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HIGHWAIS, WAYS 
 
 PLANK ROADS. 
 
 STATUTES OF NEW YORK 
 
 , IN KELATION TO 
 
 HIGHWAYS, BRIDGES, FERRIES AND PLANK ROADS, 
 WITH COMMENTARIES: 
 
 ALSO, 
 
 AN APPENDIX, 
 
 CONTAININO 
 
 FORMS A.N"I3 PKEOEDEISTTS. 
 
 EIFTI-I EDITION. 
 
 BY WILLIAM S. BISHOP, 
 
 COUJSrSELLOR AT LAW. 
 
 ROCHESTER, KY.: 
 PtTBLISHED BY STEELE, AVERY &. CO, 
 
 BANKS & BROTHERS, ALBANY. 
 
 J. S. VOORHIES, NEW YORK. 
 
 1859, 
 
bocuestbr: 
 
 A. Strong & Co., PBiirrsBS, 
 
 Pemocrat & American. 
 
ADYERTISEMEKT. 
 
 Four editions of this work having been exhausted, the Editor has 
 prepared another with much care and attention, and he hopes that it may 
 be found convenient and useful to the public. This edition has been 
 carefully revised and corrected, while at the same time many new and 
 important additions have been made. 
 
 To the thousands of public officers who have the control and manage- 
 ment of the Highways in this State, it is thought that this manual, in 
 its present improved and enlarged form, may be peculiarly serviceable. 
 
 Whenever the Highway Law has received any Judicial construction 
 by the Courts, those cases have been, with no inconsiderable labor, col- 
 lected under the sections to which they relate ; so that the decisions of 
 our Courts may be seen at a glance. 
 
 It is hoped, also, that this work may be found very convenient to the 
 profession ; as the Editor has not omitted, as he believes, any decision 
 bearing upon 'this subject; and they can be easily referred to without 
 the trouble of turniug over our Eeports and Digests, by merely look- 
 ing at the appropriate sections. 
 
 The chapter on " Ways," contains brief references to all the Ameri- 
 can Law, on that subject applicable to this State, and also a reference to 
 several English cases, which throw light on that branch of law. 
 There is also a collection of the cases, of the " Law of the Road." 
 The laws in relation to Plank Roads and Turnpikes, with amend- 
 ments which have passed the Legislature, are added, with forms. 
 
 The Laws of ;this State upon the subject of Highways are almost 
 entirely of Statutory regulation. Our Roads are laid out and maintained 
 on a different system from that of England, and differing from nearly 
 all the States in the Union, and in general we cannot receive much assis- 
 tance in the explanation of our Statutes from the decisions of any Courts, 
 except our own. 
 
IV ADVEETISEMENT. 
 
 The Highway Act has long been the Law of this State, aiid in its 
 original form is well known to most of the public officers having charge 
 of that important subject. . Under it thousands and thousands of m.iles 
 of Eoads have been constructed by the peaceful citizen, and the burden 
 slightly felt. Changes and innovations affecting such great interests, and 
 so many individuals, should be adopted with unusual caution. Inju- 
 dicious and hasty legislation would multiply litigation, and be productive 
 of much evil, by creating disturbances and ill-will, in districts and 
 neighborhoods. 
 
OF HIGHWAYS, BEIDGES AND FERRIES. 
 
 TITLE l.-OF HIGHWAYS ANB BRIDGES. 
 TITIiE II.— OF THE REGULATIONS OF FERRIES. 
 
 TITLE I. 
 
 OF HIGHWAYS AND BRIDGES. 
 
 Aet. 1, — Of the officers entrusted ■with the care and superintendence of highways 
 
 and bridges; and their general powers and duties. 
 Akt. 2. — Of the persons liable to work on highways, and the making of assessment 
 
 therefor. 
 Am. 3. — Of the duties of overseers in regard to the performance of labor iipon 
 
 highways, and of the perfoimance of such labor, or the commutation 
 
 therefor. 
 Aet. 4. — Of the laying out of public and private roads, and of the alteration or 
 
 discontinuance thereof. 
 Aet. 5. — Regulations and penalties concerning the obstructing of highways, and 
 
 encroachments thereon. 
 Aet. 6. — Of the erection, repairing, and preservation of bridges. 
 Aet. 7. — Of miscellaneous provisions of a general nature. 
 
 ARTICLE FIRST. 
 
 Of tJie Offieers entrusted with ihe Care and Superintendmee of Highways and Bridges ; 
 and their general Powers and Dviies. , 
 
 The Sections are numbered according to the Fifth Editimi of tte Revised 
 Statutes, unless otherwise marked. ' ' • ' 
 
 The original numbers of the Sections according to the first edition, are retained 
 and included in brackets, thus — § 50. [41] Here § 50 showsthe number according 
 to this work, and 41 is its original number in the R. S. So many amendments 
 have been made since thfi R. S., that this mode became necessary, as the Statutes 
 and decisions of our Courts, refer generally to this first edition. The references in 
 this act also are to the fifth edition. 
 
b HIGHWAYS AND BEIDGES. 
 
 § 1. Commissioners, fhsir duty. — ^The commissioners of high- 
 ways in the several towns in this State, shall have the care and 
 superintendence of the highways and bridges therein : and it 
 shall be their duty, 
 
 1. To give directions for the repairing of the roads and bridges, 
 within their respective towns : 
 
 2. To regulate the roads already laid out, and to alter such of 
 them as they, or a majority of them, shall deem inconvenient: 
 
 3. To cause such of the roads used as highways, as shall have 
 been laid out, but not sufficiently described, and such as shall 
 have been used for twenty years, but not recorded, to be ascer- 
 tained, described and entered of record in the town clert's 
 office : 
 
 4. To cause the highways, and the bridges which are, or may 
 be, erected over streams intersecting highways, to be kept in 
 repair : 
 
 6. To divide their respective towns into so many road dis- 
 tricts as they shall judge convenient, by writing under their 
 hands, to be lodged with the town clerk, and by him to be 
 entered in the town book ; such division to be made annually, 
 if they shall think it necessary, and in all cases to be made at 
 least ten days before the annual town meeting : 
 
 6. Highway work. — ^To assign to each of the said road dis- 
 tricts such of the inhabitants liable to work on highways as they 
 shall think proper, having regard to proximity of residence as 
 much as may be ; provided however that whenever the commis- 
 sioners of any town shall have neglected, for the period of one 
 year at any time after any public road or highway shall have 
 been laid out and title thereto acquired by due process of law, 
 to open or work the same or any part thereof, and whenever any 
 number of inhabitants of any town, in or through which the said 
 road has been laid out, shall have given ten days' notice to the 
 commissioners of said town that they desire to apply the whole 
 or any part of their highway labor to the working of said road, 
 the said commissioners shall forthwith assign the said inhabi- 
 tants to such road, direct the highway labor, for which they are 
 annually assessed, to be applied to the same, and cause the same 
 to be worked and put in good oi'der for vehicles and travelers, 
 within one year, under the direction of any of the said inhabi- 
 tants whom such commissioners may appoint as an overseer of 
 the labor so to be applied to such road ; and when the number 
 of days' labor assessed in the curi-ent year to such inhabitants, 
 as their annual highway tax is not sufficient to put such road in 
 good order, as aforesaid, then the said inhabitants may antici- 
 pate the whole or any part of the highway lafior assessed, and to 
 be assessed againsfr tiem, for a period not exceeding three years; 
 but from no one of the districts into which the said town is 
 
HIGHWAYS AND BEIDGES. t 
 
 divided shall more than one-half of its annual labor be taken 
 and applied to any road not embraced in said district, [as amen- 
 ded 1853, ch. 63.] 
 
 7. To require the overseers of highways, from time to time, 
 and as often as they shall deem , necessary, to warn all persons 
 assessed to work on highways, to come and work thereon, with 
 such implements, carriages, cattle or sleds, as the said commis- 
 sioners, or any one of them shall direct. 
 
 The 6th subdivision was amended, see Laws of 1853, page 87, and is here 
 inserted as amended. 
 
 By the act of May 10, 1345, Session Laws, page 183 ; as amended by the act of 
 December, Laws of 1847, page 580 ; it is provided that the several towns may choose 
 one or three commissioners ; and therefore when the word commissioner is used in 
 this act, it is to be nnderstood the same as though it read the commissioner or com- 
 missioners of a town. The words of the act are as follows : 
 
 " The electors of each town shall have power at their annual town meeting, to 
 determine by resolution, whether tliere shall be chosen one or three highway com- 
 missioners, and the number so deterrpined upon shall be balloted for and chosen ; 
 and if only one shall be determined upon and chosen, he shall possess all the 
 powers, and discharge all the duties of commissioner of highways, as prescribed by 
 Jaw, and shall hold his office for one yeai\ And whenever ihree commissioners 
 shall be chosen in any town, they shall be divided by lot by the canvassers, upon 
 the result of the canvass, into three classes, to be numbered one, two, three ; and 
 the term of office of the fiist class shall be one year, of the second, two, and of the 
 third, three; and one commissioner only shall thereafter annually be elected in such 
 town, who shall hold his office for three years, and until a successor shall be duly 
 elected ois appointed. But in case any commissioner shall be elected to fill a va- 
 cancy, he shall hold the office only for the unexpired term which shall become vacant." 
 
 " And if two vacancies shall be required to be filled, the canvassers shall, after 
 the canvass determine by lot as aforesaid, the terms they shall respectively hold. 
 And when any vacancy shall happen by death, removal, resignation, neglect to 
 qualify, or refusal to serve, it shall be supplied until the next succeeding town meet- 
 ing, by an appointment in writing, under the hands of any three justices of the 
 peace, or two justices of the peace and the Wpervisor of the town ; and every com- 
 missioner of highways shall be authorized to administer oaths to any witnesses or 
 juries, in proceedings which may be had by or before them ; and whenever any 
 town shall have determined upon having three commissioners, and shall desire to 
 return two gr have but one, such town shall have the power so to do by a resolution 
 taken at an annual town meeting, and when such resolution shall have been 
 adopted, no other commissioner shall be elected or appointed, until the term or 
 terms of those in office, at the time of adopting such resolution, shall expire or 
 become vacant, and they shall have power to act until their terms shall severally 
 become vacant or expire, as fully as if the three continued in office." 
 
 " Every commissioner of highways hereafter to be elected or appointed, shall 
 "before entering upon his duties, and within ten days after notice of his election or 
 " appointment, execute to the supervisor of his town, a bond with two sureties, to be 
 '■ approved by the supervisor by an endorsement thereon, and filed with him, in 
 " the penal sum of one thousand dollars, conditioned that he will faithfully dis- 
 " charge his duties as such commissioner, and within ten days after the expiration 
 " of his term of office, pay over to his successor what money may be remaining in 
 " his hands as such commissioner, and render to such successor a true account of all 
 "moneys received and paid out by him as such commissioner."— &«s»o« Zoms of 
 1845, pas'* 183. 
 
 In case of failure to perform his duty this bond must be prosecuted in the name 
 of the supervisor of the town, according to the decision in the case of duller vs. 
 Pullerton, [Ji.i Barb. 59.) where it was decided that a bond given by a town super- , 
 intendent of Common Schools, must be brought in the name of the supervisor, as 
 the bond is given to him and successors in office. No authority is given for a com- 
 missioner to sue his predecessor on the bond. See also Jansen. vs. Ostrander, (1 
 Cowen R. 670,) and Armine vs. Spencer, (4 Wend. 406.) 
 
8 HIGHWATS AND BEIDGES. 
 
 A commissioner of highways must bo an elector of the town, 1 E. S.BS5, J 31, 
 They are to be chosen in each town at the annual town meeting. 1 Ji. 8.,-815, 
 §3. 
 
 The recent act makes an alteration in supplying a vacancy occasioned by death, 
 removal or resignation. By thel R.S, 828, § 59, 5th Ed. The town clerk should call a 
 special town meeting within eight days after the happening of the vacancy, and if 
 the electors of the town did not within fifteen days after the happening of the 
 vacancy fill the office, the justices of the peace of the town should make the 
 appointment. The vacancy C£(n now be supplied by two justices until the next 
 annual town meeting. This provision may lead to difficulty, %s two justices may 
 appoint one person, and the other two justices in town appoint another. The 
 two that act first will probably be deemed to have accjuired the power. _ i 
 
 There is also a new power conferred on the commissioners, of administi"ing oaths 
 to witnesses and juries. See ante page 7. 
 
 When there is a failure to elect at the annual town meeting, in consequence of a 
 tie in the votes, and the meeting adjourns without making an election, the justices 
 of the town may make the appointment. The People vs. Van Home, (18 Wend. 515.) 
 
 Care and Superintendence. — These words confer upon the commissioners 
 the general control and oversight of all highways and bridges in their town ; but 
 it should not be understood as giving them any power over other officers intrusted 
 with duties in relation to highways, except as given by statute. 
 
 Indeed, the commissioners, together wiljh the overseers, have the exclusive care 
 and superintendence of the roads in a town. 
 
 The town, as a corpoi'ation, has nothing to do with, and no' interest in, the high- 
 ways within its limts. The title to the soil is in individuals. The right to their 
 use, belongs ;toi!the inhabitants of the towri, in common with the whole public. 
 
 The roads .are not the property of the town as a corporation, nor is the town, as a 
 town, responsible for their condition or their repair. (Town of Pishh'dl vs. Flank E. 
 Co., a2 JBarb. 634.) (Morey vs. New Fane. 8 Barb. 645 ;) (2 Kernan, 52.3 
 
 Highways and Bridges. — Public highways and bridges : not those made 
 by individuiUs unless they have become public l^y the acts of the individuals, or 
 by the commissioners in the manner set forth in the fourth article of this act. 
 
 Any individual may lay out a way or thoroughfare through his own land, and 
 may dedicate it as such to the public use. But such dedication does not impose upon 
 the town in which the lands lie, the duty of improving or of keeping in repair, as a 
 public highway, the land fo dedicated. (T'he City of Osweqo vs. Oswego 0. Co., 2 
 Seld. 257.) (See 2 Kern. 56.) 
 
 Note. — In this act the term road, is used synonymously with highway. {Fowler vs- 
 ' Lansing, 9 John. E, 349 ) 
 
 To give Directions.— Sub. 1. By this subdivision it is the duty of the com- 
 missioners, and they have the authority to direct the overseer as to the general man- 
 ner he shall improve the ijiads or bridges in his district. As for instance, the grade 
 of the road, how drained or leveled, or in what manner a bridge shall be repaired. 
 
 The overseer is subordinate to the commissioners. The principal duties of the 
 overseers are to warn persons to work, to see that they do work, and to collect fines 
 and commutation money. The commissioners have the exclusive control in direct- 
 ing the manner in which bridges shall be repaired, and on this subject are the per- 
 sons responsible to the public, and not the overseers See notes under section 6, and 
 Bartlettvs. Orozier, {11 Johns, R. 453.) and cases therein cited. 
 
 An overseer, however, is liable for not removing .obstructions in the highway, 
 although not specially required by the commissioners. McFadden vs. Kinsburv, 
 Cll Wendell, 661.) " 
 
 To Regulate and Alter RoadS.-SuE. 2. That is to restore the boundaries 
 
 and fences of a highway to its original lines ; and if it passes by or through an in- 
 
 • convenient place, they may change its location ; but if in making the alteration it 
 
 IS necessary to take impruved or cultivated lands, damages must be paid and the 
 
 same course talcen as on an original locatioii of a new ro^d. 
 
HIGHWAYS AND BEIDGES. if 
 
 It is said that roads cannot be enlarged without compensatioi). ( Wiffgins vs. 
 Tallmadge, 11 Barh., 463.) 
 
 To ascertain and describe Roads.— Sub. 3. This subdivision authorizes 
 
 the commissioners. in their respective towns, to cause such of the Joads as are not 
 ah'eady described and recorded, to be ascertained, described, and entered of record. 
 This authority necessarily implies and presupposes an omission of some of the 
 requisites to the establishment of a public highway. 
 
 In the case of The People vs. Judge of Cortland, O. (24 Wend,, 491,) the commis- 
 sioners of highways of Cortlandville, made an order adjudging that a certain road 
 in that town ■ particularly designated, had been used as a publie highway for twenty 
 years but had not been recorded; and they thereupon proceeded to ascertain, describe 
 and enter the road of record, in the town clerk's ofKce. Peck appealed to thejudge.s. 
 From the return it appeared that the commissioners in their order declared the road 
 to be three rods wide, and they insisted before the judges that this was tlio width 
 originally intended. It was proved before the judges that ihe road never was 
 opened more than two rods wide. Judge Bbonson says : " This provision does not 
 authorize the commissioners to say what was ' originally intended,' either by the 
 owner of the soil or any one el.se, in re'ation to tlie width or location of the road, 
 any further tiaan such intention ha§ been manifested by permitting the way. to be 
 used. It is a power in relation to the road as it actually exists and has existed for the 
 last twenty years. It does not authorize the commissioners to create or enlarge but 
 only to perpetuate the evidence of a public right. Both the extent and fact of ded- 
 ication depend on the user ; and the public must take secundum forma doni. , On 
 the facts returned by the judges, it is clear that the commissioners exceeded their 
 powers, and the only question is, whether Peck had a remedy by appeal." 
 
 It was held that the party aggrieved had no remedy by appeal to the judges of 
 the county in which the road is situated. 
 
 Judge BaoNsoN says: "There was some reason for not making the right of 
 appeal co-extensive with the powers of the commissioners. In opening new roads, 
 and altering and .shutting up old ones, the commissioners act j"udicially, and in 
 matters materially affecting the interests of individuals. But in describing and 
 recording a road which has already become public by twenty years' use, they per- 
 form little more than a ministerial duty,' and third persons cannot be materially 
 affected, for ihe reason that the owner has already dedicated the .soil, and nothins: is 
 wanting but record evidence of the existing public right. So where a road already 
 laid out but not sufficiently described, is described and enteied of record, sub. 3, 
 they do little more than perfect and preserve tlie evidence of an existing public 
 right, and no appeal has bee/i given." 
 
 The Court do not say what j-emedy the party woujd have, probably as the com- 
 missioners have no power to include lands which never formed a part of the high- 
 way, so far as they (exceeded their powers their order would be voitl. Bee also. 
 Golden vs. Thwber, (2 John. iJ.,424.) 
 
 It does not seem to require an order or certificate to be signed by the commis- 
 sioners other than the town record. It merely directs that it shall be entered of 
 record. It would be the better mode for the commissioners to make a written 
 order, sign it, and have the town clerk record it. See forms. Appendix So. 1 and 2. 
 
 To keep Bridges, &C., in Repair. — Sun. 4. The commissioners for 
 neglect of duty under this subdivision, are liable, 1st, to an indictment ; and 2d, in 
 some cases to a private suit, in behalf of an individual ; and 3d, they may be com- 
 pelled to proceed by mandamus. 
 
 1. It appears to be very clearly settled by the decisions of our Courts, that an 
 indictment will not lie against the commissioners unless they have the ineans in 
 their hands to make the necessary repairs. 
 
 This point is ruled in The People vs. Adsit, (2 Hill, 619.) which was an indict- 
 ment against commissioners for neglect of duty in not repairing a bridge. The 
 indictment contained no averment that the defendants had funds or other means to 
 defray the expense, and the Court ^jvere of opinion, that the existence of the funds 
 or other specific means, was a condition precedent to the obligation of the commis- 
 sioners to repair. 
 
 Ill the case of Barker vs. Loomis, (6 Hill, 463.) it was held that commissioners 
 were not bound to build or repair roads or bridges until the necessary funds were 
 provided for that purpose. {Adsit vs. Brady, 4 Hill, 630.) (fionrad vs. Trustees of 
 
10 HIGHWAYS AND BEIDGES. 
 
 ' lihaca.lS N.Y.Rep., 158.) Weed vs. Brochport, qanleA, (16 IT.T.R., page 161,) were 
 all civil suits, and the two last jveie decided on the gi-ound that the trustees repre- 
 sented the corporation, and therefore were under different responsibilities from 
 commissioners pf towns. 
 
 2. Will a civil action lie against commissioners for neglecting' to keep bridges or 
 roads in repair ? 
 
 This is an important question, and on which there has been a conflict of opinion. 
 
 In {Bartlett vs. Crazier, 17 John., 439,) an action was brought against the overseers 
 of highways for injury cavrsed by the omission to repair a bridge. Chancellor Kekt, 
 who delivered the opinion of the Court, came to the conclusion that no action would 
 lie against the overseers, because they act only under the orders of the commissioners, 
 who alone are the responsible persons in respect to the repair of bridges. 
 
 The Statute gave them the care and superintendence of the highways and bridges, 
 and made it their duly to cause them to be kept in repair. In that case, he held that, 
 that duty did not exist absolutely, but only when the commissioners had funds in 
 hand^ and inasmuch as the law had not supplied them with pecuniary means, nor 
 armed them with the coercive power to meet and sustain so heavy a responsibility, 
 an action would not lie against them. Smith vs. Wright, (24 Barb., 170.) Also, 
 Barbor vs. Loomis, (6 Hiil, 463.) Smith vs. Wright, (12 How., 555.) AdsU vs. 
 BracUy, (4 Hill, 630.) Hutson vs. City New York, (5 Smid. S. C. R., 289.) (1 Denio, 
 .510.) 
 
 In view of these decisions it would appear to be well settled, that in all cases the 
 duty to repair is unquestionable, when means are provided by law for that purpose. 
 That the commissioners, if tiey have the means, or have the power of being sup- 
 plied with the means, and neglect to use and exercise the same, are liable for any 
 injury which may result from their neglect of duty. Cristman vs. Paid, (16 Bow., 
 17.) Eaul, Countj Judge, holds that a civil action will not lie. 
 
 Judge Seldbk in the Supreme Court, in Weed vs. Brockport, 16 N. Y., on page 
 169, says : " Notwithstanding the case of Adsit vs. Bradly, 1 venture to assume that 
 " commissioners of highways are not liable to a civil action for a mere omission to 
 " keep the highways of this town in repair." How far the Court of Appeals adopt- 
 ed the opinion of Judge Selden, in Conrad vs. Trustees of Ithaca, {16 N.Y. Rep., 158,) 
 does not precisely appear, and as it was not necessary to the decision of the case, 
 they will not feel bound by it 
 
 3. A mandamus to compel the commissioners to build or repair a bridge will only 
 lie when they have the means. The People vs. Commi'ssioners of Hudson, (7 Wend., 474.) 
 
 The system of making towns responsible for the repair of roads, as practiced in 
 imost of the New England States, has never been adopted in this State. 
 
 In England, 'this duty is devolved upon the parishes. This obligation is abso- 
 lute and irrespective of any particular resources or means for that purpose. This 
 system has never been adopted in this State. Moray vs. Newfans, (8 Barb., 645.) 
 
 At common law, the duty of repairing public bridges rested upon the county, 
 when no person or other body was specially charged therewith. HiXl vs Super, of 
 /Livingston (7o.,"(2 Kern., 52.) 
 
 This rule does not prevail in this State. The general system enacted by our 
 Statutes, makes the towns primarily liable for the maintenance of highways and 
 bridges. (22 5ar6., 646.) , "^ 
 
 Even the vote of the inhabitants of a town in town meeting, cannot bind the town 
 to pay damages occasioned by a road or bridge being out of repair. (8 Barb., 645 ) 
 It is frequently a question of some difficulty to decide what is the true meaning of 
 the word ■" bridge, ' under this act. 
 
 While no one doubts that the structure over a large stream would be deemed a 
 ■bridge, as the stream becomes smaller it will descend to a culvert, a mere sluice-way, 
 and there is no strict line of demarccUio7t. An overseer is bound no doubt to repau' 
 a.sluiee-wa.y,^hi\e he is not bound to repair a bridge, and would be liable in damages 
 to a person if he^shotild fail to keep a sluice-way in repau- if he had the means, and 
 this duty extends to bridges over small brooks in his district, but when his liabilities 
 and powers cease, depends upon each particular case. 
 
 • 
 
 To divide Town into Road Districts.— Sub. 5. See form in Appendix, 
 2fo. 3. 
 
 To Assign Highway Work.— Sub. 6. Ofcourse, any person living directly 
 ■on a road in a district will ibe assigned to that district ; but some persons may live 
 
HIGHWAYS AND BEIDGEa. 11 
 
 off from any road, liable to work on highways, and they should be assigned to the 
 district most convenient for them. 
 
 When a plank road or turnplkefoad is built upon the site of an old highway, it 
 is made the duty of the commissioners of highways of the town in which such is 
 made, to designate some district or districts within their town on which the high- 
 way labor of the inhabitants residijig along the line of such plank or turnpike road, 
 shall be performed — See thejplank road law on this subject. Laws of 1855, Gh, 495. 
 
 Where a road district was formed from parts of two districts, and was afterwards 
 ordered to be discontinued, the order was held valid, thoiigh it did not expressly, 
 provide for embracing the ten'itory to which it related within any other disti'ict ;the 
 eiiect was to restore the two districts to their original limits. The People vs. Sly 
 and others, 4 JSiU's, 593. 
 
 Sdb. 1. The duty first enjoined in this subdivision, is generally done by delivery 
 of the tax list only. It is the duty of the commissioners, in case there is any neg- 
 ligence on the pai't of the overseer, or if negligence is apprehended, to give a 
 special requirement to the overseer. 
 
 § 2. ^ lay out and disGontinue Roads. — The commissioners 
 of the highways shall have power, in the manner and under the 
 restrictions hereafter provided, to lay out on actual survey, such 
 new roads in their respective towns as they may deem necessary 
 and proper ; and to discontinue such old roads and highways as 
 shall appear to them, on the oaths of twelve freeholders of the 
 same town, to have become tmnecessary. 
 
 The commissioners have the aljsolute power to lay out a road in any part of theii- 
 town under certain restrictions. 
 
 These restrictions are : 1. They cannot lay out a road without the consent of the 
 owner, through any orchard of the growth of four years or more ; nor oyer a garden 
 cultivated four years ; nor through any buildings ; or any fixtures or erections for 
 the purpose of trkde or manufactures ; or any yards or enclosures necessary for their 
 nse, nor through any enclosed, improved, or cultivated lands, without the consent of 
 the owner, or on the oath of twelve freeholders. See J 72, ^ 73. &t. Notes. No 
 road whatever can be discontinued, without the oath of twelve freeholders. See 
 § 120. [88i.] 
 
 This section confers a very extensive power on commissioners The constitution 
 of this State provides that " private property shall not be taken for any public, use, 
 without just compensation." The amount of compensation shall be ascertained by 
 a jury or not less than three oommissioners, appointed by a court of record. It is a 
 general principle, that "this right cf eminent domain," maybe lawfully exercised 
 whenever public necessity or public utility require it. 
 
 Our Supreme Court decided in 1854 and 1855, in two cases, that this act, in 
 giving commissioners the power to lay new roads through wild and unimproved 
 lands, without the consent of the owners of the lands taken, was unconstitutional 
 and void ; because no compensation was required to be made to such owners. 
 Wallaee vs. Karlenouslci, (19 Barb., 118 ) Govldvs Glass, (19 Sarb., 179.) 
 
 This defect was supplied by the act passed, giving compensation in such cases. 
 Laws of 1858, page 86. 
 
 § 3. Acoounts. — ^The commissioners of highways of each town, 
 shall render to the board of town auditors, at their annual meet- 
 ing for auditing the accounts of town officers, an account in 
 writing, stating, 
 
 1. The labor assessed and performed in such town. 
 
 2. The sums received by such commissioners for fines and 
 commutations, and all other moneys received under this chapter. 
 
12 HIGHWAYS AND BEIDGES. 
 
 3> The improvements which have been made on the roads and 
 bridges in their town, during the year immediately preceding 
 such report, and an account of the state of such roads and 
 bridges. And, ' ■ 
 
 4. A statement of the improvements necessary to be made on 
 such roads and bridges, and an estimate of the probable expense 
 .of making such improvements, beyond what the labor to be 
 assessed in that year will accomplish. 
 
 See Appendix, JSo. 4. 
 
 § 4. Repairs of Roads and Bridges. — ^The commissioners of 
 highways of each town shall deliver to the supervisor of such' 
 town, a statement of the improvements necessary to be made on 
 the roads and bridges, together with the probable expense thereof ; 
 which supervisor shall lay the same before the board of super- 
 visors at their next meeting. The board of supervisors shall 
 cause the amount so estimS-ted, to be assessed, levied and col- 
 lected, in such town, in the same manner as other town charges ; 
 but the moneys to be raised in any such town; shall not exceed 
 in any one year, the sum of two hundred and fifty dollars.^ • 
 
 See foim "So. 5. 
 
 § 5. Duty of Commissioners, c&c. — ""Whenever the commis- 
 sionei"S of highways of any town in this State, shall be of the 
 opinion,»that the sum now allowed by law will be insufficient to 
 pay the expenses actually necessary for the improvement of 
 roads and bridges, and to pay any balance that may be due for 
 such improvement, it shall be lawful for such commissioners to 
 apply in open town meeting for a vote authorising such additional' 
 sum to be raised as they may deem necessary for the pur- 
 pose aforesaid, not exceeding seven hundred and fifty dol- 
 lars in addition to the sum now allowed by law." The same 
 notice shall be given by the commissioners of their intention to 
 apply for the raising of such additional sum as is now required 
 by law, for the raising 'of money for roads and bridges, above 
 the amount of two hundred and fifty dollars. [1857, chap. 
 615,§1.] . 
 
 See Appendix, No. 6. 
 
 The Act of 1832, "for the more effectual improvement 'of roads and bridges," see 
 iawa of 1832; page 488 and 1 R. S., 5 Ed., SIS, contains the following provisions: 
 
 ^ 2, " Before making sucli application, it should be the duty of tl?e commission- 
 ers to give notice of their intended application, by posting the sarae in a conspic- 
 uous manner, in at least five of the most public places in such town, at least four 
 weeks next preceding ■ the annual town meeting ; such, notice slfall specify the 
 amount to be applied for, and the piu'pose to whicli the same is intended to be 
 appropriated, with the probable amount necessary to be expended at each place, if 
 there shall be more than one." 
 
HIGHWAYS AND BKIDGBS. 13 
 
 ^ 3. " Whenever any application for a grant of money for the purpose Hientioned 
 in the firet section of this act, shall be naade to any town meeting, it shall he the 
 dnty of the commissioners making the same, to exhibit a statement of their accounts, 
 and an estimate of the expense necessary for the iniproYement of roads and bridges, 
 in such town the ensuing yeai'." 
 
 § 4. " If the town meeting shall, by their votes, determine that a sum oVer and 
 above the amount now allowed by law, will be necessary for the improvement of 
 itjads and bridges, or to pay any balance that maybe due; theclerk slialj enter 
 such resolution as shall be agreed to, in the minutes of the meeting, and deliver a 
 copy thereof to the supervisor of the town, who shall lay the same before the board 
 of supervisors, at their next annual meeting; and it shall be their duty to cause . 
 the amount specified in such resolution to be levied and collected, in the same .man- 
 ner as other town charges of such tow;n." 
 
 A further act was passed April 18, 1838, entitled " an act to enlarge the powprs of 
 the board of supervisoi'S," p. 314— ^by which the supervisors were authorized ; 
 
 § 1. Sdb. 5. To cause to be levied, collected' and paid in the manner now provi- 
 ded by law, such sum of money, in addition to the sum now allowed by law, not 
 exceeding five hundred dollars in any one year, as a majority o{ the qualified voters 
 of any town may at any legal town meeting have voted to be raised upon their 
 town, for constructing or repairing roads and bridges in such town. 
 
 § 2, Wo moneys shall be.raised under the authority conferred by the fifth sub- 
 division of the preceding section, unless a written notice of the application to such 
 town meeting to raise such amount, shall be posted on the door of the house where 
 the town meeting is to be held, and also at three public places in such town two 
 weeks before the town meeting, arid be also openly read to the electors piesent, 
 immediately' after the opening of the meeting. 
 
 The ninth subdivision of § 4, of the act, passed April 3, 1849, " to vest in the 
 board of supervisors certain legislative powers,'' p. 294, is as follows : — 
 
 To authorize any town in such county, by a vote of such town to borrow 
 any sum of money, not exceeding four thousand dollars in a year, to build or repaii- 
 any roads or bridges. in such town and prescribe the time for tbe payment of the 
 same, which time shall be within ten years, arid for assessing the principal and 
 interest upon such town. See also, §§ 179, 180, 181, and the laws of 1858, chap. 
 103, providing for the speedy construction and repair of roads and bridges, when 
 the same have been damaged or destroyed. ^ 
 
 § 6. [5.] Milestones. — It shall be the duty of commissioners of 
 highways of each town, to eanse mile-boards or stones to be 
 erected, where not already erected, on the post roads and such 
 other public roads in their town, as tliey may think proper, at 
 the distance 'of one mile, from each other, with such fair and 
 legible inscriptions as they may think proper. 
 
 This duty should be performed when the funds are sufEdent in a town, but 
 should not to the neglect of the roads and bridges. 
 
 OVEESEEES OF HIGHWAYS. 
 
 § 7. [6.] Overseers, their duty.— li shall be the duty of the 
 overseers of highways in each town, 
 
 1. lo repair and keep in order the highways within the several 
 districts for which they shall have been elected. 
 
 2. When so' required by the commissioners of highways, or 
 anyone of them, to warn all persons assessed to work on the 
 highways in their respective districts, to come and work thereon; 
 
 3. To cause the noxious weeds on each side of the highway 
 within their respective districts, to be cut down or destroyed 
 
14: HIGHWAYS AND BEIDGES. 
 
 twice in each year, once before the first day of July, and again 
 before the first day of September ; and the req^uisite labor shall 
 be considered highway work. And, 
 
 4. To collect all fines and commutation money, and to exe- 
 cute aU lawful orders of the commissioners. 
 
 By 5 3, 1 R S.. 815, 5th Ed., the town shall choose, at the annnal town meeting, as 
 many overseers of the highway as there are road districts in the town. 
 
 Sub. 1. The overseer is to diligently repair and work the road within his district 
 to the amount of the rates assessed by the conipiissioners. He is: not bound to do 
 more. 
 
 1. A penalty is given for neglect. J 17. 
 
 2. He is liable to an indictment for a neglect of duty. 
 
 3. To an action at the suit of the party injured. An indictment will lie in pur- 
 suance of 5 38, 2 B. S.. 696, 1st Ed., which declares that when any duty is or shall 
 be enjoined by law upon, any public officer, every wilful negle<it to perform such 
 duty, when no especial provision shall have been made for the punishment of such 
 delinquency, shall be punishable as a misdemeanor. 
 
 No action for private damages will lie against an overseer, for not repairing a 
 bridge. This is distinctly settled in 17 Johns.. 439. 
 
 " All the powers of the overseer most therefore be taken to be subordinate to, 
 and under the superior control of the orders of the commissioners, whom they are 
 bound to obey. It is further to be observed that the duty of overseers is confined 
 to the highways, and it is the commissioners alone who are directed to keep in 
 repair bridges as well as highways. The overaeers have no concern with bridges 
 ov r streams, except so far as they are directed generally to execute the orders of 
 the commissioners.'* 
 
 What shall be deemed a bridge is a question to be determined according to the 
 ordinary meaning of the word. Culverts or sluices over small brooks or streams, 
 and even bridges of some extent in a road district, are under the caie of the over- 
 seer, and he is bound to repair them See notes under J 1. 
 
 As to the action for peraonal damages for not repairing a highway, there was no 
 doubt expressed by Chancellor Kent, in the case last quoted; but it was not the 
 question befure the court, it cannot be considered as finally settled by that decision. 
 Undoubtedly, an action can be maintained by the party injured, if he can show 
 that the overseers had the means, and willfuly neglected, or refused to make the 
 repairs. 
 
 In the case of Adsit vs. Brady, (iHUl, 630,) the court say: — "When an individual 
 sustains an injury by the misfeasance of a pulilic officer, who acts or omits to act con- 
 trary to his duty, the law gives redress to the injured party, by an action adapted 
 to the nature of the case.'' This is quoted from the words of Spencer, 15 JbAns, 
 B. 253. Biuisel vs. Men of Devon. (2 Term. Sep., 671.) 
 
 Sub. 3. Undoubtedly, the performance of this duty rests in the sound discretion 
 of the overseer. If such weeds are so situated as it is not likely they will do injury; 
 and in cases where the road is very bad and little work in the district, it would be 
 absurd to expend it in destroying weeds instead of doing necessary work. 
 
 Sub. 4 All Fines. 1. For idleness, ^ 52. 2. For not working, J 53. Swinging 
 gates, J 151. He ran also prosecute, under § 12, when a person assessed for a scra- 
 per or plough refuses to pay. 
 
 All forfeitures and. penalties not especially provided for, are to be sued for by the 
 commissioners. 
 
 Some of the duties of the overseers are to be performed without any special order 
 or direction from the commissioners ; it is their duty among other things, to keep 
 the roads in repair; to destroy noxious weeds ; to collect fines and commutation 
 money, and to remove stones from the beaten track of the road, without any 
 special order from the commissioners It wonld seem from Sub. 2, that they are 
 not to warn persons assessed to work without being required by the commissioners 
 to do so ; but this requisition relates to the general warrant directed to them by the 
 commissioners. 
 
 And the court decided that an overseer is bound to remove obstructions from the 
 highways w thin his district, although not specially directed by the commissioners. 
 McFadaen,vs ICinebvry, {11 Wend,G6l.) 
 
HIGHWAYS AND BEIDGES. 15 
 
 In that case the court say that " by the sixth Section, it is made the duty of over- 
 seers to repair and keep in order the highways within his district 'What is meant 
 by keeping a road in order ? If a fence is built across a road in any district, any 
 pel-son may remove it ; but is it not the duty of overseers to see that is Mone ? If 
 logs are thrown in the road, or rubbish of any description placed in it, which deprive 
 the public of the use of the road, whose duty is it to remove those obstacles to the 
 public enjoyment of the right of passage upon the road ? It is undoubtedly the duty 
 of the overseer. It is no answer to say. that the commissioners have the care and 
 superintendence of the highways, and give directions for the repairing of roads and 
 bridges ; it is not the less the duty of the overseers to repair and keep in order the 
 road in their districts ; they are bound to do it, whether they receive especial in- 
 stiuctions or not ; it is their duty withont special orders." 
 
 § 8. [7.] Overseers^ tJieir duty.-^lt shall be the further duty of 
 the overseers of highways, once in every month, from the first day 
 of April nntil the first day of December, to cause all the loose 
 stones lying on the beaten track of every road within their 
 respective districts, to be removed ; and to cause the monu- 
 ments erected or to be erected, as the boundaries of highways, 
 to be kept up and renewed, so that the extent of such roads may 
 be publicly known. 
 
 This is a duty veiy much neglected, and if more punctually and faithfully per- 
 formed would save much difficulty and many law suits. 
 
 § 9. [8.] New assessments to he made hy fhem. — When the 
 quantity of labor assessed on the inhabitants of anyroad district' 
 by the commissioners, shall be deemed insufficient by the over- 
 seer of such district to keep the roads therein in repair, it shall 
 be the further duty of such overseer, to make another assessment 
 on the actual residents in such district, in the same proportion, 
 as near as may be, and not exceeddag one-third of the number 
 of days assessed in the same year' by the commissioners on the 
 inhabitants of such district ; and the labor so assessed by an 
 overseer, shall be performed or commuted for,, in like manner as 
 if the same had been assessed by commissioners of highways. 
 
 The assessing of the third on the district iaentirely in the discretion of the over- 
 seer. If the road is in a very, bad and dangerous condition, he should do it. He 
 is to exercise his best judgment, and an overseer is not liable for a mere error in 
 judgment. 10 Johns., 470. See Appendix, No. 7. 
 
 § 10. [9.] Guide-posts. — The commissioners of the highways 
 of each town shall cause guide-posts, with proper inscriptions 
 and devices, to be erected at the intersection of all the post roads 
 in their town, and at the intersection of such other roads therein 
 as they may deem necessary. 
 
 § 11. [10.] Ihid. — ^It shall be the duty of the overseers of high- 
 waj'S of each town, to maintain and keep in repair, at the ex- 
 pense of the town, such guide-posts as may have been erected 
 by order of the commissioners, within the limits of the districts 
 for which they shall have been respectively elected or appointed. 
 
16 HIGHWAYS AND BEIDGES. 
 
 § 12. [11.], Scrapers and plows. — Tlie commissioners of high- 
 ways, whenever"' they shall think it necessary or useful, may 
 direct anti empower any overseer of highways in their respective 
 towns, to procure a good and sufficient iron or steel-shod- scraper, ' 
 and plough, or either of them, for the use of his road district ; 
 to be paid for by the money arising from commutations and 
 fines within such district 
 
 § 13. [12.] Ihid. — In case such moneys shall be insufficient 
 for the purpose, the deficiency shall be assessed by the overseers 
 upon the inhabitants of the districts, in the proportion they are 
 respectively assessed on the assessment roll of said town ; and if 
 any one so assessed shall neglect, or refuse to pay such assess- 
 ment, the. same may be sued for and recovered by the overseer. 
 
 This is an assessment in money. The overseer can either make a new assessment 
 roll, or carry out the amount on the original assessment, opposite their names. If 
 there is lilcely to bo an opposition to the collection of the amount, the better way 
 will be to make a new one. — See form, Appendix, No. 8. 
 
 § 14. [13.] Excess of Work hy Overseers. — If any overseer 
 shall be employed more days in executing the several duties en- 
 joined on him by this Chapter than he is assessed to work on the 
 "highway, he shall be paid for the excess at the rate of seventy- 
 five cents per day, and be allowed to retain the same out of the 
 moneys which may come into his hands for fines under this 
 Chapter ; but he shall not be permitted to commute for the days 
 he is assessed. 
 
 The overseer must work out all his assessment. And if to direct the men ena- 
 
 Eloyi-d, he works more days, or if in executing other duties, he works more than 
 is"time, he must take it out of moneys in his hands. But if no fines or commu- 
 tation money is received by him, how is he to receive his pay ? There seems to be, 
 no provision made for his remuneration. 
 
 § 15. [14.] Vacancy in tlieir office. — If any person chosen to 
 offipe of overseer of highways, shall refuse to serve, or if his 
 office shs-ll become vacant, the commissioners of highways of the 
 town, shall, by warrant under their hands, appoint some other 
 person in his stead : and the overseer so appointed, shall have 
 the same powers, be subject to the same orders, and liable to the 
 same penalties as overseers chosen at town meeting. 
 
 The person refusing to serve, cannot be appointed, as the words of the section 
 are " some other person." The legislature considered the penalty as an equivalent 
 for the service. If it were not so. a per.son refusiug to serve for any urgent reasons 
 might be subject to endless litigation. Haywood vs. Whccler,ll Johns. R.,m. See 
 form, for appointme^ii, Appendix, No. 9. 
 
 § 16. [15.] Proceedings. — The commissioners making the 
 lappointment, shall cause such warrant to be forthwith' filed in 
 ■the office of the town clerk, who shall give notice to the person 
 .appointed, as in other cases. , 
 
HIGHWAYS. 17 
 
 § 17. [16.] Penalties on Overseers. — Every overseer of high- 
 ways who shall refuse or neglect either, 
 
 1. To warn the people assessed to work on the highways, when 
 he shall have been required so to do, by the commissioners, or 
 either of them : 
 
 2. To collect the moneys that may arise from fines or commu- 
 tations : or, 
 
 3. iTo perform any of the duties required by this Chapter, or 
 which may be enjoined on him by the commissioners of high- 
 ways of his town ; and for the omission of which, a penalty is 
 not hereinafter provided; 
 
 Shall, for every such refusal or neglect, forfeit the sura of ten 
 dollars, to be sued for by the commissioners of highways of the 
 town ; and when recovered, to be applied by them in making 
 and improving the roads and bridges therein. 
 
 The delivery ol the assessment roll is a sufficient requisition under the first and 
 second subdivisions ; he is also bound to destroy noxious weeds, to remove loose 
 stones from the beaten track of the highway without special orders ; but he is not 
 obliged to procure scrapers, unless directed and empowered so to do 11 Wend, 667. 
 
 A perison is not liable to the penalties in the above section, unless l)e is really and 
 in feet an overseer of highways. Before a person can lawfully enter upon the duties 
 of that office, he should file with the town clerk a notice in writing, sisnifying his 
 acceptance of the office. {Mt. 3, Title% Oh. 11 ; part 1st R. 3., vol. l.p. 826, J 40, 
 5th Ed., ) " and such neglect shall be deemed a refusal to serve." Vhia is a substitute 
 for the bath of office. 
 
 It was decided in BervUy vs. Phelps, (27 Barh., 524.) that a person coming into 
 office under color of a lawful eletilion, his acts, as such officer as respects the piiblic 
 and third persons are valid. If he proceeded to execute the duties of the oince, he 
 would be an officer (fe/ffl«<o. Tliis rule will apply to all. acts done by the defendant 
 as overseer of the highways of his district, because he took the road warrant and 
 was recognized by the commissioners. Some work was done by his order, and on 
 one or two occasions he assumed to be such overseer. But as he was not overseer 
 de jure the Court decided that he was not liable to the penalties under this section. 
 
 That the case Dean vs. Oridiey, (10 Wend, 254,) was not to be taken as holding a 
 contrary doctrine, as that was merely a question of evidence. 
 
 § 18. [17.] To le u^rosecuted h/ Commissioners. — It shall be 
 the duty of the commissioners of highways of each town, when- 
 ever any person resident in their town shall make complaint that 
 any overseer of highways in such town, has refused orneglected 
 to perform any of the duties enumerated in the last preceding 
 section, and shall give or offer to such commissioners, sufficient 
 security to indemnify them against the costs, which may be 
 incurred in prosecuting for the penalty annexed to such refusal 
 or neglect, forthwith to prosecute such overseer for the offence 
 complained of i 
 
 By the former act, half the penalty went to the complainant. The Sevisers in their 
 note under this section, say, that they " have uniformly omitted all provisions author- 
 " izing common informers to sue for their own benefit, and it is presumed the above 
 " section will answer the purposes intended, by the act of ]'826." / 
 
 It is the duty of the commissioners to siie without complaint. In general, all 
 public ofScers, though not expressly authorized by statute, have a capacity to sue, 
 2 . 
 
i8 HIGHWAYS. 
 
 commensurate with theirpuHic trusts and duties. (\SJohni, R.,407. 1 Cow.. 260, 
 and Koh, p. ^61— i. 3 Wend.,193. 1 ]Vend., 181. 19 B'crid.SO.) The suit can- 
 not be maintained in iheiv official names or title, but they must use their individual 
 names, annexing their official name or title. Commissioners of OourtlandviUe vs. Peck, 5 
 HUl, 215. 4 But, 136. 19 Barb., 179. See Appendix, Not. 9 and 10. 
 
 § 19. [18^] Penalty for neglect. — If such commissionera of 
 Mghways shall refuse or neglect to prosecute lor such penalty, 
 they shall, in every such case forfeit the sum often dollars, to be re- 
 covered by the person who shall have made such complaint, and 
 given or oftfered such security. 
 
 § 20. Commissioners authorized to sue Rail Roads. — ^The com- 
 missioner or commissioners of highways in each of the towns of 
 this State, are hereby empowered to bring any action against 
 any railroad corporation, that may be necessary or proper to sus- 
 tain the rights ot the public in and tO' any highway in such town, 
 and to enforce the periormance of any duty enjoined upon any 
 railroad corporation in relation to any highway in the town of 
 which they are commissioners, and to maintain an action for 
 damages or expenses which any town may sustain or may have 
 sustained, or may be put to or may have been put to, in conse- 
 quence of any act or omission of any such corporation in violation 
 of any law in relation to such highway. (1855, ch. 255, § 1.) 
 
 § 21. Nothing in this act shall be construed as in any manner 
 impairing the right of any person or officer to bring any action 
 now authorized by law. (Same ch., § 2.) 
 
 AETICLE SECOND. 
 
 Of the Persons liable to worh on Highways., and the making of 
 Assessment therefor. 
 
 § 22. [19.] Persons liable to be assessed. — Every person own.^ 
 ing or occu{)ying land in the town in which he or she resides, and 
 every male inhabitant above the age of twenty-one years; resid- 
 ing in the town when the assessment is made, shall be assessed 
 to work on the public highways in such town; and the lands 
 of Hon-residents, situated in such town, shall be assessed for 
 highway labor, as hereinafter dii-ected. 
 
 A question was i-aised in Beach vs. Furman, (9 Johns. R.. 229,) -vrhether a female, 
 though a freeholder, was liable to a highway assessment. To obviate that question, 
 this section was made explicit, by jimerting the word he or she, by the legislature. 
 See Revisors' Notes on this Section. Females are liable to be assessed on their prop- 
 erty, aud males ai-e liable to a tax per capita. 
 
 § 23 J!fon-residents.—'Lmda of non-residents within any town, 
 occupied and improved by the owner or owners, or his or their 
 
HIGHWAYS. 19 
 
 servants or agents, shall be liable to tbe same assessments for 
 bighways as it the owner or owners were residents. (See. 1, of 
 chap. 107, of 1832.) 
 
 Thia section was added to explain the 24th section as it originally stood in the 
 first edition ; it is niivr nearly or quite useless, as by the 24th sectiiii all lands are 
 to be assessed equally. The land is to be assessed accoriling to its value, and the 
 servant or agent is lo be assessed his poll tax, and for his own private property, if 
 lie is assessed for any on the last yeair's assessment roll. 
 
 § 24. Land occupied hy a servant. — ^The real property of non- 
 resident owners, improved or occupied by a servant or agent, 
 shall be subject to assessment of highway labor, and at the same 
 rate as the real property of resident owners. {Sec. 1, of chap. 
 154, 1835.) 
 
 § 25. [20.] Meetings of. Commissioners. — The commissioners 
 of highways of each town, shall meet within eighteen days after 
 they shall be chosen, at the place of town meeting, on such day 
 as they shall agree upon, and afterwards at such other times and 
 places as they shall think proper. 
 
 At this meeting they are lo receive from the town clerlt the list of taxable inhab- 
 itants, to enable them to make the assessment. They can adjourn or appoint a sub- 
 sequent meeting. This section is directoiy, and if they should omit a meeting 
 within the eighteen days, according to the usual construction of such statutes, tliey 
 could afterwaids meet, and their proceedings would not be Toid. The public 
 shiiuld not saffer through their de&ult. They inight be liable to punishment for 
 their neglect of duty. 
 
 § 26. [21.] List of Inhabitants. — E^ch of the overseers of 
 highways shall deliver to the clerk of the town, within sixteen 
 days after his election or appointment, a list, subscribed by such 
 overseer, of the names of all the inhabitants in his road district, 
 who are liable to work on the highways. 
 
 This duty should be carefully performed. 
 
 This list does not include nun-residents. It would be well for the oveiBeer, how- 
 ever, to add all such to his list, that the commissioners may have all the informa- 
 tion on the subject. See form, Apperdix, No. 12. 
 
 § 27. [22.] J!f on residents, and how apprai8ed.-^The commis- 
 sioners of highways in each town, at their first or any subsequent 
 meeting, shall make out a list and statement of the contents of 
 all lots, pieces or parcels of land within such town, owned by 
 non-residents therein, every lot so designated shall be described 
 in the same manner as if required from assessors, and its value 
 shall be set down opposite to such description, such value shall 
 ■be the same as was affixed to such lot in the last assessment roll 
 of the town ; and if such lot was not separately valued in such roll, 
 then in proportion to the valuation which shall have been affixed 
 to the whole tract of which such lot shall be a part. {As Amended 
 1335, cA. 15 1, §2.) 
 
 See Appendix, No. IZ, for form of list and ttatement. 
 
20 HIGHWAYS. 
 
 Tho commissioners can have the use of the assessment roll deposited with the 
 town clerk. The manner in which the assessors are required to describe the lots 
 will be found, 1 R 8., p. 391, §§ 11, 12, 13 and 14, 1st. Ed. It will be advisable to 
 follow the assessment roll, except where the commissioners are bound to make a 
 proportion, and then they shoul^ be very particular in their description -of the pro- 
 portions. 
 
