, in the dwelling house of E. J., in said town, to inquire into the matter of an alleged encroachment upon the highway in said town leading irom^here describe the place and the alleged encroachment, as in the order) and you are to give at least three days' notice to the commissioner of highways of said town and to C. D., of the time and place at which such freeholders are to meet. J. W., Dated, &c. Justice of the Peace. 544 The Law of Highways. No. 86. Oath of Jttey. See ante p. 295. You and each of you do solemnly swear, that you will well and truly inquire whether any encroachment has been made, and by whom, on the highway now in question. Oath to Witness. You do swear, that the evidence you shall give, in relation to the encroachment on the highway now in question, shall be the truth, the whole truth, and nothing but the truth. Cbktificate of Jury when Enceoaohmbnt is Fouhd. See ante p. 296. Oneida County, «s. : The undersigned, freeholders of the town of Camden, in said county, having met on the day of , the date hereof, at the dwelling house of E. J., in said town, pursuant to a summons from J. W., Esq., a justice of the peace of the said county, to enquire into the matter of an alleged encroachment on the high- way, in said town ; specified in an order of the commissioners of highways of said town, dated Jan. 3d, 1890, 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, 1890. Signatures. Cbktificate when no Enoeoaohment is Found. (J.S above to*, continuing'), that no encroachment has been made, as was alleged, And we also ascertain and certify the damages which John Jones, the present occupant, has sustained by these proceedings at ten dollars. Witness our hands this 13th day of July, 1890. Signatures. Appendix of Forms. 545 No. 87. Notice of Application to Supekvisors. See ante p. 324. Notice is hereby given that the undersigned, E. G., of the town of Pittstown, in the county of Rensselaer, will apply to the board of supervisors of said county, at their next annual meeting to be held at the court house in the city of Troy, in said county, on the 3d day of December, 1890, to cause to be levied, collected and paid to the treasurer of the said countjr of Rensselaer, such sum of money as may be necessary to con- struct and repair bridges in said county, and to prescribe upon what plan and in what manner the moneys so raised shall be expended. Dated, &c. G. G. No. 88. Petition of Officer op other Person on Seizure of Animals in Highway. See ante p. 399. Asa Shedd of the town of Pittstown, in the county of Rens-' selaer, makes complaint to Theodore C. Richmond, one of the justices of the peace in said town, and alleges that this com- plainant is overseer of road district, No. 3, in said town (or street commissioner of the village of ,4.) ; that on the 3d day of July, 1890, this complainant found running at large in the high- way leading from the northern turnpike to John Sherwood's, in said road district, one deep-red cow, blind in the left eye ; that thereupon this complainant, as such overseer, seized and took into his possession said cow, and keeps the same to be disposed of according to law. That said cow is the property of one William Brown, (or that your petitioner has no knowledge, information or belief, as to the name of the owner of said cow), and the same cannot be ascertained by him with reasonable diligence. Your petitioner therefore prays that a iinal order may 'be issued, directing the sale of the said cow so seized, and that the proceeds of said sale be applied as directed by the statute in such case made and provided. ASA SHEDD. 35 546 The Law of Highways. Rensselaer County, ss.: Asa Shedd, the above complainant, being sworn, says, that the facts set forth in the above complaint are true. ASA SHEDD. Sworn to before me this 5th day of July, 1890. Theodoeb C. Richmond. Justice of the Peace. No. 89. Petition op Owner or Occupant op Lands on which Animals seized were Trespassing. See ante p. 399. William Tillinghast of the town of Pittstown, in the county of Rensselaer, makes petition to Theodore C. Richmond, one of the justices of the peace of said town, and alleges that he is the owner (or occupant) of land in said town. That on the 6th day of July, 1890, he found trespassing on the premises so owned (or occupied) by him, one bay horse about the age of eight years, with a white star on his forehead. That said horse so trespassed on your petitioner's premises, by entering from the highway. That, by reason of said horse so trespassing on said land, your petitioner has suffered damage to the amount oifour dollars, by reason of said horse breaking down a portion of your petitioner's fence, trampling down the grain and other- wise destroying the same. That said horse is the property of one John Telle (or that the name of the owner of said horse is not known to your petitioner, and cannot be ascertained by him with reasonable diligence). Wherefore your petitioner prays for a final order, directing the sale of said horse, so seized, and that the proceeds of such sale be applied as directed by the statute in such case made and provided. WILLIAM TILLINGHAST. Rensselaer County, ss. : William Tillinghast, the above petitioner, being duly sworn, Appendix of Forms. 547 says, that the facts set forth in the above complaint are true. WILLIAM TILLINGHAST. Sworn to before me this 7th day of July, 1890. Daniel V. Deaw, Justice of the Peace. No. 90. Pbbcept. See ante p. 400. State op New York, '\ Town op Pittstown, \ ss. : County of Rensselaer. ) To John Telle (or to any person or persons having any in- terest in the animal hereinafter described.^) Whereas, William Tillinghast of the town, county, and State aforesaid, has presented a petition in writing, under oath, to me), setting forth that on the 6th day of July, 1880, he seized and took into his possession the following animal, viz. : One bay horse about the age of eight years, with a white star in the forehead, by him found at the time of such seizure, trespassing on premises owned (or occupied^ by him in said town, contrary to the statute in such case made and provided. You are hereby required to appear before me, the undersigned, one of the justices of the peace residing in the town wherein sucli seizure was made, on the 22d day of July, 1890, at ten o'clock in the forenoon, at my office, 25 Main street, in the village of Pittstown, in said town and county aforesaid, and show cause why the prayer of the said petition should not be granted. DANIEL V. DRAW, Dated July 7th, 1890. Justice. No. 91. Proof of Service of Precept by Constable. See ante p. 401. Rensselaer County, ss. : I hereby certify, that on the 12th day of July, 1890, I served 648 The Law of Highways. the within precept on John Telle, the person named therein, by delivering to and leaving with him personally a true copy thereof ; or that I could not with reasonable diligence, find Johu Telle within this county, and served the within precept, by leaving a copy of the same, certified by me, at the last place of residence of the said John Telle, in this county, with a person of suitable age and discretion ; or that I could not with reasonable diligence find said John Telle within this county, nor could I find any person at his last place of resi- dence of suitable age or discretion on whom to serve the within precept, and I served the same by posting it on, the outer door of said residence, and also by depositing another copy there of in the post office, at Pittstown, that being the nearest post office inclosed in a sealed post-paid wrapper, directed to the defendant. WILLIAM DAWES. Conatalle. No. 93. Waebant fok Sale op Animals. See ante p. 402. Rensselaeb, County, ss.: To any Constable in the town of Pittstown, in said county : You are hereby commanded to sell at public auction, for the best price you can obtain therefor, one red cow, blind in the left eye, heretofore seized and taken into possession by Asa Shedd, overseer of highways of road district No. 3, of said town, and now in his possession, and make return thereof to me, at my office in said town, on the fifth day of August, 1890. Given under my hand this 20th day of July, 1890. THEODORE C. RICHMOND. Justice of the Peace. Appendix of Forms. 649 No. 93. Constable's Return of Sale. See ante p. 402. Rensselaer County, ss. : To Theodore C. Richmond, one of the Justices of the Peace, of the town of Pittstown, in said county : I, William Gray, one of the constables of said town, and to ■whom was delivered a certain warrant, issued by you, and directed to any constable of the said town of Pittstown, com- manding him to sell, &c. (as in the warrant'), do hereby certify and return, that by virtue of said warrant I did, on the 28th day of July, 1890, having given at least five days public notice of the time and place of such sale, sell at public auction in said town, the red cow mentioned and described in said warrant, to John Doe, for the sum of fifty-nine dollars, he being the highest bidder, and that being the highest price bid therefor. WILLIAM GRAY, Dated. &c. Constable. No. 94. Application for a Private Road. See ante p. 420. To the Qommissioners of Highways of the town 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, A. B., &c. (insert description, specifying its width and location, courses and dis- tances), that said road runs through the lands of Henry Barton and John Jones. Dated, &c. A. B. 550 The Law of Highways. No. 95. Notice to Owner or Occxjpant. See ante p. 421. To Lemon Grippen : Please take notice that on the 20th day of July, 1890, at 10 o'clock in the forenoon, at the house of James Forbes, in Wilton, a jury will 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 reason of opening the same. Signatures, Dated &c. Commissioners. No. 97. Cbktifioatb op Jury, tjpon Application for a Private Road. See ante p. 422. We, the undersigned, being disinterested freeholders of the town of Green, in the county of Erie, having met on the 23d day of May, in the year 1890, at the residence of Anson Boice, in said town, having been duly sworn, well and truly to exam- ine and certify 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 proposed 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 application, and we do assess the damages as follows : to John Hall, $100. In witness whereof, we have hereto subscribed our names, this 23d day of May, 1890. P. W., S. T., &c. Appendix of Fokms. 551 No. 97. Okdek fok Laying Out a Pkivate Road. See ante p. 422. 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, 1890, all the said commissioners having met and deliberated on the subject of this order(o?* if hut two of the commissioners met, say, all the said commissioners having been duly notified to attend the said meeting, for the purpose of deliberating on the subject of this order), upon the application of A. B., for the laying out of the private road hereafter described, and on the certifi- cate of twelve reputable freeholders of said town, convened and duly sworn, after due notice to the owner (or occupanf) of the lands through which said road is to pass, as required by the statute, certifying that such road was necessary : It is there- fore ordered and determined by the said commissioners, that a private road be laid out for the use of the said A. B., pursu- ant to his application, the courses and distances whereof, according to a survey thereof which the said commissioners have caused to be made, are as follows : (insert the survey.') And it is further ordered, that the line above described, shall be the centre 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, 1890. A. B.,) C. D., y Commissioners, E.F.,) No. 98. Additional Assessment by Oveeseee. See ante p. 159. Whereas I, Asa Shedd, overseer of road district No. 2, in the town of Pittstown, and county of Rensselaer, do not deem the labor assessed on the inhabitants of said road district by the commissioners of said town of Pittstown, for the year 1890. sufficient to keep the roads in said district in repair. 552 The Law op Highways. Therefore, I do hereby further assess the following names persons — actual residents in said district — the amount of labor set opposite their respective names being in the same propor- tion as near as may be, and not to exceed one-third of the num- ber of days assessed in the same year by the said commissioners on the inhabitants of said district : Names. Day Names Days James Holt 6 John Jones 4 Witness my hand this 5th day of June, 1890. ASA SHEDD, Overseer. INDEX. ABANDONMENT, of road, 230 description of road abandoned, 230 ABATEMENT. of action against commissioner, 121 of obstruction in highway, 303 who may abate, 303 of tax by planting trees, 166 for removing fence, 167 for watering trough, 167 for street lamp, 167 ACCEPTANCE. of dedication of highway by public, 62 ACTIONS. by and against commissioners, 117 against successor, 120 title of action, 121 abatement of action, 121 appointment of successor, 122 on securities for penalties, 122 on note for funds loaned, 123 on bonds of indemnity, 123 judgment, how collected, 123 for special damages for injury on highway, 307 by or against plank road corporations, 485 proof of incorporatior., 486 within what time action to be commenced, 488 against stockholders, 487 distribution of money recovered, 489 ADDITIONAL. assessment, 159 ALTEEATION. of roads by commissioner, 62, 222 application for, 222 jury necessary, 223 order to be posted, 223 disagreement of commissioners as to, 224 papers, where filed, 224 damages and appeals, 224 ANIMALS. when wild or dangerous, how driven in highway, 287 554 Index. ANNUAL. return of overseer, 172 statemeut of commissioners, 85 APPEAL. by non-resident, 157 judge must decide within twenty days, 158 from commissioners' order laying out, 249 appointment of referee, 249 wlio may appeal, 250 to what judge, 251 time to appeal, 251 form of appeal, 251 notice to commissioners of appeal, 252 appointment of referee, 253 order to be filed, 254 notice to referee, 254 from decision of commissioners as to laying out load, effect of, 266 when it will not lie, 267 from proceedings as to encroachment by fence, 296 judgment on, 297 in proceedings as to stray, 404 from order laying out private road, 424 from decision changing location of toll gate, 467 hearing on appeal, 467 judgment and costs, 467 from decision of commissioners to take land for plank road company, 481 APPOINTMENT. of overseers, 134 ASSESSMENT. how enforced, 160 of highway labor, 148 commissioners to meet to assess, 148 who liable to, 148 non-residents, 149, 150 how to proceed in assessing, 152 of corporations, 158 in villages, 155 land tax to be separate from personal, 155 for labor on plank road, 156 where assessors have omitted to assess, 156 copy of assessment list to be filed, 157 reassessment of highway labor in case of neglect, 174 tenant to deduct from rent, 158 grading to be allowed on, 159 error in, how corrected, 159 additional assessment, 159 labor for removing snow, 159 of damages in laying out road, 233 remedy of persons aggrieved thereby, 240 Index. 565 bicycles. subject to law of the road, 388 BOXD. commissioners to give, 61 BOOKS. of commissioners to be delivered to successors, 131 delivery how compelled, 132 BOUNDARIES. by highways, 34 by rivers, 36 BRIDGE. liability of commissioners to repair, 79, 316 what bridges they are to repair, 317 when mandamus will not issue to compel them to repair, 318 liability of towns in regard to, 319 overseers have no duty as to, 139 commissioner may construct new, 319 notice on, as to fast driving, 319 penalty, 320 injuries to, 321 dedication of, 55 how money provided for repairs to, 320 when built or repaired at expense of county, 322 between adjoining towns, petition of freeholders to build or repair, 326. 329 proceedings on reference, 330 how commissioners compelled to join, 330 locating bridge, 3"0 report to auditors, 331 right of appeal, 331 costs, 331 proceedings where individuals have repaired bridge, 32^ erection and repair of, 311 power of supervisors in regard to, 312 toll, 312 where bridge destroyed, 313, 324 expense of construction, 313 drawbridges, 314 where commissioners refuse to repair. 327 how rebuilt where damaged or destroyed, 108. bridges over canals, 345 how money raised for repairs of, 95 BRIDGE COMPANY. when it ceases to be a body corporate, 343 annual reports, 344 private bridges, 344 subject to visitation, 344 report when to be made, 844 how incorporated, 337 liability of stockholders, 338 656 Index. BRIDGE COMPANY (Continued.) amount to be paid, 339 copy of articles to be evidence, 339 election of directors, 339 application for leave to erect bridge, 340 assent of board to be recorded, 341 where bridge built over streams navigable by rafts, 34i penalty for delaying rafts, 342 how bridge constructed, 342 exemptions from toll, 342 call on stockholders, 343 transfer of stock, 343 taxation, 343 See Toll Bridge BUILDING. load not to be laid out through, 198 CATTLE. in highways, 397 See Steats CATTLE GUARDS. at crossing, 369 not necessary at farm crossing, 371 remedy for failure to erect, 371 CEMETERY. road not to be laid out through, 196 CERTIORARI. of proceedings for damages in laying out, 247 of proceedings of referee, 2 68 who may have, 269 application for, 269 allowance of, 270 writ and its form, 270 effect of, 270 when superseded, 271 return to, 271 proceeding to compel return, 271 costs, 271 CHANGE OF SYSTEM. of working highways, 181 return to original system, 183 CITIES. and villages, liability of, 76 COAL HOLE. when an obstruction, 284 Index. 557 commissioners of highways. election of, 58 oath of, 58 penalty for refusing to serve, 59 number and term of oflBce, 59 vacancy in office of how filled, 60 authorized to administer oath, 60 number, how changed, 60 appointment to fill vacancy, 60 to give bond, 61 when to meet, 62 resignation, 62 general powers and duties, 62 to repair roads, 62, 63, 65, 68 to repair bridges, 68 to alter roads, 62, 65 to cause enter them of record, etc., 63, 66 to divide town into districts, 63, 82 to assign labor, 63 to require overseers to work, 64 lack of funds, 70 liability for not repairing, 70 liability of towns for injuries, 72-76 ch. 700, laws 1881, 73 liabilities of cities and villages, 76 for injuries by defective highway, 76 duty as lo change of grade, 79 duty as to repair of bridges, 81 expenditure of state money by, 81 term of office of, 85 annual statement of, 85 authority to borrow money, 85 to act as inspectors, 88 fees of, 89 to lay out and discontinue roads, 89 when two may act, 92 acts may be impeached, 93 to account to town auditor, 94 may alter a state road, 103 to rebuild road or bridge where damaged or destroyed, 103 to build milestones, 107 to build guideposts, 107 to act as fence viewers, 108 to appoint overseers, 105 and prosecute them, 106 to fill vacancies, 106 act as water commissioners, 115 to lay water pipes in highway, 117 duty as to fire in forest, 117 majority may act, 117 actions by and against, 117 may consent to use of highway by railroad company, 124 558 Index. COMMISSIONERS OF HIGHWAYS (Continued.) may agree with plank road or turnpike company for use of highway, 125 mandamus against, 12*7 to deliver books to successors, 131 delivery, how compelled, 132 fees of, 132, 211, 481 to assess labor on highway, 148 not bound to provide channel for drainage of surface water, 177 to lay out highway, 185 in counties of 3000,000 acres of unoccupied land, 196 must lay out liighway as described, 204 duty, of as to highway in two towns, 212 to lay out between towns, 211 to carry out decision of judge, 212 judgment may confirm report or send it back, 211 special commissioners to lay out road, 219 supervisors may appoint, 219 disagreement respecting alteration of roads, 224 vacancy in office of, where appointed to lay out road, 240 appeal from order of laying out highway, 251 to open road on order of referee, 263 to carry out decision of referees on appeal, 265 liability of, as to bridge, 316 what bridges they are to repair, 317 when mandamus will not be granted to compel them to repair, 318 may construct new bridge, 319 to make joint contract where bridge is between adjoining towns. 327 where they refuse to repair, 327 judgment against, a charge on the town, 328 where in adjoining towns how compelled to join in building bridge, 330 report to auditors, 331 right of appeal, 331 costs, 331 to repair toll bridge, 335 expense of repair how collected, 335 must have permission to lay out railroad in street, 349 right of entry, 349 crossing raihoad track, 350 action of in regard to damages occasioned by railroad in street, 367 to lay out turnpike, 442 to determine widtli, 443 agreement with plank road company must be filed, 456 to direct labor on plank road, 456 duty as to labor on plank roads, 457 may throw open gate of, out of repair, 477 to take land for plank road company, 481 fees of, 481 appeal from decision, 481 Index. 659 COMMUTTrnG. for labor, 163 COMPElSrSATIOjSr. to owner of fee for land taken, 351 CONSENT. of owner, when necessary on laying out highway, 189. CONSOLIDATION. of road districts, 87 COllPOKATIONS. assessment of labor on, 153 may commute, 164 notice to work, 167 penalties against, how collected, 172 CROSSINGS. railroad company to give signals at, 372 COSTS. in assessment of damages to be paid by town, 240, 245 in writ of certiorari, 271 on appeal from decision as to change of location of toll gate, 467 on appeals from decision in regard to bridge, 331 DAMAGES. and appeal on alteration of road, 224 DAMAGES ON LAYING OUT ROAD, assessment of, 233 by agreement, 234 how to be assessed, 234 what damages allowed, 236 to whom allowed, 237 contingent damages, 237 deductions for old road, 238 description of route, 238 vested rights, 239 repayment, 239 award, 240 through uninclosed land, 240 to be audited by supervisors, 246 how collected, 247 DEDICATION. highways by, 44 definition and nature, 44 who may make, 45 how proved, 46 how presumption of, rebutted, 50 how accepted by public, 52 of bridges, 55 effect of dedication, 56 560 Index. description. of road as laid out, 204 DISCONTINUING HIGHWAY, consent, 90 who may apply, 91 "freeholders" 93 application for, 225 notice, 226 to summon jury, 226 jm'y to be sworn, 227 survey necessary, 228 order to be posted, 228 what roads may be discontinued, 229 where papers filed, 229 by lion user, 229 of road, effect of, 231 DISTRICT. may consist of contiguous tracts, 197 DIVISION. lines, highways along, 215 DRAWBRIDGES. 314 DRAWING JURY. for laying out highway, 200 ELECTION. of commissioners, 58 ELEVATED RAILROADS. 354 law in relation to tunnels does not apply to, J ENCROACHMENT. by fences, 288, 301 ERECTION. of bridge, 311 ERRORS. in assessment, how corrected, 159 EXEMPTION. from tolls, 471 FALLEN TREES. to be removed, 297 PEES. of commissioners, 132, 211 for jurors in exempt towns, 207 of commissioners to lay out road between towns, 211 of jury to lay out highway, 202 of town clerk for drawing jury, 246 of referees on appeal, 266 Index. 661 FENCE. abatement of tax for removing, 167 removal of, 215 encroachment by, 288, 301 service of notice, 290 penalty for not removing, 290 proceedings, 290 how width of road to be ascertained, 201 proof of laying out, 292 where highway is discontinued, 292 how penalty collected, 292 plea of title, 292 where encroachment denied, 292 proceedings on trial, 294 right of appeal, 296 FENCE VIEWERS. commissioners to act as, 108 lands lying open, 109 commissioners to act as, 110 how chosen, 110 refusal to build, 110 removal of fence. 111 fence destroyed by floods. 111 witnesses, 112 trespass through line fence, 112 suflBciency of fence, 112 strays, 113 damages to floating timber, US injury to sheep by dogs, 114 FILING. papers, 221 as to alteration of iroad, 224 FIRE IN FOREST. duty of commissioner, 117 majority may act, 117 FIXTURES. road not to be laid out through, 19S FREEHOLDERS. oath of in laying out highway, 198 certificate of, 198 FOOT PASSENGERS, rights of, 391 GARDEN. road not to be laid out through, 193 GATE. not allowed to swing on highway, 299 36 6t2 Index. GATES. GRADE. See Toll Gates duty of commissioners in regard to, 79 GRADING ROADS. allowance for labor in, 456 GRADING. to allowed on road tax, 456 GRAVEL. turnpike may be relaid with, 459 GRAVEYARD. road not to be laid out through, 196 GUIDE POSTS. overseers to erect, 140 on turnpike, 459 commissioners to build, 107 HIGHWAYS. boundaries by, 34 by dsdication, 44 dedication of, 45 how dedication of accepted by public, 52 how laid out through unimproved lands, S6 damages, how assessed, 87 consolidatio'h of road districts, 87 non-resident tax, 102 where road or bridge is damaged or destroyed, 103 tax, abatement of, 167 in two towns, 211 commissioners to carry out directions of judge, 212 road on line of two towns, 212 how divided into districts, 212 effect of allotment, 212 former roads, 213 width of, 214 along division lines, 215 must be opened or worked within six years, 216 what roads are public, 218 when turnpike road becomes, 218 alteration of, 222 application for, 222 jury necessary, 223 discontinuance of, 225 application, 225 where impassable, 393 when used by plankroad company, 453 Index. 563 HORSE RAILROADS, in streets, 356 easement is not exclusive, 359 right of public to travel with wagons, etc., upon, 371 law of the road does not apply to, 387 HOURS. ICE. for teams or substitutes to work, 167 upon walk, see Snow. IXCORPORATION. of bridge company, 337 INDICTMEXT. for obstruction, 305 of commissioners for neglect to repair, 806 of toll bridge company for failure to repair, 336 will lie against overseers for wilful neglect to repair, 140 INJURIES. to bridge, 320 to toll bridge, how punished, 336 to road, milestone, etc., 477, 478 INSPECTORS. of plank roads, commissioners to act as, 88 fees of, 89 of plank road or turnpike, 461 compensation of, 464 when appointed in other cases, 464 JUDGMEXT. against commissioner how collected, 123 against commissioners a charge upon the town, 328 JURY. demand for by owner of lands, 199 drawing of, 200 summoning, 201 on discontinuance of highway, 227 not to be paid, 228 town clerk's fee for drawing, 246 to lay out highway — ^number, 201 fees of, 202, 207 to examine route, 203 ' notice to occupants, 204 564 Index, labor on highway. assessment of, 148 credit to persons living on private road, 155 to be assigned by commissioner, 63 notice to work, 161 commuting for, 163 allowance for team, etc., 167 non-resident, how enforced, 170 rights and liabilities of officers in repairing, 174 change of system of, 181 return to original system, 183 LABOR ON PLANK ROAD, 456 how assessed, 457 person assessed may commute, 457 LACK OF FUNDS. by commissioner, 70 LAMP. in street, abatement of tax for erecting, 167 LAW OF THE ROAD, 384 centre of the road, 385 centre in winter, 386 seasonably turn, 386 law does not apply to street cars, 387 travellers on horseback, 388 ambulance, 388 bicycles and tricycles, 388 caiTiages passing in same direction, 389 stopping by wayside, 390 road worthiness, 391 travellers on foot, 391 running horses prohibited, 394 unlawful to leave horses untied, 395 owner liable for acts of driver, 395 steam vehicle, 395 JJLTING OUT HIGHWAY. 89 consent, 90 who may apply, 91 may be done without application, 91 through buildings, fixtures, etc., 91 acts of commissioners may be impeached, 93 application, 186 two commissioners may act, 186 <;: notice of application, 187 survey, 188 . order to be posted, 189 , consent of owner when necessary, 189 not to be laid through orchard, 192 garden, 193 Index. 665 LAYING OUT HIGHWAY {Continued.) building, 193 through fixtures, 193 yard or inclosure, 194 graveyard, 196 cemetery, 196 vineyards, 196 oath of freeholders, 197 notice of application, 199 demand for jury by owner of land, 199 drawing of jury, 200 summoning jury, 201 fees of jury, 202, 207 in exempt town, 206 across railroad tracks, 208 between different towns or counties, 210 commissioners to be appointed, 210 damages on, 233 how assessed, 234 LISTS. of persons assessed to labor to be filed, 157 copy to be given overseers, 157 names omitted to be added, 157 MANDAMUS. against commissioners, 127 MATERIAL. on highway, use of, by o£Scers, 175 MEETING OF. commissioners when held, 62 milestones to be placed by commissioners, 107 overseers to erect, 140 on turnpike, 459 MONEY. lack of, by commissioner when an excuse, 70 authority of commissioner to borrow, 85 MONEY. how raised for repairs of roads and bridges, 95 further appropriation, 97 for stone crusher, 98 supervisors authorized to borrow, 99 meeting to determine amount, 100 how provided for repairs to bridge, 320 when raised in county, 328 notice of application, 323 overseer to pay over, 173 566 Index. NATIONAL GUAKD. has free passage on toll bridge, 336 penalty for obstructing, 336 penalty for hindering at toll gate, 476 how collected, 476 when exempt from tolls, 472 NEW YORK CITY. railroads in, 363 NON-RESIDENT. highway tax, 102 assessment of lands of, 149 hovr assessed, 150 how to proceed in assessing, 152 appeal by, 157 labor, proceedings to collect, 170 NOTICE. on bridge as to fast driving, 319 penalty for, 320 on toll bridge as to fast driving, 337 NOTICE TO WORK. on highway, 161 to agent, 162 to corporations, 162 NOTICE OF DISCONTINUANCE, of highway, 226 of proceedings of referee on appeal, 254 service of notice, 254 to occupants, 255 NOXIOUS WEEDS. to be destroyed, 302 NUMBER. of commissioners, 69 how changed, 60 OATH. of commissioners, 58 commissioner authorized to administer, 60 of freeholders in laying out highway, 197 OBSTRUCTION. at common law, 273 what are allowed, 275 Index. 667 OBSTRUCTION (Continued.) telegraph poles, when, 276 what not allowable, 280 m highway — overseer to remove with orders, laS remedy by indictment, 305 to highway, penalty for, 300 of navigable river, 287 OKCHAEDS. how turnpikes laid through, 445 road not to be laid out through, 192 ORDER. on laying out to be posted, 189 appointing overseer to be filed, 135 OVERSEERS. appointed by commissioners, 105 may be prosecuted by commissioners, 105 appointment and qualification, 134 must be an elector, 134 vacancy in office how filled, 134 manner of appointing, 135 order to be filed, 135 notice of appointment, 135 notice of acceptance not necessary, 135 penalty for refusing to serve, 136 general duties of, 136 removing stones, 137 are subordinate to commissioners, 137 to remove obstructions without orders, 138 duty in repairing roads, 138 have no duty as to bridges, 139 not bound to repair without funds, 139 to erect guide-posts and mile boards, 140 to procure scraper and plough, 140 to seize strays, 141 must file petition, 141 proceedings thereunder, 142 must furnish list of inhabitants, 142 penalties for overseer neglecting duty, 143 to account annually, 145 compensation, 145 to pay over moneys, 146 penalty for neglecting to account, 146 compensation for overwork, 147 to give notice to work, 161 annual return of, 172 to pay over moneys, 173 neglect of, to account, 173 568 Index. OVERSEERS (Continued.) may not cut down shade trees, 174 use of material taken from grade, 175 OWNER OF FEE. compensation to, 351 remedy of, 363 PENALTY. on commissioner refusing to serve, 59 on overseers, 143 how recovered, 145 other penalties, 145 to account annually, 145 on overseer neglecting to account, 146 for not working, how collected, 168 proceedings thereon, 169 to be set off, 170 excuses, 170 for refusal by railroad to take road across tracks, 209 for cutting down trees, 298 against corporations how collected, 172 for obstructing highway, 300 treble damages, 800 on what highways, 301 for injuring road, or its belongings, 477 PLANK ROAD. assessment for labor on, 156 may lay rails, 359 PLANK ROAD AND TURNPIKES, 427. how incorporated, 427 what defects shall not invalidate, 428 preliminary subscription, 428 subscription must be absolute, 429 stockholders may be directors, 429 articles of association when to be filed, 430 proof of incorporation, 4i50 want of legal organization not to work forfeiture, 430 what defects shall not invalidate organization, 427, 428, 430 preliminary subscription, 428 subscription must be absolute, 429 stockholders may be directors, 429 articles of association to be filed, 430 proof of incorporation, 4.30 liability of stockholder, 431 debts and liabilities, 431 extension of corporate existence, 431 Index. 569 PLANK ROADS AND TURNPIKES (Continued.) statement where road is abandoned, 432 annual statement, 438 evidence of existence, 430 explanatory act, 433 management of company, 434 board of directors, 435 number may be reduced, 435 stockholders to bo directors, 435 annual elections, 435 proceeding if not held, 435 duty of presiding oflScer, 436 quorum, 436 vacancies, 436 duties and powers of directors, 436 calls on stock, 437 shares transferable, 437 annual report, 438 office of company to be located, 438 list of stockholders to be recorded, 438 treasurer to prepare annual statement, 439 sale of franchise, 440 sale to towns, 440 application to supervisors for leave to construct road, 440 special meetings of supervisors, 441 owners of land may be heard, 441 assent of supervisors, 441 commissioners to be appointed to lay out turnpike, 442 to determine width, 443 how lands procured for, 443 survey to be made, 443 where highways are used, 444 iron rails on, 444 where laid through orchards, &c., 445 roadway of turnpike, 445 company may take possession, 446 town may buy back land, 446 construction and repair of, 458 width of road, 458 where land cannot be purchased, 447 case to be submitted to jury, 447 in case of married women, infants, etc., 448 duty of judge, 448 jurors to be drawn, 449 jurors how summoned, 449 penalty for neglect, 449 subpoenaing witnesses, 449 notice to owners of land, 450 duty of jury, 450 , duty of judge, 450 damages, 451 proof of notice, 451 5T0 Index. PLANK ROADS AND TVRTifPlK^S.— (Continued.) jury' to make certificate, 451 new trial may be applied for, 452 money when to be paid, 452 provisions in case of non-resident, 452 wlien money may be deposited, 453 provisions in case of using bigliway, 453 highway labor on, to be directed by commissioners, 456 labor on, how assessed, 457 person assessed may commute, 457 duty of commissioners in regard to, 457 power of directors, 457 when old road is taljeu, 457 ■width of turnpil£e road, 458 milestone on, 459 directors not to be contractors, 459 road may be relaid with gravel, 460 erection of gates, 465 how located, 465 how location changed, 466 appeal, 467 hearing, 467 of tolls and their collection, 468 exemption from tolls, 470 PLANK ROAD COMPANY. commissioners to give notice of taking lands, 481 fees of commissioners, 481 appeal from decision of commissioners, 481 who may enter upon lands, 482 directors to take and hold real estate, 482 town must pay for land abandoned by plank road, 482 purchasers on foreclosure to operate, 483 when purchaser may form corporation, 483 articles of corporation, 484 action by or against corporation, 485 against stockholders, 487 stockholders when creditors, 488 road may be surrendered, 489 corporation to cease, 491 constructing branches, 480 may take and hold real estate, 480 lands to be surveyed, 480 lands how taken, 480 may obtain use of highway from commissioner, 124 may agree with plank road or turnpike company for use of highway, 125 PRIVATE ROADS. under the statute, 413, 420 application how made, 420 jury to be called, 420 Index. 5T1 PKIVATE ROADS {Continued.) copy of papers to be given applicant, 421 service of notice, 421 list of jurors, 421 striking jurors from list, 421 place of meeting, 422 jury to be sworn, 422 commissioner to swear jury, 422 proceeding of jury, 422 value of road discontinued, 423 proceedings after verdict, 423 proceedings may be adjourned, 423 damages to be paid before opening road, 423 description of road abandoned, 423 roads along division line, 424 appeals, 424 for what purpose road to be used, 424 width of road, 425 , cannot go on adjoining land, 425 credit of labor to persons living on, 155 must be worked within six years, 216 PLOUGH. overseer to provide, 140 PUBLIC HIGHWAYS. what roads are, 218 PUBLIC PARADE. when allowed, 286 RAFTS. penalty for delaying, 342 RAILROAD. commissioner may consent to use of highway by, 124 laying out highway across track, 208 railroad to take road across, 208 penalty for neglect to do so, 208 must keep approaches in order, 209 may locate the crossing, 209 company to give signals at crossings, 372 in city of New York, 364 RAILROAD IN STREETS. commissioners must have permission to lay out, 349 crossing railroad track, 350 572 Index. EAILEOAD IN STREETS (Continued.) elevated railroads, 3o4 where laid over or under turnpike or plankroad, 360 remedy of owner of fee, 363 in highways and streets, 347 consequential damages, 364 company to restore road, 365 cattle guards at crossing, 369 REASSESSMENT. in case of neglect, 174 of damages in laying out road, 240 costs of reassessment, 245 REFEREE. on appeal from commissioners, 251 order laying out, proceedings of, 254 notice, 254 service of notice, 254 notice to occupants, 255 referees to meet, 255 referees to be sworn, 257 to compel attendance of witness, 257 may adjourn, 258 poweis and duties of i-eferee, 258 to decide on merits, 259 to consider damages, 261 reversal in part, 262 when to lay out or alter road, 262 commissioners to open, 263 effect of referee's decision, 264 fees of, 266 REMOVAL OF FENCES. 215 REPAIR OP BRIDGES. 311 liability of commissioner for not attending to, 70 of bridges, 81 REPAIR OF ROADS. by commissioner, 62-68 of bridges, 68 overseer's duty in regard to, 138 may be indicted for neglect of, 140 EESIGNATION. of commissioner, 62 EIGHT OF WAT. how pleaded, 425 Index. 573 EIVERS. boundary by, 36 when navigable, 38 obstruction of, 287 ROAD DISTRICTS. consolidation of, 87 ROADS. how money raised for repairs of, 95 See Highways. EinsrNxisrG horses. prohibited, 393 SCRAPER. overseer to provide, 140 SHEEP. injury to, by dogs, 114. SIDEWALK. SNOW. tax expended on, 164 who may make, 874 shade trees, 374 hitching horses to, forbidden, 375 penalty for, 375 girdling tree, 376 highway tax expended upon sidewalls, 376 in villages, trustees have charge of, 376 duty of corporation to repair, 377 snow to be removed from, 380 assessment of labor for removing, 159 to be removed from sidewalk, 380 SPECIAL DAMAGES. for injuries on highway, 307 STEAM ENGINE. how to be taken through highway, 287, 395 STATE MONET. expenditure of by commissioner, 81 STATE ROAD. 103 574 Index, stoxe crusher. money for, procured, 98 custody of macbiiie, 98 tax to pay for same, 98 STRAYS. 113 overseers to seize, 141 proceedings on seizure, 142 stay on appeal from order, 408 appeal from final order, 408 appeal from final order by claimant, 408 proceedings upon affirmance, 409 limitation of action, 409 who may maintain action, 410 proceedings wliere several animals trespass, 411 proceedings as to different ov?ners, 411 surplus in sucli ease, 411 vrhere one action supersedes any other, 411 officers' right to prosecute, 412 who deemed owner, 412 agent may act for principal, 412 New Yorlc city, 412 action for allowing animals to stray, 397 penalties, 398 oflBcers to seize, 398 private persons may seize, 399 officer to present petition, 399 precept to issue, 400 how served, 400 proof of service, 401 answer, 401 final order to sell, 402 mode of sale, 402 application of proceeds of sale, 402 deposition of surplus, 403 no claim made in one year, 404 appeal, 404 proceedings if decision is favorable to defendjinl^ 405 demand of possession before trial, 405 animal wilfully set at large, 406 action by owner of such animal, 406 action by petitioner, 407 demand of possession after final order, 407 order, 407 STREET LAMP. abatement of tax for erecting, 167 STREETS. railroad in, 349 horse railroad in, 356 See HoKsrf Railroads. Index. 676 SUBSTITUTES. hours to work, 167 SDMMONUSTG. jury, 201 SUPERVISOR. may appoint commissioners in certain counties, 197 SURVEY. on laying out highway, 188 on discontinuance of highway, 228 order to be posted, 228 SUPERVISORS. authorized to borrow money, 99 meeting to determine amount, 100 SWINGING GATE. on highway, 299 expense by whom paid, 299 TAX. expended on sidewalli, 164 TAXES. on road and toll gates, 479 when toll gate exempt from, 479 TEAMS, Etc. hours to work, 167 TELEGRAPH POLES. when obstructiTC, 276 TENAJSTT. to deduct assessment, 158 TERM. of office of commissioner, 59 TERM OP OFFICE. of commissioner, 85 TOLL. exemptions from, 342 576 Index. toll beidgb. may be a highway, 333 liability for repair, 383 reported unsafe, 334 commissioner to repair, 335 expense, how collected, 335 company must rebuild bridge destroyed, 335 indictment, 336 injury to bridge liow punished, 336 free passage to National Guard, 336 penalty for delay to National Guard, 336 notice on toll bridge, 337 abandoned bridge becomes higliway, 337 bridge company, how incorporated, 337 TOLL GATES. on plank roads, 465 how located, 465 how location changed, 466 appeal from decision, 467 hearing, 467 judgment and costs, 467 of tolls and their collection, 468 board of supervisors may charge rates of toll, 469 abatement of toll for watering trough, 470 in case directors refuse to abate, 470 who are exempt from tolls, 471, 472 list of tolls to be posted, 473 commutation, 473 penalty for not paying toll, 473 removing gate, 474 forcibly passing gate, 474 when toll gatherer may stop traveller, 475 toll gatherer not to hinder traveller, 476 penalty for hindering members of National Guard, 476 penalty, how collected, 476 avoiding toll gate, 476 gate may be thrown open, 477 taxes on, 479 when exempt from taxation, 479 TOWN AUDITOR. commissioner to account to, 94 TOWNS. liability of, in regard to bridge, 319 how divided into road districts, 63, 82 TRAVEL. upon the highway, See "Law of the Road." Index. 677 TREES. abatement of tax for planting trees, 166 to be removed where fallen, 297 may be planted, 298 injury to, 299 penalty for hitching horse to, 299 penalty for cutting down, 298 along sidewallis, 374 hitching horse to, forbidden, 375 penalty for, 375 girdling, 376 TURNPIKE COMPANY. may obtain use of highway from commissioner, 124 may be indicted for road out of repair, 459 inspectors to be appointed, 461 to inpect road, 462 to determine width, 462 when to receive fees, 462 duty of inspector when road out of repair, 463 proceedings, 463 penalty for not opening gate, 463 when inspector lo give notice, 464 contents of notice, 464 compensation of inspectors, 464 how iiaid, 464 when appointed in other cases, 464 See Plankeoad Company TURNPIKE. of toll gates on, 469 exemptions from, 572 turnpike road, when becomes highway, £18 width of, 458 milestones and guide posts on, 459 See Plankkoads TUNNELS, 361 consent of owners to construction of, 361 use of by other roads, 362 railroad liable for damages for injury in, 362 law in regard to does not apply to elevated read, 363 VACANCY. in offce of commissioner how filled, 60 appointment to fill, 60 office of overseer, how filled, 134 in office of commissioner to lay out road, how filled, 240 578 Index. VILLAGES. liability of, 76 roads in limits of unincorporated, 101 assessment of labor in, 155 tax expended on sidewalk in, 164 sidewalks in, 376 VINEYARD. road not to be laid out through, 196 ' "WATER COMMISSIONER. highway commissioner to act as, 115 WATERING TROUGH. abatement of toll for, 470 abatement of tax for building, 167 WEEDS. to be destroyed, 302 WAYS. 413 in gross, 413 appendant, 414 by prescription, 414 how extinguished, 416 by grant, 416 by deed, 417 what words will pass, 417 how proved, 418 grantee to repair, 418 how abandoned , ■^IS way from necessity, 418 WIDTH. of roads, 214 of turnpike, 462 WILD ANIMAL. how driven on highway, 281 WORKING. highway, See Laboe on Highway, 181 YARD. road not to be laid out through, 194 SUPPLEMENT -TO- Mills' Thompson on Highways. INCLUDING : THE GENERAL HIGHWAY LAW, COUNTY ROADS, RAILROADS, TRANSPORTATION CORPORA- TIONS, TURNPIKE, PLANK-ROAD AND BRIDGE CORPORATIONS, TOWN LAW, ETC., ETC., ETC. TABLE OF LAWS REPEALED AND COMPLETE APPENDIX OF FORMS. By CHARLES H. MILLS, Esq., OF THE ALBANY BAE. ■\^±-bl3L I3©cis±oacLs -bo OctJoTaei:', 1891- WBARE C. LITTLE & CO., LAW boob; PnBLISHBKS, 535 Broadway, Albany, N. T. Entered according to act of Congress in the year eighteen hundred and ninety one, By W. C. little & CO., In the office of the Librarian of Congress, at Washington. RIGGS PRINTING & PUBLISHING CO., PRINTING, ELECTEOTYPING AND BINDING, 27 & 29 COLUMBIA ST., 22, 24, 26, 28 MONTGOMERY, "BEVERWYCK PRESS," ALBANY, N. Y. PREFACE. It was the intention at first to publish an entirely new edi- tion of this work, upon the plan of the fourth edition, making a much larger volume than the present, but for several reasons it is thought wiser to issue it in its present form. There is no assurance that the next Legislature will not remodel the law in many essential points or return to the old practice, especi- ally as to the method of laying out new roads. This has already been mooted on account of the large expense of the new method, and, it is thought, would have been done at the last session had it not been crowded out. Again, many pro- ceedings were begun prior to the passing of the law of 1890, and new proceedings will arise for a year or two, in both cases requiring the, examination of the old and new law, and deci- sions thereon. All the new statutes bearing directly or col- laterally upon the subject of highways have been given in full and forms carefully prepared in all cases where necessary. The table of laws repealed has been arranged so as to cover all laws referring to highways repealed in 1890 and 1891. The pages noted at the end of the several paragraphs refer to similar matter treated of under the old system in the fourth edition of Thompson on Highways, published January 1, 1890. 0. H. M. CONTENTS. DECISIONS SINCE JANUARY 1, 1890 1-19 I. GENERAL HIG-HWAY LAW OF 1890 19 II. COUNTY ROADS 69- III. RAILROADS 76 IV. TRANSPORTATION CORPORATIONS 83 V. TURNPIKE, PLANKROAD AND BRIDGE COR- PORATIONS 86 VI. THE TOWN LAW 103 MISCELLANEOUS LAWS 124 SCHEDULE OF LAWS REPEALED 134 FORMS 139 MILLS' THOMPSON ON HIGHWAYS. September 1, 1891. [Note. — The figures in full faced type refer to pages In the original work (4th ed.), where similar matter is treated. — Ed.] Definition of Highway. 1. " Streets " include a pier. — A public pier in the city of New York is a part of the public streets and the public have a right to enter upon it in the same manner as upon the streets and cannot be considered trespassers in so doing. {Welk v. Sibley et al. [Sup. Ct.], ZIN.Y. State R&p. 40.) (5) Dedication of Highway. 2. Where the intention to dedicate a highway to public use is not evidenced by acts, the mere intent of one or both the parties signifies nothing. The intent of the owner to give must be fol- lowed by an abandonment of his exclusive enjoyment of the place and the intent to accept must be followed by the use and appro- priation of it. {Flach et al. v. Village of Oreen Island [Ct. App.J, SSN.Y. State Rep. 339.) (44) 3. Where the public claim a street and rely upon mere user, a user of twenty years must be shown. {Oity of Cohoes y. D. & H. a. Co. [Sup. Ct.], 27 iV: Z state Rep. 613.)] (46) 4. The common source of title of the partie/ devised lands to his sons S. and J., that to the latter being ten feet east of a lane. Before his death, however, hejwidened the road to the line of J.'s land, and such road was used to gain access to said lands for over 2 The Law of Highways. fifty years. A fence was built a few feet from said line by S., whieb was afterwards removed, and S. advised persons to purchase from J. and to build up to the line of the road. PlaintifEs built a fence shutting off defendant from the road, which defendant re- moved. Held, that there was a practical location of the line and a dedication of the road up to J.'s line ; that the fence, when erected, was a nuisance, which defendant had a right to abate. ( Wicks ei al. V. Thompson [Sup. Ct.], 38 iV: Z State Bep. 340.) (46) How Accepted by the Public. 5. Where the evidence tends to show such a user of a railroad crossing by the public for more than twenty years as would have Justified a record of the road as a highway by the proper authori- ties, their failure to perform their duty does not change the man- date of the statute that the road shall be deemed a public highway. {Lewis V. N.Y.,L.E.&W.RE. Co. [Ct App.J, 34 iV: Z State Rep. 373.) (52) 6. A private way opened by the owners of land through which it passes, for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it, where there is no proof that the public authorities kept it in repair, or adopted it, or in any way recognized it as a highway. {Spier et al. v. Town of New Utrecht [Ct. App.J, 121 iV: r: 420 ; 31 iV: Y. State Rep. 414.) (32) 7. The existence of a railroad upon a part of the road during a portion of the twenty years does not defeat the claim of a highway by user where the strip is open to the public and travelers can pass over every part of it, except that it was not practical for vehicles to pass over the tracks. {Id.) (52) Commissioners, their Powers and Duties, 8. It is the duty of the commissioner of highways of a town to exercise active vigilance to see that its highways do not become in a dangerous condition, and if discovered to be so to make needful repairs. The fact that shortly before the accident com- plained of he had inspected the road and had found that at certain places teams could pass each other thereon is not a defense as being merely an error of judgment, it appearing that the accident The Law of Highways. 3 resulted from the narrowness of the road and the deep ditches on its sides. {MacJcey v. 2hwn of Locke [Sup. CtJ, 2Q N. T. State Rep. 281.) (62) 9. If an excavation is so near the beaten track of a highway as to render it dangerous to public travel within reasonable appre- hension, it is the duty of the commissioners to use the means available to them for the purpose of guarding it, and for their omission to do so an action will lie against the town under the statute. {Ivory V. Town of Deerparh [Sup. Ct.], 116 K Y. 476; 21 N. T. State Rep. 643.) (63) 10. The fact that the exposed condition of the road at the place in question had continued there for ten years or upwards, is suffi- cient to charge the commissioners with notice of its dangerous con- dition, the question being one of fact for the jury. {Id.) (63) 11. Although the highway commissioners are to exercise their judgment in determining the particular work in which they will employ the funds in their hands, their discretion in that respect must be reasonably exercised, and as the statute has provided, means for the raising of moneys required to make necessary re- pairs, they may not defend an omission to do work of trifling ex- pense which is essenti&,l for the safety of travel on the ground that they determined to expend the money elsewhere. {Id.) (63) 12. An overseer of highways in a district is not bound to keep a bridge in the district in repair. {Taylor v. Town of Constable [Sup. Ct], 58 Hun, 371 ; 32 KY. State Rep. 482.) (68) 13. Where an accident resulted from a defective approach to a bridge and the next day the highway commissioners went upon the ground and made the approaches safe, and it was shown that shortly before the accident one of the commissioners had procured materials for repairs, the jury may infer that such commissioners had funds or the power to obtain them. {Getty v. Town of Hamlin et al. [Sup. Ct], 28 N. Y. State Rep. 275.) (70) 14. It seems that, since the passage of ch. 700, Laws 1881, lack of funds is not a defense to a town sued for negligence in failing to keep highways in a safe condition. {Id.) C®) 15. Liability of town. — The fact that a road has been used for public travel for many years and has been recognized and treated by the town officers as a highway, gives to it that character so far 4 The Law of Highways. as making the town liable under L. 1881, c. 700, to a traveler upon it for injuries sustained by him in consequence of the negli- gence of the highway commissioners in failing to keep it in suit- able condition and repair. {Ivory Y. Town of Deerpark, 11& N. T. 476 ■,21N.Y. State Rep. 643.) C^) 16. Plaintiff was injured while driving upon a highway of de- fendant by reason of his wagon slipping from the road into the bed of a creek at a place where there were no fenders or guards. The evidence tended to show that the road sloped toward the creek and was icy, that the whole way had been protected by guards, but that a year before some had been carried way by a freshet ; that the highway commissioner knew this and had funds to make repairs; that there was nothing at the entrance of the road, which was excavated in the rocks, to indicate its dangerous character, and that, after entering, it was impossible to turn. Held, that a verdict in favor of plaintiff was warranted by the evidence. {Fay v. Town of lAndhy [Sup. Ct.J, 33 iV! Yi Slate Rep. 553.) (76) 17. Defendant's highway commissioner constructed an embank- ment in a ditch alongside of a highway for the purpose of pre- venting the overflow waters of a creek which found their way into the ditch from washing out the highway. It was shown that prior thereto the ditch was sufficient to carry off the oveMow and surface waters, and that since then the effect of the embankment had been to set back the overflow waters on plaintiff's land. Held, that the highway commissioner had no right to put an ob- struction" in the ditch, the immediate effect of which would be to precipitate the waters of the creek in times of freshet on plaintiff's land, and that defendant was liable therefor. {Ashherry v. Town of West Seneca [Sup. Ct.], 33 iVi Z State Rep. 431.) (76) 18. In an action to recover for injuries sustained by being pre- cipitated down an unguarded embankment on a highway, where the evidence showed that plaintiff's horse shied suddenly and overturned the buggy, Held, that the court properly submitted the questions of negligence to the jury, and limited the question of the negligence of the highway commissioners to the failure to have a guard or barrier at that place. {Holcomh v. Town of Champion [Sup. Ct.], ?,% K Y. State Rep. 759.) (76) The Law of Highways. 