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 And Presented February 14, 1893 
 IN HEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
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 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
CORNELL UNIVERSHY LIBRARY 
 
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Cornell University 
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SUPPLEMENT 
 
 THOMPSON'S TREATISE 
 
 ON THE 
 
 LAW OF HIGHWAYS. 
 
 CHAS. H. MILLS, 
 
 OF THE .ALBANY BAK. 
 
 ALBANY: 
 
 W. C. LITTLE & CO., LAW PUBLISHERS. 
 1879. 
 
COPTRIGHT 1879. 
 
 bt w. c. little & CO. 
 
PREFACE. 
 
 In presenting to the public these chapters, supple- 
 mentary to Mr. Thompson's most excellent book on 
 "Highways," I have attempted nothing but a con- 
 tinuation of his treatise, believing that the work, as per- 
 formed by him, is in every way reliable and thorough ; 
 and I have followed as far as possible the order of the 
 original, both on account of its being the natural 
 arrangement, and also to enable the reader to connect 
 the two as easily as might be. 
 
 Durtag the past twelve years there has been consid- 
 erable legislation upon the subject, and some important 
 decisions have been rendered affecting both law and 
 practice — and it is with a view of bringing these 
 together and placing them in such a form that they 
 may most readily be used in connection with Thompson 
 on Highways that the chapters have been prepared. 
 
 C. H. M. 
 July 1, 1879. 
 
TH E LAW OF HIGHWAYS. 
 
 CHAPTEE J. 
 
 ' , DIFFERENT KINDS OF HIGHWAYS. 
 
 Navigable rivers. — A public pier is a part of the 
 public highway. {Badway v. Briggs, 37 N. Y. R. 266 ; 
 People V. Lamhier, 5 Denio, 9 ; Fowler v. Mott, 19 
 Barb. 204.) But a wharf built by an individual where 
 no highway existed is not. ( Wetmore v. Atlantic Lead 
 Co., 2,1 Barb. TO.) 
 
 Canals. — Declared public highways. {Robinson v. 
 Chamberlain, 34 N. Y. B. 389 ; Conklin v. Phoenix 
 Mills, 62 Barb. 299.) 
 
 The State acquires a title in fee simple to the canals, 
 and they will not revert upon the abandonment of their 
 use for the purpose of a canal. {Rexford et al. v. 
 Knight, 11 N. Y. R. 308.) 
 
 When the canal commissioners, in pursuance of the 
 authority of the statute (1 R. 8. 221, § 19), alter a pub- 
 lic highway which interferes with the proper location, 
 &c., of the canal, the fee simple of the portion included 
 within the boundary hues of the canal, is in the State ; 
 but it does not acquire the title in fee simple to any of the 
 lands outside of these boundaries. No power is given 
 to a canal commissioner to appropriate lands for the 
 
mere purpose of a cornmon highway. {Htggins v. Rey- 
 nolds, 31 N. Y.B. 151.) 
 
 Fee in Highways. — By chapter 63 of t*he Laws of 1873 
 the commissioners are authorized to allow, upon appli- 
 cation in writing, the laying of water pipes in the high- 
 way, provided it shall not interfere with public travel, 
 and that all earth shall be replaced, &c. Provided, fur- 
 ther, 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. Bloonifield Gas 
 Light Co., 1 N. Y. Sup. 541.) 
 
 A hotel proprietor cannot confer on a coach proprie- 
 tor an exclusive right to occupy the street before the 
 hotel, having no such right himself. {Deiz v. Lamb, 6 
 Bobt. 53Y.) 
 
 Where the owner allows the public to use his land as 
 a highway for years, he is liable if a passer by, using 
 ordinary care, sustains an injury by falhng into an 
 excavation made by him adjacent to the traveled 
 portion. 
 
 It was held that an alley need not be accepted by the 
 public to be deemed a thoroughfare. {Beck v. Carter, 
 68 N. Y. R. 283.) 
 
 The street 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 Barb. 
 360 ; Plant v. Long Island B. R. Co., 10 id. 26.) 
 
 The rights of a street railroad company to. the use of a 
 street for the purpose of its business is a propej-ty right, 
 
subject to condemnation for public use and; the legisla- 
 ture may authorize other persons, either natural or cor- 
 porate, to do a similar business in the same street, or to 
 use the tracks 8f the company, whenever, in their judg- 
 ment the public good requires. {Sixth Ave. R. R. Co. 
 V. Kerr, T2 N. Y. 330.) 
 
 Dedication. — Where an owner has laid out his lands 
 into streets, filed a map and sold lots, bounding them 
 upon the street, and the street was accepted by the 
 commissioners, he cannot revoke the dedication by 
 fencing in part of the street. {Brydges v. Wyckoff, 
 67 N. Y. R. 130.) 
 
 But the street must be accepted. {Wohler v. The 
 Buffalo & State Line R. R., 46 N. Y. R. 686 ; Niagara 
 Falls Susp. Bridge Co. v. Bachman, 66 N. Y. R. 261.) 
 
 A map made by municipal authorities, the owners of 
 the property having nothing to do with it, the map 
 being simply as a plan for future improvements — held, 
 that the place in question was not a street. {Matter of 
 the Petition of Rhinelander, 68 iV. Y. R. 105.) 
 
CHAPTEE II. 
 
 COMMISSIONERS. 
 
 Election of. — By Laws of 1866, chapter 30, § 3, it is 
 provided, that there shall be chosen at the annual town 
 meeting, one, two or three commissioners of highways. 
 
 A resolution, taken at an annual meeting, to change 
 the number of commissioners, cannot be rescinded until 
 the terms have expired, nor until noon. {People v. 
 Sandman, 12 Hun, 165.) 
 
 ' Acts directing persons to administer oath of office to 
 officers are held to be merely directory. {Ex parte 
 Heath, 3 Hill, 12.) 
 
 Commissioners inspectors of plank roads and turn- 
 pikes. 
 
 Sureties to the bond of the commissioners will be lia- 
 ble only for defaults of duty,, during term for which 
 they were chosen, at the time the obligation was 
 entered into, and not for those under a reappointment. 
 {Kingston Mutual Ins. Co. v. Clark, 33 Barb. 196.) 
 
 One commissioner cannot authorize another to sign 
 his name to orders, &c. {Todd v. Todd, N. Y. Sup. 
 531.) 
 
 Trustees of Villages. — Are commissioners, for certain 
 purposes. {Laws 0/I8TO, tit. 3, § 1, sub. 25.) 
 
Acts of commissioners de facto are valid so far as the 
 public is concerned. {People v. Covert, 1 Hill, 674.) 
 
 Duties. — Commissioners, in grading highways, are 
 not bound to provide a channel for the drainage of sur- 
 face water. {Gould v. Booth, 66 N. Y. R. 62.) 
 
 But this rule does not apply where the necessity for 
 the drainage is caused by the act of the corporation 
 itself. {Byrnes v. The City of Cohoes, 6Y N. Y. B. 204.) 
 
 They are liable for an injury happening through a 
 defective bridge. Absence of notice does not absolve 
 them from liabihty. {BostwicJc v. Barlow, 14 Hun, ITY.) 
 
 Where a commissioner changed a sluice way and 
 turned it on defendant's land, held, that if it destroyed . 
 his fields he might abate it as a nuisance, and could set 
 it up as a defense against an action by the commis- 
 sioner. {Thompson v. Allen, 1 Lans. 459.) 
 
 Where they have repaired a bridge to the best of their 
 abihty, they are not liable. {Hicks v. Chaffee, 13 Hun, 
 293.) 
 
 Water Commissioners. — Supervisors and commis- 
 sioners of highways of the several towns, and the 
 president of any incorporated village, are made water 
 commissioners, and have charge of dams, drains, ditches 
 and channels. {Laws o/lSYl, ch. 303, ^ 16.) 
 
 Fence Viewers. — The commissioners of highways 
 elected in every town are, by virtue of their office, 
 fence viewers of the town. {8ee Thompson on High- 
 ways, page 95 ; also, see Laws of 18Y1, ch. 635 ; 1 R. 
 
10 
 
 S., 354, 356 ; 1 R. S. 355, as am. ; Laws of 1866, 540 ; 
 id., 1838, ch. 261 ; IB. S. 69Y, 699.) 
 
 Bridge reported unsafe. — Whenever complaint in 
 writing on oath shall be made to a conamissioner of 
 highways of any town, in which shall be in whole or in 
 part any toll bridge, belonging to any person or corpo- 
 ration, 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 
 toU bridge so complained of, and if, upon such' exami- 
 nation of such bridge, the said highway commissioner 
 shall be of opinion that the same has from any cause 
 become dangerous or unsafe for pubhc use, he shaU 
 thereupon give immediate notice to the owner or own- 
 ers of such toU 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 thor- 
 oughly examined such bridge, and found it to be unsafe 
 for the public use. It shall thereupon be the duty of such 
 owner or owners of such bridge, - immediately to com- 
 mence repairing the same within one week from the day 
 of such notice given, or such reasonable time thereafter 
 as may be necessary to thoroughly repair such bridge, so 
 as to make the same, in aU 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 examination and 
 giving such notice shall reside, to be sued for and recov- 
 ered by such highway commissioner, and expended for 
 the improvement of highways of said town ; and after 
 
11 
 
 the expiration of the time for such repairs and failure 
 to make the same, it shall be unlawful for such bridge 
 owner or owners, to demand or receive any toll for 
 using said bridge until the same shall be fully repaired. 
 
 § 2. In case of the neglect of the owner or owners of 
 such toU 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 conv«enient 
 for pubhc 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 
 accomit 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 
 toU bridge and the repair thereof, duly verified by such 
 highway commissioner, shaU be paid on demand by 
 such bridge owner or owners, together with two dollars 
 per day for the services of such highway commissioner, 
 for each day during which he shall have been engaged 
 in the examination and repair of such toll bridge, the 
 purchase of material and labor, and keeping and ren- 
 dering to such bridge owner or owners such account. 
 
 § 3. In case of the neglect or refusal of such bridge 
 owner or owners to pay such account on presentation 
 and demand, it shall be the duty of said highway com- 
 missioners to sue for and recover the same, in any court 
 having jurisdiction of such action ; such recovery to be 
 for the benefit of his town, and to pay said account for 
 material, labor and commissioner's fees, which are 
 hereby made a charge upon such town. {Laws 18Y3, 
 ch. 448.) 
 
12 
 
 Liability of Towns. — Towns are not chargeable for 
 the official acts or delinquencies of its commissioners or 
 overseers of highways. {People v. Van Keuren, N. Y. 
 Ct. of Appeals, Sept. 11, 1878.) 
 
 A town, in its corporate capacity, has no control over 
 highways, and is under no legal obhgation to keep the 
 highways and bridges in repair, and hence no recovery 
 can be had against it for injuries received by reason of 
 the neglect of its officers to keep them in a safe condi- 
 tion. {People ex rel. v. Town Auditors of Little Valley, 
 Ct. of Appeals, Nov. 26, 1878.) 
 
 Where a railroad, as a condition of laying its track, 
 had agreed with the city to keep the street in and about 
 the rails in repair, held, that where an individual, with 
 the consent of the city authorities, made an excavation 
 by reason of which plaintiff was injured, that the rail- 
 road company was hable. {McMahon v. Second Ave. R. 
 B. Co., N. Y. Ct. of Appeals, Nov. 12, 1878.) 
 
 A city is charged with the duty of the preservation 
 and repair of its streets, and is hable for injuries caused 
 by defect in the same, after notice, actual, or presumed 
 through long standing of the defect. {Requa v. City of 
 Rochester, 4.5 N Y. R. 1^9.) 
 