 § 28. [23.] Lists of Inhabitcmts. — ^The town clerk shall deliver 
 the lists filed by the overseers to" the commissioners of highways 
 of the town; who shall proceed, at their next meeting, or at some 
 subsequent meeting to ascertain, estimate and assess the highway 
 labor to be performed in their town, the then ensuing year. 
 
 When there is only one commissioner in a town, he should, within eighteen days 
 after election, repair to the place where the town meeting is held according to the 
 J 2.5, for the purpose of making out his lists. He should appear at that place to 
 give all persons opportunity to object to the assessment, and to furnish any expla- 
 nations or iiiforination in reference to the owners of property or what changes have 
 taken place since the last assessment. 
 
 § 29. [24:.] Proceedings in moMng assessments. — ^In making 
 such estimate, and assessment, the commissioners shall proceed 
 as follows : 
 
 1. The whole number of days' work to be assessed in each 
 year, shall be ascertained, and shall be at, least three times the 
 number of taxable inhabitants in such town. 
 
 2. Every male inhabitant being above the age of twenty-one 
 years (excepting ministers of the gospel^ and priests of every 
 denomination, paupers and idiots, and lunatics,) shall be assessed 
 at least one day. 
 
 3. The. residue of such days' work, shall be apportioned upon 
 the estate real and personal of every inhabitant of such town, as 
 the same shall appear by the last assessment roll of the said town, 
 and upon each tract or parcel nf land, of which the owners are non- 
 residents, contained in the lists made as aforesaid. 
 
 4. If, after such appointment, there shall be any deficiency in 
 the number of days' work determined by the commissioners, to 
 be performed in their town, the then ensuing year, such deficiency 
 shall be assessed upon the estates real and personal of the inhab- 
 itants of the town, and upon each tract or parcel of land, of 
 which the owners are non-residents, according to the last assess- 
 ment roll. 
 
 5. The commissioners shall affix to the names of each person 
 named in the list furnished by the overseers, and also to the 
 description of each tract or parcel of land contained in a list 
 prepared by them, of non-resident lands, the number of days 
 which such person or tract shall be assessed for highway labor, 
 as herein directed, and the commissioners shall subscribe such 
 list and file them with the town clerk. [As amemhd, 1836, ch. 
 154, §3.] 
 
HIGHWAYS. 21 
 
 Sub. 1. Three times the numbei' of taxable iuliabitanfs is the number of days' 
 ■works to be asBessed, unless they shall determine to add to that nnmber. This 
 they have the power to do, and there does not appear to be any limitation to their 
 discretion as to the number whieh they may add. 
 
 Sub. 2. Ministers, or priests who officiate according to the rnles of their denomi- 
 nation, who are engasen in religions teaching as a business ; not those who have 
 abandoned or retired from such calling ; nor will it include those who have not 
 been engaged in religious teaching as a profession, but only occasionally teach 
 or exhort. 
 
 In the case of Vail ve Owen, (19 Barb, 29.) The proof on the trial was, that the 
 plaintiff had preached and officiated as a minister, of the Evangelical Lutheran 
 Society, in the town of Eden, several years ago, and that he afterwards preached in 
 Bijffalo ; that he had since removed on to a farm, and was engaged m farming ; 
 that some two or three years before the trial he said he had quit preaching and gone 
 to farming; and that he had frequently declared that he did not intend to pursue 
 his priestly calling any longer. Jt appeared that he was engaged in farming prin- 
 cipally, and that he had preached on one or two occasions a few months before the 
 trial. The Court say, that it was a fair question for the assessors to determine, 
 whether the plaintiff was a " minister of the gospel or priest of any denomination," 
 within the meaning of the statute. The proposition that once a priest always a 
 priest, may be well enough as an ecclesiastical maxim, but it will be hardly claimed, 
 that one who abandons that calling and takes up another, is still entitled to the 
 statute exemption from taxation . 
 
 In the case last cited, the court decided, that assessors are not liable in a civil 
 action, for assessing property which is by law exempt f](im taxation, and ovei ruled 
 the decision in the case of Prosser vs. Seonr. (5 Barb., 607.) Brmim vs. Smith, (24 
 Marb., 419.) Weaver vs. Beavenlmfi (3 Denio, 117.) 
 
 They are not liable to a civil action in such cases, that they have jurisdiction over 
 the inhabitants of the town, and their inquiry as to who is exempt, is a judicial ad. 
 But when the assessors entered upon their assessment roll, the name of a person not 
 a resident of the town or ward at the time the assessment was made, it was held 
 that they acted without jurisdiction, and are liable for the damages resulting from 
 the collection of a tax founded on such entry. Mygatt vs. Washburn, (15 New York 
 Rep., 316.) 
 
 An idiot or a natural fool, is one who has had no understanding from his nativity; 
 a lunatic, is one who has bad understanding, but by disease, or other accident, hag 
 lost the use of his reason, but who has intervals of reason called lucid intervals. 
 1 JBlackstone's Com., 303-4. 
 
 For form under this §, see Appendix, No. 14, 1 and 15. 
 
 This section in the first edition of the R. S., contained seven subdivisions. The 
 fourth then provided, that only one quarter of a days' labor should be assessed for 
 $100 on lands of non-residents ; and the 5th subdivision provided that the com- 
 missioners should not assess at all, unless in their judgment the lands are enhanced 
 by the highway. 
 
 It was decided under section 22, in 1834, Bank of Ithaca vs.King, (12 TfeTw^., 390,) 
 that monied corporations were not liable to this assessment, on the ground that 
 they were not persons. A corporation having no material existence is incapable of 
 performing labor. Although the word persons would, if alone and unejiplained, 
 include corporations, were the other provisions of the Statute consistent with such 
 construction, yet where the legislature use the words Ae or sho it is explained what 
 kind of persons are intended. To render them liable for a highway assessment, 
 the following act was passed May 15th, 1837, page 488. 
 
 § 30. Corporations — 8tock to le assessed. — In making the esti- 
 mate and assessment of the residue of the highway labor to be 
 performed in their town, after asse^ing at least one day's work 
 upon each of the male inhabitants therein, above the age of twenty- 
 one years, as provided in the sixteenth chapter of the first part of 
 the Eevised Statutes, entitled, "Of Highways and Bridges," the 
 commissioners of highways, shall includie among the inhabitants of 
 such town, among whom such residue is to be apportioned, all 
 
22 , HISHWATS. 
 
 monied or stock corporations, which shall appear on the last assess- 
 ment roll of their own town to have been assessed therein. [Seo. 
 1, 0/ cAop. 431, 0/ 1837.] * 
 
 It was decided m Svipervisora of Niagara vi.' The, People, (7 Mill.^Oi,) that associa- 
 tions formed under the general Banking Law, are corporal ions within the meaning 
 'of 1 R, S., 944, 5th Ed., 5 1, and liable to taxation on their capital. See alto, 4 
 Silt.ZO. 
 
 Mutual Insurance Companies, incorpov.ited previously to the passage of the gen- 
 eral Insurance Law of 1849, aije made subject to taxation, in the same manner as if 
 they were incorporated. under the general law, with acapiial of $11)0,000, according 
 to the sixth section of that law. {Laws of 1853. cA. 469 ) 
 
 Money paid in as premiums to an insurance company, not liable to be withdrawn 
 and divided, but forming tlie basis of its business operations, is capital, and as such, 
 is liable to taxation. But surplus earnings or profits over and above the amount 
 retained as permanent capital, it seems is not liable to be taxed The People vs. 
 Supervisors of New ydrk,{WNew ydrk Sep., i^S.) Mutual Insurance Companyivs. 
 Supervisors of Eric, (4 C'oms.,442.]) Same Miiinal, So., vs. New York, (4SeW,24l.) 
 
 § 31. Notioe to "be given to Corporiztions. — " Such corporations 
 shall be notified to furnish the amount of highway labor assessed 
 to them in the same manner as individuals residing in such town, 
 by giving oral or written notice to the president, cashier, agents, 
 treasurer, or secretary of such corporation, or any clerk or other 
 officer thereof, at the principal office or plaice of transacting the 
 business or concerns of the said company ; which labor shall be 
 performed in such district or districts as the commissioners of 
 highways of the town shall direct, and any number of days' work, 
 not exceeding fifty, may be required to be performed, by any such 
 corporation, in any one day." [Sec. 2, of same chap.'} 
 
 § 32. Corporations may commute. — " Every such corporation 
 may commute for the highway labor assessed upon it,, in the same 
 manner and at the same rate as is allowed by law to individuals, 
 or by paying such commutation to a commissioner of highways 
 of the town ; and the commutation money so paid may be 
 expended by the commissioners of highways upon any district 
 or districts in the town ; and for that purpose the said commis- 
 sioners shall be entitled to demand and receive from the over- 
 seers, to whom any such commutation may have been paid, the 
 whole or any portion thereof; but in every case where any such 
 corporation shall be located in any city, village Ot town, where 
 by the law the road tax is now payable in money, the road tax 
 imposed on any such corporation shall be paid in money, accor- 
 ding to the provisions of the several laws affecting said city, vil- 
 lage or town." iSec. 3, same.] ' 
 
 § 33. Penalties. — " Such corporations shall be liable to the 
 same penalties for every days' work required, and for every default 
 of any substitute sent by them, as is provided by law in the case 
 of individuals required to work on highways, which shall be 
 collected in the same manner, and paid over to the commission- 
 
HISHWATS. 23 
 
 ers of highways of the town, by the constahle collecting the same, 
 and may be expended by them in the same manner as herein 
 provided for the commntation money received from any such 
 corporation. The summons issued by any justice according to 
 this act, may be for any number of penalties incurred by any 
 Buch corporation previous thereto, and may be served in the 
 manner provided by law for the service of writs or summons 
 issuing out of courts of record against corporations." [/Sec. 4, 
 same chap.'] 
 
 § 34. JSbw to he collected. — " In case any such penalty cannot 
 be collected as herein provided, the commissioners of highways 
 of the town may file a bill in' the court of chancery against any 
 such delinquent corporation for the discovery and sequestration 
 of its property ; whereupon the same proceedings shall be had 
 as are provided by law for the collection of county taxes assessed 
 against incorporated companies ; and the chancellor shall possess 
 the like powers in' respect to the same ; and the said commis- 
 eioners may also recover such penalties, or any number of them 
 that may have been incurred, with costs, from such delinquent 
 company, in any court of record in this state. [Sec. 5, scmie 
 chap^ 
 
 Thc! abolition of the Court of Chancery and the Code of Prncednre, hare abrogat- 
 ed the provisions of this section so far as they relate to proceedings in that court. 
 The Supreme Court is now substituted for the Court of Chancery, 
 
 § 35. Omissions Jiow to 'berectified. — ""Whenever the assessors 
 of any town shall have omitted to assess a,ny inhabitant or pro- 
 perty in such town, the commissioners of nighways shall assess 
 the persons and property so omitted, and shall apportion high- 
 way labor upon such persons or property in the same manner as 
 if they had been duly assessed upon the last assessment roll." — 
 [Sec. 6, same cAop.] 
 
 § 36. Powers of commissioners of highways. — " "When by law 
 the powers and duties of commissioners of highways are con- 
 ferred and imposed upon other officers, they shall possess all the 
 powers and perform all the duties in this act conferred or enjoin- 
 ed upon such commissioners, and the assessments under it for 
 the present year, shall be made before the first day July next, 
 by the commissioners of highways." [Sec. 7, of same chap.] 
 
 § 37. [25.] Copies of lists. — The commissioners shall direct 
 the clerk of the town to make a copy of each list, and shall sub- 
 scribe such copies; after which they shall cause the several copies 
 to be delivered to the respective overseers of highways of the 
 eeveral districts in which the highway labor is assessed. 
 
24 HIGHWAYS. 
 
 § 38. [26.] Names omitted. — The names of persons left 
 out of any such list, and of new inhabitants, shall from time to 
 time be added tothe several lists, and they shall be rated by the 
 overseers in proportion to their real and personal estate, to work 
 on the highways, as others rated by the commissioners on such 
 lists, subject to an appeal to the commissioners. 
 
 Perhaps the overseer in mating hie list for the town clerk, or comniissioners in 
 I making aBsesament, omitted names through inadvertance, or if new inhabitants have 
 moved into the district, the overseers must put down such name on the buttom of 
 his list, and assess them, or annex an assessment, as No, 15, in Appendix. He should 
 notify them of their assessment immediately, that they may have an opportunity to 
 appeal to the commiijsioners. ' 
 
 Ifo particular form is necessary to be used by overseers. See Appendix, No. 16. 
 
 The appeal to the commiesioners need not be in writing. It will be safer for the 
 appellant to make it iii writing, from a form which will be found in Appendix, No. 
 17.. Serve a cdpy of this on the commissioners, and also on the overseer, and let 
 the commissioners appoint a day and place for hearing, and notify the overseei'. If 
 the commissioners are of opinion that the appellant is not taxable, they will strike 
 his name from the list, or they can reduce the number of days if they decide that 
 he is assessed for too many. 
 
 § 39. [27.] Ajppeals for non-residents. — ^Whenever any non- 
 rbsident owner shall conceive himself aggrieved by the assess- 
 ment of any commissioners of highways, in carrying into effect 
 the provisions of this article, it shall be lawful for such owner, or 
 his agent, within thirty days after such assessment, to appeal to 
 the county judge of the county in which such land is situated. 
 
 I This appeal must be served within thirty days after the assessment is actually 
 made, and the list signed by the commissioners. Notice to be served on such com- 
 missioners. 
 
 Let the judge appoint the time and place for heaiing, and serve notice on com- 
 missioners. 
 
 § 40. [28.] Proceedings. — ^It shall be the duty of such judge, 
 within twenty days thereafter, to decide on such appeal, tlie said 
 owner or agent giving notice t'o the commissioners of the time of 
 the meeting of the judge ; and his decision shall be final and 
 conclusive in the premises. JEach judge shall be entitled to 
 receive for services on such appeal^ two dollars for each day he 
 may be employed thereon^ to be paid by the party appealing, if 
 the proceedings of commissioners and overseers shall be affirmed; 
 but if reversed or modified favorable to the party appealing, to 
 be levied and paid as part of the contingent expenses of such 
 town. 
 
 "The county judge," is substituted for any three judges of the court of com- 
 mon pleas. See ch. 280, of laws of 1847, J 29, the power fs confined on the county 
 judge by } 30, sub. 11, of the code. , 
 
 § 41. [29.] Prvoate Roads. — It shall be the duty of the com- 
 missioners of highways of each town, to credit such persons as 
 live on private roads, and work the same, so much on account of 
 
HIGHWAYS. 25 
 
 their assessments as such commissioners jnay deem necessary to 
 work such private' roads, or to annex such private roads to some 
 of the highway districts. 
 
 § 42. [30.] Certam assessments to T)e separafo.— Whenever the 
 commissioners of highways shall assess the occ\ipant, for any 
 land not owned by such occupant, they shall distinguish in their 
 assessment lists, the amount charged upon such land, from the 
 personal tax, if any, of the occupant thereof. But when any such 
 land shall be assessed in the name of the occupant, the owner 
 thereof shall not be assessed during the same year to work on 
 the highways on account of the same land. ' 
 
 § 43. [31.] Tenant to deduct assessment.— Wheneyev any ten- 
 ant of land for a less term than twenty-lSve years, shall be 
 assessed to work on the highways, for such land, pursuant to the 
 last preceding section, and shall actually perform such work, or 
 commute therefor, he shall be entitled to a deduction from the 
 rent due, or to become due from him, for such land, equal to the 
 full amount of such assessment, estimating the same at the rate 
 of sixty-two and a half cents per day, unless otherwise provided 
 for by covenant or agreement, between such tenant and his land- 
 lord. 
 
 §44. Grading or gvavellmg Heads, (&a. — It shall be lawful 
 for the inhabitants residing in any road district in this State, to 
 grade, gravel, or plank the road or roads in Such districts, by an- 
 ticipating the highway labor of such road district for one or more 
 years, and applying it to the immediate construction of such 
 plank or gravel road, and after the completion of such plank or 
 gravel road, the said inhabitants shall be exempt from the 
 labor so anticipated and applied, except so far as their labor 
 may be necessary to keep their said road or roads in ^•epair ; 
 such road to be in all cases a free road. (Laws of 1849, ch. 250, 
 § 12. — Bee under Plank Eoad Law.) 
 
 AETICLE THIED. 
 
 On the duties of Overseers in rega/rd to the performance of lalor 
 upon Highways; and of the performance of such labor or the 
 commutation therefor. 
 
 § 45. [32 ] Notice to worTc ; where to ie done. — It shall be the 
 duty of the overseer of highways, to give at least twenty-four 
 hours' notice to all persons assessed to work on the highways, and 
 residing within the limits of their respective districts, of the time 
 and place, when and where they are to appear for that purpose, 
 and with what implements ; but no person being a resident ot 
 the town, shall be required to work on any highway, other, than 
 the district in which he resides, unless he shall elect to work in 
 
26 HIGHWAYS. 
 
 Bome district wbere he has any land ; and in such case he may, 
 with the approbation of the commissioners of highways, apply 
 the work assessed in respect to such land, in the district where 
 the same is situated. 
 
 It requires no formal application to the commissioiiers to obtain their consent to 
 ■work in another district, nor need they express their approbation in any formal 
 manner ; but to avoid any controversy, it will be well to obtain this written consent. 
 ■Bee Appendix. No. 19. 
 
 Lei. the applicant work the number of days, and bring a receipt or certificate 
 from that overseer to the one where he resides, who will give him credit accord- 
 ingly. 
 
 A law passed April 14th, 1855, contains the following provisions : 
 
 Every person liable to do highway labor, living or owning property on the line 
 of any plank road of this State, may, on mal<ing application in, writing to the com- 
 missioner or commissioners of their respeclive 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 pioperty upon such plank road, and Ihe 
 commissioner or commissioners shall assess such person for the land or property 
 owned by him, in or upon the llnenf said plank road as a separate road district. 
 £ee further on the subject in the Plank fioad Law. 
 
 § 46. [33.] Notice to non-residents. — ^It shall be the duty of the 
 several overseers of the highways, to notify the agent of every 
 non-resident land holder, whose lands are assessed, (if such agent 
 reside in the town where such assessment is made,) of the num- 
 ber of 4^ys such non-resident is assessed, and of the time when, 
 and the place where, the labor is to be performed; which notice 
 shall be given at least five days previous to the time appointed. 
 
 It is not necessary that this notice should be in writing ; but as a matter of pru- 
 dence it may be well to serve a written notice ; the agent may forget, and may not 
 infiirm his principal ; and as he can be a witness, the overseer had better serve notice 
 and take from him an admission of service. Se^ Appendix, No, 20. 
 
 , § 47, [34.] TJi^. — If the overseer cannot ascertain that such 
 ©on-resident has an agent within such town, he shall aflBx a writ- 
 ten notice on the outer door of the building -in which the last 
 town meeting in such town was held, containing a list of the 
 names of such non-re'sidents, when known, and a description of 
 the tracts of land "comprised in his list, together with the number 
 of days' labor assessed on each tract, and a specification of the 
 time when, and place where, such labor is to be performed ; 
 which notice shall be posted at least twenty days before the time 
 appointed for performing such labor. 
 
 Ibrm, tee Appendix, No. 21. 
 
 § 48. [35.] Every person liable to work on the highways, shall 
 work the whole number' of days for which he shall have been 
 assessed ; but every such person, other -than an overseer, may 
 elect to commute for the same, or for some part thereof, at the 
 rate of sixty-t^wo and a half cents for each day j in which case 
 
HIGHWAYS. 27 
 
 ench comrautation money should be paid to the overseer of high- 
 ways of the district in which the person commuting shall reside, 
 to be applied and expended by such overseer in the improve- 
 ment of the roads and bridges in the same district. 
 
 The Militia Law, (1 E. S., 739, &th Ed , and Lam of 1854, ch. 398, Tit. 5, § 1.5,) 
 provides that every non-commisKioiied officer,, niusician and private, of any uni- 
 form company must serve seven years; and all general and staff olticers, and all field 
 officers, and all commissioned and non-cominiKsioned (ifficers, musicians and privates, 
 of the military force of this State, shall be exempt while lh.ey perform dnty, from 
 the payment of highway taxes not exceeding six days in each yeai- ; and the per- 
 sons first named, who nave served the seven years and heen honorably discharged, 
 shall be exemptfrom two days' highway tax each year, fur ever. This exemption 
 and deduction is to be allowed only on the prad>uction of the ceitificate of the com- 
 manding officer. 
 
 The oveiseer is required to work ont his time personally, that he may be present, 
 and superintend the labor of others, 
 
 § 49. [36.] When to he paid. — Every person intending to com- 
 mute for his assessment, or for any })art thereof, shall, within 
 twenty-four hours after he shall be notified to appear and work 
 on the highways, pay the commutation money for the work re- 
 quired of him by such notice ; and the commutation shall not be 
 considered as complete until such money be paid. 
 
 § 60. [37.] Teams, &c. — ^Every overseer of highways shall have 
 power to require a teamj or a cart, wagon, or plow, wilSi a pair 
 of horses or oxen, and a man to manage them, from any per- 
 son having the same within his district, who shall have been 
 assessed thi-ee days or more, and ■^ho shall not have commuted 
 for his assessment ; and the person furnishing the 'same upon 
 such requisition, shall be entitled, to a credit of three days for 
 each days' service therewith. 
 
 § 51. [38.] Substitutes, Tiaurs to work. — ^Every person assessed 
 to work on the highways, and warned to work, may appear in 
 person, or by an able bodied man, as. a substitute ; and the per- 
 son or substitute so appearing, shall actually work eight hours in 
 each day, nnder the penalty of twelve and a half Cents for every 
 hour such person or substitute shall be in default, to be imposed 
 as a fine on the person assessed. 
 
 § 52. [39.] Penalty for neglect, cfio.^If any such person, or his 
 substitute, shall, after appearing, remain idle, or not work faith- 
 fully, or hinder others trom working, such offender shall, for 
 every ofience, forfeit the sum of one dollar. 
 
 § 63. [40] Penalties for not working — Every person so 
 assessed and duly notified, who shall not commute, and who shall 
 refuse or neglect to appear as above provided, shall forfeit for 
 every days' refusal or neglect, the sum of one dollar. If he was 
 required to furnish a team, carriage, man or implements, and 
 shall refuse or neglect to comply, he shall be fined as follows : 
 
28 HIGHWAYS. 
 
 1. For wholly omitting to comply with such requisition, three 
 dollars for each day : 
 
 2. For omitting to furnish a cart, wagon or plow, one dollar 
 for each day : 
 
 3. For omitting to furnish a pair of horses or oxen, one dollar 
 for each day: 
 
 4. For omitting to furnish a man to manage the teapj, one 
 dollar for each day. 
 
 § 54. [41.] Commlalmts^ how made.— It shall ' be the duty of 
 every overseer of highways, within six days aJfter any person so 
 assessed and notified, shall be guilty of any refusal or neglect for 
 which a penalty or fine is prescribed in this Title, unless satis- 
 factory excuse shall be rendered to him for such refusal or neglect, 
 to make complaint on oath, to one of the justices of the peace of 
 the town. 
 
 This section confers the power on the overseers of judging of the sufficiency of 
 the delii!iqnent!s excuse. The party named may have a good and satisfactory ex- 
 cuse, as sickness, tfec. Of this the overseer is judge. If he sionld decide that the 
 excuse is not satisfactory, and should enter the complaint even unreasonably, he is 
 not liable to the party assessed, unless he acts maliciously, 1 Johns. R., 515 10 
 Johns. R,, 470. Nor is the overseer answerable, in a private action, for any erroi- 
 of judgment in the execution of his trust See 3 Johns 474. If he acts maliciously 
 it is otherwise. 5 Johns. R.. 125. Complaints must be made to the justice of the 
 same town. See form of complaint, in Appendix. No. 23. 
 
 In a suiftmary proceeding on the complaint of an overseer of highways to fine a 
 person assessed to perform highway labor, for neglect to attend when notified, the 
 question whether ttae complainant is an overseer of highways of the town, is a juris- 
 dictional fact. It may therefore be controverted when the, warrant for a fine is 
 offered in evidence in a collateral suit, e. g. in trespass by a party fined against tlie 
 
 Sarty on whose complaiiit the fine is imposed. walker vs. Mosely, 5 Denio, 102. 
 To one but an overseer of highways can enter a complaint under this section, ( J 54) 
 and one justifying in trespass for such complaint and the consequent taking of such 
 person's goods on the justice's warrant, must prove, as a part of his justification, 
 that he was such overseer w;hen he entered the complaint. lb. 
 
 § 55. [42.] Proceedings. — ^The justice to whom such complaint 
 shall be made, shall forthwith issue a summons directed to any 
 constable of the town, requiring him to summonsuch delinquent 
 to appear forthwith before such justice, at some place to be spe- 
 cified in the summons, to show cause why he should not be fined 
 according to law for such refusal or neglect ; which summons 
 shall be served personally, or by leaving a copy at his personal 
 abode. 
 
 Bee form for Summons, Appendix, No. 23. 
 
 It must be served by a constable of the same town. These proceedings are very 
 summary. The justice is aulhirized to proceed on the return of summons sei-ved 
 by copy ; the constable should therefore, be careful and make a personal service, if 
 in his power. Bee constables return, Appendix, No. 24, (9 John., 229. ) 
 
 § 56. ' [^3.] Ibid. — If, upon the return of such summons, no 
 sufficient cause shall be shown to the contrary, the justice shall 
 impose such fine as is provided in this title for the oflense com- 
 
HIGHWATa. 29 
 
 plained of, and shall forthwitli issue a warrant under his hand 
 and seal, directed to any constable of the town where such delin- 
 quent shall reside, commanding him to levy such fine, with the 
 costs of the proceedings, of the goods and chattels of such 
 delinquent. 
 
 See Appendix, No. 26. 
 
 When the summons is returned, the justice shdnld allow a reasonable time for the 
 party to appear and defend; and when it isretnrned, served bycopy, he should see 
 that all has been fair in the attempt to serve it. Ifo adjournment can be granted ; 
 but the justice can exercise a reasonable discretion in holding open the court for the 
 appearance of the delinquent, or to allow him to procure witnesses. The justice has 
 a large discretion in passing upon the sufficiency of the excuse. He is the sole 
 judge, and his decision is final. No appflal or certiorari will lie to his decision. 
 
 By the former highway acts the complaint of the overseer was final and conclu- 
 sive, and the justice had no discretion, and acted merely as a ministerial officer. Bee 
 9 Johns JR., ^29. Z Johns. R.A'li. 3 Cain, 179. _ 
 
 By the act of 1784, § 7, the overaeer was authorized to impose the fine and issue 
 the warrant The revision of the act in 1801, required the overseer to make com- 
 plaint to a justice of the peace, who proceeded ex parte, and acted miniateiially in 
 enforcing the penalty. The act of 1813, required a summons substantially as is 
 now required by the act. 
 
 The proceeding is necessarily summary. It must be had before a Justice of the 
 peace as Justice, and not before a Justice's Court. Sice vs. Milks, (7 Sarb ., 337,) 
 The overseer can judge who is in default, and demand the warrant, and although 
 the complaint is unjust, no action can lay against the justice. See form for Warrant, 
 Nos. 25 and 27. 
 
 § 57. [M.] Proceedings. — ^The constable to whom such warrant 
 shall be directed, shall forthwith collect the moneys therein men- 
 tioned. He shall pay the fine, when collected, to the justice who 
 issued the warrant, who is hereby required to pay the same to 
 the overseer who entered the complaint, and to be by him ex- 
 pended in improving the roads and bridges in the district of 
 which he is overseer. 
 
 It is questionable whether siny property is exempt from a levy under this war- 
 rant. The words of the Exemption are : " under any execution '' in the justice'^ 
 act, and the same words were used in reference to executions issued out of courts 
 of record. 2 .B. S.jjpage 254, J 169, 1st Ed. There has been no judicial exposition 
 on the subject. We think, however, that the exemption does not apply to this case. 
 
 § 58. [45.] Penalties to lesd off. — ^Every penalty collected for 
 a refnsal or neglect to appear and work on the highways, shall 
 be set off against the assessment upon which it was founded, esti- 
 mating every dollar collected as a satisfaction for one day's work. 
 
 § 59 [46.] Ekousbs. — ^The acceptance by an overseer of any 
 excuse for refusal or neglect, shall not, in any case exempt the 
 person excused from commuting for, or working the whole num- 
 ber ,of days for which he shall have been assessed dm-ing the 
 year. 
 
 If the overseer, by excusing the person, could release him from the tax, he migHt 
 defeat the object of the tax by favoritism, releasing those whom he pleases from 
 performing any highway labor at alL 
 
80 HIGHWAYS. 
 
 § 60. [47.] Proceedings to collect non-resident iabor unpaid.—' 
 Every overseer of highways .shall, on or befoi'e the first day of 
 October, in each year, make out and deliver to- the supervisor of , 
 his town, a list of all the lands of non-residents, and of persons 
 unknown, which were taxed on , his lists, on which; the labor 
 assessed by the cojumissioners of highways has not been paid, and 
 the amount of labor unpaid ; and the said overseer previous to 
 delivering such list, shall make and subscribe an affidavit there- 
 on, before' some justice of the peace of such town, that he has 
 given the notice required by the thirty-third (46th) and thirty- 
 fourth (47th) sections of this Title, and that the labor for which, 
 such land is returned, has not been performed. 
 
 See form in Appendix, Nos, 28, 39. 
 
 § 61. [48] Proceedings, c&c. — ^If any overseer shall refuse or 
 neglect to deliver such list to the supervisor, as provided in the 
 last preceding section, or shall refuse or neglect to make the 
 affidavit as therein directed, he shall, for every such oflence, for- 
 feit the sum of five dollars, and also the amount of tax or taxes 
 for labor remaining unpaid, at the rate of sixty -two and a half 
 cents for each day ; to be recovered by the commissioners of 
 highways of the town, and to be applied by them in making and 
 improving the roads and bridges in such town. 
 
 § 62. [40.] Ibid. — It shall be the duty of the supervisors of 
 the several towns, to receive the lists of the overseers of high- 
 ways, when delivered pursuant to the preceding forty-seventh 
 (60th) section, and to lay the same before the board of supervi- 
 sors of the county. 
 
 § 63. [50.] Ibi,d. — ^It shall be the duty of such board, at their 
 next meeting, to cause the amount of such arrearages of labor, 
 (estimating a day's labor at sixty-two and a half cents,) to be 
 levied on the lands so returned, and to be collected in the same 
 manner that the contingent charges of the county are levied and 
 collected, and to order the same, when collected, to be paid over 
 to the commissioners of highways of the town, to be by them 
 applied to the construction and improvement of the roads and 
 bridges in the district, for whose benefit the labor was originally 
 assessed. 
 
 § 64. [51.] Annual Return nf Overseers. — ^Every overseer of 
 highways shall, on the second Tuesday next preceding the time 
 of holding the annual town meeting in his town, with the year 
 for which he i8_ elected or appointed, render to one of the com- 
 tnissioners of highways of the town, an account in writing, veri- 
 fied by his oath, (which the commissioners of highways are au- 
 thorized to adnainister,*) and containing : 
 
 •Laws 1833, Chap. 149. 
 
HIQHWATS. 31 
 
 1. The names of all persons assessed to work on the highways, 
 in the district of which he is overseer : 
 
 ^ 2. The names of all those who hare actually worked on the 
 highways, with the number of days they have so worked : 
 
 3. The names of all those who have been jBned, and the sums 
 in which they have been fined : 
 
 4. The names of all those who have comniuted, and the man- 
 ner ill which the moneys arising from fijies and commutations 
 have been expended by him : 
 
 5. A list of all lands which he has returned to the supervisor for 
 non-payment of taxes, and the amount of tax on each tract of 
 land so returned. 
 
 Bee form in Appendix, No, 30. 
 
 § 65. [52.] To pay over Moneys.. — Every such overseer shall, 
 also, then and there pay to the commissioners, all moneys remain- 
 ing in his hands unexpended, to be applied by the commission- 
 ers in fnaking and improving the roads and bridges in the town, 
 in such manner as they shall direct. 
 
 § 66. [53.] Pewa%, how collected. — If any overseer shall 
 refuse or neglect to render such account, or if having rendered the 
 same, he shall refuse or neglect to pay any balance which may 
 then be due from him, he shall for every such offence forfeit the 
 sum of five dollars, to be recovei-ed, with the balance of moneys 
 remaining in his hands, by the commissioners of highways of 
 the town, and to be applied in making and improving the roads 
 and bridges. It shall be the duty of the commissioners of high- 
 ways to prosecute for such penalty in every instance in which 
 no return is made. 
 
 § 67. He-assessment in ease of neglect. — Whenever it shall 
 appear from the annual return of any overseer of highways, 
 made in pursuance of the fifty-first section [64th] of the sixteenth 
 Chapter of Title first of the First part of the Kevised Statutes, 
 that any person who was assessed to work on the highways, 
 (other than non-residents,) has neglected to work the whole num- 
 ber of days to him assessed, and has not commuted for, or other- 
 wise satisfied such deficiency, then it shall be the duty of the 
 commissioners of highways to re-assess such deficiency to the 
 person so delinquent, at the next assessment of work for high- 
 way purposes, and to add to it his annual assessment. — [^Laws 
 1832, ch. 107, § 2.] 
 
 § 68. Overseers. — Such re-assessment shall not exonerate any 
 overseer of highways from any penalty which he may have 
 incurred under the sixteenth sectioa of the last aforesaid chapter. 
 — {Same ch.., § 3.] 
 
32 HIGHWAYS. 
 
 What control has the overseer in improving the road over IJie soil, and materials 
 •within the limits of theroad ? Seulion 185 [I5i6] fieflnes the rights of the owners 
 of the lands as to ihe tiees standing in thft road. The general rule is, that the pub- 
 lic have a right to all ihe earth and'msterials that are necessai-y for ihe improvement 
 of the road. See notes under ^ iS6, [127.] The ease of Fieh vs. Mayor of Roches- 
 ter, (6 Paige, 212, ) is as full as any decision in this State, ag to the use of the soil 
 and materiais in improving roads. 
 
 In Maine it has been decided that a Bunteyor Vhich answers to an overseer, has 
 no authority to appropriate any land not lying within . the lines of the road. He 
 has no authority to make adjtoh through adjoining irnproved lands, for the purpose 
 of having -water turned off from the highway, however important to the piiblic it 
 may be to have it done ; and for such an act the owner of the land may maintain 
 trespass against him. Plummer vs. Siurtevant, (32 Maine JRep. (2 Red.. S25 ) 
 
 In Massachusetts it has been decided that a surveyor has authority by the State, 
 to dig down or raise a street, and if he does it with discretion and not wantonly, a 
 pai'ty injured cannot maintain an action against him ; nor it seems against any other 
 person. OcUlendervs. Marsh, (1 Pick, 418.) See as to cutting down in front of a 
 person's premises. Graves vs. Otis, (2 Hill, i6S.) William vs. J^etiney, (li JBarb., 
 620.) 
 
 * Grading and cutting down the Highway.— The rule is, that the overseer 
 
 has a right to exercise his discretion, and unless otherwise directed by the commis- 
 sioners, can grade the road as he shall judge most advisable, although it is injurious 
 to adjacent owners. ' 
 
 In Graves vs. Otis, (2 Hill, 466,) it was decided that the trustees of Watertown, 
 acting as commissioners of highways, could cut down and level the side walks, 
 although greatly injuriousto the owners of the soil, and could work and improve 
 any part of the territory.included in the sti eet, being responsible only for wanton 
 and malicious conduct by which others were injured. See Williams vs. JCenney, (14 
 Sarb., 629.) 
 
 • The overseer has a right to work, and remove the earth the whole width of the 
 highway as laid out, and cut down the banks, andthey can do so even to the injury 
 of the owner, if necessary. They probably would not be justified in excavating 
 and grading to the same extent, as ainunicipal corporation. 
 
 The city of Brooklyn regularly laid out and opened a street, and thereby acquired 
 title to the land over which it passed. Afterwards, they proceeded to grade the 
 street, in order to bripg it into publicise, and in so doing removed a high bank 
 which constituted a natural support to the premises of an adjoining owner, so that 
 a portion of his land fell in. There was no allegation of malice, or want of care or 
 skill. It was decided, that the adjacent owner could not maintain an action for the 
 damages sustained. Radcliff's Ex. vs. Mayor, die, Brooklyn, (4 Come., 1 95. ) 
 
 In this case the whole doctrine is considered and settled, as to how far or how 
 deep one may dig on his own soil and not be liable to the adjacent owner. See 21 
 Barb., 409,. 
 
 AETICLE FOUKTH. 
 
 Of the laying out'of pullic andprwate Roads, and of the alter- 
 ation and discontinuance tliereof. 
 
 § 69. |;54.] Who may a^ply.—'^Yeitj person liable to be assess- 
 ed for highway labor, maj apply to the commissioners of high- 
 ways of the town in which he shall reside, to alter or discontinue 
 any road, or to lay out any new road. [Every person liable to 
 be assessed for highway labor, and owning lands in a town in 
 which he is not a resident, may apply to .the . commissioners of 
 Mghways of the town in which the lands are situated to alter, 
 discontinue, or to lay out anyroad through the, same;] Every 
 
HIGHWAYS. 33 
 
 such application shall be in writing, addressed to the commis- 
 sioners, and signed by the person applying. [As amended 1836, 
 ch. 122.] 
 
 Id all cases where the application is to lay out aroad through enclosed, improved 
 or cultivated lands, the descriptiop of the intended road should be particular, as it 
 is the basis of the subsequent proceedings in calling out the freeholders. See form, 
 Appendix, Nbs 32 and 33. 
 
 To give the commissionera jurisdktion, the application must be made to them in 
 writing, by a person liable to be assessed for highway labor. * Harrington vs The 
 People, 6'jBarb., 611. 
 
 In that case there was an appeal from the decision of the commissioners refusing 
 to lay out a road, and the judges of Washington county laid the road, but the order 
 of the judges did not state that an application had been made in pursuance of this 
 section — and the defendant in that suit offered to show on trial, that such written 
 application had been made to the commissioners. The court say : " If the commis- 
 " sionei-s had no jurisdiction of the application to lay out the road, their determi- 
 " nation was void ; and the appeal from that determination and the decisiori on the 
 " appeal was also void. If no legal foundation was laid for the appeal, both appeal, 
 "and all the proceedings therein were nullities." 6 Barbour, S, C, 61 1. 
 
 This decision was made in the fourth district, in 1849, and in 1855, the supreme 
 court in the same district overruled the decision, and decided in the case of Gould 
 vs. Glass, (19 Barb., 179,) that the commissioners could lay out a road without a 
 written application. The court say : that this section is but permissive in its lan- 
 guage ; it confers on the citizens liable to assessment, the power to set the commis- 
 sioners in motion, when, from any cause they shall fail, neglect, or refuse to act ; 
 while the § 70, [55] by its language, implies power in the commissioners to lay out 
 roads, "either upon application or otherwise," " if they shall deem them necessary." 
 Any other consti-uction would deprive the commissioners of all volition in laying 
 out new roads or altering or discontinuing old ones. Until set in motion by writ- 
 ten application from some person liable to highway labor, they would be mere pas- 
 sive instruments, unable to act in the discharge of one branch of their important 
 duties. No such thing was contemplated by the statute. The want of a written 
 application did not, of itself, vitiate the act of the commissioners. 
 
 Jfbn-residenis are not restricted in their applications to the layingof roads through 
 their own lands. The People ex rel. Wait vs. Eggleston, (13 Howard, 123.) 
 
 § 70. [55.] Swoey. — ^Whenever the commissioners of higways 
 shall lay out,. alter, or discontinue any road, either upon appli- 
 cation to them or otherwise, they shall cause a survey to be made 
 of such poad, and shall incorporate such survey in an order to 
 be signed by them, and to be filed and recorded in the oflBce of 
 the town clerk, who shall note the time of recording the same. 
 
 The supreme court have decided in two cages that the general highway act, giv- 
 ing to commissioners of highways the power to lay new roads through wild or un- 
 improved lands, without the consent of the owners of the lands taken/ is unconsti- 
 tutional and void ; because no compensation is required to be made to such owners. 
 WMaee vs. Xarlenouski, (19 Barb., 118.) Gould vs. Glass, (19 Barb., 179.) 
 
 The legislature immediately passed a law, {see Laws of 1857, ch. 491,) giving 
 damages in such case. Thiat law as amended March 29, 1858. {Session Laws, 
 page 86,) reads as follows : " When a highway shall hereafter be laid out through 
 "unenclosed, unimproved and uncultivated lands, the damages shall be assessed in 
 "the same manner as if the same were laid out through enclosed, improved and 
 " cultivated lands." • 
 
 The law authorizing the taking of private property for public use as a highway, 
 providing for a just compensation to the owner, is not unconstitutional, because it 
 omits to make the assessment and payment of damages a condition precedent to an 
 entry upon, and occupation of the premises. Smith vs. Helmer, (7 Barb., 416.) 
 
 3 
 
34 HIGHWAYS. 
 
 § 71. [56.] Ordsr to he posted.— It shall be the duty of the 
 towia clerk, whenever any order of the commissioners for laying 
 out, altering; or discontinuing a road shall be received by him, 
 to post a copy of such order on the door of the house where the 
 town meeting is usually held : and the time hereinafter limited 
 for appealing from any such order, shall be computed from the 
 time of recording the same. 
 
 See Appemdix, No. 34. 
 
 § 72. [57.] Consent of owner wlien necessary. — ~^o public or 
 private road shall be laid out through any orchard or garden, 
 without the consent of the owner thereof, if fiuch orchard be of 
 the growth of four years or more, or if such garden have been cul- 
 tivated for four years or more, before the laying out of such road. 
 Nor shall any such road be laid out through any buildings ; or 
 any fixtures or,erections for the purposes of trade or manufactures; 
 or any yards or enclosures necessary to the use and enjoyjnent 
 thereof ; without the consent of the owner. 
 
 These restrictions on the powers of the commisaionere, apply only to cases where 
 the owner witholds his consent. The commissioners may lay out a road through 
 any kind of property with the consent of the owner, (4 Paige, 523.) In the five 
 cases enumerated^ the commissioners have no power to lay out a road: — 1. Through 
 orchards ; 2, gardens ; 3, buildings ; 4, fixtures and erections for trade, <fec., and 5, 
 yards and enclosures necessary for use of buildings and manufaetui'es. 
 
 1. OttOHAED. — To be within the prohibition, it must injure the usefulness of the 
 premises as an orchard, by taking some part where the fruit trees grow. 
 
 In The People ex rel. Seward vs.theJudgetofDvtchess, (23 TFenrf.,360.) The road was 
 laid through a lane where two apple trees stood, that had formerly belonged to the 
 orchard, but they had been separated from it by a fence for several years. The road 
 also, as laid out, passed over the circular corner of a lot or field in which there was . 
 an orchard, including in the road a piece of ground about fifty feet long, and eight 
 feet wide ; but no apple tree in the orchard situated near the road. The court say, 
 the road could not be laid out in such a manner as to deprive the owner, either in 
 whole or in part, of the beneficial enjoyment of his fruit trees. But we are, in effect 
 aslted to go further, and say that a road cannot be laid over an enclosed field, if there 
 are fruit trees in any part of it, however distant they may be from the highway. To 
 this doctrine we cannot subscribe. It does not follow that the whole field is an 
 orchard becjiuse there are fruit trees in some part of it. 
 
 Ro?ds may be laid through orchards in Westchester and Putnam counties. Ch. 
 300, o/ Lawt of 1834. 
 
 2. Garden. — It must have been cultivated as a garden four years previous to 
 laying out. What constitutes a garden is a question of fact. The general definition, 
 is a plat of ground appropriated to the cultivation of herbs or plants, fruits and 
 flowers. ' 
 
 3. BuiiDrnGS. — They must be buildings erected' previous to the application and 
 notice for the highway. If after such application and notice, the owner of the land 
 puts buildings or erections thereon, it will not prevent tlie commissioners from going 
 on and laying out the highway. It is the fault of the party himself, who cannot 
 thus defeat the operatiofi of the law. 2 Hill, 443. 
 
 4. FixTBRKS OR Bkeotions. — Onlji such as are for the purpose of ti-ade and manu- 
 factures , Over other fixtures and erections, by the oath of freeholders, a road may 
 be laid, if the erections do not amount to buildings. Tenter-bars erected for the 
 purpose of carrying on the business of a fulling mill aa-e within the prohibition. 
 C/oriuB. PArfps, (4 Com., 190.) ■ 
 
HIGHWAYSt 35 
 
 Neither a public nor a private road or way can be laid out across the fixtures and 
 erections upon the inclined plane of a rail road, which are used for the diawing or 
 letting down cars for the convejance of merchandize or passengers. 6 Paige, 83, 
 
 What are or are not fixtures and Erections, for the purpose mentioned in this sec- 
 tion, is a question of fact, and must be judged of in reference to the situation and 
 nature of the property. 
 
 5. Taeds or Enolosures. — In ex parte. Clapp, (3 Hill, 455,) the highway, as laid 
 out, passed through the door-}^ardo{ one man, and left his well, cow-shed, and apart 
 of his corn-crib in the highway. It also encroached on the garden and cow-shea of 
 another man. It was decided by the court, that the commissioners had exceeded 
 th^ir powers, no consent being given. And they further decide that the words 
 yards or enclosures, apply to " buildings " as well as to " fixtures or erections for 
 the purpose of trade." 
 
 It is not every court-yard or enclosure which is appurtenant or contiguous to a 
 dwelling house or a manufacturing establishment, through which the commission- 
 ers are prohibited from laying out a road or highway. It is pnly such yards or en- 
 closures as are necessary to the use and enjoyment of the dwelling house or manu- 
 facturing establishment. This clause must be construed in reference to the situalion 
 and nature of the property to which (he yard or enclosure is appurtenant. Lan- 
 sing vs. Caswell, (4 Paige, 523 ) 
 
 The commissioners, as well as the judges, in laying out highways, exercise a 
 special and limited jurisdiction ; and although it may be presumed, until the con- 
 trary appear, that they have acted legally, it is quite clear that their acts may be im- 
 peached by showing that they exceeded their powers. Exparte Clapp, (3 HUl, 458.) 
 
 In the case of The People vs. Goodmn, (1 Seld., 568.) the court of appeals decided 
 that a parol consent to the laying out of a highway through a building, given to 
 highway commissioners by the owner of the land and building through which the 
 road is to pass, is valid, provided, it be acted upon immediately, and the road laid 
 out before any revocation of such consent. The statute of frauds has no applica- 
 tion to such a case. Such consent being revocable, is revoked by a sale and con- 
 veyance of the land in good faith, prior to the laying out of the road. Such sale 
 and conveyance, though made during the pendency of an appeal to the county 
 court from a decision of the commissioners xn relation to such road, amounts to a 
 revocation, i 
 
 The commissioners should, however, always take care, when tjbey attempt to lay 
 a road by the permission of the owner, that his consent is given ; and they should 
 for the sake of caution, require it to be in writing. For, if a man means, honestly, 
 to give his consent, he will not hesitate to put it in writing. 
 
 The objection may be waived by the act and conduct of the owner. Thus, if he 
 should appear before the judges on appeal, and litigate the question of damages, 
 and appeal to the board of supervisors, it would undoubtedly be a legal consent to 
 the laying of the road. 4 Paige, 523. 
 
 A court of equity has no right to inquire into the proceedings of commissions 
 of highway for laying out roads, levying taxes therefor, <tc., with a view to set thenj 
 aside, if void at law, or for the puipose of staying or restraining such proceedings. 
 3 hatcher vs. Dusenbury, (9 Sow. Pr. P., 32.) 
 
 § 73. [58.] Oaths, dio., when necessary. — No highway shall be 
 laid out through enclosed, improved, or cultivated land, without 
 the consent of the owner or occupant thereof, unless certiiied to 
 be necessary by the oath of twelve reputable freeholders of the 
 town, in the manner hereinafter provided. 
 
 See Appendix, So. 35. 
 
 It is no objection that the certificate is signed by more that twelve freeholders ; 
 and in a case where the certificate was signed bv^twenty freeholders, the fact that 
 five of them were of kin to the owner of the land, it was held that it did not vitiate 
 it, there being still twelve who were properly qualified to sign. (7 IVend., 264.) 
 
 Many of the remarks as to consent of owners, made under the last section, apply 
 equally to this. A written consent is not necessary. The public acquire an in- 
 
36 HISHWATS. 
 
 terest in snch road. Although there he no writing to pass the title of an owner, 
 the Statute regulating highways, provides for the laying out of highways by the 
 consent of the owner. 6 Wend., 461. 
 
 A promise to pay the owner of lands a specific sum, on his consenting to have a 
 public road laid through his lands, is not, for this reason, within the Statute of 
 Frauds, and may be enforced by an action, if such road be laid out and occupied 
 as such. 6 Wend., 4S1. 
 
 This section uses the words owner or oeenipant. This does not mean that the con- 
 sent of a tenant only can confer the right to take the premises upon -the commis- 
 sioners. If the occupant ha? an interest in the lands, his consent, as well as the 
 owner's must be obtained. This is thought to be the correct view of the section, 
 althdugh there is no adjudication on the subject. 
 
 In Cattaraugus and Allegany counties twelve respectable inhabitants of the town 
 may make the certificate. Lam 1830, chap. 925. 
 
 § 74. [59.] Notice of appUeaUon. — 'Every person who shall 
 apply for the laying out of a highway through any such land, 
 shall cause notices in writing to be posted up at three of the most 
 public places of the town, specifying, as near as may be, the 
 route of the proposed highway, the several tracts of land 
 through which the same is proposed to be laid, and the time and 
 place at which the freeholders will meet to examine the ground. 
 Every such notice shall be posted up at least six days before the 
 time specified therein for the meeting of the freeholders. 
 
 See Appendix, No. 36. 
 
 If the termini and general route of the proposed road are given, without specify- 
 ing the course and distances, it will be a sufficient compliance with the statute.' 
 This is the business of the commissioners or judges, if they conclude to lay out the 
 road. 33 Wend., 360. The People vs. Judges of Dutchess. 
 
 The phrase "as near as may be," is used relatively with reference to the subject 
 to which it is applied. What would be near in one case would not be near in 
 another. 
 
 In The People vs Denslow, (I Gain's, 177,) it was thought that a statute requiring 
 a turnpike company to erect their gate near I. V. H.'s house, had been complied 
 with, by erecting the gate within thirty- three rods of the house. On the contrary, 
 in Oriffin vs. Some, (IB John., 397,) where a turnpike company, with a road about 
 twenty miles in length, were required to locate their easterly gate at such a place 
 near the Massachusetts line as the president and directors should direct, it was held 
 that a gate two-and-three-quarter miles frpm the line was too far off to be near. 
 For a further explanation of the term " near," see Hamilton vs. Rice, (7 Barb., 157.) 
 TAe People vs. Mnger,(2iib.,3il. ) {19 Wend., 58.,) (23 i6., 328.) 
 
 ' § 75. [60.] Procdedmgs. — ^If twelve reputable freeholders of 
 the town, not interested in the lands through which the road is 
 to be laid, nor of kin to the owner thereof, shall appear at the 
 time and place specified in the notice, they shall then be sworn by 
 a justice of the peace,* or any officer authorized to administer 
 oaths, well and truly to examine and certify, in regard to the 
 necessity and propriety of the highway applied for. 
 
 The commissioners have no authority to act, until twelve freeholders certify to the 
 necessity and prqpriety of the road; but when tosjrfj; unite in a representation, 
 twdve of course concur. In such case, if _/?«« were nnqiialified, still enough remained 
 to make the number txuelve, who were qualified. 7 Wend., 264. 
 
 "I^aws of 1834, chap. 267, % 1. 
 