5 19. Plaintiff was knocked off a load of hay by tte branches of a tree, which for years had hung so low over the traveled portion of the road as to leave insufficient space for the passage of a load of hay. In an action against the town — Held, sustaining a ver- dict for plaintiff ; thab the facts showed inexcusable negligence in failing to maintain the road in a reasonably safe condition for all ordinary travel. {Emhler v. Town of Wallkill, 57 IIun,'S84o; 32 K T. State Rep. 700.) (78) 20. Laying out roads. — Where the necessity of the highway is not contested, a report of commissioners in favor of a route which will make a direct line with another highway will be confirmed, although another route making a zig-zag course would be cheaper. {Matter of Union Ave. [Sup. Ct.J, 2,0 N. T. State Rep. 366. (91) 21. Raising money. — Under Laws 1857, chapter 615, it seems that the commissioner of highways may bring before the town meeting the necessity of a larger sum of money than that appro- priated. Sup. Ct, Sp. T. {Matter of Town Board, etc., of Lloyd, 26 N. T. State Rep. 285.) (97) 22. Upon application a highway was laid out, and proposals for building it advertised for. The town board failed, at its meeting, to appropriate funds for such purpose. Held, that mandamus would not be granted to compel the board to convene and deter- mine what amount, if any, should be borrowed under Laws 1869, chapter 855, as amended by Laws 1874, chapter 260, to build the road. The date fixed by the statute for the meeting was passed, and the failure of the board to act must be regarded as a refusal to borrow, such refusal being within their discretion. "{Ld.) (98) 23. Actions against commissioners. — Where, in an action against highway commissioners for trespass in removing a fence erected in 1869, it appeared that the premises on which it stood had been for forty years previous to that date used as a highway. Held, that defendants we're not liable. Sup. Ct. {James v. Sammis, 3| N. Y. State Rep. 192.) 24. Removal of obstructions. — In an action for trespass com. mitted by defendant as overseer of highways in removing plaint- iff's fences, which were erected across a road, the defendant proved a certificate made by commissioners of highways for the erection of such fences, ascertaining and describing the road as a highway. 6 The Law of Highways. but such certificate did not purport to be based upon a record nor upon an adjudication by the commissioners that there had been twenty years user. The court held tlie certificate conclusive, and excluded evidence tending to show that the road had not been used . as a highway and was not one by use or dedication. Held, error. {Kelsey v. Burgess [Sup. Ct.], 35 N. T. State Rep. 368.) (1»8) 25. Using soil from land of adjoining owner. — The rule that highway officers cannot take soil from the land of an owner to use for^highway purposes at other places than on his land, reiterated. Sup. Ct. {Cotanch v. Graver, 57 Hun, 272; S. C, 32 K Y. State Bep. 643.) (139) Assessment of Highway Labor. 26. "Where the commissioner of liighways has jurisdiction to assess a land owner, it is his duty to apportion the number of days labor to be rendered by him according to the valuation of his es- tate as it appeared on the last assessment roll, and he is not liable to such owner for the value of labor rendered by him, under pro- test, in satisfaction "of the assessment, where it had been errone- ously made by the assessors through ignorance of changes in the statute governing such proceedings. {Hampton v. Hamsher [Ct. App.l, 2,5 N. Y. State Bep. 341.) (148) 27. In this case the commissioner of Ossian assessed plaintiff for highway labor on his whole farm three and half days, being the proportion of that part situated in ISTunda, according to the valua- tion upon the last assessment-roll, and delivered the list to the overseer of the prcjper road district, and plaintifl worked it out under protest, and it was held that alleged erroneous assessment being the mistake of the assessors the commissioner having obeyed the command of a valid statute was not liable. [Id.) Laying Out Higpiways. 28. Where a street as originally laid out did not extend to the bank of a river, and when subsequently extended to the old river line, a new shore line had been established by filling in, which was beyond the line of the extended street, the highway will not be deemed to extend to such new shore line. In such case the filling in will not be deemed to be a continuation of the street. The Law of Highways. 7 {Matter of aty of Yonhers, 117 iV: Z 564 ; 28 iV: Ti State Hep. 676.) (185) 29. Where it appears that a proposed road will run through orchards, house enclosures and a school ; that it will benefit very few persons and very slightly ; that the cost will be heavy, and the road it will displace is suificient for the public use, consent to its opening should not be granted. {Matter of the Alteration of the Four Corner Bead, 37 N. Y. State Rep. 711.) (185) 30. Section 59, 2 E. S., 7th ed., 1239, requiring a person who ap- plies for the laying out of a highway to post notices, was not repealed or modified by chapter 696, Laws 1881. {People ex rel Scrafford et al V. Stedman et al [Sup. Ot], S2 K Y. State Hep. 649.) (187) 31. Section 62, 7tli ed., E. S., p. 1241, requires tbe commis- sioners to give notice to the land-owner of the time when they will meet to decide upon the application. An affidavit that such service was made upon a person by service upon her daughter, at her residence, it not appearing that the mother was absent, does not satisfy the statute. {Id.) (187) 32. A few wild apple and cherry trees along a fence, and two prickly pear trees, do not necessarily constitute an orchard. {People ex rel. Waterman v. Schellenger et al. [Sup. Ct.], Z2 N. Y. State Rep. %5d.) (193) 33. Since the passage of chapter 773, Laws 1873, either the consent of the owner or the certificate of the highway comrnis- sioners is essential to the laying out of a highway through build- ings, and in the absence thereof the board of supervisors has no power to appoint commissioners to lay out such road. {People ex rel. Sammis v. Board of Supervisors of Queens Co. [Sup. Ct.], 34 N. Y. State Rep. 718.) (193) 34. In proceeding under Laws 1881, ch. 696, for the laying out of a highway where, the names of twelve jurors are drawn but one is disqualified, the remaining eleven are incompetent to act and their acts are void. {Tiffany v. Gifford [Sup. Ct., Sp. T.], 24 iV: Z State Rep. 906.) (300) 35. It seems that the commissioners have no power to depart greatly from the route proposed by the applicant or certified by the jury. {People ex rel. Scrafford v. Stedman^ 57 Hun, 280 ; 32 iV: Z State Rep. 649.) (804) 8 ' The Law of Highwats. 36. Oh. 114, Laws 1880, providing for the laying out of high- ways in towns whose real, estate is assessed at an average of less than five dollars per acre is unconstitutional, as it does not pro'^ vide for notice to the owner of property, either of the taking tliereof or of ascertaining the damages. {People ex rel. Dexter v. Master et al. [Sup. Ct.], 29 K Y. State Bep. 128) (306) 37. The aiction of the commissioner in laying out a highway may be reviewed by certiorari as well where the proceeding was under an unconstitutional law as where it is contrary to statute law. {Id.) (206) 38. The provisions of 1 E. S., m. p. 516, § 72, 8th ed., E. S., 1377, relative to disagreements between commissioners of high- ways of different towns as to the laying out of a highway extend- ing into both towns, apply equally to roads which lie upon and to roads which cross the town line. {Peo. ex rel. Titsworth Com. V. Nash, 38 N. .T. State Bep. 730.) (311) 39. A monument may be disregarded where mention of it is manifestly inconsistent with the description intended. {Id.) (311) 40. Width of roads. — It seems that an order of highway com- missioners describing a road which has been in public use for more than twenty years cannot have the effect to increase or change the width or location of the highway from what it was before. It can be effectual only as a description of the width as manifested by the permitted use for twenty years. {Ivory v. Town of Deerpark [Ct. App.J, 116 iV: Y., 476 ; 27 K Y. State Bep. 643.) (214) 41. Altering and discontinuing highways. — When the commis- sioner of highways, in proceedings to alter a highway, delivers the order to the town clerk, his duty is discharged, and the failure of the clerk to post a copy on the door of the house where the town meeting is usually held does not render the order absolutely void or justify resort to force, such as throwing down fences and entering upon the old road, to nullify its provisions. {Engleman V. Longhorstet al. [Ct. App.], 120 N. Z 332; 31 iV: Y. State Bep. 29.) (223) 42. Neither is the order void by reason of the failure of a property owner over whose premises both the old and the altered roads run, and on whose petition it is altered, to execute and file The Law of Highways. 9 a consent and release of all claims to damages, pursuant to 1 R. S. 515, 64. {Id.) ' (223) 43. It does not follow, because a portion of that wliicli was originally laid out as a continuous highway remains such, that all of it does. If a part of it ceases to be traveled and used for a period of six years, the public in the meantime using some other route, such part is no longer a highway. {Horey v. Village of Haverstraw [Ot. App.], ^5 N. Y. State Bep. 360.) (229) 44. A road which for six years is not only not used and trav- eled but is impassable for conveyances of any kind, is fenced off and the public travel by another route, presents a situation upon which the statute must operate to destroy its legal character as a highway, and it matters not that at the beginning the road was rendered impassable and fenced off by a trespasser. {Id.) (229) 45. The highway commissioners are charged with the duty of keeping the public highways in proper condition for public travel, and provided with the legal machinery necessary to prevent tres- passers from doing damage to the highways, and means necessary to restore them after injury done, and if they neglect this duty or refuse to perform it for a period of six years, and the traveling public acquiesces so that in all that time no one can or does make use of the highway, it ceases to be such. {Id.) (229) 46. Where it is shown that a certain street for six years had been impassable for teams and vehicles, from a point where a fence had been built across it, to the extreme end as originally laid out, that it was not travelled or used for highway purposes during that period, but was fenced off and the sand and clay ex- cavated and carried away by parties without hindrance by the town officials or the public, it is suf&cient to justify a jury in find- ing that the locus in quo was not a public highway. {Id. ) (229) 47. As to when an alley, closed by a gate, ceases to be a high- way. ( Woodruff ei al. v. Paddock [Sup. Ct.], 56 Hun, 288 ; 30 K r. State Rep. 461.) (229) Assessment of Damages for Laying Out Road. 48. In an action to determine the rights of different claimants to an award, it appeared that commissioners had been duly ap- pointed to award damages, etc., for the taking of certain lands for 10 The Law of Highways. the opening and widening of a public avenue, and before the re- port of such commissioners had been filed, a conveyance of a por- tion of the lands affected had been made by the owners thereof to one J. The habendum clause in, the deed contained the follow- ing : " Except so much of said land as- has been taken by public authority, if any has been taken, for the widening and straighten- ing of Gerard avenue." Held, that the grantors at the time of the conveyance were possessed in fee of the lands, unaffected by the proceedings which were pending, and that J. took title to the whole ; that the exception in the habendum clause was for no other purpose than to protect the grantors from any claim which J. might make in case the report of the commissioners had been confirmed without their knowledge, and that the title to any award made vested in J. as against them. (N.Y. Com. PL, 1889 ; Mayor, etc., of K Y. V. Curran, 24 Ahh. K C, 128 ; 22 K Y. l^tateRep. 238.) (330) 49. J., subsequent to the confirmation of the commissioners' re- port adjudging the awards, himself conveyed to C, the same ex- ception appearing in the habendum clause. Held, that his inten- tion in making the exception would be construed to be the same as in the case of his grantors, and not for the purpose of reserving any right in the property to himself, and that C, not having re- ceived all the land which J. professed to convey, was entitled to the damages awarded for the taking of that part which he did not receive in lieu of the land. {Id.) (233) Certiorari. 50. Certiorari will lie to review an order of a county judge con- firming the report of commissioners appointed to lay out a high- way. {Peo. ex rel. Titsworth, Com., v. Nash, ZQ N. Y. State Rep. 730.) (311) Appeal from the Commissioners. 51. The bringing of an appeal from the order of commissioners laying out a highway does not suspend the running of the statute of limitations contained in § 2125, Code Civ. Pro., requiring that a writ of certiorari to review such determination be brought within four months after it becomes binding on the relator or the person whom he represents. {The Peo. ex rel. Cook et al. v. Hildreth, 37 N. Y. State Rep., 393.) (366) The Law of Highways. 11 52. If a notice of appeal from a highway commissioners de^ cision laying out a highway contains language adequate for an appeal from the whole order, the fact that it contains a clause adding that the appeal is brought to review his determination as to a specified part of the highway does not confine the referees to a reversal as to that part, and they may reverse wholly. {King v. Reed [Sup. Ct], %Q N. Y. State Rep. 707.) (351) 53. Where there are irregularities in the preliminary proceed- ings in an application to lay out a highway the matter may properly be reviewed by certiorari. People ex rel. Scr afford et al. V. Stedinan et al. [Sup. Ct.], 2,2 N. Y. State Rep. 649.) (370) 54. The return to a writ of certiorari to review proceedings to open •highways must give the record only. {People ex rel. Waterman v. Schellenger et al. [Sup. Ct.], Z2 N. Y. State Rep. 353.) (371) 55. Where the return to a writ of certiorari to review proceed- ings to open a highway showed that the names of all the jury lists of the town were placed in the box and twelve names drawn and that one of the persons drawn declined to serve and the rest were sworn, and the certificate was signed by ten. Held, that the proceedings showed no error. {People ex rel.-Waterman v. Schellen- ger [Sup. Ct], 32 N. Y. State Rep. 353.) (371) 56. Irregularities, such as failure to give the notice required by the statute, or a departing from the route, are not to be held waived merely because the return on certiorari states that an attorney claiming to represent the owner appeared and argued on the merits as to necessity, with nothing to show his authority. {People ex rel. Scrafford v. Stedman, 57 Hun, 280 ; 32 N: Y. State Rep. 649.) (371) 57. It was held, however, at special term, Chautauqua county, by Corlett, J., that under Laws 1881, chapter 696, where twelve names were drawn, eleven of whom afterwards acted and certified to the necessity of a highway and one, a non-resident, took no part in the proceedings, the proceedings were void. {Matter of Tiffany, 24: KY State Rep. 906.) Obstructions and Encroachments. 58. The building and maintenance of a toboggan slide across one of the principal streets of a populous city with little or no 12 The Law OF Highways. protection against collision with passers is negligence. {Iladen v. Clarke [Sup. Ct.J, 32 N. Y. State Rep. 478.) (273) 59. Liability for Injuries. — The owner of adjacent premises who interferes with the sidewalk for his private purposes and fails to restore it to a safe condition, is guilty of a nuisance and is liable to any person sustaining injury thereby Brooklyn City Ct., 1890. {Smith V. Ryan, 29 KY. State Rep. 672.) (374) 60. A person cannot justify obstructing a highway by logs or otherwise upon the claim that somebody else directed him to do it who owned the materials placed there. {McDermott v. Conley [Sup. Ct.], 2,3 N. Y. State Rep. 560.) (375) 61. The right of a telegraph company to use a highway for the .purpose of constructing, maintaining or removing its wires is sub- ject to the use of the travelling public, and it has no right to so use it as to obstruct it or render it dangerous to public travel. {Staring v. Western Union Tel. Co. [Sup. Ct.J, 34 iV! Z State Rep. 508.) (376) 62. A horse driven by a mail carrier, who had already lost con- trol of the horse, struck a telegraph pole situated near the walk and between it and the traveled part of the street in a village, thereby broke away from the wagon, ran about sixty rods and in- jui'ed plaintiff, who was crossing the street. No special authority from the village to build the telegraph line was shown. The plaintiff did not look up or down the street when he attempted to cross. Held., that suffering the pole to be in the street was not negligence per se; that the pole {as it seems) was not the proximate cause of the injury, and that the manner in which plaintiff crossed the street established contributory negligence upon his part. {G.audin V. Village of Carthage [Sup. CtJ, 36 iV". Y. State Rep. 308.) (376) 63. Chapter 265, Laws of 1848, as amended, which gave the right to telegraph companies to erect poles, etc., in the streets of New York, granted no interests in the streets of the city to the corpoi-ations organized under it, and at most conferred an authority or license to enter upon the streets for certain purposes and sub- ject to certain conditions, and the legislature can revoke the license or modify it in any way or at any time when the public interests may require it. {American Rapid Tel. Co. v. Hess et al. [Ct. App.], 36 N. Y. State Rep. 252.) (376) The Law of Highways. 18 64. But even if some grant of interest had been made to the telegraph company, the state could regulate the size and location of the poles, the height of the wires from the ground and their location, and where they become a serious obstruction and nuisance could remove them or require them to be placed under ground. {Id.) (276) 65. "Where the state has provided by legislation for certain com- missions for constructing and managing subways, and for notice to be given to telegraph companies to place their wires therein, which the latter refuse to do, the cutting down and removing the poles and wires in compliance with the provisions of the act does not constitute a taking of private property for public use. {Id.) (376) 66. The statutes of the United States relating to rights of tele- graph companies over post roads, etc., cannot deprive the state of its control over its highways, and its right to regulate their use under the police power for the public welfare. {Id) (376) 67. "Where the charter of a village gives the board of trustees jurisdiction and control of its streets, the board has power to au- thorize the erection of poles for the purpose of lighting the streets by electricity without the consent of the abutting owners. The fact that it may be also used to supply light for private purposes, will not entitle the abutting owner to have the pole removed, so long as it is reasonably necessary and proper for the public use. {Johnson v. Thompson Houston Electric Go. [Sup. Ct.], 28 iV[ Yi State Rep. 295 ; 54 Hun, 469.) (376) 68. It is the duty of the person, making an excavation in the street to see that it is properly and carefully covered so as to make the street as safe for passage as before, and the obligation to keep it safe devolves upon any person who subsequently continues it in an improper or unsafe condition, and notice of a defect which could be discovered by proper examination is not necessary to fix his liability. {Peard v.- Eurst [Sup. Ct.J, 33 iVi Z State Rep., 159.) (380) 69. As to when the question as to whether leaving a "man- hole" open in the sidewalk is negligence, should go to the jury, see Wells v. Sihley et al (Sup. Ct), 31 iV: Z State Rep., 40. (38 1) 70. In an action for negligently leaving a row of stones in a 14 The Law of Highways. road, which frightened plaintiff's horses so that they backed off a bank, it was proper for the court to allow the complaint to be amended so as to charge negligence in the highway commissioner instead of the town. {Wilson v. Town of Spafford [Sup. Ct.J, 32 N. Y. State Rep., 532.) (282> 71. It is the duty of a person erecting a pile of lumber in a public street to pile it in such position and in such manner as not to impede the public use of the highway or to endanger the life or limb of those passing therein. {jEarl v. Groibck [Sup. Ot.j, 33 N. T. State Rep., 13.) (383) 72. Fences. — Where the order of the commissioner which com- plies with the statute is annexed to the notice and is referred to in the notice as being annexed, it is to be deemed a part of the notice, so far as its specifications are concerned, and supplies the omissions in the notice itself. ( Ohndorf v. Sullivan et al. [Sup. Ct.], 36 iV: Z State Rep., 74) (389) 73. In proceedings to determine as to the existence of an en- croachment on a highway it appeared that such highway had never been recorded, and that there were no surface indications tending to show that the alleged encroachment stood on any part of a road that had been used continuously for twenty years. The questions litigated were not how far or to what extent the highway had been traveled for twenty years, but were confined to the question where it was originally located and traveled. Held, that the pro- ceedings were based on an erroneous assumption ; that the statute gives no power to the commissioner or jury to make any determi- nation beyond the actual occupancy or user. {Alpaugh v. Bennett [Sup. Ct.], 35 a: Y. State Rep., 951.) (389) 74. In the absence of any other valid provision for the erection of a bridge the commissioner of highways is charged with the power and duty to erect it, and this includes the power to make appropriate contracts for the same. {Berlin Iron Bridge Co. v. Wagner [Sup. Ct.J, N. Y State Rep. 407.) (311) Bridges. 75. Laws of 1869, ch. 855, and 1875, ch. 482, relating to the power of the supervisors to locate, erect and repair bridges, have not affected the power of the commissioners of highways in rela- The Law of Highways. 15 tion to the care and superintendence of highways and bridges, nor do they have relation to those matters which, within the limits of a town properly pertain to the office of its highway commissioner, and that officer has the power to erect a new bridge where a high- way is interrupted by a stream of water, to connect the two ends. {Huggans v. Riley [Ct. App.], 34 N. Y. State Rep. 458.) (316) 76. The board of supervisors may, upon application of one of two towns in the same county, separated by a stream, and against the wishes of a majority of the voters as expressed in town meet- ing and without the consent of its officers authorized to consent, direct the building of a highway bridge across such stream and levy a tax upon taxpayers of the latter town to defray in part the expenses of building such bridge. {Town of Kirkwood v. Newbury et al. [Ct. App.J, 34 iV: Z State Eep. 546.) (336) 77. In repairing a bridge connecting the town of A. with the towns of B. and C, whose dividing line was the centre of the highway, by agreement, A. paid one-half and B. and 0. each one- quarter of the expense. Held, that the commissioners of high- ways of A. could not afterwards sustain an action to compel the towns of B. and C. to pay the balance of one-third each. {Flynn et al. V. Hurd [Ct. App.], 27 N. Y. State Rep. 744.) (336) 78. Commissioners of one town cannot ma,intain an action against those of another to enforce the payment of a sum of money claimed to have been expended for the benefit of the latter town. {Flynn et al. v. Hurd [Ct. App.J, 27 K Y. State Rep. 744.) (336) Compensation to Owner of Feb. 79. The principle reiterated that a duly incorporated steam sur- face railroad company, having authority from the state to build its road, and laying its tracks and operating its road through and upon the surface of the streets of a city, under the protection of a license from such city, takes thereby no portion of the property of an individual who owns land adjoining the street, but bounded by its exterior line, and the company is not liable to such an owner for any consequential damages arising from a reasonable use of the street for railroad purposes, not exclusive in its nature and substantially upon the same grade as the street itself, which leaves the passage across and through the street free and unob- 16 The Law of Highways. structed for the public use. )F6bes v. The RW. & 0. B. R Co. [Ct. App.], 31 KY. State Rep., 828 ; 121 K Y., 505.) (351) 80. There is nothing so universal or invariable in the manner in which streets in the city of New York have been opened as to raise a counter-presumption ta that of the common law, that owners of land adjoining a public highway are owners of the fee of the highway. {Rochhatter v. Man. R'y Go., 31 if. Y. State Rep., 112.) ' (35S) 81. An owner of premises abutting upon the Bowery, in New York city, is entitled to an easement of light, air and access, and may maintain action for deprivation thereof. {Hine v. If. Y. El. R. R. Co. [Sup. CtJ, 27 JSr. Y. State Rep., 303 ; 54 Run, 425.) (351) 82. Owners of premises abutting upon a street have a right to have the street and sidewalk clear of all obstructions except such as are reasonable and necessary under all the circumstances. {Flynn v. Taylor [Sup. Ct.], 2Q K Y. State Rep., 649.) (351) 83. The right of an abutting owner to recover damages against an elevated railroad for interfering with his easement, so far as it has accrued, is not divested by a foreclosure of a mortgage given before the construction of the road. {Porter v. Met. El. Ry. Co. [Ct. App.], 30 iV: Z State Rep. 938 ; 120 K Y. 284.) (351) 84. The erection of a depot building extending over a street intersecting that upon which the New York Elevated railroad is built will be enjoined at the instance of an abutting owner whose premises are darkened by it {Mattlage v. K Y. El. R R. Co., 14 Daly, 1.) • (351) 85. The rule that, with respect to the right to maintain an action against elevated railroad companies in New York city, it is immaterial whether plaintiff was owner of the fee of the street in front of her premises, so long as she was entitled to easements, applied ; and it not appearing that the damages assessed or com- pensation awarded were augmented by reason of the court's find- ing that plaintiff owned the fee in half the street in front of her premises, subject to the right of the city of New York and of the public to use the same for the ordinary purposes of a public street, Held, that it could not properly be assumed that such damages or compensation thereby augmented, in view of the facts that de- fendants, by stipulation printed in the appeal book, had stipulated The Law of Highways. 17 " to waive any exception or right to have the question of damages, or its extent as a question of fact, reviewed on this appeal," in consequence of which stipulation the evidence relating thereto had been omitted from the appeal book. {Giordano v. Manhattan By. Co. [Sup. Ot], 31 iV: Z State Rep. 134. (351) Sidewalks. 86. Plaintiff having intentionally driven along a sidewalk upon the side of a bridge where a walk had been constructed for pedes- trians, Held, not entitled to recover from the village for damages resulting to him from the fall of such walk, as he was not misled as to the character of the place when he drove ; it was not a ques- tion of appearances but only of the duty which defendant owed him. {Fisher v. Village of Cambridge, 57 Hun, 296 ; ^2 N.Y. State Eep. 489.) (377) 87. The fact that driving on the' sidewalk was unlawful (Penal Code, § 652), constituted at least a notice to him that the sidewalk was a place where he was not authorized to travel, and where de- fendant did not owe him a duty of giving him a safe road, and, though others had travelled there, defendant's duty was not thereby enlarged. {Id.) (377) 88. A sidewalk in a village which had the power and means to keep sidewalks in repair, was at the place of the accident com- plained of, of natural rock but irregular in surface, at two places had a drop or step of eight inches extending across it irregularly, but was susceptible, by slight repairs, of being made safe, was part of a continuous sidewalk on a main street and had been commonly used for fifty years. Held, that the village, although the formation was natural, must be held to have accepted and adopted it as a side- walk, and therefore was liable to one injured upon it. {Higginsv. Village of Glens Falls [Sup. Ot.j, 33 iV: Z State Rep. 111.) (377) 89. The mere fact that a slight ridge was formed by two flag- stones, upon which the water from adjoining premises dripped and formed a ridge of ice, is not sufficient to render the municipality liable, where it does not appear that the plaintiff fell upon these flagstones. {Kaveny v. City of Troy [Sup. Ot.], ^Q N. T. State Rep\ 703.) (380) 2 18 The Law of Highways. Law of the Eoad. 90. While the statute requiring a person driving upon a road- way to turn to the right of the center of the road provides a pen- alty for a failure to do so, it does not provide that he shall be liable for all damages which may happen while he is on the wrong side. While it may be legal negligence for him to be there, his liability must depend on the rules of law applicable to cases of negligence. {Newman v. Ernst [Supr. Ct. Buff.], %1 N. Y. State Bep. 1.) (384) Travel Upon Highways. 91. Street railway cars have a preference in the streets, and while they must be managed with care so as not to carelessly in- jure persons in the street, pedestrians must, nevertheless, use rea- sonable care to keep out of their way. {Fenton v. Second Ave. R. B. Co. [Ot. App.J, ZQN.Y. State Rep. 386.) (395) The Law of Highways. 19 I, GENERAL HIGHWAY LAW. CHAP. 568, LAWS 1890.* AN ACT in relation to highways, constituting chapter nineteen of the general laws. Appbotbd by the Governor June 7, 1890. Passed, three-fifths being present . The People of thfi State of New York, represented in Senate and Assembly, do enact as follows: CHAPTER NINETEEN OF THE GENERAL LAWS. THE HIOHWAT LAW. Article I. — Highway officers, their general powers and duties. (§§ l-2i'f.. II. — Assessment for highway labor. (§§ 30-53). III. — The duties of overseers of highways, and the performance of' highway labor. (§§ 60-73). IV. — Laying out, altering and discontinuing highways and laying out private roads. (§§80-133). v.— Bridges. (§§ 130-145). VI. — Miscellaneous provisions. (§§ 150-164). VII.— The regulation of ferries. (§§ 170-174). VIII.— Repealing and other clauses. (§§ 180-183). ARTICLE I. HIGHWAY OFFICBRS, THEIR GENERAL POWERS AND DUTIES. Section 1. Short title. 3. Treasurer of highway commissioners. 3. Powers of one commissioner. 4. General powers of commissioners. 5. MUe-stones and guide-boards. * 6. Road machines and implements. 7. Stone-crushers and materials. 8. Custody of stone-crushers. 9. Additional tax. 10. Extraordinary repairs of highways or bridges. 11. Auditing expense thereof. 13. Accounts, how made out. *ToQk eflEect March 1, 1891. _See § 183, postea. 20 The Law of Highways. Section 13. Unsafe toll-bridge. 14. Water pipes in highways. 15. Actions for injuries to highways. 16. Liability of towns for defective highways. 17. Action by town against commissioners. 18. Audit of damages without action. 19. Reports of commissioners. 20. General duties of overseers. 21 . Opening obstructed highways. 32. Penalties against overseers. 33. Penalties, how collected. 34. Compensation of overseers. Section 1. Short title. — This chapter shall be known as the highway law. § 2. Treasurer of highway commissioners. — When there is more than one commissioner of highways in any town, they shall desig- nate one of their number to be treasurer. If they fail so to do, the commissioner longest in office shall be the treasurer ; and all money collected for highway purposes, or belonging to the high- way fund of the town, shall be paid to him. Before receiving such such money, he shall execute to the town an undertaking to be approved by the supervisor, to the effect that he will faith- fully account and pay over to any officer or person entitled thereto, any money that may come into his hands as such treas- urer. (New. See Thompson on Highways, 4th ed., p. 62.) § 3. Powers of one commissioner. — -When any town has but one commissioner of highways, the term, commissioners of highways, when used in this chapter, shall mean such one commissioner. § 4. General powers of commissioner. — The commissioners of highways in the several towns shall have the care and superin- tendence of the highways and bridges therein, except as otherwise specially provided in relation to incorporated villages, cities and other localities ; and they shall 1. Cause such highways and bridges to be kept in repair, and give the necessary directions therefor ; 2. Cause such 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. The Law of Highways. 21 3. From time to time, not oftener than once a year, divide the town into so many highway districts as they shall judge conveni- ent, by writing, under their hands, to be filed with the town clerk, and by him to be entered in the town book, at least ten days be- fore an annual town meeting ; 4. Assign to each of the highway districts such of the inhabi- tants and corporations liable to work on highways, as they shall think proper, having regard to proximity of residence as much as may be ; 5. Within one week after each annual town meeting, make and file with the town clerk, a written appointment of a resident of each district, to be overseer of highways therein. The town clerk shall notify each overseer of his appointment, within ten days after the filing thereof ; and the person so appointed and notified, shall thereupon become and be the overseer of highways within his dis- trict for one year, and until his successor shall be appointed. If any person so appointed overseer shall refuse to serve, or his office shall become vacant, the commissioners shall in like manner ap- point some other person to be overseer ; 6. Require overseers of highways to warn all persons and cor- porations assessed to work on highways, to come and work thereon, with such teams and implements, and at such times as the said commissioners, or any one of them, shall direct. 7. Expend all moneys raised and collected from the town at large for highway purposes, upon the highways and bridges situ- ated in, or upon the borders of the town, or highway districts as- signed to the town in which such moneys were raised and col- lected, in such proportion as they may deem just and proper. 8. Have power to enter upon the lands of any person adjoining any of the rivers, streams or creeks of the state, drive spiles, throw up embankments, and perform such other labor as may be necessary upon the banks of such rivers, streams or creeks for the purpose of keeping them or any of them within their proper channels, and preventing their encroachment upon any of the highways of the state, and to protect such highways and the prop- erty of the town from damages by reason of such rivers, streams or creeks washing away their embankments, or changing the loca- tion of the channels, and to agree with the owner of any such 22 The Law of Highways. lands upon the amount of damages, if any, sustained by him in consequence of such entry upon his lands and the performance of the work herein authorized, and the amount of the damages so agreed upon shall be a town charge, and shall be audited and paid in the same manner as other town charges. If the commissioners are unable to agree with such owner upon the amount of damage thus sustained, the amount thereof shall be ascertained and deter- mined and paid in the same manner as damages for the laying out and opening of highways are required by law to be ascertained, determined and paid, where the commissioners and land owner are unable to agree upon the amount thereof. (Added by ch. 212, Laws 1891 ; took effect April 20, 1891. See Thompson on High- ways, 4th ed., p. 62.) § 5. Mile-stones and guide-hoards. — Commissioners of highways may cause mile-boards or stones to be erected upon the highways in their town as they think proper ; they shall also cause guide- posts, with proper inscriptions and devices, to be erected at the in- tersections of such highways therein as they may deem neces- sary, which shall be kept in repair at the expense of the town, by the overseers of the highways of the districts in which they are respectively located. {Id., p. 107.) § 6. Road machines and implements. — Commissioners of high- ways may, upon the request of one or more overseers of the high- way districts of their town, contract for and purchase for such dis- trict or districts, upon credit or otherwise, a good and sufficient iron or steel shod scraper, road machine and plow, or either of them, for the use of such district or districts, which shall be used, cared for and owned by such district or districts jointly. Such implements shall be paid for out of the highway tax of the dis- trict or districts, for which they are purchased, and may be paid for, in annual installments, not exceeding five. If purchased for more than one district, the amount paid by each, shall be in pro- portion to the amount of its highway tax. No more than one- half of the highway tax of any district shall be applied in pay- ment therefor in any one year. The portion of such tax so ap- plied, shall be required to be paid in money, and be assessed and levied upon the property of such district or districts, and collected in the same manner as other town charges are assessed, levied and The Law of Highways. 23 collected, except that the amount thereof shall be put in a separate column upon the tax roll, and the board of supervisors of the county shall cause the sum, as certified by the town board, to be levied upon the taxable property of such highway districts. {Id., p. 107.) § 7. iStone-cnishers and materials. — The commissioners of high- ways of any town may, when authorized by a majority vote of the electors voting thereon, by ballot, at the annual or at a special town meeting, purchase a machine for crushing stone, to be used for the improvement of the highways of the town, and when so authorized ; may also expend a sum not exceeding two thousand dollars in any one year, for the purpose of purchasing stone, and quarrying, breaking, crushing and placing the same on the high- ways, and defraying the expenses of operating such machine ; and shall present the account and vouchers for such purchases and expenses to the town board for audit, and the amount audited shall be levied and collected as other town audits. {Id., p. 98.) § 8. Custody of stone-crushers. — Such machine, when purchased, shall be under the care and custody of the commissioners of high- ways of the town ; and where there is an incorporated village con- stituting a separate highway district, in any town, they may, by an agreement with the trustees of the village, permit an equitable use of the machine to such separate village district {Id., p. 98.) § 9. Additional tax. — Whenever the commissioners of highways of any town shall determine that the sum of five hundred dollars will be insufficient to pay the expenses actually necessary for the improvement of highways and bridges, they may cause a vote to be taken by ballot at any town meeting, to be duly called, author- izing such additional sum to be raised as they may deem neces- sary for such purpose, not exceeding one-third of one per centum upon the taxable property of the town, as shown by the last assessment-roll thereof {Id., p. 97.) § 10. Extraordinary repairs of highways or bridges. — If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, the commissioner of highways of the town in which such highway or bridge may be situated, may, with the consent of the town board, cause the same to be imme- diately repaired or rebuilt, although the expenditure of money 24 The Law of Highways. required may exceed the sum raised, or authorized to be raised, for such purposes as hereinbefore provided ; and the commissioners of highways shall present the proper vouchers' for the expenses thereof, to the town board, at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings. {Id., pp. 65, 104.) § 11. Auditing expense thereof. — The town board may be con- vened in special sessions by the supervisor, or in his absence, by the town clerk, upon the written request of any commissioners of highways, and the bills and expenses incurred in the erection or repairs of any such highways or bridges, may then be presented to, and audited by the town board ; 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 cer- tificate 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., pp. 65, 104.) § 12. Accounts, how made out. — No account for services ren- dered, or material furnished according to the provisions of this chapter, shall be allowed by such board unless the same shall be verified in the same manner as town accounts are required by law to be verified, nor unless the commissioners of highways shall certify that the service has been actually performed, and the ma- terial was actually furnished, and that the same was so performed or furnished by the request of such commissioners ; and the town board 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., pp. 65, 104.) 13. Unsafe toll-bridge. — Whenever complaint in writing, on oath, shall be made to the commissioners of highways of any town in which shall be, in whole or in part, any toll-bridge belonging to any person or corporation, representing that such toll-bridge has from any cause become, and is unsafe for the public use, such commissioners of highways shall forthwith ' make a careful and ^ thorough examination of such toll-bridge, and if upon the exami- nation thereof, they shall be of the opinion that the same has from any cause become dangerous or unsafe for public use, they shall The Law of Highways. 25 thereupon give immediate notice to the owners of such toll-bridge, or to any agent of such owners, acting as such agent, in respect to such bridge, that they have on complaint made, carefully and thoroughly examined the bridge, and found it to be unsafe for the public use. Such owners shall thereupon immediately com- mence repairing the same, and cause such repairs to be made within one week from the day of such notice given, or such reasonable time thereafter as may be necessary to thoroughly repair the bridge, so as to make it, in all respects, safe and conve- nient for public use ; and for neglect to take prompt and effective measures so to repair the bridge, its owners shall forfeit twenty- five dollars ; and shall not demand or receive any toll for using the bridge, until the same shall be fully repaired ; and the com- missioners of highways shall cause such repairs to be made, and the owners of the bridge shall be liable for the expenses thereof, and for the services of the commissioners at two dollars per day ; and upon the neglect or refusal to pay the same upon presenta- tion of an account thereof, the commissioners of highways may recover the siame by action, in the name of the town. {Id., p. S34.) § 14. Water pipes in highways. — The commissioners of high- ways may, upon written application of any resident of their town, grant written permission to lay and maintain water pipes and hydrants under ground, within the portion therein described, of any highway within the town, but not under the traveled part of the highway, except across the same, for the purpose of supplying premises with water, upon condition that such pipes and hydrants shall be so laid as not to interrupt or interfere with public travel upon the highway; and the applicant shall replace all earth removed, and leave the highway in all respects in as good condition as before the laying of such pipes. {Id., p. 117.) § 15. Actions for injuries to highways — The commissioners of highways may bring an action, in the name of the town, against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the perform- ance of any duty enjoined upon any person or corporation in re- lation thereto, and to recover any damages sustained or suffered or expenses incurred by such town, in consequence of any act or 26 The Law of Highways. omission of any such person or corporation, in violation of any law or contract in relation to such highway. {Id., p. 118.) § 16. lAahility of towns for defective highways.- — Every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town. No ac- tion shall be maintained against any town to recover such dam- ages, unless a verified statement of the cause of action shall have been presented to the supervisor of the town, within six months after the cause of action accrued ; and no such action shall be commenced until fifteen days after the service of such statement. {Id., pp. 71, 310.) § 17. Action by town against commissioners. — If a judgment shall be recovered against a town for damages to person or property, sustained by reason of any defect in its highways, or bridges, ex- isting because of the neglect of any commissioner of highways, such commissioner shall be liable to the town for the amount of the judgment, and interest thereon ; but such judgment shall not be evidence of the negligence of the commissioners in the action against him. {Id., 74, 120.) § 18. Audit of damages without action. — The town board of any town may audit as a town charge, in the same manner as other town charges are audited, any one claim not exceeding five hundred dollars, for damages to person or property, heretofore or hereafter sustained by reason of defective highways or bridges in the town, if in their judgment it be for the interest of the town so to do ; but no claim shall be so audited, unless it shall have been presented to the supervisor of the town, within six months after it accrued, nor if an action thereon shall be barred by the statute of limitations. The town board may also audit any unpaid judg- ment heretofore or hereafter recovered against a commissioner of highways for anj' such damages, if such town board shall be sat- isfied that he acted in good faith, and the defect causing such damage did not exist because of the negligence or misconduct of the commissioners, against whom such judgment shall have been recovered. {Id., p. 74.) § 19. Beports of Commissioners. — The commissioners of high- The Law of Highways. 27 ways of each town shall make to the town board, at its first meet- ing in each year, a written report stating : 1. i?he labor assessed and performed. 2. The sum received by them for penalties, commutations and all other sources, and an itemized account of all moneys paid out during the year, with receipts in full by the respective parties to whom such money was paid ; 3. The improvements which have been made on the highways and bridges, during the year immediately preceding such report, and the state of such highways and bridges ; they shall also make at the second meeting of said board in each year, a statement of the improvements necessary to be made on such highways and bridges, and an estimate of the probable expense thereof, beyond what the labor to be assessed in that year will accomplish ; a du- plicate of which shall be delivered by the commissioners to the supervisor of the town, who shall present such duplicate state- ment to the board of supervisors, who shall cause the amount so estimated, not exceeding five hundred dollars in any one year, to be assessed, levied and collected, in such town, in the same man- ner as other town charges. {Id. p. 85.) § 20. General duties of overseers. — Each overseer of highways in every town, shall 1. Repair and keep in order the highways within his district. 2. Warn all pei-sons and corporations assessed to work on the highways in his district, to come and work thereon. 3. Cause the noxious weeds within the bounds of the highway within his district, to be cut down or destroyed twice in each year, once before the first day of July, and against before the first day of September ; and the requisite labor therefor shall be considered highway work. 4. Collect all fines and commutation money, and execute all lawful orders of the commissioners. 5. Cause all loose stones lying on the beaten track of every highway within his district, to be removed once in every month, from the first day of April until the first day of December. 6. Cause the monuments erected or to be erected, as the bound- aries of highways, to be kept up and renewed, so that the extent 28 The Law of Highways. of such highway boundaries may be publicly known. {Id. p. 136.) § 21. Opening obstructed highways. — Whenever the labor in any district has been worked out, commuted for, or returned to the supervisor, and the highways are obstructed by snow, or other- wise, and notice has been given to the overseer, in writing, by any two or more inhabitants of the town, liable to payment of high- way tax, requesting the removal of such obstruction, the over- seer of highways in such district, shall immediately call upon all persons and corporations liable to highway tax therein, to assist in removing such obstructions ; and such labor, so called for by the overseer, shall be assessed upon those liable to per- form the same, in proportion to their original assessments. And all persons so called out and failing to appear at the place designated by the overseer, or to commute at a dollar a day, within twenty-four hours after due notice, shall be liable to a 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 action in justice's court, and shall be applied to the purposes specified in this section. The overseer shall be liable to a penalty of five dollars per day, for every day he neglects, without good and sufiicient reasons, to have such highway opened without delay after receiving such written notice, the penalty to be collected in justice's court, by the person first suing for the same, and the penalty shall be paid over to the com- missioners of highways, for the use of the town. {Id., p. 159.) § 22. Penalties against overseers. — rEvery overseer of highways who shall refuse or neglect : 1. To warn the persons and corporations assessed to work on the highways, when he shall have been required so to do, by the commissioners or either of them., 2. To collect the moneys that may arise from fines or commu- tations. 3. To perform any of the duties required by this chapter, or which may be enjoined on him by the commissioners of highways of his town, and for the omission of which no other penalty is provided, shall for every such refusal or neglect, forfeit the sum of ten dollars. {Id., p. 143.) The Law of Highways. 29 § 23. Penalties, how' collected. — The commissioners of highways shall prosecute, in the name of the town, every overseer of high- ways, for any penalties known to the commissioners to have been incurred by the overseer. They shall also upon the complaint of any resident of the town, that any such penalty has been incurred, prosecute such overseer therefor, if satisfied that the complaint is well founded. The costs and expenses incurred by the commis- sioners in good faith, in such proceedings, shall be a town charge, to be audited by the town board. If the commissioners refuse or neglect to prosecute for any such penalty, for thirty days after such complaint shall have been made, the complainant may pros- ecute therefor in the name of the town, upon indemnifying the town for the costs and expenses of such prosecution, in such man- ner as the^ supervisor may approve. If the commissioners shall neglect or refuse to prosecute for any such penalty, knowing that the same has been incurred, they shall be liable to a penalty of ten dollars for every such neglect or refusal, to be recovered by action, in the name of the town, brought by the supervisor, or by any taxpayer of the town who may indemnify the town, for the costs and expenses of the action, in such manner as the supervisor may approve. {Id., p. 145.) § 24. Compensation of overseers. — If any overseer shall be em- ployed more days in executing the several duties enjoined upon 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 money which may come into his hands under this chapter ; but he shall not be permitted to commute for the days he is assessed. (Id., p. 147.) AETICLE II. ASSBSSMBNT FOB HISHWAT LABOR. Section 30. Meetings of commissioners. 31. Lists of inhabitants. 32. Non-resident lands. 83. Assessments of highway labor, how made. 34. Copies of lists delivered to overseers. 85. Names omitted. 30 The Law of Highways. Section 36. Appeals by non-residents. 37. Credit on private roads. 38. Certain assessments to be separate. 89. Tenant to deduct assessment. 40. Reassessment in case of neglect. 41. Omissions of assessors corrected. 43. New assessments by overseers. 43. Sidewalks and trees. 44. Abatement of tax for shade trees. 45. Sidewalk tax anticipated. 46. Certificate of anticipation. 47. Transfer of certificate. 48. Abatement of tax for watering trough. 49. System of taxation defined. 50. Town may change its system. 51. Vote thereon. 53. When change to take effect. 58. Annual tax thereunder. Section 30. Meetings of commissioners. — The commissioners of highways of each town shall meet within eighteen days after the annual town meeting, at the town clerk's ofB.ce, on such day as they shall agree upon, and afterwards at such other times and places as they shall think proper. {Id., p. 62.) § 31. Ldsts of inhabitants. — Each of the overseers of highways shall deliver to the clerk of the town, within sixteen days after his appointment, a list subscribed by him, of the names of all the in- habitants la his highway district, who are liable to work on the highways ; and the town clerk shall deliver such lists to the com- missioners of highways. {Id., p. 143.) § 32. Non-resident lands. — The commissioners of highways in each town, before making the assessment of highway labor, shall make out a list and statement, of the contents of all unoccupied lots, pieces or parcels of land within the town, owned by non-resi- dents ; every lot so designated, shall be described in the same manner as is required from assessors, and its value shall be set down opposite to^the description ; such value shall be the same as was affixed to the lot in the last assessment-roll of the town ; and if such lot was not separately valued in such roll, then in propor- tion to the valuation which shall have been affixed to the whole tract, of which such lot shall be a part. {Id, p. 152.) § 33. Assessments of highway labor, how made. — The commis- The Law of Highways. 