 A railroad company carrying a highway over the 
 tiack, is bourld to keep the approaches thereto in suita- 
 ble repair. {The People v. N. Y. C & H. B. R. R., N. 
 Y. Ct. of Appeals, Sej^t. 17, 1878.) 
 
 Formation of new Road Districts. — Whenever the 
 owners of real estate, lying along the line of any plank 
 
13 
 
 or turnpike road, representing two-thirds of the front- 
 age on such road for a distance of not less than one 
 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 shaU present to such court the 
 assent, in writing, to such apphcation of the directors 
 of such plank or turnpike road company, and of the 
 supervisor and commissioners of highways of town or 
 towns in which such road is situated, the said court,. at 
 any regular session thereof, may constitute that por- 
 tion of such road, described in the said apphcation, a 
 separate road district, to be exempt from the jurisdic- 
 tion of the commissioner of highways of the town or 
 towns in which such district shall be situated. 
 
 The court shall appoint three commissioners, &c. No 
 toll is to be exacted. {Laws of 1876, ch. 373.) 
 
 The provisions of this act shall not apply to any road 
 whose charter term remaining unexpired, shall exceed 
 five years. {Id. § 11.) 
 
 The supervisors may authorize the consohdation of 
 two or more road districts, and form a separate road 
 district, and provide for the election or appointment of 
 overseers of highways. {Laws o/1875, ch. 482, § 8.) 
 
 Raising Money for Repairs of Bridges. — The super- 
 visors may authorize any town or towns liable for 
 the erection, care, repair and maintenance, in whole 
 or in part, of any bridge (except in the cases spe- 
 cified in the last three subdivisions), to borrow such 
 sums of money, in the manner provided in subdivision 
 twenty -nine of this section, as may be necessary for 
 the purposes of such erection, care, repair and mainten- 
 
14 
 
 ance, and to pay any existing debt, incurred in good 
 faith by, or in behalf of, such town or towns for such 
 purpose before the passage of this act. But no author- 
 ity shall i)e exercised under this subdivision, except 
 upon the apphcation of the town or towns Kable to be 
 taxed for such purpose, to be made by a vote of a 
 majority of the electors thereof, voting at a regular 
 town meeting, or at a special town meeting called for 
 the purpose, or upon the application of the supervisor, 
 by and with the advice and consent of the commis- 
 sioner of highways, town clerk and justices of the peace 
 of such town or towns respectively. If any town, at a 
 regular town meeting, held between the first day of 
 February, 1875, and the passage of this act, shall have 
 elected commissioners for the purpose of building a 
 bridge and providing money to pay for the same by the 
 issuing of bonds or otherwise, such bonds, not exceed- 
 ing the amount authorized at such town meeting, are 
 hereby authorized and declared vahd ; but such bonds 
 shall not be sold or otherwise disposed of for less than 
 par. And the board of supervisors shall levy a tax on 
 such town for the payment of such indebtedness, at 
 such times and in such amounts as may be necessary to 
 meet the obhgations inciu-red by said commissioners in 
 pursuance of instructions given by such town at the 
 time of electing said commissioners. {Laws of 1875, 
 ch. 482, sub. 6.) 
 
 By Laws of 1878, ch. 377, as amended by Laws of 
 1879, ch. 67, 3,11 moneys raised and collected upon the 
 taxable property of any of the towns of this State, for 
 highway and bridge purposes, shaU be paid over by 
 town collectors of taxes to the commissioners of high- 
 ways of the towns in which said moneys are so raised 
 
15 
 
 and collected, and to no other officer or person whatso- 
 ever. It shall be the duty of the board of supervisors 
 to issue W9,rrants to the collectors of towns requiring 
 the paying over by them of all moneys raised and col- 
 lected for highway and bridge purposes, to the commis- 
 sioners of highways of towns ; and it shall not be law- 
 ful for the board of supervisors of any county to issue 
 warrants to town collectors directing them to pay over 
 any moneys raised and collected upon any town for 
 highway and bridge purposes, to the village authorities 
 of any incorporated village, situated wholly or partly in 
 any town. But nothing in this act shah, prevent boards 
 of supervisors from raising money under section two of 
 chapter eight hundred and fifty -five of the Laws of 
 eighteen hundred and sixty -nine and from issuing war- 
 rants to collect the necessary money to repay the same. 
 And said boards of supervisors may appoint a commis- 
 sioner or commissioners to spend and account for any 
 moneys raised for road or bridge purposes under said 
 chapter eight hundred and fifty -five of the Laws of 
 eighteen hundred and sixty-nine, under such regula- 
 tions as said boards shall deem proper. 
 
 It shall be the duty of the commissioners of highways 
 in the several towns in this State to expend all moneys 
 raised and collected in any town and paid over to such 
 commissioners of highways, upon the highways and 
 bridges, situated in the town in which such mon'eys 
 are raised and collected, and not elsewhere, in such pro- 
 portions as they may deem just and proper. (§ 2.) 
 
 This act shall not apply to incorporated villages con- 
 stituting a separate road district, or to special road dis- 
 tricts of this State, now provided for by any special 
 act. (§ 3.) 
 
16 
 
 Changing System of working Highways. — It is pro- 
 vided by the Laws of 1873, ch. 395, as amended by Laws 
 of 1875, ch. 341, for such towns as may wish to change the 
 present system of working and repairing the highways, 
 that it shall be lawful 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 the value of the dg,ys' work thereto- 
 fore assessed, at the commutation prices. 
 
 The form of ballots is described in the act and the 
 commissioners of highways are to constitute a board to 
 be known as "the board of highway commissioners for 
 
 the town of ; ." One of their number is to be 
 
 elected president, and is to receive money collected for 
 highway pm-poses, but he must give a bond to be 
 approved by the supervisor. 
 
 By Laws of 1879, chapter 31, any town in this State, 
 which has changed the manner of working and repair- 
 ing the highways therein, from the system provided for 
 in article second and article third of chapter sixteen, 
 title one, part ohe of the Eevised Statutes, to the system 
 provided for in chapter three hundred and ninety-five 
 of the Laws of eighteen hundred and seventy-three, 
 may return to the system provided for in said article 
 two and article three of chapter sixteen, title one, part 
 one of the Eevised Statutes by complying with the pro- 
 visions of this act. 
 
 § 2. Upon the written application of twenty tax-pay- 
 ers of any such town, it shall be the duty of the justices 
 or other officers who preside at the town election of any 
 such town, to submit to the electors, and the electors of 
 any such town may vote at the next annual town meet- 
 ing upon the question of returning to the said former 
 system of working and repairing the highways ; such 
 
17 
 
 vote shall be by ballot, upon which shall be written or 
 printed respectively, "for 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 Ee vised 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 Eevised 
 Statutes." .The ballots shall be deposited in a separate 
 box by themselves, be counted by the inspectors of elec- 
 tion, or other officers 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 there- 
 for may avail itself of the privileges of this act, and of 
 said article second and article third of chapter sixteen, 
 title one, part one of the Eevised Statutes, upon causing 
 a minute of its action to be entered by the town clerk 
 in the town records. 
 
 . By the Laws of 1874, chapter 260, § 1, the boards of 
 supervisors of each county in this State, except New 
 York and Kings, shall have power at their annual meet- 
 ing, or at any other regular meeting, to authorize the 
 supervisor of any town in said county, by and with the 
 consent of the commissioner or commissioners of high- 
 ways, town clerk and justices of the peace of such town, 
 to borrow such money, for and on the credit of each 
 town, not exceeding, however, in any year the amount 
 of one-half of one per cent on the assessed valuation of 
 the taxable property of the town for such year, as the 
 said town officers may deem nece*ssaiy to build or repair 
 any road or roads, 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 
 2 
 
18 , 
 
 good faith by or on behalf of such town for such pur- 
 pose/ before the passage of this act ; and the said board 
 of supervisors shall have povrer 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 inter- 
 est thereon 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 suflScient tax to 
 pay the said principal and interest of such obligations 
 according to the terms and conditions thereof. The 
 town officers hereinbefore mentioned shaU 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 morning, to deter- 
 mine what amount, if any, shaU 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 con- 
 cerning such appropriation; but no such. meeting shall 
 be held subsequent to the first Monday of October in 
 each year. 
 
 It is not essential that the town officers named, should 
 meet for the purpose of determining the amount to be 
 borrowed, on the first JVEonday of September — the pro- 
 vision is merely directory. {People ex rel. v. Tompkins, 
 64 N. T. B. 53.) 
 
 The bonds authorized by this act are to be indorsed 
 with the town clerk's certificate and are to be disposed 
 
19 
 
 of by the supervisors. The boards of supervisors, ex- 
 cept in cities verbose boundaries are the same as those 
 of the coimty, are empowered to authorize any town or 
 towns hable for the erection, care, repair and mainte- 
 nance, in whole or in part, of any bridge (except in cer- 
 tain cases specified in the act) to borrow such sums of 
 money as are necessary for those purposes. But no 
 authority is to be exercised for this purpose, except 
 upon the apphcation of the town or towns hable to be 
 taxed therefor, to be made by vote of a majority of 
 the electors thereof voting, at a regular l^own meeting, 
 or at a special town meeting caUed for the purpose, or 
 upon the apphcation of the supervisor, by and with the 
 consent of the conmiissioner of highways, town clerk 
 and justices of the peace of such town or towns, respec- 
 tively. {Laws of 1875, ch. 482, as amended by Laws 1876 
 ch. 257.) 
 
 By the same act, such boards of supervisors, are em- 
 powered to authorize any town to issue its bonds and 
 borrow money thereon, for a term not exceeding twenty 
 years, for the purposes last above specified, and for the 
 purchase of any plank, macadamized or turnpike road, 
 or any toU bridge. 
 
 The supervisors have power, under the act of 1875, 
 ch. 482, § 1, subd. 12, upon the apphcation of the owners 
 representing a majority in value (as shaU be ascertained 
 from the last annual town assessment roll) of the real 
 estate lying along the fine of any highway laid out 
 through unimproved lands, to appropriate the non-resi- 
 dent highway tax on the lands lying along said line, for 
 the improvement of such highway under the direction 
 of a commissioner or commissioners to be appointed by 
 the board of supervisors. But this provision does not 
 apply to or interfere with any case where the same 
 
20 
 
 object is provided for by any special law passed prior to 
 January 1, 1875. 
 
 In case the road or bridges are wholly or partly within 
 the limits of any incorporated village, the' consent of a 
 majority of the trustees of the village, is necessary for 
 the action of the supervisors in raising money fof build- 
 ing or repairing, in addition to the consent of the com- 
 missioners, town clerk, and justices of the peace. {Laws 
 1873, ch. 323.) 
 
 Special commissioners have an imphed authority to 
 do aU the sevei;al acts and duties connected with their 
 position. {Odell v. DeWitt, 53 N. Y. B. 643.) 
 
 Commissioner has no general authority to borrow 
 money. {Van Alstyne v. Freday, 41 N. Y. B. 174.) 
 
 Appointment of Overseers. — By Chap. 791 of the Laws 
 of 1868, it is provided that the appointment of overseers 
 of highways, be made by commissioner of highways, 
 and overseers are not required to file acceptance of office. 
 
 Actions by or against. — A court of equity has no right 
 to inquire into the proceedings of commissioner with a 
 view to set them aside if void at law. {Thatcher v. 
 Dusenbury, 9 How. 32.) 
 
 « 
 
 Against Successor. — The successor to a commissioner 
 is not hable for the latter's neglect to repair a bridge. 
 {Lamonte v. Haight, 44 How. 1.) 
 
 Abatement, etc. — A justice of the peace has no power 
 to compel the substitution of new parties in a suit before 
 him. {Colegrove v. Breed, 2 Denio 125.) 
 