HIGHWAYS. 37 
 
 When tlie commissioners of highways, in theii- determination ox- order refusiBg to 
 lay out a road, state that twelve freeholders have met and decided that such road is 
 necessary and proper ; that is, in effect, an admission by them that such freeholders 
 were competent and unobjectionable. But as such statement involves the question 
 of jurisdiction, it is not conclusive, and may be examined by the referees appointed 
 by the county court, on appeal from the order of commissioners. The People ex 
 rel. Flini vs. Olive, (a3 Barb., 197.) 
 
 The fact Jhat one out of twelve freeholders who meet and view the site of a pro- 
 posed road, and certify whether it is necessary and whether it will be proper to lay 
 it out, is the brother-in-law of a trustee of a church which holds the title to a part 
 of the Jand to be taken for such highway, does not render him incompetent to act. 
 He is not " of kin to the owner " of the property within the intent and meaning of 
 the statute. lb. 
 
 A ti'ustee of a religious society is not literally lan owner of its land; that is in 
 fact owned by the society. Hence the relation of a trustee is not of kin to an 
 owner. lb. 
 
 In the case of The Town of Gallatin vs. Lmicks, (21 Barb., 578,) twelve free- 
 holders had been sworn to examine and certify as to the necessity of the road ; and 
 after such examination eleven of the jurors signed the certificate.^the commission- 
 ers refused to lay the road ; there was an appeal to the county court and referees 
 were appointed who laid the road, damages were assessed and laid before the super- 
 visors, who levied the amount on the town; on a question raised as to the regularity 
 of the proceedings, the supreme court decided that all the proceedings in laying out 
 the road, were null and void, on the ground that twelve freeholders had not signed 
 the certificate. 
 
 Also, in The People vs. Commissioners of Seward, (27 Barb., 94,) the court decided 
 that to authorize the laying o'ut of a highway through improved, enclosed, or cul- 
 tivated land, there most be a certificate of its necessity, signed by twelve freehold- 
 era. If either of the persons signing the certificate is not a freeholder, the subse- 
 quent proceedings will be without jurisdiction, and those concerned in enforcing 
 them will be trespassers. 
 
 A recital in the order of commissioners of highways, laying out a road, that 
 twelve freeholders have certified as to its necessity, is not conclusive evidence of the 
 fact. That being a juriMictional fact is open to contradiction, 
 
 § 76. [61.] Ibid. — ^They shall then personally examine the route 
 of such highway, and shall hear any reasons that may be offered 
 for or against laying out the same. If they shall be of opinion 
 that such highway is necessary and proper, they shall make and 
 subscribe a certificate in writing to that effect, which shall be 
 delivered to the commissioners of highways of the town. 
 
 See Appendix, No, 37. 
 
 This section is very clear. 
 
 The jury decide that a road between certain specific points is necessary and pro- 
 per ; and leave the particular description of the road by routes and bounds, and by 
 its course and distance, to the decision of the commissioners, 2.3 Wend., 360. 
 
 This certificate should be filed in the town clerk's ofiice. It is a public docu- 
 ment, open for the inspection of all the inhabitants of the town. 2 Caw., 623. It 
 was decidedby the supreme court, in this case also, that if such certificate came into 
 the hands of a stranger, who is not a commissioner, the supreme court would 
 compel him, by attachment, to file it in the town clerk's office, for inspection of a 
 person who was a party to a suit where a road was in qu^stion. 
 
 Where an order laying out a highway, was signed by only two of the commis- 
 sioners, and did not recite the fact that the third commissioner either attended or 
 participated in the deliberations of the others, or that he had been notified to do so; 
 but on the comrary, it did recite the fact of a notice, that the two who subscribed 
 the order would attend to decide upon the application, and that they did in fact 
 hear and decide the same and lay out the road, it was held that the ordei' was vaid. 
 
38 HIGHWATS. 
 
 The People, tic, vs. Seward, (97 Barb., 94.) And that parol evidence could "ot be 
 received, to ehow the fact that the third commissioner was notified, and attended 
 and took part in the proceedings for laying out the road. lb. 
 
 Kg compensation shall be allowed any juror for examining and certifying i"^!^" 
 gai'd to the necessity and propriety of any highway being Kid out, altered or dis- 
 continued, nor for appearing to make such examination, {_Beo. 14, of cJiap. 180, <yf 
 1845.] 
 
 §77. [62.] Mtice to ocoi^mts.— Before the commissioners 
 Bhall determine to lay out the highway so applied for and certi- 
 fied, they shall cause notice in writing to be given to the occu- 
 pant of the land through which the road is to run, of the time 
 and place at which they'will meet to decide on the application. 
 The notice shall be served by delivering the same to such occu- 
 pant, or, if he be absent, by leaving the same at his dwelling- 
 house ; and in either case, at least three days before the time of 
 meeting. 
 
 Appendix, No. 38. 
 
 It would appear from this section, that a notice served on the oceupant ig sufficient. 
 An occupant may have a very little interest in the premises. It is his duty, how- 
 ever, if a tenant, to notify his landlord. There are no decisions explaining this 
 section. » 
 
 § 78. [63.] Description of road.^-The commissioners shall 
 meet at the time specified in the notice, and shall hear any reasons 
 that may be oflered for or against laying out the highway. If 
 they shall determine to lay out such highway, they shall make 
 out and subscribe a certificate of such determination, describing 
 the road so laid out, particularly, by routes and bounds, and by 
 its courses and distance, and shall deposit the same with the town 
 clerk. 
 
 AppenMx, No, 39. 
 
 Their determination must be confined to the highway applied for ; but they are 
 not limited to the precise route, specified in the application ; they may in the exer- 
 cise of a sound discretion, make such variations as they may judpe proper. The 
 departure, must not, however, be so great as to induce the belief that the prelimi- 
 nary proceedings have been wholly disregarded ; the general course of the road 
 must be preserved. By the § 74, the applicant is to specify " as near as may be, the 
 route of the proposed highway." The freeholders act only upon the notice of tho 
 applicant and the general description of the route therein, and have no authority 
 to locate it with greater particulai'ity. They determine only whether such highway 
 is necessary and proper. The commissioners, by this section, are required to 
 describe it partieiuarly, by routes and bounds, courses and distance. See Woolsey vs. 
 Tompkins, (S3 Wend.,32i.) Hallockvs. Woolsey. {ZZ Wend.,3W.) 
 
 The certificate required by this section will be, however, sufliciently conforma- 
 ble to it, if, in the description of the road, a single line is given which will be inten- 
 ded as the center of the highway, and it contains a specification of the quantity of 
 land which the road will take from each proprietor over whose ground it passes. By 
 this its width can be ascertained , The People vc. Commissioners of iHghways of 
 Redhook, {\3 Wend., 310.) Merrick vs. Storer. (3 Wend., 580 ) 
 
 It was also decided in Woolsey vs. Tompkins, {ii Wonrf. , 324,Uo the same effect, that 
 it will be sufficient if this certificate state the termini (this is its beginning and end) 
 of the road, and its route by courses and distance. It is not necessai'y to state the 
 bounds of each course. 
 
HIGHWAYS. i>y 
 
 It is advisable, howeyer, that all the bounds and width, as well as its course, be 
 particularly stated to avoid future uncertainty or controversy. 
 
 In their decision upon the propriety of laying out of a road, the commissioners 
 have no right to make conditions with the interested parties. They have no right 
 to say, that if they shall order a highway to be laid out, individuals shall assume or 
 become bound to pay the expenses. Wehb vs. JJbertson, (4 JDarb., 51.) 
 
 A bond taken in the names of the commissioners of highways of a town virtute 
 officii, for the benefit of the town in its corporate capacity, and intended to relieve 
 the taxable inhabitants of the town frorn the payment of a tax for a public improve- 
 ment, viz : the extension and opening of a public higliway — cannot be enforced 
 against the obligors : the commissioners having no.authority to take a bond of that 
 nature, and the general policy of the law forbidding such a transaction. Webb vi, 
 Albertson, (4 Barb. S. G. Bep., 51. ) 
 
 § 79. To la/y out streets or SigTiways across railroad tracks. — 
 It shall be lawful for the authorities of any city, village or town 
 in this state, who are by law empowered to lay out streets and 
 highways, to lay out any street or highway across the track of 
 any railroad now laid, or which may hereafter be laid, without 
 compensation to the corporation owning such railroad ; but no 
 such street or highway shall be actually opened for use until 
 thirty days after such notice of such laying out has been served 
 personally upon the president, vice-president, treasurer, or a 
 director of such a corporation. [1853, ch. 62, § 1.] 
 
 § 80. EaUroad corporations to take streets or MgTiways across 
 their tracks. — ^It shall be the duty of any railroad corporation, 
 across whose track a street or highway shall be laid out as afore- 
 said, immediately after the service of said notice, to cause the 
 said street or highway to be taken across their track, as shall be 
 most convenient and useful for public travel, and to cause all 
 necessary embankments, excavation and other work to be done 
 on their road for that purpose ; and all the provisions of the act, 
 passed April second, eighteen hundred and fifty, in relation to cross- 
 ing streets and highways, already laid out, by railroads, and in 
 relation to cattle guards, and other securities and facilities for 
 crossing such roads, shall apply to streets and highways hereafter 
 laid out. [1853, 6h. 62, § 2.] 
 
 §81. — Penalty forneglect or refusal. — If any railroad cor- 
 poration shall neglect or refuse, for thirty days after the service 
 of the notice aforesaid, to cause the necessary work to be done 
 and completed, and improvements made on such streets or high- 
 ways across their roads, they shall forfeit and pay the sum of 
 twenty dollars for every subsequent day's neglect or refusal, to 
 be recovered by the officers laying out such street or highway, to 
 be expended on the same ; but the time for doing said work may 
 be extended, not to exceed thirty days, by the county judge of 
 the county in which such street or highway, or any part thereof, 
 may be situated, if, in his opinion the said work cannot be per- 
 formed within the time limited by this act. \_8ame ch., § 3.] 
 
40 HIGHWAYS* 
 
 § 82. [64.] Damages ascertamed ly ap-eement.—Th.Q damages 
 sustained by the reason of tlie laying out and opening such road 
 may be ascertained by the agreement of the owner and the com- 
 missioners of highways, provided such damages do not exceed 
 one hundred dollars, and unless such agreement be made, or the 
 owner of the land shall in writing release all claim to damages, 
 the same shall be assessed, in the manner prescribed by law, 
 before such road shall be opened, or worked, or used. Every 
 such agreement or release shall be filed in the town clerk's office, 
 and shall for ever preclude such owner from all further claim 
 for such damages. [Amended by ^22, of chap- 455 of 184T.] 
 
 See Appendix, ifo. 40. ' 
 
 This agreement should be in writing, because it is required to be filed. The release 
 must be in writing. 
 
 No one but the owner of the land is entitled to damages. The occupant or 
 tenant has no claim. If he is disturbed in his possessions, he must look to his land- 
 lord for redress. 
 
 In the case of 'The People vs. S^ipemsore of Oneida, (19 Wend.j 102. ) The road 
 was wholly on the land of other persons, but ran along the ■ line of the applicant's 
 farm, taking no portion of his land, but subjecting him to the expense of maintain- 
 ing the whole of a fence ; the expense of only one-half was before borne by him. 
 The court decided that he was not entitled to damages. Justice Bronson, says, the 
 case has not been provided for by statute. The language of the statute is bi'oad 
 enough to include consequential damages ; but th»y can only be allowed where 
 some portion of the applicant's land has been taken for the highway. The dama- 
 ges may, in certain cases, be ascertained by the agreement of the owner and the com- 
 missioners. If not agreed on, they are to be assessed in the manner pointed out in 
 the following sections : 
 
 By the true construction of; the statute in Connecticut, relating to highways, the 
 assessment of damages is to be confined to the owners of land through which the 
 highway is laid out. Clark vs. Saybrook, (21 Oonn., 313.) 
 
 § 83. Damages how to he assessed. — "Wherever any damages 
 are now allowed to be assessed by law when any road or high- 
 way shall be laid out, altered or discontinued in whole or in part, 
 such damages shall be assessed by not less than three commis- 
 sioners to be appointed by the county court of the county in 
 which such road or highway shall be, on the application of the 
 commissioner or commissioners of the town ; and the commis- 
 sioners so appointed, shall take the oath of office prescribed by 
 the constitution, and shall proceed, on receiving at least six days' 
 notice of the time and place, to meet the highway commissioners 
 and take a view of the premises, hear the parties and such wit- 
 nesses as may be oflPered, before them ; and they shall all meet 
 and act and shall assess all damages which may be required to 
 be assessed on the same highway, and shall be authorized to ad- 
 minister oaths to witnesses which may be produced before them 
 under this action, and when they shall all have met and acted, 
 the assessment agreed to by a majority of them, shall be valid ; 
 and when so made, shall be delivered to a commissioner of high- 
 
HIGHWAYS. 41 
 
 ways of the town, who, within ten days after receiving it, shall 
 file it in the town cle:5i:'s office. {Amended by ^2, of chap. 455, 
 
 In considering the items of damage to be a\rarded to the owner, through whose 
 lands the highway is laid out, the commissioners have a right to consider that the 
 road will be devoted to the public as an easement, and also such right of pasturage 
 by cattle, horses and sheep, as the electors of the town shall by their vote permit. 
 Orijin vs. Martin, (7 Barb., 297.) 
 
 It has been doubted by many whether the law (1 R, S., 341, ^,5, Scb. 1,) empower- 
 ing the electors oftowns to makerulesandregulations for ascertainingthe sufficiency 
 of fences, and for determining the times and manner in which "cattle, horses and 
 sheep shall be permitted to go at large on highways" iscoostitutional [/6., see Holladay 
 vs. Marsh, (3 Wendell, 142.) I'onawama H. R. Oo., vs. Mumger, (5 Denio, 255.) 
 WhUe vs. Scott. (4 Barb. 8. G. Rep., 56.) 
 
 It is now decided that the statute which authorizes the electors of a town, at their 
 annual town meeting, to determipe the time and manner in wliich horses, cattle and 
 sheep shall be permitted to go at large on highways, is not in conflict with the con- 
 stitution of this State. Hardenhergh vs. Lockuiood, (25 Barb., 9.) 
 
 The right to allow cattle, horses or sheep, to g<> at large on highways, is one of the 
 easements or servitudes pertaining to the land occupied by usage as old as the his- 
 tory of our Country. Zb. 
 
 The land is to be presumed to have been laken with reference to the usage, and the 
 exercise of the right by the proper authorities. Jb. 
 
 § 84. "When a highway shall hereafter be laid out through un- 
 enclosed, unimproved and uncultivated lands, the damages shall 
 be assessed in the same manner as if the same were laid out 
 through enclosed, improved and cultivated lands. [1857, ch. 491, 
 as amended, 1858, ch. 51.] 
 
 Appendix, No. 36. 
 
 § 85. Provision in case persons conceive themseVoes aggrieved. 
 Any person conceiving himself aggrieved, or the commissioner 
 or commissioners on the part of the town feeling dissatisfied by 
 any such assessment, may, within twenty days after the filing 
 thereof as aforesaid, signify the same by notice in writing, 
 and serving the same on the town clerk and on the opposite party, 
 that is, the persons for whom the assessments were made on the 
 commissioner or commissioners. of highways, as the case may be, 
 asking, for a jury to re-assess the damages and specifying a time 
 not less than ten nor more than twenty days from the time of 
 filing said assessment, when such jury will be drawn at the 
 clerk's office of an adjoining town of the same county, by the 
 town clerk thereof; which notice shall be served upon said oppo- 
 site party within three days after service upon the town clerk as 
 aforesaid, and may be served personally or by being left at the 
 dwelling house of the party with some person in charge thereof, 
 or if there be no such person, or the house be closed, then by 
 fixing 'the same upon the outer door of said dwelling house. [Sec. 
 3 of chap. 455, of 1847.] 
 
 AppevMx, No. 37. ' 
 
42 HIGHWAYS. 
 
 § 86. Names of jurors to he put vn box and drawn. — At ihe 
 time and place mentioned in the preceding section, the town clerk 
 of such adjoining town, having received three days previous 
 notice that such jury is to be drawn, from the person or party 
 asking a re-assessment, shall deposit in a box the names of all 
 such persons then residents of his town, whose names are on the 
 last list filed in said town clerk's oflBce of those selected and re- 
 turned as jurors, pursuant to Article second, Title four, chapter 
 seventh, part third of the Eevised Statutes, who are not interest- 
 ed in the lands through which such road shall be located, nor of 
 kin to either or any of the parties, and shall draw therefrom the 
 names of twelve persons, and shall make a certificate of such 
 names and the purposes for which they were drawn, and shall 
 deliver the same to the party first asking for the re-assessment. 
 \8ee. 4: of same ehapter.'] 
 
 ■ Appendix, No 38. 
 
 § 87. Jury when to he summoned. — The party receiving such 
 certificate shall, within twenty-four hours thereafter, deliver the 
 same to a justice of the peace of the town wherein the damages 
 are to be assessed ; and it shall be the duty of such justice forth- 
 with to issue a summons to one of the constables of his town, 
 directing him to summon the persons named in said certificate, 
 and shall specify a time and place in said summons at which 
 the persons to be summoned shall meet, but no meeting of such 
 persons shall be had within twenty days from the time of filing 
 the assessment of damages in the town clerk's oflSce by the com- 
 missioner or commissioners of highways. [Sec. 5 of same chap^ 
 
 Appendix, No. 39. 
 
 § 88. Six jurors to le drawn to re-assess damages. — Upon such 
 persons appearing at the time and place mentioned in the sum- 
 mons, the justice who issued the summons shall draw by lot, si;c 
 of the persons attending, to serve as a jury, and the first six per- 
 sons drawn who shall be free from all legal exceptions, shall 
 be the jury to re-assess all the damages required to be re-assessed, 
 upon the same highway ; and the said jury shall be sworn by 
 the said justice well and truly to determine and re-assess such 
 damages as shall be submitted to their consideration, and shall 
 take a view of the premises, hear the parties and such witnesses 
 as may be oflfered by the parties, and sworn by said justice before 
 them and shall render their verdict in writing under their hands, 
 which shall be certified by said justice and be delivered to the 
 commissioners of highways of the town, and the same shall be 
 final, \_8eo. 6 of same chap.'} 
 
 Appendix, No. 40, 41, 36. 
 
HIGHWAYS. 43 
 
 § 89. Costs h/ whom to he paid. — In all cases of assessments of 
 damages undei* the provisions of this act by the commissioners 
 appointed by a county court, the costs thereof shall be paid by 
 the town in which the damas;e8 shall be assessed, and in cases of 
 re-assessments of damages by a jury on the application of the 
 -commissioners of highways of any town, and the first assess- 
 ment shall be reduced thereby, the costs of such assessment shall 
 be paid by the j^rty claiming the damages, otherwise by the 
 town ; and in case a re-assessment of damages shall be had on 
 the application of the party for whom the damages were assessed, 
 and such party shall fail to increase the same, he shall pay 
 the costs thereof, but when such damages shall be increased by 
 the jury, fhe costs shall be paid by the town ; and when appli- 
 cations shall be made by two or more persons for the re-assess- 
 ment of damages by a jury, such jury shall be obtained in con- 
 formity with the terms of the notice first served upon the clerk 
 of the town in which the damages are to be assessed ; and all 
 persons who may be liable for costs under this section, shall be 
 liable in proportion to the amount of damages respectively 
 assessed to them by the first assessment, and may be recovered 
 in an action of assumpsit at the suit of any person or persons 
 entitled to the saime, before a justice of the peace. \%1 of scmie 
 
 § 90. Allowance of fees. — Town clerks 'shall be allowed the 
 sum of fifty cents for drawing and certifying a jury as provided 
 by this act, and a constable for summoning such jury, shall be 
 allowed two dollars, except when the jury shall be taken from 
 the same town wherein the road is located, in which case he shall be 
 allowed only one dollar. And jurors who shall be summoned 
 from an adjoining town, and shall attend, but not serve, shall be 
 entitled each to fifty cents, and if they shall serve, then one 
 dollar ; if from the same town, and shall attend and not serve, 
 twenty-five cents ; , if they shall serve, then fifty cents each. 
 [1847, ch. 455, § 19.] 
 
 § 91. Yacoinoies., Jiow svppUed.' — If for any cause any commis- 
 sioner or referee appointed under this act shall be prevented 
 from serving, or shall refuse to serve, the court or officer who 
 appointed him, shall have power to appoint another to supply 
 his place, \sam6 cTi., § 20.] 
 
 § 92. Orders to he filed m tovm clerk's office. — All orders for 
 the appointment of commissioners or referees under this act, shall 
 be filed and recorded in the office of the town clerk of the town 
 in which the road shall be located. [Same cA., § 21.] 
 
44 HIGHWATS. 
 
 § 93. Damages assessed to he audited hy hoard of supervisors. — 
 All damages which may be finally assessed or agi-eed upon by 
 commissioners of highways, for the laying out of any road except 
 private roads, shall be laid before 'the board of supervisors, by 
 the supervisor of the town, to be audited with the charges of the 
 commissioners, justices, surveyors, or other persons or officers 
 employed in making the assessment and for whose service the 
 town shall be liable, and the amount shall be levied and col- 
 lected in the town in which the road is located, and the money 
 so collected shall be paid to the commissioners of such town, 
 who shall pay to the owner the sum assessed to him, and appro- 
 priate the residue to satisfy the charges aforesaid. [Amended hy 
 § 23 of chap 455, of 1847.] 
 
 When Biich damages are finally assessed, the several persons in whose favor the 
 same are awarded acquire a vested right to it, which it is not in the power of the 
 town or commissioners to defeat, by discontinuing the proceedings,. Hawhins vs. 
 Trustees of Rochester. (1 Wend., 53.) 
 
 As to issuing a mandamus against the board of supervisors in case they refuse to 
 assess the amount of damages, see The People vs. Supervisors of Ulster Co., (3 Barb., 
 33'2,) and People vs. Supervisors of West Chester, (13 Marb , 446.) 
 
 Where the damages have been assessed and laid before the board of 'Supervisors, 
 who have liquidated and settled the amount of damages due to the owners of the 
 land, such owners have a vested right to the sums awarded to them respectively 
 for such damages, and are entitled to a writ of rnandamus to compel the board of 
 supervisors to cause the same to be raised and paid to them. Th£ People vs. Super- 
 visors of Westchester, (4 Barb., 64 ) 
 
 In the case of The People vs. Supervisors of St. Lawrence, (5 Cow., 292,) the court 
 granted a mandamus commanding the supervisors to levy and collect the damages 
 that had been awarded to the owneis of the land. 
 
 On the subject of mandamus, see 2 Johns.' Cases, ^£ld.,un. Hfote. 
 
 § 95. [71.] Damages in certain cases., Tiow esUmated.-Wh.QTQ any 
 person shall be the owner of any land over which any highway 
 shall run, and such highway shall be discontinued, in whole or 
 in part, by reason of some other road to be established and laid 
 out under this Title, through the lands of the same person, the 
 persons who shall assess the damages shall take into calculation 
 the value of the road so discontinued, and the benefit resulting 
 to such person by reason of such discontinuance, and shall deduct 
 the same from the damages assessed for the opening and laying 
 out of such new road ; and thereupon the owner of the lanc[ 
 may enclose so much of the highway so discontinued, as shall 
 belong to him. 
 
 The fee of the land having always been in the owner of the soil, when the road 
 is taken up it will revert to him, of course ; and when the road is change.!, in whole 
 or in part, and a new location is substituted, it is right 'hat the benefit should be 
 deducted from the assessment of damages. Such deduction can be made only where 
 the road oi' part of it is discontimted by reason of the same, and the road established 
 
HIGHWAYS. 45 
 
 and laid in substitution of the part diBeontinued. Jackson vt. Hathaway, (15 Johns. 
 It-, 447. Whittock vs. Cook, 15 ib., 491 . See also, notes under See. 185, 186, [126 u/wZ 
 127.] Also, Cortelyou vs. Van JSrmidt, 2 J. R., 357.) 
 
 The publip use of a highway being but an easement, subject to which the owner 
 of the land over which it passes retains, his title, there is always a contingency by 
 which the owner may return into fail possession of the land, on its being no longer 
 required by the public. When this contingent event will happen is ordinarily un- 
 known, and is wholly immaterial, as regai'ds the rights of the landholder. Whether 
 the public retains the use of the land for a century, or for a year, or but for a single 
 day, cannot effect his title to a compensation. That becomes fixed and rested, the 
 instant his property is taken for pi}blic use. The Feople vs. Supervisors of West- 
 chester, {i Barb., Gi.) 
 
 § 96. [72.] Disagreements respecting certain roads. — ^When the 
 commissioners of highways of any town shall disagree with the 
 commissioners of any other town in the same county, relating to 
 the laying out of a new road, or the alteration of an old road, 
 extending into both towns ; or when the commissioners of a town 
 in one county shall disagree with the commissioners of a town 
 in another county, relative to the laying out a new road, or alter- 
 ing an old road which shall extend into both counties ; the com- 
 missioners of both towns shall meet together at the request of 
 either disagreeing commissioners, and make their determination 
 upon such subject of disagreement. 
 
 § 97. [73.] Boad wpon Ime of two towns. — ^Whenever it shall 
 become necessary to have a highway upon the line between two 
 towns, and such highway shall be laid out by two or more of the 
 commissioners of highways of each of said towns, either upon 
 such line, or as near thereto as the convenience of the ground 
 will admit ; and they may so vary the same either to the one or 
 the othei; side of such line, as they may think proper. 
 
 § 98. [74r.] How divided into dlstncts. — It shall be the duty of 
 the same commissionefs, when they lay out such highway, to 
 divide it into, two or more road districts in such manner that 
 labor and expense of opening, working and keeping in repair 
 such highway, through each of the gaid districts, may be equal, 
 as near as may be, and to allot an equal number of the said dis- 
 tricts to each of the said towns. 
 
 Commissioners of highways of adjoining towns are authorized to act together 
 in laying out highways on the lines of their respective towns, and in districting 
 Buch.as are ?.Iready laid out. But when a highway is laid out by them, they are 
 required to divide it into districts, and allot an equal number of districts to each 
 town. The districts when allotted, are each to be considered as belonging wholly 
 to the town to which it is allotted. And the commissioners of the two towns can- 
 not unite as plaintitft and bring an action to recover a penalty or forfeiture, for an 
 encroachment upon a highway running on the line of the town. Bradley vs. Blair, 
 [n Barb, m.)] 
 
46 msHWATS. 
 
 § 99. [75.] JEfect of allolment. — Each district shall be con- 
 sidered as wholly belonging to the town to which it shall be allot- 
 ed, for the purpose of opening and improving the road, and for 
 keeping it in repair ; and the commissioners shall cause such 
 highway, and the partition and allotment thereof, to be recorded 
 in the office of the town clerk in each of their respective towns. 
 
 § 100. [76.] Former Road. — AH highways heretofore laid 
 upon the line between any two towns', shall be divided, alloted, 
 recorded, and kept in repair, in the manner above directed. 
 
 PKIVATE EOADS. 
 
 tJnder the former conBtitution, it was held that private roads could not-be laid 
 out, on the ground that there was no prorision in it making compensation to the 
 owner. The present constitution of the State contains the following section : 
 
 " Private roads may be opened in the manner to be pretcribed by law, bat in every cote 
 " thenecestity of the rOadand the amount of all damages to be sustained by the opening 
 " thereof, shall be first determined by a jury of freeholders, and such amount together with 
 " the expenses of the proceedings shall be paid by the person to he beneJUted." Art. 1, 
 sec. 7. 
 
 This provision was introduced on account of the decision, (4 Bill 140, Taylor vs. 
 Porter dk Ford,) in which the supreme court decided that the laws in relation to 
 private roads were contrary to the former constitution. 
 
 The supreme court had declared that a private road might be laid under this sec- 
 tion by the consent of the owner of the land, on the principle that a man may re- 
 nounce a constitutional provision made for his own benefit. iHaker vi.£raman.(6 
 mi.il.) *^ ^ 
 
 § 101. AjopUcation for ^mvate road. — An application for a 
 
 {)rivate road shall be made in writing, specifying its width and 
 ocation, courses and distances, and the names of the owners and 
 occupants of the land through which the road is proposed to 
 be laid out. [1853, cA. 174, § 1.] 
 
 4 102. Jury to determme its necessity.— '^e commissioner or 
 commissioners to whom such application shall be made, shall 
 thereupon appoint as early a day as the convenience of the par- 
 ties interested will allow, when at his office, a jury will be selected 
 for the purpose of determining upon the necessity of said road 
 and to assess the damages by reason of the Opening thereof! 
 [Same, § 2.] 
 
 § 103. Ctypy oppUeaMon cmd notice to he deUoerisd.—^xuih. com- 
 missioner or commissioners shall thereupon delivef to the appli- 
 cant a copy of such application, to which shall be added a notice 
 of the time and place appointed for the selection of such jury, 
 addressed to the owners and occupants of said land. {Same, § 8 ] 
 
HIGHWAYS. 
 
 m 
 
 § 104. Copy notice to le served. — ^The applicant, on receiving 
 such copy and notice, shall, on the same day or the >next day 
 thereafter, cause such copy and notice to be served upon the per- 
 sons to whom it is addressed, by delivering to each of them 
 who reside in the same town, a copy thereotj or in case of his 
 absence, by leaving the same at his dwelling house, and upon 
 such as reside elsewhere, by depositing in the post office a 
 copy thereof to each, addressed to them respectively at their 
 place of residence, and paying the postage thereon, or in case , 
 of infant owners, by like service upon their parent or guardian. 
 [Same, § 4.] 
 
 § 105. Idst of persons to act as jurors. — At .such time and 
 place, on due proof of the service of such notice, such commis- 
 sioners, or in a town where there are more than one, either of 
 them, shall present a list of the names of eighteen persons, resi- 
 dents of the said town, and qualified to act as jurors in courts of 
 records, who are in no wise of kin to such applicant, owner or 
 occupant, or either of them, and not interested in such lands. 
 [Same, § 5.] 
 
 § 106. C&rtam rvu/mher of names to he struck off from list. — 
 The owners or occupants of such lands may strike off from such 
 list, any number of names not exceeding six ; the applicant may 
 in like manner strike off six names or less, and the persons whose 
 names are not stricken oftj or if more than six names are left 
 upon the list, then the six persons whose names stand, first upon 
 the list, shall be the jury for the purpose aforesaid. [Srnne, § 6.] 
 
 § 107. Place of meeting of jury. — The commissioner shall 
 then appoint some convenient time and place for the jury to 
 meet, and be sworn in the premises, and shall summon them 
 accordingly. [Sam^, § 7.] 
 
 § 108. Jury to determine and assess damages. — If at the time 
 and place last mentioned, all the persons named as such jury 
 shall meet, they shall be sworn well and truly to determine as to 
 the necessity of said road, and to assess the dainages by reason 
 of the opening thereof ; if one or more of such six peraons 
 shall not appear, the commissioner shall summon of the bystand- 
 ers or others, so many free from all legal objection as will be 
 sufficient to make the number six, who shall be sworn as afore- 
 said. [Same, § 8.] 
 
 § 109. Commissioner to swear the jury. — Such commissioner 
 is hereby authorized to swear the jury, and administer any oath 
 necessary to carry this act into effect. [Same, § 9.] 
 
48 HIGHWAYS. 
 
 § 110. Jury to make up their verdict. — ^The jury shall view the 
 premises, and, after hearing the allegations of the parties, and 
 such witnesses as they may produce, shall proceed to deliberate 
 and make up their verdict, and if they shall determine that the 
 proposed road is necessary, they shall assess the damages to the 
 person or persons through whose land the same is to pass, and 
 deliver their verdict in writing to the commissioners. [Scmhe, % 10.] 
 
 See Appendix, No. 45. 
 
 § 111. Jury to take into consideration the value of the road dis- 
 continued. — ^if the necessity of such private road has been occa- 
 sioned by the alteration, or discontinuance of a public highway 
 running through the lands belonging to the same person or per- 
 sons, through' whose lands the private road is proposed to be 
 opened, the jury shall take into calculation the value of the road 
 so discontinued, and the benefit resulting to such person or per- 
 sons by reason of such discontinuance, and shall deduct the 
 same from the damages assessed for the opening and laying out 
 of such private road. iSame, § 11.] 
 
 r 
 
 § 112. Application to be annexed to verdict and given to town 
 clerk. — The commissioner shall annex to such verdict the appli- 
 cation mentioned in the first section of this act, and hand the 
 same to the town^clerk, who shall file the same, and the commis- 
 sioner or commissioners shall lay oiit and make a record of said 
 road, as described in the petition of the applicant. iSame, § 12.] 
 
 See Appendix, Jfo. 43. 
 § 113. Proceedings may ie adjourned. — In case any accident 
 
 shall 
 
 LJ.O. jrroceeuings may ve aajourneu. — Jiu uase any acciueni 
 
 prevent .any of the proceedings required by this act to be 
 
 done on the day assigned, the proceedings may be adjourned to 
 
 1 otVifiv dn.v. and tlie icnmmissifmf'r shall rmbliplv nnTinnnoii 
 
 some other day, and the 'commissioner shall publicly announce 
 such adjournment. [Same, § 13.] 
 
 § 114. Damages to be paid before opening the road. — The dama- 
 ges assessed hj the jury shall be paid by the party for whose 
 benefit the road is laid, before the said road shall be opened or 
 used. But in case the assessors of Said town shall certify that 
 the necessity of such private road was occasioned by the altera- 
 tion or discontinuance of a public highway, such damages shall 
 be paid by said"" town, and refunded to the applicant. [Same, 
 §14.] 
 
 § 115. J}esoription of any road abandoned.— Whenexev any 
 public highway, or any part thereof, 'by reason of alterations 
 made therein, or by the opening of a nev road, or in any other 
 
BIGHWATS. 49" 
 
 way, shall be abandoned by the public, and is no longer used as 
 a public road, the commissioners or commissioner of highway Sj 
 shall file in the town clerk's office of the town, a description in 
 writing, signed by them or him, of the road so abandoned, and 
 the same shall thereupon be discontinued. [Srnne, § 15.] 
 
 § 116. Roads along dimsion Zme.*— "Whenever a public or private 
 road shall be laid along the division line between the lands of two 
 or more persons, and wholly upon one side of said line, and the 
 lands upon both sides of said division line shall be cultivated or 
 improved ; then, and in that case, the person owning or occupy- 
 ing the lands joining said road, shall be paid for bxiilding and 
 maintaining such additional fence as, he may be required to 
 build or maintain by reason of the laying out and opening said 
 road, which said damages shall be ascertained and determined 
 in the same manner that other damages are now ascertained and 
 determined in the laying out of highways or private roads. [Swme 
 §16. 
 
 § 117. Repeal. — ^The act, entitled " An Act in relation to lay- 
 ing out Private Eoads," passed March eighth, eighteen hundred 
 and forty-eight, and the tenth section of the act, entitled an act 
 to amend an act, entitled "An Act to reduce the number .of 
 town officers and town and county expenses, and to prevent 
 abuses in auditing town and county accounts," passed May 
 tenth, eighteen hundred and forty-five, passed December four- 
 teenth, eighteen hundred and forty-seven, are hereby repealed, 
 [z&me, § 17.] 
 
 If the pai-ty interested should appear without notice, it would waive all in-egu- 
 larity, and he could not afterwai'ds object, according to the decision in The Mohavik 
 B. R. vs. Artcher, (6 Faige, 83.) 
 
 In the same case the chancellor decided that the damages should be actually paid 
 beffire the property is taken. 
 
 " It is evident that it never was the intention of the legislature, to authorize the 
 opening of a private road, through the lands of one berson for the benefit of another, 
 until after the damages had not only been assessed, out actuaUy paid to the person 
 for whose benefit such private road is laid out and opened." (6 Paige, 83.) 
 
 The consent of the owner of land to the laying out of a private road across his 
 land, may be presumed &om his acquiescence, and the acquiescence of those deri- 
 ving title from him in the uninterrupted use of the road as a private road by others, 
 for upwards of forty years. Miller vs. Garlock, (8 Sar'b., 1,53.) 
 
 Such consent will render the proceedings for laying out the road valid. Ibid. 
 
 The 5 105 was amended by the law of 1859, page 890, by requiring the jurors 
 named therein to be "freeholders." 
 
 See Appendias, Not. 43, 44 ' 
 
 § 118. [79.] For what purpose road to he used. — ^Every such 
 private road, when so laia out, shall be for the use of such appli- 
 cant, his heirs, and assigns ; but not to be converted to any other 
 use or purpose than that of a road. Nor Shall the occupant or 
 owner of the land through which such road shall be laid, be per- 
 mitted to use the same as a road, unless he shall have signified 
 4 
 
' *60 
 
 HIGHWAYS. 
 
 his intention of so making use of the same to the jury or com- 
 missioners who ascertained the damages sustained by laying out 
 such road, and before such damages were so ascertained. 
 
 The applicant has the sole and exclusive right to use the road ; unless the ovrner 
 at the time of laying out of the road signified his intention to make use of it. The 
 applicant may maintain trespass against the owner, or any other person for using 
 the road. Lambert vs. Soke, (14 Johns., 383.) 
 
 Where a party obtains a right to a private road, of the width of two rods, the 
 owner of the laud through which it passes, must so build his fence as to leave full 
 two rods in width in every part of the road ; he cannot build a Virginia fence, 
 placing the center of the exterior lines of the two rods with the angles project- 
 ing into the road. Serrick Vs. Storer, (5 'jVend., 580.) 
 
 A party will bo deemed to have consented to such location of the fences, if 
 appraised that the damages of the owner of the lands were assessed in reference to 
 such location, or if he permits the fences to be thus built without objection. Ser- 
 rici;vs.8torer,(& Wend., 580.) 
 
 The grantee of a private way, which has become founderous and impassable, 
 cannot -yithout being a trespasser, go on the adjoining close and thus pass around 
 the obstruction. The rule is the same, where the owner of the close through which 
 the private way passes, caused the obstructions, and it seems that the only remedy 
 for the owner of the way is to remove the obstruction and to prosecute for damages, 
 Williams vs. Staford, {7£arb.,Wd.) Boyce vs. £rown, {,1 Sarh., 89.). 
 
 See Notes under J 15G, [U8.] 
 
 .§ 119. [80.] Width of roads. — All public roads to be laid out 
 by the commissioners of highways of any town, shall not be less 
 than three rods wide, and all private roads shall not be more 
 than three rods wide. 
 
 The record of a private road laid out by the commissioners, designating the 
 course, distance and quantity of land taken, is sufficiently definite to show that the 
 road was intended to De two rods wide ; and parol evidence that such would be the 
 result from the data given, is admissible. Berriek vs. Storer, (5 Wend., 580.) 
 
 Where roads are claimed because they have been used twenty years, they may be 
 more or less than three rods wide; that will depend on their actual user. When public 
 roads are laid out under the statute, they will be deemed to be at least three rods 
 in width, and a person will be liable for an obstruction within that width. Harlow 
 vs. Humuston, (6 Cow., 189.) . 
 
 § 120. [81.] Old Toads how disoontmued. — Whenever appli- 
 cation shall be made for the discontinuance of an old road, on 
 the groiind that it has become useless and unnecessary, the 
 commissioners of highways to whom such application shall be 
 made, shall summon twelve disinterested freeholders of the town, 
 to meet on a day certain to consider such application. Such 
 freeholders, when met, shall be sworn well and tnily to examine 
 and certify in regard to the propriety of such discontinuance. 
 
 See Appendix, Nos. 47, 48. 
 
 Any person liable to perform highway ]ab(» may make application. 
 
 The cornmissionevs need not issue any pj-ecept to summon the jury. They are 
 bound to select the jury themselves, and cannot deligate that authority to another. 
 The People vs. Commissioners of Oreenbush, (34 WA, 367.) 
 
HIGHWAYS. 51 
 
 § 121. [82.] JTbid. — They shall then proceed to view such road, 
 and if they shall be of opinion that the same is useless and un- 
 necessary, they shall make and subscribe a certificate in writing 
 to that effect, which shall be delivered to the commissioners of 
 highways, who shall thereupon proceed to decide upon such 
 application. 
 
 See Appendix, No. 49. 
 
 The commissioners have no power in any case to discontinue a road withont the 
 oath of the freeholders. After the freeholders have made the certificate, the com- 
 missioners may grant the application or refuse it. An appeal to the judges may be 
 had from their decision. For form of decision of commissioners, see Appendix, 
 
 § 122. [83.] Papers where filed. — Applications, certificates, 
 and other papers relating to the laying out, altering or discon- 
 tinuing of any road, shall be filed by the commissioners of high- 
 ways, aa soon as they shall have decided thereon, in the office of 
 the town clerk of the town. 
 
 This section should be carefully observed, as it may save much expense and liti- 
 gation. 
 
 A statute allowing benefits to be set off against damages, where private property 
 is taken for public uses, is not unconstitutional.. Eeaford vs. Knight, (15 Barb., 6d7 .) 
 
 It is sufficient that a certain and adequate remedy should be provided, by which 
 the individual can obtain compensation without unreasonable delay. Rexford vs. 
 Knight, (1 Kernan, 308.) (18 Wend., 9.) 
 
 Where an act authorizing the taking of private property for public purposes, pro- 
 vides for a just compensation to the owner, it is not unconstitutional, because it 
 omits to make the assessment and payment of damages a condition precedent to an 
 entry upon and occupation of the premises. Smith vs. Helmer, (7 Barb., 416.) 
 
 It is sufiioient that the act makes provision for compensation to the owner. lb. 
 
 APPEALS. . 
 
 § 123. [84.] Right of apjpeal.-^A.TXj person who shall conceive 
 himself aggrieved by any determination of the commissioners 
 of highways, either in laying out, altering or discontinuing any 
 road, or in refusing to lay out, alter or discontinue any road, 
 may at any time within sixty days after such determination shall 
 have been filed in the office of the town clerk, appeal to the 
 county judge of the county in the same manner as appeals were 
 heretofore allowed to be brought to three judges, under title 
 first, article fourth, chapter sixteenth, part first of the Eevised 
 Statutes ; and when any appep,! shall be brought under this sec- 
 tion, the said judge, or in case of his residence in the town, or 
 of his interest in the lands through which the road shall be laid 
 out, or in case he is of kin to any of the persons interested in 
 said lands, or in case of his disability for any cause, then one of 
 the justices of the sessions shall, after the expiration of the said 
 
Bixty days, appoint in writing three disinterested freeholders who 
 shall not have been named by the parties interested in the appeal, 
 and who shall be residents of the county, but not of the town 
 wherein the road shaU be located, as referees to hear and deter- 
 mine all the appeals that may have been brought within the said 
 sixty days, and shall notify them of their appointment, and de- 
 liver to them all papers pertaining to the matters referred to 
 them. Upon receiving notice of appointment, the said ref- 
 erees shall possess all the powers and discharge all the duties 
 hei-etofore possessed and discharged by the three judges, and 
 give the same notices heretofore required to be given under title 
 first, article four, chapter six, part one aforesaid, and before pro- 
 ceeding to hear the appeal or appeals, they shall be sworn by 
 some officer authorized to take affldavits to be read in courts of 
 record, faithfully to hear and determine the matters referred to 
 them. [Sec. 8, of chap. 455 of 1847.] 
 
 Who may appeal. — A corporation may appeal to the Gonnty court, from an 
 order made by commissioners of highways laying out a highway across a railroad 
 track. 
 
 A corpoi'ation owning lands on which a highway is laid is a "person" within the 
 meaning of the statute giving the right of appeal. The design of the statute was 
 to give the right to all parties or persons, whether natural or artificial, who should 
 conceive themselves aggrieved. The People ex rel. Dayton vs. May, (27 Barb., 238.) 
 {See 15 John., 381, amd cases cited.) 
 
 As many different yersons as are affected by the decision, may appeal, and if they 
 choose, all may bring separate appeals. 
 
 The appeal must be made and served within sixty days after the filing of the 
 order. 
 
 An appeal cannot be made to a judge who was one of the freeholders and signed 
 the certificate, 2 iJ. 8., p. 275, J 3, 1«< ed. Commissioners of Garmel vs. Judges of Fvi- 
 nam, (7 Wend., 264.) If this objection was not urged on the hearing of the appeal, 
 it is not such an error as will produce a reversal of the iudfees' decision on eerUorari. 
 (7 Wend., 264.) 
 
 Power of Beferees. — This section provides that the referees " shall possess 
 all the powers and discharge all the duties heretofore possessed and discharged by the 
 three judges." 
 
 The former section was in these words : 
 
 " Where an appeal shall have been made from a determination of commissioners 
 lefesing to lay out or alter a road, and the judges shall reverse such determination, 
 such judges shall lay out or alter the road applied for ; and in doing so, shall pro- 
 ceed' in the same manner in which the commissioners of highways are directea to 
 proceed, in the like cases. Such road shall be opened by the commissioners of the 
 town, in the same manner as if laid out by themselves." 
 
 The three judges mentioned in this section, are the three judges of the court of 
 common pleas, specified in the 84th section of this chapter, 1st ed. The People vs. 
 Barber, a^ Barb., in.) " ^ - 
 
 And it is decided in that case, that if the referees appointed to hear and deter- 
 mine an appeal from a decision of commissioners of highways in refusing to lay out 
 a road, reverse the decision, it is their duty to proceed and lay out the road as 
 directed by the J 91, and in case of their refusal to do so, a mandamus will lie. 
 
 Under this, section there were_ several decisions. In cases where freeholders have 
 made a certificate, and commissioners have refused to lay the road, the judges can- 
 not afiirm in part and reverse inpart, (25 Wend., 453.) 
 
HIGHWAYS. 6S 
 
 The power of the judges ia sbriotly appellate, aud they cannot lay out a road dif- 
 ferent from the one applied for. It must be substantially the same road designated 
 in the application, ^x parte, commseioners of Danube, (1 Oow., 142.) 
 
 The judgment of three distinct bodies of men could be had as the law stood 
 before the amendments of 1847, if desired, by the party interested, before the pro- 
 posed road can be established : 1, the freeholders ; 2, the conimiasioners ; and 3, 
 the judges; and two of these bodies must concur in the laying out of the highway. 
 The' certificate of the freeholders is indispensable, and the commissioners are con- 
 fined to the termini of the route, as certifeed by the freeholders. Indeed, if it be 
 not so, the preliminary proceedings of the fi'eeholders ai-e of little importance ; as 
 the fact that they have recommended a given route as necessary for the public con- 
 venience; a£fordsno ground for the presumption that they would have certified to a 
 part of it ; the same I'emark is equally applicable to the judges. To give any 
 efiicient force to the action of the freeholders, the power of the commissioners and 
 judges in the matter must be limited to the line as recommended. Corns, of Sher- 
 burne vs. Jvdges of Chenango, (25 Wemi., 453.) 
 
 Upon an appeal from a determinatioa of commissioners of highways refusing to 
 lay out a highway, the referees have all the powers, and are charged with aU the 
 duties formerly possessed by the three judges of the court of common pleas under 
 the provisions of the Reyised Statutes. The People vs. Commissioners of Highways, 
 (4 Selden, 416.) J n a 
 
 On reversing the determination of the tommissioners, they should make such 
 order in relation to the laying out the highway as in their judgment the commis> 
 Bionei'S should have made. lb. 
 
 Where they simply reverse an order refusing to lay out a highway without giving 
 further directions, the commissioners are not bound to lay out the highway, and a 
 mandamus will not be granted to compel them to proceed and do it. 
 
 Referees appointed by a county judge, under J 8, of ch. 445, of laws of 1847, to 
 hear and determine an appeal brought under that section, from the determination 
 of commissioners of highways, in a proceeding to lay ont a highway, have power, 
 on the hearing of such appeal, to reverse the decision of the commissioners in part, 
 and to affii-m it as to the residue. The People ex ret. Walker vs. Saker, (19 Barb., 
 240.) 
 
 Referees appointed by the county court, hear and decide the appeal, not on the 
 fects existing at the time of the original application for the road, but on facts exis- 
 ting at the time of the hearing before them. In this respect, such hearing is in the 
 nature of a new pi'oceeding. The People vs. Ooodwin, (1 8eld., 568.) 
 
 The question of jurisdiction, will be reviewed upon the evidence so returned to a 
 certiorari, and all testimony bearing on that question, should be returned, but the 
 decision of the subordinate tiibunal on all questions of fact, is conclusive, and will 
 not be reviewed on certiorari. 
 
 The question as to whether there was a certificate signed by twelve freeholders, is 
 a question of jurisdiction, and may be re-examined by the referees on appeal, and be 
 reviewed on certiorari. (23 Barb,, 197.) , 
 
 Where referees appointed by a county judge to hear an appeal from an order of 
 commissioners of highways refusing to liy out a road„reverse the decision of the 
 comraisaionere, and proceed to lay out the road, they must give the three days' notice 
 to occupants required by thestatute, (1 B. 8., 514, } 62, IttEd.^ in order to give them 
 jurisdiction to proceed. That is, their proceedings in laying out the road without 
 giving such notice, are void, for want of jurisdiction. The People vs. Eobertaon, 
 <17 How. Pr. B., 74.) 
 
 In the laying otdof a road,, after the refusal of commissioners, the judges are 
 authoi-ized to rejectall^aroZmdenceas to the route of the road designated by the 
 freeholders and passed upon by the commismmers, and may limit themselves to the 
 original appliccdion for the road, the certificate of the freeholders, and the a^udica- 
 Hon of the commissioners. The People vi. Judges Butehess, (23 Wend., 360,) 
 
64 HIGHWAYS. 
 
 If an error happen in the description of the road laid out, the officers laying out 
 the same may he required, by mandamus to file a new certificate, and give a descnp- 
 tion conformable to the facts of the case. Wbohey vs. Tompkins, (23 Wend., 324-) 
 
 Where errors have occurred in the description of a road, in the order of the 
 judges reversing the determination of commissioners in laying out a road, it i< com- 
 petent for the judges, after the filing of their order, to deposit in the town clerk's 
 ofiRce a dbcument correcting the errors ; and such document will be considered as 
 an amendment of the order ; but the judges are not permitted to review and alter 
 what they have done judicially. The making np the certificate is a mere ministerial 
 act. (23 Wend., 324.) ^ . j , ^ 
 
 In the case of Lawtonvs. Corns, of Cambridge, (2 Caines, 179,) it was decided that 
 the authority of the judges to hear the appeal was confined to the mmis alone^the 
 necessity and propriety of laying the road, or refusing so to do. They rfeiterated 
 and confirmed this decision in 13 Wend., 432. Corns, of Warwick ve. Judges of 
 Orange. 
 
 Justice Nelsow says :. I perceive no solid reasons against the position laid down. 
 in the case of Lawton v's Corns, of Cambridge, that the authority of the judges to 
 hear the appeal is confined to the merits alone ; on the contrary, much inconsistency 
 and violation of several principles is avoided, and the spirit of the statute faithfully 
 executed, by confining thejn to th^t question. The power of this court can be 
 legitimately exerted to keep both the commissioners and the judges within their 
 
 E roper bounds in conducting their proceedings , and then the_ determination, first 
 y the one, and then by the other, on appeal, will be conclusive in the premises, 
 according to the letter of the statute. Upon any other view, a road might be laid 
 out, upon the reversal of the determination of the commissioners, on mere legal 
 questions, without involving their opinion upon the merits. The act contemplates 
 such an opinion before the judges can act. 
 
 Cektioeaki. — Either party, if dissatisfied with the decision of the judges, may 
 bring a certiorari in the supreme court to review their determination ; to which the 
 judges will then return as in 1 Cow., 23, The party makes an affidavit of the facts 
 and the erroi' on which he relies, and applies to the court at special term. It is 
 called a common law certiorari. But on the return of the judges, no other question 
 can be raised, than those relating to the jwrisdiction of the judges, and the regularity 
 of their proceedings. Mrdsallvs. Phillips, (11 TFe«d., 464.) Prindle vs. Anderson, 
 (19 Wend., 391.) 
 
 The People vs. Goodwin, (1 Beld , 568.) The decision of the subordinate tribunal, 
 in relation to facts, is final. 
 