31 sioners of highways shall, at their first or some subsequent meet- ing, ascertain, assess and apportion the highway labor to be per- formed in their town, in the then ensuing year, as follows : 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 the town. 2. Every male inhabitant being above the age of twenty-one years (excepting all honorably discharged soldiers and sailors who lost an arm or a leg in the service of the United States, during the late war, or who are unable to perform manual labor by reason of injuries received, or disabilities incurred in such service, persons seventy years of age, clergymen and priests of every denomina- tion, paupers, idiots and lunatics), shall be assessed at least one day. 3. The residue of such days work, shall be apportioned and as- sessed upon the estate, real and personal, of every inhabitant of the town, including corporations liable to taxation therein, as the same shall appear by the last assessment-roll of the town, and upon each tract or parcel of land owned by non-residents of the town contained in the list made by the commissioners, excepting such as are occupied by an inhabitant of the town, which shall be assessed to the occupant. The assessment of labor foi* personal .property, must be in the district in which the owner resides, and real property in the district where it is situated, except that the assessment of labor upon the property of corporations may be in any district or districts of the town, and such labor may be worked out or commuted for, as if the corporation were an inhab- itant of the district ; but the real property within an incorporated village or city, exempted from the jurisdiction of the commission- ers of highways of the town, and personal property of an inhabi- tant thereof, shall not be assessed for highway labor by the com- missioners of highways of the town. Whenever the assessors of any town shall have omitted to assess any inhabitant, corporation or property therein, the commissioners of highways shall assess the same, and apportion the highway labor as above provided. 4. The commissioners shall affix to the name of each person named in the lists furnished by the overseers, and of assessable corporations, and to the description of each tract or parcel of land 32 The Law of Highways. 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 commissioners shall subscribe such lists, and file them with the town clerk. 5. If the commissioners of highways shall neglect for one year, after any highway shall have been laid out, and title thereto ac- quired, to open or work the same, or any part thereof, and any inhabitant or corporation of the town, in or through which the highway runs, shall give ten days notice to the commissioners of the town, that they desire to apply the whole or any part of their highway labor to the working of such highway, the commissioners shall assign such inhabitants and corporations to such highway dis- trict, 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, un- der the direction of any such inhabitant, whom such commission- ers may appoint as an overseer of the labor so to be applied to such highway ; and when the number of days labor assessed in the current year to such inhabitants, as the annual highway tax, is not sufficient to put such highway in good order, the inhabitants and corporations 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 of the town shall more than one-half of its annual labor be taxed and ap- plied to any highway not embraced in such district. {Id., p. 152.) •^ § 34 Copies of list delivered to overseers. — The commissioners of highways shall direct the clerk of the town to make copies of such 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 the list by any overseer to whom the same may be delivered, shall be deemed conclusive evidence of his acceptance of the office of overseer. {Id., p. 34.) § 35. Names omitted. — The names of persons or corporations omitted from any such list, and of new inhabitants, shall from time to time be added to the several lists, and they shall be assessed by the overseers in proportion to their real and personal estate to work on the highways as others assessed by the commissioners on The Law of Highways. 83 such lists, subject to an appeal to the commissioners of highways, {Id., p. 157.) § 36. Appeals hy non-residents. — Whenever any non-resident owner of unoccupied lands shall conceive himself aggrieved by any assessment of any colnmissioner of highways, such owner, or his agent, may, within thirty days after such assessment, appeal to the county judge of the county in which such land is situated, who shall, within twenty days thereafter, hear and decide such appeal, the owner or agent giving notice to the commissioners of high- ways of the time of the hearing before the judge, and his decision thereupon shall be final and conclusive. {Id., p. 158.) § 87. Credit on private roads. — The commissioners of highways of each town shall credit to such persons as live on private roads and work the same, so much on account of their assessments as the commissioners may deem necessary to work such private road or shall annex the private roads to some of the highway districts. {11, p. 155.) § 38. Certain assessments to he separate. — Whenever the commis- sioners of highways shall assess the occupant, 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 such land shall be as- sessed in 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. {Id., p. 155.) § 39. Tenant to 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, and shall actually perform such work, or commute therefor, he shall be entitled to a deduc- tion from the rent due, or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise provided for by agreement between the tenant and his landlord. {Id., p. 158.) § 40. Heassessment in case of neglect. — If it shall appear from the annual return of any overseer of highways, that any person or corporation who was assessed to work on the highways (other than non-residents), has neglected to work the whole number of 2 34 The Law of Highways. days assessed, and has not commuted for, or otherwise satisfied such deficiency, the commissioners of highways shall reassess the deficiency to the person so delinquent; at the next assessment for work for highway purposes, and add it to his annual assessment ; such reassessment shall not exonerate any overseer of highways from any penalty which he may have incurred under the pro- ' visions of this chapter. {Id., p. 174.) § 41. Omissions of assessors corrected. — Whenever the assessors of any town shall have omitted to assess any inhabitant or prop- erty in their town, the commissioners of highways shall assess the persons and property so omitted, and shall apportion highway labor upon such persons or property, in the same manner as if they had been duly assessed upon the last assessment-roll. {Id., p, 157.) § 42. New assessments by overseers. — "When the quantity of labor assessed on the inhabitants of any district by the commissioners of highways, shall be deemed insufficient by the overseer of the dis- trict to keep the highways therein in repair, such overseer shall make another assessment on the actual residents of the district, in the same proportion, as near as may be, and ijot exceeding one- third of the number of days assessed in the same year by the com- missioners, on the inhabitants of the district; and the labor so assessed by an overseer, shall be performed or commuted for in like manner, as if the same had been assessed by commissioners of highways. {Id., p. 159.) § 43. Sidewalks and ttees. — The commissioners of highways may, by an order in writing duly certified by a majority of them, au- thorize the owners of property adjoining the highways, at their own expense, to locate and plant trees, and locate and construct sidewalks along the highways in conformity with the topography thereof, which order, with a map or diagram showing the location of the sidewalk and tree planting, certified by the commissioners, shall be filed in the office of the clerk of the town where the highway is located, within ten days after the making of the order. {Id, p. 166.) (R. S., p. 1400, post, p. 917.)* * 8o in the original. The Law of Highways. 35 § 44. Abatement of tax for shade trees. — Any ihhabitant liable to highway tax, who shall hereafter, pursuant to such an order, trans- plant by the side of the highway adjoining his premises, any forest shade trees, fruit trees, or any nut bearing trees, suitable for shade trees, shall be allowed by the overseers of highways, or other officer having charge of the highway, in abatement of his high- way tax, one dollar for every four trees set out ; but all trees must have been set out the year previous to such allowance, and be living and well protected from animals at the time of the allow- ance, and not further than eight feet from the outside line of any highway three rods wide, and not more than one additional foot further therefrom, for each additional rod in width of highway, and not less than seventy feet apart, on the same side of the high- way, if elms, or fifty feet if other trees ; trees transplanted by the side of the highway, in place of trees which have died, shall be allowed for in the same manner. Such abatement of highway tax to any person, shall not exceed one-quarter of his annual high- way tax in any one year ; but such abatement shall be allowed by the overseer of highways, or other officers having charge of the highway, annually, until it shall have equalled the whole number of trees set out, at the rate herein specified. {Id., p. 166.) § 45. Sidewalk tax anticipated.— The commissioners of highways of any town, may, upon the written application of a majority of the inhabitants in any highway district, subject to assessment for highway labor therein, authorize not more than one-quar- ter of the highway labor of the district, or of the commutation money received therefor, to be expended under the direction of the overseer of highways of the district, in the construction, repairs and improvement of any sidewalks within the limits of the district, and may by writing signed by them, filed with the town clerk, authorize not more than one-fourth of the highway labor of the district to be anticipated for not more than three years, for con- structing, improving and repairing any such sidewalk ; and there- upon any person or corporation, assessed for highway labor in the district, may, for such purpose, anticipate his or its assessment for highway labor for the term prescribed by the commissioners, and may perform such labor, under the direfetion of the overseer, within such time, or commute therefor. {Id, p. 165.) 36 The Law of Highways. § 46. Certificate of anticipation.— The overseer shall give to such person or corporation, upon the performance of such labor or com- mutation therefor, a certificate signed by him, showing the num- ber of days labor so anticipated and worked, or commuted for, by such person or corporation; and in each succeeding year, upon presentation of such certificate, the person or corporation shall be credited and allowed by the overseer of highways with the per- formance of the number of days labor assessed for such year, until the credit shall equal the number of days stated in the certificate to have been anticipated, and shall indorse thereon a statement signed by him, showing the credit and allowance. {Id., p. 165.) § 47. Transfer of certificate. — Such certificate may be transferred to any grantee, upon a voluntary grant of the real property upon which such highway labor is assessable, and if such real property is transferred otherwise than by voluntary grant, it shall be deemed to have been transferred to the person succeeding thereto, and in the hands of any such transferee, it shall have the same effect as when held by the original owner. {Id., p. 165.) § 48. Abaienient of tax for watering trough. — The commissioners of highways shall annually abate three dollars from the highway tax of any inhabitant of a highway district, who shall construct on his own land therein, and keep in repair a watering trough be- side the public highway, well supplied with fresh water, the sur- face of which shall be two or more feet above the level of the ground, and easily accessible for horses with vehicles; but the number of such watering troughs in the district, and their location, shall be designated by the commissioners. {Id., p. 167.) ^ § 49. System of taxation defined. — The system of taxation for working and repairing highways, as hereinbefore provided, shall be known as " The Labor System of Taxation," and the system hereinafter provided, shall be known as " The Money System of Taxation." {Id., p. 181.) § 50. Town may change its system. — Any town may change its system of taxation for working and repairing its highways, by complying with the following provisions relating thereto. {Id., p. 181.) § 51. Vote thereon. — Upon the written request of twenty-five taxpayers of any town, the electors thereof may, at each annual The Law of Highways. 87 town meeting, vote by ballot upon the question of changing the system of taxation for working the highways ; but no person re- siding in an incorporated village or city, exempted from the juris- diction of commissioners of highways of the town, shall sign such request, or vote upon such question. {Id., p. 181.) § 52. When change to take effect. — When a town shall have voted to change the system of working and repairing the highways, as herein provided, such change shall not take effect until the next annual meeting of the board of supervisors, after the town meet- ing at which it was decided to make the change ; and until such ■ annual meeting of the board of supervisors the former system of repairing highways shall remain in force in such town. {Id., p. 183.) § 53. Annual tax thereunder. — Any town voting in favor of the money system shall annually raise by tax, to be levied and collec- ted the same as other town taxes, for the repair of the highways, an annual sum of money, which shall be at least equal to one-half the value, at the commutation rates, of the highway labor which should be assessable under the labor system. The amount of such tax shall be determined by the commissioners of highways and the town board, who shall certify the same to the board of super- visors, the same as any other town charge. {Id., p. 183.) ARTICLE III. THE DUTIES OF OVBKSBEKS OF HldlHWATS, AND THE PERFORMANCE OP HIGH- WAY LABOR. Section 60. Notice to work. 61. Notice to non-residents. 63. Commutation. 63. Teams and implements. 64. Substitutes. 65. Penalties for neglect to work or commute. 66. Assessment for unperformed labor. 67. Penalty for refusal of overseer to provide list. 68. Collection of arrearages for unperformed labor. 69. Annual return of overseers. 70. Noxious weeds in higbway. 71. Overseers to notify occupant to remove weeds. 73. Abatement of tax for removal of fence. 73. Abatement of tax for street lamps. 38 The Law of Highways. Section 60, Notice to work. — Every overseer of highways shall give at least twenty -four hours notice to all residents of his district, and corporations assessed to work upon the highways therein, of the time and place at which they are to appear for that purpose, and with what teams and implements, and that they will be allowed at the rate of one day for every eight hours of work on the high- ways, between seven o'clock in the forenoon and six o'clock in the afternoon. The notice to corporations shall be served personally on an agent thereof residing in the town, if any, or if none, by • filing the notice in the office of the town clerk, at least five days before the labor shall be required ; and any number of days not exceeding 'fifty, may be required to be performed by any such cor- poration in any one day. {Id., p. 161.) § 61. Notice to non-residents. — Every overseer of highways shall give at least five days notice to every resident agent of every non- resident landholder whose lands are assessed, of the number of days such non-resident is assessed, and the time and place at which the labor is to be performed. If the overseer cannot ascertain that such non-resident has an agent within the town, he shall file a written notice in the office of the town clerk, at least twenty days before the time appointed for performing such labor, contain- ing the names of such non-residents, when known, and a descrip- tion of the lands assessed, with the number of day's labor assessed on each tract, and the time and place at which the labor is to be performed. {Id., p. 161.) § 62. Commutation. — Every person and corporation, shall work the whole number of days for which he or it shall have been assessed except such days as shall be commuted for, at the rate of one dollar per day, and such commutation money shall be paid to the overseer of highways of the district in which the labor shall be assessed, within at least twenty-four hours before the time when the person or corporation is required to appear and woik on the highway ; but any corporation may pay its commutation money to the commissioners of highways of the town, who shall pay the same to the overseers of the districts respectively, in which the labor commuted for was assessed. {Id. p. 163.) § 63. Teams and implements. — Every overseer of highways may require a team, or a cart, wagon or plow, with a pair of horses or The Law of Highways. 89 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 commuted for his assessment ; and the person furnishing the same upon such requisition, shall be entitled to a credit of three days for each day's serviee there- with. {Id. p. 167.) § 64. /Substitutes. — Every person or corporation assessed to work on the highways, and warned, who does does* not commute there- for, may appear in person or by an able bodied man as a sub- stitute. A day's labor shall be eight hours of work, and every person or corporation assessed more than one day shall be allowed to work ten hours in each day. {Id. p. 168.) § 65. Penalties for neglect to work or commute. — Every person or corporation assessed highway labor, who shall not commute, and who shall not appear and work when duly notified, shall be liable to a penalty of one dollar and fifty cents for every day he shall so fail to appear and work ; and for wholly omitting to comply with any requisition to furnish a team, cart, wagon, implements and man, he shall be liable to a penalty of five dollars for each day's omis- sion, and for omitting to furnish either a cart, wagon, plow, team or man to manage the team, he shall be liable to a penalty of one dollar and fifty cents for each day's omission ; and if any person shall after appearing, remain idle, or not work faithfully, or hin- der others from working, he shall be liable to a penalty at the rate of one dollar and fifty cents a day, for each hour. The penalties herein imposed, may be recovered by action by the overseer of highways as such, and when collected, shall be expended or dis- posed of by the overseer in the same manner as commutation moneys. The penalties, when recovered, shall be applied in satis- faction of the labor assessed, for omission to perform which, the penalties were respectively imposed. The overseer of highways may excuse any omission to perform labor when required, if a satisfactory reason shall be given therefor ; but the acceptance of any such excuse shall not exempt the person excused from com- muting for, or working the whole number of days for which he shall have been assessed during the year. {Id. p. 168.) * So in the original. 40 The Law of Highways. § 66. Assessment for unperformed labor. — Every overseer of highways shall, on or before the first day of October in each year, make out and deliver to the supervisor of his town, a list of all persons and corporations who have not worked out or commuted for their highway assessment, with the number of days not worked or commuted for by each, charging for each day in such a list at the rate of one dollar and fifty cents per day ; and also a list of all the lands of non-residents and persons unknown, which were assessed on his warrant by the commissioners of highways, or added by him, on which the labor assessed has not been per- formed or commuted for, and the number 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 affidavit of the overseer, that he has given the notice required, to appear and work, and that the labor specified in the list returned has not been performed or commuted, and the supervisor shall present such lists to the board of supervisors of his county. {Id., 171.) § 67. Penalty for refusal of overseer to provide list-^li any over- seer shall refuse or neglect to deliver such list to the supervisor or to make the affidavits as herein directed, he shall for every such offense forfeit the sum of ten dollars, and the amount of 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 in making and improving the highways and bridges of the delinquent overseer's district. {Id., p. 171.) § 68. Collection of arrearages for unperformed labor. — Each board of supervisors, at its annual meeting in each year, shall cause the amount of such arrearages for highway labor returned to them, estimating each day's labor at one dollar and fifty cents a day, to be levied and collected from the real or personal estate of the per- son, corporation, or from the non-resident real estate, specified in such list, to be collected by the collectors of the several towns, in the same manner that other town taxes are collected, and shall order the same, when collected, to be paid over to the commis- sioners of highways of the town wherein the same is collected, to be by them applied toward the construction, repairs and improve- ment of the highways and bridges in the district in which the labor was originally assessed. {Id., p. 171.) The Law of Highways. 41 § 69. Annual return of overseers. — Every overseer of highways shall, on the second Tuesday next preceding the time of holding the annual town meeting in his 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 containing ; 1. The names of all persons assessed to work on the highways in tbe 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 from whom penalties have been col- lected, and the amounts thereof. 4. The names of all those who have commuted, and the manner in which the moneys arising from penalties and commutations have beea expended by him. 5. A list of all persons whose names he has returned to the supervisor as having neglected or refused to work out their high- way assessments, with the number of days and the amount of tax so returned for each person, and a list of all the lands which he has returned to the supervisor for non-payment of taxes, and tlie amount of tax on each tract of land so returned ; and he shall then and there pay to the commissioners of highways all money remaining in his hands unexpended,, to be applied by them in making and improving the highways and bridges of the town, in such manner as they shall direct ; and if he shall neglect or refuse to render such account, or if, having rendered the same, he shall refuse or neglect to pay any balance which then may be due from him, he shall for every such offense forfeit the sum of ten dollars. {Id., p. 171.) § 70. Noxious weeds in highways. — Every person or corporation, owning or occupying, under a lease for one or more years, any cultivated or inclosed lands, abutting upon any highway, shall cause all noxious weeds, briers, and brush growing upon such lands within the bounds of the highway, to be cut or destroyed between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first day of Septem- ber, in each and every year ; but boards of supervisors may fix a different period, or periods, for such cutting or destruction in 42 The Law of Highwahs. their respective counties. Ko person shall place, or cause to be placed, any noxious weeds, or the seeds of such weeds, within the bounds of any public highway. Any willful violation of this section shall subject the person or corporation so offending to a penalty of ten dollars for each offense. {Id., p. 302.) § 71. Overseers to notify occupants to remove weeds. — The over- seers of every highway district shall given written notice to any occupant of the premises to cut all weeds, briers and brush girow- ing within the bounds of the highway ; if such occupant shall not cut such weeds, briers and brush as so required within ten days after receiving such notice, such overseer shall employ some one to do such work, and and* make a report under oath to the commissioners of highways^ of the amount expended by him thereon, and the ownership and occupancy of the several parcels of land against which the labor was performed, on or before the first day of November in each year ; the commissioners of high- ways shall certify these statements to the supervisor of the town, and the supervisor shall lay the same before the board of super- "visors at its next annual meeting, and such board shall include the amounts included in such statements in the taxes assessed upon the lands, upon or against which the labor was performed, the same to be collected with the other taxes, and paid over upon the order of the supervisor to the parties entitled thereto. {Id., p. 303.) § 72. Abatement of tax for removal of fence. — Any inhabitant liable to a highway tax, who shall remove from lands owned or occupied by him, the fence along any public highway, for the purpose of preventing the drifting of snow into such highway, shall be 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, pursuant to the directions of the overseer of highways. {Id., p. 167.) § 73. Abatement of tax for street lamps. — Any person or corpora- tion owning or holding real estate, or other property liable to highway tax, except in the county of Kings, other than in cities and incorporated villages, who shall, with the consent of the over- *So in the original. The Law of Highways. 43 seer of highways in charge of the district in which such property is assessed, and in such places as he may direct, erect a street lamp, and cause the same to be properly attended to and kept burning during such hours of each night as the overseer of high- ways may direct, shall be allowed by the overseer of -highways, in abatement of such highway tax, six dollars annually, or such portion of six dollars as the annual highway taxes upon such real estate or other property may be. (Id., p. 167.) ARTICLE IV. liATING OUT ALTERING AND DISCONTINUING HIGHWAYS AND LAYING OUT PBIVATB KOADS. Section 80. Highways by dedication. 81. Survey. 83. Application. 83. Application for commissioners. 84. Appointment of commissioners, and their duties. 85. Notice of meeting. 86. Decision of commissioners in favor of application. 87. Damages in certain cases, how estimated. 88. Decision of commissioners denying application. 89. Motion to confirm, vacate or modify. 90. Limitation upon laying out highways. 91. Laying out highways through burying grounds. 92. Costs, by whom paid. 93. Damages assessed, and costs to be audited. 94. When officers of different towns disagree about highway. 95. Difference about improvements. . 96. Highways in two or more towns. 97. Laying out highway upon town line. 98. Final determination, how carried out. 99. Highways abandoned. 100. Highways by use. 101. Fences to be removed. 102 Penalty for falling trees. 108. Fallen trees to be removed. 104. Penalty for obstruction or encroachment. 105. How removed, and liability for not removing. 106. Private road. 107. Jury to determine necessity, and assess damages. 108. Copy application and notice delivered to applicant. 109. Copy and notice to be served. 110. List of jurors. 111. Names struck off. 44 The Law of Highways. Section 112. Place of meeting. 113. Jury to determine and assess damages. 114. Their verdict. 115. Value of highway discontinued. 116. Papers to be recorded in town clerk's oflBce. 117. Damages to be paid before opening the road. 118. Fees of officers. 119. Motion to confirm, vacate or modify. 120. Costs of new hearing. 121. For what purpose private road to be used. 123. Highways or roads along division lines. 133. Adjournmentg. § 80. Highways by dedication. — Whenever land is dedicated to a town for highway purposes therein, the commissioners of high- ways of such town may, either with or without a written applica- tion therefor, and without expense to the town, make an order laying out such highway, upon filing and recording in the town clerk's office, with such order, a release of the land from the owner thereof. Such commissioners of highways m&y also, upon written application, and with the written consent of the town board, make an order laying out or altering a highway in their town, upon filing and recording in the town clerk's office, with such applica- tioii, consent and order a release of all damages from the owners of lands taken or affected thereby, when the consideration for such release, as agreed upon between such commissioners and owners, shall not, in any one case, from any one claimant, exceed one hundred dollars, and from all claimants, five hundred dollars. An order of the commissioners, as herein provided, shall be final. {Id., p. 89.) § 81. Survey. — Whenever the commisioners of highways shall lay out any highway, either upon application to them or other- wise, they shall cause a survey thereof to be made, and shall in- corporate the 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. {Id., p. 188.) § 82. Application. — Any person or corporation assessable for highway labor, may make written application to the commission- ers of highways of the town in which he or it shall reside, or is assessable, to alter or discontinue a highway, or to lay out a new highway. {Id., p. 186.) The Law of Highways. • 45 § 83. Application for commissioners — Whenever the land is not dedicated to the town for highway pai-poses, and not released as herein provided, the applicant shall, within thirty days after pre- senting the application to the commissioners of highways, by ver- ified petition showing the applicant's right to so present the same, and that such application has been in good faith presented, apply to the county court of the county where such highway shall be, for the appointment of three commissioners to determine upon the necessity of such highway proposed to be laid out or altered, or to the uselessness of the highway proposed to be discontinued, and to assess the damages by reason of the laying out, opening, altering or discontinuing of such highway, (/d, p. 187.) § 84. Appointment of commissioners and their duties. — Upon the presentation of such petition, the county court shall appoint three disinterested freeholders, who shall not be named by any person interested in the proceedings, who shall be resident of the county, but not of the town wherein the highway is located, as commis- sioners to determine the questions mentioned in the last section. They shall take the constitutional oath of office, and appoint a time and place at which they shall all meet to hear the commis- sioners of highways of the town where such highway is situated, and others interested therein. They shall personally examine the highway described in the application, hear any reasons that may be offered for or against the laying out, altering or discontinuing of the highway, and assess all damages by reason thereof. They may adjourn the proceedings before them from time to time, issue subpoenas and administer oaths in such proceedings, and they shall keep minutes of their proceedings, and shall reduce to writ- ing all oral evidence given before them upon the subject of the assessment of damages. They shall make duplicate certificates of their decision, and shall file one in the town clerk's office of the town, and the other, with such minutes and evidence, in the county clerk's office of the county in which the highway or proposed highway is located. § 85. Notice of meeting. — The applicant shall cause, at least eight days previous written or printed notice to be posted up in not less than three public places in the town specifying, as near as may be, the highway proposed to be laid out, altered or disoon- 46 The Law of Highways. tinned, the tracts or parcels of land through which it runs, and the time and place of the meeting of the commissioners appointed by the county court to examine the highway as mentioned in the last section. Such notice shall also, in like time, be personally served on the owner and occupant of the land, if they reside in the town, or by leaving the same at their residence with a person of mature age ; if they do not reside in the same town, or service cannot be made, a copy of such notice shall be mailed to such owner and oc- cupant, if their postoffice address is known to such applicant or ascertainable by him upon reasonable inquiry, (/d, p. 188.) § 86. Decision of commissioners in favor of application.^^i a ma- jority of the commissioners appointed by the county court shall determine that the highway or alteration applied for is necessary, or that the highway proposed to be discontinued is useless, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that effect {Id., p. 188.) § 87. Damages in certain cases, how estimated. — The owner of lands within the bounds of a highway discontinued may inclose the same and have the exclusive use thereof, and the benefits re- sulting therefrom may be deducted in the assessment of damage caused by the laying out of a highway through his other lands in place of the discontinued highway. {Id., p. 188.) § 88. Decision of commissioners denying application. — If a ma- jority of the commissioners appointed by county court shall deter- mine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless, they shall make duplicate certificates to that effect. {Id., p. 188.) § 89. Motion to confirm, vacate or modify. — Within thirty days after the decision of the commissioners shall have been filed in the town clerk's office any party interested in the proceeding may ap- ply to the court appointing the commissioners for an order con- firming, vacating or modifying their decision, and such court may confirm, vacate or modify such decision. If the decision be va- cated the court may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such mo- tion shall be brought on, upon the service of papers upon adverse The Law of Highways. 47 parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein ; and the decision of the county court shall be final, excepting that a new hearing may be ordered as herein provided. If the final decision shall be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years. {Id., p. 188.) § 90. Limitations upon laying out highways. — No highway shall be laid out less than three rods in width, nor through an orchard of the growth of four years or more, or any garden cultivated as such for four years or more, or grape vineyard of one or more years growth, and used in good faith for vineyard purposes, or buildings, or any fixtures or erections for the purposes of trade or manufactures, or any yard or inclosure necessary to the use and enjoyment thereof, without the consent of the owner or owners thereof, unless so ordered by the county court of the county in which the proposed highway is situated ; such order shall be made on the certificate of the commissioners of highways of the town or towns in which the proposed highway is situated, showing that the public interest will be greatly promoted by the laying out and opening of such highway, and that commissioners ap- pointed by the court have certified that it is necessary ; a copy of the certificate, with eight days' notice of the time and place of the hearing before the county court, shall be served on the owners of the land, or if they are not residents of the county, upon the occupants ; the county court upon such certificates, and the proofs and other proceedings therein, may order the highway to be laid out and opened, if it deems it necessary and proper. The com- missioners of highways shall then present the order of the county court, with the certificate and proofs upon which it was granted, certified by such court to the general term of the supreme court in the judicial department in which the land is situated, upon the usual notice of motion, served upon the owner or occupant, or the attorney who appeared for them in the county court. If such general term of the supreme court shall confirm the order of the county court, the commissioners of highways shall then lay out and open such highway as in other cases. The provisions of this section shall not apply to vineyards planted, or to buildings, fix- 48 The Law of Highways. tures, erections, yards or inclosures, made or placed on such, land after an application for the laying out and opening the highway shall have been made. {Id., pp. 90, 190.) § 91. Laying out highways through burying -grounds. — No private road or highway shall be laid out or constructed upon or through any burying-ground, unless the remains therein contained are first carefully removed and properly reinterred in some other burying- ground, at the expense of the persons desiring such road or high- way, and pursuant to an order of the county court of the county in which the same is situated, obtained upon notice to such per- sons as the court may direct. {Id., pp. 90, 196.) § 92. Costs, ly whom paid. — In all cases of assessments of dam- ages by commissioners appointed by the court, the costs thereof shall be paid by the town except when reassessment of damages shall be had on the application of the party for whom the dam- ages were assessed, and such damages shall not be increased on such reassessment, the costs shall be paid by the party applying for the reassessment ; and when application shall be made by two or more persons for the reassessment of damages, all persons who may be liable for costs under this section shall be liable in pro- portion to the amount of damages respectively assessed to them by the first assessment, and may be recovered by action in favor of any person entitled to the same. Each commissioner appointed by the court, for each day necessarily employed as such, shall be entitled to six dollars and his necessary expenses. {Id., p. 240.) § 93. Damages assessed, and costs to be audited. — All damages to be agreed upon, or which may be finally assessed, and costs against the town, as herein provided, shall be laid before the board of supervisors, by the supervisor pf 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 highway is situated, and the money so collected shall be paid to the commissioners of highways of such town, who shall pay to the owner the sum as- sessed to him, and appropriate the residue to satisfy the charges aforesaid. {Id., p. 246.) § 94. When officers of different towns disagree about highway. — The Law of Highways. 49 When tlie commissioners of highways of any town, or officers of any village or city having the powers of commissioners of high- ways, shall differ with the commissioners of highways of any other town, or with the officers of such a village or city having the powers of commissioners of highways in the same county, re- lating to the laying out of a new highway or altering an old high- way extending into both towns, or a town and a village or city, or when commissioners of highways of a town in one county, shall differ with the commissioners of highways of a town, or the officers of a village or city having the powers of commissioners of highways, in another county, relating to the laying out of a new highway, or the alteration of an old highway, which shall extend into both counties, the commissioners of highways of both towns, or the officers of the village or city having such powers, shall meet on five days' written notice, specifying the time and place, within some one of such towns, villages, or cities, given by either of such commissioners or officers having powers of commissioners .of highways, to make their determination in writing, upon the subject of their differences. If they cannot agree, they or either of them may certify the fact of their disagreement to the county court of the county, if the proposed highway is all in one county, or if in different counties, or if the county judge is disqualified or unable to act, to the supreme court ; such court shall thereupon appoint three commissioners, freeholders of the county, not resi- dents of the same town, village or city where the highway is located ; or if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and upon due notice to all persons interested, view the proposed highway, or proposed alteration of a highway, administer all necessary oaths, and take such evidence as they shall deem proper, and shall decide (subject to the approval of the court, as hereinafter provided) all questions that shall arise on the hearing, as to the laying out or altering of such highway, its location, width, grade and character of road-bed, or any point that may arise relating thereto ; and if they decide to open or alter such highway, they shall ascertain and appraise the damages, if any, to the individual owners and occu- pants of the land through which such new or altered highway is 3 50 The Law of Highways. proposed to pass, and sliall report such evidence and decision to such court, with their assessment^of damages, if any, with all con- venient speed. On the coming in of such report, the court may, by order, confirm, modify or set aside the report in whole or in part, and may order a new appraisal by the same or other com- missioners, and shall decide all questions that may arise before it. And all orders and decisions in the matter shall be filed in the county clerk's office of each county where the highway is located, and shall be duly recorded therein. {Id., p. 210.) ^§ 95. Difference about improvements. — When the commissioners of highways of a town, or the officers of a village or city having the powers of commissioners of highways therein, shall desire to make a new or altered highway extending beyond the bounds of such town, village or city, a better highway than 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 thereof beyond such bounds, but cannot agree in regard to the same, upon written application of either of the com-_ mis,sioners or officers, and notice to all parties interested, such court shall make an equitable adjustment of the matters, and may direct, that in consideration of the payment of such portion of the addi- tional expense by the town, village or city that desires the improved and better highway, as shall be equitable, its officers, contractors, servants and agents may go into such town, village or city, and make the grade' and road-bed, and do whatever may be necessary and proper for the completion of such better highway, advancing the money to do it ; the amount of damages to each owner or oc- cupant shall be ascertained and determined by commissioners, who shall be appointed, and whose proceedings shall be conducted in the manner provided by the last preceding section ; and upon the coming in of their report of damages, and of the expenses paid, such court shall, on notice to all parties interested, direct that the amount of damages assessed to each owner or occupant, if any, and all such expenses be paid by each, any or all of such towns, villages or cities as shall be just and equitable, and the damages and expenses assessed and allowed, as in this and the last preced- ing sections, shall be paid and collected as if fixed by the com- missioners of highways of the towns, or the officers of such villages The Law of Highways. 51 or cities having the powers of such commissioners. Every com- missioner appointed as herein provided shall be paid six dollars for each day actually and necessarily employed in such service and necessary expenses. {Id, p. 211.) § 96. Highway in two or more towns. — When application is made to lay out, alter or discontinue a highway located in two or more towns, all notices or proceedings required to be served upon the commissioners of highways shall be served upon the commis- sioners of highways of each town; and the commissioners ap- pointed by the court shall determine the amount of damages to be paid by each town, and when the towns are in different counties the application for the appointment of commissioners shall be made to a special term of the supreme court held in the district where the highway or some part of it is located ; and the same proceedings shall thereafter be had in the supreme court of such district as are authorized by this chapter to be had in the county court. {Id., p. 211.) § 97. Laying out highway upon town line. — An application to lay out a highway upon the Jine between two or more townSj shall be made to the commissioners of highways of each town, who shall act together in the matter, and upon laying out any such highway, they shall divide it into two or more highway districts, in such manner that the labor and expense of opening, working and keeping the same in repair through each of such districts, may be equal as near as may be, and to allot an equal number of the districts to each of the towns ; each district shall be considered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the highway, and for keeping it in repair ; and the commissioners of highways shall cause the highway, and the partition and allotment thereof to be recorded in the office of the town clerk, in each of their respective towns. {Id pp. 82, 212.) § 98, Final determination, how carried out. — The final determi- nation of commissioners appointed by any court, relating to the laying out, altering or discontinuing a highway, and all orders and other papers filed or entered in the proceedings, or certified copies thereof from the court where such determination, order and papers are filed and entered, shall be forthwith filed and recorded in the 52 The Law of Highways. town clerk's office of the town where the highway is located ; and every such decision shall be carried out by the commissioners of highways of the town, the same as if they had made an order to that effect. {Id. p. 221.) § 99. Highways abandoned. — Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway ; but the period during which any action or proceeding shall have been, or shall be pending in regard to any such highway, shall form no part of such six years ; and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway. The commissioners of highways shall file, and cause to ' be recorded in the town clerk's office of the town, written description, signed by them, of each highway so abandoned, and the same shall thereupon be discon- tinued. {Id. p. 229.) § 100. Highways by use. — All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the com- missioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods. {Id. p. 215.) § 101. Fences to be removed. — "Whenever a highway shall have been laid out though any inclosed, cultivated or improved lands, in conformity to the provisions of this chapter, the commissioners of highways shall give to the owner or occupant of the land through which such highway shall have been laid, sixty days' no- tice in writing to remove his fences ; if such owner shall not re- move his fences within the sixty days, the commissioners shall cause them to be removed, and shall direct the highway to be opened and worked. {Id. p. 215.) § 102. Penalty for falling trees. — If 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 the 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 The Law of Highways. 53 for every day the same shall remain in the highway, river or stream. {Id. p. 298.) § 103. Fallen trees to be removed. — If any tree shall fall, or be fallen by any person from any inclosed land into any highway, any person may give notice to the occupant of the land from which the tree shall have fallen, to remove the same within two days ; if such tree shall not be removed within that time, but shall continue in the highway, the occupant of the land shall for- feit the sum of fifty cents for every day thereafter, until the tree shall be removed. {Id., p. 298.) § 104. Penalty for obstruction or encroachment. — Whoever shall obstruct or encroach upon any highway, or shall unlawfully fill up or place any obstruction in any ditch for draining the water from any highway, shall forfeit for every such ofiEense the sum of five dollars. {Id., p. 800.) § 105. How removed and liability for not removing. — The com- missioners of highways shall serve upon the owner or occupant of lands adjoining that part of a highway within their town, in which any obstruction or encroachment may exist, a notice speci- fying the extent and location of such obstruction or encroachment, and directing such owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice. If such owner or occupant shall neglect or refuse to remove such obstruction or encroachment within such time, he shall forfeit to the town the sum of twenty-five dollars ; and the commi^sioners may remove such obstructions or encroachments at the expense of the town, which may be recovered by action of such owner or occupant ; or the said commissioners may bring an action in any court of competent jurisdiction to compel such owner or occupant to remove such obstruction or encroachment. Actions by commissioners of highways, as in this section provided, shall be in the name of the town. {Id., p. 300.) § 106. Private road. — An application for a private road shall be made in writing to the commissioners of highways of the towQ in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants 54 The Law of Highways. of the land through which it is proposed be laid out. {Id., p. 420.) (R. S. pp. 1379, 1383 ; post, pp. 882-893.)* § 107. Jury to determine necessity and assess damages. — One or more of the commissioners to whom the application shall be made, shall appoint as early a day as the convenience of the parties in- terested will allow, when, at a place designated in the town, 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. {Id, p. 421.) § 108. Copy application and notice delivered to applicant. — Such commissioners shall deliver to the applicant a copy of the appli- cation, to which shall be added a notice of the time and place ap,- pointed for the selection of the jury, addressed to the owners and occupants of the land. {Id., p. 421.) § 109. Copy and notice to be served. — The applicant on receiving the copy and notice shall, on the same day, or the next day there- after, excluding Sunday and holidays, cause such copy and notice to be served upon the persons to whom it is addressed, by deliver- ing to each of them who reside in the same town a copy thereof, or in case of his absence, by leaving the same at his residence, and upon such as reside elsewhere, .by depositing in the post-office a copy thereof to each, properly inclosed in an envelope, ad- dressed to them respectively at their post-office address, and pay- ing the postage thereon, or, in case of infant owners, by like service upon their parent or guardian. {Id., p. 421.) § 110. List of jurors. — At such time and place, on due proof of the service of the notice, one or more of the commissioners shall present a list of the names of eighteen resident freeholders of the town, in no wise of kin to the applicant, owner or occupant, or either of them, and not interested in such lands. {Id., p. 421.) § 111. Names struck off. — The owners or occupants of the land, may strike from the list not more than six names, and the appli- cant a like number ; and of the number which remain, the six names standing first upon the list shall be the jury. {Id, p. 421.) §' 112. Place of meeting. — The commissioner or commissioners * So in the original. The Law of Highways. 55 present, shall then appoint some convenient time and place for the jury to meet, and shall summon them accordingly. {Id., p. 422.) § 113. Jury to determine and assess damages. — At least one com- missioner and all the persons named and summoned on such jury, shall meet at the time and place appointed ; but if one or more of the six jurors shall not appear, the commissioner or commissioners present shall summon so many qualified to serve as such jurors as will be sufficient to make the number present six, to forthwith ap- pear and act as such ; and when six shall have so appeared, they shall constitute the jury, and shall be sworn well and truly to de- termine as to the necessity of the road, and to assess the damages by reason of the opening thereof. {Id., p. 422.) § 114. Their verdict. — The jury shall view the premises, hear the allegations of the parties, and such witnesses as "they may produce, and if they shall determine that the proposed road is necessary, they shall assess the damages to the person or persons through whose land it is to pass, and deliver their verdict in writing to the commissioners. {Id., p. 423.) § 115. Value of highway discontinued. — If the necessity of such private road has been occasioned by the alteration or discontinu- ance of a public highway running through the lands belonging to a person through whose lands the private road is proposed to be opened, the jury shall take into consideration the value of the highway so discontinued, and the benefit resulting to the person by reason of such discontinuance, and shall deduct the same from the damages assessed for the opening and laying out of such pri- vate road. {Id., p. 423.) § 116. Papers to he recorded in the town chrWs office. — The com- missioners shall annex to such verdict the application, and their- certificate that the road is laid out, and the same shall be filed and recorded in the town clerk's office. {Id., p. 423.) § 117. Damages to he paid before opening the road. — The dam- ages assessed by the jury shall be paid by the party for whose benefit the road is laid out, before the road is opened or used ; but if the jury shall certify that the necessity of such private road was occasioned by the alteration or discontinuance of a public high- way such damages shall be paid by the town, and refunded to the applicant. {Id., p. 423.) 