 Judgment, how collected.-- A judgment recovered 
 
21 
 
 against commissioner of highways for injuries resulting 
 from his neglect to keep the highway in repair, cannot 
 be made g, town charge under 1 E. S., 357,8 §8. {People 
 ex. rel. v. Town Auditor, Esopus, N. Y. Ct. of Appeals, 
 Sept. 17, 1878.) 
 
 Overseer. — An overseer can take material from the 
 side of the highway, for repairs. {Anderson v. Van 
 Tassel, 53 N. Y. 631.) 
 
 An overseer of highway, sued for trespass committed 
 by direction of the commissioner of highj^^ays, ho notice 
 of the suit having been given to the town or its officers, 
 the town is not hable to the relator for the expenses in- 
 curred by him in the litigation. {People ex. rel. Van 
 Keuren v. Town Auditor of Esopus, N. Y. Ct. of Ap- 
 peals, Sept. 17, 1878.) 
 
 An overseer has no right to turn a stream to relieve 
 his own property, and thereby injure others. {Kellogg 
 V. Thompson, 66 N. Y. R. 88 ; Moran v. McCleams, 
 63 Barb. 185.) 
 
 Assessment of Highway Labor. — The omission of an 
 overseer of highways, to deUver to the town clerk a list 
 of the inhabitants in his road district liable to work on 
 the highways ns merely directory and does not avoid the 
 assessment. {Binehart v. Young, 2 Lansing, 354. ) 
 
 Members of the state militia during any period of 
 seven years between April 17, 1864, and April 29, 1866, 
 and who were, after serving seven years, honorably dis- 
 charged shall' forever after be exempt from highway 
 taxes, not exceeding six days in each year. {Laws 1871, . 
 ch. 245.) 
 
 The property of railroad companies should be assessed 
 
22 
 
 at its value as used, and not as farming lands. {People 
 V. Fredericks, 48 Barb. 1Y3.) 
 
 Every person liable to do highway labor, living or 
 owning property on the hne of any plank road of this 
 state, may, on making application in writing to the 
 commissioner 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 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 dis- 
 trict. {Laws of 1872, chap. 128, amending laws of 1855, 
 and 1853.) 
 
 Additional Labor to remove Snow. — By chap. 693 of 
 laws of 1869, the overseers may assess and call out 
 persons to work when highways are obstructed by snow 
 or otherwise, when the labor has been worked out, and 
 such labor so called for shall be assessed upon those 
 liable to perform the same in proportion to their original 
 assessments, if the persons so called fail to^ come, or to 
 commute at a dollar a day, they shall be liable to a fine 
 of one doUar and a half for each day. 
 
 If the overseer fails, after receiving a written notice 
 to have the highways opened, he is subject to a fine of 
 five doUars for each day's neglect. 
 
 NON RESIDENT TAXES. • 
 
 Section 1. 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 f or 
 the construction or maintenance of any roads or bridges. 
 
23 
 
 and any commissioner or commissioners appointed 
 therefor, and where hy reason of the expiration of the 
 official hf e of the commissioner or commissioners so ap- 
 pointed to receive, expend and account for said non- 
 resident highway taxes, any balance or remainder so 
 set apart or appropriated has not been so received or ex- 
 pended, it shall be lawful for the boards of supervisors 
 of the counties wherein said non-resident lands are 
 situated 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 pro- 
 vided for in said original act or acts ; and any act or 
 acts of any board of supervisors appointing such com- 
 missioner or commissioners in anticipation of the pass- 
 age of this act are hereby ratified and confirmed. 
 {Laws of 1879, ch. 275.) 
 
 Villages. — In aU cases where there is an incorporated 
 village or city within the Umits 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 without said village or city, it shall be the duty 
 of the assessors of such town, after fixing the valuation 
 of the whole of such real estate as now by law required, 
 to determine what proportion of such valuation is on 
 account of that part of said real estate, lying without 
 the hmits of said city or village, and designate the same 
 upon their assessment hst. {Laws of 1871, ch. Ill, § 1.) 
 
 The valuation of the real estate lying without the 
 limits of any city or village, so fixed and determined 
 by the assessor, shall be the valuation on which the 
 commissioner of highways of towns shaU assess high- 
 way labor, against the owner or owners of such real 
 
24 • 
 
 estate ; and in no case shall the commissioners of high- 
 ways assess any highway labor on property situated 
 within the hmits of any incorporated city or village 
 which is by law a separate road district. {Id., §2.) 
 
 Roads in Villages. — A village constitutes a separate 
 highway district, and the trustees have power of high- 
 way commissioners. {Laws 1871, ch. 870 §3.) 
 
 Section 4 of Laws of 1853, ch. 626, §1, as amended 
 1855, ch. 495 and 1871, ch. 171, applies only to real pro- 
 perty. {People V. Hall, 16 How. Pr. Rep. 76.) 
 
 Exempt Lands. — By Laws 1869, ch. 708, cemetery 
 lands and property of any association formed under the 
 act of 1847, are ^empt from taxation and sale on exe- 
 cution — and no road may be laid through the same, 
 without the consent of the trustees of such cemetery — 
 except by special permission of the Legislature. 
 
CHAPTEE III. 
 
 PERFORMANCE OF HIGHWAY LABOR. 
 
 It shall be the duty of overseers of highways to give 
 at least twenty-f oiir hours' notice to aU 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 im- 
 plements, and also that they wiU be allowed for work 
 at the rate of eight hours per day for all the hours for 
 which they may work on the highways, between the 
 hour of seven o'clock in the forenoon, 'and six o'clock 
 in the afternoon. The highway tax upon any land or 
 property shall be worked out or commuted ior in the 
 district in which said land or property is situated, and 
 if commuted for, the money shaU be paid to the over- 
 seer of said district for the benefit of the roads and 
 bridges in said district ; but this act shall not apply to 
 or affect any county, city, village, town or district 
 where the disposition of the highway tax has been pro- 
 vided for by special enactment. (1 R. S. 509, §32 as 
 amended by Laws o/,18T6, ch. 348.) 
 
 Corporations may commute. — Whenever any railroad 
 corporation assessed in any town or road district for 
 highway labor shaU elect to commute therefor, as pro- 
 vided 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 ap- 
 , plied and expended in the improvement of the roads 
 
26 
 
 and building and maintenance of bridges in such town. 
 {Laws 1877, ch. 344 as amended Laws 1878 ch. 44.) 
 
 Proceedings to collect Non Resident Labor unpaid. — 
 Every overseer of highways shall, on or before the first 
 day of October in each year, make out and deliver to 
 the supervisor of his town a hst of all resident land 
 holders residing in his district who have not worked out 
 their highway assessment or commuted for the same, 
 with the number of days not worked or commuted for 
 by each 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 are assessed on his 
 warrant by the commissioner of highways, or added to 
 him according to law, on Which the labor assessed has 
 not been performed or commuted for, and the number 
 of day's labor unpaid by each, charging for the same at 
 one dollar and fifty cents per day ; which hst shall be 
 accompanied by the affidavit of the overseer, duly certi- 
 fied, that he has given the notice required by the thirty- 
 second, thirty -third and thirty-fourth sections of this 
 title, and that the labor for which such residents and 
 such land is returned has not been performed or com- 
 muted. (1 R. S. 511 § 47, as amended 1870, ch. 461.) 
 
 It shall be the duty of each board of supervisors, at 
 their annual meeting in each year, to cause the amount 
 of such arrearages for highway labor returned to them 
 severally, as provided in the preceding section, estimat- 
 ing each day's labor at one dollar and fifty cents a day, 
 to be levied on the lands of all residents and non resi- 
 dents, returned as aforesaid, as returned by the assess- 
 ors of the several towns, and to be collected in the same 
 manner that the contingent charges of the county are 
 
2Y ' 
 
 levied and collected, and to order the same, when col- 
 lected, to be paid over to the commissioners of high- 
 ways of towns, respectively, to be by them apphed to 
 the construction, repair and improvement of the roads 
 and bridges in the district in which the labor was ori- 
 ginally assessed. {Id., §50, as amended 1870, ch. 461.) 
 
 Abatement of Taxes for Shade Trees. — 1. Any inhab- 
 itant, hable to highway tax, who shall transplant by the 
 side of the pubhc highway any forest shade trees, or 
 fruit trees, of suitable size' shall be allowed by the over- 
 seer of highways, in abatement of his highway tax, one 
 dollar for every four trees set out ; but no row of elms 
 shaU be placed nearer than seventy feet ; no row of 
 maples or other forest trees nearer than fifty feet, except 
 ■locust, which may be set thirty feet apart ; fruit trees 
 must also be set at least fifty feet apart ; and no allow- 
 ance, as before mentioned, shaU be made, unless such 
 trees shall have been set out the y^ar previous to the 
 demand for said abatement of tax, and are living and 
 well protected from animals at the time of such demand. 
 
 §2. Any trees transplanted by the side of the public 
 highways, as aforesaid, in the place of trees which have 
 died, shaU be allowed for in the same manner and in the 
 same conditions as in the preceding section. 
 
 §3. No person shaU be allowed an abatement of his 
 highway taxes, as aforesaid, more than one-quarter of 
 his annual highway tax, and no one shall receive any 
 abatement of tax for trees transplanted previous to the 
 passage of this act. (Laws of 1869, chap. 322, as amen- 
 ded by laws 1870, chap. 595.) 
 
 Watering Trough.— By the Laws of 1872, chap. 274, 
 the commissioners of highways in the several towns of 
 
28 
 
 this state shall annually abate three doUars 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 sup- 
 phed with freshwater, 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 said com- 
 missioners of highways respectively may designate the 
 number necessary for the public convenience in each 
 district, and no others than those designated shaU be 
 allowed this abatement of tax. 
 
 Section second directs that the directors of plank roads 
 and turnpikes shall abate three dollars toU, from any 
 one not an inn keeper who shall keep up a trough as 
 above set forth. • , 
 
 Section three, makes it the duty of the commissioners 
 in case of refusal by the directors to direct them to abate 
 said amount of toll, under a penalty of twenty dollars. 
 
 Removing Fences to prevent Drifting. — By laws of 
 18^5, chap. 196, 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 abate- 
 ment of his highway tax, the time actually expended in 
 removing such fence and in replacing the same ; pro- 
 vided, however, that no allowance shall be made as 
 hereinbefore provided, unless such' fence shaU have been 
 removed pursuant to the direction of the overseer of 
 highways. 
 
 Laying out Highways. — An apphcation to establish 
 
29 
 
 an old road as a public highway is not authorized by the 
 statute. {Christy v. Newton, 60 Barh. 332.) 
 
 A petition for the laying out of a public highway may 
 lawfully include a portion of a highway already in exist- 
 ence. It is a question of discretion and convenience to 
 be determined by the commissioners or referees. {The 
 People V. Commissioners of Melton, 37 N. Y. B. 360.) 
 
 Survey. — The survey should be incorporated in the 
 order ; but if it is attached to it that is sufficient. All 
 the commissioners must sign the order. ( Van Bergen v. 
 Bradley, 36 N. Y. B. 316 ; Pratt v. People, 13 Hun, 
 664 ; Williams v. People, 36 N. Y. B. 443.) 
 
 Irregularity in laying out of road, since December 31, 
 1805, and before April 14, 1826, is cured, provided, the 
 conunissioner causes a survey to be filed and recorded 
 in the town clerk's office of the town. {Parker v. Van 
 Houten, 7 Wend. 145.) 
 