 " The supervisory power of the supreme court over inferior tribunals by means 
 of this writ, except in cases where special provisions have been made by the legis- 
 lature, only extends to questions touching the jurisdiction of the subordinate tribu- 
 nal, and the regularity of its proceedings. If they neither exceed their powers, 
 nor depart from the forms prescribed to them by law, their decision upon the 
 merits of any controversy before them is final and conclusive." The People vs. 
 Judges of Duichess. {23 Wend., 360.) 
 
 In the case of The People exrel. Sesosway vs. Flake and others, (14 Mow., 527,) 
 the defendants were appointed referees to hear and determine certain appeals from 
 an order made by two of the commissioners of the town of Westfield, Richmond 
 county, for the laying out of a highway in that town, the court decided that the 
 referees took the place of judges (of the former court of common pleas) whose 
 functions they exercise, and in whose stead they are substituted. They become a 
 court of inferior jurisdiction, within the meaning of § 318 of the code. The pro- 
 ceeding before tbem, is also a special proceeding, under J 3 of the code. Upon a 
 review of the decision of sach referees by certiorari, the court may award costs 
 undSr J 318 of the code, " according to the nature of the case." 
 
 Although the referees in this case were guilty of extreme impropriety, in sitting 
 to hear the cases of their own kinsmen, which they had no jurisdiction, to do, and 
 which render their proceedings void ; they acted nevertheless, as a court. Their 
 error was an eri'or of judgment, at least in the view of this court. The referees, 
 were not therefore charged with costs personally, (although the court might have 
 done so on the reversal of their decision,) but costs were ordered to the relator, in 
 this court, as if in an, action at issue, or an issue of law, to be collected by tax from 
 the town of Westfield. 
 
HIGHWAYS. 55 
 
 An appeal lies only in the cases enumerated in this section ; no appeal can be had 
 fiom a decision under } 121, [101.] The right of appeal is not given in any general 
 terms, but the cases in which it may be exercised, are especially enumerated. There 
 is a reason for not making the right of appeal co-extensive with the powers of the 
 commissioners. In opening new roads, and altering and shutting up old ones, the 
 commissioners act judicalfy, and in matters materially aifecting the interests of 
 individuals. But in describing and recording a road that has already become 
 public by twenty years' use, they perform little more than a ministerial duty. Tlue 
 People vs. the Judges of Oourtland, (24 Wend., 491.) 
 
 An appeal cannot be made to a judge who was one of the freeholders and signed 
 the certificate, (2 Il.8.,p. 275, § 3, 1st Ed.) Commissioners of Oarmelvs. Judges of 
 Pvimam, (7 Wend., 264.) If this objection was not urged on the hearing of the 
 appeal, it is not such an error as will produce a reversal of the judges' decision on 
 certjoran, (7 TTe^id, 264.) 
 
 An appeal may be waived by the applicant: 1, by giving notice to that effect, 
 and thereby withdrawing his appeal ; or 2, by his condilct : as in the case of Lan- 
 sing vs. Caswell, (4 Paige, 519,) when, after an appeal, the judges not proceeding, 
 the commissioners went on and empanelled a jury to assess the damages, and the 
 appellant appeared before the jury and litigated the question as to the amnunt of 
 damages, and subsequently applied to the board of supervisors to increase the 
 amount of damages allowea by the jury ; it wasield that the appeal was thereby 
 waived. 
 
 § 124. [86.] jForm of appeal. — ^Every such appeal shall be in 
 writing, addressed to the judge, signed by the party appealing. 
 It shall briefly state the ground upon which it is made, and 
 whether it is brought to reverse entirely the determination of the 
 commissioners, or only to reverse a part thereof, and in the lat- 
 ter case it shall specify what part. \Amended 5y § 8, chap. 455, 
 
 Bee form, Appendix, No. 52. 
 
 Formerly it was held that on an appeal frc^n the decision of the com'missioners 
 in refusing to lay out an highway, the judges cannot reverse in part, and aff,rm in 
 pait, except in those cases where the certificate of the freeholders is not requisite. 
 That part of the above sectio* specifying the requisites of an appeal, as to whether 
 it is brought to reverse in whxile, or in part, applies only to cases where the roadsare 
 laid out without the intervention of freeholders. Commissioners of Sherbitrne vs. 
 Judges of Chenango, (25 Wend., 453.) 
 
 But the decision in the case last quoted, was overruled in the eighth district, in 
 the case of Peoplevs. Barker, (19 Barb., 240.) The court decide, that the language 
 of the statute changing the mode of appeal, has changed the power of the referees. 
 The court say, that ample provision is made for carrying out the determination of 
 referees, in case where they affirm or reverse the decision of commissioners im toto, 
 and that the provisions of § 9, {Laws of 1847, eh. 455,) apply in terms to any road, 
 and I am unable to see why they are not applicable alike to cases where the com- 
 missioners have acted without a jury, and to cases where a jury has certified to the 
 necessity of the road. Also, (4 8eld., 476.) i 
 
 § 125. [87.] Proceedings. — ^It shall be the duty of the referees, 
 to whom' the appeal is made, to proceed thereon as soon as may 
 be convenient. Where the determination appealed from was 
 against an application for laying out, altering or discontinuing a 
 road, the referees shall give notice to the commissioners by whom 
 such determination was made. Where the appeal is from a 
 determination in favor of an application for laying out, altering 
 or discontinuing a road, the notice shall be givfen to the com- 
 
56 HIGHWAYS. 
 
 missioners, and to one or more of the applicants for such road. 
 In al cases, the notice shall specify the time and place at 
 which the referees will convene to hear the appeal. {Amended 
 h/]8of chapter 45S of 184T.) 
 
 See Appendix, JVo. 53. 
 
 If the judges do not, or will not proceed, they may be compelled by maiidamtis 
 to hear and decide the appeal. Lansing vs. Caswell, (4 Paige, 519.) 
 
 ■Without this notice the referees haVe no jurisdiction to proceed on the appeal. 
 The People vs. Mdges of SerJcimer, (20 Wend, 186.) 
 
 This case was an appeal to the judges under the former statute, and the court 
 decided "that the judges had no jurisdiction to proceed on the appeal, until a 
 notice of eight days, of the time and place of meeting, had been served on the 
 commissioners." 
 
 The referees must give three days' notice to occupants, in order to give them 
 jurisdiction to proceed. That is, their proceedings in laying out tl^e road without 
 giving such notice, are void for want of jurisdiction. The People vs. Robertson, (17 
 Houi.,U.) 
 
 % 126. [88.] Wotioe of cmpeal. — Every such notice shall be 
 served at least eight days before the time mentioned therein, by 
 delivering the same to one of the commissioners whose determi- 
 nation is appealed from, or by leaving the same at his dwelling 
 house. If the notice be also directed to an applicant, it shall be 
 served in the same manner. 
 
 This notice must be in writing. Gitfrel vs. Columbia Turnpike Co., {\ Johns. 
 Cos. 107, and 90 Wend., 186.) . 
 
 Notice need only to be delivered to one of the commissioners; it is notice to all ; 
 and the one who receives it should give information to the other commissioners. 
 The People vs. Jvdges of IRrhimer, (20 Wend., 186.) 
 
 If all the cammissioners should me^ with the judges it would probably waive 
 the omission of written notice ; but without such notice, the appeaaance of one 
 commissisner would not be sufficient. Ihid. 
 
 § 127. [89.] Proceedings. — It shall be the duty of the referees 
 to convene at the time and place mentioned in the notice, and 
 hear the proofs and allegations of the parties. They shall have 
 power to issue process to compel the attendance of witnesses, 
 and may adjourn from time to time, as may be necessary. Their 
 decision, or that of any two of them, shall be conclusive in the 
 premises ; and every siicih decision shall be reduced to writing, 
 signed by the referees making it, and be filed by them in the 
 office of the town clerk of the town, who shall record the same. 
 {Amended hy^8 of chapt^ 455 of 1847.) 
 
 tinder the former law, when the decision was made by the judges, it was decided 
 that the three judges should meet and deliberate ; or if all are notified, and one 
 refuses or neglects to appe^-, the others may propound, deliberate and decide. 
 Woolsey vs. Tompkins, (23 Wend., 324.) 
 
 The same principle will hold as to referees. In the last case the court said, " it 
 abund&ntly appears from the return, thai the three judges met and deliberated upon 
 the proceedings had' under the appeal, and the decision of the two is therefore valid 
 and binding. It has been decided by the court, as a general principle, that where 
 an authority is oodfen'ed on three, a majority may act, altho^gn the matter under 
 
HKtHWATS. 
 
 67 
 
 a determination does not recite that the three were present and participated in the 
 proceeding, or had notice and refused, the court will presume the feet till the con- 
 trary appear." lb., (n Johns., 461.) {9 Wend., 17.) 
 
 The referees on the hearing of such appeal, have power to reverse the decision of 
 the commissioners in part, and to affirm it as to the residue. The People vs. Bar- 
 ker, (19 Barb., 940.) This case oven-ales Oommissioners of Sherburne vs. tlie Judgei 
 of Chenango, (25 Wend., 453.) 
 
 On the hearing, an inquiry into the danaages of the owners of the lands is proper, to 
 enable the referees to determine whether the benefit will equal the expense, and 
 whether the public good will be promoted by the road. Commissioners of B-mh- 
 wiek vs. Meserole, (10 Wend., 122.) 
 
 A commissioner is not a competent witness on such hearing. Ibid. 
 
 "Where, in March, 1849, application was made to the commissionei'a of highways 
 to lay out a certain road in the town, which they refused to do ; and on an appeal, 
 the defendants were appointed referees nndei' the statute, to hear and act upon the 
 appeal, who, on the 31 st of July, 1849, made a final order, reversing the order of 
 the commissioners, and directing them to proceed to lay out the road — held that the 
 referees, without any new order or appointment some four years afterward, (Jan- 
 nary 15, 1854,) assuming to go on and complete the laying out of the road, could 
 not do that ; because their power and jurisdiction over the matter had gone ; 
 besides the laying out the road was a duty assie;ned by statute to the commission- 
 ers. Rogers ag't Runyan and others, (9 How., Pr, R, 248.) 
 
 A common law certiorari will undoubtedly lie, from the decision of the referees, 
 on good cause shown to the supreme court. Kmderhook vs. Glaw, (15 Johns. R. , 
 537.) Lawlon vs. Commissioners of Cambridge, {2 Cain's Rep., 179.) Clark vs. 
 Phelps, (4 Cowen, Rep., 190.) 
 
 In The People vs. Flake,(14, Sow., 527,) the court held that the referees became 
 a court of inferior jurisdiction, within the meaning of J 318 of the code. The pro- 
 ceeding before them is a special proceeding under ^ 3 of the code ; and upon a 
 review of the decision of such referees by certiorari, the court may awaril costs 
 under ^ 318 of the code, " according to the nature of the case." 
 
 This is a common lane certiorari. 
 
 It must be allowed in court. 
 
 It cannot be allowed by a judge at chambers. (10 Sow., 181.) 
 
 It does not bring the evidence for review, nor the decisions as to admission or 
 rejection of evidence, any further than to examine the question of the jurisdiction 
 of the inferior tribunal. (16 Sow., 25 ) {lib., 154.) (1 Seld. 568.) 
 
 The decision of the subordinate tribunal, in relation to all other facts, is final and 
 conclusive, and will not be reviewed on a common law certiorari. lb. 
 
 For form for return to certiorlari, see (1 Cowen' s Rep., 23.) The People vs. Com- 
 missioners of Salem. 
 
 § 128. Pay of referees.-^l^veij referee appointed under the 
 preceding section, shall be entitled to receive two dollars for 
 every day employed in the hearing and decision of such appeal 
 or appeals, to be paid by the party appealing, where the deter- 
 mination of the commissioners shall be confirmed, but where it 
 is reversed, to be a charge upon the county ; and when said ref- 
 erees "shall make any decision, laying out, altering, or discontin- 
 uing any road in whole or in part, it shall be the duty of the 
 commissioners of highways of the town, to « carry out such 
 decision in the same manner as required in cases of final deter- 
 minations of appeals as provided by the thirteenth section of the 
 act heiyeby amended, and such clecision shall remain unaltered 
 for the term of four years from the time the same shall have 
 been filed in the office of the toWn clerk. I See. 9 of ohm, 456, 
 of 1847.) 
 
58 HIGHWAYS. 
 
 § 129. Final determination to le carried into effect ly the com- 
 imssioners. — Whenever there shall have been a final determina- 
 tion upon any appeal or appeals provided for as aforesaid, 
 making it nesessary that any road or highway shall be laid out, 
 altered, opened or discontinued, it shall be the duty of the com- 
 missioner or commissioners of highways of the town where the 
 same is to be done, to carry out such determination, the same as 
 if the decision of such commissioner or commissioners had been 
 in favor thereof, and there had been no appeal. {Sec. 13, cha^. 
 180 of 1845.) 
 
 Where commissionerg of highways refused to lay out a road, and an appeal was 
 brought from that determination to the county judge, whereupon the referees 
 appointed by the judge, reversed the determination of the commissioners, and 
 ordered the road to be laid out, but did not lay it out : Held,, that it was the dviy of 
 the referees ami not of the eommissiimers to lay out the road, that the Revised Statutes 
 (1 M. S., 519, § S)l,) required this to be done upon the appeal, by the judges, and that 
 the act of 1847, p. 584, § 8, makes it the duty of the referees to perform the same 
 acts, and therefore a mandamus, requiring the commissioners to lay out and open 
 the roid, cannot be granted. i 
 
 Such commissioners have no jurisdiction to lay out a road after theii- refusal to do 
 so has been reversed, although the order of reversal directs it to be done ; nor have 
 they jurisdiction to open and make the road after such reversal. People vs. Com. of 
 Highways, (7 How. Pr.R., 27.) 
 
 The " final determination " mentioned in the act of 1845, p. 186, % 13, can be 
 none other than a determination laying out a road, as provided by the Revised 
 Statutes, which determination is the onlv one that the commissioners can be required 
 to carry out under the act of 1845. Ibid. 
 
 A mere reversal of the order of the commissioners, is not an order to be carried 
 out by the laying out of the road. The termini, the courses and distance, and the 
 width of the road must be determined by the referees, otherwise the commission- 
 ers have nothing to guide them in performing the duty of opening it. Ibid. 
 
 Commissioners of highways are officers of limited and special jurisdiction. They 
 can only act in the cases and in tlie manner pointed out by statute ; and he who 
 asks that their orders shall be executed, must show that the statutory requirements 
 have been sti'ictly pursued. Therefore, held, that any act done by them in the per- 
 formance of their supposed diiteg, will not prevent them from taking the objection 
 that the relator has failed to show that the statute under which they acted, had been 
 strictly complied with. Ibid. 
 
 Should the commissioners refuse or neglect to carry the final determination into 
 effect, they may be compelled so to do by mandamus. This writ has been issued to 
 compel commissioners to open and work a road which has been laid out by commis- 
 sionersappointedby anaotof thel^islature, (19 Wend.,iG,) and to open a road where 
 they had refused to do so, and their decision had been reversed on appeal, and the 
 appellate tribunal had proceeded to lay out the road, (16 JbAn., 61.) (12 Barb., 
 194, 6.) (4 Seld., 476.) (1 Cow., 23.) , (4 lb., 544.) And the writ will be granted 
 in such case, without regard to the near approach of the expiration of their offices ; 
 if their term of office expires, it will devolve upon their successors to obey the writ. 
 (19 Wend., 56,) and see (16 John., 65.) (3 How., 56.) 
 
 The mandamus is prerogative writ which the court will issue or withhold, accord- 
 ing to its discretion. (4ffi«,583,) (13 i?o>-8., 450.) (1 Coai., 502,) (^ John. 
 Oa.,!2d,M.,Sn.) Jfote. ' ^ 
 
 § 130. [96.] Fences to he removed. — Whenever the commis- 
 sioners of highways shall have- laid out any public highway, 
 through any enclosed, cultivated or improved lands, in conform- 
 ity to the provisions of this title, and their determination shall 
 not have been appealed from, they shall give the owner or occu- 
 
HIGHWAYS. 
 
 59 
 
 pant of the land through which such road shall have been laid, 
 sixty days' notice, in writing, to remove his fences. If such 
 owner shall not remove his fences within the sixty days, the com- 
 missioners shall cause such ifences to be removed, and shall direct 
 the road to be opened and worked. 
 
 § 131. [97.] Fences to "be removed. — If the determination of 
 the commissioners shall have been appealed froni, then the 
 sixty days' notice shall be given, after the decision of the 
 referees upon such appeal shall have been filed in the ofiSce of 
 the town clerk of the town. (Amended by ^ 8 of chap. 455 of 
 1847.) 
 
 Sixty days' notice must be giTcn befove proceeding to open the road, as well 
 ■when it has been established by an alteration made by judges, after the same has 
 been laid by them on appeal, as when a road is originally laid out by commission- 
 ers. Actual notice must oe shown in such cases, as it will not be presumed. Case 
 vs. Thompson, (6 Weni, 634.) 
 
 An apfjeal from the decision of the commissioners, laying Out a road through 
 "enclosed, cultivated or improved lands,'' is in effect a stay of proceedings: and 
 if the commissioners go on and open the road, pending an appeal, they will be 
 trespassers. But when they lay out a road through unimproved lands, or when 
 they alter or discontinue an old road, there appears to be no provision for a stay of 
 proceedings. Drake vs. Rogers, (%HUl,^Qi:.') '' 
 
 If, on an order being made discontinuing a road, a fence be built across it, an 
 appeal, subsequently brought, will not have the effect of rendering the fence a 
 public nuisanee, (3 Sill, 604,) 
 
 § 132. [98.] Certain acts of commissioners confirmed. — The 
 acts and doings of the commissioners of highways of the several 
 towns in this state, or of any two of them, in laying out, alter- 
 ing, 'or discontinuing any road or highway, since the thirty -first 
 day of December, one thousand eight hundred and five, and 
 prior to the fourteenth day of April, one thousand eight hun- 
 dred and twenty-six, are confirmed from the last mentioned day; 
 provided such commissioners, or any two of them, shall have 
 caused a survey of such roads or high ways to be filed or recorded 
 in the office of the town clerk of the town. But such confirma- 
 tion shall not affect any decision of the judges of the court of 
 common pleas, made prior to the fourteenth day of April, one 
 thousand eight hundred and twenty-six, confirming or reversing 
 the determination of the said commissioners; nor any appeal 
 from such determination, made within six months after that day; 
 nor any suits or proceedings which on that day were pending 
 at law or in equity. 
 
 This section is designed to confirm the acts of the commisaioners previous to the 
 time therein mentioned, although there may have been an irregularity in their pro- 
 ceedings. 
 
 So, where the commissioners, in 1821, caused a survey of the road to be filed and 
 recorded, the existence of the I'oad as a public, highway, was adjudged by the court 
 to be fttlly established, although it did not appear that the owner had given his 
 consent, or that a certificate had been made by freeholders ; it beint; an irregularity 
 that was cured by this section. Parker vs. Van Houton, (7 Wend., 145,) Laws of 
 1826, p. 229, §8., 
 
60 HIGHWAYS. 
 
 § 133. [99.] WTien roads cease. — ^Every public highway already- 
 laid out, that shall not have been opened and worSed within six 
 years from the timC' of its having been so laid out, and every 
 such highway hereafter to be laid out that shall not be opened 
 and worked within the like period, shall cease to be a road for 
 any purpose whatever. 
 
 The road must be both opened aivi worlced. It is not necessary that every part of 
 it should be worked. This might be impossible. Where the country is new, and 
 the population thin, there might not be highway labor sufficient in the district to 
 work all the road. 
 
 It should be embraced in a road district, and worked as fer as there is necessity, 
 for work or highway labor to expend upon it. 
 
 This section differs from the act of 1813. See Lyon vs. Mumon, (2 Cowen, 426,) 
 
 § 134. When immmke roais to ieoome pvhlio MgTnoays. — 
 Whenever any turnpike corporation shall become dissolved, or 
 the road discontinued, its road shall become a public high- 
 way, and be subject to all the legal provisions regtilating 
 highways, \_8ec. 1 of cTiap. 262, of 1838.] 
 
 § 135. [100.] What roads highways. — ^AU public highways, 
 now in use, hereafter laid out and allowed by any law of this 
 State of which record shall have been made in the office of the 
 clerk of the county or town ; and all roads not recorded, which 
 have or shall have been used as public highways for twenty 
 years or more, shall be deemed public highways, but may be 
 altered in conformity to the provisions of this title. 
 
 A public highway may be created in the following ways : 
 
 1, By twenty years public use. 
 
 2, By dedication, 
 
 3, By being; laid out according to this act. 
 
 4, By being laid by a special statute, 
 
 1. User. — This section enacts what the common law has already declared, that 
 roads although not recorded, which have been used as public highways for twenty 
 years, shall be deemed public highways. The People vs. Judges of Cortland, (24 
 Wend., 490.) See The People vs. Lawson. (17 Johns R., 276.) Golden vs. Thurber, 
 (2 Johns. R., 423.) (3 Kent's Com., 451.) 
 
 In 7 Johns. 106, Gatatin vs. Gardiner, it was decided that when a road had been 
 ■used twenty years leading to a dock and landing, or ferry, and such ferry had been 
 changed, and some part of the way had been appropriated and built upon, the pas- 
 sage still continuing open to the dock and landing, such road still remained a pub- 
 lic highway. 
 
 In the absence of aU other evidence on the part of the owner of the soil to dedir 
 cate it to the public, except a naked acquiescence in the use on the part of the public, 
 twenty, years would be required to constitute a dedication; but if there were clear, 
 unequivocal and decisive acts of the owner, amounting to an explicit manifestation 
 of his will to make a permanent dedication of the road; those acts would be sufficient 
 to establish the dedication in a shorter period, (3 Kent'* Com., 451,) 
 
 ;if tl*e publicclaim a highway by uses, tbey must take the road as used. (4 
 Cow,, 189!) 
 
HIGHWAYS. , 61 
 
 2. Dedication is an appropriation of land to some public use, made by the 
 owner of the fe^, and accepted for such use by or on behalf of the public, The 
 parties to the dedication ai-e the owners of the soil and the public. 
 
 A dedication may consist in a simple acquiescence, or in positive and unequivocal 
 acts signifying the owner's intention to give up the soil to this object. (See 6 Hill, 
 
 Where the positive acts of the original proprietors of land amounts to an imme- 
 diate dedication of the easement or right of way to the public, over a strip of land 
 designated, and set apart by the owner as a street or alley, an immediate aeceptanoe 
 and use of the thing dedicated, is not necessary in order to secm'e the right of the 
 public in it, lb. (Contra, 16 Sarb., 251.) 
 
 The decisions relative to the dedication to the public of city lands, are not to the 
 extent to which they go, applicable to road property. Baheau vs. Mead, ( 14 Sarb:, 
 
 See further in that case as to the rights of third persons in such dedication. 
 
 User alone is sufficient to establish a dedication of land to public use ; but if 
 there be no other evidence of the fact, it must have continued twenty years. ComW 
 vs. Glass, (19 Sarb., 179 ) , 
 
 A dedication in fact, of land to the public use, must be the free and voluntaiy act 
 of the owner, with intent so to dedicate ; otherwise no right ensures to the public. 
 lb. 
 
 That is a question of fact, to be determined by the jury from the evidence. lb. 
 
 Where there has been an unequivocal dedication by the owner of lands, to the 
 public, for use as a highway, manifested by acts and declarations, and the road so ■ 
 dedicated is susceptible of public use or passage, so as to be made or become a 
 highway, and it has been openly used in pursuance of the dedication, no formal 
 act of acceptance by the public authorities is necessary to give the public a right to 
 its unresbicted use, and tliat not as an easement or appurtenance to adjoining lands 
 or as a private right, but as a public right, requiring no interest in the neighljoring 
 property, or even busineas with its occupants, to justify its exercise. Holden vs. 
 Trustees of Cold Spring, (23 Sarb., 103.;) 
 
 A thoroughfare may become a public highway by dedication. The public may 
 use the land for a period less than twemiy years, with the assent of the owner of the 
 soil, and a dedication will be presumed. There may be a dedication of an ease- 
 ment to the public by the dii'cct affirmative and unequivocal acts of the owner of 
 the soil, an immediate dedication of the land for streets, and conferring upon the 
 public the right to use the land for the purpose contemplated by the dedication 
 whenever they shall deem it proper. Clements vs. The Village of West Troy, (10 
 Hmoard P. R., 199.) 
 
 An agi'eement to dedicate land for a public road is valid, although, when reduced 
 to writing, it is not executed by the party who is to furnish the consideration. The 
 N. T. and New Haven R. R. Co. vs. Pidey, (19 Barb., 428.) 
 
 What is an acceptance P — On the part of the public officers it could only 
 be by some official action, as assigning it to a road district, buUding a bridge, ordi- 
 nary highway work done thereon, &e. 
 
 It is decided in the case of Olementsvs. West Troy, (16 Sarb., 251,)ithat the acijept- 
 ancecan only be by instituting the proceedings, which the law has prescribed for 
 laying out and opening public highways in the village, by Hakeb, Justic^ei, 
 
 Contra, (10 Howard, 199,) by Wei&hi, Justice. ,/ 
 
 In the dedication of the right of way to the public, no person oi'ljody clothed 
 with authority is requii-ed to take an affirmative action; to give efi^ to such dedi- 
 cation. 
 
 See also, WUHams vs. Nm Torh Central R. R., (18 Barb., 222.) 
 
 In the case of Osmego vs. The Oswego Canal Qampav^, (2 iSeH.,'257.) Judge 
 RuoeLES says : 
 
 Any individual may lay out a way or thoroughfere through his own land ; and 
 may dedicate it as such to the public use. But such dedication does not impose upon 
 the towns in which the lands fie, the duty of improving or of keeping in repaw as 
 a public highway, the land so, dedicated. This will conclusively appear from a 
 reference to the provisions which have been? in force in our highway acts for half a 
 century. The power of laying out, altering and discontinuing highways has been 
 conferi'ed exclusively on the commissioners of highways of the respective towns. 
 
62 HIGHWATO. 
 
 It has been their duty to cause to be described in the town clerk's oflaoe, all public 
 highways not ah-eady on record ; to assess the highway labor upon the inhabilants 
 of the town ; to divide the town into road districts; and to assign a due proportion 
 of the labor to each district. It was the evident intent of these statutes that the 
 labor assessed should be bestowed exclusively upon the highways established by 
 the town authorities and recorded in the town clerk's office. The duty of causing 
 roads to be described and recorded, evidently applied to such roads as had previous- 
 ly been laid out by public authority, and to such as had been used as highways for 
 twenty years; and'not to roads which had been laid out by individuals on their 
 own lands. "The whole structure of the highway act forbids the idea that the town 
 is bound to adopt and to keep in repair eveiy road which an individual may think 
 proper to open through his own land, although he may dedicate it to public use in 
 such manner asto ^freclude himself from shutting it up. Streets and roads dedicat- 
 ed by individuals to public use but not adopted by the local public authorities, or 
 declared highways by statute, are not highways within the meaning of the highway 
 acts ; and there is no law by whieh any one caii be compelled to keep them in re- 
 pair. 
 
 See also, Adams vs. Saratoga and Washington B.R.Oo.,{ll Barb:, 414.) 
 
 To constitute a stiip of land, laid out as a street by the proprietor of a tract of 
 land, a public highway by force of dedication for that purpose; the dedication' must 
 be accepted by the public authorities, or there must be a user of the strip as a high- 
 way. JBissell vs. N. Y. Central R. R. (26 Barb., 630.) 
 
 ^press acceptance by the public authorities is not requisite ; nor user for a. 
 length of time sufficient to create a title by prescription. User for a short time 
 express and unequivocal, treating the strip of land as a street or highway, is 
 sufficient. /*. & Bing.) (6 Prfers, 431 .) 
 
 User by the public is a sufficient acceptance of the dedication. But neither the 
 intention to dedicate land to the public for the purpose of a street, nor the use 
 thereof by the public in that manner, can make it a highway, or confer upon the 
 public the rights of a highway in that which will not answer the settled definition 
 of a highway. Holden vs. Trustees of Gold Spring, (23 Barb., 103.) 
 
 Therefore a cul de sac or sti-eet which is closed at one end, and only communicates 
 with a public road at the other, is not susceptible of dedication to public use as a 
 highway. lb. 
 
 It is essential to a public right or a public use of a road, that it should be a 
 thrroitghfare; and that it should not be the means merely of access to the property 
 of private persons, but. the means of passage for the whole community from one 
 pviblic place to another. Without this, whatever private privileges may be created, 
 no public rights arise. lb. 
 
 ' Such a road could not be made a highway by laying it out as such, or other 
 action, by the public authorities ; neither can it become such by dedication. lb. 
 
 Where land is gratuitously dedicated to the public, by the proprietor, for the pur- 
 pose of a street or highway, in a city or village, and the public authorities accept it 
 as such, the character of the street, and the powerand^uthorityof the municipal 
 corporation over it, are the same as if such street had been laid out originally and 
 opened as a public street, by the order and direction of the corporation. Wil- 
 liams vs. The New York Oentrlil Rail Road Co., (1-8 ^orft., 222.) 
 
 Where the owner of land in a city or village dedicates it to the public, for the 
 purpose of a street, and the dedication is accepted by the proper authority, although 
 the legal presumption is that the fee of the land is in such owner, yet the easement 
 is wholly granted to the public. lb. 
 
 Where land had been dedicated by the owner, to the public, for a street or high- 
 •way, the title, for the time being is in tjie people of the State ; and if the people 
 through the legislature, authorize the construction of a rail road through such street 
 or highway, and the road is constructed accordingly, in a seasonable and proper 
 manner, if the owners of the property upon such street suffer loss or damage in con- 
 sequence of the construction of the rail road its damnum absque injuria. Cory vs. 
 Buffalo, Coming and K Y. R. R., (23 £ari., 462.) 
 
 Where the owner of land in a city or Village dedicates it to the public, for the 
 purpose of a street, and the dedication is accepted by the proper authority, 
 although the legal presumption is that the fee of the land is in such owner, yet the 
 easement is whollv granted to the public. And if a railroad company, by virtue 
 of its charter, and under a license for that purpose, given by the proper municipal 
 
HIGHWAYS. 63 
 
 authority, constructs a railway upon such street, the property of the original owner 
 of the street is not thereby taken, within the intent and meaning of the provision of 
 the constitution, requiring compensation to be made to the owner of private prop- 
 erty taken for public purposes. Williams va. The New York Cerdrai Rail Road Co., 
 (18 Barb., 222.) 
 
 § 136. [101.] Width.— It shall be the duty of the commission- 
 ers of highwajs, to order overseers of highways to open all 
 roads to the width of two rods at least, which they shall judge 
 to have been used as public highways for twenty years. 
 
 This does not authorize the commissioners to adjudge what was originally intend- 
 ed, in relation to the width or location of the road, any further than such inteiS- 
 tion has been manifested by permitting the way to be used. It is a power in rela- 
 tion to the road as it actudlfy exists and has existed for the last twenty years. It 
 does not authorize the commissioners to create o»,pnlarge, but only to perpetuate the 
 evidence of public right, Both the extent and the fact of dedication depend on the 
 user. The People vs. the Jiidges of Cortland, (24 Wend., 491.) 
 
 There is no appeal from the decision of the commissioners acting under this sec- 
 tion. So when the commissioners of Cortlandville enlarged a road describing it 
 as three rdds wide, when in fact its width never exceeded two rods, and also changed 
 its location, it was held that the aggrieved had no remedy by appeal to the judges 
 of the county in which the road is situated. Same in 24 Wen£, 49L 
 
 There is a doubt expressed what remedy the party injured would have ; whether 
 a common law certiorari in the supreme court, or whether the proceedings of the 
 commissioners should be treated as void, and all persons concerned treated as tres- 
 passers. 
 
 § 137. Secretary of State to pJbUsh the law. — It shall be the 
 duty of the Secretary of State to cause all the genial statute 
 laws of the State which relate to highways and private roads, to 
 be printed in pamphlet form and stitched together with such 
 forms and instructions as he may deem necessary, and cause a 
 sufficient number of copies thereof to be sent to the several 
 cotmty clerks, to furnish one for each county clerk's office and 
 town clerk's office in the State, and to each commissioner of 
 highways of the several towns. [1847, ch. 455, § 18.] 
 
 § 138. Iiidiom Reservations. — The commissioners of highways 
 of the towns in the county of Onondaga, in which the Indian 
 Keservation lies, shall have the same power and jurisdiction 
 over the reservation in their respective towns, to improve high- 
 ways already laid out, as ie conferred on commissioners of high- 
 ways generally, by part 1, chapter 16, article 4, of the Kevised 
 Statutes, except that all decisions of the commissioners shall be 
 served in writing upon the agent of said , Indians, and said 
 commissioners shall allow the said agent sixty days to appeal 
 as provided in the second section of this act. [1845, chap. 309, 
 § !•] 
 
 § 139. Bight of a^eal. — The Indians, through their agent, 
 shall hear the right of appeal from the decision of said commis- 
 sioners to the judges of the court of common pleas, who shall 
 
64 HIQHWATS. 
 
 have full and entire jurisdiction over the whole subject, provid- 
 ing such appeal shall be made within sixty days from the ser- 
 vice of notice of the decision of the commissioners upon their 
 agent. [Same ch., § 2.] 
 
 SPECIAL COMMISSIONEES. 
 
 The legislature in the act of April 18,1838, among other things, confeiTed the 
 power upon, the board of SBpervisors in each county, at their annual meeting, and 
 when lawfully convened — 
 
 4. " To appoint special commissioners to lay out public highways in those cases 
 where they shall be satisfied tha,t the road applied for is important, and that the 
 authority now conferred by law upon commissioners of highways, cannot or will 
 iiot be exercised to accomplish the laying out of such road." 
 
 An Act to amend an act, entitled " An Act to enlarge the powers of Boai'ds of 
 Supei-visors," passed April 18, 1838. 
 
 Passed April 3, 1848. 
 
 The People of the Biate of New Tori, represented in Senate and Assembly, do enact as 
 
 follows : — 
 
 § 1. The power given to boards of supervisors by subdivision four, of section 
 one, of the act entitled " An Act to enlarge the powers of boards of supervisors,'' 
 passed April 18, 1838, to appoint special commissioners to lay out public highways, 
 shall not be exercised by any board of supervisors, unless the applicant therefor 
 shall prove to such board of supervisors the service of a notice in writing, on a com- 
 missioner of highways of each town, through and into which any such highway is 
 intended to be laid, at least six days previous to presenting such application speci- 
 fying therein the object thei-eof, and names of persons proposed to be appointed 
 such commissioners. 
 
 AETIOLE FIFTH. 
 
 BegvlaUons <md PenalUes co'ncemmg the Obstructions of IRgh- 
 ways, and encroacJimmts iJwreon. 
 
 § 140. [102.] Penalty for obstructing. — ^Whoever shall obstruct 
 any highway, or shall fill up. or place any obstruction in any 
 ditch constructed for draining the water from any highway, shall 
 forfeit for every such ofience the sum of five dollars. 
 
 Obstruotiok. — Any thing that impairs or impedes the exwcise of the public 
 right to travel upon a public highway is a nuisance. (1 SawK". P. C. Boohl, 76, 
 
 M8-) 
 
 These are pi'incipally laying stone, wood, timber, or other things in or across the 
 highway ; by digging ditches, or otherwise injuring the surface of the road ; by 
 building fencjES, walls, or building into or across the highway, and a great variety 
 of ways which it is unnecessai'y to repeat. 
 
 It is an interruption for any person to occupy a street fot an unreasonable time, 
 although he be in the exercise of his ordinary calling. (.Woolrkh on Ways, 47.) 
 
 Any obstruction of a highway for an unreasonable length of time although in the 
 prosecution of a lawful business, as in the loading or unloading wagons or drays, or 
 by stages waiting and soliciting for passengers, is indictable as a public nuisance^ 
 although room enough might still be left f6r the accommodation of the public on 
 the opppsite side of the street. The public are entitled to the use and enjoyment 
 
HIGHWAYS. • 65 
 
 of the Tphole of the highway, and no individual can appropriate a portion of it to 
 his own' exclusive use, arnd shield himself from responsibility by saying that enough 
 is still left for the accommodation of others. Sart vij. Mayor, cfce., of Albany, (9 
 Wend., 511.) {6 JSast., 431 .) & Camp., 224.) aiid,229.) 
 
 There are four ways for removing the obstructions in a highway, or for punishing 
 the offender : 1, sueing for the penalty under this section ; 2, by indictment ; 3, 
 abating the obstruction as a nuisance; and 4, in addition to these remedies the party 
 specially injured may have an action for private damages against the person who 
 interrupted the highway, whereby he sustained the paiticular damage. 
 
 1. Penalty.-Debt is the proper form of action for penalty. Oowen's Treatue,p. 43. 
 The commissioners mast sue. in their names, adding -their title. Oommissioners of 
 Oortlamivillevs. Peck, (5 Sill, 213.) Gould vs. Glass, {IS Jiarb. 119.) The case last ' 
 quoted was an action under this section, and in their complaint at the commence- 
 ment, the plaintiffs were described as " 0. H. G.," &c., " commissioners of high- ' 
 ways of the town of L.," but did not in any other part contain any intimation that 
 the suit was brought by the plaintiffs in their official character, nor aver that the 
 plaintiffs were commissioners of highways, or that they complained as such ; nor 
 did they demand judgment as such ; ?teld, that the action was to be deemed as 
 brought in favor of the plaintiffs in their individual character. 
 
 A plea of title is no bar to an action under this section. Parker vs. Vanhouton, 
 (7 Wend;, H5,) also, Fleet vs. Vmmg,{l Wend.,291.) 
 
 In the casein 19 Barb., 179, a plea of title was interposed, but that question 
 was not discussed nor passed upon by the court. ^ 
 
 2. Indictmeilt.-Any unauthorized obstruction of a highway to the annoyance of 
 the public, is an indictable offence. Russell on Grimes, 463, (3 Camp., 297. ) Webnore 
 vs. Tracy, {14 Wend., 250,) and oases there referred to. All injuries to the highway 
 as by digging a ditch or making a fence across it ; or laying logs of timber in it ; 
 or any other acts which render it less commodious to the citizens, are nuisances at 
 common law (1 Hawk. P. C, c. 76, § 144, RusseU, 461.) Bouviet's Law Diet, title 
 Nuisanee. Peckham vs. Henderson, (27 Barb., 210.) 
 
 At common law, any act, or obstruction which unnecessarily incommodes or 
 impedes use of a highway by the public, is a nuisance. 
 
 Thus, it is a nuisance at common law, to dig a ditch, or mate a hedge or fence 
 across a road, to erect a gate, to deposit lime or gravel in it, though but for a tem- 
 porary convenience ; to pile logs or lumber therein, or in any manner unreasonably 
 obstruct the public passage. (Angell on Highways, § 223.) 
 
 To constitute a nuisance, it is not necessary that there should be an actual phys- 
 ical obstruction to the public use of the highway ; it is enough if there be some- 
 thing that occasions imminent pijril to those that travel it. Thus, if a house on 
 the highway be ruinous and likely to fall down, it is a nuisance, and the occupier, 
 although he be but a tenant at will, is bound to repair it. And so to assemble a 
 large number of persons near a highway for the purpose of shooting, with a noise 
 and disturbance consequent upon such assemblage, is a nuisance. 
 
 One cannot legally carry on any part of his business in the public street to the 
 annoyance of the public. The primary object of a street is to afford a free passage 
 to the public, any thing which impedes that free passage, without necessity, is a 
 nuisance ; and, if the nature of the defendant's busin ess, and the condition of his 
 premises are such as to require a congregation of wagons in, and an obstruction of, 
 the adjoining street, he must enlarge his premises or remove to some more conve- 
 nient spot. The People vs. Ovnningkam, (1 Den., 524) 
 
 This was a case where distillers delivered their glops daily in the street to pur- 
 chasers, and the street wag obstructed by carts and teams resorting thither for it, 
 and waiting for loading, the court held that the business so conducted was a nui- 
 sance, and that the defendants were answerable for the unreasonable delays in the 
 street of the cai'ts, <tc. 
 
 The right to load and unload carnages in the highway, is entirely subordinate to 
 the right of passage and must not be exercised in such a manner as unreasonably 
 to abridge or incommode this latter right. 
 
 If an unreasonable time is occupied in the operation of delivering loadSj this is 
 a nuisance, if it incommodes the travel. 
 5 
 
Ob ' HIGHWAYS. 
 
 A nuisance is a culpable act or omission that occasions an obsti-uction, not ihe 
 obstruction itself. Consequently, a person who accidentally breaks or overturns a 
 tragon in the highway, is not guilty of a nuisance, though there be an obstruction. 
 
 BaiLBoads in Streets.— In this State it has been repeatedly decided, that 
 laying rail roads in streets or highways, are not public nuisances. (18 Barb., 222.) 
 (7/S.;50H.) (13/4., 646.) {22Ib.,iU.) See (i Kernan, 506.) 
 
 Any unauthorized, continuous obstruction of a public street or highway, is a 
 public nuisance. lb. Per De.xio, 0. J. 
 
 In England and in many States in the Union, the parish or town are bound to 
 keep the highway in repair, and are subject to an indictment for non-repairs. In 
 this State the towns, as such, have no responsibilityas to the repair of the roads. 
 But the commissioners ai-e liable to a criminal prosecution for neglect of duty. 
 But it must appear that they wilfully and unlawfully refuse to employ funds in 
 their hands ; and the having suoh, fumds should be averred in the indictment. (2 
 fflVi, 619.) 
 
 All common nuisances are regularly punishable by fine and imprisonment, but 
 the court ordinarily require the nuisance to be abated at the costs of the defendanti 
 
 3. Abatement. — A nuisance in a highway may be abated, that is removed or 
 destroyed, by any individual, who wants to use it in a lawful way ; and he may 
 enter upon the laijd.of the person who erected or continues the obstruction for the 
 purpose of remotin^lt. Any one may abate a palpable obstruction of a public 
 way. Denning vs. Soome, (6 Wend., 651.) (Fieroe vs. DaH,{l Oow., 609.) Wet- 
 man vs. Traey, (14 Wend., 250.) (7 HUl, 575.) (14 Wend., 131.) 
 
 4. By Action. — In this suit special damages must be alleged and proved. (5 
 Denio, 213.;) 
 
 An individual' may sue for an obstruction to a public highway when special 
 damages have resulted to him ; as where he has expended money in removing 
 obstructions so that he could travel on the road. Ibid. 
 
 The statute providing for the removal of fences encroaching on highways, has not 
 taken away the common law remidies of abatement by individuals and indictments. 
 Wetmore vs. Tracy, (14 Wend., 250.) 
 
 An obstruction in a public highway in the use of which an individual has no 
 right, except in common with the public generall;;^^, even if unauthorized and ille- 
 gal, does not constitute an injury, for which such individual can maintain a private 
 action ; but the legal remedy is at the suit of the public, by indictment for a public 
 nuisance. Clark vs. Saybrook, (21 Gonn,, 313.) He may maintain an action if he 
 sustain special damages. 
 
 A person, who, without special autiority> makes or continues, a covered excava- 
 tion in a public street or highway, for a private pnipose is, in the absence of negli- 
 gence in the party injured, responsible for all injuries resulting from the way being 
 thereby rendered less safe, irrespective of any degree of care and skill in the party 
 who makes or continues the excavation. Congreve vs. Smith, (18 M. Y.Mep,, 79.) 
 
 The liability of one, who, without authority, makes an excavation in the highway 
 is not discharged or affected by the fact that, having provided a sufficient covering 
 thereto, it was destroyed by the act of a wrong doer. He is bound at his peril to 
 keep it so covered that the highway is as safe as before. Congreve vs. Morgan, ( 18 
 
 In case of Sygertvs. Schenck,{23 Wend., 44,6,) it was held that the defendant, 
 who had dug a race way across a public road, over his own land, to conduct water 
 to hismill, and built a bridge across it, was liable for an injury sustained in conse- 
 quence of the bridge being out of repair. 
 
 While the law gives redress for any imarj to a private way, an action for obstruct- 
 ing one which is publie, will only lie where special damages have been sustained. 
 Lansing vs..WiswaU, (5 Benio 213, 1 Gh. Fl., ed 1837.) Woolr. on Ways, 52, 54 
 
 Lansirig vs. Smiik, {i vow., 156.) 
 
 The general rule is, that a private action cannot be maintained for a public injury. 
 But if an individual from a common nuisance suffers a more special damage than 
 any other, in such case, and because of his special damage, he may have his separate 
 action. {^Ang., § 285.) 
 
HIGHWATS- 67 
 
 It was decided in Adams vs. Rivers, (11 Barb., 390,) that a person is' a trespasser, 
 Who, instead of passing along on the side walk of a street, stops on it, in front of a 
 man's house, and remains there, using towards him abusive and insulting language. 
 
 The judge (Willaed,) says, the plaintiff proved ^snma /acie, that he owned and 
 possessed both the lots mentioned in the complaint. These lots being bounded by 
 public streets, extended to the center of the street. In Adams vs. The 8. & W. B. 
 i2. Go., (11 Barb., 414,) all the leading codes are collected. Subject to the right of 
 mere passage, the owner of the soil is still absolute master. The testimony author- 
 ized the jury to find that the defendant came on to the premises of the plaintijf 
 covered by the street, not in the legitimate use of the highway as a place oi travel, 
 but for the express purpose of abusing him. He stood there but five minutes. 
 Suppose a strolliDg musician stops in front of a gentleman's house, and plays a 
 tune, or sings an obscene song under his window, can there be any doubt that ho is 
 liable as a trespasser. The tendency of the act is to disturb the peace, to draw 
 together a crowd and to obstruct the street. It would be no justification that the 
 act was done in a public street. The public have no need of the highway but to 
 pass and re-pass. If it is usdd for any other purpose not justified by law, "the own- 
 ers of the adjoining land are remitted to the same rights they possessed before the 
 highway was made. They can protect themselves against such annoyances, by 
 treating the intrudera as trespassers. 
 
 Being put to the necessity of going a circuitous route, or being delayed on a 
 journey, by which some important a^air is neglected, are not sufficient of them- 
 selves ta warrant an action. But if, in addition to all this, the plaintiff, having in 
 part made his joumey, is turned back and obliged to proceed by a very circuitous 
 route, m meeting the obstruction, is withheld from removing it so that he may pass, 
 this will be sufficient. {I Binny B. ., i&Z.) (.4«^.. § 285.) 
 
 Placing logs in the highway is a nuisance, and whoever sustains an injury from ' 
 it — as by the frightening of his horse, without any fault of his own, may maintain 
 an action against the owner ; but otherwise, if they be placed on the party's land, 
 though unenclosed, adjoining the highway. HarloVi vs. Sumiston, (6 Cow., 189.) 
 
 If a highway be obstructed, its being more contiguous, and therefore more bene- 
 ficial to the plaintiff than the other, will not warrant an inference of specific damage 
 to sustain the action ; but the least injury to him, as delay and labor in abating the 
 nuisance, so that he may proceed on the road, is sufficient. Pierce vs. Dart, (7 Cow., 
 609.) 
 
 No individual can maintain an action for damages from a public nuisance, unless 
 he has sustained an injury which is special in its character, or which is not common 
 to others effected by the nuisance, hougkerty vs. Bvmting, ( 1 Sand., 1 .') 
 
 Where a plaintiff proved that a road leading from his dwelling house across the 
 lands of others to the village, had been used for traveling for more than forty years-, 
 and that the defendant, who occupied lapds through which it ran had recently 
 obstructed it, held that the plaintiff' was entitled to recover, though it appeared 
 that it had formerly been p'art of a public highway, and the commissioner of high- 
 ways, more than twenty years before the commencement of the suit, had changed 
 the route oS the highway, so as to discontinue it at the place where the obstructions 
 were pnt, it also appearing that the plaintiff and his predecessors in the title to the 
 farm which he owned had continued to use and enjoy it notwithstanding such dis- 
 continuance. 
 
 Twenty yeara uninteiTupted and unqualified enjoyment of a way across the lands 
 of another, is decisive evidence of a grant of the right of way. Lansing vs. Wis- 
 wall, (5 Dcnio, 213.) 
 
 Under the provision of the statute making it the duty of the justice to dismiss 
 the cause where it appears on the trial, from the plaintiff's own showing, that the 
 title to lands is in question, it has been held in WUlaughhy vs. Jenks, (20 Wend., 
 96,) that an action of trespass for digging up the soil in the street, brought by the 
 owner of a lot bounding on the street, which had been dedicated to the public, but 
 which had not been accepted or recognized by the local officers as a public 
 street, presented a question of title to land, and could not be tried in a justice's 
 court In that case, the street not having been used by the public for twenty years, 
 it was necessary for the plaintiff, in order to show title in himself, to prove certain 
 explicit acts of dedication, a map laying down the sti-eet, an agi'eement among, the 
 jwoprietore that it should be a public street, and his own title deeds bounding him 
 upon it as such ; but this evidence the supreme court, on eri'or, held that the justice 
 
b» HIGHWAYS. 
 
 had no riglit to consider under the provision of the statute above referred to. In 
 that case, the court further held that proof of actual possession of a lot adjoining a 
 street, shows a constructive title in the occupant to the soil extending to the center 
 of the street i but to give such title, the street must have been accepted by the 
 public as such ; although dedicated, if not accepted, it remains the .property of the 
 original proprietor, subject to the easement or right of way of the purchasers of lots 
 adjoining the street. 
 
 A right of way either public or private, affects the owner's title, within tbe 
 meaning of the statute, relating to the civil jurisdiction of justices of the peace. 
 Striker vs. Mbit, (6 Wend., 465.) Saunders vs. Wilson, {15 Wend., 33S.) Whiting 
 vs. DwSeu, (19 Wend., 373.) Sandall vs. Orandell, (6 ifiM, 342.) WiUoughby vs. 
 Jenks, (20 Ws^mZ., 96.) 
 
 Although in a justice's court it may be material for the plaintiff to show his title, 
 yet if the defendant neither objects to the evidence, nor disputes its effect, nor moves 
 for a dismissal of the cause, the title is not disjmied on the trial within the meaning 
 of the statute, and a judgment for the plaintiff isvalid. Koon vs. Mamsan, ( 6 Hill, 
 44.) Bellows vs. Sackett, (15 Barb., 96.) 
 
 A plea of titl? to an action by the commissioners of highways, for obstructing the 
 road, sets up no defence. Parlcervs, Van Sfmien, (7 Wend.,lih.) 
 
 Where opposite to a building in process of erection, the street was so encroached 
 upon by piles of rubbish and materials, that only suflBcient room was left for one vehi- 
 cle to pass; the plaintiff, in attempting in day-light to pass another carnage by driving 
 over the, obstructions, did so at his peril ; he must at all events, exercise ordinary 
 care and skill. (5 ;SeW., 456.) See further as to an action, (16 iari., 565.) 
 
 § 141. [103.] Fences when and how to he removed. — ^In every 
 case where a highway shall have been laid out, and the same 
 has been or shall be encroached upon by fences, erected by any 
 occupant of the land through or by which such highway runs, 
 the commissioners of highways of the town, shall, if in their 
 opinion it be deemed necessary, order such fences to be removed, 
 so that such highway may be of the breadth originally intended. 
 The commissioners making the order shall cause the same to be 
 reduced to writing and signed. They shall also give notice in 
 writing to the occupant of the land, to remove sucn fences within 
 sixty days. Every such order and notice shall specif;^ the breadth 
 of the road originally intended, the extent of the encroachment, 
 and the place or places in which the same shall be. 
 t 
 
 Appendix, No. 60. 
 
 1 
 
 The extent of the encroachment must be given with precision in the notjce and 
 order. In Mott vs. Commissioners of Rush, (2 Hill, 472,) it was held that an order 
 and notice describing the encroachments of " the average width of one rod or up- 
 wards," was insufficient. " The statute," says the court, " is very explicit, and for 
 obviou8reasons,viz:— to enable the party, if he see fit, to comply with- the order 
 at once.'' The description should be full and precise, so as to fix the place and 
 extent of the encroachment beyond all doubt or embarrassment to the occupant, for 
 a heavy penalty is annexed in case of refusal to comply, A notice directing the 
 removal of the fence, " so thai the highaay might be of the width originally intended," 
 is not good under this section. 
 