56 The Law of Highways. § 118. Fees of officers. — Every juror, in proceedings for a pri- vate road, shall be entitled to receive for his services one dollar and fifty cents ; and commissioners of highways, their per diem compensation, to be paid by the applicant. (iS., p. 423.) § 119. Motion to confirm, vacate or ^modify. — Within thirty days after the decision of the jury shall have been filed in the town clerk's office, the owner or occupant miay apply to the county court of the county wherein such private road is situated, for an order confirming, vacating or modifying their decision ; and such court may confirm, vacate or modify such decision as it shall deem just and legal. If the decision is vacated, the court may order another hearing of the matter before another jury, and remit the proceed- ing to the commissioners of highways of the same town for that purpose. If no such motion is made, the decision of the jury shall be deemed final. The motion shall be brought on, upon the ser- vice of papers on the adverse party in the proceeding, according to the usual practice of the court in actions and special proceed- ings pending therein, and the decision of the county court shall be final, except that a new hearing may be had, as herein provided. If the final decision shall be adverse to the applicant, no other ap- plication for the same road shall be made within two years. {Id., p. 424.) § 120. Costs of new hearing. — If, upon a new hearing, the dam- ages assessed are increased, the applicant shall pay the costs and expenses thereof, otherwise the owner shall pav the same. {Id., p. 425.) § 121. For what purpose private road to he used. — Every such private road when so laid out, shall be for the use of such appli- .cant, 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 said road shall be laid out, be permitted to use the same as a road, unless he shall have signified such intention to the jury who assessed the damages for laying out such road, and before such damages were assessed. {Id., p. 426.) § 122. Highways or roads along division lines. — Whenever a highway or private road shall be laid along the division line be- tween lands of two or more persons, and wholly upon one side of The Law of Highways. 57 tlie line, and the land upon both sides is cultivated or improved, the persons owning or occupying the lands adjoining such high- way or road, shall be paid for building and maintaining such ad- ditional fence as they may be required to build or maintain, by reason of the laying out and opening such highway or road ; which damages shall be ascertained and determined in the same manner that other damages are ascertained and determined in the laying out of highways or private roads. {Id., p. 427.) § 123. Adjournments. — If any accident shall prevent any of the proceedings required by this chapter relating to the laying out, altering or discontinuing of a highway, or the laying o^t a private road, to be done on the day assigned, the proceedings may be ad- journed to some other day, and the commissioner shall publicly announce such adjournment. {Id., p. 428.) ARTICLE V. BKID0KS. Section 130. When town or county expense. 131. Additional county aid. 132. Statement of expenses. 183. Supervisors to levy tax. 134. Joint liability of towns, and their joint contracts. 135. Refusal to repair. 136. Proceedings in court. 137. Commissioners to institute proceedings. 138. Their duty. 139. Commissioners to report. 140. Appeals. 141. Power of court on appeal. 143. Refusal to repair bridge. 143. Penalty, and notice on bridge. 144. Offense. 145. Iron bridges. Section 130. When town or county expense. — The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges, constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, 68 The Law of Highways. except between the counties of Westchester and New York ; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoin- ing counties, such towns shall be jointly liable to pay such ex- penses, except that when the whole expense in any one town, for any one year, for the construction, care, maintenance, preservation and repair of its bridges, shall exceed one-sixth of one per centum on the assessed valuation of the taxable property of the town for that year, the county in which such town is located shall then pay not less than one third part of such excess. Each of the counties of this state shall also be liable to pay for the construc- tion, caa-e, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair. {Id., p. 311.) § 131. Additional county aid. — When it shall appear to the board of supervisors of any county that any one of the towns in their county will be unreasonably burdened by erecting or repair- ing any necessary free bridges in such town or upon its borders, such board of supervisors may cause such sum of money, not ex- ceeding two thousand dollars in any one year, in addition to the amounts provided for in the last preceding section, to be raised and levied upon the county to be used to pay such portion of the expenses of erecting or repairing such bridges as such board may deem proper. {Id., p. 311.) § 132. Statement of expenses. — The commissioners of highways of every town in which the whole or any part of any free bridge may be, shall make and deliver to the supervisor of the town, on or before the first day of November in each year, a written state- ment, verified by one of them, containing a description of such bridge, the whole expense in items incurred by the town during the year preceding for its construction or repair. (Jd, p. 95.) § 133. Supervisors to kvy tax. — Every supervisor to whom such statement is delivered shall present the same to the board of super- visors of his county at its next annual session thereafter, and the board of supervisors shall levy upon the taxable property of the county a sum sufficient to pay its proportion of such expense and The Law of Highways. 59 the same when collected shall be paid to the commissioners of highways of such town to be applied toward the payment of such expense. {Id., p. 95.) § 134. Joint liabilities of towns, and their joint contracts. — When- ever any two or more towns shall be liable to make or maintain any bridge or bridges, the same shall be built and maintained at the joint expense of such towns, without reference to town lines. The commissioners of highways of all the towns, or of one or more of such towns, the other refusing to act, may enter into a joint contract for making and repairing such bridges. (7d, p. 326.) § 135. Refusal to repair. — If 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 writing to build or repair any such bridge, and shall not within a reasonable time thereafter do the same, the commissioners of highways giving such notice may make or repair such bridge, and then maintain an action in the name of the town, against the town whose commissioners neglect or refuse to join in such making or repairing, and in such action, the plaint- iffs shall be entitled to recover so much from the defendant, as the town would be liable to contribute to the same, together with costs and interest. {Id., p. 327.) § 136. Proceedings in court. — Whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing such towns, whether in the same or different counties, three freeholders in either of such towns may, by petition signed by them, apply to the commissioners of highways in each of such towns, to build, rebuild or repair such bridge, and if such com- missioners refuse to build, rebuild or repair such bridge within a reasonable time, either for want of funds or any other cause, such freeholders, upon affidavit and notice of motion, a copy of which shall be served on each of the commissioners, at least eight days before the hearing, may apply to the supreme court at a special term thereof, to be held in the judicial district in which such bridge, or any part thereof, shall be located, for an order requir- ing such commissioners to build, rebuild or repair such bridge, and the court upon such motion may, in doubtful cases, refer the case to some disinterested person to ascertain the requisite facts in rela- 60 The Law of Highways. tion thereto, and to report the evidence thereof, to the court. Upon the coming in of the 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 shall make an order thereon as the justice of the case shall require. If the motion be granted in whole or ,in part, whereby funds shall be needed by the commissioners to carry the order into effect, such court shall specify the amount of money required for that purpose, and how much thereof shall be raised in each town. {Id., p. 329.) § 137. Commissioners to institute proceedings. — The commission- ers of highways of any such town, may institute and prosecute proceedings under this chapter, in the name of the town, to compel the commissioners of such adjoining towns, to join in the build- ing, rebuilding or repair of any such bridge, in like manner as freeholders are hereby authorized. {Id., p. 330.) § 138. Their duty. — The order for building, rebuilding or re- pairing a bridge being made, and a copy thereof being served on the commissioners of highways of such adjoining towns re- spectively, the commissioners of highways of such towns shall forthwith meet and fix on the plan of such bridge, or the manner of repairing the same, and shall cause such bridge to be built, re- built or repaired out of any funds in their hands applicable thereto ; and if an adequate amount of funds are on hand, they shall cause the same to be built, rebuilt or repaired upon credit, or in part for cash and in part upon credit, according to the exi- gency of the case ; and the commissioners may enter into a con- tract 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 upon credit. {Id., p. 330.) § 139. Commissioners to report. — The commissioners of high- ways of each town shall make a full report of their proceedings in the premises to the town board, at the tirile of making their annual report. They shall attach to the copy of the order granted by the supreme court, an accurate account under oath, of what has been done in the premises, and deliver the same to the super- visor of their town. The board of supervisors 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 The Law of Highways. 61 counties, for its share of the costs of building, rebuilding or re- pairing such bridge, after deducting all payments actually made by the commissioners thereon ; which tax, including prior pay- ments, shall in no case exceed the amount specified in the order. {Id., % 331.) § 140. Appeals. — Either party aggrieved by the granting or refus- ing to grant such order by the court at special term, may appeal from such' decision to the general term of the supreme court for the review of the decision. The general term may alter, modify or reverse the order, with or without costs. {Id., p. 331.) § 141. Power of court on appeal. — The special term may grant or refuse costs as upon a motion, including also witnesses' fees, referees' fees and disbursements. The appeal provided for in the last preceding section, shall conform to the practice of the supreme court, in case of appeal from an order of a special term, to the gen- eral term. {Id., p. 331.) § 142. Refusal to repair bridge. — 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 whenever any such bridge shall have fallen down, or been swept away by a freshet or other- wise, if the commissioners of highways of the adjoining towns, after reasonable notice of such condition of the bridge, have neg- lected or refused, or shall neglect or refuse to repair or rebuild it, then whatever funds have been or shall be necessarily or reasona- bly laid out or expended in repairing such bridge, or in rebuilding the same, by any person or corporation, shall be a charge on such adjoining town, each being liable for its just proportion ; and the person or corporation who has made such expenditure, or shall make such expenditures, may apply to the supreme court, at a special term, for an order requiring such towns severally to reim- burse such expenditures, which application shall be made by serv- ing papers upon the commissioners of highways of each of such towns at least eight days ; and the court may grant an order re- quiring each of the adjoining towns to pay its just proportion of the expenditure, specifying the same; and the commissioners of highways in each of such towns shall forthwith serve a copy of such order upon the supervisor of each of their towns, who shall present the same to the board of supervisors, at their next annual 62 The Law of Highways. meeting. The board of supervisors shall raise the amount charged upon each town by the order, and cause the same to be collected and paid to such persons or corporation as incurred the expendi- ture. The order shall be appealable. {Id., p. 332.) § 148. Penalty, and notice on bridge. — The commissioners of highways may fix and prescribe a penalty, not less than one, nor more than five dollars, for riding or driving faster than a walk on any bridge in their town, whose chord is not less than twenty-five feet in length and put up and maintain in a conspicuous place at each end of the bridge, a notice in large characters, stating each penalty incurred. {Id., p. 319.) § 144. Offense. — Whoever shall ride or drive faster than a walk over any bridge, upon which notice shall have been placed, and shall then be, shall forfeit for every ofiEense, the amount fixed by such commissioners, and specified in the notice. {Id., p. 320.) § 145. Iron bridges. — No town or its ofiicers shall be compelled to accept or pay for an iron or steel bridge exceeding two hundred feet in length, or having a span or spans exceeding one hundred feet in length, constructed therein or upon its borders, until the state engineer and surveyor shall certify to the completion of the bridge, pursuant to the contract under which it shall have been constructed, with his approval of the manner of its construction and the material thereof ; and all contracts made for the construc- tion of any such bridge, shall be subject to the provisions of this section. {Id., p. 320.) ARTICLE VI. MISCBLLANBOUS PROVISIONS. Section 150. Papers, where filed. 151. When commissioners do not act. 153. Costs on motion. 153. Injuries to highways. 154. When town not liable for bridge breaking. 155. Steam traction engine on highway. 156. Trees, to whom they belong. 157. Carriages meeting to turn to the right. 158. Intemperate drivers. 159. Drivers, when to be discharged. 160. Leaving horses without being tied. The I^aw of Highways. 63 Section 161. Owners of certain carriages liable for acts of drivers. 163. Term ' ' carriage " defined. 163. Entitled to free use of highway. 164. Penalties, how recovered. 165. Extent of this chapter.* Section 150. Papers, where filed. — All applications, certificates, appointments and other papers relating to the laying out, altering or discontinuing of any highway shall be filed by the commis- sioners of highways as soon as a decision shall have been made thereon in the town clerk's office of their town, (/d, p. 221.) . § 151. When commissioners do not act. — When any commis- sioner or other officer appointed by a court under this chapter shall neglect or be prevented from serving, the court which appointed him shall appoint another in his place. {Id. p. 188.) § 152. Costs on motion. — Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway may be allowed in the discre- tion of the court not exceeding fifty dollars. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may be allowed in the discretion of the court not exceed- ing ten dollars. {Id. p. 188.) § 153. Injuries to highways. — Whoever shall injure any high- way or bridge maintained at the public expense, by obstructing or diverting any creek, water-course or sluice, or by dragging logs or timber on its surface, or by any other act, or shall injure, deface or destroy any mile-stone or guide-post erected on any highway, shall for every such offense, forfeit treble damages. {Id. p. 477.) § 154. When town not liable for bridge breaJcing. — No town shall be liable for any damage resulting to person or property, by rea- son of the breaking of any bridge, by transportation on the same, of any vehicle and load, together weighing four tons or over ; but any owner of such vehicle or load, or other person engaged in transporting or driving the same over any bridge, shall be liable for all damages resulting therefrom. {Id. p. 75.) § 155. Steam traction engines on highway. — The owner of a car- riage, vehicle or engine, propelled by steam, his servant or agent, * So in the original. 64 The Law of Highways. shall not allow, permit or use the same to pass over, through or upon any public highway or street, except upon railroad tracks, unless such owners, or their agents or servants, shall send before the same, a person of mature age, at least one-eighth of a mile in advance, who shall notify, and warn persons traveling or using such highway or street, with horses or other domestic animals, of the approach of such carriage, vehicle or engine ; and at night such person shall carry a red light, except in incorporated villages and cities. {Id. p. 395.) § 156. Trees, to whom they belong. — All trees standing or lying on any land oyer which any highway shall be laid out, shall be for the proper use of the owner or occupant of such land, except such of them as may be requisite to make or repair the highway or bridges on the same land. {Id. p. 298.) § 157. Carriages meeting to turn to the right. — Whenever any persons traveling with any carriages, shall meet on any turnpike road or highway, the persons so meeting shall seasonably turn their carriages to the right of the center of the road, so as to per- mit such carriages to pass without interference or interruption, under the penalty of five dollars for every neglect or offense, to be recovered by the party injured. {Id. p. 384.) § 158. Intemperate drivers not to be engaged. — No person owning any carriage for the conveyance of passengers, running or travel- ing upon any highway or road, shall employ or continue in em- ployment, any person to drive such- carriage, who is addicted to drunkenness, or to the excessive use of spirituous liquor ; and if any such owner shall violate the provisions of this section, he shall forfeit at the rate of five dollars per day, for all the time during which he shall have kept any such driver in his employment {Id p. 394.) § 159. Drivers, xvhen to he discharged. — If any driver, while ac- tually employed in driving any such carriage, shall be guilty of intoxication, to such a degree as to endanger the safety pf the passengers in the carriage, the owner of such carriage shall, on receiving written notice of the fact, signed by any one of said passengers, and certified by him on oath, forthwith discharge such driver from his employment ; and every such owner, who shall retain, or have in his service within six months after the receipt The Law of Highways. 65 of such notice, any driver wlio shall have been so intoxicated, shall forfeit at the rate of five dollars per day, for all the time during which he shall keep any such driver in. his employment after receiving such notice. {Id., p. 894.) § 160. Leaving horses without being tied. — No driver of any car- riage used for the purpose of conveying passengers for hire, shall 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 oflEend against the provisions of this section, he shall forfeit the sum of twenty dollars. {Id., p. 395.) § 161. Owners of certain carriages liable for acts of drivers. — The owners of every carriage running or traveling upon any turnpike road or highway, for the conveyance of passengers, shall be liable jointly and severally, 'to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the accident* occasioning such injury or damage 'be willful or negligent, or other- wise, in j^the same manner as such driver would be liable, (id, p. 395.) § 162. Term ^'carriage" defined. — The term "carriage," as used in this article, shall be construed to include stage-coaches, wagons, carts, sleighs, sleds and every other carriage or vehicle used for the transportation of persons and goods, or either of them, and bicycles, tricycles and all other vehicles propelled by manumotive or pedomotive power. {Id., p. 30.) § 163. Untitled to free use of highways. — The commissioners, trustees, or other authorities having charge or control of any high- way, public street, parkVvay, driveway or place, shall have no power or authority to pass, enforce, or maintain any ordinance, rule, or regulation, by which any person using a bicycle or tri- cycle, shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, parkway or place, at any time when the same is open to the free use of pei'sons having and using other pleasure carriages ; but nothing herein * So in the original. 66 The Law of Highways. shall prevent the passage, enforcement or maintenance of any regulation, ordinance or rule, regulating the use of bicycles or tri- cycles in highways, public streets, driveways, parkways and places, in such manner as to limit and determine the proper rate of speed with which such vehicles may be propelled, nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurtenances, nor to prohibit the use any vehicle upon that part of the highway, street or parkway, commonly known as the foot- path or sidewalk. {Id., p. 30.) § 164 Penalties, how recovered. — All penalties or forfeitures given in this chapter, and not otherwise specially provided for, shall be recovered by the commissioners of highways, in the name of the town in which the offense shall be committed ; and when recovered, shall be applied by them in improving the high- ways and bridges in such town. {Id., p. 30.) ARTICLE VII. EEGDLATION OF FBBRIBS. Section 170. Licenses. 171. Undertaking. 173. Appendages for rope ferries. 173. Superintendent of public works may lease right of passage. 174. When schedule to be posted. Section 170. Licenses. — The county court in each of the coun- ties of this state, or the city court of a city, may grant licenses for keeping ferries in their respective counties and cities, to such per- sons as the court may deem proper, for a term not exceeding five years. No license shall be granted to a person, other than the owner of the land through which that part of the highway adjoin- ing to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eight days' written notice from such other person of the time and place at which he shall apply for such license, or having obtained such license, shall neglect to comply with the conditions of the license, or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk;- and a certified copy thereof shall be delivered to the person licensed. When the waters over which any ferry may be used, shall divide two counties or cities, or a county and city, a license obtained in either of the counties or The Law of Highways. 67 cities shall be sufficient to authorize transportation of persons, goods, wares and merchandise, to and from either side of. such waters. § 171. TJnderiaMng. — Every person applying for such license shall, before the same is granted, execute and file with the clerk of the court his undertaking, with one or more sureties, approved by the court, to the effect that he will attend such ferry with sufficient and safe boats and other implements, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct § 172. Appendages for rope ferries. — Any person licensed to keep a ferry may, with the written consent of the commissioners of highways of the town where such ferry may be, erect and main- tain within the limits of the highway, at such point as shall be designated in such consent, a post or posts, with all necessary braces and appendages, for a rope ferry. § 173. Superintendent of public works may lease right of passage — The superintendent of public works may where ferries are now maintained at tide-water, lease the right of passage for foot pas- sengers across state lands adjoining tide water for a period not exceeding ten years, on such conditions as he may deem advan- tageous to the state. § 174. When schedules to he posted. — Every person licensed to operate or control any ferry in this state, or between this state and any other state, operating from or to a city of fifty thousand in- habitants or over, shall post in a conspicuous and accessible posi- tion outside and adjacent to each entrance to such ferry, and in at least four accessible places, in plain view of the passengers upon each of the boats used on such ferry, a schedule plainly printed in the English language, of the rates of ferriage charged thereon, and authorized by law to be charged for ferriage over such ferry. If any such person shall fail to comply with the provisions of this section, or shall post a false schedule, he shall forfeit the sum of fifty dollars for each day's neglect or refusal to post such schedule, or any of them, to be recovered by any per- son who shall sue therefor, in any court of competent jurisdiction. 68 The Law of Highways. ARTICLE VIII. EEPBALING AND OTHER LAWS. Section 180. Laws repealed. 181. Saving clause. 183. Constructiou. 183. When to take effect. Section 180. Laius repealed.— Oi the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed.* Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby rtepealed. § 181. Saving clause. — The repeal of a law, or any part of it specified in the annexed schedule, shall not affect or impair any act done, or right accruing, accrued, or acquired, or penalty, for- feiture, or punishment incurred prior to the time when this act takes effect, under or by virtue of the laws so repealed, but the same may be asserted, enforced, prosecuted, or inflicted, as fully and to the same extent, as if such laws had not been repealed ; and all actions or proceedings, civil or criminal, commenced under or by virtue of the laws so repealed and pending February twenty- eighth, "eighteen hundred and ninety-one, may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially pro- vided by law. § 182. Construction. — The provisions of this chapter, so far as they are substantially the same as those laws existing on February twenty-eighth, eighteen hundred and ninety-one, shall be construed as a continuation of such laws, modified or amended, according to the language employed in this chapter, and not as new enact- ments ; and references in laws not repealed to provisions of law incorporated into this chapter and repealed, shall be construed as applying to the provisions so incorporated : Nothing in this chap- ter shall be construed to amend or repeal any provision of the Penal or Criminal Code. § 183. When to take effect. — This chapter shall take effect on the first day of March, eighteen hundred and ninety-one. * This schedule combined with a list of the other laws repealed can be found at the end of the text. The Law of Highways. 69 II. COUNTY EOADS. CHAP. 555, LAWS 1890.* AN ACT to provide for the improvement and maintenance of the public roads in certain counties as county roads. Approved by the Governor June 7, 1890. Passed, three-fifths being present. ' The People of the State of New York, represented in Senate and Assembly, do enact as follows. • Section 1. In every county not exceeding two hundred square miles in area, it shall be lawful for the board of supervisors thereof to acquire and assume, for the purpose of improving and main- taining the same, the full and exclusive control of any public road or roads, or parts thereof, in such county, so far as may be neces- sary only for the said purpose of improving and maintaining the road-bed thereof as a road or roads for carriages or other vehicles, but for no other purpose. In order to acquire and assume such control in .any county, with power to improve and maintain the same, the said board shall cause a map to be made, or adopt a map already made, on which the principal public roads or highways of the county shall be, or are, laid down, and shall cause the roads or parts of roads of which the said board intends to acquire and as- sume such control to be plainly indicated thereon and shall file the said map, when so marked and certified by it, in the office of the clerk of the county ; whereupon the roads or parts of roads so marked or indicated on said map shall become and be known as " county roads," and shall thereafter be improved, maintained and kept in repair by the board of supervisors of such county in the manner hereafter provided, and it shall be lawful for such board of supervisors, from time to time, to assume control of and estab- lish other roads or parts of roads as county roads, and improve and keep the same in repair, as aforesaid, or to relinquish control of any road or part of any road so acquired, in either of which cases the said map shall be changed accordingly, and the assuming or * Took effect June 7, 1890. 70 The Law of Highways. relinquishing the control of any public road shall be by resolution, in writing, entered upon the minutes of the board, and a copy thereof, certified by the clerk of the board, shall be filed forthwith in the ofiice of the county clerk. If any road, or part thereof, so to be improved or repaired, shall pass through any village, it shall be necessary to obtain the consent of the board of trustees of such village before the board of supervisors shall assume the control, improvement or repair of that portion thereof lying within such village, and such board of trustees are hereby authorized and em- powered to grant or give such consent. The term " road," as used in this act, shall be construed to include street, avenue or other public highways. § 2. Upon the establishment, in the manner above provided, of any county road or roads, the board of supervisors of such county shall forthwith cause the said county roads to be improved and put in repair, and shall thereafter maintain and keep the same in repair and in good condition, in the manner hereinafter provided. § 3. The said board of supervisors shall by resolutions duly entered upon their minutes from time to time, estimate and deter- mine what sums of money will be required to improve said county roads. They are hereby authorized and directed to borrow such sums of money thus determined upon as needed for such improve- ment, on the credit of the county, which sums so bori'owed, how- ever, shall not exceed, in any year, an amount, which, with the then outstanding bonded indebtedness of said county, shall be in ex- cess of ten. per centum, of the assessed valuation of such, county as shown in the assessment-rolls of the preceding year, and the board of supervisors shall prescribe by resolution, the form of ob- ligation to be issued on such loan or loans and the times and the place of payment, the time not to exceed twenty-five years from the date of the obligations, so to be issued 3,nd the rate of interest not to exceed the legal rate. The chairman and clerk of the board of supervisors shall indorse on each of such bonds or obligations that it is issued by and in accordance with the directions of the board of supervisors and shall sign such certificate in their official capacity. The said board of supervisors shall raise, in their annual tax levy, a sum deemed sufficient to keep and maintain the said county roads in good order and repair, or in default thereof, it The Law of Highways. 71 shall, in like manner, raise, by tlie issue and sale of bonds as afore- said, from time to time, such moneys as they shall by resolution determine, and as shall be required for the necessary repairs of such road and to keep them constantly in good order and condi- tion, not, however, exceeding in amount the limit above provided. The board of supervisors shall keep a record showing the dates and amounts of such bonds, the times and place when and where the same are made payable and the rate of interest thereon ; and such board shall have power and it shall be its duty from time to time, as the said obligations are about to become due and pay- able, to impose upon the taxable property of the county sufficient tax to enable payment to be made, upon the due date thereof, of such obligations, according to the terms and conditions thereof. Said board shall promptly dispose of the bonds issued as aforesaid in public competition, upon due notice to be published in two newspapers published in such county, and in two daily newspapers published in the city of New York, for at least three weeks prior to the sale thereof, for not less than the par value thereof, and shall pay the proceeds thereof to the county treasurer of such county, and the said treasurer shall immediately deposit the same in some trust company in the state of New York, designated by the supreme court as a legal depository, which deposit shall be en- tered and designated " the county road fund " of such county, and the same shall not be drawn out or used for any other purpose than the improvement and repair of such county roads so desig- nated by the said board of supervisors, and only on the presentation of an account duly verified, audited by the board of supervisors and accompanied by the certificate of the supervising engineer that the work, materials or services have been done, delivered and rendered in accordance with the contract therefor. § 4. The said board of supervisors shall, immediately upon receipt of said county road funds, proceed to improve and repair the said county roads designated as aforesaid in the manner and with the ma- terial required by the provisions and regulations of this act, and shall thereafter, in like manner, keep the said roads constantly in good repair and condition. All such improvements and repairs, ex- cept in so far as relates to the services of an engineer, shall be made under and in pursuance of written contracts with the lowest 72 The Law of Highways. bidder, upon bids called for by notice and advertisement similar to that to be given in the case of the sale of the county bonds hereinbefore referred to and upon terms and specifications, which, with the provisions of the contracts and the security offered by the contractors, shall be approved by the board of supervisors before such contracts shall be finally awarded or executed. § 5. All the improvements and repairs made under and in pur- suance of this act shall be done under the supervision of a compe- tent civil engineer, holding a diploma as such, to be appointed by the board of supervisors and to be removed by vote of four-fifths of all the members of the board of supervisors. Such engineer shall be consulted in the preparation of the specifications and con- tracts for such work, shall require such improvements and repairs to be made in conformity with the provisions of this act and of the contracts therefor, shall certify from time to time, to the board of supervisors as to the character and progress of the work being actually done, and do such other professional work as shall be imposed upon him by such board of supervisors, or by the con- tracts for such improvements or repairs, and shall be paid for his services such reasonable compensation as shall have been pre- viously agreed upon between him and them. The board of supervisors shall cause all county roads to be divided into sections of not more than one mile each to be designated by suitable mon- uments which shall be numbered, and it shall be the duty of the supervising engineer to make regular quarterly reports to the board of supervisors in writing (and oftener if required by such board), which shall state the then condition of each section of the road, the amount expended thereon for the last quarter, and the repairs necessary for the ensuing quarter, and the estimated cost thereof, and he shall file a duplicate of such quarterly report in the county clerk's office. § 6. The following regalations shall govern all improvements and repairs of such county roads, when the same are made under or in pursuance of the provisions of this act : 1. All such improvements and repairs shall embrace or cover the road-bed or wagon-way to the width of at least one rod and to the depth of at least eight inches, unless the board of supervisors, by a four-fifth vote of the entire board, shall decide to reduce its The Law of Highways. 73 width to fourteen feet or its depth to six inches in specific cases, though material similar to that about to be employed, if already upon such roadbed, may be utilized as a part of the material to be employed in forming such improved or repaired roadbed. 2. No material other than stone, wood, shells or asphalt com- pound shall be used in making such improvement or repairs, for at least one rod or fourteen feet in width as the case may be and the above required depth of such improved or repaired surface. 3. In case any road to be improved or repaired shall already have a sufficient compact and substantial foundation of stone already laid, such foundation may, in the discretion of such engi- neer and with the approval of said board of supervisors, be allowed to remain and be utilized* as of its actual depth, but no new or fresh material shall be placed thereon until all material previously and in any way superimposed upon such foundation, but of a different character from that about to be newly employed in such improvement or repairs, shall have been thoroughly re- moved. 4. Whenever any roadbed or wagonway shall be thus improved or repaired with broken stone, there shall be placed in such said roadbed or wagonway, if a sufficient, substantial and compact found- ation of stone does not already exist, a foundation course or layer of trap rock, granite or other equally hard stone, not less than four infches thick, of stone not less than two and one-half inches in diameter, or of the size commonly known as two and one-half inch stone, and in all cases of improvement with stone other than block pavement, the uppermost layer or covering shall not be less than two inches thick, and shall consist of granite or trap rock dust known as screenings, and, in case of repair, not less than one inch in thickness, and the same shall be applied under the press- ure of a roller of not less than two tons weight. 5. All roadbeds or wagonways thus repaired shall be shaped or crowned with a sufficient and continuous rise of at least one-half inch to the foot from the sides to the center thereof, and shall be so constantly kept and maintained. § 7. No horse railway or electric or other railway shall be laid, * So in the original. 74 The Law of Highways. constructed or operated on said county roads, unless, in addition to the requirements of existing laws, the same shall be authorized by a two-third vote of the board of supervisors and unless the same shall be constructed with a flat or grooved rail, and in case of horse railways, paved between the tracks in the manner pre- scribed by the board of supervisors in the resolution authorizing the same and the same constantly maintained in good order and condition by said railroad company, and the railroad or corpora- tion constructing the same shall agree thereto, and it shall be the duty of the said board of supervisors to require from said railroad or corporation, or other person, a bond with sufficient sureties as a guarantee, and conditioned for the performance of their agree- ment, and the board of supervisors may, from time to time, re- quire such bond to be renewed in case the sureties, or any of them, in its judgment, shall become insufHcient. § 8. Whenever it shall be necessary to lay water or gas mains, or construct sewers or other public improvements, or to make con- nections therewith through or upon said county roads, or any part thereof, which shall require the digging up or interference with the same or the roadbeds thereof, in addition to the consent and authority required under existing laws for the same, it shall be necessary to obtain the consent of said supervising engineer thereto. The said road and roadbed shall, in each case, be promptly restored to its former condition, and the same shall be done subject to the approval of the supervising engineer, at the expense of the person, corporation or municipal authority, at whose request such work shall be done, and the amount thereof may be recovered, in default of payment, by the board of supervisors; and, before granting his consent, the said supervising engineer shall require a sufficient deposit to be made by the person or cor- poration applying for such consent, conditioned that the said road or roadbed shall be so restored. § 9. Wherever an expenditure exceeding the rate of ten thous- and dollars per mile shall be deemed necessary on such county roads, or any part thereof, all such expenditure in excess of ten thousand dollars per mile shall be borne by the town or towns, village or villages, or separate road districts within whose juris- diction such roads or parts of roads so improved or repaired shall The Law of Highways. 75 be, and in case of such excess, the board of supervisors shall cause such excess to be levied and collected in the next ensuing tax levy authorized by such supervisors upon such towns, or upon the portions thereof embraced in such villages or separate road dis- tricts liable therefor. § 10. Said board of supervisors shall have the control and juris- diction over said county roads only for the purpose of improving and keeping the same in repair, except as hereinbefore mentioned, and for all other purposes the said roads shall remain and be sub- ject to the authority, control and jurisdiction of the town, village, separate road district, or local authorities to which they shall re- spectively belong ; provided, however, that all roads or parts of roads designated as county roads shall remain under the control of the local authorities liable for the repair thereof until such im- provement shall have been actually begun thereon under this act, and if the said board of supervisors shall at any time relinquish the control of any county road or part thereof the local authori- ties within whose jurisdiction the same shall be, shall forthwith resume the control and charge thereof in like manner as if the same had not been designated as a county road. § 11. All action taken in violation or disregard of the provi- sions hereof, or any failure to observe the provisions hereof, shall be deemed unlawful, and any officer or person who shall partici- pate in such action shall be guilty of a misdemeanor, and shall, upon conviction, in addition to the punishment provided by law for a misdemeanor, be adjudged to pay to the treasurer of such county a fine of five hundred dollars. § 12. The provisions of this act shall not become compulsory in any county containing a city of over one hundred thousand in- habitants, unless the board of supervisors thereof shall, by a vote of four-fifths of all the members of such board, determine that it will be beneficial to such county that this act shall be compulsory therein. § 13. Nothing in any general act, or general or special act for the organization of any village or separate road district in any county, or relating thereto, shall be construed to prevent the carrying out of the provisions of this act. § 14. This act shall take effect immediately. 76 The Law of Highvays. III. EAILEOADS CHAP. 565, LAWS 1890* BIGHT OF RAILROAD TO CROSS HIGHWAY, ETC. Subject to the limitations and requirements of Chapter 565, Laws 1890, a railroad has power "to construct its road across, along or upon any stream, watercourse, highway, plankroad, turn- pike, or across any of the canals of the state which the route of its road shall intersect or touch. (Laws 1890, ch. 565, § 4, sub. 4.) Intersection of highways hy railroad bridge, etc., additional lands for. — No railroad corporation shall erect any bridge or other ob- struction across, in or over any stream or lake, navigated by steam or sail boats at the place where it may be proposed to be erected, nor shall it construct its road in, upon or across any street of any city without the assent of the corporation of such city, nor across, upon or along any highway in any town or street in any incorporated village, without the order of the supreme court of the district in which such highway or street is situated, made at a special term thereof, after at least ten days' written not- ice of the intention to make application for such order shall have been given to the commissioners of highways of such town or board of trustees of the village in which such highway or street is situated. Every railroad corporation which shall build its road along, across or upon any stream, watercourse, street, highway, plankroad or turnpike, which the route of its road shall intersect or touch, shall restore the stream or watercourse, street, highway, plankroad and turnpike, thus intersected or touched, to its former state, or to such state as not to have unnecessarily impaired its usefulness, and any such highway, turnpike or plankroad may be carried by it, under or over its track, as may be found most ex- pedient. Where an embankment or cutting shall make a change in the line of such highway, turnpike or plankroad desirable, with a view to a more easy ascent or descent, it may construct such highway, turnpike or plankroad, on such new line as its directors * Took effect May 1, 1891. The Law of Highways. 77 may select, and may take additional lands therefor by condemna- tion if necessary. Such lands so taken shall become part of such intersecting highway, turnpike or plankroad, and shall be held in the same manner and by the same tenure as the adjacent parts of the highway, turnpike or plankroad are held for highway pur- poses. Every railroad corpor'ation shall pay all damages sustained by any turnpike or plankroad corporation in consequence of its crossing or occupation of any turnpike or plankroad, and in case of inability to agree upon the amount of such damages it may acquire the right to such crossing or occupation by condemnation. {Id. % 11. See p. 208.) Tunnel railroads. — When, according to the route and plan adopted by any railroad corporation hereafter incorporated for the building of its road, it shall be necessary or proper to build it or any part of it underground, or to tunnel or bridge any river or waters, such corporation may enter upon, acquire title to and use such lands under water and uplands, except on or along any canals of the state, as shall be necessary for the purposes herein men- tioned, and may construct, erect and secure the necessary founda- tions and other structures which may be required for operating and maintaining such road, or connecting the same with another and to acquire, in the manner provided by law, such lands or rights or easements in lands along its route, upon, over or beneath the surface thereof as may be necessary for the construction of its road and making such connections. Where such road runs un- derneath the ground, at such depth as to enable the corporation to ■tunnel the same, such tunnel shall be so built and at all times kept in such condition as to make the surface of the ground above the same and in the neighboi'hood thereof firm and safe for buildings and other erections thereon, and if surface excavations are made the surface shall be restored to its former condition as soon as can be done, except so far as may be actually required for ventilation of the tunnel beneath the same or access thereto. If such road or any part of it is to be built within the limits of any city or incorpo- rated village of the state, and to run by means of a tunnel underneath ■any of the streets, roads or public places thereof such corporation shall, before constructing the same underneath any such street, road or public place, obtain the consent of the owners of one-half in value of 78 The Law of Highways. the property hounded on the line of such street^ road or public place, and the consent of the hoard of trustees of the village, hy resolution adopted at a regular meeting and entered on the records of the hoard or of the proper authorities of the city having the control of such streets, roads or public places. If the consent of such property owners cannot be obtained, the general term of the supreme court in the district in which such city or village or any other part thereof is situated, may upo-n application appoint three commis- sioners, who shall determine, after a hearing of all parties inter- ested, whether such railroad ought to be built underneath such streets, roads or public places, or any of them, and in what manner the same may be so built with the least damage to the surface, and to the use of the surface by the public, and the determination of the commissioners confirmed by the court may be taken in lieu of the consent of the property owners. All railroad corporations constructing their road under this section shall be subject to all the provisions of this chapter applicable thereto ; and any other railroad corporation may connect its road therewith, at such points or places as it may elect, and where such connections shall be made by connecting roads, the railroad corporations owning such roads, shall build, at their joint expense, and for their joint use, such passenger and freight depots, and other accommodations for hand- ling passengers and freight, as may be required for the conveni- ence of the public. All railroad corporations, constructing any tunnel under this section, shall be liable to any person or corpora- tion for all damages which may be sustained by reason of the construction of such tunnel. Whenever it shall be necessary in constructing any railroad authorized by this section through any city or incorporated village, to alter the position or course of any sewer, or water or gas pipes, it shall be done at the expense of the railroad corporation under the direction of the department or cor- poration having charge thereof, so as not to interfere with such work. In all cases the use of the streets, docks, and lands beneath which such railroad is constructed, and on the route thereof and the right of way beneath the same, for the purpose of such railroad shall be considered, and is hereby declared a public use, consistent with and one of the uses for which streets and docks are publicly held. No public park or square in any city or village of this state The Law of Highways. 79 shall be used or occupied by any corporation for any of the pur- poses of this section, and every road constructed hereunder in or through any such street or public place shall be wholly under- ground and constructed in a tunnel and not otherwise. (M, § 16. See p. 361.) Individual, joint stock association, or other corporation may lay down and maintain railroad tracks in certain cases. — Any indi- vidual, joint stock association or corporation, engaged in any lawful business in this state, may, except in any city of the state, lay down and maintain such railroad tracks on or across any street or highway, not exceeding three miles in length, as shall be necessary for the transaction of its business, and to connect any place of business owned by them with the track of any railroad corporation, and render such place of business more accessible to the public, upon obtaining the written consent of the owners of all the lands bounded on and of the local authorities having con- trol of that portion of the street or highway, upon which it is pro- posed to construct or operate such railroad. If the consent of such property owners cannot be obtained, the general term of the supreme court of the department in which such railroad is to be constructed, may upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and the amount of damages, if any, to be paid to such property owners, and their determination confirmed by the court may be taken in lieu of the consent of the property owners. But no such railroad shall be so located, graded, built or operated as to inter- fere with or obstruct the traveled part of any highway, or its use as a highway, or the use of any street or highway intersecting the same. {Id., § 20. See p. 360.) Fences, farm-crossings and cattle-guards. — Every railroad corpora- tion, and any lessee or other person in possession of its road, shall, before the lines of its road are opened for use, and so soon as it has acquired the right of way for its roadway erect and thereafter maintain fences on the sides of its road of the length* and strength of a lawful division fence, with openings or gates or bars therein * So in Laws of 1891, ch. 367, as printed. 80 The Law of Highways. at the farm-crossings for the use of the owner and occupants of the adjoining land, and shall also construct where not already done, and hereafter maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep, and hogs from going upon its railroad. So long. as such fences are not made, or not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon ; but when made and in good repair, they shall not be liable for any such damages, unless negligently or willfully done. A sufficient post and wire fence of requisite height shall be deemed a lawful fence within the provisions of this section ; hut barbed wire shall not be used in constructing the same, and no railroad need be fenced, wfeen not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands. Every adjoining land owner, who, or whose grantor, has received com- pensation for fencing the line of land taken for a railroad, and has agreed to build and maintain a lawful fence along such line, shall build and maintain such fence ; and if such owner, his heir or assign shall not build such fence, or if built, shall neglect to maintain the same during the period of thirty days after he has been notified so to do by the railroad corporation, such corpora- tion may thereafter build and maintain such fence, and may recover of the person neglecting to build and maintain it the^ expenses thereof. {Id., § 32 AS am'd. Laws 1891, CHAP. 367. See p. 369.) Sign boards and flagmen at crossings. — Every railroad corporation shall cause boards to be placed, well supported and constantly maintained across each traveled public road or street, where the same is crossed by its road at grade. They shall be elevated so as not to obstruct travel, and to be easily seen by travelers ; and on each side shall be painted in capital letters, each at least nine inches in length and of suitable width, the words : " Eailroad crossing ; look out for the cars ;" but such boards need not be put up in cities and villages, unless required by the officers having charge of the streets. At any point where a railroad crosses a street, highway, turnpike, plankroad, or traveled way at grade, or where a steam railroad crosses a horse railroad at grade, and the The Law of Highways. 