 By the Laws of 1875, chapter 482, section 11, the 
 supervisors have power to authorize aud direct the high- 
 way commissioner or commissioners of any town to 
 cause survey to be made, at the cost of the town, of any 
 or aU highways in such town, and to make a complete 
 and systematic record thereof, or to revise, collate and 
 re-arrange existing records of highways and to coUect 
 and verify the same by new surveys, and to estabhsh 
 the location of highways by smtable monuments when- 
 ever such commissioner or commissioners may deem it 
 expedient. Such reccfrds, so made or revised, corrected 
 and verified, shaU be deposited with the town clerk of 
 such town and shall thereafter be the lawful records of 
 the highways which they describe, but shaU not affect 
 rights pending in any judicial proceedings commenced 
 
30 * 
 
 prior to the deposit with the town clerk of such new or 
 revised records. 
 
 Section 5T of article 4 of title 1 of chapter 16 of part 
 1, of Eevised Statutes, in regard to laying out a road 
 through orchard, etc., is amended by Laws of 1873, 
 chapter TYS, to read : 
 
 Unless the commissioners of highways shall, on 
 apphcation duly made, after five days' notice to the 
 owner, or if he be a non-resident of the town, to the 
 occupant of said premises, certify to the county judge 
 that the public interest wiU be greatly promoted by the 
 laying out and opening of such road, the commissioners 
 shall serve on the owner, or if he be a non-resident of 
 said town, on the occupant of said land, a notice of five 
 days, to appear before the county judge to attend the 
 hearing of said matter ; 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 depart- 
 ment 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 shaU 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. 
 
 Garden. — It is not sufficient that the land is inclosed 
 with a garden, but it must be a part of a cultivated gar- 
 den, and must have been cultivated four years. {Peo- 
 ple V. Comrs. of Greenhurgh, 57 N. Y. R., 549 ; People 
 ex rel. v. Lucien Horton, 8 Hun, 357.) 
 
 Vineyard. — Private lands on which grape vineyards 
 have been planted and have had one or more years' 
 
31 
 
 growth, shall not be taken for pubhc highways or pri- 
 vate 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 1869, ch. 24.) 
 
 Oraveyard. — 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 rein- 
 terred in some other burying ground, at the expense of 
 the persons desiring such road. {Laws of 1868, ch. 843.) 
 
 Bond on application to lay out Highway. — As to the 
 right of a commissioner to require apphcant to give 
 bond, see Ham v. Silvernail, 1 Hun, 33. 
 
 Notice of Application. — A recital in the order that 
 there was a notice of three days is not proof of the fact. 
 {People V. Comrs. of North Hempstead, 1 Hun, 11.) 
 
 The fact that the road passed through improved lands 
 other than those mentioned as such in the application, 
 does liot make the proceeding void. {Snyder v. Trump- 
 hour, 38 N. Y. R. 355.-) 
 
 Freeholder's Certificate. — Omitting to file the peti- 
 tion at the time of making the order laying out a road, 
 does not affect the proceeding. {Comrs. v. Meserole, 10 
 Wend. 122.) 
 
32 
 
 Also, held in this case, that a justice of the peace has 
 no authority to administer the oath to petitioners for a 
 road. 
 
 Proceedings on laying out Highway. — In all cases of 
 the alteration of any road, or the laying out of any new 
 road, except where the sg,me 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 shaU serve a notice on 
 the town clerk of the town, and on a justice of the 
 peace and the commissioner or commissioners of high- 
 ways thereof, asking for a jury to certify to the necessity 
 of the same, and specifying a time not less than ten or 
 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 of new road is proposed 
 to be laid, of the time and place of drawing such jury, 
 by personally serving such notice on such owner or 
 occupant at least five days before the drawing of such 
 jury, or by mailing a copy thereof at least eight days 
 before such drawing to such owner or owners, in the 
 manner prescribed by law for the service of legal 
 notices. At the time and place mentionfed 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 high- 
 ways of the town, deposit in a box the names of aU per- 
 sons 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 revised statutes, 
 
33 
 
 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 pubhcly, in the presence of such 
 justice 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 dehver the same to the person asking 
 for the jury, and the applicant for such jury shall pay 
 to the said town clerk one doUar for drawing such jury. 
 The apphcant for such road or alteration of a road, on 
 receiving such certificate, shaU deliver the same to a 
 justice of the peace of the town wherein the road is to 
 be laid, and it shall be the duty of such justice forth- 
 with 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 sum- 
 mons, at which the persons to be summoned shall meet, 
 which shall not be less than ten nor more than twenty 
 days from the issuing thereof ; and in case the owner 
 or owners of any lands through which said road or 
 alteration is proposed to be located shall be a non-resi- 
 dent 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, shay 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 sufficient excuse be established, to pay 
 a fine of five dollars, which shall be sued for and re- 
 covered by the overseers of the poor of said town, and 
 such fine shall be appUed by them to the support of i;he 
 poor thereof. If nine or more of the persons, who 
 shall have been so drawn, not interested in the lands 
 3 
 
34 
 
 through which the road is to be laid, nor of kin to 
 the owners thereof, shall appear at the time and place 
 specified in the summons, they shall then be sworn 
 by the justice of the peace who issued such summons 
 well and truly to certify as to the necessity of the 
 highway appUed 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 admin- 
 istered to such juror by any other justice of the peace 
 of said county ; and the justice of the peace swearing 
 such jury shall receive therefor from such apphcant the 
 sum of two dollars. Such jury shaU there personally 
 examine the route of such highway, and shall hear any 
 reasons that may be offered for or against such proposed 
 route or alteration. If nine or more of the number 
 thereof shall be of opinion that such highway or altera- 
 tion of a highway is necessary and proper, they shall 
 make and subscribe a certificate in writing to that 
 effect, which shall be dehvered to the cbmmissioners of 
 highways of the town. But if such number thereof 
 shaU not certify that such road or alteration is necessary 
 then no apphcation for such road or alteration shaU be 
 made again in three months. Every juror shall be en- 
 titled to receive for his service. as such juror the sum of 
 one dollar and fifty cents, to be paid by such apphcant, 
 and the constable who may summon such jury shall 
 receive therefor, from such apphcant therefor, ten cents 
 for summoning each juror summoned, and ten cents a 
 mile for each mile actually and necessarily traveled in 
 summoning such jury, in going from and returning to 
 his place of residence therefor. If nine or more of such 
 jurors shall make a certificate that such highway or 
 alteration is necessary and proper, then the cost of 
 such proceeding as hereinbefore provided, shall be a 
 
35 
 
 charge against such town in favor of such apphcant. 
 The commissioners of highways shall decide upon such 
 appUcation for such road or alteration within thirty days 
 after the decision of the Jury, by an order in writing, 
 which shall be filed in the office of the town clerk of 
 such town. 
 
 §2. This act shah, not affect any proceedings in rela- 
 tion to the laying out of any highway instituted under 
 chapter two hundred and seventy-one, of the laws of 
 eighteen hundred and seventy-six, nor any proceedings 
 of appeal therein. (1 R. S., 514 §60, as amended by 
 laws of 1871, ch. 465.) 
 
 A justice of the peace is not required to charge the 
 jury, in an action tried before him. {People v. Eldredge, 
 dHun, 541.) 
 
 Highway laid out across Railroad Tracks. — High- 
 way commissioners cannot prevent construction of E. 
 R. over highways, if the court has given authority. 
 {Baxter v. S. S. R. R. Co., 11 Abb., N. S., 1Y8.) 
 
 The determination of the question as to the expediency 
 of carrying the highway over or under the track is left 
 to the raUroad company. {New York Central v. People, 
 12 Hun, 195, as modified and aff'd., Sept. 11, 1878, by 
 Ct. of Appeals.) 
 
 The railroad has the right to determine where the 
 crossing shall be made. {Wademan v. A. & S. R. R., 
 51 N. T. R. 568.) 
 
 The term "track," in §1, chap. 62, Laws 1853, does 
 not include grounds upon which tracks are laid for 
 storing cars, or exclusively for making up trains. 
 {Boston and A. R. R. Co. v. Vil. of Oreenbush, 52 N. 
 T. R. 510.) 
 
 Between different Towns etc. — §1. Whenever a high- 
 
36 
 
 way, 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 at the mayor's office in such 
 city, if said highway, street or road be on the line be- 
 tween a city and town, or a city and village, or at the 
 office of the town clerk of such town, if the same be on 
 the line between a town and village, on the first Monday 
 of May in each year, at twelve o'clock m. , and divide 
 such highway, street or road, and allot one part thereof 
 to such city, and the other to such town or village, or 
 one part thereof to such town and the other to such 
 village, as the case may be, in such a manner that the 
 labor and expense of working and keeping in repair such 
 highway, street or road may be equal as near as may 
 be. 
 
 §2. Upon the neglect or failure to attend on the part 
 of the officers of any city, town or viUdge, at the time 
 or places designated in the first section of this act t6r 
 the purposes therein mentioned, 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 Aallage, or such town 
 and village. 
 
 §3. The statement of the division made pursuant to 
 the provisions 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. {J^aws of 1870, ch. 311.) 
 
3Y 
 
 Width. — The board of supervisors may authorize the 
 laying out of highways of a greater or less width than 
 is now required by law, and of reducing or increasing 
 the width of highways now in existence. {Laws of 
 1875, ch. 482, § 10, as amended by Laws of 1876, ch. 257, 
 sub. 10.) 
 
 The power conferred is to authorize the acts to be 
 done, not to adopt a resolution which shall have the 
 effect of estabhshing or reducing the width of a road 
 previously existing. {Phillips v. Schumacher, 10 Hun, 
 405.) 
 
 Extending Corporate Existence. — Section 1. Any 
 plank road company or turnpike company, which shall 
 have been formed under and by virtue of an act enti- 
 tled : ' ' An act to provide for the incorporation of 
 companies to construct plank roads and of companies 
 to construct turnpike roads," pass* May seventh, 
 eighteen hundred and forty-seven, and the several acts 
 amendatory thereof, or under and by virtue of any act 
 of the legislature of the State of New York, and which 
 shall have managed and carried on any plank road or 
 turnpike road, or which shaU own any plank road or 
 turnpike road that has been managed and carried on for 
 twenty years last past, upon three miles in length 
 thereof, or not less than one-third of the route named 
 in their original articles of association, may, at any 
 time within five years before the termination of its cor- 
 porate existence, or of the time specified for its dura- 
 tion in its articles of association, continue its corporate 
 existence for a period not exceeding thirty years, 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, 
 
38 
 
 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 expiration 
 of the term of the corporate existence of such company, 
 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 purchase of any such road 
 or franchise, exclusive of repairs, together with the con- 
 sent in wi'iting, from the persons 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 the said 
 road parses. Such statement shall be made by the 
 president and treasurer of such company, and they shall 
 annex or indorse thereon their affidavit of the above 
 requirements. 
 
 § 2. Section six of chapter one hundred and thirty- 
 five. Laws of eighteen hundred and seventy-six, is 
 hereby amended so as to read as follows : 
 
 ^ 6. The provisions of this act shall apply to all the 
 counties of this State, except the countyies * of Kings, 
 Yates, Queues,* Seneca and St. Lawrence. {Laws of 
 1879, ch. 253, amending laws in relation to extending 
 existence of plank roads.) 
 
 Filing of Papers. — When the commissioners of high- 
 ways have made and filed an order laying out a high- 
 way, such order is conclusive evidence of the laying out 
 and boundaries of the road. If any substantial error 
 has been committed, it must be corrected on appeal or 
 certiorari. {Mogg. Comr. v. West, N. Y. Ct. of Appeals, 
 Jan., 18T9.) 
 
GHAPTEE IV. 
 
 ALTERING AND DISCONTINUING HIGHWAYS. 
 