 In order to perform their duties under this section, the commissioners must meet 
 and deliberate together on the subject of the alleged encroachment, and a majority 
 may make the order. Spieer vs. Slade,{% John. B.,Zb^.). 
 
 Where a public highway originally laid out six rods in width, was fenced only 
 four rods wide, and had been used as thus fenced for thirty years, and there Was no 
 evidence that the public had suffered any annoyance or inconvenience from the 
 
HIGHWAYS. 69 
 
 fence, it was decided that the fence was not a public nuisance which could be 
 abated by the commissioners of highways. Peehham vs. Henderson, (27 Barb., 
 207.) 
 
 Also, it was decided in that case that the commissioners had no right to enter 
 upon the premises of the person through, whose lands the road was laid out, and 
 remove the fences so as to make the road six rods wide; without taking proper 
 measures to have his damages appraised. 
 
 Under such circumstances the land owner cannot be disturbed in his possession 
 without making him a just compensation. 
 
 Where a simple encroachment, not constituting a public nuisance, has existed in a 
 highway, for twenty years, the premises taken by the encroachment ceases to be a 
 part of the highway ; and the jury should find that there is no encroachment. 76. 
 
 As action under this section can only be had where a road has been laid out, it 
 fi:equently becomes an important question — was the highway laid out in the mean- 
 ing of this section. 
 
 That question arose in the case of Tucker vs. Manlein, (15 Barb., 471.) 
 
 The fact that but two commissioners were present when the road was surveyed 
 and signed the survey, is not of itself a fatal objection to the validity of their acts. 
 In the absence of evidence to the contrary, it will be presumed that the third com- 
 missioner met and consulted with them in reference to their proceedings, at or before 
 the paper was signed. 
 
 The court overruled the case of Fitch vs. Commissioners, &e., of Cortland, (22 
 Wend., 132.J 
 
 The decision in case of Tucker vs. Rankin, was also overruled in 27 Barb., 94, 
 and case in 22 Wend., 132, approved ; and it was also decided that parol proof could 
 not be given to show that in fact the third commissioner was notified and attended 
 and took pait in the proceedings to lay out the road. 
 
 § 14:2. [104.] Penalty. — Expense of removal. — ^If • such remo 
 val shall not be made -within sixty days after the service of such 
 notice, the occupant to whom the notice shall be given, shall for- ' 
 feit the sum of fifty cents for every day, after the expiration of 
 that time, for which such fences shall continue unremoved. 
 
 And the commissioners of highways may remove or cause to 
 be removed such encroachment, and the occupant of the premi- 
 ses shall pay to the commissioners of highways all reasonable 
 charges therftfor, to be collected in the manner provided in the 
 forty-fifth section of said title. [Amended hy%'^ of chap. 300 
 of 1840.] 
 
 This section authorizing commissioners to order the removal of fences, by the 
 erection of which highways have been encroached upon, does not abrogate the 
 common law remedy of abatement of nuisance by the' mere act of individuals, or 
 abolish the remedy by indictment ; the remedy given by this section is cumulative. 
 Wetmore vs. Tracy, {liWend., 250.) 
 
 The reference to § 45, is according to numbering in 1st Ed. R. S. The remedy 
 does not appear to the compiler to be appropriate. 
 
 The commissioners of highways of two towns cannot unite as plaintiff, and 
 bring an action to recover a penalty or forfeiture, for an encroachment upon a high- 
 way running on a line between such towns. Bradiyvs. Blair, (17 Barb., 480.) 
 
 A road laid out between two towns is to be divided into districts and allotted, 
 each district is to be considered as belonging wholly to the town to which it shall 
 be allotted. Ibid. 
 
 § 143. [105.] Proeeedmgs if encroachment he denied. — If the 
 occupant to whom notice is given, shall (within five days) deny 
 such encroachment, the commissioners, or some of them, shall 
 
70 HIGHWAYS. 
 
 apply to any justice of the peace of the couiity, for a precept 
 directed, to any constable of the town, to summon twelve free- 
 holders thereof, to meet at a certain day and place to be specified 
 in such precept, and not less than four days after the issuing 
 thereof, to enquire into the premises. The constable to whom 
 such precept shall be directed, shall give at least three days' 
 notice to the commissioners of highways of the town, and to tiie 
 occupant of the land, of the time and place at which such free- 
 holders are to meet. [Amended hy%2 of same c7iapteri\ 
 
 Where commissioners of highways seiTe an order upon a person, directing him 
 to remore a fence, which it is claimed is an encroachment upon the highway, and 
 such peraon denies the encroachment, his denial in order to ariesf the further action 
 of the commissioners until a jury has been summoned and the other proceedings 
 taken as requued by law, must be in writing. Lane vs. Garey, (19 Barb. 537.) 
 
 The justice should not annex to the precept the list of jurors to be summoned. 
 If he should do so, however, the objection should be made at the time, or it will be 
 deemed to have been waived. McM vs. Commissioners of Rusk, (2 HUl, 473.) (11 
 Pick. B., 269.) 
 
 One commissioner can enter the complaint. Branson vs. Mann, (13 John's R., 
 460.) 
 
 ^ § 144. [106.] IHd. — On the day specified in the precept, the 
 jury so summoned, shall be sworn by such justice, well and truly 
 to enquire whether any such encroachment has been made, and 
 by whom. ' Such witnesses as may be produced by either party 
 shall also be sworn by such justice ; and the jury shall hear the 
 proofs and allegations which may be produced and submitted. 
 
 Bee Appendix, No. 62 and 63. 
 
 In Ptipsley vs. Andersdn, (3 Wend., 470,) the court decidef under this section, that 
 the justice, after issuing the precept for summoning the jaiy, had no duty .to per- 
 form on the inquiry, esscept to swear the jury and the witnesses. He does not act 
 judicially ; he has no judgment to render, nor order of any kin^ to enter ; if the 
 costs are not paid in ten days, it is his duty to issue a warrant, not an execution, for 
 its ooUection. He is, of course, to tax the costs, but he has not the custody of the 
 certificate of the finding of the jury; and it seems to me he has no right to decide 
 upon the qualification of the jurors. 
 
 Consequently a certiorari will not lie to a justice of the peace to bring up the 
 proceedings had under this section. Ibid. ^ 
 
 If the jury should disagree, they may be discharged, and the justice can issue a. 
 new precept and another jury be summoned ; so on until a jury do agree. Mtch. 
 vs. Commissioners of Kirkltind, (22 Wend,, 132,) (2 R. 8., 554, J 26, 1st Md.,) where 
 the general rule is laid down. 
 
 §145. [107.] V6rdicthow.enforced.—li the ivirj&idi that any 
 encroachment has been made, they shall make and subscribe a 
 certificate in writing, stating the particulars of such encroach- 
 ment, and by whom made ; which shall be filed in the office of 
 the town clerk. The occupant of the land, whether such encroach- 
 ment shall have been made by him or by any former occupant, 
 shall remove his fences within sixty days after the filing of such 
 certificate, under the penalty provided in the one hundred and 
 fourth [142] section of this Title, He shall pay the costs of such 
 
HIGHWATS. Tl 
 
 inquiry ; and if the same shall not he paid within tgn days, the 
 justice shall issue a warrant for the collectiop thereof, in the man- 
 ner provided in the forty-third [66] section of this .Title. 
 
 Bee Appendix, No. 64. 
 
 The certificate should be very particular ; it is intended as a guide to the party 
 who is coHTicted of the. encroachment. In removing it, he is to conform to the 
 certificate, which must, in the words of the statute, " state the pai'ticulars of the 
 encroachment." Fitch vs. Commissioners of Kirkland, (92 Wend., 132.) MoU vs. 
 Commissioners of Hush, (2 Mill, 472.) 
 
 The breadth of tlie road originally intended, and the extent of the encroachment 
 by the party upon that breadth, and the place or places where, ought to be specially 
 stated, so that the party may be able to obey the order, and know when he has 
 performed his duty. Spioer vs Slade, (9 Johns-. JR., 359.) 
 
 In an action brought to recover a penalty, this certificate of the finding of the 
 jury is conclusive evidence of the fact of the existence of such encroachment. 
 Branson vs. Mann, (13 Johns B., 460.) Fleet vs. Young, (7 Wend., 291.) Pugsley vs. 
 Anderson, (3 Wend., 468.) 
 
 The certificate partakes of a judicial character. (^Coicen and Hill's Notes, 1051.) 
 (15,Ba»-6., 471.) 
 
 Where a justice of the peace, upon the application of commissioners of highways, 
 issues a precept to summon twelve freeholders for the purpose of inquiring into an 
 alleged encroachment upon a highway, and the jury thus summoned meet, and 
 find that the persons complained of have encroached on the highway; and they 
 make a certificate in writing, stating the encroachment, as required by the statute. 
 (1 S. S., 522, §§ 107, 145,) the justice possesses all needful authority to decide upon 
 the amomit of the costs of the inquiry, as incidental and absolutely necessary, to 
 enable him to issue the warrant for the collection of such costs, which the statute 
 'requires him to issue. Voorhees vs. Martin, (12 Barh., 508.) 
 
 The act of the justice, in liquidating the amount of such costs, is judicial, and he 
 is not liable therefor, in a civil suit Ihid. 
 
 § 146. [108.] Tbid. — If the jury find that no encroachment has 
 been made, they shall so certify, and shall also ascertain and 
 certify the damages which the then occupant shall, have sustained 
 by such proceeding ; which, together with the cost thereof, shall 
 be paid by the commissioners, and shall be a charge in their 
 favor against lie town by which they shall have been elected. 
 
 See Appendix, No. 65. 
 
 This certificate is conclusive in favor of the person complained of, and may be 
 used as a bar to subsequent proceedings for the same alleged encroachment. The 
 party interested should see that the certificate is regularly made out, signed and 
 filed, for his future protection. 
 
 § 147. [109.] When fences to be removed. — No person shall 
 be required to remove any fence under the preceding provisions 
 of this article, except between the first day of April and the 
 first day of November, in any year. 
 
 § 148. [110.] Fallen trees to he removed. — If any tree shall 
 fall or be fallen by any person from any enclosed land into any 
 highway, any person may give notice to the occupant of the land 
 from which such tree shall have fallen, to remove the same within 
 
72 HIGHWAYS. , 
 
 two days. If such trees shall not be removed within that time, 
 bnt shall continue in such highway, the occupant of. the land 
 shall forfeit the sum of fifty cents for every day .thereafter, until 
 such tree shall be removed. 
 
 This notice may be verbal, and the penalty must be sued for by the commission- 
 ers of highways. 
 
 §149. [Ill .J Penalty for felUng ti'ees. — In case any person 
 shall cut down any tree on land not occupied by him, so that it 
 'shall fall into any highway, river or stream, unless by the order 
 and consent of the occupant, the person so ofltending shall forfeit 
 to such occupant the sum of one dollar for every tree so fallen, and 
 the like sum for every day the same shall remain in such high- 
 way, river or stream. 
 
 §150. [112.] For not renwving from streams.-r-^hoeiver Bhsi\i 
 cut, or cause to be cut down, any tree, so that the same shall fall 
 into any river or stream which now is, or hereafter shall be 
 declared a public highway, and shall not remove the same out 
 of such river Or stream within twenty-four hours thereafter, shall 
 forfeit five dollars for every tree so cut down and left remaining. 
 
 The legislature have, from time to time declared certain rivers and streams pub- 
 lic highways, and reference must be had to the several acts. They would occupy 
 too much space to enumerate them. All rivers where the tide ebbs and flows, are 
 public highway, without an act of the legislature. (3 Kent's Com., 410.) (6 Cow,, 
 JB18.) {Oowen's Treatise, 390.) 
 
 The public have a free use to all tide waters, and all streams where the tide ebbs 
 and flows. All rivers, above the flow of tide water, are, by the common law prima 
 facie, private, belonging to the owner of the soil ; but such rivers, as well as those 
 that ebb and flow, may be under the servitude of the public interest as to naviga- 
 tion. The law as to the rights of the owners on the banks of streams was fully 
 defined and settled in the court of errors, in the case of Canal Fund vs. Kemp- 
 shall, (26 Wend., 404,) and cases there cited. 
 
 If a stream has no capacity to be used for the purposes of trade, commerce or 
 navigation, it belongs absolutely to the riparian owner ; and, by well settled prin- 
 ciples, the legislature cannot make it a highway by simply declaring it to be one. 
 That being a taking of private property for public use, the owner is entitled to 
 compensation. Morgan vs. King, {li Barb.,im.) The owner is also entitled to 
 compensation before the legislature can make a stream public by improving it, if 
 not before subject to public use. Id. 
 
 But if it be a public river, the legislature may not only declare it to be so, but 
 may improve it, remove impediments to its navigation, and grant permission to erect 
 dams, booms, Ac, and prescribe the mode in which they shall be built, and perhaps 
 obstruct the navigation entirely. Id. 
 
 The legislature when acting within the pale of the constitution, has full power 
 over streams. And where a river is public, and entirely within the State, the cai-e 
 and control of it, so far as public use is concerned, belongs to the State, especially 
 if it cannot be used for the purposes of commerce with foreign nations, or among 
 the States. Id. 
 
 When the facts are ascertained, or admitted, whether a river is public or not, is a 
 question of law. But whether any particular obstruction or erection be a nuisance, 
 or a damage to the navigation, is a question for the jury. Id. 
 
 If a river is a public highway, all impediments to its use, such as dams, piers, 
 booms, Ac, unauthorized by the legislature, are nuisances. But if it can be used 
 only for certain purposes, the riparian owner is only bound not to obstruct in that 
 respect. If it can be, and is, a highway only for the passage of single logsr he may 
 use the river and its banks for every purpose not inconsistent with that public use. Id, 
 
msHWATS. 73 
 
 § 151. [113.] Swinging Gates. — ^No swinging or other gates 
 shall be allowed on any public highway, laid out by virtue of 
 this Title, or which has been heretofore laid out, other than such 
 public highways as run through lands liable to be overflowed by 
 the waters of the adjacent rivers or streams in such manner as 
 to remove the fence thereon. 
 
 §152. [114.] How erected cmd preserved. — Such gates shall 
 be erected and kept in good repair by the overseers of high- 
 ways of the town, at the proper costs and charges of the 
 occupant of the land, for whose benefit the same shall be 
 erected. 
 
 § 153. [115.] Mi^ense.-li more than one gate shall be^erected, 
 and the intermediate land between the gate, at the extremities 
 of such lands, shall be in the occupation of more than one per- 
 son benefitted by such gates, the whole charge of erecting and 
 keeping the same in repaid shall be borne by all the occupants 
 benefitted thereby, in proportion to the extent of land each occu- 
 pies adjoining the highway, between the gates at the extremities 
 aforesaid. 
 
 § 154. [116.] Proceedings to collect. — The overseer of every 
 road district in which such gates shall be, shall, on or before the 
 first day of November in every year, make out and file with the 
 town clerk, a statement of the charges incurred in the erection 
 or repairing of such gates, with the name of the person bound 
 to defray the same ; which account shall be verified by the oath 
 of such overseer. If more than one person is liable to defray 
 such charges, the statement shall also contain an apportionment 
 thereof between such persons, stating the amount to be paid by 
 each. 
 
 See Appendix, No. 66. 
 
 § 155. [117.] Ihid. — ^The overseer shall, withiio ten days after 
 filing the statement, demand of every person bound to pay such 
 charges, or to contribute thereto, the sum due from him according 
 to such statement ; and if any person shall refuse or neglect to 
 pay such moneys within six days after demand, it shall be the 
 duty of the overseer to make complaint to a justice of the peace 
 of the town, and the like proceedings shall be had for the recov- 
 ery of such moneys, as in the recovery of fines for refusing or 
 neglecting to work on the highways. 
 
 § 156. [118.] Gates to le closed., <Sic., — Penalty. — ^The commis- 
 sioners of highways shall file an account of such gates in the 
 town clerk's ofiSce ; and if any person shall open any such gate, 
 and shall not, immediately after having passed the same, close 
 it, or shall wilfully or necessarily ride over any of the ground 
 adjoining the road in which such gates shall be permitted, he 
 shall forfeit to the party injured, treble damages. 
 
74 HIGHWAYS. 
 
 When a highway is so founderous and out of repajr as to become impassable, or 
 even dangerous to be traveled over, or incommodious, the public have a right to ^o 
 upon the adjacent ground, and it makes no difference whether it be sown with grain 
 or not. 
 
 This principle has often been incidentally recognized arid ti-eated as well settled 
 law in this State, in Holmes vs. Seedy, {19 Wend., 507.) Willians vs. Safford, (7 
 jBori., 309.) NewUrlcvs. 8abler,{9 Barh.,6h';i.) Boyce vs. Srown, {1 lb., SO.) (3 
 Kent. Oom., 494.) This doctrine is afSrmed in Campbell vs. Race, {Mass.) (7 Ciish., 
 408.) Highways being established for public service, and for the use and benefit of 
 the whole community, a due regard for the welfare of all requires, that when tem- 
 porarily obstructed, the right of travel should not be interrupted. 
 
 If a traveler in a highway, by unexpected and unforseen occurrences, such as a 
 sudden flood, heavy drifts of snow, the fall of a tree, is shut otit from the traveled 
 path, so that he cannot reach his destination without passing on adjacent lands, he 
 is under a necessity so to do. It is a burden incident to civilized society. It must be 
 assumed that when the road was taken, damages were allowed for such occurrences. 
 
 Lands uljoining a public highway remaining vnenclosed, are considered as dedi- 
 cated to the public use, and no action will lie by the owner against any person 
 traveling over it. dlmelandvs. GleBeland,{l'i Wend.,m.) 
 
 If passengers have been used, time out of mind, when the roads are bad, to go by 
 outlets on the land adjoing to a highway, in an open field ; and therefore, if they 
 are sown and the iraok is founderous, passengers may go on the part sown. ( Croke s 
 Caf., 366, Douglass, 479.) 
 
 A person traveling on a ^iKc highway, which has become founderous and impas- 
 sable, has aright to remove enough of the fences in the adjoining close, to enable 
 him to pass around the obstruction, doing no unnecessary injury ; but he becomes 
 a trespasser if he tears away other fences, and tramples down the herbage in other 
 parts of the close. 
 
 See Holmes vs. Seely,{l3 Wend., 507 ) JSoyce vs. Brovm, (7 Barb., 89.) 
 
 But the grantee of a private way, which has become founderous and impassable, 
 cannot, without being a trespassei-, go on the adjoining close, and thus pass around 
 the obstruction. WiUiams vs. Safford, (7 Barb. S. C, 309.) 
 
 § 157. Penalty for ivjuri/ng side-walks. — It shall be lawful for 
 any person owning or occupying lands adjoining the highway or 
 road, to construct a side-walk within such highway or road, 
 along the line of such land, and when a side-walk shall be so 
 constructed, every person who shall ride or drive a horse or team 
 upon it, shall forfeit the sum of one dollar, to the use of such 
 owner or occupant, to be sued for in any court having cognizance 
 thereof, [Sec. 1 of chap. 281 of 1836, as arniemekd 1854, ch. 324, 
 §1.] 
 
 8(mmg clause. — This act shall not be so construed as to 
 diminish, or in any wise interfere with the authority of the over- 
 seers of highways, or any other authority legally exercised over 
 highways or roads. [Sec. 2 of same chap.} 
 
 § 158. Improvement of side-walks, <&c. — ^The commissioners of 
 highways of the several towns in this State, are hereby author- 
 ized to expend a part of the highway tax levied in their road 
 districts upon the side-walks in said districts, and in planting 
 shade trees on the public greens or squares in said towns, pro- 
 vided the roads are always kept in good repair. [1854, ch. 324, 
 §2.] 
 
BRIDGES. 76 
 
 AETICLE SIXTH. 
 
 Of the erection, repairing and jpreservaUon 'of Bridges. 
 
 § 159. [119.] Wheh Bridges at expense of county. — "Whenever 
 it shall appear to the board of supervisors of any county, that 
 any one of the towns in such county would be unreasonably 
 bnrthened by erecting or repairing any necessary bridge or 
 bridges in such town, such board of supervisors shall cause 
 such sum of money to be raised and levied upon the county, as 
 will be sufficient to defray the expenses of erecting or repairing 
 such bridge or bridges, or such part of such expense as thiy may 
 deem proper ; and such moneys, when collected, shall be paid to 
 the commissioners of highways, of the town in which the same 
 are to be expended. 
 
 § 160. [120.] Limit. — No board of supervisors shall, under 
 the last preceding section, cause any sum not exceeding one 
 "thousand dollars, to be levied and raised on any county in any 
 •one year. 
 
 A very important act in relation to bridges, ^as passed April 18, 1838, (ck. 314, 
 1 R. S., page 348, 5th Ed.,) as foIlowB : 
 
 The board of super¥isors of eacii county in this State, shall, in addition to the 
 powers now conferred on them by law, have the power at their annual meeting, or 
 fwhen lawfully convened at any other meeting : 
 
 1 . To cause to be levied, collected and paid to the treasurer of the county, such 
 •sum of money as may be necessary to construct and repair" bridges therein ; and 
 ■to prescribe upon what plan and in what manner the moneys so to be raised shall 
 ^be expended. 
 
 9. To apportion the tax so to be raised, among the several towns and wards of 
 ■their county, as shall seem to them to be equitable and just. 
 
 Several interesting questions arose under this statute, in the case of jHii'W m. 
 ■Supervisors of Imiingston Go., (2 Kernan, 52. ) 
 
 JoHNSoH, J., says: The firet question to be considered in respect to this act is, 
 whether it relates exclusively to bridges which are a charge on the whole county. 
 Nothing in the language of the act favors such a construction . By its terms, the 
 only limitation of the subject in respect to which the power to be exercised is, that 
 the bridges are to be in the county. The number of bridges in the State, which 
 the counties as such are baund to maintain, cannot be largo. Such cases are 
 entirely exceptional in their characters, and where they exist, have arisen from special 
 statutory provisions ; the general rule being clear, that bridges, like highways, ai-e 
 to be maintained by the towns. 
 
 A very large number of special acts of the legislature had been passed between 
 1830 and 1836, providing for particular expenditures in the erection and repair of 
 bridges. 
 
 Some imposed the burden on one town, some on two towns, sometimes on the 
 wWole coiinty. About two hundred acts in relation to bridges and bridge compan- 
 ies, are to be found iu the Session Laws, during the period above referred to. 
 
 . These statutes did not change the general law in respect to the liability of the 
 towns for the repair of bridges, but were exceptional in their character. Their 
 whole operation ended with the expenditure of the money authorized to be raised, 
 leaving the bridges, however built, to be afterwards maintained according to the 
 general law of the State. 
 
T6 BEIDGES. 
 
 The law of 1 838, -was passed to avoid the necessity of so frequent application to the- 
 legislature, and gave the discretionaiy power to the board of supervisors, to aid in 
 the construction and reparation of bridges in theii' respective counties. 
 
 In that case, the supervisors levied a portion of the tax on the whole county, and 
 the residue on the two towns in which the bridges were built, and it was held that 
 the tax was legally imposed. 
 
 The ninth subdivision of § 4, of the act, passed April 3, 1849, " To vest in the 
 board of supervisors certain legislative powers," p. 294, is as follows : 
 
 J 9. To authorize any town in such county, by a vote of such town, to borrow 
 any sum of money, not ezceeding four thousand dollars in a year, to build or repair 
 any roads or bridges in such town and prescribe the time for the payment of the 
 same, which time shall be within ten yeais, and' for assessing the principal and 
 interest upon such town. 
 
 § l'6i. [121.] JProvision respecting aMowance made "by the super- 
 visors.— tn case the commissioners of highways of any town 
 shall be dissatisfied with the determination of the hoard of 
 supervisors of their county, touching an allowance for any such 
 bridges, such determination shall, on the application of the com- 
 missioners, be reviewed by the court of sessions of the same 
 county, whose order in the premises shall be observed by every 
 such board of supervisors. [Amended hy %\^ of chap. 455 of 
 1847.] 
 
 This, application may be made by the commissioners of any town in the county. 
 The notice of the application should be served on the chairman of the board of 
 supervisors ; or, in ease there is none, or he is absent, it may be seiTcd on the clerk 
 of the board. x(2 i2 ,S.,p. 458, J 5.) Although no time is prescribed, it is proper 
 that the notice should be served ten days previous to the sitting of the next court. 
 
 §162. [122.] Not^ceof fine, dac. — The commissioners of high- 
 ways of each town may put up and maintain in conspicuous 
 places, at each end of any bridge in such town, maintained at 
 the public charge, and the length of whose chord is not less than 
 twenty-five fieet, a notice with the following words, in large 
 characters, " One dollar fine for riding or driving on this bridge 
 faster than a walk." 
 
 § 163. [123.] Pe«.a%.— Whoever shall ride or drive faster 
 than a walk, over any bridge, upon which such notices shall have 
 been placed, and shall then be, shall forfeit for every offence, the 
 sum of one dollar. 
 
 This penalty is recoverable by the commissioners of highways of the town where 
 the offence is committed. If the bridge is over a stream that divides two towns, 
 and the oifence is only on that part of the bridge in one town, that town can alone 
 recover ; if the offence is continued across the bridge, the^commissioners of either 
 town may prosecute, and a recovery by one town will be a bar to a suit commenced 
 by the oQier. i 
 
 § 164. [124.] Injuries to Bridges. — Whoever shall injure any 
 bridge maintained as a public charge, shall, for every offence,, 
 forfeit treble damages. 
 
BEIDGES. 77 
 
 » 
 
 In addition to this penalty, it is enacted, 2 R. S., p. 695, § 30 : " Every person 
 who shall wilfully or maliciously destroy any public or toll bridge, or turnpike 
 gate, shall, iipou conviction, be adjudged guilty of a misdemeanor." 
 
 And, also, it is declared to be arson in the fourth degi-ee, to wilfully set on fire to, or 
 burn, in the day or night time, "any toll bridge, or any other public bridge." (2 
 fi.S.,p.667,J7, lA) S. J- i- 
 
 § 165. Notice to Toll Bridges. — ^It shall be lawful for any cor- 
 poration or individual owning a toll bridge, to put up at eacd 
 end thereof, in a conspicuous place, a notice in the following 
 words in large characters : " One dollar fine, for riding or dri- 
 ving faster than a walk on this bridge ;" and, during the contin- 
 nance of such notice, any person who shall ride, or drive^faster 
 than a walk on such bridge, shall forfeit the sum of one dollar, 
 to be sued for in the name of the corporation or person or per- 
 sons owning such bridge, and to be recovered with costs of suit, 
 [1838 cAop. 262.] 
 
 § 166, When to become Mghway. — ^Whenever a corporation 
 owning a toll bridge shall become dissolved, such bridge shall 
 be left without waste or damage, and shall be a public high- 
 way. [ASome cAop.] , 
 
 § 167. Bridges Jiow to be huilt and repawed heiween towns. — 
 Whenever any two or more towns shall be liable to make or 
 maintain any bridge or bridges, the same ' shall be built and 
 maintained at the joint expense of said towns, without reference 
 to town lines. [1841, § 1, as amended 1857, cAop. 383, § 1.] 
 
 § 168. Joint contract to he entered into hy commissioners. — For 
 the purpose of buUding and maintaining such bridges, it shall 
 be lawful for the commissioners of said towns, or commissioners 
 of either one or more towns respectively, the other or others 
 refusing to act, to enter into joint contracts, and such contracts 
 may be enforced in law or equity, against such commissioners 
 or their respective successors, jointly or severally, respectively ; 
 and the commissioners of said towns so liable may be proceeded 
 against jointly for any neglect of duty in reference to such 
 bridges. [Same cha/p. § 2, as amended 1857.] 
 
 § 169. Proceedings in case of neglect or refusal of eitTier town. 
 —If the commissioners of highways of either of such towns, 
 after notice in writing from the commissioners of highways of 
 any other of such towns, shall not, within twenty days, give their 
 consent in writing to build or repair any such bridge, and shall 
 not within a reasonable time thereafter do the same, it shall be 
 lawful for the commissioners so giving such notice, to make p^ 
 
I 
 
 78 BEIDSES. 
 
 « 
 
 repair such bridge, and then to maintain a sBit at law in theif 
 oflBcial capacity against said commissioners so neglecting or 
 refusing to join in such making or repairing ; and in such suit 
 the plaintiff or plaintiffs shall be entitled to recover so much 
 from the defendant or defendants respectively^ representing said 
 other towns, as the town or towns would be liable to contribute 
 to the same, together with the costs of suit and interest, without 
 roving any contract ; and in an action in pursuance of the act 
 ereby amended, to recover the expense of building or repairs, 
 it shall not be necessary to entitle such commissioner or com- 
 missioners to recover on the trial of the above action, to prove 
 that Hhe defendants, or their predecessors in office were, at the 
 time of the service of the notice above mentioned, in the possess- 
 ion of funds belonging to the town which he or they represent, 
 sufficient to -make such repairs, nor shall the want of funds be 
 any defence to the said action j and it shall be the duty of the 
 board of supervisors of the county in which such towns are 
 located, to levy the amount of any judgment so obtained, with 
 costs and interest, on the taxable property of any town against 
 the commissioner or commissioners of which such judgment has 
 been so obtained,' but the commissioner or commissioners of 
 such town, shall not be personally liable for such judgment. 
 [Same ch. § 3, as amentled 1857, cJi. 383,- § 3.] ' 
 
 § 170. Judgment recovered to he a charge on town, how collected. 
 — Any judgment recovered against the commissioners of high- 
 ways in their official capacity, under the provisions of this act, 
 shall be a charge on said town, and collected in- the same man- 
 ner as other town charges, except in cases where the court before 
 which the judgment shall be recovered shall certify that the 
 neglect or refusal of said commissioners was wilful and malicious, 
 in which case said commissioners shall be personally liable 'for 
 such judgment, and the same may be enforced against them in 
 the same manner as against individuals. \^^of oh. 225, 1841.3 
 
 § 171. Proceedmgs. — Any adjoining towns shall be liable to 
 make or maintain any bridge over any streams dividing such 
 towns, whether in the same or different counties, it shall be law- 
 ful for three freeholders in either of such towns, by a petition in 
 Writing signed by them, to apply to the commissioners of high- 
 ways in each of such towns, to build, re-build or repair such bridge, 
 iand if such commissioners refuse to build, re-build, or repair 
 Buch bridge within a reasonable time, either for want of funds or 
 any other cause, the said freeholders upon affidavit and notice oif 
 motion, a copy of, which shall b,e served on each of said commisj- 
 
BEIBQES. 79 
 
 sionera at least eight days before the hearing thereof, may- apply 
 to the stipreme court at a special term thereof, to be held in a 
 judicial district, in which such bridge or any part thereof^ shall 
 be located ; or to a judge of said court at chambers, for a rule 
 or order requiring such commissioners to build, re-build or 
 repair such bridge, and *such court or judge upon such motion, 
 may in doubtful cases refer the matter to some disinterested 
 person, to ascertain the i-equisite facts in relation thereto, and to 
 report the evidence thereof to said court or to said judge. Upon 
 the coming in of such report in case of such reference, or upon 
 or after the hearing of the motion, la case no such reference 
 shall be ordered, the court or judge shall make such order thereon 
 as the justice of the case shall require. If such motion be 
 granted in whole or in part, whereby funds shall be needed by 
 the said commissioners to carry said order into effect, such court 
 or judge shall specify the amount of money required for that 
 purpose, and how much thereof shall be raised in each town. 
 [1857, cA.. 639, § 1.] 
 
 § 172. Proceedings on reference. — ^In case a reference shall be 
 ordered as specified in the first section of this act, the refei-ee 
 shall appoint a suitable time and place for taking the evidence, 
 and shall notify one of the said freeholders and the said conamis- 
 sioners thereof^ or cause them so to be notified ; he shall have 
 power to issue subpoenas for witnesses at the instance of either 
 party, and may compel the attendance of such witnesses, or fail- 
 ing'to appear in obedience of such subpoena by attachment, and 
 may punish defaulting witnesses for contempt, by fine or 
 imprisonment : he shall have power to adjourn such proceedings 
 from time to time, and to administer the requisite oath to wit- 
 nesses before him. The referee shall report the evidence taken 
 before him to the court or justice who made the order of refer- 
 ence without unnecessary delay, and shall be entitled to three 
 dollars a day for his services,, to be paid in the fia"st instance by 
 the said freeholders. [Same eh., § 2.]. 
 
 § 173. Commissioners of one town may: compel ao^ommg 
 town, (&G. — ^T^ie commissioners of highways of any town, are 
 hereby authorized to institute and prosecute proceedings under 
 this act, to compel commissioners of such adjoining towns to 
 join in the building, re-building or repair of any such bridge, in 
 like manner as the said freeholders are hereby authorized to do. 
 [1857, ch. 659, § 3.] 
 
 § 174. Com/missioners to meet amd fix wpon plan. — Upon the • 
 said order for building, re-building or repairing such bridge 
 being made, and a copy thereof being served on the ccanmis- 
 
80 BEIDGES. 
 
 sioners of highways of such adjoining towns respectively, the 
 commissioners of highways of said two towns shall forthwith 
 meet and fix on the plan of snch bridge, or the manner of 
 repairing such bridge, and shall cause such bridge to be built, 
 re-built or repaired, out of any funds in their or either of their 
 hands applicable thereto ; and in case no funds or an inade- 
 quate amount thereof are on hand, then they shall cause the 
 same to be built, re-built or repaired upon credit, or in part for 
 cash and in part upon credit, according to the exigency of the 
 case ; and the commissioners are authorized to enter into a con- 
 tract with any contractor, jbr building, re-building or repairing 
 such bridge, pledging the credit of each"' town for the payment 
 of its appropriate share, so far as the same shall be done upon 
 credit. [Same ch., § 4.] 
 
 • § 175. Commissioners to report. — ^The commissioners of high- 
 ways of each town shall make a full report of their proceedings 
 in the premises, to the auditors of town accounts, at the time of 
 making their annual report. The said commissioners of each 
 tWn shall attach to the copy of the said order granted by the 
 supreme court or a judge thereof, an accurate account under 
 oath of what has been done in the premises, and deliver the 
 same to the supervisors of each town. The board of supervis- 
 ors, at their annual meeting, shall levy a tax upon each of such 
 towns, when in the same county, and upon the appropriate town 
 when in different counties, its share of the cost of building, 
 re-building or repairing such bridge, after deducting all pay- 
 ments actually made by said commissioners thereon ; which tax, 
 including prior payments, shall in no case exceed the amount 
 specified in said order; ^Scmie ch., § 6.] 
 
 § 176. Appeal. — ^Either party considering himself aggrieved 
 by the granting or refusal to grant such order, by the court at 
 special term or by a judge of such court, may appeal from such 
 d!ecision to the supreme court at general term, for the review of 
 such decision. The supreme court at the general tei-m shall 
 have power to alter, modify, or reverse such order, with or with- 
 >out costs. [1857, ch. 639, § 6.] , 
 
 § 177. Cfesfev— The supreme court at special term, or a judge 
 at chambers, shail have power to grant or refuse costs, as upon a 
 motion, including al§o, witnesges' fees, referee's fees and disburse- 
 ments. The appeal provided for in the last section, shall con- 
 form to the practice of 1;he supreme court, in case of ajjpeals 
 ■from the decision of a motion at a special term to the general 
 term of the supreme court. \8a,7m ch., § 7.] 
 
BEIDQES. 
 
 81 
 
 § 178. Befusal to repair Bridge. — ^Whenever any snch bridge 
 shall have been or shall be so out of repair as to render it iinsafe 
 for travelers to pass over the same, or whenever snch bridge 
 shall have fallen down or been swept away by a freshet or other- 
 wise, if the commissioners of highways of such adjoining towns, 
 after reasonable notice of such condition of such bridge, have 
 neglected or refused, or shall neglect or refuse to repair or 
 re-build snch bridge, then, and in such case, whatever funds 
 have been or shall be necessarily or reasonably laid out or 
 expended in repairing such bridge, or in re-building the same, 
 by any person or persons, or by any corporation, shall be a charge 
 upon such adjoining towns, each being liable for his just pro- 
 portion ; and the person or persons, or corporation, who has made 
 such expenditure, or shall make the same, may apply to the 
 supreme court at a special term, or to a judge at chambers, for 
 an order requiring such towns severally to reimbiirse such expen- 
 ditures, which application shall be made upon serving papers 
 for such application upon the commissioners of highways in each 
 of such towns, at least eight days before such application 
 shall be made, and such court or judge is authorized to grant an 
 order requiring each of such adjoining towns to pay its just 
 proportion of such expenditure, specifying the same ; and in 
 case such order shall be granted, it shall be the duty of the com- 
 missioners of highways in each of such towns forthwith to serve 
 a copy of such order upon the supervisor of each of such towns, 
 who shall present the same to the board of supervisors, at their 
 next annual meeting. The board of supervisors shall raise the 
 amount justly chargeable upon each town, and cause the same 
 to be collected and paid to such person or persons, or corpora- 
 tion, as incurred such expenditure. The right of appeal is given 
 to such party under this section, provided for under the sixth 
 section of this act^ [1857, ch. 639, § 8.] 
 
 § 179. Bridges to he repaired when dammged or destroyed. — In 
 case any road or roads, bridge or bridges, shal 1 be damaged or 
 destroyed by the elements, or otherwise, after any town meeting 
 shall have been held, or when too late to give notice as required 
 by chapter six hundred and fifteen of the laws of eighteen 
 hundred and fifty-seven, then it shall be lawful for the commis- 
 sioner or comniiSsioners of highways, by and with the consent of 
 the board of town auditors, of the town or towns in which such 
 road or bridge shall be situated, to cause the same to be immedi- 
 ately repaired or re-built; and the commissioner or commissioners 
 of highways shall present the proper vouchers for the expense 
 thereof, to the town auditors at their next annual meeting, and 
 the said bills shall be audited by them and collected in the 
 same manner as though the amount had been voted at any town 
 meeting, as now required. [1868, ch. 103, § 1.] 
 6 
 
82 BiEIDGES. 
 
 § 180. Town Aviditors to cmdit expenses. — 'She board of town 
 auditors may be convened in special session by the supervisor, 
 or in his absence, the town clerk, upon the written request of any 
 commissioner of highways, and. the bills and expenses incurred 
 in the erection or repairs of any such roads or bridges may 
 then be presented to and audited by such board of town audi- 
 tors ; and the supervisor and town clerk shall issue a certificate, 
 to be subscribed by them, setting forth the amount so audited 
 and allowed, and in whose favor, and the nature of the work 
 done and material furnished ; and such certificate shall bear 
 interest from its date, and the amount thereof, with interest, shall 
 be levied and collected in the same manner as other town 
 expenses. [Same cA., § 2.] 
 
 § 181. What accounts may not ie allowed. — ISo account for 
 services rendered or material furnished according to the pre 
 visions of this act shall be allowed by such board, unless the 
 same shall be accompanied by the affidavit of the party or par- 
 ties performing such labor or furnishing such material, nor unless 
 the commissioner or commissioners shall certify that such service 
 has been actually performed, and such material was actually 
 furnished, and that the same was so performed or furnished by 
 the request of said commissioner or commissioners, and such 
 board of auditors may require and take such other proof as they 
 may deem proper to establish any claim for such labor and 
 material, and the value therefor. [/Same ch., § 3.] 
 
 § 182. To aipply to Tompkins County. — ^This act shall apply 
 to any instance coming within its provisions which may nave 
 occurred in the year eighteen hundred and fifty-seven, in the 
 county of Tompkins, \8ame ok.^ § 4.] 
 
 The liability of commissioners of Jiigliways to a qivil action for damages arising 
 from defects in bridges, was discussed at page 10, under 4th sub. of J 1. 
 
 In Smith vs. Wright, (27 Barb., 691,) a distinction, was pointed out between 
 bridges erected over sircants intersecting highways, and those Uiat were over ponds, 
 rivers, &o , antl not over streams. That the first section pi'ovidea that it is their 
 duty to give dAredions fbr the repairing of the roads and bridges within their 
 respective towns, and to cause the Highways and the bridges which are or may be 
 erected over streams ijiterseotiOg hig;hways, to be kept in repair. As to all bridges 
 except t'ose which are over streams, the duty of the commissioners was simply to 
 give directions for their repai'ation. The obligation of commissioners of highways 
 to repair bridges, even those that they are required to Iteep in repair, is qualified, 
 not absolute. It depends upon their being in possession of the requisite amount of 
 public funds for that purpose. They cannot be required to advance their individual 
 money. Where it appears, either from the complaint or proof, not onlj that the 
 commissioners had not the requisite funds in their possession to enable them to 
 make rep irs, but that they were not in fault for not having obtained such funds, 
 an ai'tion cannot be maintained against them,' for damages caused by a defective 
 biidge. lb. 
 
 Probably, this is the true view of this question: that com,mie8ioners in towns 
 having no power to raise money, when out of funds, can in no case be made liable to 
 a civil action, for sufFeving bridges to be out of repair. If in funds for a pailiioular 
 purpose and they neglefct or reftise to do their duty, ttey may be rendered liable. 
 
BRIDGES. 83 
 
 If they have funds generally, and they are Bpecially notified of a non-repair, 
 they may be liable under gome circumstances. Suppose they have $200 in hand 
 and there are two or three bridges in an unsafe condition, and they have not 
 funds sufficient to repair all the bridges, the discretion mnst rest with the commis- 
 sioners as to the most judicious manner of expending the money ; and if they act 
 without malice or evil intent, and spend the money on one or tw'o bridges and 
 leave another, they cannot be liable. But when, as' in Weed vs. Srockport, (16 JV; 
 Y., 169,) they ai'e trustees of the village as well as commissioners, the ground of 
 liability may be different. As in such cases they are clothed with the power to raise 
 the money ; and fliis rule will apply to almost all the villages in the State. 
 
 Commissioners in towns, are bound in their annual reports to recommend the 
 j'aipng of funds by the town. A wilful omission of this duty may render them liable; 
 see 27 Barb., 621. Corporations of cities being clothed with power to raise the 
 necessary funds for the improvement of the street, are adjudged liable. 
 
 "Where a public body is clothed by statute with power to do an act which the 
 public interests require to be done, and the means for its performance are placed at 
 its disposal, the execution of the power may be insisted on as a duty, although the 
 statute confeiTing it be only permission in its terms.'' Hvison vs. Mayor New 
 y<»%i5Selden,W3.) 
 
 Individuals under certain circumstances may be liable for non-repair of abridge. 
 
 A person who builds a bridge over a public highway for his own exclusive bene- 
 fit, or, a corporation, who, in pursuance of their charter, buUd a turnpike road or 
 bridge and take toll from passengers, thereby become bound to keep the road in 
 repair. A private liability to repair a highway, where it exists, is co-extensive with 
 that of the officers of towns, its measure in both cases being an exercise of ordinary 
 caie and dilligence in the construction and pi-eservation of the way. 
 
 Cahal Beidqbs. — The provisions in relation to canal bridges will be found conve- 
 nient for those officers who have the care of roads and bridges in those parts of the 
 State intersected by canals. The following provisions will be found in 1 R. 8., page 
 631. 
 
 § 306. [174.] "In all cases where a new road or public highway shall be laid out 
 by legal authority, in such direction as to cross the line of any canal, and in such , 
 manner as to require the erection of a i*w bridge over the canal, for the accommo- 
 dation of the road, such bridge shall be so constructed and forever maintained, at 
 the expense of the town in which it shall be situate. 
 
 J 307. [175.] "So bridge shall be constructed across any qanal, without first 
 obtaining for the model and location thereof, the consent in writing of one of the 
 canal commissioners, or of a superintendent of repairs, on that line of the canal 
 which is intersected by the road. 
 
 J 308. [l'?6.] " Every person who shall undertake to construct or to locate such 
 bridge without such oonsest, and shall proceed therein so far as to place any mate- 
 rials for that puipose on either bank of the canal, or on the bottom thereof, shall 
 forfeit the sum of fifty dollars ; and either of the commissioners, superintendents, or 
 engineers, shall be authorized to remove all such materials, as soon as they are dis- 
 covered, wholly withont the banks of the canal." 
 
 5 309. The canal commissioners are hereby authorized and required to construct 
 and hereafter maintain at the public expense, road and street bridges over the 
 (several canals of this State,) in all places where such bridges have been heretofore 
 constructed, if in their opinion the public convenience requires that they should, be 
 continued, whether the same have been heretofore maintained at the expense of the 
 State, or of the towns, cities or villages, where they ai'e situate. [1839, ch, 207, J 1, 
 as amended by oh. 372, 1840.] 
 
 As to fai'm bridges, see 1 E. 8., page 632, 5th Md. 
 
 An Act to provide for the incorporation of Bridge Qompanies. Passed April 
 
 11th, 1848, 
 
 The People of the State of Nea York, represented in Senate and Assembly, do enad 
 
 asfollova : 
 
 5 1. Any number of pereons not less than five, may be formed into a coiporation, 
 for the purpose of constrncting and owning a bridge across any stream of water, 
 as hereinafter provided, upon complying with the folloiriug requisitions : 
 
84 BBIDGES. 
 
 1. They shall severally sutscribe ai'ticles of association, lu which shall be Set 
 forth the name of the corporation, the number of yeare the same is to continue, 
 which shall not exceed fifty years ; the amount of the capital stock of the corpora- 
 tion, which shall be divided into shares of twenty-five dollars each, the number of 
 directoi-s and their names, who shall manage the concerns of the eorpoi alien for the 
 first year, and until others are elected ; the location of such bridge, and the plan 
 thereof : 
 
 2. Each subscriber to such articles of association, shall subscribe thereto his name 
 aud place of residence, and the number of shares of stock taken by him in such 
 corporation. 
 
 3. Whenever one-fourth part of the amount of the papital stock, specified in the 
 articles of association, shall have been subscribed, and on complying with the pro- 
 visions of the next section, such articles may be filed in the office of the state 
 engineer and surveyor, and clerk of the county or counties in which the bridge is 
 built ; and thereupon the persons who have subscribed the articles of association as 
 aforesaid, and such other persons as shall become stockholders iu such company, 
 and their successors shall be a body corporate, by the name specified in such articles 
 of association, and shall possess the powers and privileges, and be subject to the 
 provisions of titles three and four, o£^ chapter eighteen of the first part of the 
 Revised Statutes, so far as those provisions are consistent with the provisions oi 
 this act. 
 
 § 2. All the stockholders of every company incorporated under this act, shall be 
 severally and individually liable, to an amonut equal to the amount of the capital 
 stock held by them respectively, to the creditors of such company, for all the debts 
 contracted by the directors or agents of such company for its use, until the whole 
 amount of the capital Stock fixed and limited by such company is paid in, and a 
 certificate thereof filed in the offices aforesaid, and the whole capital stock paid in, 
 shall be one half thereof within one year, and the other half thereof within two 
 years from the time of the incorporation of such company, and if not so paid in, 
 such corporation shall be dissolved. If the directors of any corporation formed 
 under this act shall contract debts for the company, exceeding in the aggregate the 
 amount of the capital stock, they shall be personally liable for all the debts of the 
 corporation. 
 
 § 3. Such articles of association shall not be filed as aforesaid, until five per cent, 
 on one-fourth of the amount of the stock of such company fixed as aforesaid shall 
 have been actually paid in, in good faith, to the directors named in such articles ot 
 association, in cash, nor until thei'e shall be endoraed thereon, or annexed thereto, 
 an afiidavit made by at least three of the directors named in such articles of associ- 
 ation, that the amount of stock required by the first section of this a6t to be sub- 
 scribed, has been subscribed, and that five per cent, on the amount has been actually, 
 paid in as aforesaid. 
 
 5 4. A copy of such articles of association filed in pursuance of this act, with a 
 copy of such affidavit endorsed thereon or annexed thereto, and certified to be a 
 copy by the proper officer, shall, in all courts and places be presumptive evidence 
 of the facts uierein contained. 
 
 J 5. The business and property of every such corporation shall be managed and 
 conducted by a board of dii-ectors, consisting of not less than five, nor more than 
 nine, who shall be chosen, except those for the first year, at such place within a 
 county in which the bridge of such corporation or some part thereof shall be located, 
 as shall be prescribed by the by-laws thereof. The directors shall give notice of 
 every such election, previous to the holding thereof, by publishing the same once 
 in each week for four successive weeks, in a public newspaper, published in each 
 county in which such bridge or any part thereof, shall be located, and if in any 
 such county no such paper shall be published, such notice shall be published in some 
 county adjoining such last mentioned county. All elections of directors shall be 
 by ballot and by a msrtority of all votes given thereat; and every stockholder being 
 a citizen of the United States, and attending iu person or by proxy, shall be entitled 
 to one vote for each shai-e of stock which Ee shall have owned absolutely, or as 
 executor, administrator or guardian, for thirty days previous to such election. No 
 person shall be a director unless he shall be a stockholder, owning at least four 
 shares of stock, absolutely in his own right or as executor, administrator or guar- 
 dian, and entitled to vote at the election at which he shall be chosen, nor unless ho 
 shall be a citizen of this State ; and a majority of the directors shall, at th'e time of 
 
BBIDGES. 
 
 85 
 
 their election he residents of the county or counties in which such bridge shall be 
 located. Whenever any vacancy shall happen in the board of directors, it shall be 
 supplie4 until the next election by the remaining directors. The directors of every 
 such company shall be elected in the same month in each and every year, and such 
 election, after the first, shall be held on the first Tuesday of such month, and the 
 directors chosen at any election shall hold their offices to and including the Tuesday 
 next after that appointed by law for holding the election next succeeding that at 
 which they were chosen. If an election of directors shall not be held on the day 
 prescribed by this act for holding the same, the directors in office on that day shall 
 hold their olficesuntil their successors shall be elected, but after the expii'ation of 
 their regular term of office, as prescribed by this section, they shall be incapable of 
 doing any act, as such directors, except such as may be necessary to give effect to 
 an election of directors. The provisions of the second article of the second title of 
 the eighteenth chapter of the first part of the Revised Statutes, shall apply to every 
 corporation formeci under this act, so far as such provisions shall be consistent with 
 the provisions of this act. 
 
 5 6. When any bridge corporation shall be desirous of constructing a bridge or 
 any part thereof, in any county, it shall apply to the board of supervisors of such 
 county, at the annual or any special meeting thereof, for authority to construct such 
 bridge ; of which application such corporation shall give notice, by publishing the 
 same in at least one public newspaper in such county, or if no newspaper is pub- 
 lished therein, then in an adjoining county, once in each week for six weeks success- 
 ively, previous to the time of presenting such application to such board, specifying 
 such time and location of such proposed bridge. If the place of the location of 
 such bridge shall be situated in more than one county, such application shall be 
 made to the board of supervisors of every such county. Such application shall also 
 specify the length and breadth of such bridge ; and the notice of such application 
 snail set forth ^Ithe particulars required to be specified in such application. Upon 
 the hearing of the said application, all persons residing in such county, or interested 
 in such application, may appear and be heard in respect thereto. Such board may 
 take testimony in respect to such application, or may authorize it to be taken by a 
 county judge or justice of the peace of such county ; and it may adjourn the hear- 
 ing from time to time. A copy of the articles of association of such corporation 
 certified by the state engineer and surveyor, or by the clerk where such articles are 
 filed, shall be attached to and , filed with such application. No such corporation 
 shall be authorized to bridge any stream, in any manner that will prevent or 
 endanger the passage of any raft of forty-five feet in width, or any ark where the 
 same is navigated by rafts or arks. 
 
 The statute of 1852, page 590, provides that such corporation shall not be invalid 
 for want of service of the notice mentioned in this section. 
 