81 corporation owning or operating such railroad, refuses, upon re- quest of the local authorities to station a flagman or erect gates, to be opened and closed when an engine or train passes, the supreme court or the county court, may, upon the application of the local authorities and upon ten days notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a person -be stationed to open and close them when an engine or tfain passes, or may make such other" order respecting the same as it deems proper. Whenever the crossings by a railroad at grade of the streets, highways, turn- pikes, plankroads, or traveled ways of any village or city, having a population by the last state or federal enumeration of less than fifty thousand, shall be protected by gates with persons to open and close the same, when an engine or train passes, the local authorities of the city or village shall not impose any limitation, less than thirty miles an hour, on the rate of speed at which such engine or train shall be run, or enforce any existing limitation upon such rate of speed, less than thirty miles an hour. {Id., 33, see p. 372.) Persons employed as drivers and conductors. — Any railroad cor- poration may employ any inhabitant of the state, of the age of twenty-one years, not addicted to the use of intoxicating liquors, as a car driver or conductor, or in any other capacity, if fit and competent therefor. {Id., 42.) Canada thistles to be cut. — Every railroad corporation doing business within this state, shall cause all Canada thistles, white and yellow daisies and other noxious weeds growing on ciny lands owned or occupied by it, to be cut down twice in each and every year, once between the fifteenth day of June and the twenty-fifth day of June, and once between the fifteenth day of August and the twenty-fifth day of August. If any such corporation shall neglect to cause the same to be so cut down, any person maj' cut the same, between the twenty-fifth day of June and the fifth day of July inclusive, and between the twenty-fifth day of August and the fifth day of September inclusive in each year, at the ex- pense of the corporation on whose lands the same shall be so cut, at the rate of three dollars per day for the time occupied in cut- ting. {Id., p. 52.) 6 82 The Law of Highways. Riding on platform; walking along track. — ^ISTo railroad coi-pora- tion shall be liable for any injury to any passenger while on the platform of a car, or in any baggage^-wood or freight car, in vio- lation of the printed regulations of the corporation, posted up at tte time in a conspicuous place inside of the passenger cars, then in the train, if there shall be at the time sufficient room for the proper accommodation of the passenger inside such passenger cars ; and no person, other than those connected with or employed upon the railroad, shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to'cross the same, (/d, § 53.) Street surface railroad. — A corporation organized for the purpose of building and operating or extending a street railroad or any of its branches, for public use in the conveyance of persons and prop- erty in cars for compensation, upon and along any street, avenue, road or highway, in any city, town or village, or in any two or more civil divisions of the state, must comply with the provisions of the Laws of 1890, Article IV, §§ 90-94, and obtain the consent of the owners of one-half in value of the property bounded on the street or highway taken, and the consent of the muaicipal author- ities, etc., and in cities of over 9,000 inhabitants the franchise must be sold at public auction as prescribed in said article. Repair of streets J rate of speed ; removal of ice and snow. — Every such corporation so long as it shall continue to use any of its tracks in any street, avenue, or public place in any city or vil-age, shall have and keep in permanent repair that portion of such street, avenue, or public place between its tracks, the rails of its tracks, and two feet in widtb outside of its tracks, under the su- pervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In case of the neglect of any corporation to make pavements or re- pairs after the expiration of thirty days' notice to do so, the local authorities may make the same at the expense of such corporation, and such authorities may make such reasonable regulations and ordinances as to the rate of speed, mode of use of tracks, and re- moval of ice and snow, as the interests or convenience of the pub- lic may require. A corporation whose agents or servants willfully The Law of Highways. 83 or negligently violate such an ordinance or regulation, shall be liable to such city or village for a penalty not exceeding five hun. dred dollars to be specified in such ordinance or regulation. (Laws 1890, ch. 565, § 98.) ' When sand may he used on trades. — The owner or operator of any street surface railroad in cities of this state having a popula- tion of five hundred thousand or more, may place upon the space between the tracks of such road sand in sufficient quantities and no more to prevent the horses traveling thereon from slipping. {Id., § 108.) Road not to he constructed upon ground occupied hy public build- ings or in public parks. — No street surface railroad shall be con- structed or extended upon ground occupied by buildings belong- ing to any town, city, county, or to the state, or to the United States, or in public parks, except in tunnels to be approved by the municipal authorities having control of such parks. {Id., § 109.) ^ Relative to duties of locomotive engineers. — A person acting as en- gineer, driving a locomotive on any railway in this state, who fails to ring the bell, or sound the whistle, upon such locomotive,. or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities) or to continue the ringing such bell or sounding such whistle at intervals, until such locomotive and the train to which the locomotive is attached shall have completely crossed such road or street (or any ofiicer or employee of a corporation who shall willfully obstruct, or cause to be obstructed, any farm or highway crossing with any locomotive or car for a longer period than five consecutive minutes), is guilty of a misdemeanor. (Penal Code, § 421 ; am'd ch. 358 of 1891 ; in effect Sept. 1, 1891.) IV. TRAlSrSPORTATIOlSr CORPORATIONS. Ferries, stage coach, tramway, pipe line, gas and electric light corporations, waterworks corporations, telegraph and telephone and turnpike-plank road and bridge corporations are all treated of 84 The Law of Highways. in chap. 566 of the Laws of 1890, taking effect May 1, 1891. Such portions as refer directly to highways are given. Tramway Crossing Highway. Crossings. — Whenever any tramway, constructed by any such corporation, shall cross a railroad, highway, turnpike, plank-road or canal, such tramway shall be so constructed as not to interfere with the free use of such railroad, highway, turnpike, plank- road or canal for the purposes for which they were intended. (Laws 1890, chap. 566, § 33. See p. 208.) Pipe-line crossing railroad, turnpike, plank-road and highway. — Whenever any line of pipe of any such corporation shall neces- sarily cross any railroad, highway, turnpike or plank-road, such line of pipe shall be made to cross under such railroad, highway, turnpike or plank-road and with the least injury thereto prac- ticable, and unless the right to cross the same shall be acquired by agreement, compensation shall be ascertained and made to the owners thereof, or to the public in case of highways, in the manner prescribed in the condemnation law, but no exclusive title or use shall be so acquired as against any railroad, turnpike or plank-rpad corporation, nor as against the rights of the people of this state in any public highway, but the rights acquired shall be a common use of the lands in such manner as to be of the least practical injury to such railroad, turnpike or plank-road, consistent with the use thereof by such pipe-line corporation, nor shall any such corporation take or use any lands, fixtures or erections of any railroad corporation, or have the right to acquire by condem- nation the title or use, or right to run along or upon the lands of any such corporation, except for the purpose of directly crossing the same when necessary. {Id., § 43.) Consent of local authorities to pipe line being laid in highway. — No pipe line shall be constructed across, along or upon any public highway without the consent of the commissioners of high- ways of the town in which such highway is located, upon such terms as may be agreed upon with such commissioners. If such consent or the consent of the commissioners or municipal authori- ties required by the preceding section cannot be obtained, appli- cation may be made to the general term of the supreme court of The Law of Highways. 85 the department in whicli such highway or bridge is situated for an order permitting the corporation to construct its line across, along or upon such highway, or across or upon such bridge. The appli. cation shall be by duly verified petition and notice which shall be served upon the commissioners of highways of the town in which the highway is situated, or the municipal authofities of the village or city where such bridge is located, according to the prac- tice or order of the court, or an oi'der to show cause, and the court upon the hearing of the application may grant an order permitting the line to be so constructed in such manner and upon such terms as it may direct. {Id., § 45.) Fences ; farm crossings and use of line not inclosed. — It shall not be necessary for any such corporation to fence the lands acquired by them for the purposes of its incorporation. But, if not en-, closed by a substantial fence, the owner of the adjoining lands from whom such lands were obtained, his heirs or assigns, may occupy and use such lands in any manner not injurious to the in- terests of the corporation, and shall not be liable therefor, or for any trespass upon any such lands except for willful or neghgent in]uries to the pipes, fixtures, machinery or personal property of the corporation. If the corporation shall keep such lands inclosed it shall construct and provide all suitable and necessary crossings with gates for the use and convenience of any owners of lands adjoining the portion of its lands so inclosed, and no claim shall be made by it against any owner of adjoining lands to make or contribute to the making or maintaining of any division fence be- tween such adjoining lands and its lands, and if it shall neglect to keek* and maintain substantial fences along its lands, the owners of adjoining lands may construct and maintain all^arm or division fences, and all line fences crossed by such pipe line in the same manner as though it had not acquired such lands for such pipe line, and it shall be liable for all injuries to such fences caused or done by any of its ofiicers or agents, or any persons acting in their or its behalf, or by any laborer in its or their em- ploy or in the employ of any of its contractors. {Id., § 53. ) * So in the original. The Law of Highways. V. TURNPIKE, PLANK-BOAD AND BEIDGE CORPORA- TIONS.* Section 130. Incorporatio'i. " 131. Restriction upou location of road. 133. Agreement for use of high-way. 133. Application to board of supervisors. 134. Commissioners to lay out road. 135. Possession of and title to real estate. 136. Use of turnpike road by jjlank-road. 137. Width and construction of road. 138. Construction of bridges. 139. Certificate of completion of road or bridge. 130. Toll-gates and rates of toll, and exemptions. 131. Toll gatherers. 133. Penalty for running a gate. 133. Location of gates and change thereof. 184. Inspectors, their powers and duties. 135. Change of route, extensions and branches. 136. Milestones, guide-posts and hoist-gates. 137. Location of office of corporation. 138. Consolidation of corporations, sale of franchise. 139. Surrender of road. 140. Taxation and exemption. 141. Hauling logs and timber. 143. Encroachment of fences. 143. Penalty for fast driving over bridges. 144. Acts of directors prohibited. 145. Actions for penalties. 146. Proof of incorporation. 147. When stockholders, to be directors. 148. Dissolution of corporation, road to be a highway. 149. Town must pay for lands not originally a highway. 150. Highway labor upon line of plank-road or turnpike. 151. Extension of corporate existence. Incorporation. — Five or more persons may become a corpor- ation for the purpose of constructing, maintaining and owning a turnpike, planlcroad or a bridge, or causevyay across any stream or channel of water, or adjoining bay, swamp, marsh, or water to form in connection with such bridge or causeway a continuous roadway across the same, by signing, acknowledging and filing a *Took effect May 1, 1891. The Law of Highways. 87 certificate containing the name of the corporation, its duration, not exceeding fifty years, the amount and number of shares of its capital stock, the number of its directors, and their names and post office address for the first year, the termini of the proposed road, its length, and each town, city or village into or through which it is to pass, or of a bridge, the location and plan thereof and the post-office address of each subscriber, and the number of shares of stock which he agrees to take, the aggregate of which subscriptions shall not be less than five hundred dollars for every mile of road, or if a bridge corporation not less than one-fourth of the amount of the capital stock, and five per cent of which must be act- ually paid in cash. There shall be indorsed on and annexe^ to the certificate and made a part thereof the affidavit of at least three of the directors named therein, that the required amount of capital stock has been subscribed and the prescribed percentage paid in cash. (Laws 1890, ch. 566, art IX, § 120.) (427) Restrictions upon location of road. — No such road shall be laid out through any orchard of the growth of four years or more to the injury or destruction of fruit treeSj or through any garden cul- tivated for four years or more before the laying out of the road, or through any dwelling-house or building connected therewith, or any yards or inclosures necessary for its use or enjoyment with- out the consent of the owner thereof, nor shall any such corpora- tion bridge any stream in any manner that will prevent or endan- ger the passage of any raft of twenty-five feet in width, or where the same is navigable by vessels or steamboats. {Id. § 121.) Agreement for use of highways. — The supervisor and commis- sioner of highways, or a majority if there be more than one of any town, may agree in writing with any such corporation for the use of any part of a public highway therein required for the construc- tion of any such road, and the compensation to be paid by the corporation for taking and using such highway for such purpose on first obtaining consent of at least two-thirds of all the owners of land bounded on or along such highway, which agreement shall be filed and recorded in the town clerk's office of the town. If such agreement cannot be made the corporation may acquire the right to take such highway for such purpose by condemna- tion. The compensation therefor shall be paid to the commission- 88 ^ The Law -of Highways. ers of highways to be expended by them in improving the high- ways of the town. {Id. § 122.) Application to hoard of supervisors.— li the lands necessary for the construction of the road or bridge of any such corporation in any county have not been procured by gift or purchase, and the right to take and use any part of any highway therein required by such corporation shall not have been procured by agreement with the supervisor and commissioners of highways of the town in which such highway is situated, the corporation may make application to the board of supervisors of each county, in which such bridge or road, or any part thereof, is to be located, for au- thority to build, lay out and construct the same, and take the nec- essary real estate for such purpose. Notice of the application shall be published in at least one public newspaper in each county for six successive weeks, specifying the time and place where it will be made, the location, length and breadth of any such bridge, and the length and route of any such proposed road, its character, and each town, city and village in or through which it is to be constructed. The application may be made at any annual or special meeting of the board, and if the corporation desires a spe- cial meeting therefor any three members of the board may fix a time when the same shall be held, and notice thereof shall be served upon each of the other supervisors by delivering the same to him personally or leaving it at his place of residence at least twenty days before the minutes, * and the expenses of the special meeting and of notifying the members of the board thereof shall be paid by the corporation. All persons interested therein or owning real estate in any of the towns through which it is pro- posed to construct the road may appear and be heard upon the hearing of the application. The board may take testimony in respect thereto, or authorize it to be taken by a committee of the board and may adjourn the hearing from time to time. After, hearing the application the board may, by an order entered in its meetings, \ authorize the corporation to construct such bridge or road and to take the real estate necessary for that purpose, and a * So in the original ; probably intended for " meeting." — Ed. f So in the original ; probably intended for " minutes."— Ed. The Law of -Highways. 89 copy of the order certified by the clerk of the board shall be recorded by the corporation in the office of the clerk of the county in which such bridge or road or any part thereof is to be located before any act shall be done under it. {Id., § 123.) Commissioners to lay out road. — If the application for the con- struction of any such road is granted, the board shall -appoint three disinterested persons, not owners of real estate in any town, through which the road is to be ^constructed or in any adjoining town, commissioners to lay out the road. They shall take the constitutional oath of office, and without unnecessary delay lay out the route of such road in such manner as in their opinion will best promote the public interests ; they shall hear all persons in- terested who shall apply to be heard and may take testimony in relation thereto, and shall cause an accurate survey and descrip- tion of the road and the necessary buildings and gates, signed and acknowledged by them to be recorded in the clerk's office of the county. If the road is situated in more than one county, such survey and description shall be separate as to that portion in each county and filed in the office of the clerk of the county in* which it relates. The corporation shall pay each commissioner three dollars for every day spent by him in the performance of his duties and his necessary expenses. {Id., § 124.) Possession of and title to real estate. — The route so laid out and surveyed by the commissioners shall be the route of the road, and the corporation may enter upon, take and hold for the purposes of its incorporation, the lands described in such survey as necessary for the construction of its road, and requisite buildings and gates. If for any cause the owner of any of such lands shall be incapable of selling the same or his name or residence cannot, with reason- able diligence be ascertained or the corporation is unable to agree with the owner for the purchase thereof it may acquire title thereto by condemnation. {Id., § 125.) Use of turnpike road hy plank-road. — No plank-road shall be made on the roadway of any turnpike corporation without its con- sent, except for the purpose of crossing the same. Any plank- road corporation may contract wjth any connecting turnpike cor- *So in the original. 90 The Law of Highways. poration for the purcliase of its roadway or a part thereof, or of its stock, on such terms as may be miitually agreed upon, and such stock, if purchased, shall be held by the plank-road corpora- tion for the benefit of its stockholders in proportion to the amount of stock held by each, and a transfer of stock in the plank-road corporation shall carry with it its proportional amount of the turnpike stock, and entitle the holder thereof to his share of the dividends derived therefrom. After the purchase of the whole of the stock of any such turnpike corporation by such plank-road corporation the directors of the plank-road corporation shall be the directors of the turnpike corporation, and shall manage its affairs and render an account of the same annually to the stockholders of the plank-road corporation. If the plank-road corporation is dis- solved, its stockholders at the time of dissolution shall be the stockholders of the turnpike corporation in proportion to the amount of stock held by each, and the stock of the turnpike cor- poration shall thereafter be deemed to be divided into shares equal in number to the shares of stock of the late plank-road corpora- tion, and scrip therefor shall be issued accordingly to each of the last stockholders of the plank-road corporation, and the officers of the turnpike corporation shall be the same in number as provided for in its charter or certificate of incorporation, and shall be chosen by such former stockholders of the plank-road corporation or their assigns. A corporation owning a turnpike road on or ad- joining which a plank-road shall have been constructed may abandon that portion of its road on or adjoining the route of which a plank-road is actually constructed and used. {Id., § 126.) Width and construction of road. — Every such plank-road shall be so constructed as to make, secure and maintain a smooth and per- manent road, the track of which shall be made of timber, plank or other hard material forming a hard and even surface, and every such turnpike road shall be bedded with stone, gravel or such other material as may be found on the line thereof, and faced with broken stone or gravel, forming a hard and even surface with good and sufficient ditches on each side wherever practicable, and all such roads shall be laid out at least four rods wide and the arch or bed at least eighteen feet wide, and shall be so constructed as to permit carriages and other vehicles conveniently to pass each The Law of Highways. 91 other, and to pass on and off such road where intersected with other roads. Any corporation which shall have once laid its road with plank may relay the same, or any part thereof, with broken stone, gravel, shells or other hard materials, forming a good and substantial road. Any plank-road or turnpike corporation may lay iron rails on its road suitable for the use of wagons and vehicles drawn by horses or animals over its road, but no other motive power shall be used thereon. {Id., § 127.) Construction of bridges ; Obstruction of rafts prohibited. — Every bridge constructed by any such corporation shall be built with a good and substantial railing or siding at least four and one-half feet high, and over any stream navigable by rafts the corporation shall keep the channel of the stream above and below the bridge free and clear from all deposits, formed or occasioned by the erec- tion of the bridge, which shall in any wise obstruct the navigation thereof, and shall be liable to all persons unreasonably or unnec- esarily delayed or hindered in passing the same for all damages sustained thereby. No such bridge shall be constructed over or across any river or watercourse where the tide ebbs and flows or any water used for a harbor, or any lake,- river or water navigable by sail vessels or steamboats, nor within the limits prescribed by law, within which a bridge shall not be erected and maintained in proximity to another bridge. {Id., § 128.) Certificate of completion of road or bridge. — When any such cor- poration shall have completed its bridge or road or any five con- secutive miles thereof, it may apply to the commissioners of high- ways of each town in which the completed road or bridge is situ- ated to inspect the same, and if a majority of the commissioners are satisfied that the road or bridge is made and completed as re- quired by law and in a manner safe and convenient for the public use, they shall make a certificate to that effect, which be filed in the office of the county clerk. Bach commissioner shall be paid by the corporation two dollars per day for his services and neces- sary expenses. {Id., § 129.) Gates, rates of toll; and exemption. — Upon filing such certificate such corporation may erect a toll-gate at such bridge or one or more toll-gates upon the road so inspected, and may demand and receive the following rates of toll, a printed list of which shall be 92 The Law of Highways. conspicuously posted at or over each gate : If a bridge corpora- tion, such sum as shall be from time to time prescribed by the board of supervisors of the county or counties in which the bridge is located. If a turnpike or plank-road, for every vehicle drawn by one animal, one cent per mile, and one cent per mile for each additional animal ; for every vehicle used chiefly for carry- ing passengers, three cents per mile, and one cent per mile for each additional animal ; for every horse rode, led or driven, three-quar- ters of a cent per mile; for every score of sheep or swine, one and one-half cents per mile, and for every score of neat cattle, two cents'per mile. When diverging roads strike any plank-road or turnpike at or near any toll-gate, the board of supervisors of the county may direct that the toll charge shall commence from the point of such divergence, and only for the distance traveled on such turnpike or plank-road, but fractions of cents may be made units of cents in favor of the plank-road or turnpike corporation. The corporation may from time to time commute, but not for a longer period than one year at any one time, with any person whose place of abode shall adjoin or be near to the road for the toll payable at the nearest gate on each side thereof, and the com- mutation may be renewed from year to year. No tolls shall be charged or collected at any gate, from any person going to or from public worship, a funeral, school, town meeting or election, at which he is a voter to cast his vote, a military parade which he is required by law to attend, any court which he shall be required to attend as a juror or witness, and when going to or from his legally required work upon any public highway, persons living within one mile of the gate by the most usually travelled road when not engaged in the transportation of other persons or property, and troops in the actual service of this state or of the United States- {Id., § 130.) Toll gatherers. — Every such corporation may appoint toll gath- erers to collect toll at each gate, who may detain and prevent from passing through the gate, any person riding, leading or driving animals or vehicles, subject to the payment of toll, until the toll is paid, but if he shall unreasonably hinder or delay any traveler or passenger liable to the payment of toll, or shall demand or receive from any person more toll than he is authorized by law to collect, The Law of Highways. 93 he shall forfeit to such person the sum of five dollars for every offense, and the corporation employing him shall be liable for the payment thereof, and for any damages sustained by any person for acts done or omitted to be done by him in his capacity of toll gatherer, if, on recovery of judgment against the toll gatherer therefor, execution thereon shall be returned nulla bona. {Id, § 131.) Penalty for running a gate. — Any person who, with intent to avoid the payment of toll, shall pass any gate, without paying the toll required by law, or 'shall, with his team, carriage or horse, turn out of a turnpike or plank-road and pass any gate thereon on ground adjacent thereto, shall forfeit for each offense the sum of ten dollars to the corporation injured. {Id, § 132.) Location of gates and change thereof. — No such corporation shall erect any toll gate, house, or other building within ten rods of the front of any dwelling house, barn or other oat house, without the written consent of the owner, and the county judge of the county in which the same is located shall, on application, order any build- ing so erected to be removed, and if a majority of the commission- ers of highways of any town, in which a toll gate shall be located, or in an adjoining town, shall deem the location of any gate unjust to the public interests by reason of the proximity of diverging roads or otherwise, they may, on fifteen days' written notice to the president or secretary of the corporation, apply to the county court of the county in which the gate is located, for an order to alter or change its location. On hearing such application, and viewing the premises, if deemed necessary, the court may make such order in the matter as may be just and p-oper. Either party may, within fifteen days thereafter, appeal to the general term of the supreme court from such order, on giving such security as the county judge, making the order, may prescribe. Upon such appeal the supreme court, on motion of either party and on due notice, shall appoint three disinterested persons who are not residents of any town through or into which such road shall run, or to or from which it is the principal thoi'oughfare, or any adjoining town, as referees to hear, try and determine the appeal. Such referees shall view the premises and the location of the gate, and hear the parties in the same manner as on the trial of an issue of fact by a referee in a 94 The Law of Highways. civil action in the supreme court, and such court shall review the report and render judgment thereon as justice and equity shall re- quire, which shall be final and conclusive. The referees shall be en- titled to the same fees as referees in civil actions in the supreme court, to be paid in the first instance by the party in whose favor their report or decision shall be, and the supreme court shall award judgment therefor, with such costs and expenses as it may deem reasonable, to the successful party on the appeal, which judgment shall be entered with the order affirming or reversing the order ap- pealed from, and may be enforced by execution as a judgment of a court of record. If the order of the county court is not appealed from, it may be enforced, as the court may direct, and the court may allow such costs as may be deemed just and equitable. {Id., 133.) Inspectors; their powers and duties. — The commissioners of high- ways of the several towns and the trustees or other officers in the incorporated cities and villages of the state, who perform the duties of commissioners of highways in such cities and villages, shall be inspectors of plank-roads and turnpikes, in their respect- ive towns, cities and villages. They shall personally inspect the whole of such turnpike or plank-road as lies in their respective towns, villages or cities, at least once in each month, and upon written complaint to them, or any of them, that any part of such road is out of repair they shall, without delay, view and examine the part complained of, and if it shall be found to be out of re- pair, or in condition not to be conveniently used by the public, they shall give written notice to the toll gatherer or person attend- ing the gate nearest the place out of repair or in bad condition to cause the same to be put in good condition within forty-eight hours from the service of the notice, and in default thereof they shall order the toll-gates upon such road to be immediately thrown open until the road shall be fully repaired to the satisfac- tion of the inspector. The fees of the inspectors for such services shall be two dollars for each day actually employed, to be paid by the corporation or person whose road is so inspected, if they order the gates to be thrown open, but otherwise to be charged, audited and paid in the same manner as other fees of commission- ers of highways. Any .party aggrieved by the order of the in- The Law of Highways. 95 spectors may appeal therefrom to the county court of the county in which that part of the order is situated within twenty days after service of the order by serving a notice of appeal upon one of the inspectors, and filing a copy thereof in the county clerk's office, and the appeal may be brought on for hearing upon a notice of not less than five days, and the county court shall al- ways be open to hear the same, and upon hearing the proofs and allegations of the parties the court may affirm, reverse or modify the order. If the order requires the gates to be thrown open, they shall remain open during the pendency of the appeal. Any inspector who shall neglect to perform his duties as such inspector shall forfeit the sum of twenty-five dollars for each offense. Every keeper of a gate ordered to be thrown open not immediately obey- ing such order, or not keeping such gate open until a certificate permitting it to be closed shall be granted, or hindering or delay- ing any person in passing, or taking any tolls from any person passing such gate during the time it ought to be open, shall forfeit to the party aggrieved the sum of ten dollars for each offense, and the corporation owning the road, who shall refuse or neglect to obey the requirements of any such notice or order, shall forfeit to the people of the state the sum of two hundred dollars for each offense. {Id., § 134.) Change of route ; extensions and branches. — Any such corporation may, with the written consent of the owners of two-thirds of its capital stock and of a majority of the commissioners of highways of the town or towns, in which any change or extension is pro- posed to be made, construct branches to its main line or extend the same, or change the route of its road or any part thereof, and ac- quire the right of way for the same in the same manner as for the original or main line, and may, by any of its officers, agents or ser- vants, enter upon lands for the purpose of making any examina- tion, survey or map, doing no unnecessary damage ; but before entering upon, taking or using such lands, the corporation shall make a survey and map thereof, designating thereon the lands of each owner or occupant intended to be taken or used, which shall be signed and acknowledged by the engineer making the same and the president of the corporation and filed in the office of the clerk of the county in which the land is situated. {Id, § 135.) 96 The Law of Highways. Mile-stones, guide-posts and hoist-gates. — A mile-stone or post shall be erected and maintained by every such corporation on each mile of its road, on which shall be fairly and legibly marked or inscribed the distance of such stone or post from the place of commencement of the road, and when the road shall commence at the end of any other road having mile-stones or posts on which the distance from any city or town is marked, a continuation of that distance shall in like manner be inscribed. A guide-post shall also- be erected at the intersection of every public road lead- ing into or from every turnpike or plank-road, on which shall be inscribed the name of the place to which such intersecting road leads in the direction to which the name on the guide post shall point. No plank-road or turnpike corporation shall erect or put up any hoist-gate on its road. Any person who shall willfully break, cut down, deface or injure any mile-stone, post or gate on such road, or dig up or injure any part of the road, or anything belonging thereto, shall forfeit to the corporation twenty-five dol- lars for every offense, in addition to the damages resulting from the act. {Id., § 136.) Location of office of corporation. — Within two weeks after the formation of any such corporation its directors shall designate some place within a county in which its road or bridge, or some part thereof shall be constructed as its office, and shall give public notice thereof by publishing the same once in each week for three successive weeks in a public newspaper in the county, and shall file a copy of the notice in the office of the county clerk of every county in which any part of the road or bridge is, or is to be con- structed, and if the location of such office shall be changed, like notice of the change shall be published and filed, in which shall be specified the time of making the change, before it shall take effect. Every notice, summons or other paper required by law to be served on the corporation may be served by leaving the same at such office with any person having charge thereof, at any time between nine o'clock in the forenoon, and five o'clock in the after- noon of any day except Sunday or a legal holidtiy. {Id., % 137.) Consolidation of corporations and sale of franchise. — Any two or more of such corporations may consolidate into one corporation on such term? as the persons owning two-thirds of the stock of The Law of Highways. 97 each corporation may agree upon, and may change the name of the road on filing in the ofhce where the original certificates of in- corporation were filed, a certificate containing the names of the roads so consolidated, and the name by which such road shall thereafter be known. Any plank-road or turnpike corporation may, with the consent of the owners of sixty per cent of its stock, sell, and convey the whole or any part of its rights, property and franchises to any other domestic plank-road or turnpike corpora- tion, and such sale and conveyance shall vest the rights, property and franchises thereby transferred in the corporation to which thev are conveyed for the term of its corporate existence. {Id., § 138.) Surrender of road. — The directors of any plank-road or turnpike corporation may abandon the whole or any part of its road at either or both ends thereof, upon obtaining the written consent of the stockholders, owning two-thirds of the stock of the corpora- tion, which surrender shall be by a declaration in writing to that effect, attested by the seal of the corporation and acknowledged by the president and secretary. Such declaration and consent shall be filed and recorded in the clerk's office of the county in which any part of the road abandoned shall be situated, and the road so abandoned shall cease to be the road or property of the corporation, and shall revert and belong to the several towns, cities and villages through which it was constructed, and the cor- poration shall no longer be liable to maintain, it or to be assessed thereon, or permitted to collect tolls for traveling over the same, but without impairing its right to take toll on the remaining part of its road at the rate prescribed by law. {Id., § 139.) Taxation and exemption. — So much of any bridge or toll-house of any bridge corporation as may be within any town, city or village, shall be liable to taxation therein as real estate. Toll- houses and other fixtures and all property belonging to any plank- road or turnpike corporation shall be exempt from assessment and taxation for any purpose until the surplus annual receipts of tolls on its road over necessary repairs and a suitable reserve fund for repairs or relaying of plank, shall exceed seven per cent per annum on the first cost of the road. If the assessors of any town, 7 98 The Law of Highways. village or city and the corporation disagree concerning any exemp- tion claim, the corporation may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to both parties, examine the books and vouchers of the corporation, and take such further proof as he shall deem proper, and decide whether such corporation is liable to taxation under this section, and his decision shall be final. {Id., § 140.) Hauling logs and timber. — Any person who shall draw or haul or cause to be drawn or hauled, any logs, timber or other material upon the bed of any plank or turnpike road, unless the same shall be entirely elevated above the surface of the road on wheels or runners, and the road-bed shall be injured thereby, or who shall do or cause to be done any act by which the road-bed, or any ditch, sluice, culvert or drain appertaining to any turnpike or plank-road shall be injured or obstructed, or shall divert or cause to be diverted, any stream of water so as to injure or endanger any part of such road, shall forfeit to the corporation the sum of five dollars for every oSense in addition to the damages resulting from the wrongful act. {Id., % 141.) Encroachment of fences. — Whenever the president or secretary of any turnpike or plank-road corporation shall notify any in- spector of such roads in the county where situated that any person is erecting or has erected any fence or other structure upon any part of the premises lawfully set apart for any such- turnpike or plank-road, the inspector shall examine into the facts and order the fence or other structure to be removed if it shall appear to be upon any part of any such road, and any person neglecting or refus- ing to remove the same within twenty days or such further time not exceeding three months, as may be fixed by the inspector, shall forfeit to the corporation the sum of five dollars for every day, daring which the fence or other structure shall remain upon such road, but no such order shall require the removal of any fence, previously erected, between the first day of December and the first day of April. {Id., § 142.) Penalty for fast driving over bridges. — Any plank-road, turnpike or bridge corporation may put up and maintain at conspicuous places at each end of any bridge, owned or maintained by it, the The Law of Highways. 99 length of wliose span is not less than twenty-five feet, a notice with the following words in large characters : " One dollar fine for riding or driving over this bridge faster than a walk." Whoever shall ride or drive faster than a walk, oVer any bridge, upon which such notice shall have been placed, and shall then be, shall forfeit to the corporation the sum of one dollar for every such offense. {Id., § 143.) Acts of directors prohibited. — No director of any such corporation shall be concerned, directly or indirectly, in any contract for mak- ing or working any road belonging to it during the time he shall be a director. No contractor for the making of such road, or any part thereof, shall make a new contract for the performance of his work, or any part of it, other than by hiring hands, teams, carriages or utensils to be superintended and paid by himself,, unless such new contract and its terms be laid before the board of directiors and be approved by them. {Id., § 144.) Actions for penalties. — ^No action to recover any penalty against any turnpike or plank-road corporation, shall be commenced or maintained against it, or any of its officers or agents, unless commenced within thirty days after the penalty was incurred. {id, § 145.) Proof of incorporation. — In any action brought by or against any domestic turnpike or plank-road corporation, which shall have been in actual operation, and in possession of a road upon which it has taken toll for five consecutive years, next preceding the commencement of the action, parol proof of such corporate exist- ence and u$e shall be sufficient to establish the incorporation of the corporation, for all the purposes of the action, unless the opposing party shall set up a cMim in his complaint or answer duly verified of title in himself to the road, or some part thereof stating the nature of his title, and right to the immediate poses- sion and use thereof. {Id., § 146.) When stockholders to he directors. — When the whole number of stockholders in any turnpike or plank-road, corporation shall not exceed the number of directors specified in the certificate of in- corporation, each stockholder shall be a director of such corpora- tion,' and the stockholders shall constitute the board of directors. 1 100 The Law of Highways. whatever may their number, and a majority thereof shall be a quorum for the transaction of business. {Id., § 147.) Dissolution of corporation. — -Every turnpike, plank-road or bridge corporation may be dissolved by the legislature when, by. the income arising from tolls, it shall have been compensated for all moneys expended in purchasing, making, repairing and taking care of its road, and have received in addition thereto an average annual interest at the rate of ten per cent, and on such dissolution all the rights and property of the corporation shall vest in the people of the state. Any such corporation, which shall not within two years from the filing of its certificate of incorporation, have commenced the construction of its road or bridge and actually ex- pended thereon ten per cent of its capital, or which shall not within five years from such filing have completed its road or bridge, or, in case such bridge is destroyed, shall not rebuild the same within five years, or which, for a period of five consecutive years shall have neglected or omitted to exercise its corporate functions shall be deemed dissolved. Where the corporation has neglected or ' omitted for five years to exercise its corporate functions, and its road-bed or right of way shall have been used as a public high- way for that period, or where any such corporation shall have become dissolved, or where the road or any part of it of a turn- pike or plank-road corporation, or the bridge of any bridge corpo- ration, shall have been discontinued, such road-bed or right of way, and such discontinued road or bridge, and the road or bridge of any such dissolved corporation, shall thereafter be a public highway, with the same effect as if laid out by the commissioners of highways of the town, and be subject to the laws relating to highways and the erection, repairing and preservation of bridges thereon. {Id., % 148.) Town must pay for lands not originally a highway. — When the corporate existence of any plank-road or turnpike corporation shall have ceased by limitation of time, or where any judgment of ouster or dissolution, or restraining the exercise of its franchises has been rendered in any action against it, such portion of the line of its road as was built over lands which were originally pur- chased by it and not previously a public highway shall not be used as a public highway, nor be taken possession or control of The Law of Highways. 101 by the town in which the same may be, or by any of the authori- ties thereof or be claimed or worked or used as a public highway until the town shall pay over to the treasurer, receiver or other legal representatives of the corporation, or its assigns, the princi- pal sum of the amounts paid by it for such lands, as shown by the deeds of conveyance thereof to it, and every such judgment shall provide accordingly. Such payments shall be made within . three months after the expiration of the corporate existence of the corporation, or if any such judgment has been or shall be rend- ered within three months after service of written notice of the entry thereof on the supervisor of the town, and the person re- ceiving such payment shall execute a proper discharge therefor and a conveyance to the town of all the title and interest which the corporation had in such lands at the expiration of its corporate existence. {Id., § 149.) , Highway labor upon line of plank-road or turnpike. — Every per- son liable for highway labor living or owning property on the line of any plank road or turnpike may, on written application to the commissioners of highways of the town, on any day previous to making out the highway warrant by the commissioners, be assessed for the highway labor upon his property upon the line of such road, in the discretion of the commissioners to be worked out upon the line of such road as a separate road district, and the com- missioners shall make a separate list of the persons and property so assessed, as for a separate road district, and deliver the same to one of the directors of the corporation owning such road, who shall cause such highway labor to be worked out on such road in the same manner that oversees* of highways are required to do, and such directors shall possess the powers and have the authority to compel the performance of such highway labor or the payment of the tax therefor as such oversees* now have by law, and shall make like returns to the commissioner of highways, and any person so assessed may commute for the highway labor assessed upon him or his property by paying the sum now fixed by law as the com- mutation for such highway labor. {Id., § 150.) Extension of corporate existence. — No turnpike, plank:road or *So in the original. 102 The Law of Highwaxs. bridge corporation shall extend its corporate existence, pursuant to the provisious of the general corporation law, without the writ- ten consent of the persons owning at least two-thirds of its capi- tal stock, nor without the consent of the board of supervisors of each county in which any part of its road or bridge is situated, which consent shall be given by a resolution of the board adopted at any regular or special meeting, and a copy of such resolution, certified by the clerk of the board, or verified by the afiidavit of . some member thereof, together with such consent of the stock-- holders, and a statement verified by the afiidavit of the president and treasurer of the corporation, showing the actual capital ex- pended upon the construction of the road, exclusive of repairs, the name of each town, or ward through or into which the road passes, and, if any part of the road shall have been abandoned, the actual cost of the remaining part, exclusive of repairs, shall be filed with the certificate of the continuance of the corporate existence. No further abandonment of any road belonging to a corporation whose corporate existence has been so extended shall be made, except with the consent of a majority of the board of supervisors of tlie county in which the abandoned portion of the road may lie, which consent shall be filed in the oQice of the clerk of the county. {Id., § 151.) ARTICLE X. MISCELLANEOUS PROVISIONS. Section 160. Laws repealed. 161. Saving clause. 163. Construction. 163. When to take effect. Laws repealed. — Of the laws enumerated in the schedule hereto annexed,* that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed. {Id., % 160.) Saving clause. — The repeal of a law or any part of it specified in the annexed schedule shall not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture * See, schedule postea. The Law of Highways. 103 or punishment incurred prior to May first, eighteen hundred and ninety-one, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent, as if such law had not been repealed ; and all actions and proceedings civil or criminal, commenced under or by virtue of the laws so repealed and pending on April thirtieth, eighteen hundred and ninety-one, may be prosecuted and defended to final effect, in the same manner as they might under the laws then existing, unless it shall be . otherwise specially provided by law. {Id., § 161.) Construction. — The provisions of this chapter, so far as they are substantially jihc same as those of laws existing on April thirtieth, eighteen hundred and ninety-one, shall be construed as a continu- ation of such laws, modified or amended according to the lan- guage employed in this chapter, and not as new enactments ; and references in laws not repealed to provisions of laws incorporated into this chapter and repealed shall be construed as applying to the provisions so incorporated, and nothing in this chapter shall be construed to amend or repeal any provision of the Criminal or Penal Code. {Id., % 162.) When to take effect. — This chapter shall take effect on May first, eighteen hundred and ninety-one. {Id., § 16?.) VI. THE TOWN LAW. CHAP. 569, LAWS 1890.* The following provisions of chapter 569 of the Laws of 1890, known as the Town Law, are given, as having a bearing upon the election and duties of highway commissioners : Time and place of annual town meeting. — The citizens of the several towns in this state, except in counties containing upwards of three hundred thousand inhabitants, qualified by the constitu- tion to vote for elective officers, shall annually, after the year eighteen hundred and ninety-one, on the second Tuesday of Feb- * Took effect March 1, 1891. 104 The Law of Highways. ruary, assemble and hold town meetings in their respective towns at such place in each town as the electors* thereof at their annual town meeting shall from time to time appoint. When any town shall have been authorized by the board of supervisors of the county to hold its annual town meetings in its separate election dis- tricts, the electors in each of such election districts may, in like manner, appoint the place of holding their annual town meeting in such election district. If no place or places shall have been fixed for such meeting, the same shall be held at the place or places of the last annual town meeting in the town or election dis- trict. The board of supervisors of any county may by resolution adopted at any annual meeting fix the time when the annual town meetings in such counties shall be held, which shall be on some day between the first day of February and the first day of May inclusive, and such time when so fixed shall not be changed for the period of three years. (Laws 1890, chap. 569, § 10. See Thompson on Highways, 4th ed., 58.) Changing place of annual town meeting. — The electors of a town may, upon the application of fifteen electors therein, to be filed with the town clerk twenty days before an annual town meeting is to be held, determine at such meeting, by ballot, where future town meetings shall be held. Where town meetings in any town are held in separate election districts, the electors of each district may, at an annual town meeting, determine by resolution where its future town meetings shall be held. {Id., § 11.) Election of officers. — There shall be elected at the annual town meeting in each town, by ballot, one supervisor, one town clerk, one justice of the peace, one assessor, one collector, one commis- sioner of excise, one or two overseers of the poor, except in the counties of Eichmond and Kings ; one, two or three commission- ers of highways, not more than five constables, and two inspect- ors of election for each election district in the town. If there shall be any vacancies in the offices of justice of the peace, asses- sor, commissioners of excise, commissioners of highways, or over- seers of the poor, of any town at the time of holding its annual town meeting, persons shall then also be chosen to fill such vacan- cies, who shall hold their ofiices for the residue of the unexpired term for which they are respectively elected. All such officers, The Law of Highways. 