 A highway running obhquely across the farm of a 
 petitioner, near its terminus in another highway, was 
 changed by the commissioners so as to run on the Hne 
 of the lots and enter the highway at right angles, held, 
 an alteration, not a new road. {People v. Jones, 63 N. 
 Y. B. 306.) 
 
 Widening Highway. — The widening of a highway is 
 an alteration of it. It is not the "laying out " of a new 
 highway. {People v. McNeil, 3 N. Y. Sup. 140.) 
 
 Discontinuing Highways. — Upon apphcation being 
 made according to law to the commissioners of high- 
 ■ways of any town, for the discontinuance of any pub- 
 lic highway therein, it shall be the duty of such 
 commissioners to give to aU owners and occupants 
 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 description of the highway 
 described in the application. And in case such jury 
 shall certify that said highway is useless and unneces- 
 sary, 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 
 
40 
 
 such commissioners to hear and determine such appli- 
 cation. 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 of 18T3, ch. 
 69, as amended; Laws of x878, ch. 114.) 
 
 Commissioners having all met may depute one of their 
 number to make the alteration considered. {Smith v. 
 Homer, 1 Barb. 416.) 
 
 A certificate of freeholders is not necessary where the 
 owner consents and files with the town clerk a release 
 of damages'. {People v. Jones,. 63 iV. Y., 306.) 
 
 "Where a new road has been regularly laid out, it can- 
 not be discontinued as an old one, before it has been 
 opened and used. {People v. Griswold, Q7 N. Y. R. 69.) 
 
 Discontinuance by non user. — Any plank road corpo- 
 ration which, for a period of fiv6 consecutive years, shall 
 have heretofore neglected or omitted to exercise its cor- 
 porate functions shall be deemed dissolved, and, provided 
 its road bed or right of way shall have Leen used as a 
 public highway for the said five years, the same shall be 
 deemed, and be a public highway to aU intents and pur- 
 poses, and with the same effect as if laid out by the 
 commissioners of highways of towns under the statute, 
 and all laws relating to the erection, repairing and pre- 
 servation of bridges shall apply to such highway. {Laws 
 1872, ch. Y80.) 
 
 The right of eminent domain, in this state, does not 
 authorize the taking of property belonging to the public 
 as a highway, and donating it to an individual. {People 
 V. Conir^s of Palatine, 53 Barb. 70.) 
 
41 
 
 Where an adjacent owner makes substantial improve- 
 ments upon the portion of a street abandoned by action 
 of the city, the city is estopped from setting up a claim 
 thereto. {St. Vincent Female Orphan Asylum v. City 
 of Troy, 12 Hun, 31Y.) 
 
 Abandonment of a highway can only be predicated 
 upon the act of those entitled to easement. On a public 
 highway the public alone can work an abandonment by 
 acts of obstruction. {Armsby v. Hends, 46 Barb. 622. ) 
 
 Any portion of a road may be discontinued without 
 affecting the residue. The refusal of the referee to dis- 
 continue is no bar to new proceedings within four years 
 for that purpose. {People v, Nichols, 51 N. Y. R. 470, 
 also People v. Jones, 63 N. Y. B. 306.) 
 
 By chap. ^55, of the Laws of 1869, sees. 2 and 3, the 
 boards of supervisors of each county, excejfting New 
 York and Kings, have power to provide for the use of 
 abandoned turnpike, plank or macadanized roads, within 
 any town as public highways. Also to change the rates 
 of toU upon plank and turnpike roads, and upon ferries 
 and bridges. • 
 
 Damages, how to be assessed. — Whenever any dam- 
 ages 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 apphcation of the commissioner or commissioners 
 of highways of the town ; or in case the said com- 
 missioners of highways shotild neglect or refuse to make 
 
42 
 
 such application for the space of thirty days after having 
 been requested so to do, it shall be lawful for the said 
 county court to appoint such commissioners on the ap- 
 plication of any of the owners of the land through which 
 such road shall have been laid out ; and the commis- 
 sioners so appointed shg,ll take the oath of office pre- 
 scribed by the constitution, and shall proceed, on 
 receiving 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 re- 
 quired to be assessed for the said highway, and shall be 
 authorized to administer oaths to witnesses who rnay 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 ; aUd 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 the said town. Laws of 1 872, 
 ch. 316. 
 
 The word " owner " means the .person entitled to the 
 legal estate in the land, e.g. where there is an executory 
 contract for sale of land, it is the consent of the vendor. 
 {Smith V. Ferris, 6 Hun 553.) 
 
 Consideration that business of turnpike would be 
 diminished by the construction of railroad along same 
 general line of travel should be disregarded. {Matter of 
 Hamilton ave., 14 Barb. 405; Troy & Boston R. B. Co. 
 V. Northern Turnpike, ]6 id. 100.) 
 
 But where the railroad invades and takes the land of 
 
43 
 
 turnpike, the latter is entitled to damages. {Matter 
 of Flatbush ave., 1 Barb. 286.) 
 
 Action will not lie to restrain the erection for public 
 purposes, by a city of a bridge upon one of the streets 
 thereof, at the suit of a land ojvner whose property is 
 not taken or touched. {Swett v. City of Troy, 62 Barb., 
 630.) 
 
 Notice of appeal from assessment must be served on 
 all of the commissioners. (The People v. Mitchell, 54 
 Barb., 589). 
 
 E^ect of filing. — The power of the commissioners to 
 assess was expended when they sign a determination 
 and dehver it to one of the commissioners who files it 
 with the town clerk. They cannot review their action. 
 {People V. Mann, 5 N. Y. Sup. R. 20T.) 
 
 Re-assessment. — Apphcation for a re-assessment of 
 damages is not an appeal in any sense, but a reargument. 
 {People V. White, 59 Barb. 666.) 
 
 Jurors. — The act of 1845, ch. 181, as amended Laws 
 1847, ch. 465, in regard to a reassessment by a jury, is 
 not in conflict with Art. 1 § 7, of the Constitution. 
 
 The claimant is entitled to the amount found by the 
 jury. .{Clark Y. Muller, 42 Barb., 255; id. 4:1 Barb., 
 38.) 
 
 Commissioners of highways, who have paid the 
 jurors fees, and other costs of a reassessment of the 
 damages of a land owner, caused by laying out a road 
 through his land, upon an appeal by them from original 
 assessment, upon which appeal the amount is reduced, 
 
44 
 
 can maintain an action to recover such costs of the land 
 owner. {Cary v. Marston, 56 Barb. 27). 
 
 Damages assessed to be audited by Supervisors. — 
 A claim presented to a board of supervisors, who per- 
 mitted their session to expire without taking any action 
 upon it, is to be regarded as rejected, for the purpose of 
 a mandamus to compel its allowance. {People v. Super- 
 visors of Richmond Co., 20 N. Y., 252.) 
 
 Appeals from the Commissioners. — An appeal does 
 not lie to the court of appeals, from a judgment of the 
 general term, affirming a decision of a county judge, 
 in relation to taxation of a plank road company. 
 [People V. Freeman, 52 N. Y. B., 656.) 
 
 Where the county judge cannot act, an order made 
 by him designating a justice to act in his stead, is anul- 
 lity. {Peoples. Comrs. of Greenburgh, 57 N. Y. R. 549.) 
 ■ No notice of the time and place of hearing an appeal 
 from the determination of the commissioners, is required 
 to be given to the owner or occupant of tlie lands taken. 
 {People V. Burton, 65 N. Y. R. 452.) 
 
 Powers and Duties of Referees. — The referee can only 
 consider the ground specified in the appeal. {Rector v. 
 Clark, 12 Hun, 139.) 
 
 Eef erees have no power to pass upon the question of 
 the jurisdiction of the commissioner to make the order. 
 {People V. Harris, 63 N. Y. R. 391.) 
 
 Neither have they the power to review the proceed- 
 ings before the jury of freeholders who made the cer- 
 tificate. Their authority is confined to the necessity and 
 propriety of laying out the road, {People v. Kniskern, 
 
45 
 
 54 N. Y. R. 52; People v. Van Alstyne, 3 Abb. Ct. of 
 Ap. Dec.) 
 
 An order on appeal, that the road he laid out as ap- 
 plied for, is a sufficient direction to the commissioners, 
 to lay it out. {People v. Com. of Salem, 1 Cowen, 23.) 
 
 Costs. — On an appeal to the supreme court from an 
 order of referees made on reviewing an order of the 
 t om.missioners, touching the laying out of the highway, 
 no costs are allowed. {People v. Heath, 20 How. Pr. 
 304.) 
 
 Where the supreme court reverses the decision of the 
 county judge and referees, without any dii-ections as to 
 costs, and judgment was entered w^'Wi costs — held irregu- 
 lar and unauthorized. {People v. Robinson, et al., 25 
 How. Pr. R. 345.) 
 
 There may be cases where costs are proper. {Id.) 
 
 Notice of Decision. — Where the referees had given 
 notice of the hearing of the appeal, and having heard 
 the parties thereon, reversed the order of the commis- 
 sioner refusing to lay out, a second notice must be given 
 to owners. {People v. Kniskern, 54 N. Y. R., 52, rev^g 
 50 Barb. ST.) 
 
 It is not necessary to the* validity of an order of re- 
 ferees, affirming a decision of commissioners laying out 
 a highway, that it should show that all of the referees 
 met to dehberate, or were notified, and such an order is 
 valid though signed by only two of the referees. {Peo- 
 ple V. Burton et aZ., 65 N. Y. R. 452.) 
 
 Effect of Decision. — A reversal of proceedings of com- 
 missioner is to render them void from the beginning. 
 {Briggs v. Bowen, 60 N: Y. R. 454.) 
 
46 
 
 Who may have a Certiorari. — A party ought not to 
 lie by and impose upon the town the expense of appear- 
 ing, assessing, etc., and collecting damages, and then 
 bring a certiorari to annul the proceeding. He must be 
 prompt. {People y. Landreth, 4 N. Y. Sup. 134.) 
 
 A writ of certiorari will not be sustained where the 
 only interest claimed by the party is that his busi- 
 ness as an innkeeper wiU be injured by the highway to 
 be laid out. {People v. Schell, 5 Lansing, 352.) 
 
 A certiorari is not proper while an appeal is pending 
 to the county judge from the decision of the commis- 
 sioners. {People r. Wallace, i N. Y. Sup. 438.) 
 
 Confirmation of a report of commissioners for open- 
 ing a street, cannot be disturbed except for fraud. 
 {Matter of Lexington Ave., 5 N. Y. Sup. Ct. 436.) 
 
CHAPTER V. 
 
 OBSTEUCTIONS AND ENCROACHMENTS. 
 
 What Obstructions are Allowable. — A work of art, 
 such as an ornamental statue, may be erected in a 
 highway when' it does not obstruct travel. {Tompkins 
 Y. Hodgson, 2 Hun, 146.) 
 
 Shght inconveniences and occasional interruptions in 
 the use of a highway or navigable stream, which are 
 temporary and reasonable, are not illegal, because the 
 pubhc may not, for the time, have the fuU use thereof, 
 e. g., an elevator unloading a vessel into a canal boat, 
 {People V. Horton, 64 N. Y. B., 610.) 
 
 Obstruction of its street by a municipal corporation 
 entitles its owners to damages. {St. John v. Mayor of 
 New York, 3 Bow. 483.) 
 
 Permission to make an obstruction by an owner of 
 the easement, works an extinguishment thereof. {Cart- 
 wright V. Maplesden, 53 N. Y. B. 622.) 
 
 Nuisance. — A party who continues a nuisance erected 
 by another is responsible for damages. {Brown v. Cay- 
 uga & S. B. B. Co., 12 N. Y. B. 486.) 
 