 ^ 7. If after hearing such application, such board shall be of opinion that the 
 public interests will be promoted by the construction of such bridge on the pro- 
 posed site, it may, if a majority of all the members elected to such board, sliall 
 assent thereto, by an order to be entered in its minutes, authorize such company to 
 construct such bridge, as shall have been specified in the application which shall be 
 paiticularly described in such order. Such corporation shaHcause a copy of such 
 order certified by the clerk of such board, with a copy of such application, to be 
 recorded in the clerk's office of such county, before it shall proceed to do any act by 
 virtue thereof ; and such board shall cause such application when it shall have finally 
 acted on the same, to be filed at the expense of the corporation, with all the other 
 papers relating thereto, or to the proceedings of said board thereon, in the office of 
 the clerk of the county in which it shall have been made. Any corporation formed 
 under this act, may use in such manner as such board shall prescrebe, so much of 
 any public highway on either side of any stream, as may be necessary for the con- 
 struction and maintenance of such bridge and toll house. 
 
 5 8. In case aiiy bridge shall be constructed under the provisions of this act, over 
 any stream navigable by rafts, it shall be the duty of the corporation constructing 
 such bridge, at all times to keep the channel of said stream, both above and below 
 said bridge, free and clear from all deposits in any wise prejudicial to the naviga- 
 tion thereof, ^hioh may be formed or occasioned by the erection of such bridge. 
 
 5 9. Any corporation organized under the provisions of this act, which shall con- 
 struct any bridge over any stream navigable by rafts as hereinbefore provided, shall 
 
Ob BEIDGKS. 
 
 be liable to pay all persons who may be unnecessarily or unreasonably hindered or 
 delayed in passing such bridge, all dainagcs which they shall sustain thereby, to be 
 recovered with costs of suit. 
 
 J 10. Every bridge constructed by virtue of this act, shall be built with a good 
 and substantial railing or siding, at least four and a half feet high. Whenever such 
 bridge shajl be completed and a certificate signed by the county judge of the county 
 in which such bridge is situated, or if such faidge shall be located in more than one 
 county, by the county judge of each of such counties, and such certificate filed in 
 the office of the clerk of such county, or of each of said counties, if such bridge 
 shall be located in more than one county, that such bridge is constructed and com- 
 pleted in a manner safe and convenient for the public use, the directors may erect a 
 toll gate at such bridge, and demand and receive such sum as shall be froni time 
 to time prescribed by the supei'visors of the county or counties where the bridge is 
 located. 
 
 § 11. No tolls shall be collected for crossing any bridge constructed by any cor- 
 poration formed under this act, from any person going to or from public worship, 
 or to or from a funeral, or to or from school, or to or fiom a town meeting or election, 
 at which he is entitled to vote, for the purpose of giving such vote, and returning 
 therefrom ; or to or from a military parade, which he is by law re(juired to attend, 
 or to or from any court which he shall be required to attend, as a juror or witness, 
 or to or from his leg^ly required work upon any public highway. 
 
 § 12. The directors of any incorporation formed under this act, may require pay- 
 ment from the stockholders of the sums subscribed to the capital stock, at such 
 times and in such proportions and on such conditions as they shall see.flt, under the 
 penalty of the forfeiture of their stock, and all previous payments thereon ; and 
 they shall give notice of the payments thus requii-ed, and of the place and time 
 when and where the game are to be made, at least thirty days previous to the time 
 fixed for the payment of the same, for the time and in the manner hereinbefore pre- 
 scribed for giving notice of the election of directors, and by sending such notice to 
 such stockholder, by mail, directed to him at his usiTal place of residence. 
 
 § 13. The shares of any corporation formed under this act, shall be deemed per- 
 sonal property, and may be transferred in Such manner as shall be prescribed by 
 the by-laws of such coi'poration ; and the directors of every such coi^poration may 
 at any time, with theconsent of a majority in amount of the stockholders in such 
 corporation provide for such increase of the capital stock thereof, as may be neces- 
 sary for the completion or re-consli'uction of such bridge, and the certificate of ihe 
 amount of any such increase, within thirty days thereafter, shall be filed in the 
 ofiices of the state engineer and surveyor, and the clerk or clerks of the county or 
 counties in which such bridge is located, which certificate shall be authenticated by 
 the signatures and oaths of a majority of said directors. 
 
 J 14. So ranch of any such bridge or toll houses constructed by virtue of this act, 
 as shall be within any town, city or village, shall be laid to taxation in such town 
 city or village, as real estate. . « 
 
 § 15. Every company incorporated under this act, shall cease to be a body cor- 
 porate : 
 
 1. If within two yeare from the filing of their articles of association, they shall 
 not have commenced the constiniction of their bridge and actually expended thereon 
 at least ten per cent, of Vhe capital stock of such company ; or, 
 
 2. If within five years from the filing of such articles of association such bridge 
 shall not be completed according to the provisions of this act; or, 
 
 3. If in case the bridge of such company shall be destroyed, it shall not be re-con- 
 structed within three years thereafter. 
 
 ^16. It shall be the duty of the president and secretary of every coi-poration 
 formed under this act, to report annually to the state engineer and surveyor, and 
 the county clerk where the papers are filed, under oath, the costs of their bridge, 
 the amount of all money expended, the amount of their capital stock, and how 
 much paid in, and how much actually expended, amount received during the year 
 for tolls; and from all other sources, "stating each separately, the amount of divi- 
 dends made, and the amount of indebtedness of such company, specifying the 
 object for whichlhe indebtedness accnied ; and such other particulara in respect to 
 the business affairs of such corporation, as the said state engineer and sui-veyor, or 
 the legislature, or either branch thereof require to be so reported. 
 
HIGHWAYS. 
 
 87 
 
 $ 17. When any bridge may be in process of construction by private subecrip- 
 tions at the time of the passage of the act, the subscribers may organize into a cor- 
 poration pursuant to the provisions of this act, with the same power and privileges 
 as if such bridge had not been so commenced. 
 
 _ § 18. All companies formed under this act, shall at all times be subject to visita- 
 tion and examination by an oiBcer or agent, in pursuance of law, or by the legis- 
 lature, or by a committee, appointed by either house thereof ; and the courts of this 
 state shaU have the same jurisdiction over such corporations and their officers, as 
 over those created by special acts. 
 
 J 19. Every report required to be made by the 16th section of this act, shall be 
 made in the month of Jinuaiy in each yeai-, and shall show in respect to the par- 
 ticulai's required therein to beset forth, the affairs and business of the corporation, 
 making the same at the close of the year, ending on the thirty -first day of Decem- 
 ber, next preceding the time of making the same, and shall be published in the 
 nearest newspaper lour weeks, and every corporation formed under this act, which 
 shall neglect to make such report as thereby required, shall forfeit to the people of 
 this State for every such neglect, the sum of two hundred dollars, and for every 
 week such corporation shall neglect to make such report after the expiration of the 
 the time, within which it is required as aforesaid to make 'the same, it shall 
 forfeit as aforesaid the further sum of fifty dollars. The state engineer and 
 surveyor, shall report to the attorney general every such forfeiture, by whom the 
 same shall be sued for and recovered with the costs i-n the name of the people ; and 
 the certificate of the said state engineer and surveyor of any such neglect shall be 
 presumptive evidence thereof, and if any such river, water com'se or lake, now so 
 navigable, shall hereafter be rendered navigable up stream by vessels or steamboats, 
 power to requii-e such bridge to be altered or removed, is reserved to the legislature. 
 
 § 20. Nothing in this act shall be construed so as to authorize the bridging 
 of any river or water course where the tide ebbs and flows, or any water used for a 
 harbor, any lake, river or water, which is navigable by sail vessels or steamboats, 
 nor the construction of any bridge within the limits prescribed by any existing 
 law for the erectjon or maintenance of any other bridge. 
 
 §21. Any existing corporation having for its object the construction and main- 
 tenance of any bridge, whose chai-ter shall expire, inay be continued as such cor- 
 poration by complying with the provisions of this act, so far as the same are applica- 
 ble to them, with the consent of the supervisors of the county or counties in which 
 their bridge is located, to be obtained on application to them as herein before 
 provided. 
 
 Laws of 1854, page 279, enacts that " Every person who shall wilfully break, 
 throw down or injure any gate erected on any bridge, erected or constructed under 
 and by virtue of this act, or forcibly or fraudulently pass any such gate thereon, 
 without having first paid the legal toU for crossing said bridge, shall for each 
 offence forfeit to the corporation injured, the sum of twenty-five dollars in addition 
 to the damages resulting fi'om such wrongful acts." 
 
 Where a bridge corporation erected a bridge, a part of which extended beyond 
 the limits of the State, it was held that the corporation could not enforce the pay- 
 ment of toll against a person passing over that portion only of the bridgp wliich 
 was without the limits of the State, the legislature having no power to grant such 
 authority. (13 Shep.Me. R, 326.) 
 
 A State Legislature have the power to authorize the erection of a bridge over 
 navigable water, within the limits of the State. This power, however, is subordi- 
 nate to the power vested in Congress, " to regulate commerce with foreign nations, 
 and among the several States ;" and any exercise of the power by a State conflict- 
 ing with the laws of Congress on the subject of navigation and commerce, is to that 
 extent, unconstitutional and void. This subject has been much discussed in the 
 United States Courts. See Wheeling JBridge Oase, (13 Smi. U. B. Eep., 518.) 
 
 AETICLE SEYENTH. 
 
 § 183. [125.] Two Oommissioners may act. — Any two commis- 
 sioners ol highways, of any town, may make any order, in exe- 
 cution of the powers conferred in this Title ; provided it shall 
 
88 HIGHWAYS. 
 
 appear in the order filed by them, that all the commiBsioners of 
 highways of the town met and deliberated on the subject 
 embraced in such order, or were duly notified to attend a meet- 
 ing of the commissioners, for the purpose of deliberating thereon. 
 
 This section is in accordance with the general provision of the statute, 2 B. 8., 
 page 555, § 27. 
 
 The order made by the commissioners should recite particularly that they all 
 met, or were duly notified, or it will be held to be void. 
 
 In an order made under [^ 1 03] to remove encroachments, it recited " at which 
 meeting, F. M., two of the commissioners of said town were present, and G. O. liaving 
 been didy notified, did not attend, hwt was deemed and adjudged by tte two com- 
 missioners to be present." This differs from words of the statute, which gives the 
 form. The recital stops with saying he was duly notified ; but does not add for 
 what purpose. The statute requires that the notice should be given, for the purpose 
 of deliberating on the subject of the specific encroachment, or other subject, whatever 
 it may be^ and that the' order should expressly state the purpose of the notice. 
 Where the statute prescribes the form, the very words of the order or other su m- 
 mary proceedings, those words must be used, at least as far as they can be applied 
 to the nature and exigency of the particular proceeding. Fitch vs. Corns, of Kirk- 
 land. (22 Wend., 135,) and cases there cited. 
 
 The case Tucker vs. Rankin, (15 Barb.. 471,) oveiTules in part the case in 22 
 Wend., 135. The fact that but two commissioners of highways were present when 
 a proposed road was surveyed and signed the suiTey, is not of itself a fatal objec- 
 tion to the validity of their acts. In the absence of evidence to the contraiy, it 
 will be presumed that the third met and consulted with them at or before the time 
 the paper was signed. 
 
 A majority of the court decide that this section does not abrogate or change the 
 common law rule, in reference to a power of a public nature, by a majority of the 
 officers entrusted with it ; or the rule of presumption applicalale to such cases. 
 
 The supreme court, in the third district, in the case of People vs. Seward, (27 
 Barb., 94,) overruled the case of Tucker vs. Rankin, and say "We prefer the former 
 decision, and think it the sounder construction of the statute, and regard it as 
 intending to alter the rule of the common law, if the rule of the common law was 
 otherwise." The court also refused to allow parol proof, to explain the order. 
 
 § 184:. Consent to Bail Roads crossing Highiowys. — When- 
 ever any association or individual shall construct a rail-road 
 upon land purchased for that purpose, on a route which shall 
 cross any road or other public highway, it shall be lawful for the 
 commissioners of highways having the supervision thereof, to 
 give a written consent that such rail-road may be constructed 
 across or on such road or other public highway ; and thereafter 
 such association or individual shall be authorized to construct 
 and use such rail-road across or on such roads or other high- 
 ways, as the commissioners aforesaid shall have permitted ; but 
 any public highway thus intersected or crossed by a rail-road, 
 shall be so restored to its former state as not to have impaired 
 its usefulness. [1835, ch. 300.] 
 
 If the rail-road company purchase the land for their track on each side of the 
 highway, of course they become the owners of the fee in the highway ; and by 
 getting this consent from the commissioners, they have full right to lay the track. 
 They must acquire the fee in the road before thev can lay their track, cither by 
 gift, or by making compensation to the owners. As the public-only have an ease- 
 ment or right of passage in the highway, subject to this easement, the rights and 
 interests of the owner of the fee remain uni-mpaired. Trustees of the Presbyterian 
 
HIGHWAYS. 89 
 
 Church in Waterloo vs. Auburn and Rochester Rail-road Company, (3 Hill, 567.) 
 (2 &ramge, 1004.) ,(1 WUs., 110, 111.) (6 Mass., 454.) (6 EaA, 154) (15 Johns. 
 447.) (12 Weni.,%%.-) ' ^ 
 
 The legislature cannot authorize the construction of a rail-road across a highway 
 ■without making a provision for the compensation of the owner of the fee. 
 
 There is a very interesting decision on thesubject of rail-roads in streets. WJ.- 
 Uams vs. Central iJ. iS., ( 16 New York Rep., p. ST.) 
 
 The court of appeals decide that the dedication of land to the use of the public 
 as a highway does not preclude the owner of the fee, subject to the public easement, 
 for maintaining an action against a rail-road company, which, without his consent, 
 or an appraisal of damages, enters upon and occupies the highway with the track 
 of its road. 
 
 Such an appropriation of the highway by the company, is the imposition of 
 additional burden xipon, and the taking the property of the owner of the fee, 
 within the meaning of the constitutional provision, which foi'bids such taking with- 
 out compensation. 
 
 This decision was made in 1857, and in view of this section, and since the 
 passage of the general rail-road law; and It is therefore settled, that the State 
 and a municipal corporation combined, cannot confer upon a rail-road com- 
 pany the right to construct a rail-road on a street dedicated by the owner, for 
 ■which damages have not been assessed and paid by the public, unless the rail-road 
 company first have the damages assessed according to law. The cases (16 Barb., 
 193,) (U/6., 414.) (10/6., 360.) (13/6., 646.) (7 /6., 508,) are commented 
 upon and explained. 
 
 § 185. [126.] Trees, to whom ihey h^long. — All trees standing 
 or lying on any land over which any highway shall be laid oat, 
 shall be for the proper use of the owner or occupant of su.ch 
 land, except such of them as may be requisite to make or repair 
 the highways or bridges on the same land. 
 
 § 186. [127.] Trees may he planted. — Penalty for i/njurmg. — 
 Any person owning land adjoining any highway not less than 
 three rods wide, may plant or set out trees on the side of 
 such highway contiguous to his land ; which trees shall be' set 
 in regular rows, at a distance of at least six feet fi'om each other. 
 Whoever shall cut down, destroy or injure any tree that has been 
 or shall be so planted or set out, shall be liable in damages to 
 the owner of such adjoining land. 
 
 These sections recognize the fundamental principle of the common law in rela- 
 tion to roads, that the grant or laying out of a highway gives only aright of way' 
 to the public, and that the fee or right of soil remains in the original owner. (2 
 /oM«., 357.) (1 TFcmd., 263.) (20 /oA»s., 743.) 
 
 In Jackson vs. Hathaway, {15 John, R., 447,) the court say, "Highways are regarded 
 in our law as easemettts. The public acquire no more than the right of way, with 
 the powers and privileges incident to that right ; such as digging the soil and using 
 the timber and other materials found within the space of the road, in a reasonable 
 manner, for the purpose of making and repairing the road and bridges. When the 
 sovereign imposes a right of way upon the land of an individual, the title of the 
 former owner is not extinguished ; but is so qualified that it can only be enjoyed 
 subject to that easement. The former proprietor still retains his exclusive right in 
 all mines, quarries, springs of water, timber and earth for every purpose, not incom- 
 patible with the public right of way. The person in whom the fee of the road is, 
 may maintain trespass, or ejectment, or waste. But when the sovereign chooses to 
 discontinue or abandon the right of way, the entire and exclusive enjoyment revei'ts 
 to the proprietor of the soil," • 
 
90 HIGHWAYS. 
 
 In Adams vs. Eivers,(ll JBarb.,390,) before quoted, trespass was maintained by an 
 adjoining owner against a person who came upon the side-walk and there remained 
 • nsing abusive language toward him, and refusing to depart. 
 
 The fee of the highway belongs to the owner of the adjoining gi-ound, and the 
 publiq have only a right of passage. It is but a servitude or easement ; and trespass 
 will lie for any exclusive appropriation of the soil. (1 Burr., 143.) (2 Strange, 
 1004.) (1 Wills., 10~.) (6 ^ati., 154.) 
 
 For an appropriation of the soil,, trespass lies by the owner of the land through 
 which the road passes. Oidney vs. Eg/rl, (12 Wend., 98.) 
 
 He retains the exclusive right of all mines, quarries, springs of water, timber and 
 earth, for every puipose not incompatible with the public right of way. See {Gauf 
 en's Treatise, 374, 818.) (6 Mass. B., 454.) (2 Johns., 363.) \Woolrieh on Ways, 5.) 
 
 The public has only an easement in a highway — the fee" belonging to the owners 
 of the adjoining lands — and a turnpike company, by a deed from the commission- 
 ers of highway, will take nothing more than a right of passage ; the owner of the 
 soil having such a possession that he may bring ejectment. The Northern Twn- 
 pike E. Co. vs. Smith, (15 Barb., 355.) 
 
 The laying out a highway at the common law, and under the highway acts of 
 Massachusettn, does not deprive the owner of the fee, but only subjects it to the 
 easement. United States vs. Harris, (1 Sumner, 21.) 
 
 The case of Barclay vs. Sowell, (6 Pfters, 498,) decides the same point, and that 
 when the road is vacated by the public, the original owner resumes the possession 
 of the ground, and that while it is used as a highway, he is entitled to the timber 
 and grass which may grow upon its surface, and to all minerals which may be found 
 below it. 
 
 The case of Perly vs. Chandler, (6 Mass. 454,) also decides the same, and that the 
 owner may sink a watercourse below the surface, covering it so that the highway 
 remains safe and convenient for passengers. If the highway be located over water- 
 courses, either natural or artificial, the public cannot shut it up, but may mak^ the 
 road over it by the aid df bridges. 
 
 The defendant,'being the owner of the soil in a highway, sold to P. a bank of 
 sand therein, in part of the plaintiff 's premises, where he resided. P. in taking 
 away the sand, dug down four or five feet below the surface of the ground, for a 
 distance of some three rods dpposite plain tiflf 's land. The excavation was about 
 eight feet from the plaintiff 's fence, and the earth had partially, caved in, to within 
 about four feet of the fence, but none of the plaintiff's earth, or fences, or improve- 
 ments had been in the least disturbed. Held that no action would lie for damages. 
 WUliams vs. Kenny, (14 5ar6,,620.) 
 
 The right of passage does not belong to, nor is it in any sense the property of any 
 particular town or county, but is in the people of the whole State. (27 Barb., 543.) 
 
 In the case, of Pish vs. Mayor of Bochester, (6 Paige, 272,) the chancellor says : 
 I believe it is the common practice of public officers having the care of public roads, 
 to /take the materials which are removed from one part of the highway undei- their 
 direction, in improving the road at that point, and depositing them wherever they 
 may be Vanted for the repair or improvement of the highway in other places, even 
 beyond the boundaries of the lands opposite to where the materials are taken. The 
 only restriction that I am aware of, is that contained in [5 126, j which gives to the 
 owner or occupant of land, over which a highw;ay is laid out, the use of the trees 
 thereon, except such as ai'o requisite to make or repair highways or bridges on the 
 same land. This legislative restriction of the right to use trees, or limiting it to 
 repairs of the roads within the same lands, appears to be founded upon the suppo- 
 sition that without such restriction they might be used to repair or improve otJier 
 parts of the highway ; and as the restriction is confined to trees, other materials 
 may be used beyond the bounds of the land from which they ai-e taken. Trees, 
 when cut down, may be left without much inconvenience, by the side of the high- 
 way, until the owner of the land through which the road runs, has a reasonable 
 time to remove theia. _ But, when ,it is necessary to excavate earth or ground, it 
 must be removed entirely, or the work cannot be completed, and must be done 
 anew. And it cannot be deposited upon lands adjacent to tie highway, without 
 the consent of the owners of such land. When in a state of removal, therefore, it 
 does not appear to be susceptible of any distinct ownership except in those under 
 whose authority or by whom such removal is made." 
 
HIGHWAYS. 
 
 91 
 
 The oflSoera having charge of highways may work and improve every part of the 
 ten-itory included -within the highway, being responeihle only for wanton or mali- 
 cious conduct by which others are injured. Graves vs. Otk, (2 HUl, 466.) 
 
 Cattle in Highway. — The statute which authorizes the electors of a town, at 
 their annual town meeting, to determine the times and manner in which 'horses, 
 cattle and sheep, shall be permitted to go at large, on highways, is not in conflict 
 with the constitution of this State. 'Hardenbugh vs. Lockwood, (25 BO/rh., 9.) 
 
 The right to allow cattle, horses, &e., to go at large on highways, is one of the 
 easements or servitudes pertaining to the land occupied as a highway, and is sup- 
 ported by usage as old as the history of our country. Ih. 
 
 The land is presumed to have been taken with reference to this usage, and the 
 exercise of the right by the proper authorities. lb. 
 
 § 187. [128.] Penalty for injuring mih-loards. — ^Whoever 
 shall destroy, remove, iajure or deface any mile-board or mile- 
 stone, erected on any highway, shall forfeit for every offence, the 
 sum of ten-dollars ; he shall also be deemed guilty of a misde- 
 meanor, and, on conviction, shall be fined not exceeding fifty 
 dollars, or imprisoned not exceeding three months, at the discre- 
 tion of the court. 
 
 § 188. [129.] Do. as to guide-posts. — Whoever shall injure or 
 deface any description affixed to a guide-post, erected on any 
 highway, or destroy or injure any such guide-post, shall be lia- 
 ble to all the penalties provided in the last preceding section. 
 
 § 189. [130.] Injuries to road. — Whoever shall injure any high- 
 way, by obstructmg or diverting any creek, water-course or 
 sluice, or by drawing logs or timber on the surface of any road 
 or bridge, or by any other act, shall for every such offence, 'for- 
 feit treble damages. 
 
 Commissioners cannot by virtue of their offices bring suits to recover damages 
 against individuals or corporations for illegally entering upon and taking possession 
 of the highways or bridges of their town. Oorfieli & Town vs. Tovm of OuUford, 
 (1 Denio, 510.) In that case a turnpike company entered upon and took possess- 
 ion of a highway and bridge in Guilford, and the commissioners, in pursuance of a 
 vote of the town, at s town meeting, prosecuted the company, and were unsuccess- 
 ful, and were compelled to pay a large amount of costs and expenses of the litiga- 
 tion. The commissioners sued the town, and it was decided that the town had no 
 power, by resolution or otherwise, to authorize the commissioners to bring an action 
 for such injuries. Such a resolution would not bind the town, and consequently, 
 that they could not recover of the town. 
 
 This is a penalty recoverable by the commissioners. They cannot maintain an 
 action in the case for damages done to the road ; the remedy is by indictment, sum- 
 mary abatement, or action for the penalty. Cornell & Olark vs. Butternvis Turnpike 
 (7o., (25 Wend.,355.) 
 
 See (5 Denio, 213 ; 3 Barb., 459,) as to recovering for damages for obstructions. 
 
 § 190. [131.] Penalties how recovered. — All penalties or for- 
 feitures given ih this Title, and not otherwise especially provided 
 for, shall be recovered by the commissioners of highways of the 
 town in which, the offence shall be committed ; and, when recov- 
 ered, shall be applied by them in improving the roads and 
 bridges in such town. 
 
92 HIGHWAYS. 
 
 They cannot maintain an action in their official name or title, but must use their 
 individual name, annexing their official title. Goms. ^ H. of CorSandvUle vs. Feck, 
 (5 Mill, 215.) Supervisor of Qalway vs. Stimson, (4 Hill, 136.) A suit should be 
 commenced as follows : " A., B. and C, commissioners of highways of the town of 
 Galway, in the county of Saratoga, plaintiffs, &c." 
 
 In general, all public officers, Uiough not expressly authorized by statute, have a 
 capacity to sue commensurate with their public trusts and duties. Overseers of 
 Pittstown vs. Overseers of PlaMsburg, (18 Johns., 407.) Todd vs. Birdsall, (1 Cow., 
 260, and notes,m>. 261, 4.) (3 Wend., 193.) Stiver vs. Cumings,Xl Wend., 181.) Avery 
 vs. Slaek, (19 Wend., 50.) 
 
 Actions may be brought by commissioners of highways in their own names, with 
 the addition of their name of office. Oovidvs. Glass, (19 Barb., 179.) 
 
 But, where actions are thus brought, the complaint should, by proper averments, 
 show that the claim is made by the officer and not by the individual. lb. 
 
 Merely adding to the names of the plaintiffs in the title of the cause, the words, 
 " commissioneia of highways, &c." will not render the action an action in favor of 
 the plaintiffs in their official character, uirless the necessary averments are iusei-ted 
 in the complaint. lb. 
 
 The words added will be considered merely discriptio personw. 
 
 Commissioners of highways cannot by virtue of their office bring suits to recover 
 damages against individuals or corporations- for illegally entering upon and tailing 
 possession of the public highways or bridges of their town. Cornell vs. the Town 
 of Gmlford,{l Denio, 510.) 
 
 The electors of a town in town meeting have no power by resolution or other- 
 wise, to authorize commissioners of highways to bring an action in their own names, 
 or in their name of office, for such injuries. Such a resolution, if passed at town 
 meeting, would not bind the town. Where a cause of action exists in behalf of a 
 town, and no officer is by statute authorized to prosecute for such cause of action, 
 the town meeting may direct such action to be brought, and may appoint an agent 
 to prosecute it, but such suit must be brought in the name pf the town. Per 
 Jewett, J. 
 
 Where the electors of a town, in theii" town meeting, dii'eoted the commissionera 
 of highways to prosecute a turnpilte company,- for entering upon and taking possess- 
 ion of a public nighway and bridge in that town, and the commissioners accord- 
 ingly brought a suit for that cause of action, and had judgment against them ; held, 
 that, they could not sustain an action against the town to be reimbursed then- costs 
 and expenses, or the costs recovered against them in that suit. lb. 
 
 § 191. [132.] Motent of this Title.— The provisions of this 
 Title shall be construed to extend to all parts of the State, except 
 where special provisions, inconsistent therewith, have been or 
 shall be made by law, in relation to particular counties, cities, 
 villages or towns. 
 
 § 192._ The first Title of the sixteenth chapter of part first of 
 the Revised Statutes, shay, immediately, on the passing of this 
 act, be in force in the county of Eichmond. [1833, ch. 97.] 
 
 Miscellaneous.— Several decisions and statutes, are here added, on the subject 
 of highways. 
 
 Fees of Commissioners.— The statute of 1857, Vol. 2, page 339, $ 2, pro- 
 Tides, that when there is but one commissioner, he shall be allowed the sum of two 
 dollars per day, for each day actually and necessarily spent in the discharge of his 
 official duties , and in towns where there are more than one commissioner, they 
 shall receive for such official service, each the sum of one dollar and fifty cents, for 
 each day actually and necessarily spent ihevein. 
 
 Oomraissioners have the right to negooiate amicable settlements of controversies 
 relating to encroachments upon highways, and promissory notes and other securi- 
 ties taken on such settlements, ai'e valid, and may be enforced by action, (5 Hill, 
 215.) 
 
HIGHWAYS. 93 
 
 They are liable on the lawful contracts of their predecessors, (13 Wend., 271.) 
 (3 R. S., bth. Ed., 775.) Execution issues against them the same as against indi- 
 viduals, and is collected in the same way ; the amount collect ed must be allowed to 
 them in their official accounts. (7 Werd.,lSi..) (3 iJ. /S., 5fA^A,^o^« 776, § 121.) 
 Commissioners have power to invest public money upon unquestionable security, 
 when not wanted for immediate use, so as to realize the interest on the same. (5 
 £«/,3l5.) 
 
 Commis<ioners of highways have no power to contract a debt against the town 
 by borrowing money for the repair of roads and bridges. Barker vs. Loomis,'(6 
 Sill, 463.) ^ J ^ 
 
 Accordingly when commissioners of highways borrowed $1000 for this purpose, 
 on a note pui-portiiig to bind them in their official capacity — /wld, that an action 
 could not be maintained against their successors to recover the amount. lb. 
 
 The commissioners are not bound to repair either roads or bridges until the 
 neces-aiy funds are provided. lb. 
 
 A bond taken in the names of the commissioners of highways of a town virtute 
 officii, for the benefit of the town in its corporate capacity, and intended to relieve 
 the taxable inhabitants of the town from the payment of a tax for a public improve- 
 ment, viz : — the extension and opening of a public highway, cannot be enforced 
 against the obligors : the commissioners have no authority to take a bond of that 
 nature, and the general policy of the law forbidding such a transaction. Webb vs. 
 Aibertaon. (4 Barb. S. G. Rep., 51.) 
 
 So held, notwithstanding the improvement was intended to be a village improve- 
 ment, local in its character, fi-om which the inhabitants of the town at large would 
 derive little or no advantage, and the obligors, as residents of the village, or own- 
 ing property there, were, for the sake of the benefit to the village, willing to assume 
 the cost of the improvement, and indemnify the town. lb. 
 
 Commissioners of highways in exercising tlieir authority in respect to the laying 
 out of highways, have no right to make conditions with parties .interested. They 
 have no I'ight to say, that if they shall order a highway to be laid out, individuals 
 shall assume, or become bound to pay the expense. lb. 
 
 As to the rights of the owner of the fee to bring a suit for an improper nse of a 
 highway and the difference between a highway in the country and sbeets in a city. 
 See MUhanvs. Sharp, (15 Barb., 193.) 
 
 The village of Plattsbtirgh was declared to be a separate road district, and the 
 trustees, commissioners of highways, it was decided that as commissioners they 
 were independent officera, and that the corporation was not liable for their omis- 
 sions of duty ; and that the corporation wag'not liable for an injury sustained by a 
 person in consequence of his felling in the night time, into an open ditch or trench 
 constructed in one of the streets of the village, and allowed to remain open without 
 any protection or guard. Hiokokvs. Plattsburgh, (15 Barb., 427.) 
 
 The case (5 Sandf.,) decides that in the city of New York, the corporation is lia- 
 ble for the neglect of the common council in not keeping the streets in repair. 
 
 The act of April 12, 1848, allows telegraph companies to construct their lines 
 along highways or across waters, by erecting posts, piers or abutments for sustain- 
 ing cords or wires, but not to incommode the use of the road, nor interrupt naviga- 
 tion, nor to build bridges. 
 
 It is very questionable whether the legislature could pass a law allowing a com- 
 pany to place erections in highways, to the injury of the owner of the soil, without 
 his consent, or without making provisions for his compensation. 
 
 In 9 Piek., 109, it is decided in Mass. that a turnpike company might erect ioll- 
 hc/uses in the limits of the highway. 
 
 An Act to authorize the formation of Kailroad Companies, and to regulate the same . 
 Passed April 2, 1851. 
 
 J 24. Whenever the tract of a rail-road, constructed by a company formed under 
 this act, shall cross a rail-road, a highway, turnpike or plank road, such highway, 
 turnpike or plank road, may be carried under or over the track, as may be found 
 most expedient ; and in cases where an embankment or cutting shall make a change 
 
94: " HIGHWAYS. 
 
 in tie line of such highway, turnpike, or plank road, desii'able, Tvilih a Tiew to more 
 easy ascent or descent, the said company may takfi such additional lands for the 
 construction of such road, highway, turnpike, or plank road, on such new line, as 
 may be deemed requisite by the directors. Unless the lands so taken shall be pur- 
 chased for the purpose aforesaid, compensation therefor shall be ascertained in the 
 manner prescribed in this act for acquiring title to real estate, and duly made by 
 said corporations to the owners and persons interested in such lands. The same, 
 when 80 taken, shall become part of such intersecting highway, turnpike, or plank 
 road, in such manner and by such tenure as the adjacent parts of the same high- 
 way, turnpike or plank road, may be held for highway purposes. 
 
 §, 28. Sub. 5. To eonstouot their road across, along or upon any stream of •\vater, 
 water course, street; highway, plank road, turnpike or canal, which the route of its 
 road shall intersect or touch ; but the company shall restore the stream or water 
 course, street, highway, plank road and turnpike, they intersected or touched, to its 
 former state, or to such state as not unnecessarily to have impaired its usefulness. 
 Bvery comjjany formed under this act, shall be subject to the power vested in the 
 canal commissioners, by the seventeenth section of chapter two hundred and seventy- 
 six of the session laws of eighteen hundred and thirty-four. Nothing in this act 
 contained shall be construed to authorize the ei'ection of any bridge, or any other 
 obstructions across, in, or over any stream or lake navigated by steam or sail boats, 
 at the place where any bridge or other obstructions may be proposed to be placed ; 
 nor to authorize the construction of any rail-road not already located in, upon or 
 across any streets in any city, without the assent of the corpgration of such city. 
 
 Boundaries by Highways. — The established inference of law iSf that a 
 conveyance of land bounded on a public highway, carries with it the fee to the 
 center of the road, as part and paicel of the grant. The idea of an intention in a 
 grantor to withhold his interest in a road to the middle of it, after parting with aU 
 his right and title to the adjoining land, is never presumed. It would be contrary 
 to universal practice ; and it was said in Peck vs. Smith, thit there was no instance 
 where the fee of a highway, as distinct from the adjoining land, was ever retained 
 by the vendor. It may be considered as the general rule, that a grant of land 
 bounded upon a highway or river, carries the fee in the highway or river to the 
 center of it, provided the grantor at the time owned to the center, and there be no 
 words or specific description to show a contrary intent. {3 Kent Com , p. 433.) 
 GMd vs. Starr, (4 Sill, 469.) 
 
FEEKIBS. 
 
 95 
 
 TITLE II. 
 
 OF THE KEGULATION OF FEERIES. 
 
 § 1. Liceiise, hy whom granted. — The [county court,] in each 
 of the counties of this state, shall granti licenses for keeping 
 ferries in their respective counties, to as many suitable persons 
 as they may think proper ; which licenses shall continue in force 
 for a term to be fixed by the court, not exceeding three years. 
 
 A ferry is a liberty, by license given, to have a boat for passage upon a river for 
 carriage of horses and men, and goods, for a I'easonable toll. (6Vo. EL, 591.) 
 ( Woolrichon Wo!/«,217.) 
 
 The owner of a ferry cannot use the land on the other side of the sb'eam, (unless 
 he is himself the owner,) for the purpose of embarking or disembarking passengers. 
 (i Kemt s Com., i'il.) Peter vs. LencMl, (6 Barn, and Oress., 103.) See also Cham- 
 bers vs. Furry, (1 yeates,167.) Cooper vs. Smith, (^ Sera, and Hawl, 26.) {Saville, 
 11P;.,29.) 
 
 If the land on the opposite side is a public highway, the owner of the ferry may 
 use it. 
 
 The privilege of establishing a ferry and taking toll for the use of the same is a 
 franchise ;' atid the public have an interest in the same ; and the owjiers of the 
 franchise are liable to answer ia damages, if they should refuse to transport an 
 individual without any reasonable excuse, upon being paid or tendered the usual 
 rate of fere. (3 Kent's Com., 458.) Beekman vs. Saratoga and Schenectady B. R. Co., 
 {3 Paige, i^.) Fain^ vs, Pairick, (S Mod. Rep.,281, 294.) Story J., in Charles. 
 River Bridge vs. Warren Bridge, (11 Peter's Rep., G39 ) * 
 
 Notice of an application to the court for a license to establish a ferry, need not 
 be given to all w$o claim a right to the ferry ; nor even to all those who have- 
 obtained a license from another court for a ferry at the same place. All that is re- 
 
 give- 
 1. by 
 
 persons claiming the exclusive right to a ferry, to obtain a decree restraining the 
 defendant from keeping a ferry at the same place, and such bill alleged that the 
 defendant had established a feri-y there, in vio'ation of the rights of the complainants; 
 and that he was using the same in pursuance of a pretended license, from some 
 court or person, but that if any license had been granted to the defendant, the same 
 ■was granted in fraud of the complainant's rights, and without an§ legal notice to 
 them; but such bill contained no allegation that the complainants were the owners 
 of the land through which the road adjoining the ferry, ran. Held, that the 
 averment, as to the want of notice to the complainants, was not material for any of 
 the purposes of the suit ; and that the defendant was not bound to answer it. Wis- 
 well vs. Wendell, (3 Barb. Cham. Rep., 312.) 
 
 § 2. 7b wlhom. — ^Uo such license shall be granted to any per- 
 son other than the owner- of the land through which the high- 
 way adjoining to the ferry shall run, unless such owner shall 
 neglect to apply for such license, after notice as hereinafter 
 provided. 
 
96 FEEEIES. 
 
 This license is in the nature of a personal ^rnat, and therefore is not assignable, 
 Blackwell vs. Wiswell, (34 Marb., 358.) Harding vs. Steamboat Maroeriek, (5 Lwe 
 Reporter, 106.) 
 
 § 3. Whenever application for a ferry shall he made by any 
 person other than such owner, the court shall not grant a license 
 to such applicant, unless proof, shall be made that the applicant 
 caused notice in writing to be giveh to suclj owner, at least eight 
 days before the sitting- of the court, of his intentipn to make 
 such application. 
 
 § 4. Hecogniscmce.^-Everj person applying for such license 
 shall, before the same be granted, enter into a recognizance to 
 the people of this State, in open com-t, in the sum of one hun- 
 dred dollars, faithfully to keep and attend such ferry, with such 
 and so many suiBcient and safe boats, and so many men to work 
 the same, as shall be deemed necessary, together with sufficient 
 implements for said ferry, during the several hours in each day, 
 ■9,nd at such several rates as the court granting the license shall, 
 from time to time order and direct ; which recognizance shall 
 be forthwith filed with clerk of the county. 
 
 § 5. To he entered.^-'Evevj license so granted shall be entered 
 in the book of minutes of the court by the clerk ; and a copy 
 thereof, attested by him, shall be delivered to the person licensed. 
 
 The clerk will ente^ the recognizance in the minutes of the county court, in the 
 same manner as in criminal cases in the sessions, except the condition of the recog- 
 nizance, which should bein the woi'ds of section 4. 
 
 § 6. Effect of certain licenses. — ^Whenever the waters over 
 •which any ferry may be used shall divide' two counties, a license 
 •obtained in either of the said counties shall be sufficient to 
 authorize the person obtaining the same, to transport goods, 
 wares, and merchandize, to and from either side of said waters. 
 
 In. (11 Wend., 590,) The People vs. Babcoch, the question was raised, whether the 
 ■common pleas^of Niagara, had 'power to grant licenses to keep ferries on the 
 Niagara river, although the jurisdiction of the State extends only to Ihe center of 
 the I'iver ; and it -was decided that.thejr had such power ; and that persons keeping 
 a ferry on that river without license, will be subject to punishment for a misde- 
 meanor. Bee Gibbons vs. Ogden, (9 Wheaton, 1.) 
 
 § 7. . Penalty for misconduct. — ^Every person who shall vio- 
 late the condition of such recognizance shall be considered guilty 
 of a misdemeanor ; and, on conviction, shall be subject to such 
 fine as the court may adjudge,' not exceeding twenty-five dollars 
 for each oflence; and on the proof of such conviction, the coimty 
 court shall direct the recognizance entered into by such persOn 
 to be estreated for 'the use of the people of this State. • 
 
PEEEIES. 97 
 
 § 8. Penalty for ferrying without license. — If any person, 
 (except within the counties of Essex and Clinton, the counties of 
 Orange, Rockland and Westchester, and the counties in the first 
 Senate District,) shall use any ferry, for transporting across any 
 river, stream or lafee, any person, or any goods, chattels, or 
 efiects, for profit or hire, unless authorized in .the manner directed 
 in this Title, such person shall be considered guilty of a misde- 
 meanor ; and, on conviction, shall be subject to such fiine, for the 
 use of the county, as the court may adjudge, not exceeding 
 twenty-five dollars for each offence. 
 
 A party having a right of ferry granted cannot maintain an action for disturbance 
 of his righti His only remedy is for the penalty under the statute. Almy vs. Kar- 
 ris, (5 Jokm.R., 175.) 
 
 § 9. Proceedings. — Where any such offence shall be commit- 
 ted on waters dividing two counties, the person so offending 
 may be proceeded against in each of said counties ; but the fine 
 to be imposed shall not exceed twelve dollars and fifty cents in 
 each case. 
 
 § 10. Limitation of this Title — Nothing in this Title contained 
 shall affect or alter the ferries granted by charter to the corpo- 
 ration of Albany and Hudson, or alter or impair any grants rnade 
 by this State, or any legal right or privilege whatever, belong- 
 ing to any individual or corporation, by virtue of any law of this 
 State, or otherwise. 
 
 Feriy franchises are partly of a public and partly of a private nature. Certain 
 duties and burdens are imposed upon the grantees, who are compensated therefor 
 by the privilege of levying ferriage, a.nA the security from spoliation, arising from 
 the irrevocable nature of the grant. Tlie State may ]egii<late touching thera, so far 
 as they ax&publiei juris Thus laws may be passed' to punish neglect and miscon- 
 duct in conducting ferries, to secure the safety of passengeis from danger, impo- 
 sition, (fee. But the State cannot talje away the femes themselves, nor deprive the 
 gi'antee of his legitimate rents and profits. 
 
 The franchise, however, may be forfeited by non-user or misuser, judicially 
 ascertained. Benson vs. Mayor of N. Y., (10 Barb., 223.) 
 
 In 1845, {ch. 352) a statute was passed, authorizing the appointment of cnmrais- 
 sioners to grant ferry licenses in the countiesof New Yorlt, Kings, Queens, Suffoll:, 
 and Richmond. 
 
 For the genei'al law to authorize the formation of ferry companies, see laws of 
 1853, cAop. 135, jjffl^c 913. .... 
 
 Wherever a ferry is lawfully established, an obligation is imposed upon the pro- 
 prietor to maintain it in a safe and proper manner, to have suitable accommoda- 
 tions, uncli as boats, terry-ways, and attendants, at all reasonable and proper times, 
 for the accommodation of the traveling public. 
 
 A person baviiig a feriy according to law, has the exclusive right of ferriage at 
 that place, undisturbed by the competition or interference of rival establishments. 
 (5 Johns. R., 175.) And if he possessed the right at common law, to the exclusive 
 enjoyment of the ferry, then the statute, giving a remedy in the affirmative, with- 
 out a negative express or implied, for a matter authorized by the common law, he 
 might, notwithstanding the statute, have his remedy by action at the common law. 
 
 As a ferry forms a part of the putlic highway, any obstruction of the use of it, is 
 a nuisdnce, and as such, renders the author of it liable to an indictment, and also to 
 an action for damages, in favor of the individual wlo has sustained a special injury 
 by i'eason of the obstruction. 
 
 F«rry men are common carriers, and liable as such for the carriage of the goods 
 and persons they receive upon their boats. {Angel, JJ 416, 417.) 
 
 7 
 
98 LAWS OF THE EOAD. 
 
 LAW OF THE EOAD. 
 
 1 E. S., Pakt 1, Chap, xx., Title 13. 
 
 § 1. "Whenever any persons trayeling with any carriages 
 shall meet on any tul-npike road or public highway in this State, 
 the persons so meeting shall seasonably turn their carriages' to 
 the right of the center of the road,, so as to permit such carriage 
 to pass without interference or interruption, under the penalty 
 of five dollars for every neglect or offence, to be recovered by 
 the party injured." 
 
 a B. ^8., 965, 5th M. 
 
 The ti-ae meaning of this is, that all persons thus meeting shall keep to the right 
 of the center of the worked part of the road. (7 Wend., 185.) It is not the center of 
 the smooth or most traveled ^axi of the road which is the dividing line, but the center 
 of the worked part; although the whole of the smooth or most traveled path m^ be 
 upon one side of the center. It is no defence that the party had no design to oiftnd, 
 that he attempted to prevent a collision, that the road on his side was rough and 
 rutty, and that it was more difficult for him than for the other party to turn out ; 
 unless the obstacles to tuiiiing out are insuperable or extremely difficult, he is with- 
 out excuse. Maring vs. Laming, {1 Wend., 1B5.) 
 
 The rule requiring persons meeting each other on any turnpike road, or public 
 highway, to keep their vehicles to the right of the center of the worked part of the 
 road, does not apply to the winter season, when the depth of snow renders it impos- 
 sible or difficult to ascertain the center of the worked part of the road. Smith vs. 
 i)ygert, (12 Barh., 613.) 
 
 it is a reasonable constniction of the statute to define the center of the road, 
 when obstructed by snow, to be the center of the beaten or traveled track, without 
 reference to the worked part. lb. 
 
 See also Jacgueth vs. Richardson, (8 Mete., 216.) 
 
 When two persons are traveling with carriages, &c., on the road, and about to meet 
 and pass each other, each is bound to pass to the right of the center of the trawled 
 road, and in so doing to use ordinary care and caution, and if one of them by omit- 
 ting this care, be injured in his person or property, he is without legal remedy, and 
 if he injure the other, he will be liable to him in damages. Parmer vs. Barker, (2 
 Fairfield, 338.) 
 
 Though one ihay lawfully pass on the left side qf the road or across it, for 
 the purpose of turning up to a house, store or other object, on that side of the road, 
 yet in so doing, he must not obsti'uct those who are lawfully passing along on the 
 same side. lb. 
 
 The fact that the road is rough and rutty, is no excuse. By the terms " season- 
 ably turn, drive, ifcc," is meant that travelers shall turn to the right in such season 
 that neither shall be retarded in! his progress, by reason of the otlier occupying his 
 half of the way, when he may have occasion to use it in passing. (14 jv; Hamv, 
 iJ.,3lO,) 
 
 A party having before him the whole road free from obstructions and having no 
 notice of any carriage behind him in season to stop or change his course, is at lib- 
 erty to travel on any part of the road that he pleases, Foster vs. ffoddard,' (40 Maine, 
 64.) 
 
 In Massachusetts, it was decided that the statute which requires ti-ayelers meet- 
 ing each other, " seasonably to drive to the right," does not apply when one vehicle 
 is passing along one street and another ia turning into the street from a cross road. 
 Lovejoy vs. Dolen, (10 Gush., 495.) 
 
LAWS OF THE EOAD. y» 
 
 Sriving across the street. — A person may pasa on the left side of the road, 
 or across the same, for the purpose of tiniiing up to a house, store, or other object ou 
 that side of the road ; but in so doing he must not interrupt or obstruct a man law- 
 fully passing on that side* which would be in a direction, in a djgree contrary to 
 his ; if he does he acts at his peril, and must answer for the consequences of such 
 viblation of his duty. In sucn circumstances, he must pass before or wait till after 
 such person is passed on, A carriage passing from one street to another, which was 
 at right angles to it, and crossing the same, came accidentally into collision with 
 another carriage, the court held the driver liable for the damage which ensued. 
 Before attempting to cross, he ought to have seen that he could do it without inter- 
 fei'ing with persons who were in the proper exercise of their right of passing 
 through the street. (11 Maine R., 338. ) {l,Pich. B., 345.) 
 
 A person on horseback. — It is ordinarily the duty of a person on horse- 
 back, to yield the traveled path to one who is traveling in a wagon or other vehicle; this 
 is sanctioned by common consent and immemorial usage. Waehburn vs. Tracy, (2 
 O hip. Vermont Seport,lW.) 
 
 In Pennsylvania, it was held that where a road is narrow, or there is difficulty in 
 passing, ana it becomes impracticable or dangerous for the teamster to give part of 
 the way, and the horseman can ride by, by passing out of Hie road, it is his duty 
 to do so. If he refuses and a collision ensues, which occasions injury to his horse, 
 it is attributable to his own negligence or obstinacy, and he is wiUiout remedy, 
 (11 ffarris JB., 198.) 
 
 In this State our court has decided that there is no law of the road requiring a 
 man on horseback, when meeting a horse or vehicle, to turn out on the rigfii or left 
 side. The rider must govern himself in this respect according to his notions of 
 prudence at the time, under the circumstances, Ihtdley vs. Bolles, (24 Wend., 465.) 
 
 Foot Passengers. — All persons have a right to walk in a public highway, 
 and are entitled to the exercise of reasonable care on the part of persons driving 
 carriages. 
 
 It was said in a case in England, that where a footman was crossing the highway 
 and a pei'son was driving along the road and could not pull up because his reins 
 broke, that, that was no ground of defence, because he was bound to have proper 
 tackle. {Gar & Payne, 691 ) {Bing. B., 213.) This right of passage of the foot 
 passenger, however, does not exempt him from due care on his part. 
 
 It is said that the rule as to the proper side of the road does not apply to foot 
 passengers. {Gar. & P., 691,) 
 
 Meeting on sudden. — A- party on the wrong Ride of the road should be 
 held answerable, unless it clearly appears that the party on the proper side had 
 ample means and opportunity to prevent it. We are not bound to adhere to the 
 law of the road, if by departing from it we can prevent an injury. {Gow. Treatise, 
 3d., 346.) 
 
 Accidental meeting. — It has been held that the action may be maintained 
 for an injury received by being run against in the highway, even though done acci- 
 dentally ; the defendant being no olherwise to blame than driving in the wrong 
 side of the road in the dark. (5 T. JJ., 648.) (1 Gamp., 497,) (2 JSast., 593,) (10 
 Sing..n2.) 
 
 If the injury happen by ■unavoidable accident, no action will lie ; otherwise, if 
 blame attach to the defendant, though he be innocent of any intention to injure ; as 
 if he drove a too spirited horse, or an ■anhroTeen horse, or pull a vrrong rjein, or use im- 
 perfect harness. {lBing.,2n.) {\ Gow. Tr.,i M.,Wi.) 
 
 Rate of S|)eed. — Driving at an immoderate speed, is in itself culpable negli- 
 
 fence, if an injury result therefrom and without fault to the person injured. To 
 rive a carriage through a populous street so as to endanger the safety of the inhab- 
 itants, is an indictable offence', and an action will also lie in behalf of the person 
 injured, {I PeUr'tGir.G. R.,i^&.) {IZ Peter's U. 8.,V6l.) 
 
 Action — Negligence, &0. — The party prosecuting mnst show himself free 
 from negligence, A person being on the wrong side of the road, is prima fade 
 evidence of negligence on his part. Where the streets are sufficiently wide, and a 
 
100 LAWS OF THE BOAD. 
 
 carriage ison the ■vn'ong side, itdoea n.gt justify another in crossing over and, inter- 
 fering with it, merely because the Jaw authorizes him to drive on that side ; and if 
 a person do so, and an injury ensues, it is his own folly, and no action lie?. (3 Mp. 
 685.) {Ib.,U.) {Tb.,m.) 
 
 The rule of the road is not to be adhered to, if by departing from it an injury 
 can be avoided. Yet in cases when pArties meet on a sudden, and an injury results, 
 the party on the wrong si(le should be held answerable, unless it appears clearly, 
 that tbe party on the right hand ample means and opportunity to prevent it. (3 
 Car & Payne, 554.) (1 Comn's Tr.. 3d Md., 346.) 
 
 A person sustaining an injury from a collision with the wagon of another, upon 
 the highway, through the negligence of the latter, may recover therefor, if he could 
 not have avoided the collision by the use of ordinary care. Cerdtr vs. Finny, (17 
 Sarb., 94.) 
 
 If ordinary diligence by the plaintiflf will not prevent the injury, he is not con- 
 sidered in any degree the author of the wrong, lb. 
 
 In order to excuse a collision upon the highway, on the ground of inevitable 
 accident, it must app^r that the collision was unavoidable, and without any blam,e 
 imputable to the defendant. lb. 
 