105 except justice of the peace, shall hold their respective offices until others are elected or appointed in their places and have qualified. {Id., % 12 ; see id., 58.) Commissioners of highways.— The electors of each town may, at their annual town meeting, determine by resolution whether there shall be elected in their town one or three commissioners of high- ways. If only one shall be determined iipon, and it shall be a town having but one commissioner of highways, one commissioner only for a full term shall thereafter be elected, who shall hold his office for one year. If three shall be determined upon, three com- missioners of highways shall then be elected for the terms of one, two or three years respectively ; and the person having the great- est number of votes for each term so designated, shall be deemed duly elected, and shall hold his office for the term so desig- nated, and one commissioner only, for a full term, shall thereafter annually be elected, who shall hold his office for three years. Whenever any town shall have determined upon having three commissioners of highways, and shall desire to have but one, tire electors thereof may do so 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 the reso- lution shall expire or become vacant ; and they may act until their terms shall severally expire or become vacant, as fully as if three continued in office. When there shall be but one commis- sioner of highways in any town, he shall possess all the powers and discharge all the duties of commissioners of highways as pre- scribed by law. {Id., § 17 ; see p. 59.) Fence viewers. — The assessors and commissioners of highways elected in every town shall, by virtue of their offices, be fence viewers of their town. {Id., § 23 ; see p. 108.) Powers of annual town 'meetings. — The electors of each town may, at their annual town meeting : 1. Determine what number of constables, not exceeding five, and pound-masters shall be chosen in their town for the then en- suing year ; 2. Elect such town officers as may be required to be chosen ; 3. Direct the prosecution or defense of all actions and proceed- 106 The Law of Highways. ings in which their town is interested, and the raising of such sum therefor as they may deem necessary ; 4. Take measures and give directions for the exercise of their corporate powers ; 5. Make provisions and allow rewards for the destruction of noxious weeds and animals, as they may deem necessary, and raise money therefor {see p. 302) ; 6. Establish and maintain pounds at such places within their town as may be convenient (see p. 141) ; 7. Direct public nuisances in their town, affecting the security of life and health, to be changed, abated or removed, and raise a sum of money sufficient to pay the expense thereof ; 8. Make from time to time such prudential rules and regula- tion as they may think proper, for the better improving of all lands owned by their town, in its corporate capacity, whether com- mons or otherwise; for maintaining and amending partition or other fences around or within the same, and directing the time and manner of using such land (see p. 108) ; 9. Make like rules and regulations for ascertaining the suffi- ciency of all fences in such town and for impounding animals; impose such penalties on persons offending against any rule or regulation established by their town, excepting such as relate to the keeping and maintaining of fences, as they may think proper, not exceeding ten dollars for each offense, and apply the same, when recovered, in such manner as they may think most condu- cive to the interests of their' town {Id.) ; 10. In towns bound to support their own poor, direct such sum to be raised, as they may deem necessary, for such purpose, and to defray any charges that may exist against the overseers of the poor in their town ; 11. Determine any other question lawfully submitted to them; Every order or direction, and all rules and regulations made by any town meeting, shall remain in force until the same shall be altered or repealed at some subsequent town meeting. (/c?.,'§ 24.) Special town meetings. — Special town meetings shall also be held whenever twenty-five taxpayers upon the last town assess- ment-roll shall, by written application addressed to the town clerk, require a special town meeting to be called, for the purpose of rais- The Law of Highways. 107 ing money for the support of the poor ; also to vote upon the ques- tion of raising and appropriating money for the construction and maintenance of any bridges which the town may be authorized by law to erect or maintain ; or for the purpose of determining in re- gard to the prosecution or defense of actions, or the raising of money therefor ; and to vote upon any proposition which might have been determined by the electors of the town at the last annual town meeting, but was not acted upon thereat. Special town meetings may also be held upon the like application of the supervisor, commissioners of highways or overseers of the poor, to determine questions pertaining to their respective duties as such officers, and which the electors of a town have a right to deter- mine. {See p. 58.) Notices of town meetings. — No previous notice need be given of the annual town meetings; but the town clerk shall, at least ten days before the holding of any special town meeting cause notice thereof under his hand, to be posted conspicuously in at least four of the most public places in the town ; which notices shall specify the time, place and purposes of the meeting. {Id., § 26 ; see p. 58.) Erection or discontinuance of pounds. — Whenever the electors of any town shall determine at an annual town meeting, to erect one or more pounds therein, and whenever a pound shall now be erected in any town, the same shall be kept under the care and direction of a pound-master, to be elected or appointed for that purpose. The electors of any town may, at annual town meeting, discontinue any pounds therein. {Id., § 36 ; see p. 141.) Election q/"jioMnc?- masters. —Pound-masters may be elected (1) by ballot ; (2) by ayes and noes, or (3) by the rising or dividing of the electors, as the electors may determine. {Id., % 37 ; see p. 141.) The matter of voting is specified in § 38 of the same law. Refusal to serve as overseer of highways or pound-master. — If any persop chosen or appointed to the office of overseer of highways or pound-master shall refuse to serve, he shall forfeit to the town the sum of ten dollars. {Id., § 35 ; see p. 136.) Town offixiers to admirtister oaths. — Any town officer may ad- minister any necessary oath in any matter or proceeding law- 108 The Law of Highways. fully before him, or to any paper to be filed with him as such officer. {Id., § 56) Undertaking of commissioner ofhighiuays. — Every commissioner of highways shall, within ten days after notice of his election or appointment, execute an undertaking with two or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully discharge his duties as such commissioner, and within ten days after the expiration of his term of office, pay over to his successor all moneys remaining in his hands as such commissioner, and render to such successor a true account of all moneys received and paid out by him as such commissioner, which undertaking shall be delivered to the supervisor, and filed by him in the office of the town clerk within ten days thereafter, {Id., 63. See p. 61.) Resignation of town officers. — Any three justices of the peace of a town may, for sufficient cause shown to them accept the resig- nation of any town officer of their town ; and whenever they shall accept any such resignation, they shall forthwith give notice thereof to the town clerk of the town. {Id, § 64. See p. 62.) Form of undertaking, and liahility thereon. — Every undertaking of a town officer, as provided by this chapter or otherwise, must be executed by such officer and his sureties and acknowledged or proven and certified in like manner as deeds to be recorded, and the approval indorsed thereon. The parties executing such un- dertaking shall be jointly and severally liable, regardless of its form in that respect, for the damages to any person or party by reason of a breach of its terms. {Id., § 66. See p. 61.) Fires in woods. — Whenever the woods in any town shall be on fire, it shall be the duty of the justices of the peace, the super- visor and commissioners of highways of such town, and of 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 fire, as they shall severally deem necessary, to repair to the place where such fire shall prevail, and there to assist in extinguishing the same, or in stopping its progress. {Id, § 82. See p. 117.) Delivery of hooks and papers hy outgoing officer to successor. — Whenever the term of office of any supervisor, town clerk, com- missioner of highways or overseer of the poor shall expire, or The Law of Highways. 109 when either of such officers shall resign, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after he shall have entered on the duties of his office, ■demand of his preddcessor all the records, books and papers under his control belonging to such office. Every person so going out of office, whenever so required, shall deliver upon oath to his successor 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, and shall, at the same time pay over to his successor the moneys belonging to the town remaining in his hands. If any such officers shall have died, the successors or successor of such ■officer shall make such demand of the executors or administrators of such deceased officer, and such executors or administrators shall ■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. If any person so going out of office, or his executors or administrators, shall refuse or neglect, when law- fully required, to deliver such records, books or papers, he shall forfeit to the town, for every such refusal or neglect, the sum of two hundred and fifty dollars ; and officers entitled to demand such records, books and papers may compel the delivery thereof in the manner prescribed by law. {Id., § 84. See p. 131.) Divisioisr Fences. ' Section 100. Apportionment of division fence. 101. When lands may lie open. 103. Division fences on change of title. 103. Settlement of disputes. 104. Powers of fence viewers. 105. Neglect to make or repair division fences. 106. Fence destroyed by accident. 107. Damages for insufficient fence. 108. Damages for omitting to build fence. Apportionment of division fence. — Each owner of two adjoining tracts of land, except when they otherwise agree, ^hall make and maintain a just and equitable portion of the division fence between such lands, unless one of such owners shall choose to let his lands 110 The Law of Highways. lie open to the use of all animals which may lawfully be upon the other's land, and does not permit any animals lawfully upon his premises to go upon lands so lying open. When adjoining lands shall border upon any of the navigable lakes, streams or rivers of the state the owners of the lands shall make and maintain the division fence between them down to the line of low water mark, in such lakes, streams or rivers ; and when the adjoining lands shall be bounded by a line between the banks of streams of water not navigable, and the owners or occupants thereof cannot agree upon the manner in which the division fence between them shall be maintained, the fence viewers of the town shall direct upon which bank of the stream, and where the division fence shall be located, and the portion to be kept and maintained by eacih adjoining owner. (Laws 1890, ch. 569, art. V, § 100. See Thompson on Highways, ith ed.) Whe7i lands may_ lie open. — When the owners of any lands shall choose to let them lie open, he shall serve upon the owners of the adjoining lands a written notice to that effect, and thereafter the owners of such adjoining lands shall not be liable in any action or proceedings for any damages done by animals lawfully upon their premises going upon the lands so lying open or upon any other lands of the owner thereof through such lands so lying open. The owner of any lands so lying open, may have the same in- closed, by giving written notice to that efEect to the owners or occupants of the adjoining lands, and shall refund to such owners or occupants a jast proportion of the value of any division fence made and maintained by them, or if no fence has been so made or maintained upon the line or any part of it, he shall build and maintain his proportion of such division fence. {Id., % 101.) Division fences on change of title. — Whenever a subdivision, or new apportionment of any division fence shall become necessary by reason of transfer of the title of either of the adjoining owners, to the whole, or any portion of the adjoining lands, by convey- ance, devise or descent, such subdivision or new apportionment shall thereupon be made by the adjoining owners affected thereby ; and either adjoining owner shall refund to the other a just pro- portion of the value at the time of such transfer of title, of any division fence that shall theretofore have been made and main- The Law of Highways. Ill tained 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, in case of disagreement. {Id., § 102.) Settlement of disputes. — If disputes arise between the owners of adjoining lands, concerning the liability of either party to make or maintain any division fence, or the proportion or particular part of the fence to be made or maintained by either of them, such dispute shall be settled by any two of the fence viewers of the town, one of whom shall be chosen by each party ; and if either neglect, after eight days' notice to make such choice, the other party may select both. The fence viewers, in all matters heard by them, shall see that all interested parties have had reasonable notice thereof, and shall examine the premises and hear the allegations of the parties. If they cannot agree, they shall select another fence viewer to act with them, and the de- cision of any two shall be reduced to writing, and contain a description of the fence, and the proportion to be maintained by each, and shall be^forthwith filed in the office of the town clerk, and shall be final upon the parties to such dispute, and all parties holding under them. {Id., § 103.) Powers offence viewers. — Witnesses may be examined by the fence viewers on all questions submitted to them ; and either of such fence viewers may issue subpoenas for witnesses, who shall receive the same fees as witnesses in a justice's court. Each fence viewer thus employed shall be entitled to one dollar and fifty cents per diem. The party refusing or neglecting to pay 1ihe fence viewers or either of them, shall be liable to an action for the same with costs. {Id., § 104) Neglect to make or repair division fence. — If any person who is liable to contribute to the erection or repair of a division fence, shall neglect or refuse to make and maintain his proportion of such fence, or shall permit the same to be out of repair, he shall be lia- ble to pay the party injured all such damages as shall accrue thereby, to be ascertained and appraised by any two fence view- ers of the town, and to be recovered with costs. The appraise- 112 The Law of Highways. meat shall be rediiced to writing, and signed by the fence viewers making it. If such neglect or refusal shall be continued for the period of one month after request in writing to make or repair the fence, the party injured may make or repair the same, at the ex- pense of the party so neglecting or refusing, to be recovered from him with costs. {Id., § 105.) Fence destroyed hy accident. — Whenever a division fence shall be injured or destroyed by iloods, 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 shall be so required by any person interested therein. Such requisition shall be in writing, and signed by the party mak- ing it. If the person so notified 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 recov- ered from him with costs. {Id., § 106.) Damages for insufficient fence. — Whenever the electors of any town shall have made any rule or regulation, prescribing what shall be deemed a sufficient division fence in such town, any per- son who shall thereafter neglect to keep a fence, according to such rule or regulation shall be precluded from recovering compensa- tion, for damages done by any beast lawfully kept upon the ad- joining lands that may enter therefrom on any lands of such per- son, not fenced in conformity to the said rule or regulation, through any such defective fence. When the sufficiency of a fence shall come in question in any action, it shall be presumed to have been sufficient until the contrary be established. {Id., § 107.) (E. S., p. 905.)* Damages for omitting to build fence. — If any person liable to con- tribute to the erection or repair of a division fence shall neglect or refuse to make and maintain his proportion of such fence, or shall permit the same to be out of repair, he shall not be allowed to have and maintain any action for damages incurred by beasts com- ing thereon from adjoining lands where such beasts are lawfully kept, by reason of such defective fence, but shall be liable to pay * So in the original. The Law of Highways. 113 to the party injured all damages that shall accrue to his lands, and the crops, fruit trees and shrubbery thereon, and fixtures con- nected with the land, to be ascertained and appraised by any two fence viewers of the town, and to be recovered, with costs ; which appraisement shall be reduced to writing and sicned* by the fence viewers making the same, but shall be only prima facie evidence of the- amount of such damages. {Id., § 108.) Strays and Chattels Doing Damage. Section 120. Strays and beasts doing damage. 131. Notice to town clerk. 133. Impounding beasts. 133. Notice to owner. 134. Charges for notices. 135. Fees of fence viewers. 136. When lien may be foreclosed. 137. Notice of sale by fence viewers. 138. Proceeds of sale. 139. Notice to owner of fence viewers' meeting. 130. Duties of fence viewers. 131. Foreclosure of lien by action. 133. Duty and fees of pound-master. 133. Surplus moneys. 134. Villages and cities deemed towns. 135. Damages from inanimate goods. 136. Penalty for conversion of floating timber. Strays and beasts doing damage. — Whenever any person shall have any strayed horses, cattle, sheep, swine or other beasts upon his inclosed land, or shall find any such beast on land owned or occupied by him doing damage, and such beast shall not have come upon such lands from adjoining lands, where they are law- fully kept, by reason of his refusal or neglect to make or maintain a division fence required of him by law, such person may have a lien upon such beasts for the damage sustained by reason of their so coming upon his lands and doing damage, for his reasonable charges for keeping them, and all fees and costs made thereon, and he may * So in the original. 114 The Law of Highways. keep such beasts until such damages, charges, fees and costs are paid, or such lien is foreclosed, upon complying with the provis- ions of this article relating thereto. {Laws 1890, chap. 569, art. VI, § 120. See Thompson on Highways, 4th ed., page 113.) Notice to town clerk. — If such beasts are not redeemed within five days after coming upon such lands, the ' person entitled to such lien, shall deliver to the town clerk of the town, within which such lands or some part thereof shall be, a written notice, sub- scribed by him, containing his residence, and a description of the beasts so strayed or coming upon his lands, as near as may be, and that he claims a lien on such beasts for such damages, charges, fees and costs. The town clerk shall record the notice in a book to be kept by him for that purpose, for which he shall receive ten cents for each beast, to be paid by the person delivering the notice. Such book shall always be kept open for inspection, and no fees shall be taken by the clerk therefor. (Id., § 121.) Impounding beasts. — Within six days after such beasts shall have come upon such lands, such owner or occupant may cause them to be put in the nearest pound in the same town, if there be one, there to remain until they are redeemed, sold or reclaimed according to law. If there be no such pound, or he elect to keep such beasts, he shall cause them to be properly fed and cared for until they are redeemed, sold or reclaimed according to law. {Id., §122.) Notice to owner. — "Within thirty days after any such beasts may have come or been found upon any lands, the owner or occupant of the lands shall serve a written notice, either personally or by mail, upon the owner of the beasts, if known, that they are upon his lands, or in pound, as the case may be, and are held by him as strays or beasts doing damage, as the case may be ; and if such owner is not known, he shall publish such notice, within such time, in the nearest newspaper of the county for at least two suc- cessive weeks. {Id., § 123.) Charges for notice. — The person delivering the notice to the town clerk shall be entitled to receive therefor, in addition to the fees paid the town clerk, fifteen cents each for all horses, mules, cattle and swine, and five cents for each other beast described in the notice. If the charges, damages, costs and fees are not agreed The Law of Highways. 115 upon between the person delivering the notice and the owner of the beasts, they shall be determined by two fence viewers of the town, dne of whom shall be selected by the person claiming the lien, the' other by the fence viewer so selected. If such fence viewers can not agree, they shall select another to act with them, and the decision of any two of them shall be final. {Id., § 124.) Fees offence, viewers. — Each fence viewer shall be entitled to re- ceive ten cents for every mile he shall be obliged to travel from his residence to the place where the beasts are kept, and seventy- five cents for certificate of the charges as ascertained by them, (/d, § 125.) When lien may he foreclosed. — If the owner of such beasts shall not redeem the same within three months after delivery of the notice to the town clerk, the person delivering the notice may foreclose his lien by action, or by a sale of the beasts, as herein provided. "When a person claiming a lien, as herein provided,, shall fail to establish the same, he shall not be entitled to receive anything for damages, charges, fees or costs, but shall be liable to pay all fees, costs and expenses incurred by reason of his keep- ing such beasts and the proceedings thereon. {Id., § 126.) Notice of sale hy fence viewers. — ^ After such three months, a fence viewer of the town, on application of the person delivering the notice, shall give at least ten days' previous notice of the time and place of the sale of such beasts, by advertisement posted up in at least five public places in the town where such beasts may have been kept, one of which shall be at or near the outside door of the town clerk's office. At the time and place mentioned, such fence viewers shall sell such beasts to the highest bidder, unless redeemed by the owner. {Id., § 127.) Proceeds of sale. — ^Out of the proceeds from such sale, the fence viewer shall retain and pay the sums charged for such notices, fees and costs, together with the sums specified in the certificate for keeping the beasts, and damages done by them ; and the like charges for the sale, as are allowed on sales under executions is- sued out of justices' courts, and he shall pay the residue to the owner of the beasts, if he shall appear and demand the same. {Id., § 128.) Notice to owner of fence viewers' meeting. — When the owner of 116 The Law of Highways. such beasts is known and resides in the same town where such beasts are kept, five days' notice of the time and place of the meet- ings of the fence viewers to determine the damages done by such beasts, and the charges for keeping them, shall be personally served on him, if he resides in the same town ; if he resides elsewhere, and his post-office address is known, such notice shall be served by mail or personally. {Id., § 129.) Duties of fence viewers. — The fence viewers shall view the prem- ises where damages are claimed to have been done, and they may issue subpoenas, examine witnesses and take any competent evi- dence of the facts and circumstances necessary to enable them to determine the matter submitted to them, and shall determine any dispute that may arise touching the sufficiency of any division fence around the premises where such damage was done, and from where and how the beasts came upon the lands of the person claiming such damages and charges; if they determine that for any cause the claimant's lien is not enforceable, they shall so cer- tify, and the owner of the beasts shall thereupon be entitled to them without paying any charges thereon. {Id., § 130.) Foreclosure of lien hy action. — When such lien is foreclosed by action, all questions relating to damages, charges, sufficiency of fence, and from where and how such beasts came upon the lands of the person claiming such damages and charges, shall be proven upon the trial of such action, and no certificate of fence-viewers upon such questions shall then be necessary. {Id., § 131.) Duty and fees of pound-masters. — Every pound-master shall re- ceive and keep all beasts delivered to him as herein provided, un- til they shall be redeemed, sold or reclaimed, for which he shall be entitled to a reasonable compensation, not exceeding fifty cents per day for a horse or mule; twenty-five cents per day for each head of cattle, and fifteen cents per day for all other beasts, to be determined by the fence viewer making the sale, or the court be- fore whom the action is tried, besides his fees for taking and dis- charging the beasts, to be paid by the owner of the beasts, if the lien is established, otherwise bv the person claiming a lien thereon. {Id., § 132.) Surplus moneys. — If the owner of the beasts shall not appear and demand the residue of such moneys within one year after the The Law of Highways. 117 sale, he shall be thereafter precluded from recovering any part thereof, and the same shall be paid by the officer making the sale to the overseers of the poor of the town, or, in cities, to the officers having their powers, for the use of the poor thereof, and their re- ceipt shall be a legal discharge to the keeper of such beasts and the officer selling the same. If the officer who shall have sold such beasts^ shall not, within thirty days after the expiration of the year, pay such moneys to the overseers of the poor of the townj or, in cities, to officers having their powers, he shall forfeit to the town or city double the sum so remaining in his hands, together with the amount of such moneys. {Id., § 133.) Villages and cities deemed towns. — The villages and cities of this state shall be considered towns for the purposes of this article ; and the trustees of the village and the aldermen of the city shall be fence viewers therein for the purposes of this article. {Id., § 134.) Damages from inanimate goods. — When any person shall be au- thorized to distrain inanimate goods or chattels doing damage, or whenever any logs, timbers, boards or plank, in rafts or otherwise, or other personal property shall have drifted upon his lands, he shall be entitled to the same remedies, and shall proceed therein in the same manner and with the same powers as, herein provided with respect to beasts found doing damage, so far as such provis- ions are applicable. He may at any time deliver his notice of lien to the town clerk, describing the property, and he shall keep the same in some convenient place without removal to a pound, until the property is sold or reclaimed. The same officers shall conduct proceedings therein, as in proceedings where beasts are found do- ing damage, and all proceeds of sale shall be, in like manner, paid over and applied, subject to the, same penalties and liabilities, and with the same force and effect. {Id., § 135.) Penalty for conversion of floating lumber. — Whoever shall con- vert to his own use, without the consent of the owner thereof, any logs, timber, boards or plank, floating in any of the waters of this state, or lying on the banks or shores of any such waters, or on any island where the same have drifted, shall, for every offense, forfeit to the owner of such logs, or other lumber, three times the value therof. {Id., § 136.) 118 The Law of Highways. Sections 137 to 150 inclusive, relate to the duties of wreck master. Town fire companies. — The town board of any town may appoint, in writing, any number of inhabitants of tbeir town, which they may deem necessary, to be a fire company for the extinguishment of fires in their town ; but no such company, as herein provided, shall be formed in any incorporated city or village. Each fire company thus formed shall choose a captain and clerk thereof, and may establish such by-laws and regulations as may be necessary to enforce the performance, by such firemen, of their duty, and may impose such penalties, not exceeding five dollars for each offense, as may be necessary for that purpose. Such penalties may be collected by and in the name of the captains, in any court hav- ing cognizance thereof, and when collected shall be expended by the companies for the repair and preservation of their engines and apparatus. All vacancies which may at any time happen in such companies by death, resignation or otherwise, shall from time to time, be filled by the town board. The electors of any highway district, in which any town fire company shall have their head- quarters, at a special meeting lawfully called by the town clerk, who is hereby authorized to called such special meeting, may vote by ballot a sum of money, not exceeding four thousand dollars, for the purchase of a fire-engine and apparatus. And whenever said electors shall so vote said money for the purchase of a fire- engine and apparatus, the commissioners of the highway may con- tract for and purchase for such district a good and sufficient fire- engine and apparatus, at a price not to exceed the sum so voted, which engine and apparatus shall be the property of said high- way district, but may be used and cared for by such fire company. The purchase price of said fire-engine and apparatus shall be assessed and levied upon the property of said district and collected in the same manner as other town charges are assessed, levied and collected, except that the amount thereof shall be put in a sepa- rate column upon the tax-roll, and the board of supervisors of the county shall cause the sum as certified by the town board to be levied upon the taxable property of such highway district. (Laws 1890, ch. 569, § 171, as amended Laws 1891, ch. 254.) Compensation of town ofp^cers. — The following town officers shall The Law of Highways. 119 be entitled to compensation at the following rates for each day act- ually and necessarily devoted by them to the service of the town, in the duties of their respective offices, when no fee is al- lowed by law for the service : 1. The supervisor (except when attending the board of super- visors), town clerks, assessors, justices of the peace, overseers of the poor, inspectors of election, and clerks of the polls, two dol- lars per day, each of them. 2. Commissioners of highways, when there is but one such officer, two dollars per day; when more than one such officer in a town, one dollar and fifty cents per day. {Laws 1890, chap. 569, § 178.) Pound-masters' fees. — The pound-masters shall be allowed the following fees for their services, to wit: For taking into the pound and discharging therefrom every horse, mule and head of cattle, fifteen cents : for every other beast ten cents. {Id., 179.) What deemed town charges. — The following shall be deemed town charges : 1. The compensation of town officers for services rendered for their respective towns. 2. The contingent expenses necessarily incurred for the use and benefit of the town. 3. The moneys authorized to be raised by the vote of a town meeting for any town purpose. 4. Every sum directed by law to be raised for any town pur- pose. 5. All judgments duly recovered against a town. 6. All damages recovered against a town officer for any act done pursuant to a direction or resolution, duly adopted by the town board, or at a town meeting duly held ; and all damages against any such officer for any act done in good faith, in his official capacity, without any such direction or resolution, may be made a town charge, by a vote of the town, at a meeting duly held. 7. The costs and expenses, lawfully incurred by any town offi- cer in prosecuting or defending any action or proceeding brought bv or against the town or such officer for an official act done, shall be a town charge in all cases where the officer is required 120 The Law of Highways. . by law to so prosecute or defend, or to do such act, or is instructed to so prosecute or defend, or do such act, by resolution duly adopted by the town board, or at a town meeting duly held. All town charges specified in this . section shall be .presented to the town board for audit, and the moneys necessary to defray such charges shall be levied on the taxable property in such town by the board of supervisors. {Id., § 180.) How towns to sue and he sued, and make contracts. — Any action or special proceeding for the benefit of a town, upon a contract lawfully made with any of its town ofiicers, to enforce any lia- bility created or duly enjoined upon those officers, or the town represented by them, or to recover any penalty or forfeiture given to such officers, or the town represented by them, or to recover damages for injury to the property or rights of such officers, or the town represented by them, shall be in the name of the town. Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the town for any act or- omission of its town officers, shall be in the name of the town ; and all contracts made by such officers for and in behalf of their towns shall be in the name of the town. When such con- tracts are otherwise lawfully made, they shall be deemed the con- tracts of the town, notwithstanding it is omitted to be stated therein that they are in the name of the town. {Id., § 182.) Actions for trespass on town lands. — Whenever an action is brought by a town to recover a penalty for a trespass committed upon its land, and it shall appear upon the trial that the damages from the trespass exceed ten dollars, the town shall recover the damages and costs in lieu of the' penalty, and such recovery shall be a bar to any subsequent civil action for the same trespass. {Id., 183.) Election of, and term of town officers. — Town officers required to be elected in counties containing more than three hundred thousand inhabitants, as determined by the last preceding federal or state enumeration of the inhabitants, taken prior to any election of town officers, except justices of the peace, shall hereafter be elected by ballot, by the electors of such towns respectively, at the general election held in such towns ; and the terms of office of the persons so elected, shall commence and terminate, on the The Law of Highways. 121 first day of January of each year, except as herein otherwise provided. (Laws 1890, ch. 569, art. X, § 220.) Fiscal year; meeting of town hoards. — The fiscal year in such towns shall commence on the first day of January then next preceding the annual town meeting. Town boards of such towns shall meet annually for the purpose of auditing the accounts of , town officers at the office of the town clerk on the last Tuesday in December in each year at two o'clock in the afternoon except when the same shall occur on the twenty-fifth day. of the month, in which case such meeting shall be held on the following day ; and the supervisor and all other town officers or board of town officers Vho receive or disburse any moneys belonging to the town, shall account for the same under oath to said town board annually at such meeting. {Id., § 222.) Election districts. — Each of said towns containing more than five hundred electors shall comprise one or more election dis- tricts, as the supervisor, town clerk and assessors thereof may deem necessary or proper. There shall be provided at the polling places in each election district of such towns at the general elec- tion held therein a separate ballot-box to, be marked with the word " Town " in which shall be deposited all ballots to be cor- respondingly indorsed and containing the names of all town officers to be chosen at such election, and which ballots shall be can- vassed and counted immediately after the completion of the canvass of the votes in the other boxes used at such election, and the inspectors shall make one certificate or statement only of the result of such canvass of votes for town officers and forward the same, within twenty-four hours thereafter to the town clerk. Such election for town officers shall be conducted in the same manner as elections for state and county officers, and all pro- visions of law affecting such elections shall extend to the elections held under this article, so far as applicable, except as herein pro- vided. {Id., § 223.) Canvass; inspectors. — In each of such towns containing more than one polling district, the justices of the peace shall attend at the office of the town clerk, on the second day after such election, at ten o'clock in the forenoon, and canvass the votes for town offi- cers, as the same shall have been certified under the last preceding 122 The Law of Highways. section, and the town clerk shall act as clerk in such canvass, and shall enter in his record a statement of the number of votes for each candidate in the several districts, £^nd of the officers elected or chosen, which record shall be signed by him, and by the justice or justices acting as such canvassers. The person receiving the highest number of votes -for the respective offices shall be deemed to be duly elected thereto, excepting only the' inspectors of elec- tion for each election district ; only two names for inspectors shall be placed on any one ballot, and the two receiving the greatest number of votes shall be declared elected, and the third inspector shall be selected by such justice or justices from the two persons in such election district who shall have the highest number of votes next to the two inspectors elected. In towns having but one election district, such selection of the third inspector shall be made by the town clerk ; and the records of the votes cast, and of the town officers elected or chosen, shall be signed by him only, (/d, §224.) Canvass in case of no justice present. — The justice or justices of the peace present at the time and place appointed under the last preceding section, shall proceed with the canvass as herein pro- vided. If none sTiall be present, the town clerk shall appoint some suitable person, who shall be sworn by him faithfully to per- form such duty; and if the town clerk be absent, the justice or justices present shall -appoint a suitable person in his place, who shall be sworn in like manner, and the persons so appointed shall possess all the powers, and be subject to all the duties and respon- sibilities of the officers in whose place they are appointed. If any of the returns shall not have been received, or shall be required to be sent to the inspectors for correction, an adjournment may be taken, from day to day, for the purpose of procuring the proper returns. {Id., § 225.) Town meeting, husitiess of. — Town meetings shall continue to be held in such towns as now provided by law for the election of justices of the peace, and for the transaction of such business as is usually done at such meetings, other than the election of town officers, and the voters shall have power to meet and vote on the same, or at any special town meeting, provided their names ap- pear on the registry of the next preceding general election held The Law of Highways. 123 in such election district, or provided they shall have been duly- registered, as herein provided, and not otherwise. The several boards of registry shall give ten days' notice by posting the same in ten or more public places in each election district of said towns, of their intention to meet for the purpose of regis- tering the voters of such district whose names do not appear on such registry, which meeting shall be held on one day only in each election district, from nine o'clock in the morning until nine o'clock in the evening, not less than five nor more than fifteen days preceding such annual or special town meeting. Such annual town meeting shall be held at twelve o'clock noon, and continue until the final completion of the business, not later than two o'clock in the afternoon, and in towns having more than one general district, not later than sunset, (/d, § 226.) Notice to be published. — The notices required by law to be pub- lished by the town officers of the time and place of holding the general elections in said towns shall include a statement of the several town officers to be chosen thereat, which statement shall be furnished to them for such purpose by the town clerk ; but no such election shall be held illegal for want of proper notice- (/d, §227.) Resignations. — The supervisor and justices of the peace of a town, or a majority of them, may accept the resignations of any town officer therein, and make appointments to fill vacancies that may be caused thereby, or by death, removal from the town, refusal to serve or failure to qualify, and shall file the certificate of every such appointment forthwith, in the office of the town clerk. The persons so appointed shall enter upon their duties as soon as they shall have duly qualified, and shall serve until the first day of Januaiy, or, in case of collectors, until the first day of May next succeeding the then ensuing general election. {Id., § 228.) Vacancies. — Persons elected to supply vacancies in the office of supervisor, town clerk, collector, and other officers in such towns, the full term of which are more than one year, shall be deemed elected for the full term thereof commencing on the first day of January, and collectors on the first day of May, next after their election, except justices of the peace, assessors, commissioners of 124 The Law of Highways. highways, commissioners of excise, and other like officers of whom only one is elected in each year, in which last named cases the persons elected to fill vacancies shall be deemed elected to serve from the first day of January or May, as aforesaid, and only for the then remaining and unexpired portion of the vacated term. [Id., § 229.) Official oath and undertaking. — The supervisor and all other town officers hereafter elected or appointed in said towns, except justices of the peace and inspectors of election, shall, before the commencement of the term for which they were elected or ap- pointed, or if appointed to fill vacancies, within ten days after their appointment, severally take the constitutional oath of office, and file the same in the office of the town clerk ; and also within the same time file therein the undertakings, if any, which are re- quired to be givea by them for the faithful discharge of their duties. The undertaking of collectors shall be given, as in other towns of this state. If the collector, or any of such officers, shall fail, neglect, refuse or omit to comply with the provisions of this section, a vacancy shall thereupon be created, which shall be filled by appointment, in the manner prescribed by this article ; . but none of the provisions of this section shall be deemed to ex- tend to the bonds or undertakings of supervisors for school moneys, which bonds or undertakings may be given by him after entering upon the duties of his office, in the manner now pro- vided by law. {Id., % 230.) MISCELLANEOUS LAWS. Deer River a highway.— Deev river in Lewis county from its mouth to lot number 114 in the town of Montague on the east branch and lot number 110 in said town on the west branch is de- clared a public highway for the passage of any merchantable pro- duct of the forest, subject to the provisions of chapter 533 of the Laws of 1880, by ch. 384 of the Laws of 1891. Abandonment of part of route by elevated railway. — The abandon- ment of a portion of its route by an elevated railway is regulated by ch. 294, Laws 1891. The Law of Highways. 125 Grass rwer-.— Chapter 279, Laws 1891, regulates the manner in which booms upon Grass river must be opened to allow of the passage of logs, etc., and imposes a penalty of fifty dollars for failure to comply with the law. Supervisors are authorized to assume control of certain public roads, and the proceedings regulated by Laws 1890, ch. 555. Additional moneys not to exceed three hundred dollars may be raised by the highway commissioners at town meeting for pur- chase of wire fences at points liable to snow blockade under Laws 1890, ch. 291. The act authorizing commissioners to purchase implements and providing for the payment thereof was amended by Laws 1890, <;h. 493, but this seems to be again replaced by ch. 568, art. 1, § 6, ante, p. 22. The act relating to opening of roads through vineyard was amended by Laws 1890, ch. 268, but this seems to be replaced by ch. 568, § 90, ante p. 46. For a list of criminal offenses relating to highways and high- way officers, other than those covered by the Code of Criminal Procedure and the Penal Code, see report of the attorney-general made under Laws 1889, p. 89, ch. 35, which will be found in Cook's Penal Code, Annotated, 1890, p. 382. CHAP. 310. AN ACT to encourage and facilitate the draining of agricultural lands. Appkovbd by the Governor May 4, 1891. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Whenever any owner or owners of agricultural lands desire to drain the same, or to reclaim and secure for tillage or other farming purposes, any low, marshy, or wet lands, by draining the same, the said owner or as many owners of such land as may join for said purpose under any agreement, contract or writing entered into by them, may, with the consent and under the supervision of the commissioners of highways of any town wherein the said lands are located, lay out and construct the 126 The Law of HianwAYS. necessary drains or ditches for draining suchlands, so as to con- nect with and flow into the drains, ditches or other water-courses along or across any public road or highway, or through or under any sluice, or under any bridge upon any public road, or high- way, provided that the draining of any land in such manner shall not endanger any such road or highway, or impede travel thereon on account of overflow. In case any additional quantity of water thus emptied into the highway ditches or other course for carry- ing off water will be in excess of their usual capacity,' the com- missioners of highways are hereby authorized to so enlarge or cause to be enlarged, the said highway ditches or other courses that they can receive the waters thus drained into them, without damage, or danger of damage or obstruction to the highway. § 2. In case of any difference or disagreement arising over the laying out and construction of drains or ditches by the owners of adjoining lands, who have previously entered into an agreement for the drainage of any such lands possessed by them, as in the first section of this act mentioned, which agreement shall be in writing, the said owners may make in writing, in which all said owners interested shall unite, an application to the fence viewers of the town wherein the land to be drained is situated, to hear and determine the matters of difference between said owners, upon submission to said fence viewers, the said matters of difference, the same as touching any divisions of lands or farm lines for the building and maintaining of line fences, or any other matter which may now be by law submitted to said fence viewers. And the said fence viewers shall, before making their report, view the premises or lands included within the area of the proposed drain- age, and give opportunity to any party interested to be heard. And any agreement made by any of said owners for said submis- sion to the said fence viewers, shall be held and construed as legal and binding upon the parties thereto, as any contract or agreement made for any lawful purpose. '" § 3, The conclusions and findings of said fence viewers shall be in writing, one copy of which shall be delivered to the applicants in every such proceeding, and one copy shall be filed in the office of the clerk of the town wherein the land proposed to be drained is located. The compensation or fees of said fence viewers in such The Law of Highways. 127 proceeding, shall be the same as now allowed by law, in the case of establishing and maintaining line-fences and shall be paid by the parties making the application hereinbefore mentioned. § 4. Where any water or drainage has been carried or directed by owners of lands as in this act provided, Vross, through or un- der said land to a point of intersection with the natural flow, drain- age or outlet of water, upon the surface, along or by the side of any lands adjoining, but not embraced within the portion or dis- trict of land so drained as by this act provided, the same shall not be deemed as a diversion of any drainage or flow of water from the lands included within the area so drained. § 5. It shall be the duty of the fence viewers to act when called upon, in the manner and for the purpose hereinbefore provided, and they shall meet and proceed upon any application made as provided, within ten days after receiving the same ; and said ap- plication shall contain a particular statement of all the matters and things upon which their action is requested, within the meaning of this act, by the parties -to said application, but no fence viewer who is an owner of any land or has any personal interest in any matter involved in the proceeding, shall be competent to act ; and in case of such disqualification of any said officer, his place may be filled by any justice of the peace of the town who may not be for the same reason disqualified, and whom the persons uniting in the ap- plication for such proceeding as provided, may agree upon. This act shall take effect immediately. CHAP. 385. AN ACT to amend section eleven of chapter five hundred and thirty-three of the laws of eighteen hundrad and eighty, enti- tled "An act to regulate the passage of lumber, logs and other timber upon the rivers of this state recognized by law or com- mon use as public highways for the purpose of floating or run- ning lumber, logs and other timber over or upon the same to market or places of manufacture." ApPBOTBD'by the Governor May 23, 1891; passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : 128 The Law of Highways. Section 1. Section eleven of chapter five hundred and fifty- three of the laws of eighteen hundred and eighty, entitled "An act to regulate the passage of lumber, logs and other timber upon the rivers of this state, recognized by law or common use as public highways, for the puVpose of floating and running lumber, logs and other timber over or upon the same to market or places of manufacture," as amended by chapters sixteen and seventy-four of the laws of eighteen hundred and eighty-one, is hereby further amended so as to read as follows : § 11. This act shall not apply to the Hudson river, the Alle- ghany river and its tributaries, nor the Delaware river and its tributaries, nor the waters located in Franklin county, nor the Moose river and its tributaries, nor the Beaver river and its tribu- taries, nor the Oswegatchie river and its tributaries, nor the Grass river and its tributaries, nor the Eaquette river and its tributaries, nor the West Canada creek and its tributaries, nor the Black river and its tributaries above its junction with the Moose river, nor the waters located, in Lewis county, used for floating or driving logs or lumber ; nor be construed to repeal any existing special law now applicable to any creek or river in this state. (See Th. on Highways, 4th ed., page 13.) CHAP. 332, AN" ACT to authorize the supervisor, justices of the peace and town clerk of any town having a population of more than three thousand, to license and regulate all public hacks, vehicles, ven- ders, shows, concerts and public amusements in such town. Appkoved by the Governor May 16, 1890. Passed, tliree-fif ths being present. The People of the State of New York, represented in /Senate and Assembly, do enact as follows: Section 1. The supervisor, justices of the peace and town clerk of any town having a population as shown by the last federal or state enumeration, of more than three thousand inhabitants resid- ing outsid* of an incorporated city or village, are herebjj author- ized and empowered to license and regulate all public hacks, ve- * So in the original, The Law of Highways. 