 Each injury caused by continuance of nuisance is a 
 new cause of action. {Vedder v. Vedder, 1 Denio, 258.) 
 
48 
 
 What are not Allow abue. 
 
 Processions. — By Laws of 18Y2, cli. 590, no procession 
 or parade is to interfere with the free passage of cars on 
 railways. In crossing a road the procession must halt 
 and allow cars to proceed. 
 
 All processions or parades are forbidden to occupy the 
 street to the exclusion of' other citizens, unless six hours 
 notice has been given to the pohce, who may lay out the 
 line of march, and the width of the column. The national 
 guard and pohce and fire departments 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 miUtary 
 funeral, music may be played while escorting the body, 
 but not within one block of a place of worship, where 
 worship is being celebrated. 
 
 The penalty is twenty dollars or an imprisonment of 
 ten days. • 
 
 Rafts. — Eafts continuously moored are an encroach- 
 ment on a public highway. {Moore v. Jackson, 2 Abh. 
 N. C, 211.) 
 
 Fences. — 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 re- 
 corded, which have been or shall have been used as 
 public highways for twenty years or more, and the same 
 have been or shall be obstructed in any manner or en- 
 croached upon by fences or otherwise, the commissioner 
 
49 
 
 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 in;fcended. 
 The commissioner 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 en- 
 croachments within sixty days. Every such order and 
 notice shall specify the breadth of the road originally 
 intended, the extent of the obstruction or encroachment, 
 and the place or places where the same shall be. (1 B. 
 S. chap. 16, art. 5 §103 of title 1 as amended by Laws of 
 18Y8, ch. 245, §103.) 
 
 Service of Notice. — Where a statute prescribes a 
 notice as a precedent to doing an act, and does not pre- 
 scribe the mode of giving it, personal service is neces- 
 sary. {McDermott v. Board of Police, 5 Abb. Pr. 422. 
 Rathbun v. Acker, 18 Barb. 393.) 
 
 » 
 
 Penalty. — If such removal shall not be made within 
 the time above mentioned, the said commissioner or 
 commissioners may summarily remove, or cause to be 
 removed, such obstructions or encroachments, and the 
 owner or occupant of the premises to whom the niotice 
 shaU be given, shall pay to such commissioner or com- 
 missioners aU reasonable charges therefor, and shall 
 forfeit the sum of fifty cents for each day that such 
 obstruction or ''encroachment shall remain unremoved 
 after the expiration of the time mentioned in said notice, 
 which shall be collected by suit in justice's court, and 
 shall be applied to the improvement of the roads and 
 4 
 
■ 50 
 
 bridges of said town. (1 R. S. 522, §104, as amended, 
 Laws 0/18T8, ch. 245.) 
 
 Wepds.— By Laws of 18T8, chapter 49, §1, it shall 
 be the duty of every person or corporation, owning or 
 • occupying under a lease of one or more years, any cul- 
 tivated or enclosed lands abutting upon any highway, 
 to cause all noxious weeds, briars and brush, growing 
 upon said lands, within the bounds of said highway, to 
 be cut or destroyed between the fifteenth day of June, 
 and the first day of July, and between the fifteenth day 
 of August, and the first day of September, in each and 
 every year. But boards of supervisors may fix a different 
 period, or periods, for such cutting or destruction in their 
 respective counties. This section shall not be construed 
 to restrict any of the powers heretofore conferred upon 
 boards of supervisors. 
 
 §2. It shall be unlawful for any person to place or 
 cause to be placed any noxious weeds, or the seeds of 
 such weeds within the bounds of any pubUc highway. 
 
 §3. Any willful neglect or refusal to comply with the 
 provisions of section one of this act, or any willful vio- 
 lation of section two of this act, shall subject the person 
 or corporation so offending to a penalty of ten dollars 
 and costs in and for each road district in which any of 
 such provisions shall be violated, to be sued for by the 
 commissioner or commissioners of highways of the town 
 wherein said road districts shall be situate, or by the 
 street commissioner of villages, when such village con- 
 stitutes a separate road district, and recovered before any 
 justice of the peace having jurisdiction ; said fine, when 
 collected, to be paid into the highway fund of such town 
 or village. ♦ 
 
 §4. It shall be the duty of commissioners of highways 
 
61 
 
 of towns or street commissioner of villages to prosecute 
 every person or corporation violating any of the pro- 
 visions of this act in their respective towns or villages, 
 and to include in each annual report of such commis- 
 sioners a detailed statement of all fines recovered under 
 the provisions of this act. 
 
 Remedy by indictment. — The commissioner of high- 
 ways have no power to bring an action to enjoin the 
 construction of a permanent obstruction in the high- 
 way. {CoyJcendall Y. DurJcee, 13 Hun, 260.) 
 
 The commissioners of highways of two towns, cannot 
 unite and bring an action for an encroachment on a 
 highway forming the town line. {Bradley v. Blair, 
 11 Barb. 480.) 
 
 Bridges, Liability of Commissioners. — A commis- 
 sioner who undertakes to bviild a bridge is hable for 
 negUgence in its construction, to one injured although 
 sufficient funds had not been put in his hands for the 
 purpose of building. {Rector v. Pierce, 3 N. Y. Sup. 
 416, Day v. Crossman, 4 N. Y. Sup. 122.) 
 
 A suit for injuries will lie against the commissioners 
 for injuries caused by their neglect to keep the highways 
 and bridges in a proper state of repair, they having the 
 funds on hand. {Hover y. Barkhoff, UN. Y. R. 113.) 
 
 Commissioners are not liable for an injury not proxi- 
 mate upon neglect to repair. {Day v. Crossman, 4 N. 
 Y. Sup. 122.) 
 
 By Laws 18T5, ch. 482, %1 sub. 3, the supervisors, 
 except in cities whose boundaries are the same as those 
 of the county, have power. 
 
 To authorize the location, change of location, ' and 
 
52 
 
 construction of any bridge (except on the Hudson river 
 below Waterford, and on the East river, or over the 
 waters forming the boundaries of the State), which shall 
 be applied for by any town or towns jointly, or by any 
 corporation formed pursuant to the general laws of the 
 State, or by .any corporation or individual for private 
 purposes ; and in the case of a pubhc bridge erected by 
 a corporation, to establish the rates of toU to be collected 
 for crossing such bridge. But in every case where any 
 such bridge is to cross a navigable streanj of water, full 
 provision shall be made in the resolution or permission 
 authorizing the same, for the erection and maintenance 
 of a suitable draw to prevent any impeding of the navi- 
 gation of such stream or water, and in case of a private 
 bridge, provision shall be made that the draw shall be 
 kept open as may be required to permit all vessels to 
 pass without loss of headway. Where any bridge shall 
 be on a stream of water forming at the point of crossing 
 the dividing line of counties, the action of the board of 
 supervisors of each county shall be necessary to give the 
 jurisdiction permitted by this subdivision. 
 
 By Laws of 18T8, chap. 'TT, section four of the] fore- 
 going, was amended as follows : 
 
 To apportion as such board may deem eqiiitable the 
 expense of the construction of any pubhc»bridge (except 
 on the Hudson river below Waterford, and on the East 
 river, or over the waters forming the boundaries of the 
 State), over a stream or other water forming the boim.- 
 dary hue of counties between the towns at such point. 
 Where the board of supervisors shall deem that the con- 
 struction of such bridge is a general benefit to the county, 
 they shall determine what proportion of the expense 
 thereof should be borne by the respective counties, or by 
 the respective towns of such counties and to authorize 
 
53 
 
 any town on the vote of the majority of the electors 
 voting at any annual town meeting or regular called 
 special town meeting, to appropriate such a sum to be 
 raised as other bridge moneys are raised, to aid in the 
 construction and maintenance of any bridge outside the 
 boundaries of the town or county, but forming a con- 
 tinuation of highways leading from such town or county, 
 and deemed necessary for the public convenience. 
 
 Section 5 of the Laws of 18T6, chapter 257, confers 
 powers on the supervisors tb provide for the care of 
 bridges crossing a stream which forms the county line. 
 
 Notice on Bridge. — The commissioners of highways 
 of each town may put up and maintain in conspicuous 
 places, at each end of any bridge in such town, main- 
 tained at public charge, the length of whose chord is 
 not less than twenty-five feet, a notice, with the follow- 
 ing words in large characters : " One doUar fine for 
 riding or driving on this bridge faster than a walk. " 
 And when the length of said chord is over fifty feet and 
 not over one hundred feet, the following notice : "Five 
 dollars fine for riding or driving on this bridge faster 
 than a walk." And when the length of said chord is 
 over one hundred feet and not over two hundred feet, 
 the following notice : " Ten dollars fine for riding or 
 driving on this bridge faster than a walk." And when 
 the length of said chord , is over two hundred feet, the 
 following notice : " Twenty-five dollars fine for riding 
 or driving on this bridge faster than a walk." 
 
 Whoever shall ride or drive faster than a walk on 
 any bridge in this State, upon which such notices shaU 
 have been placed, and shall then be, shall forfeit for 
 every offense the sum specified in said notice. (1 R.S. 
 525, §122 and §123, as amended by Laws of 1S7 5, ch. 22.) 
 
64 
 
 When two or more towns are required to build and 
 maintain a bridge, such bridge should be built and 
 maintained at their joint expense, without reference to 
 the town lines. {Lapham v. Bice, 55 N. Y. B., 4T2.) 
 
 The proceedings authorized by the Laws of 185Y, chap- 
 ter 639, to compel the repair of bridges can only be 
 instituted in the cases of bridges over streams dividing 
 towns. {Matter of Petition, &c., 59 N. Y. B. 316.) 
 
 The act of 185T (ch&,pter 639), 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 Irondequoit and Pen- 
 field, 68 N. Y. B. 3Y6.) 
 
 Bailroads in Highways and Streets. — Where a rail- 
 road corporation is authorized to appropriate lands only 
 for its own use, for the purposes contemplated by its 
 charter, it is not law^ful to add to such use that for 
 street and highway purposes, unless additional compen- 
 sation is made to the owner of the fee. {Strong v. City 
 of Brooklyn, 68 N. Y. B. 1.) 
 
 The use of a street as a railroad is a new burden 
 beyond the public easement, which cannot be imposed 
 by the legislature without compensation to the owner. 
 {Matter of Petition of N. Y. C. & H. B. B. B. Co., N. 
 York Weekly Digest, 171.) 
 
 The right of a railroad company to lay its tracks in 
 the street carries with it the obligation to lay them in a 
 proper manner and to keep them in repair ; and if an 
 injury occurs it is liable. ( Worster v. Forty-second St. 
 B. B. Co. 50 N. Y. B. 203.) 
 
56 
 
 A reservation of power to revoke the Kcense, on the 
 part of the city, does not affect the habihty of the road. 
 {Mayor of Troy v. T. & L. B. R., 49 N. Y. B., 657.) 
 
 In an action for injury to passer by from defect in 
 street, notice is not necessary if defect was visible. 
 {Bockwell V. M Ave., 64 Barb., 438.) 
 
 In the city of New York, the abutting owners have 
 no fee in the street, except an easement to pass and re- 
 pass, hence an action will not he»for the inconvenience 
 caused by. a track laid in too close proximity to his side- 
 walk. {Kellinger v. Forty-Second St. B. B., 50 N. Y 
 B. 206.) 
 
 Nor is he entitled to an injunction against an elevated 
 railway authorized by the legislature, because of failure 
 to make compensation for impairing his easement. 
 {Story V. N. Y. Elevated B. B. Co., 3 Ahh. N. C. 478, 
 see Elevated B. B. Cases, 3 Abb. N. C. 301.) 
 