 An action also lies against one who obstnicts the highway, in consequence of 
 which another is injured by running against the obstruction ; Ijut the plaintiff must 
 in this, as iu the other case just mentioned, exercise ordinary care himself; and if 
 there be an unlawful obstruction in the highway, plain to be seen at such distance 
 as would enable the plaintiff to avoid it, and he nevertheless rides with careless 
 violence aga,in6t it, and is injurpd, he cannot snstain an action, for the injury aiisSs 
 fl-om his own fault. He must use ordinary diligence to avoid it. (ll Eatt., 60.) 
 {% Cow. B.,\m.) 
 
 A child of such tender age as not to possess sufficient discretion to avoid danger, 
 if permitted l)y his parents to be in a public highway without any one to guard 
 him, and is then run over .by a traveler ^iid injured,, no action lies against tbe trav- 
 eler, if there be no pretence, tjj^t tho injury was voluntary,' or arose fi'om ciilpable 
 negligence on his part. Hurlfield vs. Roper, (21 Wend., 615.) 
 
 Jn an action for such injury, if there be negligence on the part of the plaintiff, 
 there cannot be a recovery, and although the child by reason of his tender age, be 
 incapable of using that ordinary care which is required of a discreet and prudent 
 person, the want of such care on the part cf the parents or guardian of the cliild, 
 furnishes the same answer to an action by the child, as would its omission on the 
 part of the plaintiff in an ac(ion by the child as.would its omission on the.pai't of 
 the plaintiff in an action by an adult. lb. 
 
 The same rule, it seems, would apply in an action by a blind or deaf man, or a 
 person non-compos, who, under similar circumstances received an injury on a public 
 highway. lb. 
 
 An action for negligence cannot be sustained, if the wrongful act of the plaintiff, 
 co-operated with the misconduct of the defendant, to produce the damages sus- 
 tained. 
 
 This is so, whether the plaintiff's act be negligent or wilful. 
 
 Therefore, when domestic animals stray upon land where they have no right to 
 be, and are injured by the negligence of the owner of the land, an action will not 
 lie by the owner of the beasts against the owner of the land. 
 
 lOtherwise, where the act by which the injury is effected is criminal, or is calcu- 
 lated to endanger human life. 
 
 If cattle driven along a highway, escape into an adjoining field, against the own- 
 er's will, the rule does not apply and the trespass is excused. 
 
 And so of other cases of unavoidable necessity. Tonawanda Rail road Gompanv 
 vs. Hunger, (5 Denio, 255.) 
 
 If a man's servant, in the ordinary course of his business, obstruct the highway, 
 from which a traveler receives a special injury, the master is liable. Harlmo- vs. 
 Hvmiston, {& Gow., 1%% .) 
 
 The question seems to be, whether the act be snoh.that he can justify himself to 
 his master. If he may, it shaU be deemed in Ite course of his business as a ser- 
 vant, and the master is liable. lb. 
 
 Thyis, where the master had been accustomed to lay his wood in a certain place 
 for several, years, and his servant laid the m^jster's wood in the same place, while 
 the latter was sick, and without his knowledge, /jeW, that this was au act in course 
 of his business, as a seiTant. lb., 
 
OCT 
 7 
 
 1937 
 
 An action for erecting a fence across a public highway, ■will not lie for special^ 
 damage to an individual, by reason ihat the highway was more contiguous, and 
 therefi >re more beneficial, and the deprivation of its use therefor more injurious to 
 him than others. Piarce vs. Dart. (7 Cow., 609.) 
 
 He must sustain some special damage to warrant an action. lb. _ ^ 
 
 When a man in the employ of another, building a chimney, lays lime in the road, 
 by which another'r carriage is overturned and injured, the employer is liahle ; and 
 also, even had the person employed done it by his servant. (1 Bos. & Pvil., 4U8.) 
 
 So the case of wood laid in the highway. (6 Com., 189.) 
 
 All the land within the highway fence is not necessarily subject to the right of 
 way ; and if not, it may be occupied by the owner ; and if he place an obsu'uction 
 there, and another is injured by it, he is not therefore liable ; and if in tlie high- 
 Way he is not liable unless the person injured exercised ordinary diligence to avoid 
 it. (6 Com., 189.) ^Cowen's Treatise, 3m and 307.) 
 
 This statute, has no application to the meeting' of rail-road cars with common 
 vehicles. Began vs. Eighth Av. R. Co., ( 15 N. 7., 380.) 
 
 The J 2 of this act provides for punishment of drivers addicted to drunkenness, 
 and 5 3 declares when they shall be discharged. 
 
 The } 4 provides a pienalty against running horses on any public highway. 
 
 A penalty of $20 is inflicted on a driver of a conveyance for passengers, if he 
 shall leave his horses untied, <fec., while passengers are in the carriage. 
 
 All owners of carnages are made liable for the acts of drivers by the J 6. jointly 
 and severally to the party injured ; " and that whether the act occasioning such 
 injury or damage be wilful or negligent, or otherwise, in the same manner as such 
 driver would be liable." 
 
 OF WATS. 
 
 A right of way is the privilege which one person, or a pai-ticular description of 
 persons, may have of going over another man's ground. It is a right pertaining to 
 the realty — a right which one has to another's land, termed in law an incorporeal 
 hereditament. Nelson, J., {\Z Wend ,^%.) (20 TTend, 99.) Conner vs. New., (^l 
 JBlaclc,45.) {3 Cruise, n.) {5 Mass., 129.) {5 Barn & Cr.,ii\.) 
 
 In the case cited above of 20 Wend., CowBif, Justice, says : " If •st'hat appears to 
 be a common highway, be not in fact laid out as such, or the public have refused to 
 accept it as a donation, it is not a common road, and then the adjoining owner can- 
 not claim it ; for it is still the private property of the original proprietor, subject, 
 perhaps, to a mere right of private way in the adjoining owner ; provided he has 
 taken a deed which bounds him upon it as a street." 
 
 This right of way is said to be only an easement upon the land of another. Hence 
 trespass does not lie for its obstruction. On the same principle, if freehold, it must 
 be created by deed : and it is entirely different from a public highway, and, in 
 many respects, different Irom a private road. It may arise either, 
 
 1. By grant; 
 
 2. By prescription ; 
 
 3. From necessity. 
 
 1. By grant : as when the owner of a piece of land grants to another the liberty 
 of passing over his land in a particular direction ; the grantee thereby acquires a 
 right of way over those lands. This right can be created by a reservation in a deed 
 of land, Wliite vs. Crawford, (10 Mass. Rep., 183 ) (14 Mass., 49.) A. can pur- 
 chase of B., by deed, a right to pass over his farm, or through a particular field, or 
 to go to a spring, or creek, <fec. The deed can be so limited in its terms, as that A. 
 may have the right of passing or re-passing when he pleases, or his family, or on 
 horseback, or with carriages ; or it may be limited to certain purposes, as to get 
 water, go to mill, or go to church. 
 
 It is a principle of law that nothing passes as incident to the grant of an ease- 
 ment, bnt what is requisite to the enjoyment of the privilege. Lyman vs. Arnold, 
 {5 Mason Rep., 195) _ 
 
 In giving his opinion in this case, Justice Stoet sayS : " In the construction of 
 grants, that is ddubtless to be adopted, which gives entire and liberal effect to the 
 intention of the pai'ties. When the object is distinctly seen, the ordinary means 
 
102 WATS. 
 
 by which it is to be attained, are presumed to be within the puryiew of the parties. 
 If the use of a thing is granted, whatever is necessary for the enjoyment of such 
 use, or for the attainment of such use, is, by implication, granted also. But if it be 
 not necessary, but may be a convenience only, it is not granted. So, too, grants 
 are to be construed to the subject matter, and the natural presuniptions ai'ising 
 from their terms, and thus to render them expositions of rational intentions. The 
 mere fact that a person having a grant of a privilege, servitilde, or easement, in the 
 land of another, bestows his labor upon the soil, or separates it, and gives it value 
 thereby, constitutes no sufficient ground to infer a change of property in the soil ; 
 for sucn labor is bestowed in order to enjoy such privilege, servitude, or easement." 
 And the learned judge cites many authorities which fully establish these principles. 
 
 A right of way ex vi termini, imports' a right of passing in a particular line, and 
 not the right to vary it at pleasure, and go in different directions. This would be 
 an injury to the owner of the lands, and an abuse of the right. Jones vs. PerciviU, 
 (5 Pick. Hep., 485.) It is held in this case, that "a custom for the inhabitants of 
 a certain place, or the owners of a certain class, to pass over the soil of another, 
 wherever it is most convenient to tbemselves, and least prejudicial to the owner, 
 would be unreasbnable. In practice, it would lead to contention and litigation. 
 The rights of the respective parties under such a custom, are so undefined and 
 doubtful, and the custom would be void for unceiiainty." 
 
 But where a right of way is granted without' anj!,designation of the place in the 
 deed, it becomes located by usage for a length of time ; and being so located, it 
 cannot afterwards be changed by the grantor. But if changed, the grantee, by 
 usage of the newly designed way for a length of time, will be deemed to have 
 acquiesced in the change. Wynkoop vs. Burger, (12 John. Rep , 222.) 
 
 Thegrantee of a private way which has become founderous and impassable, can- 
 not, without being a trespasser, go on the adjoining close, and thus pass around the 
 obstruction. Boyee vs. Srown, {7 Barb.,89.) Holmes vs. Beely, (19 Wend.,hQ~.) 
 Williamsvs.8ag'ord,{l Barb., 303.) 
 
 The rule is the same where the owner of the close through which the private way 
 passes, caused the obstruction. 
 
 It seems that the only remedy for the owner of the way, is to remdVe the obstruc- 
 tion, and to prosecute for damages. 
 
 There is no distinction, with respect to the right of passing extra viam, between 
 a private way by gi'ant, and a private way by necessity, aftei' the latter has once 
 been selected and assigned. ' 
 
 The same rule applies to a private way by prescription, that controls in the case 
 of a grant. WUliams vs. Safford, (7 Barb.S. C. Mep., 309.) 
 
 A way in esse may pass by bargain and sale, but a way de novo only by grant 
 or lease. Hays vs. Richardson, {lOiU. & J., ^&6.) 
 
 Where a person granted a right of way over his land to another, the grantee at 
 common law was bound to repair. And it is held in 12 John. R., 222, cited above, 
 that " a private way being for the accommodation of the gi-antee, must be kept in 
 repair by him at his own expense." 
 
 2. By prescription and immorial usage : the true nature of this claim is, that a 
 
 fjerson, or certain number of persons, have so long been accustomed to pass over the 
 ands of another, that the law will presume that there yas originally a grant of a unin- 
 terrupted enjoyment of a way for twenty years, without evidence that it had been 
 used by leave, favor or mistake, is sufficient to leave to the jury to presume a grant. 
 It must be an uninterrupted use of twenty successive years. Odiernevs. Wade, (5 
 Pecft.,421.) LevUtvs.WUson,{3Bing.,nh.) (3 J., 294.) (22 Picfe, 15.) (7 
 Met., 33.) Miller vs. Oarlock, (8 Barb., 153.) 
 
 To be conclusive evidence of a right, it must have been continuous, uhinteiTupted 
 and exclusive ; that is, under a claim of right, with a knowledge and acquiescence 
 of the owner. (8 Barb., 153.) 
 
 When a right of way is acquired by prescription, or a user of twenty years, jt can 
 only be lost by a non-user of twenty years, or a release. lb. 
 
 Where the owner of land, across which others have a prescriptive right of way, 
 'or his own convenience closes such way, and opens another across other parts of 
 his lands, for the use of those having the rigbt, and they assent to the change, aiid 
 use the new way for a period less than twenty yeai's ; the owner cannot close such 
 new way and preventits use, without first restoring the old one to its former con- 
 dition. Hamilton vs. White, (1 8eld., 9.) 
 
WATS. 
 
 103 
 
 Uninterrupted tise, acguieieence and identity, are said to he necessary for the pre- 
 sumption of a grant, {'■milliard, 23.) (5 Conn., 305.) (3 McGord, 131.) The contin- 
 ued use should hare been under a claim of right, or in other words, the use must 
 have been adverse. 
 
 Hence, when a way is reserved by deed, and the grantor and those claiming under 
 him have used it in a mode nearly corresponding to the terms of the reservation, 
 though long enough to give a prescriptive title, the use must have been intended to 
 have been under the deed, not adverse, and therefore the right, will be limited by the 
 terms of reservation. Atkins vs. Boardman, (^ Met., ihl .) 
 
 These prescriptive rights are stricli juris. A right of way for one purpose does 
 nflt necessarily include a right of way for another pui-pose. The extent of the right 
 must depend upon the cu'cumstances. Ballard vs. Dyson, {I Taunton, 'HQ.)" Con- 
 ling vs. Migginson, (4 M. <& W., 245.| 
 
 If it be a mere personal right, it cannot be assigned to any other person, nor 
 transmitted by descent. {Finch's Law, 17,31.) (Year B., 7 IT., i, 36. B.) 
 
 But when a right of way is annexed or appendent to an estate, it may pass by 
 assignment when the land is sold. (6 Mod. A., 3 ) (2 Lord Eaym., 922.) {New- 
 march vs. Brandling, (3 Bwanston, C. B., 99.) 
 
 It has been held in this State, in the case of "ex parte Cobvrn," reported in 1 
 Cowen B., 568, "that a right of way is assignable property. It is a real or chattel 
 interest, according to the term of its duration, and the former is well known in the 
 law, as that sort of real property belonging to the corpoi-eal hereditaments. Kot so 
 of a license to enter on another man's land, without consideration. This is not an 
 interest. It is a mere authority, revocable at any moment, not in its nature assign- 
 able, but limited to the person of the grantee. Giving permission to walk across 
 another's .land, is but an excuse for a trespass." The practice of passing over an 
 Unenclosed forest, common to all, is not sufficient to give a right by prescription. 
 
 So when the plaintiffs, and other neighboring occupants, passed over unenclosed 
 land of the defendant, and the way was changed with the fields and fences at the 
 will of the defendant, held, that the plaintiffs acquired no prescriptive right against 
 the defendant Trumbull vs. Bivers, (3 McOord, \31.) 
 
 Every immaterial change will not destroy the identity of a way. But the ques- 
 tion will depend on the situation of the country. (2 McOord, 445.) 
 
 Where one neglects to remove a house, wrongfully erected on his own land, and 
 which obstructs a way belonging to Jiim, this is no abandonment of the right of 
 way. A-n erection of a house by himself might be an abandonment. Soger vi. 
 8tewart,(5 Vermont R.,Si&.) 
 
 An easement acquired by deed can never be lost by non-user. To be thus lost, it 
 must have been acquired by use. Smiles vs. Hastings, (24 Barb., 44.) 
 
 A way cannot be extinguished by parol release. Such a release is a mere license 
 which may be revoked. (5 Har . tfc/., 467. ) 
 
 Whether a way is public or private, is a question for the jury if the evidence is 
 conflicting. 
 
 An obs&uction placed in a private road, by the owner of the land over which it is 
 laid, cannot be removed by one having no right to use the road. Brake vs. Rogers, 
 (8 HUl R., 604.) 
 
 The erection of a gate across a way claimed by the plaintiff, which is opened and 
 shut at pleasure by all who pass, is not such an obstruction as would have the effect 
 to extinguish the plaintiff's right, or of barring him of his remedy, however long 
 it may have been erected. Barnwell vs. Magrath, (1 McMuUan, 174.) 
 
 3. A right of way may arise from necessity : which is also founded on an implied 
 grant. 
 
 IS a man sells land to another which is wholly surrounded by his own land, in 
 this case the purchaser is entitled to a right of way over the land of the vendor, to 
 pass and repass to his own premises. This is founded on this principle of law, that 
 whatever is necessary to the enjoyment of the grant, shajl pass as incident to the 
 grant ; and without a passage to the land the grant would be useless. 
 
 The right of way by necessity exists only where the party claiming it has no 
 other means of passing from the estate iilto the highway. (21 Pick., 278.) 
 
 In this case the owner of the land over which the right of way exists, may assign 
 or designate the way, and it will bo sufficient if he give him convenient way of 
 egi'ess and ingress. 
 
104 WATS.- 
 
 If the grantor declines to exercise such right the gvantee may select for himself, 
 and will be sijppoited in his selection, unless chargeable -with palpable abuse. The 
 grantee is bound to keep the way in repair, and is not permitted to go extra viam, 
 (out of the Way,) when the way is impassable, except, it seems, when the way is 
 temporarily and accidentally obstructed. Holmes vs. Seely, (19 Wend., 507.) 
 
 A right of way from necessity, is to be construed strictly, and .this right will cease 
 with the necessity for it ; as wlien the owner acquires the power of passmg directly 
 over his own land. (3 Bing., 76, (14 Mass., 55.) (3 lb., 4«2.) (15 Conn, 39.) 
 
 It was settled in the case of Glark vs. Hugge, (^ Roll Air., 60.) that if a man 
 having a close surrounded by his own land, giants such clnse to another, the grantee 
 and those claiming under him, have a right of way of necessity through the lancjp 
 of the grantor, as incident to the grant ; which way of necessity the grantor may 
 assign to the grantee through such part of his land as he shall thinl? proper. The 
 Sjime principle also seems to apply to the case when the close granted is partly sur- 
 rounded by lands of a third person. 
 
 The case of. Henlon vs. Frearson, (8 Term. Rep., 50,) also appears to be a decision 
 in fiiYor of the principle tha,t there is an iinpUed riglit of way over the adjoining 
 lauds of the grantor, where the grantee has no other means of obtaining access to 
 the lands granted, without trespassing upon the lands of a stranger. 
 
 The right of way of pecesaity over the lands of the gra.htor, in a conveyance in 
 favor of the grantee, and those subsequently claiming the dominant tenement under 
 hini, is not^a perpetual right of way ; but it continues only so long as the necessity' 
 exists, if the grantee obtains another convenient way, the way of necessity ceases. 
 Not so, when a person lias a right of way by prescription or express grant. N. ¥. 
 Life In. and Trust Company vs. Milnor, {\ Barh. Ch., 354i) 
 
 Sergeant Williams, is of opinion that the right of way, when claimed by neces- 
 sity, is founded entirely npon grant, and derives its force and origin from it. It is> 
 either created by expi-ess words, or it is created by operation of law, as incideiit to 
 the grant ; so that in both cases, the grant is the f oundatioii to the title. (Note 6 to 
 ISaun. }iep.,a23.) 
 
 A distinction has been made between a way of necesiity, and a way which is 
 merely an easement or convenience, implying that the term easement, ts not applic- 
 able to that class of ways. (3 Cruise, 76.) {3 Kefvt, 493.) ' 
 
 Where a way is merely a matter of ease and convenience, the right to it does not 
 arise by necessity, but by consent or agreement, and may be' extinguished in like 
 manner by unity of possession. (3 Rawle.ASi.) 
 
 But a right of wtiy existing from necessity is not extinguished by the unity of 
 possession, as a right of way to a church or market, or a right to a gutter carried 
 through an adjoining tenement, or to a water course running over tlie adjoining 
 lands. Jordan vs. Atwood, (Owen's Rep., 121.) (Cruise Big., 23,24.) 
 
 The right of way is an interest in lands, and, according to the statute of frauds, 
 theriijht can only pass in writing. Angd on Watercourses, 4 168, (6 Wend., 461.) 
 (9 Cow., 279.) (4 John., 81.) 
 
 Abandoumeut.— Ch. Kbnt, says : " If the act wWch prevents the servitude, 
 be incompatible with the nature or exercise of it, and be by the party to whom the 
 servitude is due, it is sufficient to exlingnishi it ; and when it is extinguished for a 
 moment, it is gone for ever. (3 Cow , 552.) / 
 
 Where the facts are such as to show clearly the intention, in a person entitled to 
 the use of a private way, to abandon the easement, as such, it is sufficient, though the 
 obstruction manifesting such intention, be not of a more permanent character than 
 that erected by a board or a rail fence.- 
 
 It is enough that the way is ploughed up and cultivated for agricultural purposes, 
 if there be evidence of an intention to make the occupation perf etnal, for a purpose 
 inconsistent with an enjoyment of the easement. Grain vs. Fox, (16 Barb., 184.) 
 
 MANEEE OF PLEADING A WAT. 
 
 In pleading a way by prescription or grant» no doubt the particular grounds of 
 the title must be set forth, and as a way of necessity, it is in truih nothing else but 
 a way by grant, it iniist be pleaded in the same manner. And, if its origin oanijot 
 any longer be tiaceid, must be claimed by grant or prescription, and pleaded as such, 
 or (in some cases) as a non-existing grant. Button vs. Taylor, (3 Latw., 148.) 
 
PLANK EOAD law. 105 
 
 And if there once existed an unity of possession, some axithors hare supposed it 
 must be claimed by way of grant Tlie better opinion now is that a way of neces- 
 sity cannot be pleaded in general terms. Indeed, it seems there is no general way 
 of necessity, without specifying the manner whereby the land over which it is 
 claimed, becomes charged with the burden. 
 
 Such was the decision' in Builard vs. Harrison, (4 M. andSel/tST.) Boyee «». 
 Srovm., (7 Barb 8. V. Rm 85) 
 
 In (6 Mod., 3,) Stable vs. Soydon', it is said, that if H. have a close' surrounded by 
 the land of another. A., for necessity, has a way over a convenient part of the land 
 to his own close, or a necessary incident to his close. As if a self-created necessity 
 could be, either ih law or reason, any justification of a trespass committed on 
 another's land. 
 
 It will be recollected that there are three sorts of private ways : 
 
 1. By grant. 
 
 2. Prescription. 
 
 3. Of necessity. 
 
 There seems to be no doubt, that whoever justifies under either of the two former 
 titles, must set forth the particular ground of his title ; as if it be by grant, he must 
 show it. Ifow a way of necessity, when it is considered, will be found to be 
 nothing else but a way by grant. It derives its origin fi'iim a grant ; and of course 
 it is as necessary to set forth the title to a way of iweessUy, as it is to a way by 
 grant. 
 
 Where the fact is^ that there existed at one period an unity of possession, and 
 there has been an uninteiTupted use of the way for a long time, in order to dispense 
 with the necessity of pleading the grant with profert, which is generally required, 
 it must be pleaded as a non-existing grant. Otherwise the case would he attended 
 with insurmountable difiiculty where the claimant is to fiet out his right in a plea to 
 an action of trespass. (2 Satin., 175.J) 
 
 But where there has not been an unity of possession, and the way has been used 
 immemorially,it must then be claimed as a way by pi'escription, (3 Term Rep., 
 157.) 
 
 Therefore a -way ot neeessUy is not eitiogiiished by unity of possession. For 
 unity of possession appears to be the foundation of the right. 
 
 It must be stated, that the same person was seized in fee of both closes, simtd et 
 semel, and being soeeized, he granted one of them. I'omfret vs. Riortfl, (1 Saun. 
 Rep., 323.) 
 
 Under a plea of right of way, in an action of trespass, quare elausam fregit, the 
 defendant is at liberty to prove a right of way in himself, either by producing 
 deeds to show it, or by parol evidence of twenty years' uninterrupted use, adverse, 
 or in hostility to, the owner of the land, from which a grant may be inferred. 
 
 And a defendant, after having iindertaken to prove an express grant or reserva- 
 tion of a way by deed, may prove one by prescription. He is not bound to elect 
 his mode of proof, and to abide by siich election, Hamilton vs. Whiie, (4 Barb, 8. 
 C, 60.) 
 
 PLANK EOAD LAW. 
 
 LAWS OF NEW YORK, 1847. 
 
 AI*r ACT to provide for the incorporation of companies to con- 
 struct plank roads, and of companies to construct turnpike 
 roads. Passed Man) 7, 1847. 
 
 The people of the State of New Yor\ represented in Senate and, 
 Askemhhfydo enact as follows : 
 
 § 1. Any number of persons not less than five, may be formed 
 into a corporatipn, for the purpose of constructing and owning 
 a plank road, or a turnpike road, by complying with the follow- 
 
106 PLAKK EOAD LAW. 
 
 ing requirements : Notice shall be given in at least one news- 
 paper, printed in each county through which saici road is intended 
 to be constructed, of the time and place or places where books 
 for subscribing to the stock of such road will be opened ; and 
 when stock to the amount of at least five hundred dollars for 
 every mile of the road so intended to be built, shall be in good 
 faith subscribed, then the said subscribers rciay, upon due and 
 proper notice, elect directors for said company ; and thereupon, 
 they shall severally subscribe articles of association, in which 
 shall be set forth the name of the company, the number of yeara 
 that the same is to continue, which shall not exceed thirty years 
 from the date of said articles, whether it is a plank road or a 
 turnpike, which the company is formed to construct ; the amount 
 of the capital stock of the company ; the number of shares of 
 which the said stock shall consist ; the number of directors, and 
 their names, who shall manage the concerns of the company for 
 the first year, and shall hold their offices until others are elected ; 
 the place from and to which the proposed road is to be con- 
 structed ; and each town, city and village into or through which 
 it is intended to pass, and its-length as near as may be. Each 
 subscriber to such articles of associajtion, shall subscribe thereto 
 his name and place of residence, and the number of shares of 
 stock taken by him in said company. The said articles of asso- 
 ciation, may, on complying with the provisions of the ' next sec- 
 tion, be filed in the office of the secretary of the State, and there- 
 upon, the persons who have so 6ubscribed, and all persons who 
 shall from time to time become stockholders in such company, 
 shall be a body corporate, by the name specified in such articles, 
 and shall possess the powers and privileges, and be subject to 
 the provisions contained in titles three and four, chapter eigh- 
 teen, of the first part of the Eevised Statutes. [As ammdedy 
 1849, eh. 250, § 13.] 
 
 It is no objection to the validity of a subscription to the capital stock of planfc 
 road company, that it was made upon a separate paper, ■whicn only a portion of 
 the stoGknolders had subscribed ; there having been similar papers used^in lieu of 
 the hooks required by the act to be opened in different placea for subscription. 
 HamiUon <&!). Fl. R. Co., vs. Rice, (7 Barb., 156.) 
 
 Nor is it any objection to the validity of such a subscription, or the right of the 
 company subsequently organized, to maintain an action upon it, that at the time it 
 •was made, there was no company in existence, lb. 
 
 All the cases -which have held the subsmptions, of stoek void, are based either 
 nj)on the supposed want of necessai'y parties to the agreement ; of a sufficient con- 
 sideration to uphold it ; or of a sufficient promise expressed in it. ' 
 
 And where a subscriber agreed to become a member of a proposed company, as 
 soon as the amount of stock required by this law should be subscribed, and to pay 
 the amount of his subscription when the company should be organized ; jt was held 
 by the court, that as soon as stock to the amount of $500 for every mile of the road 
 was subscribed, and fiv« per cent paid in, and the company organized, he was liable 
 be sued by the company for tlie installments due upon the sabscription. Ik. 
 
PLANK EOAD LAW. 
 
 107 
 
 A subscription to the capital stock of any company, from a membership in which 
 a shareholder may derive pecuniary advantages, gives to the subscriber such an 
 interest as will support a promise to pay for the shares. Fort Edward PI. S. Co., 
 vs. Payne, (17 Barb.. 567.) 
 
 He is personally liable, even although the corporation has power to forfeit his 
 stock for non-payment When a right of forfeiture is given, the remedies are either 
 cumulative or in the alternative, according to the terms of the statute or the agree- 
 ment, lb. 
 
 It is not requisite to the incorporation of a plank road company, that the whole 
 amount of the capital stock should be subscribed before filing the articles of asso- 
 ciation. It is sufficient that stock to the amount of $500 for every mile of the 
 proposed road is in good faith subscribed. The directors have authority to require 
 payment of subscriptions for stock before the whole capital is subscribed. S. &8. 
 Plank Ji. Co. vs. Tliatcher, (1 Keman, 102.) 
 
 A subscriber to the stock in a propo-sed company who is present at the first 
 election, and is then elected a director and acts as one of the board, will not be per- 
 mitted afterwai'ds, in a suit against him by the company, to object to the validity 
 of its organization on the ground that no notice of such election was given, and 
 that some of the subscribers did not attend. A person is liable to the company for 
 the amount of his subscription, although after calls are made, and before they were 
 payable, he assigned his stock to a responsible party, and had it transferred to and 
 an account opened with him on the books of the company. 
 
 It is not a defence to a subscriber to stock, who as a director voted for the resolu- 
 tion requiring payment of subscriptions and delivered to other subscribers notice 
 thereof, that notice of the required payments was not given to him pursuant to the 
 § 39 of this act. lb. 
 
 Where a company was incorporated in 1848, under the law 6f 1847, and the 
 defendant subscribed to its stock, and the company, by virtue of a subsequent act 
 of the legislature, without hisconsent, increased its capital and applied its funds to 
 the construction of a branch road, not authorized by its original organization, it 
 was held, that the defendant was not thereby released from hi^s subscription. lb. 
 
 Agreements to take and pay for stock in a plank road company, executed prior 
 to the organization of the company are operative and binding, although the sub- 
 scribers never signed the articles of association.' Poughkeepsie vs. Griffin, (21 Barb., 
 454.) 
 
 The fact that the corporation was not in esse when the agreement wag signed, is 
 not of itself a sound objeetion to the right to maintain an action upon it. The 
 future advantages to accrue to the stockholders from the formation of a corporation, 
 and the rights acquired by the subscribers, to sign the articles of association, and 
 elect the du-ectors, and they to shape and control the company, constitute a sufScient 
 consideration for the agreement to take and pay for stock. Future advantages, 
 necessarily resulting from the performance of an agreement constitute an adequate 
 consideration. 
 
 Subscribers to the capital stock are not released from their engagements by the 
 passing of an act, by the legislature, conferring additional privileges upon the com- 
 pany, lb. 
 
 Where the directors of a company, after its formation, extended the main line of 
 the road beyond the point originally specified, and increased its capital stock with- 
 out the written consent of the persons owning two-thirds of the capital stock; or a 
 majority of the inspectors, &a., as provided by this section, such acts are unauthor- 
 ized and illegal, and exonerate the original stockholders from all liability to pay 
 their subscriptions. The Macedon, & Victor PI. R. vs. Lapham, (18 Barb., 312.) 
 
 Ifor will the feet, that the stockholder participates in the proceedings of the 
 company to extend the road, and retainshis stock after the extension is made, and 
 then sells the same for a valuable consideration to a third person, estop him from 
 denying his liability to pay the subscription. lb. 
 
 After the organization of a company, a paper was signed by several individuals, 
 among whom was the defendant, with the sum of $300 set opposite his name, 
 " Provided the Macedon and Victor plank road crosses at B., and passes through 
 " C, we agree to take stock to the amount set opposite our several names,'' At the 
 time the paper was executed there was no valuable consideration given by the com- 
 pany, nor was there any agreement entered into by them to locate and build the 
 
i()8 PLANK EOAD LAW. 
 
 road in the manner specified, it was held, that the agreement confained in the 
 paper was void for want of a consideration to support it, and because there was 
 an entire want of mutuality. Macedon <k B. Plk. R. Co., vs. Bnediker, (18 Sarh, 
 317.) 
 
 Also, that the agreement was void, as a subscription for stock on lihe ground that it 
 was conditional and was contrary to public policy. 
 
 § 2. SticIi articles of association shall not be filed in tte oflSce 
 of the secretary of state, until five per cent, of the amount pf 
 the stock subscribed thereto shall have been actually and in 
 good faith paid, in cash, to the directors named in such articles, 
 nor until there is endorsed thereon, or annexed thereto, an aflSda- 
 vit made by at least three of the directors named in such articles 
 that the amount of capital stock required by the first section has 
 been subscribed, and mat five per cent, on the amount has actu- 
 ally been paid in. 
 
 In an action to recover the amount of calls made upon a subscription to the cap- 
 ital stock of a plank road company, it is no defence that the name of one of the 
 original subscribers was eraced, before the articles of association were jBle^ ; when 
 it appears that the erasure was made with the knowledge of the defendant, and of 
 all the directors, and at the request of the person whose name was erased, and 
 without fraudulent intent. Bmsaledr, dec, vs. Wetsel, (21 Barb., 56.) 
 
 The remedy for non-payirient is not confined to a forfeiture of the stock. That 
 remedy is merely comulative. 
 
 A subscription to the full amount named in the articles of association, as the 
 capital stock of the company is not a conditiotj precedent to the right of recovery 
 upon a subscription. lb. 
 
 In an action by a plank road company, the plaintiffs, to establish the incorpora- 
 tion, proved that notice of opening of books of subscription was properly given ; 
 that ^tock to the amount of over $500 per mile was subscribed ; that electors "v^ere 
 elected, on due notice ; that articles of association were subscribed, as required by 
 this act, and endorsed by an affidavit'of three directors, and duly filed in ihe ofRce 
 of the secretary of state; .that^the plaintiffs had, under their organizat on constructed 
 the road and put the same in operation, it was held by the court, that the plaintiffs 
 had proved themselves to be a corporation, Mastern Plank Road Co , vs. Vanghan, 
 (20 2Jar6., 155.) 
 
 The defendant, among others, signed a paper, by which the subscribers, for value 
 rcceiced, pronjised to pay B, and Vf,. $100, for each share by them subscribed, for 
 the purpose of building a plank road. B. & W., were authorized to transfer the 
 subscription to a company thereafter to be formed for the purpose of building the 
 road. The defendant took one share. Subsequently, articles of association were 
 adopted and signed by subscribers for stock, to an amount exceeding the sura 
 required by statute, without including the defendant ; and the organization was 
 Completed by filing articles of association, and the subscription signed by the 
 flefendant and othei-s, was trangferred to the company by B, & W., and the defen- 
 dant's name was subscribed to the books by them. 
 
 Held, I. That tlie subscription of the deifendant was legal and biriding npon him, 
 as much as if he had subscribed the aiticles with his own hand 2. That the sub- 
 scription was legally transferred ; and that such transfer vested in the plaintiffs the 
 title to such subscription. 3. That the pi-omise,: purporting to be for value received, 
 yrasi prima fa^ii$, sufficient evidence of a consideration. 4. That the agreement 
 •might be rei^arded as an offer or proposition, &c , and could be enforced because it 
 induced others to enter into engagements, assume liability, and incur expense, on 
 the faith of such proposition, lb. 
 
 A duly certified copy of the articles and affidavit is, prima facie, evidence of the 
 incoiporation of the company. (4 ^ern., 546.) (20 jGori , 644.) 
 
 Articles of association are not void because they contain a provision authorizing 
 the directors of the company to increase its capital stock without the consent of a 
 majority in amount of the stockholders, as required by section forty. Eastern, Ss., 
 vs. Vai^han, (4 Kern., 546.) 
 
PLAITK EOAD LAW. 10^ 
 
 Where a person signed an instmnient, stating that foryalue received, he promised 
 to pay two individuals', named a specified sum, for the purpose of biulding a^plJink 
 road between iwo points named, and authorized them to transfer such subsouptipn 
 to a corporation thereafter to be formed for that purpose ; a corporation was after- 
 wards organized to construct the road, and the subscription transferred to it, in an 
 action bv the corporation to recover the amount. UeH, that the defendant was 
 liable, ib. 
 
 The decision, (20 Barb,, 155,) affirmed. 
 
 § 3. [3.] A copy of any'articles of association filed in pursu- 
 ance of this act, with a copy of the affidavit aforesaid, endorsed 
 thereon or annexed thereto, and certified to be a copy by the 
 secretary of this State or his deputy, shall in all courts and places 
 be presumptive evidence of the incorporation of such company, 
 and of the facts therein stated. 
 
 §4. [4.] Whenever any such company shall be desirous to 
 construct a plank road or turnpike road through any part of any , 
 county, it shall make application to the board of supervisors of 
 such county at any meeting thereof legally held, for authority to 
 lay out and construct such road, and to take the real estate 
 necessary for such purpose ; and the application shall set forth 
 the route and character of the proposed road as the same shall 
 have been described in the articles of association, filed as afore- 
 said. Public notice of the application shall be given by the 
 company previous to presenting the same to such board by pub- 
 lishing such notice once in each week, for six sucessive weeks, in 
 all'the public newspapers printed in such county, or in three of 
 such newspapers if more than three are published- in such cotmty, 
 which notice shall specifyHhe time When such application will 
 be presented to such board, the character of the proposed road, 
 and each town, city and village, in and through which it is pro- 
 posed to construct the same. 
 
 § 5. [5.] If such company shall desire a special meeting of the 
 board of supervisors for hearing the same, any three members 
 of such board may fix the time of such meeting, and a notice 
 thereof shall be served on each of the other supervisors of the 
 county, by delivering the same to him personally, or by leaving 
 it at his place of residence, at least twenty days before the day 
 appointed for such meeting. The expenses of such special meet- 
 ing, and of notitying the members of such board thereof, shall 
 be paid by such company. 
 
 § 6. [6.] Upon the hearing of the said application, all persons 
 residing in such county or owning rea,l estate in any of the towns 
 through which it is proposed to construct such road, may' appear 
 and be heard in respect thereto. Such board may take testi- 
 mony in respect to such application, or jnay authorize it to be 
 taken by any judicial officer of such county, and it may adjourn 
 the hearing from time to time. 
 
liO. PLAMK KOAD LAW. 
 
 § 7. [7.] If after heajing such application such board shall be 
 of the opinion that the public interests will be promoted by the 
 construction of such road on the proposed route as shall be 
 described in the application, it may, if a majority of all the 
 members elected to such board shall assent thereto, by an order 
 to be entered in its minutes, authorize such company to construct 
 such a road upon the route specified in the application, and to 
 take the real estate necessary to be used for that purpose; a copy 
 of which order certified by the clerk of such board, the said 
 company shall cause to be recorded in the clerk's oflBce of such 
 county, before it shall proceed to do any act by virtue thereof. , 
 
 § 8. [8.] Whenever any such board shall grant such an appli- 
 cation, it shall appoint three disinterested persons who are not 
 the owners of real estate in any town through which such road 
 shall be proposed to be constructed, or in any town adjoining 
 such town, commissioners to lay out such road ; the said com- 
 missioners after taking the oath prescribed by the constitution, 
 shall proceed' without unnecessary delay to lay out the route of 
 such road in such manner as in their opinion will best promote 
 the public interest ; they shall hear all persons interested who 
 shall apply to them to be heard, they may take testimony in 
 relation thereto, they shall cause an accurate survey and descrip- 
 tion to be made of such route, and of the land necessary to be 
 taken by siich company for the construction of such road and 
 the necessary buildings and gates, they shall subscribe such sur- 
 vey and acknowledge its execution as the execution of deeds is 
 required to be acknowledged, in order that they may be recorded, 
 and they shall cause such survey to be recorded in the clerk's 
 office of such county. If such company shall intend to construct 
 its road continuously in or through more than one county, such 
 application shall specify the number of commissioners which the 
 company desire to have appointed to lay out such road, which 
 shall not exceed three for each county, and an equal number of 
 Such commissioners sh^U be appointed by the board of supeiwi- 
 sors of each county in or through which it shall be proposed to 
 construct such road, but the whole number of such commission- 
 ers shall not be less than three, nor without the consent of such 
 company shall it exceed six, unless the number of counties in or 
 through which it is proposed to construct siich road shall exceed 
 that number. And/ the commissioners so appointed shall lay 
 out the whole of such road, and shall make out a separate survey 
 of BO much thereof as lies in each county, whick shall be sub- 
 scribed and acknowledged aforesaid and recorded in the county 
 clerk's ofiice of such county. Such company shall pay each of 
 the said comTjiissioners two dollars for every day spent by him 
 in the performance of his duties as such commissionerj and his 
 necessary expenses. 
 
riASK EOAD LAW. Ill 
 
 § 9. The commissioners appointed by the board of supel-visors, 
 as provided in the eighth section of the act to provide for the 
 incorporation of companies to construct plank roads, and of com- 
 panies to construct turnpike roads, passed May 7th, 1847, are 
 hereby authorized in laying out a plank road to determine the 
 distance that the outer limits of the road shall be apart, as they 
 may judge necessary, provided, in no case shall the company 
 take more than four rods in width, except by the voluntary sale 
 of the same to the company. [1848, cL 360, § 1.] 
 
 § 10. Any company formed under the said act, may take half 
 the rates of toll, and no more, provided for in said act, from 
 persons living within one mile of the gate at which it is taken, 
 except persons residing in a city or incorporated village, who 
 shall pay full toll ; but no toU shall be taken from farmers going 
 to or from their work on their farms, on which they reside, or 
 from persons driving or leading animals to or from the pasture 
 or field where they are usually kept. [Same oh., § 2, as amended 
 1855, ch. 64§, § 4.] 
 
 § 11. Any company formed under the provisions of chapter 
 210 of the laws, of 1847, entitled " An act to provide for the in- 
 corporation of companies to construct plank roads and compa- 
 nies to construct turnpike roads," may procure by purchase or 
 gift from the owners thereof, any lands necessary for the construc- 
 tion of so much of its contemplated road as shall be intended to 
 be constructed in any county, and may also procure by agree- 
 ment from the officers named in the 26th section of said chapter, 
 the right to take and use any part of any public highway neces- 
 sary for the construction of so much of such road as shall be in- 
 tended to be constructed in such county; and when any compa- 
 ny shall have so procured all the lands necessary to be used for 
 the construction of its road in such county, and the right to take 
 and use such parts of the public highways in such county as shall 
 be necessary for that purpose, such company may construct so 
 much of its road as shall be intended to be constructed in such 
 county, without making the application mentioned in the fourth 
 section of the said chapter. [1847. oh. 398, § 1.] 
 
 § 12. Before proceeding to construct such part of its road as 
 provided in the first section of this act, such company shall cause 
 an accurate survey of such part to be mada by a practical sur- 
 veyor, signed by its president and secretaiy, acknowledged by 
 them as conveyances of real estate, are required to be ack- 
 nowledged in order to be recorded, and recorded in the county 
 clerk's office of such county; and it shall also, before proceeding 
 to construct such part of its road, procure in the manner provided 
 by the said chapter, from the board of supervisors of every other 
 county, if any there be, in which any portion of its road 
 
;H2 PLANK EOAD LAW. 
 
 intended to be constructed, authority to construct the same 
 ■ through such other county ; but in such case the commis- 
 . pionei's appointed to survey and lay out the road of 'such com- 
 pany shall not be required to survey and lay out that portion oi' 
 it intended to be constructed in the county, in which such 
 company shall have procured the lands, and the right to take 
 and use the public highways necessary for its construction aa 
 aforesaid. [18i7, oh. 31)8, § 2.] 
 
 § 13. When any such company, by virtue of the provisions of 
 this act, shall have procured, the lands and the right to take and 
 use the parts of any public highways necessary to construct its 
 road in any county, and shall have constructed, the same without 
 making the application mentioned in the fourth section of the said 
 chapter, it shall possess the same rights, powers and privileges and 
 be subject to the same duties and liabilities in respect to its road 
 and to the part thereof so constructed, as if such application had 
 been made, and all the proceedings of such company had been 
 had, pursuant to the provisions of the said chapter. [Same ch- 
 § 3. 
 
 § 14. N'othing in this act contained shall be deemed or con- 
 strued to authorize the laying out or construction of any road in 
 the cases specified in section nine, of chapter 210, of the laws, of 
 1847, nor to authorize the bridging or obstructing of any stream 
 navigable by vessels or steamboats. \Sam,6 ch.^ 1 4.] 
 
 § 15. [9.] No such road shall be laid out through any orchard 
 io the injury or destruction of fruit tr;ees, or through any garden, 
 without the consent of the owner thereof, if such orchard be of the 
 growth of four years or more, or if such garden has been culti- 
 vated four years or more before the laying out of such road, nor 
 tshall any such road be laid out through any dwelling house or 
 buildings connected therewith, or any yards or enclosures neces- 
 sary for the use and enjoyment of such dwelling without the con- 
 >eent of , the owner, nor shall any such company bridge any 
 'Stream where the same is navigable by vessels or steamboats, or 
 in any manner that will prevent or endanger the passage of any 
 iTaft of twenty-five feet in width. 
 
 §16. [10.] No plank road shall be made on the roadway of 
 ;any turnpike commny without the consent of such company, 
 and any plank roaP company formed under this act shall have 
 ipower to contract. with any turnpike«company connecting there- 
 *with ibrtbe purchase of the roadway or part of the. roadway, 
 ortbe-stodkiof such turnpike company, on such terms as may- 
 be mutually agreed upon ; and in case the purchase of such 
 stock of such turnpike road company, such stock shall be held 
 by such plank rpadicompany for the benefit of the stockholders 
 
PLANK EOAD LAW. 113 
 
 of such plank road company, in proportion to the amount of 
 stock held by each stockholder in such plank road company, 
 at the time of such purchase or at any time afterwards. Upon 
 and after the purchase of the whole of the stock of such 
 turnpike road company, by such plank road company, the 
 directors of such plank road company for the time being, and 
 their successors shall be the sole directors of such turnpike road 
 company, and shall manage the affairs thereof pursuant to the 
 charter of such turnpike road company, and shall render an 
 account of the same annually to the stockholders of such plank 
 I'oad company. In case of a dissolution of such plank road com- 
 pany, the stockholders of such plank road company, at the time 
 of such dissolution, shall be the stockholders of such turnpike 
 road company in proportion to the amount of stock held by 
 each in said plank road company ; and from thenceforward, the 
 stock of such turnpike road company shall be deemed divided 
 into shares, equal in number to the shares of stock of such late 
 plank road company, and scrip therefor shall be issued accord- 
 ingly to each of the last stockholders of such plank road com- 
 pany. Whereupon the officers of such turnpike road company 
 shall be the same in number and power as provided for in the 
 charter of such turnpike road company, and shall be chosen by 
 such former stockholders of such plank road company or their 
 assigns, each share of stock as above provided for entitling the 
 holder thereof to one vote. After such purchase of the stock of 
 such turnpike road company, and prior to the dissolution of such 
 plank road company, the assignment of stock in said plank road 
 company shall carry with it its proportional amount of the stock 
 in such txirnpike road company, and entitle the holder thereof to 
 his share of the dividends derived from such turnpike road. 
 Whenever a plank road shall be made as provided in this act on or 
 adjoining . a route of any turnpike road, the company owning 
 such turnpike road is authorized to abandon that portion of their 
 road on or adjoining the route of which a plank road is actually 
 constructed and used ; but nothing herein contained shall be so 
 construed as to prevent any plank road from crossing any turn- 
 pike road, nor any turnpike road from crossing any plank road. 
 [As amended 1857, ch. 643.] 
 
 § 17. [11.J The route so laid out and suigreyed by the said 
 commissioners shall be the route of such road, and such com- 
 pany may enter upon, take and holdj subject to the provisions of 
 this act, all such lands as the said survey shall describe as being 
 necessary for the construction of such road and the necessary ; 
 buildings and gates. But before entering upon any of such 
 lands, the company shall purchase the same of the owners thereof, 
 or shall, pursuant to the provisions of this act, acquire the right 
 to enter upon, take and hold the same. 
 
114: PLAJSTK EOAD LAW. 
 
 ; § 18. [12.] If any owner of such land shall from any cause be 
 incapable of selling the same, or if such company cannot ' agree 
 ■with him for the purchase, thereof, or if, after diligent inquiry 
 the naiiie or residence of any such owner cannot be, ascertained, 
 the company may present to the first judge or county judge of 
 the county in which the lands of such owner lie, a petition set- 
 ting forth the grounds of the application, a dfeseription of the 
 lands in question and the name of the owner if known, and. the 
 means that have been taken to ascertain the name and residence 
 of such owner, if his name and residence has not been ascer- 
 tained, and : praying that the couipensation and damages of i the 
 owner of the lands described in the petition may be ascertained; 
 by a jury. , Such petition shall be verified by the oaths of at 
 least two of directors of the company, and if it shall alledge that 
 the name or residence of any owner is unknown, it shall be 
 accompanied by affidavits proving to the satisfaction of the: 
 judge, that all reasonable efforts have been made by the company' 
 to ascertain the name and residence of any owner whose name 
 or residence is unknown. 
 
 § 19. [13,] On receiving stich petition, the said judge shall 
 appoint a tinie for drawing such jury, which shallbe drawn from 
 the grand jury box of the county by the clerk thereof, at his 
 office. At least fourteen days*, notice of the time and place of 
 such drawiiig shall be served personally upon each owner of 
 lands described in the petition, who shallbe known and reside 
 in the county where the lands lie, or by leaving the same at his 
 residence, and such notice shall be served on all other owners in 
 the manner aforesaid, or by putting the same into the post office 
 directed to them at their respective plaqes of residence, and pay- 
 ing the postage thereon, or by publishing the same once in each 
 week for two successive weeks in a newspaper printed In such 
 county, the first of which publications shall be at least fp,urteen 
 days before such drawing. ' 
 
 .,§,20. [14.] In case any lands described in such petition shall 
 be owned by a married woman, infant, idiot or insane person, or 
 by a non-resident of the State, the said judge shall appoint some 
 competent and suitable person 'having no interest adverse to such 
 ownei" to take care of the interests of ^uch owner in respect to 
 the proceedings to ascertain such compensation and damages. 
 And all such notices as are required to be served on any owner 
 residing in such county, shall be sei'yed lipdn the person bo 
 appointed in like manner' as on such owner ; bnt any- person so 
 appointed tb taike care of the interests of any silCh 'non-residents, 
 may be supei'^seded by him. 
 
PLANK BOAD LAW. - 115 
 
 i §21. [15.] The said judge shall attend such drawing, and shall 
 decide tipon any challenge made to any jurot drawn by any 
 pe]*son interested. Twenty-four competent and disinterested 
 jurors and as many more as the said judge shall direct shall' be 
 drawn ; the clerk shall make, certify and deliver to the judge 
 and to any party, rec[uiring the same, a list of them, and the 
 ballots drawn shffl be returned to the box. The said judge, if 
 he shall deem it necessary, may at any subsequent time direct 
 the drawing of an additionaV niimber of jurors, and' they shall 
 be drawn and all such proceedings in relation to such drawing 
 shall be had in the manner hereinbefore' provided. Before pro- 
 ceeding to draw any such jury the company shall frirhish to the 
 said judge proof by aflSd a vit satisfactory to him, of thetiineand 
 manner of serving and publishing notice of such drawing, which 
 affidavit shall be filed in such clerk's office; and no such jury shall 
 be drawn unless it shall appear to the satisfacticm of the said 
 judge that the provisions of this atat in respect to giving notice 
 of such drawing have be6n complied with. 
 
 § 23. [16.] From the jurors so drawn the said judge shall 
 draw as many as he shall deem necessary to secure the atten- 
 dance of twelve, and he shall issue his precept directed to the 
 sheriff of such county, either of his deputies, or any constable 
 of such county, to summon the jurors so draiwn by the sa,id 
 judge, to attend at the time and place therein specified, to ascer-i 
 tain such compensation and damages. And he may from time 
 to time, in case of the absence or inability to serve of any juror 
 directed to be summoned, draw and direct to be summoned as, 
 aforesaid, as many as may be necessary in his opinion to, secure 
 the attendance of twelye. 
 
 § 23. [17.] Every juror named in any such precept, ehall at 
 least four days before the day therein specified for his attendance, 
 be summoned personally, or by, leaving at his residenqe, la notice 
 containing the substance of such precept. The officer serving 
 such precept, shall return it to the said judge, with an affidavit 
 of the naanner of serving the, same, and of the distance neces- 
 sarily traveled by him for that purpose,: and such officer shall 
 receive for making such service,* six cents a njile for the distance 
 so traveled. , ' 
 
 § 24. [18.] Every juror so summoned, who shall neglect or 
 refuse to attend or serve, in pursuan(?p of such summons, shall 
 be liable to the same penalties, a^ in case of such neglect or 
 refiisar of a person duly. sunamoned as a juror in a court of 
 record, and may be excused by t^e^ said judge from attending 
 
116 PLANK EOAD LAW. 
 
 or serving, for reasons for which such juror might be so excused 
 if summoned as a juror in such court. Every juror attending, 
 shall be entitled therefor to one dollar a day, and his reasonable 
 and necessary expenses, to be paid by the company*- 
 
 § 25. [19.] On the application of any party interested, _ any 
 judge or justice of the peace, may issue a subpoena requiring 
 witnesses to attend before such jury, and guch subpoena shall 
 have the same force and effect ; and witnesses duly subpoenaed 
 by virtue thereof, and refusing or neglecting to obey the samej 
 shall be subject to the same penalties and liabilities as though 
 such subpoena were issued from a court of record, in a suit pen- 
 ding therein. 
 