129 hides, venders, shows, concerts and public amusements in such town, outside of an incorporated city or village, and to fix the fee to be paid for the persons so licensed to said officers, which moneys so collected shall be paid over to the supervisor of such town within thirty days after the receipt of the same, and the said su- pervisor shall pay the same over to the commissioners of highways of such town, to he applied to the necessary repairs of the roads and high- ways of such town, after deducting the necessary expenses for car- rying out the provisions of this act. § 2. The said officers shall have power to make and establish such rules, regulations and ordinances not inconsistent with the laws of this state, as they may deem necessary for the proper regu- lation of such hacks, vehicles, venders, shows, concerts and public amusements. Such rules, regulations and ordinances shall be posted in at least ten public places in such town. § 3. Said officers shall have power to and may prescribe the penalty for a violation of any rule, regulation or ordinance which they may establish, which penalty shall be recovered in the man- ner hereinafter prescribed, and when recovered shall be paid over to the supervisor of such town within thirty days after the receipt of the same and said supervisor shall pay over such moneys so received to the same parties as the fees received from licenses are hereinbefore provided for. Such penalty shall in no case exceed the sum of twenty-five dollars. § 4. All persons violating any rule, regulation or ordinance es- tablished by said officers" may be proceeded against summarily before any justice of the peace of such town, such proceedings to be commenced by warrant upon proper proof and shall be contin- ued and conducted in the same manner as criminal proceedings are now conducted in cases triable before such justices or either of them as a court of special sessions, but all persons charged with such offense shall have the right to waive an examination or to elect to go before any higher court or tribunal. § 5. Such justices shall have authority to fine any person offend- ing as aforesaid, a sum "equal to the penalty prescribed by the or- dinances and may sentence such person, in default of payment, to be confined in the county jail for a period not exceeding ten days 9 130 The Law of Highways. and not exceeding the penalty prescribed as aforesaid, and all laws relating to trials by courts of special sessions in the such town not inconsistent herewith in the proceedings hereby authorized, the offense shall be deemed to be sufficiently described by stating the ordinance and the section thereof claimed to be -violated. § 6. This act shall take effect immediately. [See Th. on High^ ways, 4th ed., page 117.] CHAP. 309. AN ACT to authorize overseers of highways to acquire gravel for highway purposes. AppnovBD by the Governor May 4, 1891. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. The overseers of highways of any road district of the state, with the consent of the commissioners of highways of the town, and the approval of the town board, shall have power to purchase of the owner of any gravel bed or pit within the town, gravel for the purpose of grading, repairing or otherwise improv- ing the highways of the town at a price per cubic yard approved by said commissioners and town board. If such overseer cannot agree with any such owner for the purchase of such gravel, the overseer, with the consent of such commissioners and the approval of such town board, shall have power to acquire by condemnation the right to take and use such gravel, provided, no gravel shall be so condemned within one thousand feet of any house or barn, or taken from any lawn, orchard or vineyard, and to remove the same from such bed or pit for the purpose of grading, repairing or otherwise improving such highways, together with the right of way to and from such bed or pit to be used for the 'purpose of such removal. The right to use such gravel or to take the same from any such bed or pit may be acquired under this section for two or more or all of the road districts of the town, in common ; and if acquired for two or more or all of the districts, the commission- ers of highways, with the approval of the town board, must make The Law of Highways. 131 the purchase or acquire such right by condemnation. The amount agreed to be paid upon any such purchase, and the amount ad- judged to be paid upon any such condemnation shall be paid by the districts in which such gravel shall be used, but the costs and expenses of the proceedings for the condemnation incurred by the overseer, shall be a charge upon the town, and shall be audited by the town board, and paid the same as other town charges. § 2. If the town shall abandon for the period of three years any right so acquired to use any gravel bed or pit or to take gravel therefrom, or if the overseer of highways of any such district wherein any such right shall have been so acquired, or the com- missioners of highways of the town shall cease to use the same for the purposes for which it was acquired, the right of the town and of such overseer and commissioners thereto shall cease, and the ownership thereof shall revert to and become vested in the owner of such bed or pit at the time such right was acquired, or his heirs or assigns. § 3. This act shall take effect immediately. [See Th. on- the 4th ed, page 175.] CHAP. 277. AN ACT to amend chapter four hundred and forty-one of the laws of eighteen hundred and sixty-four, entitled "An act in relation to the performance of highway labor in Queens county. Became a law without the approval of the Governor, In accordance with the provisions of article four, section nine of the Constitution, May, 5, 1890. Passed, three-flfths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: SECTioisr 1. Section one of chapter four hundred and forty-one of the laws of eighteen hundred and sixty-four, is hereby amended so as to read as follows : § 1. The commissioners of highways in the several towns of Queens county shall, on or before the second Tuesday in Janu- ary in each and every year, at the place where the last annual 132 The Law of Highways. town meeting was held, designate and appoint some proper perr son for each road district of said town, who shall act as overseer of the highways in the district for which he shall have been ap- pointed for one year next ensuing the date of his appointment. In case any person who shall have been appointed such overseer shall neglect or refuse to serve, they (the commissioners) shall ap- point another at the earliest day practicable thereafter. They shall also determine, on or before the thirtieth day of April in each year, the whole number of days' work required to be per- formed on the highway in said town for the ensuing year, and also the number of days' work that shall be applied to each dis- trict. § 2. Section four of said act is hereby amended so as to read as follows : § 4. It shall be the duty of the overseer of each road district, within ten days after he shall have been notified of his appoint- ment, and shall have accepted the same, to make out and deliver to one of the commissioners a concise statement of the nature and character of the work, the number of days labor, and the sum that will be required, according to his best judgment to repair and keep in good repair such of the highway and bridges as lay within his district, during his term of office. It shall also be his duty, from time to time, as may be required, to repair and keep in good order, the highways and bridges comprised in such dis- trict, for which purpose he may employ fit and proper persons, with necessary teams and implements, and may cause the same to be done by contract or day's work, as he may deem most expe- dient. And he shall also make out and deliver to the commis- sioners, on or before the first day of January, in each and every year, his sworn report of the labor performed and the character of the same, and the amount expended in the district of which he is overseer during the year, with' his vouchers therefor. He shall also account for the money paid to him by virtue of this act, and the manner in which the sums which have, from time to time, been expended, to the board of auditors of town accounts, on the usual days of auditing the accounts of said town in each and every year. For each days service actually rendered by such The Law of Highways. 133 overseer, in the discharge of the duties of his office, he shall re- ceive the sum of one dollar and fifty cents. § 8. This act shall ta:ke effect immediately. Chapter 558, Laws 1890, entitled an act relating to the repair and improvement of highways and other town roads and provid- ing for the raising of money for such repairs and improvements in towns in which more than one-fourth of the taxable property has been condemned or appropriated for the purpose of a public park or parks, was repealed by chap. 192, Laws of 1891. 134 The Law of Highways. SCHEDULE OF LAWS EEPBALED EELATING TO HIGHWAYS. Revised Statutes. Revised Statutes. Revised Revised Revised Revised Revised Revised Statutes. Statutes. Statutes Statutes. Statutes. Statutes. Part I, chapter 5, title 4, art. 4 Part I, chapter 11, titles 1, 3, 3, 4, 3, 6 and 7. Part I, chapter 16 Part I, chapter 18, title 1 Part I, chapter 30, title 13 Part I, chapter 30, title 14 Part I, chapter 30, title 13 Part I, chapter 30, title 15 Sections 35 and 37 to 46, inclu- sive, by Lawsl890, chap. 569. _ All except sections 3 to 31, in- clusive in title 7, by Laws 18'90, chap. 569. All, by Laws 1890, chap. 568. All, by Laws 1890, chap. 566. All, by Laws 1890. chap. 569. Sections 3 and 4, by Laws 1890, chap. 569. All, by Laws 1890, chap. 568. An except sections 13 to 31, in- clusive, by Laws 1890, chap. 569. Laws of. Chapter. SECTIONS. Repealing Act. 1830. 1881. 1833. 1833. 1833. 1883 1834 1834 1835, 1836 1836 1837, 1838 1838 1838, 1840, 1840 1841 1845, 1845, 1847, 1847, 1847, 1847, 1847 1847 1848 1848 1848 18J8 1848 820. 53. 107 109. 374. 149 16 367 154 133 384 481 173 361 363 300 305 335 180 180 100 310 387 398 455 455 37 45 365 359 360 3 All All All All All All All All All All All All All All All All All 1 to 4; 33 to 37 5, 6, 7, 9, 12, 18, 14. . . 3 and 4 All All All 1, 3, 13 and 34 3 to 9, 11, 13, 30 to 33 All : All All All All 1890, chap. 569. 1890, chap. 5B9. 1890, chap. 569. 1890, chap. 569. 1890, chap. 568. 1890, chap. 568. 1890, chap. 569. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568, 1890, chap. 566. 1890, chap. 568. 1890, chap. 569. 1890, chap. 569. 1890, chap. 566. 1890, chap. 568. 1890, chap. 569. 1890, chap. 568. 1890, chap. 569. 1890, chap. 568. 1890, chap. 565. 1890, chap. 566. 1890, chap, 566, 1890, chap. 566. 1890, chap. 569. 1890, chap. 568. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. The Law of Highways. Highway Laws Eepealed — Continued. 135 Laws of. Chapter. SECTIONS. Repealing Act. 1849 250 363 71 All 1890, chap. 566. 1890, chap. 566. 1890, chap. 569. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 568. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 566. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 569. 1890, chap. 566. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 569. 1890, chap. 568. 1890, chap. 566. 1890, chap. 568. 1890, chap. 568. 1890, chap. 568. 1890, chap. 566. 1890, chap. 569. 1890, chap. 568. 1849 All All, except the first All [section All.... All All 1850 1850 319 1851 1851 107 487 1853 373 1853 • 63 135 All 1853 All All ... 1853 174 345 1853 All . 1853 471 626 87 355 All All All 1853 1854 1855 All All 1855 485 1855 546 303 All All 1857 1857 643 All 1857 383 All All 1 1857 491 615 639 51 1857 1857 AH 1858 All 1858 108 All All 1859 107 1859 309 . . All All 1860 61 1860 468 30 All 1861 All All All 1861 1863 311 243 348 1863 All 1863 93 All 1863 173 All All 1863 444 395 1864 All 1865 443 523 780 All 1865 7 All . . '. . 1865 1866 30 1 1866 180 All All All 1866 540 770 1890, chap. 569. 1866 1890, chap. 568. 1890, chap. 566. 1866 780 All All All 1866 1868 833 791 843 691 1890, chap. 569. 1890, chap. 568. 1868 All 1890, chap. 568. 1891, chap. 85. 1868 All All 1869 34 1890 chap. 568. 1869 131 1 1890, chap. 568. 1869 . 334 All 1890, chap. 566. 186 The Law OF Highways. Highway Laws Eepealed — Continued. LawB of. Chapter. SECTIONS. Hepealing Act. 1869 593. 242 461 All... 1890, chap. 568. 1870 3..., 1890, chap. 569. 1870 AH '. 1890, chap. 568. 1870 568 95 All 1890. chap. 566. 1871 All All AH..... 1 1890, chap. 566. 1871 635 1890, chap, 569. 1872 ...... 138 1890, chap. 566. 1873 374 ... , 1890, chap. 568. 1873 383 877- ••• 779 All 1890, chap. 566. 1873 All All 1890, chap. 569. 1873 1890, chap. 566. 1873 . . . 780 63 AH 1890, chap. 566. 1873 All All 1890, chap. 568. 1873 69 895 1890, chap. 568. 1873 All 1890, chap. 568. 1878 ... 433 All All AH 1890, chap. 565. •1878 440 1890, chap. 566. 1873 448 477 :... 733 1890, chap. 568. 1873 AH 1890, chap. 568. 1878 AH AH 1890, chap. 569. 1873 783 1890, chap. 568. 1874 169 AH 1890, chap. 568. 1874 . 173 All 1890, chap. 569. 1874 543 AH AH 1890, chap. 569. 1874 570 4 1890, chap. 568. 1875 AH 1890, chap. 566. 1875 33 AH 1890, chap. 566. 1875 . . 196 AH AH AH 1890, chap. 566. 1875 1876 841 135 340 • 1890, chap. 566. 1890, chap. 566. 1876 AH 1890, chap. 568. 1876 848 AH 1890, chap. 568. 1876 873 AH AH AH AH 1890. chap. 566. 1876 435 164 1890, chap. 566. 1877 1890, chap. 566. 1877 197 1890, chap. 568. 1877 344 All. AH AH AH 1890, chap. 568. 1878 44 49 1890, chap. 568. 1878 1890, chap 568. 1878 114 1890, chap. 568. 1878 203 All 1890, chap. 566. 1878 345 AH 1890, chap. 568. 1879 67 AH 1890, chaps. 568, 569 1879 214 358 All 1890, chap. 566. 1879 AH 1890, chap. 566. 1879 441 AH AH 1890, chap. 566. 1880 114 305 1860, chap. 568. 1880 AH 1890, chap. 568. 1880 308 AH.^ 1890, chap. 568. 1880 484 AH 1890, chap. 566. 1890, chap. 568. 1880 503 AH 1881 117.... AH 1890, chap. 566. The Law of Highways. Highway Laws Repealed— Con^mwed 137 Laws of. 1881. 1881. 1881. 1881. 1881. 1881. 1881. 1881. 1881. 1881. 1881. 1881. 1882. 1882. 1883. 1883. 1883. 1883. 1883. 1884. 1884. 1884. 1884. 1884. 1884. 1884. , 1885. 1885. , 1886. , 1886. , 1886. , 1886. . 1886.. 1886. . 1886. . 1887. . 1887. . 1887. . 1887. . 1888.. 1888. . 1888. . 1888 . 1889. . 1889,. 1889. . 1889.. 1889.. Chapter. 213. 233. 311. 313. 337. 391. 464. 513. 564. 674. 696 700. 140. 289. 122. 346. 371. 398. 409. 220 ; 251. 359. 252. 386. 396. 479., 82., 65. 259. 269. 344, 423. 452. 585. 108. 471. 526. 704. 240. 260. 488. 560. 130., 146., 242., 359.. 564.. SECTIONS. All. All. All. All. All. All. All. All. All. All. All. All. 1... All. All. All. All. All. All. All. AH., All , All. AH., All.. All.. AIL. All . 1 .., All . All.. All.. All.. AH.. All.. All . All.. All.. AIL. AIL. AIL. All . AIL. AIL. AIL. All.. AIL. AIL. Eepealing Act. 189Q, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chap. 1890, chaps, 1890, chap. 1890, chap. 1890, chap. 189fl, chap. 1890, chap. 1890, chap. 1890. chap. 1890, chap. 1890, chap. 566. 568. 566. 566. 566. 569. 566. 568. 569. 566. 568. 568. 565. 566. 569. 568. 568. 568. 566. 568. 568. 568. 565. 566. 568. 568. 569. 569. 565. 569. 568. 568. 568. 568. 569. 569. 568. 568. , 568, 569. 568 568. 569. 565. 568. 568. 565. 568. 565. :FOi?,Dvns. [Note.— The forms marked with an asterisk are published by Avery Her- rick, Law Blank publisher at 496 Broadway, Albany, and were prepared under the direction of Hon. Nathaniel C. Moak, and may be obtained of Mr. Her- rick in any quantity. — Ed.] No. 1. Undertaking of Treasurer. (Ante, page 30.) Whereas, A., D. and E., commissioners of the town of , county of -, have designated D., one of their number, to be treasurer, in accordance with Laws of 1890, chap. 568, § 2: Now, therefore, we X., of , the town of , by occupation a , and Y. of the town of , by occiipation a , do hereby jointly and severa:lly undertake, to and with said town, that said D. will faithfully ac- count and pay over to any officer or person entitled thereto any money that may come into his hands as such treasurer. X. " Y. State of New Yokk, ) . County of' . ) On the day of , in the year one thousand eight hundred , before me personally came X. and Y., to me known to be the individuals de- scribed in and who executed the above undertaking, and severally acknowl- edged that they executed the same. Justice of the Peace. State of New Yoke, ) County of , ) X. and Y., being duly and severally sworn, say, each for himself, that he is a resident of , and a householder (or freeholder) within this state, and worth the sum of dollars over and above all debts and liabilities which he owes or has incurred, exclusive of property exempt by law from levy and sale under an execution. X. Y, Subscribed and sworn to before me, ) this day of , 1891. S I approve of the foregoing undertaking, and of the sufficiency of the surety therein. Dated , 1891. 0-., Supervisor of . 140 Forms. No. 2. Division of Town into Highway Districts. {^Ante, page 21.) The undersigned commissioners of highways of the town of Pittstown, in the county of Rensselaer, in accordance with section 4, subds. 3 and 4, chap- 568, Laws 1890, hereby divide the highways of the said town into the follow- ing districts (insert description of districts). And we hereby assign to district No. 1, the following persons and corpora- tions (list of persons or corporations liable to work on highway, having regard to proximity of residence as near as may be). In witness whereof, we have hereto subscribed our names, this day of , 1891. {Signatwea of Commissioners.) No. 3. Appointment of Overseer. (Ante, page 31.) We, the undersigned commissioners of highways of the town of Pittstown, in the county of Rensselaer, hereby appoint the following overseers of high- ways for said town: A. B.. forDist. No. 1. C. D., for Dist. No. 3. Etc. Date. (Signatures of Commissioners.) Town op No. 4. Notice of Appointment as Overseer.* (Ante, page 31.) Dated , 1891. T*" To , JEsg. : You are hereby notified that you were this day, by the commissioners of highways of said town, appointed overseer of highways of road district No. — . You will therefore deliver to the clerk of the town, within sixteen days after your appointment, a list, subscribed by you, of the names of all the inhabitants in your highway district who are liable to work on the highways. Please sign and return the following acceptance. Yours, etc.. Town Clerk. Forms. 141 To- No. 6. Acceptance.* {Ante, page 31.) -, Town Olerk, Town of .• I hereby accept the office of overseer of highways in district No — , to which I was appointed the day of 1891. Dated ■ -, 1891. ! No. 7. Sequest b^ Commissioners for Tovrn Board to Audit Expense of Erecting Bridge, etc> \Ante, page 24.) To the Supervisor (fir Town Clerk) of tlie Town of A. in the County of B. : X. T., commissioner of highways for the town of A., hereby requests that the town board be convened in special session; that the bills and expenses in- curred in the erection (or repair) of the highway (or bridge) at may be presented to and audited by the town board. Dated . Signed. X. Y., Commissioner, etc. No. 8. Certificate of Supervisor and Town Clerk. {Ante, page 24.) County of A., ) ^^ . Town of A. 1 R. S., supervisor, and T. L., town clerk, of the town of A., hereby certify that at a special session of the town board, held the — day of , 1891, called for the purpose of having the bills and expenses incurred in the erec- tion (or repair) of the highway (or bridge), at , the following bills and expenses were audited and allowed, with interest : In whose faVor. Date Nature of work done and ma- terial famished. Amount allowed. Dated ■ Town Clerk. 142 Forms. No. 9. Verified Account for Services or Material. (Ante, page 24.) Attach to a bill of items the following : ; County op Rbkssblaeb, ) . Town, of Pitistown, ) A. B., being duly sworn, says that the items of the foregoing bill are correct; that the materials therein mentioned were furnished by him and the services therein set forth were rendered for the town of Pittstown, and were ordered by the commissioner of highways. A. B. Subscribed and sworn to before me, ) this day of , 1891. ) C. D., Justice of the Peace. County of Rensselaer, ) Town of Pittstown. ) The undersigned commissioners of highways, in and for the above town, hereby certify that the above bill of items is correct; that the amount of dollars is due thereon, and is payable to A. B. The nature of the work was as follows (give a brief description of the work done or material furnished). Dated . {Signatures of Commissioners.) No. 10. Complaint of Unsafe Toll Bridge. {Ante, page 24.) To the Commissioners of the Town of , County of .• County of , ) Town of , i A. B., being duly sworn, complains and says that the toll bridge belonging to , crossing the Suwanee river at , has become and is unsafe for public use from the following causes (give the particulars in which the bridge is unsafe). ; A. B. Sworn to before me, this ) day of , 1891. ) C. D., Justice of the Peace. No. 11. Notice to Owners of Toll Bridge. {Ante, page 25.) To (the owners of toll bridge, or the agent of the owners) : ^ Take notice that upon complaint made we have carefully and thoroughly Forms. 143 examined the toll bridge crossing the , at .(describe it), and find it is unsafe for the public use by reason of (state defects), you will therefore imme- diately commence repairs upon the same and complete them within one week from the date of this notice, or within such reasonable time thereafter as may be necessary to thoroughly repair the same so as to make it in all respects safe and covenient for public use, under a penalty of twenty-five dollars. Dated . {Signatures of Commissioners.) No. 12. Application for Permission to Lay Water Pipes. (See ante, page 35.) To the Commissioners of Highways for the Town of : The undersigned, a resident of your town, hereby applies for permission to lay and maintain water pipes and hydrants under ground, within the following described portion of the highway (describe course to be taken). {Signature of Applicant.) No. 13. Permission to Lay Water Pipes. (See ante, page 25.) Permission is hereby granted to A. B., a resident of the town of , to lay and maintain water pipes and hydrants under ground within (describing the route at length, a highway within the town), but not under the traveled part of said highway, except across the same, for the purpose of supplying premises with water, upon conditions that such pipes and hydrants shall be so laid as not to interrupt or interfere with public travel upon the highway; and such appli- cant must replace all earth removed, and leave the highway in all respect in as good condition as before the laying of such pipes. Dated . {Signatures of Commissioners.) No. 14.- Verified Statement of Cause of Action. {Ante, page 35.) J. D. V. The Town of C. J. D. complains against the To'n'n of C, and states that he claims that the said Town.of C. is liable for damages to his person (or property, or both), sus- tained by reason of (describe the defects) in its highways (or bridges) . existing by reason of the neglect of the commissioner of highways of said town (de- 144 Forms. ^* scribe the claim in full). That six months have not elapsed since said cause of action accrued. t)ated . {Bignatwe of Claimant.) — County op ■ Town of J. D., being duly sworn, says, he is the plaintiff in the above entitled action, and that the foregoing complaint is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. J. D. Subscribed and sworn to before me, ) this day of , 18 No. 15. Report of Commissioner to First Meeting of Tovrn Board. (Ante, page 27.) To the Town Board of the town of : The commissioners of highways of the town of , in the county of , pursuant to law, hereby render their report at the first meeting of your board. I. The labor assessed for the year ending r— 1891 was days, of this days labor was performed during said year. II. We have received during said period the following amounts for penalties, commutations and all other sources. [Give itemized account of moneys re- ceived.] III. We have paid out during the year the following amounts, to the several persons named and for the following services rendered, and their receipts in full are attached to this report. [Give an itemized list of all moneys paid out during the year, and for what, and attach receipts in full.] IV. The improvements which have been made on the highways and bridges during the year preceding the day of , 1891, (the date of the re- port,) and the state of the such highways and bridges are as follows: [Give a detailed statement thereof.] Dated. (Signatures of Commissioners.) No. 16. Report of Commissioners to Second Meeting of ToTm Board. (Ante, page 37.) To the Town Board of the town of : The commissioners of highways of the town of , in the. county of , pursuant to law, hereby render their report to the second meeting of your board. Forms. 145 We deem that the following improvements are necessary to be made upon the following highways and bridges (state improvements in detail), and that the probable expense thereof will be $ , beyond what the labor to be as- sessed in this year will accomplish. Dated . {Signatures of Commissioners.) No. 17. Overseer's list of Persons Liable to Highway Labor. {Ante, page 30.) To the Town Clerk of the town of : I hereby certify that the following is a list of the names of all the inhabitants in my highway district who are liable to work on the highways. (List of names.) Dated. A. B., Overseer of Highway District No. . No. 18. List of Mon-resident Lands. We hereby certify that the following is a list and statement of the contents of all unoccupied pieces or parcels of land within the town of , owned by non-residents, (every lot being described as required from assessors, and its value set opposite the description.) That the values set opposite each descrip- tion is the same as was affixed to the lot in the last assessment-roll of the town, or, if not separately valued, has been valued in proportion to the valuation of the whole tract, of which such lots form a part. Tract or lot. No. Part. Section. Township. .Eange. Acres. Value. ' Dated. {Signatures of Commissioners.) To- of the Town of- -, which No. 19.* Road Warrant. {Ante, page 33.) -, Overseer of Highways in District No. - begins at and ends at : I. You will give at least twenty-four hours notice to all residents of your district, and corporations herein assessed to work upon the highways therein, of the time and place at which they are to appear for that purpose, and with 10 , 146 FoBMS. what teams and implements, and that they will be allowed at the rate of one day for every eight hours of work on the highways, between seven-O'clock in the forenoon and six o'clock in the afternoon. The notice to corporations shall be served personally on an agent thereof residing .in the town,. if any, or if . none, by filing the notice in the oflBce of the town clerk at least five days be- fore the labor shall be required; and any number of days not exceeding fifty, maybe required to be performed by any such corporation la any one day. (Sec. 60.) II. You will give at least five days notice to every resident ageht of every non-resident landholder, whose lands are assessed, of the number of days such non-resident is assessed, and the time ahdplace at which the labor is to be per- formed. If you cannot ascertain that such non-resident has an agent within the town, you will file a written notice in the office of the town clerk, at least twenty days before the time appointed for performing such labor, containing the names of such non-residents, when known, and a description of the lands assessed with the number of days labor assessed on each tract, and the time and place at which the labor is to be performed. (Sec. 61.) III. Every person and corporation shall work the whole number of days for which he Or it shall have been assessed, except such days as shall be commuted for at the rate of one dollar per day, and such commutation money shall be paid to you within at least twenty-fours before the time when the person or corporation is required to appear and work upon the highway ; but any cor- poration may pay its commutation money to the commissioner of highways of the town, who shall pay the same to you as such overseer. (Sec. 63.) IV. You may require a team, or a cart, wagon or plow, with a pair of horses, or oxen, and a man to manage them, from any person having the same within your district, who shall have been assessed three days or more, and who shall not have commuted for his assessment; and the person furnishing the same upon such requisition, shall be entitled to a credit of three days for each day's service therewith, (Sec. 63.) V. The names of persons or corporation omitted from this list, and of new inhabitants, shall from time to time be added thereto, and they shall be assessed by you as such overseer in proportion to their real a;nd personal estate, to work on the highways as others assessed by the commissioners on this list, subject to an appeal to the commissioners of highways. (Sec. 35.) VI. Every person or corporation assessed to work on the highways, and warned, who does not commute therefor, may appear in person or by an able- bodied man as a substitute. A day's labor shall be eight hours of work, and every person or corporation assessed more than one day shall be allowed to work ten hours in each day. (Sec. 64.) VII. You as such overseer of highways shall, on or before the first day of October in each year, make out and deliver to the supervisor of your town a list of all persons and corporations who have not worked out or commuted for their highway assessment, with the number of days not worked or com- muted for by each, charging for each day in such a list at the rate of one dol- lar and fifty cents per day; and also a list of all the lands of non-residents and persons unknown, which were assessed on your warrant by the commis- Forms. 147 sioners of highways, or added by you on which the labor assessed has not been performed or commuted for, and the number 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 your affidavit that you have given the no- tice required to appear and work and that the labor specified in the list re- turned has not been performed or -commuted. (Sec. 66.) VIII. You shall on the second Tuesday next preceding the time of holding the annual town meeting in your town, within the year for which you are elected or appointed, render to one of the commissioners of highways of the town, an account in writing, verified by your oath and containing 1. The names of all persons assessed to work on the highways in the dis- trict of which you are 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 from whonn penalties have been collected, and the amounts thereof. 4. The names of all those who have commuted, and the manner in which the moneys arising from penalties and commutations have been expended by you. 5. A list of all persons whose names you have returned to the supervisor as having neglected or refused to work out their highway assessments, with the number of days and the amount of tax so returned for each person, and a list of aU the lands which you have returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned; and you shall then and there pay to the commissioners of highways all money remaining in your hands unexpended. (Sec. 69.) IX. Tou shall between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first day of September, give written notice to any occupant of the premises to cut all weeds, briers and brush growing within the bounds of the highway; if such occupants shall not cut such weeds, briers and brush as so required within ten days after receiving such notice, you shall employ some one to do such work and make a report under oath to the commissioners of highways of the amount expended by you thereon, and the ownership and occupancy of the several parcels of land against which the labor was performed, on or before the first day of November in each year. (Secs. 70, 71.) X. Below herein is given the names of all residents of your district and cor- porations assessed to work upon the highways therein, and the number of days of highway labor assessed to and to be performed by each the following year; also a list and statement, of all unoccupied lots, pieces or parcels of land within the town, owned by non-residents; with a description of every such lot de- scribed, in the same manner as is required from assessors, and its value set down opposite the description. Given under our hand, in , this day of , 189—. A.. B., C, Commissioners of Highways, 148 Forms. Names of Persons and Corporations Assessed. Days nssessed. Days worked. Days commuted. Amount , of fines. DESCRIPTION. Unoccupied and Nou-Resident Lots and Descriptions. Value. Days assessed. Days worked. Days commuted. Amount of fines. County, ss.: overseer of highways of road district No. being duly sworn, deposeth and saith, that the above account is true, according to the best of his knowledge and belief. Subscribed and sworn to before me, Lthis ■ ■ day of ■ 18- No. 20. Order for Locating Trees or Constructing Sidewalks. (Ante, page 34.) We, undersigned, a majority of the commissioners of highways for the town of hereby authorized A., B. and C, at their own expense to locate and plant trees, and locate and construct sidewalks along the highway in said town in conformity with the topography thereof, according to the annexed map or diagram. Let this order be filed with the town clerk within ten days from date. Date. (Signatures of a Majority of the Commissioners.) (Attach diagram of location of sidewalk and tree planting.) No. 21. Application for Authority to Expend Tax Upon Sidewalk- (Ante, page 35.) To the Gommissioneirs of Highways of the Town of - County of - The undersigned, a majority of the inhabitants of the highway district of your town, subject to assessment for highway labor therein, hereby apply for auj;hority to anticipate and expend a part of the highway labor or commuta- FOBMS. 149 tion money, received therefor for repairs and' improvements of the following sidewalks in said district for (not more than three) years (describe the sidewalks to be benefited). Date. (Signatures of a Majority of tlie Asssessable InJiabiiants.) No. 22. Order by Commissioners to Expend Tax Upon Sidewalk. (Ante, page 35.) The undersigned, commissioners of highways for the town of , county of , hereby grant authority that not more than one-quarter of the high- way labor of the district, or the commutation money received therefor, be expended under the direction of the overseer of highways of the district in the construction, repairs and improvement of any sidewalk within the limits of the district, and direct that (not more than one-fourth of) the highway labor in said district may be anticipated for (not more than three) years, for construct- ing, improving and repairing any such sidewalk. Dated. (Signatures of Commissioners.) No. 23. Application for Vote to Change System of Working Highway. (Ante, page 36.) To A. B., Town Clerk of the Town of .■ Take notice that we, taxpayers of your town, request that at the next annual town meeting a vote by ballot be taken upon the question of changing the system of taxation for working the highways. Dated. Kied (which must be twenty days before the town meeting.) (Signed by twenty-five taxpayers, not including any exempt from tfte jurisdiction of the Commissioners.) No. 24. Notice to Work. (Ante, page 38.) 2o Take notice that you are assessed days labor upon the district of the highway in the town of . And you are hereby directed to ap- pear on day of , 1891, at — a. m. And you will be allowed at the rate of one day for every eight hours of work on the highway between 7 150 Forms. o'clock in the forenoon and 6 o'clock in the afternoon. (If teams or imple- ments are to be used, state what they are to be.) Date. {Signature of Overseer of District No. .) No. 25. Notice to Non-Resident. (Ante, page 38.) ToA. B., agent of 0. D., a nonresident landowner of the town of X: Take notice: That C. D., a non-resident landowner of the town of X, is assessed days labor upon the highway in the district, which must be performed, beginning on the day of , 1891 (at least four days from service of notice), upon the highway lying between ■ (stating place where work is to be done.) and Date. {Signature of Overseer of ■ District.) No. 26. Notice Where no Agent is Found Within Town. {Ante, page 38.) To wliom it may concern: The highway labor assessed upon the following lands in the town of , county of . owned by non-residents, is required to be performed as follows: Name. Description of lands. No. daya. Time and place where labor performed. Date. Piled • -, 1891. (At least twenty days before time appointed for work.) {Signature of Overseer of District, No. — .) No. 27.* Overseer's Return to Supervisors.* {Ante, page 40.) To the Supervisor of the town of , County of , N. T.: The following is a list of all persons and corporations in said road district who have not worked out or commuted for their highway assessment, with the FOEMS. 151 number of days not worked or commuted for by each, 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 persons unknown, which were assessed on your warrant for the year 189 — by the Commissioners of Highways, or added by you on which the labor assessed has not been performed or commuted for, and the number of days labor unpaid by each charging for the same at the rate of one dollar and fifty cents per day. Owner's Name. Description of Lands. Assessed value. No. of days. Amount County, ss.: being duly sworn, says that he is Overseer of Highways of road district No. in the town of in the county of Deponent further says, he has given to each of the persons and corporations named in the above list the notice required by chapter 568 of the Laws of 1890, and that the labor specified in said list for which such residents &nd such land is returned, has not been performed or commuted. Subscribed and sworn to before me, j this day of , 189 . f Justice of the Peace. -, County of ■ No. 28.* Overseer's Annual Report. {Ante, page 42.) To the Commissioners of Highways of the Town of The undersigned, overseer of highways of road district No. , in said town, pursuant to law, renders the following annual account, containing:^ 1. The names of all persons assessed to work on the Highways in the district of which I am 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 from whom penalties have been collected, and the amounts thereof. 4. The names of all those who have commuted, and the manner in which the moneys arising from penalties and commutations have been expended by me. . ,' 5. A list of all persons whose names I have returned to the supervisor as having neglected or refused to work out their highway assessments, with the 152 Forms; number of days and the amount of tax so returned for each person, and a list of all the lands which I have returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned. (Sec. 69.) Names. bays assessed. Days worked. Days commuted. Amount penalties. ' Total number of days assessed . . Total number of days worked . . Total number of days commuted. Total number of fines I4st of all Persons returned to Supermsor as out their highwa/y Tiauing neglected or refused to work Days assessed. Amount returned. List of all lands returned to Supermsor for non-payment of taxes and the amount of tax on each tract of land so returned. Description. Amount returned. Statement of the manner in which the monys a/rising from fines and commuta- tions have been expended by me. Receipts. Whole amount received from fines and commutations as above stated Expenditures. For by order of Commissioner For repairs of bridge For repair of Leaving a balance in my hands of Overseer of Highways, Dist. No. . Forms. 153 County of ,. overseer of highways, for road district No. , of the town in said county, being duly sworn, says, that the foregoing account of — is in all respects true. Subscribed and sworn to before me, i this day of , 189 . [ No. 29. Overseer's Notice to Remove Weeds, etc. To A. B. ^'^"*'' ^^^^ ^^'^ You are hereby notified to cut all weeds, briers and brush growing within the bounds of the highway abutting upon the property owned or occupied by you, within ten days after the receipt by you of this notice, failing which I shall employ some one to do such work, and the expense thereof will be added to your taxes, as in the statute made and provided. {Signature of Overseer of District No. — .) Date (June 1 or August 1, unless supervisors fix another time.) No. 30. Overseer's 'Report to Commissioners of Labor in Cutting Weeds, etc. {Ante, page 43.) County of - Town of — -V A. B. , being duly sworn, says, that he is overseer of highways for the district, in the town of , that he duly notified the following persons to cut all weeds, briers and brush growing within the bounds of the highway abutting upon the property occupied by them, belonging to them and herein- after described; that they failed to do so for ten days after receiving said notice, whereupon I employed others to do such work at the expense as herein- after set forth, which money was paid out by me as therein set forth. Owner's name. Occupant's name. Description of land Day's labor. Amount expended. Dated October 25, 1891. Sworn to before me, this - day of , 1891. A. B. C. D., Justice of the Peace. 154 FoEMS. CKKTIFICATE. To the Supervisor of the town of . We hereby certify that the foregoing report under oath was filed with us by A. B., overseer of the ■ — district, on the day of , 1891, and that the said amounts were expended by said overseer (or if paid out by com- missioners out of funds in their hands, say so). Dated. (Signatures of Commissioners.) No. 31. Order Laying Out Highway. {Ante, page 44.) At a meeting of the commissioners of highways of the town of the county of , on the day of , 1891, application (in writ- ing) having been made by A. B. to lay out a highway through land dedicated to the town of for highway purposes therein, and the annexed release from the owner of said land having been presented, it was ordered that said highway be laid in said town as follows : Beginning at (incorporate the survey). Dated. (Signatures of Commissioners.) No. 32. Release. (Ante, page 44.) I, A. B., of the town of , county of , hereby consent that a highway be laid out across my property as follows (describe route), and I hereby release said town from all damages which I, my heirs or assigns might claim by reason of the laying out of said highway. Dated. A. B. State of New Yobk, County of , ) . ■ Town of , ) On this day of , 1891, before me the subscriber, personally, came A. B. to me known to be the person described in and who executed the foregoing release, and acknowledged that he executed the same for the pur- poses therein set forth. J. V. A., Justice of the Peace. Forms. 155 County of Town of — No. 33. Consent of Town Board. {Ante, page 44.) Consent is hereby given to the commissioners of highways of the town of to make an order laying out for altering) the highway in their toWn, in accordance with the application of A. B., dated the day of , 18 Date. ' {Signature of Town Board.) No. 34. Order Iiaying Out Highway with Consent of Town Board. {Ante, page 44.) At a meeting of the commissioners of highways of the town of county of , on the day of , 1891, held for the purpose of deciding upon the question of laying out (or altering) the highway hereinafter described, in compliance with the written application of A. B., a person liable to be assessed for highway labor in said town, the town board of said town having given their written consent thereto, and a release from the owners of the land through which said highway is to pass having been obtained, the con- sideration to be paid to any one claimant not exceeding $100, and to all the claimants not exceeding $500, it is hereby ordered that said highway shall be laid out (or altered) in said town in conformity with the following survey. (Insert survey.) Dated. {Signatures of Commissioners.) No. 35. Release Where Consent of Town Board Given. {Ante, page 44.) In consideration of the sum of $ (not to exceed $100) to be paid to me by the commissioners of highways of the town of , I hereby consent that a highway be laid out (or altered) through my land in said town, as fol- lows (state briefly the course which said highway is to take through releasor's land), and I hereby release said town from all damages which I or my heirs might claim through said highway being so laid out or altered. Dated. ^ „ , {Signature of Beleasor.) 156 FOEMS. No. 36. Application to Lay Out, Alter or Discontinue a Highway. (Ante, page 44.) To the Commissioners of Highways of the Town of , in the County of •• The undersigned, an inhabitant of the town of , liable to be assessed for highway labor in said town, hereby applies to lay out (or alter; or discon- tinue) the highway in said town as follows (state in detail the relief asked, and describe the route of the highway particularly; if owners consent, state names and land owned by them in detail). Dated , 1891. A. B. &^K§ No. 37. Application to Ijay Out Road, where Iiand is not Released. (Ante, page 45.) In the Matter of Application of A. B. to lay out (or alter or discontinue) a highway in the town of . To the County Court of County : Tour petitioner respectfully shows to the court that he is a person liable to be assessed for highway labor in the town of , in the county of — . That on the day of ,. he presented an application in writing to the commissioners of highways of the town of , of which the annexed is a copy. That said application was made in good faith, and that the relief there- in prayed for has not been granted. Wherefore, your petitioner prays that the court will appoint three commis- sioners to determine upon the necessity of such highway proposed to be laid out or altered (or to the uselessness of the highway proposed to be discontin- ued), and to assess the damages by reason of the laying out (altering or discon- tinuing) of such highway. Dated . (Signature of Petitioner.) State of New Yoke, ) . County of Albany, ) A. B., being duly sworn, says that he has read the foregoing petition by him subscribed, and that the same is true .to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. A. B. Sworn to before me, this - } day of , 1891, D. P., Justiee of the Peace. 'Forms. 157 No. 38. Order Appointing Commissioners. {Ante, page 45.) At a term of the County Court of county, held at , on the day of , 18 . Present— Hon. J. C, County Judge. (Title.) On reading and filing the petition of A. B., a person liable to be assessed for highway labor in the town of , county of , verified this day of , 1891, asking for the appointment of three commissioners to deter- mine as to the necessity of laying out (altering or discontinuing) a highway (describing it), and to assess the damages by reason of so doing, it is ordered that (naming three disinterested freeholders), be and they hereby are appointed as such commissioners; and they are hereby directed to meet on the day of , 18 , at . to examine the said highway, hear any reasons that may be offered for or against the laying out (altering or discontinuing) said highway, and assess all damages by reason thereof. No. 39. Notice of IMeeting of Commissioners. (Ante, page 45.) To the tax-payers of the town of : Take notice: That on the application of A. B., an order was granted by the County Court on the — day 18 — , appointing R. S. and T. commis- sioners to lay out (alter or discontinue) a highway in said town, described in said application as follows (describe it). That said highway runs through the fol- lowing tracts or parcels of land (describe them). The said Commissionrrs will meet at — a. m., on the day of 18 — , at the , to examine the said highway, hear the commissioners of highways of the said town, and hear any reasons that may be offered for or against the laying out (altering or discon. tinning) of the highway, and assess all damages by reason thereof. Date. A. B. Applicant. No. 40. Proof of Posting Notices. State of New Tokk County of ■V A. B., being duly sworn, says, that on the day of , 18— ,'he posted up copies of the annexed notice at , and and , three public places in the town of . He further says on the day of , 158 Forms. 1891, he served said notice upon D. by delivering to and leaving with him per- sonally a copy of the same (or by leaving the same at his residence with a person of mature age, or by mailing a copy of said notice to said D. at .) (State the service upon each person separately.) A. B. Sworn to before me this i day of 18—. ) C. H., Justice oftTie Peace. No. 41. Certificate of Commissioners. {Ante, page 46.) [Title.] The undersigned, commissioners appointed by an order of the county court, dated the day of , to determine upon the necessity of laying out (altering or as to the uselessness) of the highway (describing it), and to assess the damages caused thereby, having met at on the day of , 1891, the legal notice of said meeting having been given, and due proof thereof having been made, and having ta.ken the constitutional oath of office, and hav- ing personally examined the highway described in the application, and heard the commissioner of highways of the town, and heard any reasons offered for or against said proceeding, and having taken evidence as to the damages caused thereby, have decided f that said highway be laid out (altered or discontined) as asked for in the said petition of said applicant. And we assess the damages of X at I , of Y at $ and of Z at $ . Date. (Signatures of a majority of the Commissioners.) Or from f that said highway is not necessary (or that the highway proposed to be discontinued is not useless.) No. 43. Certificate of Commissioners of Hightrays. (Ante, page 46.) The undersigned commissioners of highways of the town of , hereby certify that on the day of , 18—, A. B. made an application to lay out a highway through (describe it.) That said highway will necessarily pass through the orchard of M. L. (or state wherein it violates § 90.) * That said M. L. refuses to allow said road to be laid out through his orchard. That the public interest will be greatly promoted by the laying out and opening of such highway, and the commissioners appointed by the county court by an order dated the day of , 18 — , have certified that it is necessary, f Date. (Signatures of Commissioners of Highways.) Forms. 159 No. 43. Order of County Court to Lay Out Through Orchard, Etc. {Ante, page 47.) [Title.] [Caption.] Upon reading and filing the certificate of (naming the commissioners), com- missioners of highways of the town , county of , dated the day of , 18—, showing that (state facts fully as in certificate from * to f ), and due proof being made that more than eight days' notice of the time and place of this motion has been served on the (owners or occupants of the lands), and upon all proofs and proceedings herein. And after hearing M. N., of counsel for applicant, and 0. R., of counsel for , opposed, it is hereby ordered that said highway be (as asked for in application.) No. 44. Description of Abandoned Highway. (Ante, page 52.) This is to certify that upon inquiry we find that the highway running from (describing it) was not opened and worked within six years from the time it was dedicated to the use of the public (or has not been travelled or used as a highway for six years); and pursuant to the statute in such cases made and provided, we hereby declare that the same has ceased to be a highway, and is hereby discontinued. Date. (Signatures of Commissioners of Highways.) No. 45. Notice to Remove Fence. (Ante, page 53.) To. A. B. : Take notice that a highway, rods wide, has been laid out through your land, beginning at (describe its course}, by an order filed with the town clerk of the town of on the day of , 189 ; and we hereby notify you to remove the fences upon said line within sixty days from service of this notice upon you, on failure of which we shall cause them to be removed, when the highway will be open and worked. Date. (Signatures of Oommissioners.) i No. 46. Notice to Remove Fallen Trees. (Ante, page 53.) To. A B. : Take notice that a tree has fallen (or has been felled by some person) from the inclosed land^belonging to you at into the highway, and unless you 160 Forms. remove the same within two days from the service of the notice upon you, you will forfeit the sum of fifty dollars for every day thereafter, until the tree shall be removed. Date. C. D. No. 47. Notice to Remove Obstruction. (Ante, page 53.) To A. B. : Take notice that there exists an obstruction (or encroachment) upon the part of the highway adjoining the lands occupied by you at (describe the place), consisting of (describe the obstruction, its extent and location), and you are hereby directed to remove the same within days (not more than sixty) from the service of the notice upon you, under a penalty of twenty-flve dollars, as in the statute made and provided. Date. ,l£Ii. (Signatures of Oommiasionera of Highways.) No. 48. Application for a Private Road. (Ante, page 53.) To the Highway Commissioners of the Town of .• A. B. , liable to be assessed for highway labor in your town, hereby makes application for a private road of the width of , to be located at (giving courses and distances), to be laid out through the land of C, D. and E. (naming either the owners or occupants). Dated . A. B. No. 49. Notice of Meeting of Jury to Lay Out Private Road. (Ante, page 54.) To 0., D. and E. : Take notice that A. B. has petitioned for the laying out a private road for his use and benefit through the lands owned or occupied by you, as set forth in his written application, with a copy of which you are herewith served, and you will also take notice that a jury will be selected at the residence of , on the — day of , at — o'clock in the forenoon, for the purpose of de- termining upon the necessity of such road and to assess the damages by reason of the opening thereof. Date (Signature of one or more of the Oommissioners.) Forms. 161 No. 50. Proof of Service of Notice- {Ante, page 54.) State of New Yobk, ) . County of . ) , being duly sworn, says that he served the annexed application and notice upon the following persons, as follows : On A., B. and C, by deliver- ing to and leaving with them copies of the same on the — day of , 1891. On D., E. and F., they being absent from their respective residences, by leav- ing a copy thereof at each of their said residences, on the — day of , 1891; on G. and H., being non-residents of said town, by depositing a copy thereof, properly enclosed in an envelope, addressed to them respectively at their poat-offlce address, and paying the postage thereon, and on I. and J., in- fant owners, by personal service thereof upon M., their general guardian, at — . X. Y. Sworn to before me, this ) day of , 1891. ) T. R., Justice of the Peace. No. 51. Summons for Jury. {Ante, page 55.) In the matter of laying out a private road upon I the application of A. B. f To {naming tlie six jurors): You are hereby summoned to appear at the residence of , in the town of , on the day of , 18—, at — o'clock a. m., to serve as a juror, there to determine as to the necessity of laying out a private road through the lands of A., B. and C, and to assess the damages by reason of the opening thereof. Date. {Signature of CommisHon&r or Commissioners.) No. 52. Verdict of Jury. {Ante, page 55.) To the Commissioners of Highways of tlw Town of .