 The possession of a highway by a railroad company, 
 under a license given by statute, is presumed to be sub- 
 ordinate to the rights of the owner of the soil. {Broies- 
 tedt V. South Side B. B. Co., 55 N.- Y. B., 220.) 
 
 Bight of Public to travel with Wagons, etc., on Street 
 Badlways. — The turning to the left in meeting a street 
 car on the track, does not in itself constitute negligence. 
 But other carriages must keep out of the way of the cars 
 and if by their own negUgence they are injured, an 
 action will not lie. {Hegan v. Eighth ave. B. B. Co., 
 15 N. Y. B., 380.) 
 
 A street railway company is not liable for the willful 
 act of one of its employes. {Whittaker v. The Eighth 
 ave. B. B., 51 N. Y. B., 295.) 
 
OHAPTEE VI. 
 
 SIDEWALKS. 
 
 By Laws of 1860 eh. 61, as amended by Laws of 1876, 
 ch. 340, it shall be lawful for any person owning or 
 occupying lands adjoirfing a highway, road or lane, to 
 construct a sidewalk within said highway, road or lane, 
 along the line of such lands or the lands of others, 
 with the consent of such other owner or owners, and 
 when a sidewalk shall be or has been so constructed, 
 every person or persons who shall ride, drive, or lead a 
 horse or team upon any such sidewalk, except for the 
 purposes of crossing the same, shall forfeit not less than 
 two nor more than five dollars for each offense, in the 
 discretion of the court, one-half for the use of the com- 
 plainant and the other half to the overseer of the road 
 district, to be expended in the improvement of sidewalks 
 therein, to be recovered in any court having cognizance 
 thereof, with costs of suit. 
 
 Whenever any owner or occupant of any such land 
 shall refuse or neglect to prosecute for the forfeiture 
 incurred by such trespass, it shall be lawful for any 
 other party or person interested, or who shall reside in 
 the said district in which the sidewalk is constructed, 
 to prosecute in his own name the person or persons so 
 incurring such forfeiture, the proceeds of which shall 
 go, one-half to the prosecutor for his trouble and ex- 
 pense, and the other half for the improvement of side- 
 walks, as in section first. 
 
5T 
 
 Shade Trees. — All persons owning lands fronting 
 upon any highway (except in cities and incorporated 
 villages), may make and have sidewalks along such 
 land in the highway, and may plant and have shade 
 trees along the road side of such sidewalks ; such side- 
 walks, with shade trees, shall not extend more than six 
 feet in width from the outward hne of such highway to 
 the hne of the center of such shade trees ; provided 
 such highway is not more than three rods wide. In all 
 cases where the highway is more than three rods wide 
 the central line of such shade trees may be extended 
 into the highway, from its outward line, a distance 
 equal to one-fifth part of the width of such highway ; 
 provided such central hne shall in no case exceed eleven 
 feet from the said outward hne of such highway ; and 
 for the protection of such walks or trees they may also 
 construct a railing of one bar, of not more than three 
 and a half feet in height, with posts and with openings 
 at convenient distances, so as in nowise to prevent foot 
 passengers from using such walks, upon the road sides 
 adjacent and within two and a half feet of such trees, 
 or, if there are no trees, then upon the road side of such 
 sidewalks, on the same line on which trees may be 
 planted as herein above provided. 
 
 But no trees of the kinds named in chapter three hun- 
 dred and twenty-two of the Laws of eighteen hundred 
 and sixty -nine, shall be planted nearer together than is 
 therein provided, (iaws o/ 1874, ch. 570.) 
 
 By the second section of the above act it is made a 
 misdemeanor, subject to a fine of fifty dollars or impris- 
 onment of thirty days, to injure in any way the trees 
 so planted. 
 
 The act of 1863 (chapter 93), authorizing the making 
 
68 
 
 of sidewalks and planting shade trees along highways, 
 ebc, is not repugnant to, and does not repeal the act 
 of 1860, chapter 61. {Anderson v. Van Tassel, 53 N. 
 Y. B. 631.) 
 
 By Laws of 1875, chapter 215, it is unlawful for any 
 person or persons whatsoever in this State, to hitch any 
 horse or other animal to, or leave the same standing 
 near enough to, to injure any fruit or forest tree that 
 has been transplanted or used as a shade or ornamental 
 tree around any schoolhouse, church or public buUding 
 or along any pubhc highway. 
 
 § 2. Any person or persons guilty of violating the 
 provisions of section 1 of this act, shall be hable to 
 prosecution by any person, before any justice of the 
 peace in the town where the offense is committed, and 
 punishable by a fine not exceeding ten dollars nor less 
 than one dollar, . besides the costs of the action ; and 
 every such penalty when collected shall be paid, by the 
 justice, one half to the overseer of the poor of the town 
 in which recovery was had, and the remainder to com- 
 plainant ; and the same process and means for the col- 
 lection of the penalties imposed by this act may be 
 issued and had as are now allowed by law for the col- 
 lection of damages in actions of tort, but no provision 
 of this act shall operate to interfere with any ordinance 
 of the incorporated villages and cities of this State 
 intended to secure the protection of shade trees therein. 
 
 Duty of Corporation to Repair. — A person who inter- 
 feres with a sidewalk in a city, and leaves it in a dan- 
 gerous condition, is hable for injuries caused thereby, 
 irrespective of any permission from the authorities. 
 {Sexton V. Zett, 44 N. Y. 430 ; hut see 66 N. Y. R. 334 ; 
 Irwin V. Wood, 4 Rob. 138 ; 5 id. 482.) 
 
59 
 
 A cover to a coal hole in the sidewalk is a part of the 
 highway, and must be kept as secure as the sidewalk 
 itself. {Whalen v. Gloucester, 4 Hun, 24, and cases 
 there cited.) 
 
 Liabihty of a corporation does not depend on whether 
 it has funds in its treasury to pay for the same, but 
 upon the question whether or not it has the power to 
 raise funds to defray such expenses. {Peach v. City of 
 Utica, 10 Hun, 477 ; Weed v. Village of Ballston Spa, 
 Ct. of Appeals, March 18, 1879.) 
 
 As to whether a city is liable for a runaway horse 
 striking a hydrant nozzle projecting four inches from 
 the gutter. {8ee Ring v. City of Cohoes, N. Y. Ct. of 
 Appeals, April 15, 1879.) 
 
 Where the charter of a municipal corporation author- 
 ized it to repair the streets and sidewalks i;hereof and to 
 collect the amount by assessment, it may cause repairs 
 to be made to a sidewalk along and upon land owned by 
 a turnpike road within the limits of the city, and may 
 assess the expense thereof upon the owners of the lands 
 abutting thereon. {Elmendorf v. City of Albany, 17 
 Hun, 81.) 
 
 Where a village was held Uable for negUgence in 
 allowing a sidewalk to be out of repair, held that, in 
 the absence of statute or contract, no right of action to 
 indemnify the village lay against the owner of adjoin- 
 ing lands. {Village of Fulton v. Tucker, 5 N. Y. Sup. 
 621.) 
 
 Ice and Snow on Walk. — A municipal corporation is 
 bound to keep and maintain the streets and sidewalks 
 
60 
 
 in safe condition for use, in the usual mode, and is Kable 
 for any injuries to individuals resulting therefrom. 
 {Clemence v. City of Auburn, 66 N. Y. B. 334, and 
 cases cited.) 
 
 The mere fact that there is ice upon a city sidewalk 
 does not necessarily estabhsh that it is dangerous ; a 
 person having knowledge of the fact is simply bound to 
 exercise such care and caution as a person of ordinary 
 prudence would exercise. {Evans v. Citf of Utica, 69 
 N. Y. B. 166.) 
 
 An injunction hes at the suit of an abutting house 
 .owner, to enjoin a street railroad company from leaving 
 the snaw, which it removes from its tracks, heaped up 
 between their and plaintiff's premises for a longer 
 period than reasonably requisite for taking it away. 
 {Prime J. Twenty-third St. B. B. 1 Abb. N. C. 63.) 
 
 Law of the Boad. — An injured party cannot maintain 
 an action when his own negligence contributed to the 
 injury. {Welling v. Judge, 40 Barb. 193.) 
 
 Travelers on Foot. — A foot passenger has no priority 
 of right over vehicles in the streets of the city of New 
 York, and the former must act with prudence. {Belton 
 V. Baxter, et al. , 54 N. Y. B. 245 ; Barker v. Savage, et 
 al., 45 N. Y. B. 191.) 
 
 They have equal rights. , {BrooJcs v. Sechwerin, 54 N. 
 Y. B., 343.) 
 
 The citizen must yield the right of way at railroad 
 crossings. {Warner v. N. Y. C. B. B. Co., 44 N. Y. B. 
 465.) 
 
61 
 
 The conductor of a street car is not a driver of a car- 
 riage within the meaning of section 6, IE. S., 696, and 
 therefore the company is not hable for his willful act. 
 {Isaacs V. Third ave. R. B., 4r1 N. Y. B., 122.) 
 
 Cattle in Highways. — By Laws of 1872, ch. 776, 
 amending laws of 1862, 1867 and 1869, it shall not be 
 lawful for a,ny cattle, horses, sheep, swine or goats 
 to run at lafge or to be herded or pastured, in any 
 pubhc street, park, place or_ highway ia this State, 
 and it shall be the duty of every overseer of highways 
 within his road district, and of every street commis- 
 sioner in any incorporated village, who shall have 
 personal knowledge, or who shall be notified of any 
 viqlation of this act, to seize and to take into his 
 possession, and to keep until disposed of according to 
 law, any animal so found running at large or being 
 herded or pastured, and any person suffering or per- 
 mitting any animal to so run at large, or be herded or 
 pastured in violation of this section, shall forfeit a pen- 
 alty of five doUars for every horse, swine or cattle, and 
 one doUar for every sheep or goat so found, to be recov- 
 ered by civil action, by any inhabitant of the town in 
 his own name, or in the name of the overseer of the 
 poor of the town, or the proceedings hereinafter pro- 
 vided. 
 
 The statute of 1862, ch. 452, as amended in 1867, 814 
 §2, which gives a remedy for injuries by cattle trespass- 
 ing, appUes only to cattle trespassing upon the preniises 
 from the highway ; it has no appUcation to the case of 
 a trespass by the cattle of one gaining access through 
 a division fence to the lands of an adjoining owner. 
 (:Jones V. Sheldon, 50 N. Y. B, 477.) 
 
62 
 
 The seizure of animals at large in public highways, 
 under this act, is constitutional. {Campbell v. Evans, 
 54 Barb., 566.) 
 
 It is no defence to an action for the penalty under 
 this act, that the cattle had escaped by the breaking 
 down of fences by an unruly cow, or by reason of ' de- 
 fective fences. {Cotton v. Maurer, 1 N. Y. Sup. 481.) 
 
 It is unlawful to allow horses to run at large, in the 
 highway. {Power v. Burlew, 3 N. Y. Sup. 362.) 
 
 Summons. — Irregularity of the summons issued by 
 the justice, or omission to post it, does not affect the 
 right of one who has seized cattle trespassing, to Jiold 
 them. 
 
 The justice has a Ken on the cattle for payment of 
 the fine. {Leavitt v. Thompson, 52 N. Y. R. 62.) 
 
 Penalties may be recovered, for cattle running at 
 large, more than one year after the offense. {Cotton v. 
 Maurer, 5 N. Y. Slip. 575.) 
 
 Menageries. — By theLawsof 1862, chapter 112, it shall 
 not be lawful for any owner or owners of any wild or 
 rare animal, native or imported, which shall be used 
 for exhibition in any menagerie or show, or owned or 
 possessed for the purpose of so exhibiting the same, to 
 convey or cause to be conveyed, or led or driven, over, 
 through or upon any pubhc highway, road or street, 
 such wild or rare animal, unless such owner or owners 
 shall send before the same a person of mature age, at 
 least one-half of a mile in advance, to notify and warn 
 persons travehng or using said highway, road or street. 
 
63 
 
 with horses or other domestic animals liable to be 
 frightened by such wild or rare animal, of the approach 
 of such animal. Any such owner using any public 
 high^y^ay, road or street, in violation of the provisions 
 of this act, shall be deemed guilty of a misdemeanor, 
 and may be punished, on conviction, by fine, not exceed- 
 ing one hundred dollars, or by imprisonment in a 
 county jail not exceeding ninety days, or by both such 
 fine and imprisonment, in the discretion of the court 
 before which such conviction shall be had. 
 
 Ways and Private Roads. — The consent of the per- 
 sons, over whose lands the proposed private road is to 
 be laid, must be obtained before laying out the road. 
 {Dempsey v. Kipp, 62 Barb. 311.) 
 
 Parties who agree upon the jurors, cannot, upon 
 appeal, object that it does not appear that such jurors 
 were freeholders. {People v. Taylor, 34 Barh. 481.) 
 
 Plank Roads and Turnpikes. — An agreement grant- 
 ing to a turnpike company the use* of a highway for- 
 ever, is not void for excess of authority. {Town of 
 Fishkill V. Fishkill & B. Turnpike Co., 22 Barb. 634.) 
 
 The legislature may revoke the excess of authority 
 with consent of other party. {People v. Fishkill & B. 
 Turnpike Co., 27 Barb. 445.) 
 
 By Laws of 18Y9, chapter 214, section 1, 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. 
 
64 
 
 § 2. Nothing contained in this act shall permit or 
 authorize the using of steam on any plank road or 
 turnpike. 
 
 Inspectors of JPlank Boads. — By Laws of 18Y2, chap- 
 ter 779, the commissioners were to act as inspectors of 
 plank roads, on complaint of three freeholders, but by 
 the Laws of 1873, chapter 440, as amended by the Laws 
 of 1877, chapter 164, it is made the duty of said officers 
 to personally inspect the whole of such plank or turn- 
 pike roads, or such part thereof as he in their respective 
 towns,- villages or cities, at least once in each month ; 
 and in case the same shall be out of repair or in such 
 condition that the same cannot be conveniently used by 
 the pubhc, to give notice in writing thereof, immedi- 
 ately 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 such road shall be fully 
 repaired, or be in proper condition, to the satisfaction 
 of said officers or a majority thereof. The notice to 
 said toU gatherer shall point out the part of such road 
 to which the said officers shall object. The fees of each 
 of said officers for the services in this section mentioned 
 shall be two dollars for each day actually employed in 
 such service, to be paid by the corporation 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 com- 
 missioners of highways. Any party feeling himself 
 
65 
 
 aggrieved by the order of said plank road inspectors 
 raay 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 inspectors, and a copy 
 thereof shall be filed in the county clerk's office. The 
 appeal may be brought on to hearing upon a notice of 
 not less than five days, and the county court shall 
 always be open for the purpose of hearing and deter- 
 mining such appeal. The said court shall proceed to 
 hear said appeal, and after hearing the proofs and alle- 
 gations of the parties, may affirm, reverse or modify 
 said order. During the pendency of such appeal said 
 toU gate or gates shall remain open. 
 
 This act does not apply to Clinton, Chenango, Seneca, 
 Queens, Orange, Essex, Cayuga, Madison and Steuben 
 counties {Laws of 1874, ch. 224), or Montgomery {Laws 
 18Y5, ch. 530). 
 
 Fees. — By Laws of 1873, chapter 440, section 3, when 
 the commissioners are engaged as inspectors of plank 
 roads or turnpikes, the fees are two dollars for each day 
 actually employed, to be paid by the corporation or per- 
 sons whose road shaU be inspected, in case the toU gates 
 are to be thrown open, but otherwise, to be charged, 
 audited and paid the same as other fees and expenses 
 of highway commissioners. 
 
INDEX. 
 
 Abandoned street, effect of adjacent owner's improve- 
 ments upon, 41 
 
 roads, use of as public highways, 41 
 
 AbandonmeM, oi public highway, 41 
 
 Abatement of taxes, for water trough 27 
 
 for removing fence, 28 
 
 for shade trees, 27 
 
 ^ciion, for defect in street, 55 
 
 for encroachment, 43 
 
 by or against commissioners, 20 
 
 Altering or discontinuing highways, 39 
 
 Appeals, 44 
 
 Application, notice of, 31 
 
 Appointment of overseer, 20 
 
 Assessment oi highway labor, 21, 22 
 
 of damages in laying out, * 41 
 
 of railroad property, • 22 
 
 Bridges, hetween two towns, 54 
 
 liability of commissioners as to, 9, 10, 51 
 
 money for repair of, , 13 
 
 notice on,... 53 
 
 power of supervisors in regard to, 50 
 
 over bays, lakes, etc., 54 
 
 reported unsafe 10 
 
 Bond, on application to lay out highway, 31 
 
 how to be disposed of, 18 
 
 Canals are highways, 5 
 
68 
 
 CaWfo, in highways, 61 
 
 trespassing, 61 
 
 Cemetery, is exempt from taxation, 24 
 
 Certiorari, 46 
 
 Oonvmutation,\)j railroad, ■ 25 
 
 Commissioners of two towns cannot join in an action, 51 
 
 liability of, as to bridges, 51 
 
 trustees of villages are, 8 
 
 appeal from, 44 
 
 • action against successor, 20 
 
 special, 20 
 
 judgment against, 20 
 
 de facto, acts of are valid, 9 
 
 are fence viewers, •••• 9 
 
 should all sign order laying out highways, 29 
 
 actions by or aga,inst, 20 
 
 must all meet, • 40 
 
 right to require bond from applicant, 31 
 
 one cannot authorize another to sign, 8 
 
 election of, • 8 
 
 are inspectors of highway,, 8 
 
 duties of J 9 
 
 Costs, 45 
 
 County judge cannot appoint justice of the peace to act 
 
 in his place, 44 
 
 Corporate existence, extension of, 57 
 
 DamageSjhow assessed, .' ,.... 41 
 
 who entitled to, 42 
 
 to be audited by supervisors, 44 
 
 J9ecmow, notice, and effect of, 45 
 
 Dedication, csinnot be revoked by fencing, 1 
 
 Discontinuance of ■part oi a, highyrsij, 41 
 
 Discontinuing, highway, 39 
 
 by non-user, 40 
 
 Duties, oi referee, 44 
 
 Elevated railroad,..'. 55 
 
Encroachment, what is, 48 
 
 fences, when, 48 
 
 penalty for, 49 
 
 JElxtending corporate existence, 37 
 
 Exempt lands, 24 
 
 Fee in highways,. 6 
 
 Fees of inspectors of plank roads, 65 
 
 Fences, when encroachment, 48 
 
 abatement of taxes for removing, 28 
 
 Fence-viewers, commissioners are, 9 
 
 Filing, of assessment, effect of, ■. 43 
 
 papers,. 31, 38 
 
 JPoot-passengers, ■. 60 
 
 Formation of new road districts, 12 
 
 Garden, must be cultivated as such, 30 
 
 Graveyard, road cannot be laid out through, 31 
 
 Highways, changing system of working, 16 
 
 laid out across railroad tracks, 35 
 
 Indictment, remedy by, , 57 
 
 Injectors, commissioners are, 8 
 
 fees of, 65 
 
 of plank roads, 64 
 
 Judgment, how collected, 20 
 
 Jury, justice of peace is not required to charge, 35 
 
 Jurors, 43 
 
 Justice, cannot act in place of judge, -44 
 
 power of, 20 
 
 Labor on highways, 25 
 
 assessment of, 21 
 
 additional labor to remove snow, 22 
 
 Law of the road, 60 
 
 Laying out highways, 28 
 
 proceedings on, 32 
 
 between towns, 35 
 
 road through orchard, 30 
 
 irregularity in, how cured, 29 
 
1® 
 
 Laying out highway across railroad tracks, 35 
 
 Liability, of city to repair streets, 12 
 
 of towns, 12 
 
 of railroad to repair street, 12 
 
 Menageries, must give warning, 62 
 
 Militia, exempt from highway labor, 12' 
 
 Money, ra\mig for repairing bridges, 13 
 
 raised for highways, to whom paid, 14 
 
 commissioner has no power to borrow, 20 
 
 supervisors have power to direct commissioners to 
 
 borrow, 17 
 
 JVbn-resident taxes, 23 
 
 labor unpaid, 26 
 
 taxes, how laid out, , 19 
 
 iVbw-Mser, discontinuance by, 40 
 
 Notice, of appeal must be served, on all of the commis- 
 sioners, 43 
 
 of application to lay out, 31 
 
 on bridge, 53 
 
 service of, 49 
 
 of decision, 45 
 
 Nuisance,. 47 
 
 Obstructions, what are allowable, 47 
 
 what are not allowable, 48 
 
 OrcAarc?, laying out road through, 30 
 
 Overseer, appointment of, 20 
 
 powersof, 21 
 
 Owner, meaning of word, 42 
 
 Owner of fee, liability of, 6 
 
 Penalty, for encroachment, 49 
 
 for allowing weeds to grow, 50 
 
 Performance of highway labor, 25 
 
 Petition, filing of, 31 
 
 Piers, declared highways, 5 
 
 Plank road, or turnpike company may lay iron rails, ,. 63 
 
 Planlc roads and turnpikes, 63 
 
n 
 
 Private roads, 63 
 
 Processions, laws regulating, 48 
 
 Proceedings, on laying out highways, , 32 
 
 Mafts, continuously moored, an encroachment, 48 
 
 Railroad, in street, 54 
 
 elevated, 55 
 
 liability of, to repair street, 12 
 
 liability of, in crossing street, 12 
 
 may commute, 25 
 
 right of public to drive on track, 55 
 
 Re-assessment, 43 
 
 Referees, power and duties of, 44 
 
 Repair of sidewalk, 68 
 
 Roads, in villages, 24 
 
 private, 63 
 
 Road districts, formation of, 13 
 
 consolidation of, , 13 
 
 Service oi notice, 49 
 
 Shade trees, 57 
 
 tying horses to, 58 
 
 Sidewalks, , 56 
 
 repair of, 58 
 
 coalhole in, , ' 59 
 
 Snow, on sidewalk, 59 
 
 additional labor to remove, 22 
 
 heaped up by street railroad, 60 
 
 Streets, for what purposes used, 6 
 
 action for defect in, 55 
 
 Street raih-oad, 54 
 
 not liable for willful act of employes, 55 
 
 Successor, action against, 20 
 
 Summons, irregularity of, 62 
 
 Supervisors, power of, 51 
 
 Survey, should be incorporated in order, 29 
 
 TJasases, non-resident, 23 
 
 IbMJn, liability of, 12, 21 
 
72 
 
 TVacA, meaning of word, 36 
 
 TVees, abatement of tax for, 27 
 
 Trustees, of villages, 8 
 
 Yillages, roads in, 24 
 
 assessment of labor in, 23 
 
 consent of trustees, when necessary, 20 
 
 Vineyard, shall not be taken for highway, 30 
 
 Water commissioners, 9 
 
 Watering trough, abatement of taxes for, 27 
 
 Water pipes, in highways, 6 
 
 Weeds, laws relating to, 50 
 
 Widening highways, 37, 39 
 
 Working highways, changing system of, 16