• The undersigned six freeholders of the town of , in nowise of kin to the appellant, owner or occupant of lands, affected by the above proceeding 11 162 FoEMS, nor interested in said lands, having met on the day of , 1891, at o'clock A. M., and having been duly sworn well and truly to determine as to the necessity of the said road, and to assess the damage by reason of the opening thereof, and having viewed the premises, heard the allegations of the parties and such witnesses as they produced, have determined that the pro- posed road is (or is not) necessary. . We further find and assess the damages to the person (or persons) through whose land it is to pass, as follows: To A. B., ^ the sum of $000; to C. D., the sum of $000. Date. (Signed hy Jurors.) No. 53. Certificate of Commissioners Liaying Out Private Road- {Ante, pa^e 55.) In the Matter of Laying Out a Private Road / on the Application of A. B. f ■ Upon the annexed application of A. B. asking that a private road be laid out for his benefit through the lands of A., B. and C, and the annexed verdict of the jury summoned to act thereon, determining that the proposed road is necessary and assessing the damages to the [persons through whose land it is to pass. We, the commissioners of highways of the town of hereby certify that a private road, rods wide, is hereby laid out as set forth in the annexed survey (insert survey). Dated. {Signatures of Commissioners.) No. 54. Commissioners Bridge Report to Supervisor. {Ante, page 58.) To the Supervisor of tJie Town of ; A., B. and C, commissioners of highways of the town of , would re- spectfully report that the Esopus free bridge crossing the Esopus creek in said town is built of wood, is thirty feet in length and rests upon three stone abut- ments, etc. That the whole expense incurred during the year ending the day of , 1890, for the construction and tepair has been consisting of the following items. (Give itemized account of expenditures.) Dated. {Signatures of Commissioners.) County op , ) ^^ . Town of , ) A, being duly sworn says that he is one of the conjmissioners of highways of the town of . That the foregoing statement subscribed by him is true. Sworn to before me, the day of , 18 — . ^■ D., Justice of (he Peace. Forms. 163 No. 55. <■ "= Notice to Repair Joint Bridge. (Ante, page 59.) To the Commissioner of Highways of the Town of A: Take notice, that the bridge, between the towns of A and B, is (state its con- dition). Now, therefore, we request that you give your consent in writing to unite with us in rebuilding (or repairing) the same, within twenty days from the receipt of this notice by you. Failing to receive which we shall build (or repair) said bridge at the joint expense of the two towns, pursuant to the statute in such case made and provided. Bate. {Signature of Commissioner ofB.) No. 56. Petition to Commissioners of Adjoining Towns as to Joint Bridge. {Ante, page 59.) We, A. B. and 'C, three freeholders of the town of B., hereby petition that you build (or rebuild or repair) within a reasonable time, the bridge at (describe it) which crosses the (naming the stream which divides the two towns) at pursuant to the statute in such case made and provided. Date. {Signature of three Freeholders.) No. 57. Notice to Discharge Driver. {Ante, page 64.) County of Town of A. B. being duly sworn says, that on the ; day of 189- he was a pas- senger upon the stage (or wagon, etc.,) belonging to ■^. That C. D., the driver of said carriage is a person addicted to the excessive use of spirituous liquor, and was on said day, while actually employed in driving said carriage, intoxicated to such a degree as to endanger the safety of the passengers in said carriage. , „ A._B. Sworn to before me this i day of , 18—. ) E. D., Justice of the Peace. 164 Forms. Notice. To , Owner of the Take notice, that on the annexed affidavit verified the — day of , 18 — I demand that you forthwith discharge C. D.from your employment, incompli- ance with the statute in such case made and provided. A.B. No. 58. Notice to Owner of Liands of Application for license for Ferry. {Ante, page 66.) To A. B. I hereby desire to notify you that I shall apply to the county court at a spec- ial term thereof to he held at , on the day of , 18 — , at the opening of court on that day or as soon thereafter as counsel can be heard, for a license to keep a ferry to ply from the highway running through your land to the river, to the (naming the other terminus). Date. (Signature of Applicant.) — No. 59. Application for Ferry. (Ante, page 66.) County of Town of , A. B. being duly sworn says, that he is the owner of the land through which. a part of the highway runs, that a ferry is needed for the convenience of the public from to (naming the termini of the ferry), that no such ferry is now established between said points, and that he desires a license to keep a ferry between said points, as under the statute in such cases made and provided. Sworn to, etc. D. E. Or D. E., being duly sworn, says, that he desires to establish a ferry running from to on the river, that such ferry is necessary for the convenience of the public between said points, that A. B. is the owner of the land through which the part of the highway adjoining the proposed ferry on the (east) bank of said river now runs; that on the day of , 18 — , (more than eight days before the motion) deponent personally served on said A. B. a notice of an application for a license to keep a ferry between said points of which the annexed is a duplicate. Sworn to, etc. D. E. Pbesent — Hon. J. C. Forms. 155 No. 60. License for Ferry. (Ante, page 66.) At a special term of the county court, held at the court house in , on the • day of . In the matter of the application of X. Y. for a 1 license, etc. ( On reading and filing the annexed petition of verified the day °* . 18—, it is hereby directed that a license be and the same hereby is granted to , to keep a f eiTy which shall ply from on the east side of the river, to on the west side thereof (describe the land- ing places) for years from date (not exceeding five). That said ferry shall make at least trips both ways each day, unless prevented by stress of weather, and the fares to be charged for said ferriage shall be as follows (state fares to be charged) of which schedules shall be posted as required by § 174 eh. 568, Laws 1890. Ko. 61. Undertakings as to Ferry. (Ante, page 67.) Whereas, A. B., of the town of , county of , is desirous of hav- ing a license issued to him to keep a ferry to ply from , on the east bank of the river, to , on the west bank thereof. Now, therefore, we G. D. and E. P., do hereby jointly and severally under- take to and with the people of the State of New York that in case said license is granted said A. B. will attend such ferry with sufficient and safe boats and other implements, and so many men to work the same, as shall be necessary during the several hours in each day, &nd at such rates as the court shall direct. Dated. 0. D. and E. P. (Acknowledgement and justification as in No. 1, ante.) Apphoval. I approve of the foregoing undertaking, and of the sufficiency of the sureties. Date. 0. H., County Judge. 166 Forms . No. 62. Resolution Creating a "County Boad." {Ante, page 69.) To the Oounty Clerk of County : Take notice that at a regular meeting of the toard of supervisors of county, held on the — - day of , the following resolution was adopted: "Besolved, That the board of supervisors of county acquire and as- sume for the purpose of improving and maintaining and keeping in repair the same, the full and exclusive control of the road leading from to : as is laid down on the annexed map, so far as may he necessary only for the purpose of improving and maintaining the road-bed thereof as a road for car- riages or other vehicles, but for no other purpose, and that the same shall be- come and be known from this date as a "county road." I, J. S., clerk of the board of supervisors of county, hereby certify that the above is a copy of a resolution adopted by said board on the ' day of , 18—. J. S., Clerk. No. 63. Consent of Board of Trustees of Village. (Ante, page 70.) County of — Village of — Consent is hereby granted by the board of trustees of the village of A., that the board of supervisors of thie county of C. may assume the control, improve- ment and repair of that portion of the highway known as the road (or street) lying within said village, and that the same maybe and become a "county road " under the provisions of the statute in such cases made and provided. Date. {Signature of Board of Trustees.) No. 64. Petition for Flagman. {Ante, page 81.) To the Supreme Court of the State of New York : Your petitioners would respectfully represent that they constitute the board of trustees of the village of F. That the A. B. C. railroad crosses the main street of said village at 'grade, at right angles (describe the crossing). That Forms. 167 your petitioners, on the day of ' , 18 , presented a request in ■writing to the (president) of said railroad, asking that said company station a flagman at said crossing, or erect gates to be opened and closed when an engine or train passes, but which request said railroad refuses to comply with, although ample time has elapsed for them to do so. That great danger is threatened to life and property through the failure of said railroad to comply with said request. Wherefore, your petitioners ask that an order be granted directing said rail- road corporation to station a flagman at such point, or that gates shall be erected thereat, and that a person be stationed to open and close them when an engine or train passes, or make such other order respecting the same as the court may deem proper. Date. (^Signatures of Board of Trustees.) CotmTT OP , ) Town of . ) A. B., being duly sworn, says that he is a member of the board of trustees of the village of F. and one of the petitioners whose names are attached to the above petition; that the foregoing petition is true to his own knowledge, ex- cept as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. A. B. Subscribed and sworn to before me, this day of , 18- I No. 65. Notice to Railroad as to Flagman. (Ante, page 81.) Supreme Couet Cotintt. In the Matter of the Application of the Village / of F. for a Flagman, etc. f Take notice, that on the annexed petition of the Board of Trustees of the village of F., with a copy of which you are herewith served, a motion will be made at a special term of the supreme court, to be held on the 11th day of June, 1891, at the city hall in the city of , at the opening of said court, or as soon thereafter as counsel can be heard, for an order that a flagman be stationed at (describe the place) {or that gates be erected at , and that ■ a person be stationed to open and close them when an engine or train passes), or for such other order as the court may then deem proper. Dated June 1, 1891. M. & B., Attorneys for the Trustees of the Village of F. Offlce and P. 0. Address. 168 Forms. No. 66. Order .for Flagman or Gates. (Ante, page 81.) [Caption.] [Title.] On reading and filing the petition of the trustees of the village of F., verified the day of , 18—, showing that (state the facts set forth in the petition), and upon proof of the service of a copy of said petition and of the service of a notice of this motion upon the of said A. B. C. Railroad more than ten days previous to the return day thereof, and after hearing C. H. for said motion, and D. G. in opposition hereto, it is ordered. That said A. B. C. Eailroad station a flagman at the intersection of their tracks with street in said village, (or that gates shall he erected at , and that a person be stationed to open and close them when an engine or train p^ses.) No. 67. Consent that Pipe Iiine Cross Highway^ (Ante, page 84.) County of Tovm, of — Consent is hereby given by the highway commissioners of the town of to the Great Western Pipe Line, to construct its line across the high- way at , upon the condition that all work necessary thereto shall be done between the day of , 18 — . and the day of , 18 — , and all dirt, stone and plank shall be replaced as before on said day of , 18 — , and said roadway shall not be torn up in any manner for repair or otherwise, except with our written permission (and so on, stating all the con- ditions in full) upon which condition said permission is accepted, and viola- tion of any of the said conditions by. said pipe line company shall render this consent null and void. Date. (Signature of Commissioner of Highways.) (Signatures of Offic&rs of Pipe Line Co..) No. 68. Commissioners' Certificate of Completion of Turnpike. (Ante, page 91.) ' 'i Town of - County of , ) This is to certify that we, the commissioners of highways of the town of , at the request of the" Turnpike Company, have carefully inspected Forms. 169 that part of said turnpike road, situated in our town, including the bridge over the creek, and are satisfied that the said road and bridge are made and completed as required by law, and in a manner safe and convenient for the public use. Dated . Filed . {Signatures of a majority of the Highway Commissioners of the Town of .) No. 69. Notice to Toll Gatherer to Repair Turnpike. {Ante, page 94.) To A. B., Gate Keeper at : Take notice that a written complaint has been made to us that the turnpike is out of repair at (describe the defective condition of the road bed); and as we have viewed and examined the place complained of and find that it is out of repair and in a condition not to be conveniently used by the public, you are hereby notified to cause the same to be put in good condition within forty-eight hours from the service of this notice, and in default thereof we shall order the toll gates upon your road to be immediately thrown 'open. Dated . {Signatures of Commissioners.) No. 70. Order Throwing Open Toll Gate.* {Ante, page 94.) To A. B., Gate Keeper at .• A written complaint having been made to us that the turnpike at was out of repair (describing the defect), and a notice having been served upon you to repair the same within forty-eight hours, and you having failed to comply with said notice, although such time has elapsed, you are hereby ordered to immediately thrown open your gate to the public, and allow the same to so remain open until a certificate allowing you to receive tolls shall be granted by us, and for failure so to do, or for hindering or delaying any person in passing, or for taking tolls from any person in passing such gate during the ■ time it ought to be open, you shall forfeit ten dollars for each ofEense. Dated . " «•) 170 Forms. No. 71. Proof of Service on Corporation. {Ante, page 96.) State op New York, ) . County of , ) A. B., being duly sworn, says, that he is above the age of 21 years; that on the day of , 18 — , he served the annexed (notice, summons or other paper) on the Great Western Turnpike Company, by leaving the same at the office of said corporation at street, in the city of , with (give name, if known), a person having charge thereof at — o'clock m. (between 9 a. M. and 5 p. m.) of that day. A. B. Sworn to before me, this day of , 18 — . C. D., Justice of the Peace. ^' -- No. 72. Application for Special To^^n Meeting. {Ante, page 106.) To , Town Clerk of the Town of County of , The undersigned, twenty-five taxpayers upon the last town assessment-roll, hereby require a special town meeting to be called by you, for the purpose of {state all the questions which will be considered). Date. {Signatures of Twenty-five Taxpayers.) Or; To Town Clerk of the Town of , County of .■ The undersigned commissioners of highways of the town of (or su- pervisor of the county of , or overseer of the poor), hereby require a special town meeting to be called by you, for the purpose of determining (state the question to be considered, which must be something pertaining to the du- ties of the officers calling the meeting.) Date. {Signatures of Officers calling Meeting.), No. 73. Notice of Town Meeting. {Ante, page 107.) Special Town Meeting: Take notice that a special town meeting of the town of , county of , will be held at o'clock a. m. on the 11th day of June, 1891, at the school house in the village of Scio, for the purpose of (stating the purpose as set forth in application). Dated June 1, 1891. A. B., , Town Clerk. Forms. 171 ■ No. 74. Oath of Commissioner. {Ante, page 107.) Bensselaek County, ss: I, E. D., of the town of Pittstown, in 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 faithfully discharge the duties of com- missioner as aforesaid, according to the best of my ability. And I do further solemnly swear (or atfirm) that I have not directly or indirectly paid, ofEered or promised to pay, contributed, or ofEered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said ofiice, and have not made any promise to influence the giving or withholding any such vote. E. D. Sworn, etc. County op Rbnssblaeb, | . Town of Pittstown, > I, Theodore C. Richmond, justice of the peace in and for the town of Pitts- town, in said county (or town clerk of the town of Pittstown, in said county), do hereby certify, that on the 13th day of November, 1890, personally ap- peared before me, E. D., of said town, who then and there duly took and sub- scribed the foregoing oath. Dated, etc. T. C, Justice of the Peace. No. 75. ! Undertaking of Commissioner. (Ante, page 108.) Whereas, A. B., was on the day of , 18—, elected commissioner of highways for the town of , county of . Now, therefore, we, A. B., principal, and C. D. and B. E., sureties, do hereby jointly and sever-, ally undertake that he will faithfully discharge his duties as such commis- sioner, and within ten days after the expiration of his term of office, pay over to his successor all moneys remaining in his hands as such commissioner, and render to such successor a true account of all moneys received and paid out by him as such commissioner. Date. (Signatures of principal and two sureties.) (Acknowledgment, justification and approval by supervisor as in Form No. 1.) 172 Forms; No. 76. Resignation of Commissioner and Acceptance- (Ante, page 108.) To A. B., C. B. and E. F., justices of the peace of the town of , county of ..- I hereby resign from the oflBce of commissioner of highways, to which I was elected on the day of . My reasons for such resignation are as follows: (State reasons.) Date. ■ X. Y. To B. T., Town Olerh of the town of : Take notice that we have accepted the resignation of X. Y., elected com- missioner of highways in your town, on the day of , 18 , for good and. sufficient cause shown to us by him. Date. A. B., C. D. and E. F., Justices of the Peace of the town of . No. 77. Appointment to fill Vacancy. (Laws 1890, ch. 569, § 65.) Whereas a vacancy exists in the office of commissioner of highways of the town of , county of , caused by the resignation (or death) of A. B., we, the town board of the said town do hereby appoint D. E., a taxpayer of said town to fill the vacancy, to hold office until the next annual town meet- ing. In witness thereof we have hereunto signed our names and affixed our seals this day of , 18 . Filed in town clerk's office, the ) day of , 18 . ) {Signature of town hoard and seals.) No. 77. Notice to Commissioner Appointed to Fill Vacancy. (Laws 1890, chap. 569, § 65.) ToA.B.: Take notice that you have been appointed by the town board of the town of , as commissioner of highways of said town, to fill the vacancy caused by the resignation (or death) of , by an instrument under their hands and seals filed with me on the day of , 18 . Also take Forms. 173 notice that you are required by law within ten days from the receipt of this notice to take your oath of oiflce and execute an undertaking as directed by f 63 of eh. 569, Laws 1890. Dated the day of , 18 . A. R., Town Olerk. No. 78. Notice that O^rner Chooses to let Land Iiie Open. {Ante, page 110.) To 0. D.: Please take notice that I choose to let my lands consisting of my farm, run- ning from your lands on the east to the lands of E. F. on the west, lie open, under the statute in such cases made and provided. , Dated. X. Y. 1 No. 79. Notice that Owner will Inclose Lands. {Ante, page 110.) To E. P.: Please take notice that I choose to inclose my lands now [lying open, run- ning from your lands on the west to the lands of C. D. on the east, under the statute in such cases made and provided. Dated. _ „ No. 80. Notice to Choose Fence Viewer. (Ante, page 111.) To A. B.: You are hereby requested, within eight days from the service of this notice upon you to choose a fence viewer to act with C, D., whom I have chosen on my part they two to decide as to the portion of the division fence between our lands which we are each to build and maintain. In case of your failmg to make such choice within said time I shall choose both as in accordance with the statute in such case made and provided. ^^''- ri=' E. P. 174 Forms. No. 81. Decision of Fence Viewers as to Division Fence. {Ante, page^lll.) P Whereas A.'B. and J. K. cannot agree upon the portion of the division fence between their lands which each is to build and maintain, and we have been chosen, under the statute, to decide the same, and have given reasonable notice ithereof to all parties interested, examined the premises and heard the allegations of the parties (and not being able to agree have selected G. H., another fence viewer, to act with us). ' Now, therefore,, we decide that the fence running from — ; to ' , between the lands of said A. B. and J. K. shall be maintained by them in the following proportions (describe the share to be cared for by each), and that the costs of said proceedings shall be | , and be borne by said parties equally. Date. {Signatures of Feiice Viewers) No. 82. Fence Viewer's Subpoena. {Ante, page 111.) In tlie name of the People of the State of New York, to A. B., C. B. and B. F., We command you that all business and excuses being laid aside, you and each of you appear and attend before J. S. and F. M., fence viewers of the town of county of , at (place of hearing), in said town at o'clock, in the noon, to testify and give evidence in a certain matter now pending before us in regard to the division of the fence between the lands of A. B. and J. K. Date. {Signatures of Fence Viewers.) Ticket. > By virtue of a writ of subpoena, to you directed and herewith shown, you are commanded that, all business and excuses being laid aside, you appear and attend, in your proper person, before (names of fence viewers) fence viewers of the town of , county of , at (name place of hearing), on the day of , 18 , at o'clock in the noon, to testify all and sin- gular what you may know in a certain matter now pending before us in regard to the division of the fence between the lands of A. B. and J. K. Date. {Signatures of Fence Viewers.) To . Forms. 175 No. 83. Appraisement by Fence Viewers for Neglect to Make and Maintain Fence. {Ante, pages 111, 112,) Whereas A. B. and C. D., owners of adjoining lands in the town of ■ county of , are liable to the erection (or repair) of the division fence be- tween the same, and whereas, said 0. D. refuses to make and maintain his pro- portion of such fence (or permits the same to be out of repair), and whereas said A. B. has complained to us the fence viewers of said town that by reason of such refusal or omission he has sustained the following damage (stating injury done to premises of A. B.), and we have inquired into the matter and find the said statement to be true. Now, therefore, we appraise the damages sustained by said A. B., to be the sum of $ , which with $ costs and expenses of this proceeding must be paid by said CD. Date. (Signature of Fence Viewers.) No. 84. Notice to Make or Repair Fence. (.471*6, page 111.) To A. B.': Take notice that the portion of the division fence between our lands, whicl it is your duty to erect (or repair), is defective (state its condition), and if yoi: neglect or refuse to erect (or repair) said fence for the period of one motnl after the receipt of this notice, I shall make (or repair) the same at your ex pense, as in the statute in such case made and provided, ^ Date. ^C. D. No. 85. Notice to Rebuild Fence Destroyed by Accident. (Ante, page 113.) To A. B. : Take notice that the portion of the division fence between your lands am those of 0. D., which you are bound to maintain, has been injured (or d« stroyed) by floods (or Are or other casualty, state the facts), and I hereby re quest that you rebuild (or repair) your just proportion of such fence, withii ten days from the service of this notice upon you. Failing which I shall w build (or repair) the same at your expense. '.{Signature of person interested.) 176 Forms.. No. 86. Notice to Town Clerk as to Stray. (Ante, page 114.) To the Town Clerk of the Town of : Please take notice, that I, A. B., residing at * have upon my inclosed land the following described strayed horses (cattle, sheep, swine or other beast) which came thereon on or before the day of , 18 {or from the* found on land owned or occupied by me, on the day of , 18 , the following described strayed horses, doing damage thereon). That said land is within your town. ' That more than five days have elapsed since said animals came thereon, and they have not been redeemed: Wherefore, I claim a lien on such beasts for such damages, charges, fees and costs. Date. A. B. No. 87. Notice to O-wners of Strays. (Ante, page 114) ToX. 7.: Please take notice that I have upon my inclosed lands (or in the pound) the following beasts belonging to you (describe them), which are held by me as strays (or beasts damage, as the case may be). A. B. Dated . No. 88. Notice of Sale of Stray by Fence Viewer. {Ante, page 115.) ' Please take notice that A. B. found upon his lands on the day of . 18 — , a (describe animal) which had strayed thereon and the owner not having redeemed the same, I., C. D., fence viewer of the town of , will sell said animal to the highest bidder at auction sale at (place of sale), at — o'clock, in the noon, unless sooner redeemed by said owner. Date (more than ten days before sale.) C. D., Fence Viewer. No. 89. Notice to Owners of Fence Viewers' Meeting. (Ante, page 139.) 7o A. B.: Please take notice that there will be a meeting of the Fence Viewers of the town of , at (place of meeting) on the day of , 18—, at — Forms. 177 o'clock in the — ^noon, to determine the damages done to the lands of 0. D:, by (naming the animals) belonging to you, which have strayed upon his said lands, and also as to the charges for keeping said animals. {Signature of Fence Viewer.) Date (more than five days prior to meeting.) No. 90. Certificate of Fence Vie'wers as to Damage. {Ante, page 130.'' Whereas, on the day of 18 — , A. B., found (describe beasts) upon his inclosed lands in the town of (describe them) doing damage, (or, found said beasts on land owned or occupied by him). And, whereas, we have viewed the premises where the damages are claimed to have been done, and after due notice to the owner of said beasts (if known), have examined witnesses and taken all the competent evidence of the facts and circumstances necessary to enable us to determine the matter submitted, do hereby determine and certify that the said horses entered the lands of A. B. from the .farm of C. D. through a broken fence, which it was the duty of C. D. to keep up (and so on, stating facts in full). That the damages to A. B. are $ , and the charges for keep- ing said beasts % , and the costs of this proceeding $ , all to be paid by said C. D. (or as the case may be). {Signed Try Fence Viewers.) Date. 12 INDEX. PAGE ABANDONED HIGHWAYS 52 ABATEMENT OF TAX: for shade trees 35' for sidewalk •. 35 for watering trough 36 for removal of fence 42 for street lamp 42 ABATEMENT OF ASSESSMENT : for constructing sidewalks 34 for tax anticipated 35 for certificate of anticipation 36 for setting out shade trees 35 ABUTTING OWNER: compensation to, hy elevated railroad 16- ACCEPTANCE: of highway by public 2 when private way does not become public by user 2 ACCOUNTS: for services or material, how made out 24 ACTION: for injuries to highways 25 for trespass on town lands 120 ADJOURNMENTS: of proceedings laying out roads 57 ALTERING AND DISCONTINUING: highways 8 proceedings not void because order not printed 8 nor because release was not filed 8 part of the highway may be discontinued 9 as to when an alley ceases to be a highway 9 ANNUAL TAX: under money system 37 ANNUAL RETURN: of overseers 41 180 Index. appeal: page from order of commissioners laying out road 10 notice of 11 by non-residents 33 APPLICATION: for laying out Mghways 44 for commissioners 45 for private road 54 APPOINTMENT: of commissioners to lay out road 45 ARREARAGES: for unperformed labor; how collected 40 ASSESSMENT: of damages for laying out road 9 ASSESSMENT OF LABOR: on highway 33 certain assessments to be separate 33 tenant to deduct assessment 88 re-assessment in case of neglect 33 omissions of assessors corrected 34 new assessments by overseers 34 sidewalk tax anticipated ■ 85 abatement of tax for sidewalk 35 abatement of tax for setting out trees 35 money system 87 for unperformed labor 40 BICYCLES, ETC.: are carriages 65 entitled to free use of highways 65 BOOKS AND PAPERS; delivery to outgoing officer 108 BRIDGE: when commissioner authorized to erect 14 when town or county expense 57 additional county aid 58 statement of expenses 58 supervisors to levy tax 68 joint liabilities of towns for 59 refusal of towns to repair 59 proceedings in court 59 commissioners to institute proceedings 60 their duty 60 commissioners to report 60 appeals 61 Index. 181 BRIDGE — Continued,. page power of court on appeal 61 refusal of commissioners to repair 61 penalty and notice on bridge 62 driving faster than a walk 63 iron bridges ■ 63 when town not liable for bridge breaking B3 wlaen supervisors liave power to erect between two towns 75 {See TuBNPiKB.) BRIDGE CORPORATIONS; 86 incorporation of 86 must be built so as to allow raft to pass 87 BURYING GROUNDS: highways laid out through. 48 CORPORATIONS: {See TuENPiKE Coepobations.) CARRIAGE: owner of, when liable for acts of driver 65 term carriage defined 65 CANADA THISTLES: to be cut by railroad 81 CATTLE GUARDS: niust be maintained by railroads 79 CERTIFICATE OF: anticipation of sidewalk tax , 36 transfer of 36 CERTIORARI: to review proceedings to lay out road 10, 11 return to 11 return to must give the record only 11 irregularities in laying out, when not waived 11 that one juryman declining to serve the certificate signed by eleven is no error, but see § 34, p. 7 11 CHANGE OF SYSTEM: of taxation by town 36 when to take effect 37 annual tax thereunder 37 COMMISSIONERS: their powers and duties 2 inspection of road, no defense to action for negligence 3 duty to guard against excavations by road 3 when lack of funds no excuse 3 when repairs to bridge made subsequent to accident will imply that were available ^ 182 Indjix. COMMISSIONERS— CoTiWmMed ' page discretion as to route in laying out road'. ,■ 5 may bring questions of raising money before town meeting 5 not liable in action against, for temoving fence from ancient high- way , ,..-. 5 cannot take soil to be used elsewhere than at plaice taken 6 duty as to assessing highway labor '. 6 laying out highways '. . 7 general powers of .■■ 20 treasurer of : 30 powers of one commissioner 30 may purchase road machine 33 plow or scraper, 23 stone crusher 1 .... 23 annual report of 26 meetings of 30 must make list of non-resident land 30 assessment of labor, how made .' • 30 copy of list delivered to overseer 33 names omitted may be added. : 32 credit on private roads 33 when one cannot act, another to be appointed 63 to recover penalties in names of town 66 may agree with plankroad corporation for use of highway 87 election of at town meeting 105 are fence viewers 105 of highways, undertaking by 108 form of 108 to extinguish fires in woods 108 compensation of 119 costs of defending action are town charges 119 duties of as to draining lands with highway, ditches 120 of highway to take fees for public vehicles apd shows 138 COMMISSIONERS TO LAY OUT ROAD: application for 44 apportion of 45 their duties 45 notice of meeting 45 decision in favor 45 damages, how estimated 46 decision against 46 COMMUTATION: of highway labor 38 COMPENSATION: to owner of fee 15 Index. 183 COSTS: ■ ■ : • • ,. ■ • - -■ page on motion 63 of laying out higliway, 'bj whom paid 48 COUNTY ROADS 69 raising money for, by supervisors TO improvement and repair of 71 regulations governing 72 ibaterial used on 73 foundation of 73 no horse or electric railway on ; 73 water or gas mains oH. . . i. 74 excess of $10,<)00 per mile 74 supervisors to control 75 violation of law respecting 75 CROSSING: engineer must ring bell at 83 of highway by tramway 84 by pipe line ' 84 CRIMINAL OFFENSES: relating to highways 125 DAISIES: to be cut by railroad. . . '. 81 DEDICATION: of highway 1 mere intent 1 user of twenty years 1 location of line by fence ' 1 existence of railroad upon highway does not defeat claim by user. 2 highways by 44 DEER RIVER: a highway 134 DISAGREEMENT: between commissioners as to laying out highway 48 as to improvements , 50 DIVISION FENCES: {See Fences.) DRAINING: agricultural lands 135 DRIVER: inteniperate, not to be engaged 64 when to be discharged 64 leaving horses without tied 65 when owner of carriage liable for acts of . . 65 railroad must not employ persons using intoxicating liquors 81 184 JiNDEX DWELLIKG HOUSE: turnpike not to be laid out through 87 DISCHARGE: of intemperate driver 64 ELECTION: of town officers 120 ELEVATED RAILROAD: compensation by to abutting owner , 16 ENGINE: how transported on highway i 63 EXTRAORDINARY REPAIRS: ^ of highways and bridge 23 . FARM CROSSINGS: must be maintained by railroads.- 79 PEES OF OFFICERS: on laying out private road 56 fence viewers 115 of pound masters 116 of poundmaster 119 for license of hacks and shows to be paid to commissioners of high- ways 128 FENCES: 14 notice to remove 14 when encroachment 14 to be removed from route of highway 53 must be erected by railroad. 79 barbed wire must not be used 80 encroachments of on turnpike 98 ; where destroyed by accident 113 damages for where fence insufficient 112 for omitting to build fence 112 division , 109 apportionment of .. 109 where lands may lie open , 110 on change of title 110 settlement of disputes ' ill powers of fence viewers Ill neglect to repair division fence Ill FENCE VIEWERS: powers of Ill, 116 fees of 115 commissioners are 105 '^ (See Strays.), Index. 185 FEERIBS: licenses 66 undertaking by person running ferry 67 appendages for 67 superintendent of public works may lease 67 schedules to be posted 67 penalty for not posting 67 FILING PAPERS: as to laying out highways ' , 63 PINES: to be collected by overseer.. 37 FIRE COMPANIES: in town '. 118 FIRES: in woods; duties of town officers as to 108 FISCAL YEAR: of town 120 FLAGMEN: to be stationed by railroad 81 FORMS: abandoned highway; description of 159 acceptance of overseer 141 action against town; verified statement ' 143 aflSdavit to account 143 annual report of overseer , 151 application for authority to expend tax upon sidewalk 148 for ferry 164 for a private road .....: 160 for vote to change system of working highway 149 to lay out, alter or discontinue highway 156 to lay out road where land is not released 156 for special town- meeting 170 application for permission to lay water pipes 143 appointment to fill vacancy in ofllce of commissioner 173 of overseer 140 of overseer, notice of 140 appraisement by fence viewers for neglect to make fence 175 bridge, complaint where unsafe 143 report of commissioner 163 notice to repair joint bridge - 163 petition to commissioners of adjoining towns 163 report by commissioners. . . ^ 163 notice to repair, where joint 163 request by commissioners.! or town board to audit expense of, 141 186 EIndex. FOTtMS— Continued. page certificate of commissioners laying out road 158 laying out private road .... 163 as to road passing through orchard 158 certificate of supervisor and town clerk 141 certificate of fence viewers as to damage •. . 177 change of system of working highway, application for vote 149 commissioners of highways report to first meeting of town board . 144 report to second meeting 144 commissioners, order by, to expend tax, upon sidewalk 149 commissioner's bridge report to supervisor 163 commissioner's certificate of completion of turnpike. 168 commissioner, oath of .....; 171 undertaking of 171 resignation of . . .' 173 appointment to fill vacancy 173 notice to person appointed 173 complaint of unsafe toll bridge 143 consent that pipe line cross highway 168 consent of town board for laying out or altering highway 155 consent of trustees to county road 166 county road, resolution creating 166 consent of trustees as to 166 decision of fence viewers as to division fence 174 description of abandoned highway. 159 division of town into highway districts 140 driver, notice to discharge 163 fallen trees, notice to remove 159 fence, notice to remove 159 notice to choose fence viewers to decide as to 173 decision of fence viewers 174 notice to make or repair 175 notice to rebuild 175 fence viewer's subpoena 174 fence viewers, decision of 174 subpoena 174 appraisement for neglect to make fence 176 meeting, notice to owner of 176 certificate of as to damage 177 ferry, notice to owner of lands of, application for 164 application for 164 license for jg5 undertaking Ig5 flagman, petition f or ; Igg notice to railroad as to Ig7 order for. jg8 highway districts, division of town into 140 Index. 187 I'ORMS — Gontinued. "" page inclosui-e lands, notice as to 173 joint bridge, notice to repair 163 petition to commissioners of adjoining towns as to 163 land lying open, notice to owner as to 173 laying out highway, order as to 154 with consent of town board 155 application for , 156 order appointing commissioners 157 notice of meeting of commissioners 157 proof of posting notices 157 certificate of commissioners-as to 158 license for ferry 165 list of non-resident lands 145 non-resident land, list of '. 145 non-resident, notice to 150 notice of appointment as overseer 140 notice to owners of toll-bridge 142 notice to work 149 notice where no agent is found within town 150 notice to nonresident 150 notice to remove fallen trees 159 notice to remove obstruction " 160 notice to remove fence 159 notice of meeting of commissioners 157 to lay out road 157 notice of meeting of jury to lay out private road 160 notice to repair joint bridge 163 notice to discharge driver 163 notice to owner of lands of application for license for ferry 164 notice to toll gather to repair turnpike 169 notice of town meeting 170 notice to commissioner appointed to fill vacancy 173 - notice to choose fence viewer as to division fence. 173 notice to make or repair fence 175 notice to rebuild fence destroyed by accident , 175 notice to owners of strays 176 notice to owners of fence viewers meeting 176 notice to railroad as to flagman 167 notice that owner chooses to let land lie open 173 notice that owner will inclose lands 178 notice to town clerk as to stray 176 notice of sale of stray by fence viewer 176 oath of commissioner ; 171 obstruction, notice to remove 160 orchard, certificate of commissioners as to road passing through.. 158 order of county court to lay out road through '. ... 159 188 Index FOUKS— Continued. page. order for locating trees or constructing sidewalk . . 148 order by commissioners to expend tax upon sidewalk 149 order laying out highway 154 order laying out highway with consent of town board 155 order appointing commissioners to lay out road , . . . 157 order of county court to lay oijt through orchard 159 order for flagman or gates 168 order throwing open toll gate 169 overseer, appointment of ; ; 140- notice of appointment of 140 acceptance of 141 overseer's annual report 151 overseer's notice to remove weeds 153 overseer's report to commissioners of labor in cutting weeds 153 overseer's return to supervisor 150 overseer's list of persons liable to highway labor 145 permission to lay water pipes 143 petition for flagman 166 petition to commissioners of adjoining towns as to joint bridge. . . 163 ^ipe line, consent to cross highway 168 private road, notice of meeting of jury as to 160- proof of service of notice 161 summons for jury 161 verdict of jury as to 161 certificate of commissioners as to 163 proof of posting notices as to laying out road 157 proof of service of notice 161 proof of service on corporation to throw open gate 170 release where consent of town board given 155 release of lands for highway purposes 154 report of commissioners to first meeting town board 144 to second meeting 144 request by commissioners for town board to audit expense of erect- ing bridge , 141 resignation of commissioner 173 resolution creating county road 166 road warrant 145 sidewalk, order for constructing 148 application to expend tax on 148 Stray, notice to town clerk as to 176 notice to owner of 176 notice of sale of 176 subpoena by fence viewers * 174 summons for jury for private road 161 supervisor, certificate of as expense of repairs 141 system of working highway, application for vote to change 149 Index. 189 FGRHLS^Gontinued. page treasurer, undertaking of 139 trees, notice to remove fallen 159 order for locating 148 toll gate, order throwing open 169 .proof of service of order 170 town clerk, certificate of, as to expense of repairs 141 town meeting, notice for special 17p turnpikfe commissioner's certificate of completion of 168 notice to toll gatherer to repair- 168 undertaking of treasurer 139 unsafe toll bridge, complaint of 143 undertaking as to ferry 165 undertaking of commissioners 171 verdict of jury as to private road 161 verified account for services or material 142 verified statement of cause of action 143 weeds, overseers notice to remove 153 overseers report as to 153 water pipes, application for permission to lay 143 permission to lay 143 GARDEN: turnpike not to be laid out through '. 87 OENERAL HIGHWAY LAW 19 GRASS RIVER: a highway 135 GRAVEL: how acquired for highway purposes 130 GUIDE-BOARDS 33 HIGHWAY: definition of •■ 1 dedication of • 3 acceptance of by public 3 water pipes on 35 action for injuries to 35 labor on, how assessed 30 by dedication 44 abandoned 53 » by use S3 along division line 56 injuries to ^3 trees lying on, to whom they belong 64 carriages meeting on to turn to right 64 where law as to, to take effect 68 19Q Index. BIGBM AY— Continued. page laws relating to repealed. 68 construction of 68 county roads 69 railroad crossing 76 intersection of by railroad bridge 76 must be restored where disturbed by railroad bridge 76 tunnel, railroads under 77 tracks laid upon highway 79 fences, farm crossings and cattle 'guards 79' flagmen to be stationed at crossings 81 engineer must ring bell at crossing 8S crossed by tramway i 84 by pipe line 84 agreement between, commissioners and turnpike corporation for useof... 87 labor on plank-road or turnpike , 101 town laws relating to 10$ ICE AND SNOW: to be removed by street railroad 8^ INCORPORATION: of turnpike-, plank-road and bridge corporations 86 INJURIES: to highways 63 actions for 25 INTEMPERATE DRIVERS: not to be engaged 65 JURY: to determine as to private road 54 list of 54 names struck off 54 LABOR ON HianWAY: how assessed 30 work on private road to be credited 33 refusal of overseer to provide list 40 collection of arrearages for unperformed labor , 40 LABOR upon line of plank-road or turnpike 101 LAW OP THE ROAD 18 carriages to turn to the right 64 intemperate drivers not to be engaged 64 driver, when to be discharged 64 not to leave horses untied 66 Index. I9I LAWS REPEALED ..... ...'. I34 LAYING OUT HIGHWAY: discretion of commissioners as to course 5 when of small benefit, etc., not laid out 6 notices of, must still be posted . 7 notices of service of, on daughter, when not sufficient 7 what does not constitute ati orchard 7 consent necessary in laying out through buildings 7 where one juror is disqualified acts of eleven held void. 7 held valid 11 action of commissioner may be reviewed by certiorari 8 road extending in two towns 8 monument may be disregarded 8 width of road 8 altering and discontinuing highway 8 assessment for damages on 9 certiorari of proceedings on 10, 11 appeal from order of commissioners 10 survey 44 application for 44 application for commissioners 45 appointment of commissioners, and their duties 45 notice of meeting 45 decision of commissionei's in favor of application 46 damages in certain cases, how estimated 46 decision of commissioners denying application 46 motion to confirm, vacate or modify 46 limitations on laying out 47 laying out through burying grounds 48 • costs, by whom paid 48 damages assessed, and costs to be audited 48 where commissioners of different towns disagree concerning 49 where they differ about improvement 50 in two or more towns 51 upon town line 51 final determination, how carried out 51 fences to be removed 58 adjournflients 57 LICENSE: for ferries 66 fees for hacks and shows to be paid to commissioners of highways, 128 LISTS: of inhabitants to be delivered to clerk by overseer 30 non-residents 30 ' LOGS AND TIMBER: not to be dragged on turnpike 98 192 Index. MANDAMUS: page will not be granted to compel town board to convene and deter- mine amount of money to be borrowed to build road 5 MEETINGS: of cpmmissioners 30 of town board 120 MILE STONES AND GUIDE BOARDS 33 MONEY SYSTEM: for highway labor S''' MONUMENTS: ^ to be kept up by overseer 37 MOTION: costs on t 63 N0N-EE8IDENTS: appeal by 33 NON-RESIDENT LAND: commissioner must make list of 30 NON-RESIDENTS: notice to work ' 38 NOTICE: to work by overseer 38 to non-residents 38 OATHS: town officers to administer 107 of town officer 124 OBSTRUCTION: when toboggan slide is , 11 interferring with sidewalk 12 obstructing highway by logs 12 by telegraph company as to wires 12 telegraph poles in street 12 right of telegraph company to erect poles 12, 13 excavation in street 13 manhole in sidewalk 13 pile of stones in streets 14 pile of lumber in streets 14 or encroachment, penalty for 53 how removed and liability for not removing 53 ORCHARD: ■what necessary to constitute 7 turnpike not to laid out through 87 Index ' 193 OVERSEEE: page when not bound to keep bridge in district in repair 3 general duties of 37 to repair higliways 37 ■warn persons to work 37 cut down noxious weeds 87 collect fines and commutation money. 37 remove loose stones 37 keep up monuments 37 open obstructed higbway , 37 penalties against .' 38 bow to collect penalties 29 compensation of ■. 39 must deliver list of inhabitants to clerk 30 notice to work ^.^ 38 notice to non-residents. .^ 38 commutation 88 teams and implements 88 substitutes 39 penalties for neglect to work or commute 39 assessment for unperformed labor 40 penalty for refusal of, to provide list 40 collection of arrearages for unperformed labor 40 annual return of 41 noxious weeds in highways 41 to notify occupants to remove weeds 43 penally for refusing to serve as 107 of highway to acquire ground for highwayjpurposes 180 OWNER OF FEE: compensation to 15, 16 PENALTIES: how collected by overseer 39 for neglecting to^work 39 for refusal of overseer to provide list 40 for falling trees 53 for obstruction or encroachment 53 to be recovered by commissioners 66 for not posting schedule at ferry 67 for fast driving on turnpike 98 actions for penalty 99 for conversion of floating lumber 117 PIER: is a part of the public street 1 < 13 194 Index. PIPE LINE: crossing of highway or railroad by . . • • 84 consent of local authorities 84 need not fence lands acquired, ••: 85 farm crossings and use of line not inclosed 85 PLANK ROAD: corporations 86 incorporation of 86 not to be laid out through orchard or garden 87 nor through dwelling house or building 87 (3ee TuENPiKB Corpobationb.) PLOW: commissioners may purchase. 22 POUNDS AND POUND MASTERS 107 penalties for refusing to serve .... 107 POUND MASTER'S PEES 1 19 duties of 116 PRIVATE ROADS: work on to be credited to land owner 33 application for 5^ jury to determine necessity and assess damages 54 copy application and notice 54 delivered to applicant 54 copy and notice to be served 54 list of- jurors : 54 names struck off. 54 place of meeting 54 jury to determine and assess damages. ..-. 55 their verdict ■ 55 value of highway discontinued ■ ." 55 papers to be recorded in town clerk's office 55 damages to be paid before opening road 55 fees of officers 56 motion to confirm, vacate or modify 56 costs of new hearing 56 for what purpose private road to be used 56 along division line 56 adjournments 57 PRIVATE WAY when it does not become public by user 2 PUBLIC HACKS: commissioners of highways to take tax from 138 QUEENS COUNTY: highway labor on 131 Index. 195 RAILROAD: page compensation by, to o^wner of fee 15 must restore highway 76 must obtain permission for tunnel 77 must alter position of sewer, water or gas pipes 78 in streets 79 I fences, farm crossings and cattle guards. . . . ; 79 sign boards and flagmen at crossings 80 bridge, intersection of highway by 76 over navigable stream 76 crossing highway, etc 76 buUding tunnels 77 must not employ persons using intoxicating liquors 81 to cut Canada thistles 81 to cut daisies 81 to cut weeds 81 not liable for injury to person walking on track or riding on plat- form 82 on street 83 engineer must ring bell at crossing 83 crossing of by tramway or pipe line 84 RAFT: bridge must be built so as to allow passage of 87 REPEALING LAW: as to highways 68 saving clause 68 construction of law 68 REPORT: of commissioner 26 RESIGNATION: of town officers ' 108, 123 RIVERS: public highways for running lumber 128 ROAD MACHINES: commissioners may purchase 23 SAND: when may be used on street railroad track 83 SCRAPER: commissioners may purchase 32 SHADE TREES: abatement of tax for setting out 35 SIDEWALKS 17 abatemate of assessment for constructing 34 tax anticipated. 35 certificate of anticipation 36 196 Index. SIGN BOARDS AND FLAGMEN: page at crossings , 80 SNOW BLOGEADB: wire fence to resist 125 SPECIAL TOWN MEETINGS: how called , 106 noticeof 107 STREET LAMP: abatement of highway tax for erecting 43 STREET RAILROAD: not to be constructed upon ground occupied by public buildings or in public parks 83 laws governing 82 repair of street 83 rate of speed 82 removal of ice and snow 82 when sand may be used on track 82 STEAM TRACTION ENGINE: on highway 63 STRAYS: beasts doing damage 113 notice to town clerk 114 impounding beastS; . ■. 114 notice to owner 114 charges for notice 114 fees of fence viewers 115 when lien may be foreclosed 115 notice of sale by fence viewers 115 proceeds of sale 115 notice to owner of fence viewers' meeting 115 duties of fence viewers 116 foreclosure of lien by action 116 duties of pound masters 116 surplus moneys 117 villages and cities deemed towns 117 damages from inanimate goods 117 penalty for conversion of floating lumber 117 STONE CRUSHER: commissioner may purchase . . .' 23 custody of 23 STONES: to be removed from highway by overseer 27 .Index 197 SUBSTITUTES: page for highway labor: 39 SUPERINTENDENT OP PUBLIC WORKS: may lease ferry. 67 SURVEY: on laying out highways 44 TAX: where additional required , 33 TAXATION: system of, defined 86 TEAMS AND IMPLEMENTS: for highway labor 38 TOLL-BRIDGE: when unsafe 24 TOLL-GATE: penalty for running a gate 98 no hoist gate allowed 96 location of gates and change thereof 93 penalty for defacing 96 on turnpikes 93 TOWNS: since Laws 1881, ch. 700, lack of funds no defense in action against, for negligence in keeping highway in repair 8 may change sysiem of taxation 36 liable under Laws 1881, ch. 700, for negligence of commissioners . as to road treated by them as highway 3 liability for lack of guards at dangerous place.when commissioners ■ had funds 4 liability for overflow of creek obstructed by commissioner 4 for accident through unguarded embankment 4 for allowing tree to hang low over road 5 for defective highways .' 36 action by, against commissioners 26 may audit any claim under $500 as a town charge 26 meetings of 106 what are town charges : 119 action for trespass on lands of 130 how sued 130 how to sue 120 contracts by, how made 120 fiscal year , ; 131 meeting of town board 131 election districts of 131 198 Index. • TOWl 103 changing place of annual town meeting 104 election of officers 104 election of commissioners of highways 105 fence viewers. , . , .'. 105 powers of annual town meetings 105 TOWN BOARD: will not be compelled by mandamus to convene and determine amount of money to build road 5 TOWN MEETING: business of 122 notice of to be published 133 resignations 123 TOWN OFFICERS: election of 180 compensation of 118 TOWN FIRE COMPANIES 118 TRAMWAY CROSSING: highway or railroad 84 TRANSPORTATION CORPORATIONS , 83 TREASURER: of highway commissioners 20 TREES: penalty for falling 52 where fallen, to be removed from highway 53 lying on highway, to whom they belong 64 TRESPASS: on town lands, action for 120 TUNNELS: under highway or river 77 under streets of city or village 77 Index. 199' TURNPIEa;, PLANKROAD AND BRIDGE CORPORATIONS: page incorporation of 86 not to be laid througli crcliard or garden 87 application to board of supervisors to obtain right of way , 88 commissioners to lay out road 89 possession of and title to real estate 89 use of turnpike road by plank road 89 width and construction of road , . 90 construction of bridges 91 obstruction of rafts prohibited 91 certificate of completion of bridge 91 toll gatherers 93 penalty for running a gate 93 location of gates and charges thereof . i 93 inspectors, their powers and duties 94 change of route, extensions and branches 95 milestones ; 96 guide posts 96 no hoist gate allowed 96 penalty for defacing milestone post or gate 96 location of office of corporation. 96 consolidation of corporation 96 sale of franchise 96 suiTender of road 97 taxation and exemption 97 hauling logs and timber 98 encroachment of fences , 98 penalty for fast driving 98 acts of directors prohibited 99 actions for penalties 99 proof of incorporation , 99 when stockholders to be directors 99 dissolution of corporation 190 town must pay for lands not originally a highway 100 highway labor upon line of plankroad or turnpike 101 extension of corporate existence 101 laws repealed ^ • 103 saving clause 103 construction of law 108 when law to take effect 103 UNDERTAKING: of persons running ferry 67 of commissioner of highways 108 form of 108 town officer 124 UNSAFE TOLL BRIDGE 24 00 ;•' • ■ Index. ACANCIES: page in town oflBces 133 fATER PIPES IN HIGHWAYS 35 ^BEDS: to be cut. down by overseer 37 in highways. 41 occupants to be notified to remove 43 abatement of highway tax for removing 43 to be cut by railroads 81 AIRE FENCE: to resist snow blockade , 126 ARD: turnpike not to be laid out through 87 '■mm mcu