 § 26. [20.] The time and place of meeting of the jury, to 
 ascertain Such compensation and damages, may be fixed by the 
 said judge, by an order to be made by him at any time after 
 receiving such petition ; and notice thereof shall be served on 
 the owners whose lands are described in the petition, as follows : ' 
 on any order residing in the county, or within fifteen miles of 
 the lands in question owned by him, personally, or by leaving 
 the same at his residence, at least fourteen days before the tinie 
 so fixed ; on any other owner residing -within this State, and 
 whose residence is known, in the manner aforesaid, or by put- 
 ting the notice into the post office, directed to him at his place 
 of residence, and paying the postage thereon : on any owner 
 residing out of the State, and not within fifteen miles of the lands 
 in question, owned by him, by putting th6 notice in the post 
 office, directed and paid as aforesaid, at least forty days before 
 the time so fixed ; and on owners whose residence is unknown, 
 by publishing the notice once in each week, for six successive 
 weeks, in one of the public newspapers printed in the county. 
 
 § 27. [21.] The jurors so summoned, shall meet at the time 
 and* J)lace fixed by the said judge for that purpose, and shall be 
 sworn by him to diligently inquire and ascertain the compensa- 
 tion and damages which ought justly to be paid for the lands 
 described in the petition, or for those of them in respect to 
 which they shall be called upon to inquire, to the owners thereof, 
 and for taking the same for such road, and faithfully to perform 
 their duty as such jurors, according to law. 
 
 § 28. [22.] The said judge shall attend such jurors, shall 
 administer baths to witnesses called before them, shall take 
 minutes of the testimony given, and admissions of the parties 
 made before them, shall advise such jury as to the law applicable 
 
PLANE EOAD LAW. IIT 
 
 to any case that may arise, shall receive, certify and return to 
 the_ county clerk's office, the verdicts agreed upon by them, and 
 while so attending, shall have all the powers possessed by a 
 court of , record, when trying issues of fact joined in civil cases. 
 
 § 29. [23.] The jury after hearing the parties, and viewing the 
 lands in question, in each case, shall, by a verdict, ascertain and 
 determine the compensation and damages, that ought to-be paid 
 to the owner for the land, to be taten oy the company, and for 
 taking the same for such road,, and also the amoimt that ought 
 to be paid to him for the time spent, and necessary expenses 
 incurred by him in respect to the, proceedings, to ascertain and 
 determine such compensation and damages, of which time and 
 exppnse a bill of items shall be presented to the jury, verified by 
 the oath of the owner or his agent, and such compensation and 
 damages shall be ascertained and determined without any 
 deduction on account of any real or supposed benefit, which the 
 owners of such lands may derive from the construction of such 
 road. 
 
 § 30. [24.] Such jury shall not proceed to a hearing in any 
 case until the company shall have produced to the said judge, 
 satisfactory proof by affidavit, that the notice of the meeting of 
 the jury has been given in such case, according to the provisions 
 of this act ; and such affidavit shall be attached to and filed with 
 the certificate of the verdict in the case. And on any such hearing, 
 no evidence or information shall be given, nor any statement made 
 to the jury, of any proposition by, or negotiation between the 
 parties or their agents, in respect to any such lands, or such com- 
 pensation or damages, nor shall' any such petition contain any 
 such statement or information. 
 
 § 31. [25.] Such jury, finding any such verdict, shall, after 
 agreeing upon the same, make a certificate thereof, and sign and 
 deliver the same to the said judge ; and shall embrace therein a 
 particular description of the land, in respect to which it is found. 
 Such certificate may include one or more verdicts, in the discre- 
 tion of the jury. Every such certificate shall be certified by the 
 judge to have been made by such jury and shall be recorded in 
 the records of deeds, in the clerk's office of the county where the 
 lands therein described shall lie, at the expense of the company. 
 
 Tt seems that the title to the land ovei- which the road passes vested in the com- 
 pany, is Tested solely for the purposes of a road, and that ■^fhen the road is a,l)an- 
 doned, the land reverts to the original owners. Hooher vs. Uiiea & Mendon T. 
 Rood Co., (12 Wend., 371.) , , 
 
 § 32. [26.] Whenever it shall become necessary for any such 
 company to use any part of a public highway for the construc- 
 tion of a plank or turnpike road, the supervisor and commis- 
 
118 PlANK BOAD LAW. 
 
 sioners of highways of the' town in which such higjhway is situ- 
 ated, or a majority-j if there be' more than one such commissioner 
 in such town, may agree with such company ■apon' the compen- 
 sation and damages to be paid by said company, for taking and 
 using such highway, for the purposes aforesaid. Such, agreement 
 shall be in writing,' and shall be filed and recorded, in nie tpwn 
 clerk's office of such town. In' casfe such agreement cannot be 
 made, the compensation and damages for taking such highway 
 for such purpose, shall be ascertained in the same manner as the 
 compensation and damages fOr taking the property of individ- 
 uals. Such compensation and damages shall be paid to the said 
 commissioners, to be expended by them in improving the high- 
 ways of stich t6wn. ' 
 
 This law which allows the corporation to take, improve and use a public high- 
 way, was held to he constitutional in the case of Gott vs. BeTiedict, (3 ifarJ.j 459. ) 
 
 Although a plank road company has acquired, pursuant to the statute, (Laws of 
 1847, p. 2^3, § 26,) the right to construct its. road upon a highway, the public may 
 lawfully dontinue to travel thereon while the company is building the plank roM. 
 Irelandvs. Oswego Jbc, Planh R.,{i Kern., 5^6.) 
 
 The rights and duties of the company towards the ^ubjic, during the constrjic- 
 tion of the plank road on the site of the highway, are similar to those of a commis- 
 sioner or overseer, when repairing highways lb. 
 
 The company is bound, while engaged in constructing the. plant road, to exer-^ 
 (iiSe reasonable care and diligence to refJder the ordinary ■public travel on the for- 
 mer highway convenient and safe, and if, by the negligence of thecompaiiy the 
 road is rendered unsafe, and a traveleT exercising ordinary care, sustains damages, 
 the company is responsible. lb. 
 
 The acts authorizing the formation of plank road companies, gives to such com- 
 panies no interest or easement in or upon the lands adjoining their- road, and no 
 right to restrict the use which the proprietor of such lands may make of his own 
 premises. Auburn & Goto. Plk. Road vs. Douglass, (5 Selden, 444.) 
 
 Section 1, df Oh. 398, of the Laws of 1847, does not repeal or modiify this sec- 
 tion. They, must be consti;ued together im determining the power of the supervi- 
 sor and commissioners of highways to contract with a plauk road company, as to 
 its taking and using of highway of the town for the construction of its road. Pal- 
 mer vs. F.ort Plain Co., (1 Kernan, 376.) They Ijavenot power to grawt the company 
 this right on condition that it shall erect and maintain its toll gates in specified 
 localities. JSTor are they authorized to make a contract with the company granting 
 it this right, and as a consideration therefor, obligating it not to locate and main- 
 tain a toll gate within a specified limit. The supervisors and comriiissioners of 
 hij^hways cannot maintain a suit in their joint nanles as such oiKcer,5, on a contract 
 made by Ihem on behalf of the town, which contains no express agreement with 
 thSm as such Officers. Ibi 
 
 , A compensation and damages for ,the use and occupation of a highway, by a 
 plai^k road company, which the public officers are authorised by statute to agree 
 upon, need' not be wholly estimated and paid in money. A part of the compen-, 
 sation may be in the shape of an executory agreement, by the company, to keep. 
 the road- and bridges in repair. Town of Fishkill vs. F. & B. Plank Road Co., (22 
 Sarb,,634.) . ,,..->: , :: ,; . >. , * . 
 
 An agreement to that effect; made by the supervisor and commissioner of high- 
 ways, is not void for an excess of authority by the town oflBcers in making it, but 
 is within the line of their duty and obligation. lb. 
 
 Where an agreement was made by a plank road company, with, the supervisor 
 and commissioners of. highways of the town of F., by which those officers granted 
 to the compftny the use of ,a certam highway, and thp contpany. as a, oorapensation 
 for the privilege, agreed to keep such road in repair, without expense to the town.; 
 and the legislatiire afterwards passed' a 'Statute by which the coinpany was authOi--' 
 
PLAUK EOAD LAW. 119 
 
 ized to aViandoii, and was released from fhe duty of repairing any part or all of the 
 road ; it -was decided that such statute was not unconstitutional and void, as impairr 
 ingthe obligatioaof contracts.: Tlu People vs..FishMll & B. Plmk Road Co., (27 
 Barh.,Uh) 
 
 An agreement tetween supervisor and commissioners with plant road company, 
 and the company as a compensation agree to keep the road in repair, without 
 expense to the tQwn, is a valid, contract. lb. , ; 
 
 A town, in its corporate character, cannot maintain an action to set aside a con- 
 tract made between the supervisor and commissioners of highways of the one part 
 and a planls road compaiiy of the other part, under which the plank road' company 
 claims possession of a public highwayin the town. Tovm of Galen vs. Clyde AB. 
 Plh. R. Co., (27 Barb., 543,) 
 
 The title to the lands over which a highway passes, remains in the respective 
 owners, as before the road was laid out ; subject to the right of passage for the pubr 
 lie. lb. ', , , V 
 
 This right of passage does not belong' to, iior is it in any sense the property of, 
 any particular town or county, but is in the people of the whole State. lb. 
 
 § 33. '!N"o supervisor or eommissioner of highways of any 
 town shall make any agreement with any plank road company 
 or turnpike road company, under the first section of 'i an act in 
 realtion to plank road and turnpike road companies," passed 
 November 24, 1847, for the right to take and use any part of 
 any public highway for-a plank road or a turnpike road without 
 they first obtain the consent in writing of at least two thirds of 
 all the owners of land along such highway, who actually reside 
 on that part of the highway on which such plank road or 
 turnpike road is to be constructed. [1850, ch. 71, § 5.] 
 
 § 34. [27.] Any party interested in any such verdict may, 
 within twenty days after being notified of the rendition thereof, 
 -apply to the supreme court for a new trial, and it may be 
 granted upon such terms as to the costs of the application an& 
 of the first trial, as that court shall deem reasonable. If a new 
 trial shall be granted, a jury shall be drawn therefor, and the 
 same proceedings shall be had as are hereinbefore provided. 
 
 § 35. [28.] Within forty days after the rendition of any such 
 verdict, if a new trial shall not be applied for, the company shall 
 pay to the person entitled to receive the same, the amount thereof, 
 or shall make a legal tender thereof to him, if he shall refuse to 
 receive the same ; and the company may thereupon enter upon 
 the lands in respect to which such verdict was rendered, and 
 take and hold the same to it and its assigns, so long as it shall 
 be used for the purposes of such a road as such company was 
 formed to construct. 
 
 § 36. [29.] If any person entitled to receive the amount of any 
 such verdict be not a resident of this State, or cannot be found 
 therein after diligent search, the company may furnish to the 
 said judge satisfactory proof, by af&davit, of such fact, and he 
 shall thereupon make an order that the anaount of such verdict 
 
120 PLAMK EOAD LAW. 
 
 ■ be paid to the treasurer of the county in which the lands lie, in 
 respect to which such verdict was found, for the use of such 
 owner, and that notice of such payment shall he given by pub- 
 lishing the same once in each week, for six successive weeks, in 
 a newspaper published in the county. On satisfactory proof 
 being made to the said judge, by affidavit, within three months 
 iB.-om the time of making the last mentioned order, of such pay- 
 ment and publication, he shall make an order authorizing the 
 company to take and hold the land in respect to which such ver- 
 dict was rendered, in the same manner and with the same effect 
 as if such payment had been made to the owner personally. The 
 affidavit and orders mentioned in this section, and all other affi- 
 davits and orders made, and precepts issued in the course of the 
 proceedings under this act, in relation to the acquisition of the 
 land to be used for such road, shall be filed in the county clerk's 
 office, and all such orders shall be recorded by such clerk in the 
 records of deeds, at the expense of the company. 
 
 § 37. [3,0.] If any owner shall apply for a new trial, the coni- 
 pany, upon depositing the amount of the verdict sought to be 
 Bet aside, in such manner as the said judge shall, upon hearing 
 the parties, direct, in trust that the same, or so much thereof as 
 the said owner shall b,e entitled to receive, shall be paid to him 
 on demand, and on giving such security, by bond, as the judge 
 shall approve, for the payment to such owner of any sum which 
 he may be entitled to receive from the company, in respect to 
 the land in question, by reason of any verdict or the judgment 
 of any court, for such compensation, damages, costs and expen- 
 ses, the company may enter upon and use such lands for the 
 purposes of such road, but the title of the owner thereof shall 
 not be divested until the payment or legal tender to him of the 
 whole amount which he shall be entitled to receive from the com- 
 pany for such compensation, damages, costs and expenses ; and 
 on such paynient or tender being made, the company shall be 
 entitled to take and to hold such lands to it and to its assigns, 
 so long as the same shall be used for the purposes of such road 
 as such company was formed to construct. 
 
 § 38. [31.] Every plank>oad made by virtue of this act, shall 
 be laid out at least four rods wide, and shall be so constructed 
 as to make, secure and maintain, a smooth and permanent road, 
 the track of which shall be made of timber, plank, or other hard 
 material^ so that the same shall form a hard and even surface, 
 and be so constructed as to permit carriages and other vehicles 
 conveniently and easily to pass each other, and also, so as to per- 
 mit all carriages to pass on and off where such road is intez'- 
 sected by other roads. 
 
PLANK EOAD LAW. 121 
 
 That the company cause the road to he of the width required, is a condition 
 which the coi-poration must perform, to entitle it to a continuance of its franchise. 
 The People vs. F. dtB.Plk. Road Co., (27 Barb., 445.) 
 
 Where a company constructs a road of a width less than the four rods 
 required, it will be held to have failed to comply with the directions of the law 
 under which it is created, in an essential particular, and tBus to have broken one of 
 the conditions of its corporate existence. Ih. 
 
 And the fact that the plank road was laid oiit upon an ancient highway, which 
 was, in no part of it of the required width, furnishes no excuse for the omission. Ih. 
 
 § 39, [32.]* Every turnpike road that shall be constructed by 
 virtue of this act, shall be laid out at least.four rods wide ; and 
 shall be bedded with stone, gravel, or such other material, as 
 may be found 6n the line thereof, and faced with broken stone 
 or gravel, so as to form a hard and even surface, with good and 
 sufficient ditches on each side, wherever the same is practicable. , 
 The arch or bed of such road shall be at least eighteen feet wide, 
 and shall be so constructed as to permit carriages and other vehi- 
 cles conveniently to pass each other, and to pass on and off such 
 turnpike whei'e it may be intersected by other roads. 
 
 A turnpike road company, is liable to an indictment at common law for suffering 
 their road to be out of repair, <fec. President, &c., of the Bus. aTtd Bath Turnpike 
 Boad Company vs. The People, (15 Wend., 261.) 
 
 When the road is out of repair, prima facie, all the directors are liable ; those 
 however, who have done their duty, may show fects to exonerate themselves, <fec. 
 Kane vs. The People, (8 Wend. , 203. ) 
 
 A turnpike company are bound to erect and keep in repair, bridges across 
 streams, i&c. 
 
 If bridge canied away, company must rebuild it within a reasonable time. 
 
 If road is impassible by sudden flood, or other irresistible cause, the defendants 
 in action must, if they have an excuse, rejoin setting forth the cause of the injury ; 
 and then the jury will pass on the facts, Ac. The People vs. Hillsdale and Choi- 
 ham Tvmvpike Boad, (23 Wend., 254.) 
 
 As to indictment against turnpike company for not repaii-ing, see (9 Barb., 161.) 
 
 § 40. [33.] In each county of this State, in which there shall 
 be any plank road, or turnpike road, constructed by virtue of 
 this act, there shall be three inspectors of such roads, who shall 
 not be interested in any plank or turnpike road in such county. 
 They shall be appointed by the board of supervisors of the 
 county, and shall hold their offices during the pleasure of such 
 board. Before entering on their duties, such inspectors shall 
 take and subscribe the constitutional oath of office, and file the 
 same in the office of the clerk of the county. 
 
 § 4rl. The inspectors, or a majority of them, whose appoint- 
 ment is provided for by the thirty-third section of the said act, 
 passed May 7, 1847, are hereby authorized to determine the dis- 
 tance that the outer limits shall be apart, of any plank road or 
 any turnpike road, belonging to any company formed under said 
 act, in case the same has . not been determined by the commis- 
 sioners appointed imder the eighth section of said act ; provided, 
 
122 PLAJTK EOAD LAW. 
 
 /that in no case shall the company take more than four rods in 
 width, except by the Toliintary sale of the same to the company. 
 
 [1849, cA. 260, 1 7.] 
 
 § 42. [34.] "Whenever any snch company shall have completed 
 their road, or any five consecutive miles thereof, it may apply to 
 aijy two of the inspectors to Be appointed pursuant to this act, 
 in the county, where said road, or a part thereof, so completed ^nd 
 to he inspected, is located, to inspect the same; or, if such 
 inspectors, or a majority of them are satisfied on inspection, that 
 the road so inspected is made and completed according to the 
 tru^ intent and meaning of this act, they shall grant a certificate 
 tq that effect, which shall be filed in the office of the county 
 ' clerk. The inspectors shall be allowed two dollars per day fpf 
 their services, pursuant to this section, to be paid by the coni- 
 pany whose road they inspect. . 
 
 The evidence of such completion is the certificate or certificates of the inspectors, 
 " that the road so inspected is made and complected according to the true intent 
 and Djeaning of this act." Such certificates are required to be filed in the proper 
 county clerk's ofiice. The Hammond Port, dc, ?s. Srundi-ge, (13 How., 448.) 
 
 The certificate should describe, with reasonabJe;certainty, the part of the road 
 inspected, and which the inspeotqrs are satisfied is completed. They should also 
 show that the number of miles therein mentioned, are cmiseeutive miles. 
 
 The statute having settled the kind and character of evidence to establish the 
 fact of the completion of the road, or any part or portion of it— that is, the certifi- 
 cate of the inspectors— paroZ evidence, on that subject, is inadmissable. It is not 
 only inadmissable under the statute,, but upon general principles. lb. 
 
 It is not a valid objection fo the incorporation of a plank road company, that the 
 road proposed to be constructed, is less'than five nailes in length. Sections. [34] 
 and [35]. of the act, relate solely, to the right of the companies to erect gates and 
 collect tolls on their roads, and are not restrictions on the incorporation of com- 
 panjes'under the act. The Eastern, (jtc.,vs.^ T^aiwfian,, ( 4 Kern., 646 ) 
 
 The inspection of a certain ' length of plank road, and the certificate of the 
 inspectors, under this section, do not furnish conclusive evidence, nor the best evi- 
 dence of the entire length of the road, and of the extent to which a highway has 
 been ai)f)ropviated. 
 
 Such inspection, and the certificate that it has been made, was not intended for 
 any such' purpose ; but were designed only to ascertain the character of a road, 
 after it has been completed, and whether it is a good and suhstantial road, in con- 
 formity with the law, so as to authorize the company to demand toll for its use. 
 The Town of FishUll vs. F. & B. Plank Road Co., (?2 Barb.. 634.) 
 
 The certificate of the inspectors, is not conclusive upon the State, in a direct pro- 
 ceeding against a plank road company, -to test the manner in which fee road has 
 been constnuoted ; so as to estop the people from averring and insisting upon for- 
 feiture previously incui-red. T/ie People vs. F. & B. Plank Road Co., (27 £or6., 
 445.) (4 .Ke™., 546.) ' ' 
 
 I 43. [35.] Upon filing as aforesaid such certificate, the com- 
 pany owning any plank road sp inspected, may erect one or more 
 toll gates upon their road, and may demand and receive toll not 
 exceeding one and a half cents per mile, for any vehicle drawn 
 by two animals, and for any vehicle drawn by more than two 
 animals, one half cent per mile for every additional animal ; for 
 every vehicle drawn by one animal, three quarters of a cent per 
 
PLANK SOAD LAW. 123 
 
 mile ; for every score of sheep or swine, and for every score of 
 neat cattle, one cent per mile ; for every horse and rider, or led 
 horse, half a cent per mile. [As amended 'ISid, oh. 250, § 6, and 
 1864, cA. 87, § 3.] 
 
 [Instead of the toll authorized to be demanded and received 
 on plank roads, by section thirty-five of the act entitled " An 
 Act to provide for the incorporation of companies to construct 
 plank roads, and pf companies to construct turnpike roads," pass- 
 ed May 7, 184:7, the following rates of tolls may hereafter be 
 demanded and received :. for every vehicle drawn by one ani- 
 mal, one cent per mile, and one cent, per mile for each additional 
 animal ; for every vehicle used chiefly for carrying passengers, 
 drawn by two animals, three cents per mile, and one cent per 
 mile for each additional animal; for every horse, rode, led or 
 driven, three quarters of a cent . per mile ; for every score of 
 sheep or swine, one and a half cents per mile ; and for every 
 score of neat cattle, two cents per mile.] [1853:, cJi. 245, § 1.], 
 
 [The provisions of the said act in the ifoUowing words, to wit : 
 " For every vehicle used chiefly for carrying passengers drawn 
 by two animals, three cents per mile, and one cent per mile for 
 each additional animal," shall not apply to any plank road com- 
 pany located wholly or in • part in the counties of Chenango, 
 Otsego, St. Lawrence, and Oneida.] [1853, cJi. 481.] 
 
 Before the amendments to Ihis section, the supreme court decided in Mallory vs. 
 Andin, (7 Barb., 626,1 that when a plank road has erected its toll gates within the 
 distances authorized, oy law, and has^fixed. the rates of toll at the, several gates at, 
 an anjount not exceeding the legal rates for the entire distance, and. for the distances 
 ■between the several gates, it may lawfully exact the full toll thus fixed at a particu- 
 lar gate ; notwithstanding tlie traveler may not have traveled upon the road a dis- 
 tance which, at the established rate per mile actually traveled would amount to. 
 such toll. 
 
 § 44. Sections twelve and thirteen of title four, chapter thir- 
 teen, part one, of the Eevised Statutes, shall apply to plank roadf 
 companies. [1853, ch. 245, § 2.] 
 
 §45. The thirty-fifth [43] section of the act of May 7, 1847, 
 entitled " An Act to provide for the incorporation of companies 
 to construct plank roads, and of compslnies to construct turnpike 
 roads," shall not apply to any plank road that may be constructed 
 in the county of Sullivan. [1849, ch. 362, § 1.] 
 
 § 46. If any plank road shall beconsti^icted in the said county 
 (Sullivan,) under the aforesaid act, the rate of tolls to be deman- 
 ded and received for traveling thereon, shall be fixed by the 
 board of supervisors' of said county, and shall not be less than 
 two cents per mile, or more than four cents per mile for any 
 
124 PLANK EOAD LAW. 
 
 vehicle drawn by two horses, and in a rateable proportion for 
 othei'' vehicles or animals drawn thereon. But in no Case shall 
 any plank road company receive a rate of toll which will enable 
 said company to divide more than ten per cent, per annum on 
 their capital stock invested in said road, after keeping the same 
 in repair, and ten per cent, per annum on their capital stock 
 invested as aforesaid, as a fund for the re-constraction of their 
 road, when necessary. [Same ch., § 2.] ■ 
 
 § 47. When the rates of toll shall be iixed by the board of 
 supervisors, no change sliall be made therein until after the 
 period of five years, and when changed or altered at any terni, 
 they shall not be again altered in five years. [Same oh., § 3.] 
 
 § 48. Whenever any plank road company formed under the 
 before mentioned act, shall have finished their road, or any three 
 consecutive miles thereof, and had the same inspected as provid- 
 ed in the before mentioned act, it shall be lawful to erect a toll 
 gate thereon and exact tolls thei:eat, for a term not exceeding one 
 year ; unless such, road or five consecutive miles thereof be coih- 
 pleted within said year. [1849, ch. 250, § 4.] 
 
 The act above mentiohed is tlie general law, and this seetion applies to all ooin- 
 panies, 
 
 » 
 
 § 49. [36.] Upon filing such certificate as aforesaid, the com- 
 pany owning any turnpike road so inspected, may erect one or 
 more toll gates upon its road, and may demand and receive toll 
 not exceediug the following rates : For every vehicle drawn by 
 one animal, three-quarters of a cent a mile ; for every vehicle 
 drawn by two animals, one and one-quarter cents a mile, and for 
 every vehicle drawn by more than two animals, one and one- 
 quarter cents a mile ; and one-quarter cent additional a mile for 
 every animal more than two ; for every score of neat cattle, one 
 cent a mile ; for every score of sheep or swine, one-half cent a 
 mile ; and in the same proportion for any greater or less num- 
 ber of neat cattle, sheep or swine ; for every horse and rider, or 
 led horse, one half-cent a mile. And in no case shall any such 
 turnpike company charge or receive rates of toll which will 
 enable it to divide more than twelve per cent." on its capital 
 stock actually paid in, in cash, and invested in its road, after 
 paying the expenses of managing the same, and keeping it in 
 repair. [As amended 1864, ch- 87, § 3.] 
 
 § 50. No plank road or turnpike road company, shall hereafter 
 erect or put up any hoist-gate on their road. [1850, ch. 71, § 6.] 
 
 § 51. The follo\^ing persons, and no others, shall be exempt 
 from the payment of; tolls at the gates of the several plank road 
 
PLANK EOAD LAW. 
 
 125 
 
 companies, formed tinder the act entitled " An Act to provide 
 for the incorporation of companies to construct plank roads, 
 and for companies to construct turnpike roads," passed May 7th, 
 
 1. Persons going to or from religious nieetings, held at the 
 place where such persons usually attend for religious worship, in 
 the town where they reside, or an adjoining town, or within 
 eight miles of their residence. 
 
 2. Persons going to or from any fimeral, and all faneral pro- 
 cessions. 
 
 3. Troops in the actual service of this State, or of the United 
 States, and persons going to or from a militia training, which by 
 law they are required to attend. 
 
 4. Persons going to any town meeting or general election at 
 which they are entitled to vote, for the purpose of voting or re- 
 tui'hing therefi'om. 
 
 5. Persons' living withinione mile of any gate by the most 
 usually traveled road, shall be permitted to pass the same at one- 
 half the usual rates of toll, when not engaged in the transporta- 
 tion of other persons, or the property of other persons. 
 
 6. Farmers living on their farms within one mile of any gate 
 by the most usually traveled road, shall be permitted to pass the 
 same free of toll, when going to or from their work on said 
 farms. [1851, dh. 107, § 1.] 
 
 AH persons traveling over a plank road in going to a religious meeting of any 
 sect, creed or denomination, having for their professed object the worship of God, 
 and which are tolerated by the first article of the constitution of this State whether 
 persons go for the purpose of conducting, or of uniting in, the exercises of devo- 
 tion, are equally exempt from the pnyment of toll. Skmner vs. Anderson, (12, 
 Barb., 648.) 
 
 And persons thus exempt from the payment of tolls, may, if compelled to pay it, 
 maintain an action against the toll gatherer, for the penalty imposed by the statute 
 for demanding and receiving more toll than by law he is authorized to collect. lb. 
 
 § 52. It shall not any time hereafter be lawful for any plank 
 road company formed under the said act of May seventh, eighteen 
 hundred and forty-seven, or for any turnpike company to erect or 
 put up any toll gate, gate house or other building within a less 
 distance than ten rods from the front of any dwelling house, 
 barn or other out-house, without the written consent of the owner 
 thereof; and if any toll gate or other such building shall here- 
 after be located, by any such conipany within said distance, 
 without such consent, the county judge of the county in which 
 such building shall be so located shall, on application, order the 
 same to be removed. [Same ch., ^ 2.] 
 
 § 53. Any thing contained in the said act of May seventh, eigh- 
 teen hundred and forty-seven, or in any subsequent act which is 
 inconsistent with the provisions of this act, is hereby repeated. 
 {Same ck, § 3.] 
 
126 • J-i-AJSTK BOjMJ LAW, 
 
 § 54. It shall not at any time hereaftei' be lawful for any plank 
 road coinp&ny in the> county of King's formed iinder the act 
 entitled, " An Act to provide for the incorporation of companies 
 to construct plank roads, and for companies to construct turn- 
 pike roads," passed May.-T, 1847, or for any turnpike company 
 to erect or put up any tc<ll gate^ gate house, or other building 
 within a less distance than seven rods from the front of any 
 dwelling house or barn, without the written consent, of the owner 
 thereof; and if any toll gate or other such building shall here- 
 after be located by any such company within said distance with- 
 out such consent, the county judge of said coimty shall, on appli- 
 cation, order the same to be removed ; the provisions of chapter 
 372, of Laws of eighteen hundred and fifty-five, shall apply to 
 this act. [1857, cA. •636.]:, 
 
 § 55. Ay person falsely representing him or herself to any toll 
 gatherer as being entitled to any of the exemptions mentioned 
 in the preceding section of this act, shall forfeit to the company, 
 to be recovered in the corpora,te name of the company, in any 
 justice's court, the sum of ten dollars. [1849, ch. 250, § 3.] 
 
 ¥his section foUoTved one in tlie act of 1849, wliicli is superseded by the prece- 
 ding section. . It is doubtful whether it remaiiis in force as applicable to the sec- 
 tion inserted of the act of 185J. - ., , ., . ,; 
 ' The law of ISSO, exempted certain persons "going to mill," that law is now 
 repealed. Under that law the court made the following dpcision, which may be 
 nsefal and explanatory of what acts amount to a false representation. 
 
 Where a person on'passing through a toll-gate, says' that be " is 'going to mill,'' 
 this amounts to a declaration that he claims to pass the gate without paying toll, on 
 the ground that he is going to mill; and in an action for the penalty, a jury will 
 be authorized to understand this to be a representation that the defendant was 
 going to mill tor the purpose of getting hisigrinding done, and that' the mill was 
 one where he ordinarily got his grinding done. IJexter & Limerick PI, R. Go. vs. 
 Allen, {16 Barb:, 15.) " ' < 
 
 If, in such a case, under the pretence of going to mill, a person travels on a plank 
 road in going and returningt two miles and a half beyond the mill, without paying 
 any toll, it is the province of the jury to say whether the representation made was 
 not, though literally true, yet substantially fjilse. lb, 8ee also, (22 Barb., 662.) (13 
 ai)W.,448.) (2 Cajnes, 97.) 
 
 § 56. [37.] The commissioners of highways of any towii in which 
 a toll gate may be located on any such road or in an adjoining 
 townj whenever they, pr a majority of them, shall be of opinion 
 that the location of such gate is unjust to the public interest, by 
 reason of the proximity of diverging roads, or for other reasons, 
 may, on at least fifteen days written notice to the president or 
 secretary of the said company, apply, to the coiinty court of the 
 coilnty in which such gate is located, for an ordqr tq aljter or 
 change the location of said' gatfe. The court, on such applica- 
 tion and on hearing the respective parties j. and on viewing the 
 premises, if ;t]b;e said court shall ^eem such view necessary,! shall 
 naake such, order iij.the matter as the^aid ^court .may deem just 
 and proper'; and either party may, within fifteen days thereafter, 
 
PLANE EOAD LAW. ' 127 
 
 appeal from such order to the supreme court, on giving such' 
 security as said county judge shall require. Such order, unless 
 appealed from, shall be observed by the respective parties, and 
 may be enforced by attachment or otherwise, as the said court 
 shall direct. And if appealed from, the decision of the supreme 
 court shall be final in the matter. The said county and supreme 
 court may direct the payment of costs in the premises, as shall 
 be deemed just and equitable. 
 
 Where a county court, upon the application of commissioners of highways, 
 niakes an order for the removal of a toll gate on a plank road, and the company, 
 appeals to the supreme court, and referees are appointed who make a report in. 
 favor of removing the gate, but to a different plabe from that designated by the 
 county court, the case is not within the provision of the act of July 10, 1851, so far 
 as relates to the allowance of costs to, the party succeeding on the appeal. (1^ 
 Barb., 136.) 
 
 The court therefore may make such order as it would make if acting under the i 
 37th section of this act. lb. 
 
 In what cases the location of a toU gate, erected upon a plank road, will be chang- 
 ed, upon application to the county court by the commissioners of highways, on 
 the ground of such location being nnjust to the public interest by reason of the 
 proximity of diverging roads. See McAllister vs. Albion PI. R. Go., (U Barb., 610.) 
 
 To locate toll gates, in such a manner as to compel persons who have traveled several 
 miles on diverging roads, to pay half toll for the privilege of traveling 252 rods 
 upon the plank road, is unjust to the public interest, tb. 
 
 So where the company has, in legal effect, constructed a plank road the distance 
 of 252 rods, and exacts the legal toll for a distance of 400 rods. 
 
 There is no propriety or justice in allowing a company to make a plank or turn-; 
 pike road oa a main thoroughfarp leading to a large village, for the distance of 
 seven-eights of a mile, arid to collect tolls for that distance of all persons traveling 
 on such thoroughfare ; when the ,place selected for such road is that pai-t of the 
 thoroughfare most contiguous to the village, with which a large number of roads 
 have united and added theii- travel to the piece of road over which the plank or 
 turnpike road has been constructed. 
 
 The application to the, county Court, to change the location of a toll gate, 
 must be made by all of the commissioners of highways of the town. But if made 
 by two only, the objection that the third has not joined, must be made before the 
 county court ; otherwise the ii-regularity will be deemed waived) and the objection 
 cannot be raised on appeal. 
 
 Whereupon, an appeal to the supreme court from the decision of the county court 
 in. changing the location of a toll gate, referees were appointed to hear, try, and 
 determine such appeals ; who make their report to the supreme court, of the evi- , 
 dehce and decision thereon, the judgment to be given by the court, is a judgment 
 of reversal or affirmance of the order made by the county court, and iiot of the 
 report of the referees. 
 , The court is not to be <!Ofltrolle(i by the decision of the county cdurt, on the 
 report of the referees, but may give such judgment as justice and equity require. lb. 
 
 This is no appeal from the decision of the supreme court to the court of appeals. 
 (J Howard, ^^l.) , , 
 
 § 57. "Whenever an appeal to the supreme court from an order 
 of the county court, mad^in the cases provided by section thirty- 
 seven of the act entitled " An Act to provide for the incorpora-! 
 tion- of companies to construct plank roads, and of companies fcoi 
 construct turnpike roads," passed May 7, 1847, shall be brought 
 pursuant to the provisions of said section, the supreme court on 
 motion of either party, on due notice, shall appoint three, disin- 
 terested persons,, who are in no wise interested in such company,. 
 
128 PLAKK EOAD LAW. 
 
 or in the question of the location of the toll gate thereof, and are 
 not residents of any town through or into which such road shall 
 run, or to and from which such road shall he a principal 
 thoroughfare, referees to hear, try and determine the said appeal. 
 [1851, cA. 487, § 1.] 
 
 § 58. Such referees shall proceed to view the premises and the 
 location of the gate affected by the order appealed from, and 
 shall proceed to the hearing of the respective parties in the same 
 manner as is provided by law, and the rules and practice of the 
 supreme court on references of civil actions, and shall report 
 their decision to the said supreme court, as referees are required 
 to report, together with the evidence taken by them, and the 
 grounds of such decision. And the report of such referees may 
 be reviewed be the said court, and judgment given thereoni as 
 justice and equity shall require, in view of the law and the facts 
 so presented, and such judgments shall be final and conclusive. 
 iSaTThe c7i., § 2.] 
 
 § 59. , Such referees shall be entitled to the compensation now 
 TOOvided by law for referees in civil actions, 'to be paid in the 
 mrst instance by the party in whose favor their report and deci- 
 sion shall be, and the said supreme court, on motion, shall award 
 judgment therefor, together with such amount of costs and ex- 
 penses as shall be deemed reasonable by the said court to the 
 party succeeding on such appeal, which judgment shall be entered 
 with the order and judgment of said court, affirming or reversing 
 the order of the said county court appealed from, and there- 
 upon the party succeeding may issue execution thereon, and col- 
 lect and enforce the same, as upon judgments in civil actions. 
 [Same ch. § 3.] 
 
 § 60. This act shall apply to all appeals heretofore brought, 
 and now pending in said supreme court, as well as those here- 
 ;after brought, arid the same shall take] effect immediately. 
 [Same cR., § 4.] 
 
 § 61. [38.] The business and property of such company shall be 
 managed and conducted by a board of directors, consisting of 
 not less than five nor more than nine, who, after the first year, 
 shall be elected at such time and place as shall be directed by 
 1;he by-laws of such corporation, aind public notice shall be given 
 ■of the time and place -of holding' such election, not less than 
 twenty days previous thereto, in a newspaper printed in each 
 county in or through which the road of such company is located. 
 The election shall be made by such of the stockholders as shall 
 attend for that purpose, either in person or by proxy. All elec- 
 tions shall be by ballot ; and. each stockholder shall be entitled 
 to as many votes as he shall own shares of stock ; and the per- 
 
PLANK SOAD lAW. 
 
 129 
 
 sons having the greatest number of votes shall he directors. 
 Whenever any vacancy shall happen in the board of directors, 
 such vacancy shall be filled for the remainder of the year by the 
 remaining directors. The directors shall hold their office for one 
 year, and until others, are elected in their places. Ho person 
 shall be a director unless he is a stockholder in the company ; 
 and no stockholder shall be permitted to vote at any election for 
 directors on any stock except such as he has own^ed for the thirty 
 days next previous to the election. 
 
 This section does not confer upon the directors power to incur a debt by pur- 
 chasing their own stock at par, when its value may be far below that figure, or to 
 purchase at all and mortgage their road and make their stockholders personally 
 liable. It was never the intention or meaning of the statute, that the affairs of the 
 company should be " managed and conducted " in that way. (17 Barb., 397.), 
 
 By the J 23 of the act in relation to turnpike companies, (which may be found 
 under the head of turnpike companies) it is declared that no director of the cor- 
 poration to which he shall belong, shall be concerned directly or indirectly, in any 
 contract for the making or working of the road, or any part thereof, during the 
 time he shall be a director. By the ^ 47 of this act, that section is made to apply 
 to plank road companies. All such contracts are therefore void. Neither the 
 directora nor stockholdei's can waive this provision. lb. 
 
 § 62. Whenever the whole number of stockholders in any 
 plank road company or turnpike road company, shall not ex- 
 ceed the number of directors specified in the articles of associ- 
 ation of such company, each stockholder shall be in fact and in 
 law a director of such company, and in such case the stock- 
 holders shall constitute the board of directors, whatever may 
 be their number, and a majority thereof shall form a quorum 
 for the transaction of business. [1857, ch. 202.] 
 
 § 63. [39.] The directors of any company incorporated under 
 this act may require payment of the sums subscribed to the cap- 
 ital stock, at such times, and in such proportions, and on such 
 conditions as they shall see fit, under the penalty of the forfei- 
 ture of their stock and all previous payments thereon ; and they 
 shall give notice of the payment thus required, and of the place 
 and time when and where the same are to be made, at least 
 thirty days previous to the payment of the same, in one news- 
 paper printed in each county in or through which their road is 
 located, or by sending such notice to such stockholder by mail, 
 directed to him at his usual place of residence. 
 
 Signature to a paper which states that the subscribers thereby associated them- 
 selves 'in pursuance of this act, gives the name of the proposed company, the 
 amount of its capital stock and the number of shares, imports a promise, upon 
 which an action may be maintained, to take and pay for the number of shares set 
 opposite to the subscriber's name. Remelear, <kc. vs. Barton, (16 JV. K, 457.) \Bee 
 lb.,45l.) 
 
 9 
 
130 PLAIirK EOAD LAW. 
 
 Directors hare authority to require payment of subscriptions for stock before the 
 wKole capital is subscribed. {I jSiman, 102.) 
 
 A person is liable, although after calls T^'ere made, and befoi'e they were payable, 
 he assigned his stock to a responsible person and had it transferi'ed to, and an 
 account opened with him in the books of the company. lb. See notes under 
 
 }J 1 * 9- 
 
 By their articles, the subscribers agreed to pay their subscriptions as called for 
 by the directors, not exceeding 25 per cent, at any one lime. On 25th of March, 
 1851, a call of 13 per cent, was made payable April 15th, and calls of 15 per cent,, 
 each payable in May and June, and on 13th June, a call for the balance, 42 per 
 cent., payable July 1, was made ; notice of which calls was immediately given to 
 the defendant : 
 
 Held, 1. That calls in sums not exceeding 25 per cent, payable at any one time, 
 were unnecessary, by the terms of the defendant's agreement, before any liability 
 thereon accrued. 
 
 2. That the § 39th [63] had no application to a common law action, brought to 
 recover the amount of the calls ; and that 30 days' previous notice of the calls was 
 not requisite to the defendant's liability in such action. That notice is necessaiy 
 only where the cumulative remedy or forfeiture of the stock is Sought. 
 
 3. The call of 42 per cent, being for a greater sum than he had contracted to pay 
 at any one time, imposed no liability on him. Eastern Plank M. Go, Vi. Vaughan, 
 (20 Barh., 155.) 
 
 The forfeiture of stock, authorized by this section, in case of non-payment of 
 calls, is a cumulative remedy, and can only be pursued on a fall compliance with 
 the requirements of the act. 
 
 'Where subscribers agree to pay in such times and in such manner as shall be 
 required by the board of directors, as soon as the board makes the requirement, the 
 obligations of the subscribers become operative, without the notice of 30 days 
 mentioned in this section. That notice is to be regarded as preliminary only to a 
 right to forfeit the stock. lb. 
 
 The provisions of the Revised Statutes dispensing with the proof of the exist- 
 ence of corporations in actions by them, unless the defendant pleads that the plain- 
 tiff is not a corporation, is not abolished by the code of ^procedure ; and hence, 
 where the answer merely denies the allegations of the complaint in which the 
 plaintiff is described as a corporation created under the laws of this State, it is not 
 necessary to prove that the plaintiff was duly incorporated. (3 Kernan, 309.) 
 
 What constitutes sufficient proof of incorporation. (See 20 Barb., 644.) As to 
 the validity of the subscription. See (21 jBbj-6,, 56.) (7 75., 157.) (24 /*., 399.) (18 
 76., 312.) (76,317.) (17 7i., 567.) 
 
 § 64. [40.] The shares of any company formed under this act, 
 shall be deemed personal property, and may be transferred as 
 shall be prescribed by the by-laws of snch company. The 
 directors of every such company may, at any time, with the con- 
 sent of a majority in amount, of the stockholders in such com- 
 pany, provide for such increase of the capital stock of such com- 
 pany as may be necessary to finish the making of a road actu- 
 ally commenced and partly constructed, but the whole capital 
 stock of any company shall not exceed five thousand dollars per 
 mile for each mile of the road. 
 
 § 63. [41.] It shall be the duty of the directors of every com- 
 pany formed under this act, to report annually, to the Secretary 
 of State, under the oath of any two of such directoi-s, the cost 
 of their road, the amount of all money expended, the amount of 
 their capital stock, and how much paid in and how much actu- 
 ally expended ; the whole amount of tolls or earnings expended on 
 
FLAKK EOAD LAV?. 131 
 
 such road ; the amount received during the year, for tolls, and 
 from all other sources, stating each separately, the amount of divi- 
 dends made, and the amount set apart for a reparation fund, and 
 the amount of indebtedness of such company, specitying the 
 object for which the indebtedness accrued. 
 
 § 66. [42.] "Within two weeks after the formation of any com- 
 pany, by virtue of this act, the directors thereof shall designate 
 some place within a county in which, according to the articles of 
 association of such company, its road, or some part thereof, is 
 to be constructed, as the office of such company ; and shall give 
 public notice thereof, by publishing the same in a public news- 
 paper, published in such county, which publication shall be con- 
 tinued once in each week, for three successive weeks, and shall 
 file a copy of such notice in the office of the county clerk of 
 every county in which any part of such road is constructed or 
 is to be constructed. And if the place of such office shall be 
 changed, like notice of such change shall be published and filed 
 as aforesaid, before it shall take place, in which notice the time 
 of making the change shall be specified. And every notice, 
 summons, declaration, or other paper required by law to be 
 served on such company, may be served by leaving the same at 
 such office with any person having charge thereof, at any time 
 between nine o'clock in the forenoon and noon, and between two 
 and five o'clock in the afternoon, of any day except Sunday. 
 
 § 67. [43.] It shall be the duty of the directors of any such 
 company to cause a book to be kept by the secretary, treasurer, 
 or clerk thereof, containing the names of all persons alphabet- 
 ically arranged, who are or shall, within six- years, have been, 
 stockholders of such company, and showing their places of resi- 
 dence, the number of shares of stock held by them respectively, 
 and the time when they respectively became the holders of such 
 shares ; which book shall, from nine o'clock in the foirenoon 
 until noon, and from two o'clock in the afternoon until five, on 
 every day except Simday and the fourth da;y of July, be open 
 for the inspection of all persons who may desire to examine the 
 same, at the office of such company, and any and every person 
 shall have a right to make extracts from such book ; and no 
 transfer of stock shall be valid for any purpose whatever, except 
 to render the person to whom it shall be transferred liable for 
 the debts of the company, according to the provisions of this 
 act, until it shall have been entered therein, as required by this 
 section, by an entry showing to and from whom transferred. 
 Such book shall be presumptive eyidence of the facts therein 
 stated, in favor of the plaintiff in any suit or proceeding against 
 such company, or against any one or more stockholders, or 
 against such company and one or more stockholders jointly. 
 
132 ' PLAHK EOAD LAW, 
 
 Every officer or agent of any such .company, who shall neglect 
 to make any proper entry in such book, or shall refuse or neglect 
 to exhibit the same, or allow the same to be inspected and ex- 
 tracts taken therefrom, as provided by this section, shall be 
 deemed guilty of a misdemeanor, and the company shall forfeit 
 and pay to the party injured, a penalty of fifty dollars for every 
 such neglect or refusal, and all the damages resulting therefrom. 
 And every company that shall neglect to keep such a book open 
 for inspection as aforesaid, shall forfeit: to the people the sum of 
 ^fty dollars for every day it shall so neglect, to be sued for and 
 i-ecovered in the name of the people, by the district attor,ney of 
 any county in or through which the road of, such company shall 
 be constructed, or shall be, according to its articles of associa- 
 tion, intended to be constructed, and when so recovered, the 
 amount shall be paid in equal portions to every such county for 
 the use thereof. 
 
 § 68. [44.] The stockholders of every company incorpoi^afced 
 under this act, shall be liable in theix individual capacity for the 
 payment of the debts of such company, for an amount equal to ' 
 the amount of the stock they severally have subscribed or held 
 in said company over and above such stock, to be recovered of 
 the stockholder who is such, when the debt is contracted, or of 
 any subsequent stockholder, and any stockholder who may have 
 paid any demand against such company, either voluntarily or 
 by compulsion, shall have a right to resort to the rest of the 
 stockholders who were liable to contribution : and the dissolu- 
 tion of any company shall not release or effect the liability of ' 
 any stockholder which may have been incurred befoi'e such dis- 
 solution. 
 
 An agreement of a company to puroliasa its own stock, is against public policy ; 
 and the directors have no power to make such purchase and mortgage the road, 
 and make the stockholders personally liable. Bartmi vs. Pore Jackson, die. Plk R. 
 {UBarb.,mi.) 
 
 The agent of a corporation is not the agent of the individual stockholders, so as 
 to make them responsible for his frauds, or to vitiate a contract made by an inno- 
 cent stockholder for the sale of his stock. Moffat vs. Wmriom, (7 Paige, 124.) 
 
 Acts not within the limits of the charter are void, and no ratification of the cor- 
 poration can make them valid. (5 Denio, 567.) 
 
 § 69. [45.] The debts and liabilities of any company formed 
 under this act shall not exceed in am9unt, at any one time, fifty per 
 cent, of the aniount of its capital, actually paid in, and if such 
 debts and liabilities shall at any time exceed such amount, the 
 stockholders who were such at the time any excess of debts or 
 liabilities shall be created or incurred, shall be jointly and sev- 
 erally individually liable for such excess, in addition to their 
 other individual liability as provided in this act. 
 
PLANK EOAD LAW. 133 
 
 § 70. [46.] In any action against any company formed under 
 the provisions of this act, the plaintiff may include as defen- 
 dants any one or more. of the stockholders o:^such company, who 
 shall by virtue of the provisions of this act, be claimed to be 
 liable to contribute to the payment of the plaintiff's claim ; and 
 if judgment be given against such company, in favor of the 
 plaintiff for his claim or any part thereof, and any one or more 
 of the stockholders, so made defendants, shall be found to be 
 liable as aforesaid, judgment shall also be given against him or 
 them, and shall show the extent of his or their liabilities, indi- 
 vidually. The execution upon such judgment, shall direct the 
 collection of the sum for which it may be issued, of the property 
 of such company liable to be levied upon by virtue thereof ; and 
 in case such property sufficient to satisfy the same cannot be 
 found in the county of the officer to whom the same shall be 
 directed,, that the deficiency, or so much thereof as the stock- 
 holders who shall be defendants in such judgment, shall be liable 
 to pay, shall be collected of the property of such stockholders 
 respectively. And if in any such action, any one or more of 
 such stockholders shall be found not to be liable for the demand 
 of the plaintiff or any part thereof, judgment shall be given for 
 the stockholders so found not to be liable, but no verdict or 
 judgment in favor of any such stockholder shall prevent the plain- 
 tiff in sudh action from proceeding therein against the company 
 alone, or against it and such defendants who are stockholders as 
 shall be liable for such demand or some portion thereof. Suits 
 may be brought against one or more stockholders who are claim- 
 ed to be liable for any debt owing by the company, or any part 
 of such debt, without joining the company in such suit ; but no 
 such suit shall be so bronght until judgment on the demand 
 shall have been obtained against the company and execution 
 thereon returned unsatisfied in whole or in part, or the company 
 shall have been dissolved ; but it shall not be necessary that 
 such dissolution shall have been declared by any judicial decree, 
 sentence, or determination ; and in such suit there may be a 
 verdict and judgment in favor of any defendant not liable as 
 aforesaid ; but such verdict and judgment shall not prevent 
 the plaintiff in such suit from proceeding therein against any 
 defendent who shall be liable as aforesaid. 
 
 §71. [47.] Sections seven, eight, nine, eleven, twelve, thirteen, 
 fourteen, sixteen, twenty-one, twenty-two, twenty-three, twenty- 
 four, thirty, thirty-five, thirty-six, forty-one, forty-two, forty-four, 
 forty-five, forty-six, forty-seven, forty-eight, forty-nine, fifty, fifty- 
 one, and fifty-two of the first -title of the eighteenth chapter of 
 the first part of the Revised Statutes, shall apply to the com- 
 panies organized by virtue of this act, and all inspectors and 
 other officers named therein, and to all the officers and roads of 
 
134 PLANK EOAD LAW. 
 
 such companies, so far as the same can be so applied and are 
 consistent with this act. [As amended, 1847, ch. 287.] 
 
 These sections are quoted hereafter and given in full, under the head " Turnpike 
 
 § 72. Sections fifty-four and fifty-five, of title first, chapter 
 eighteen, of part first of the Eevised Statutes, shall apply to all 
 companies formed under the before mentioned act, passed May 
 7th, 1847, so far as the same can be applied, or are not inconsist- 
 ent with this act. [1849, cA. 250, § 5, as amended 1850, ch. 71, 
 §2.] . , 
 
 These sections are also given under the head of " Turnpike Gompamei." Several 
 decisions are given under, those sections. See (22 JSarb,, 662. (31 /i, 212.) (14 
 631.) (21/6., 319.) 
 
 § 73. [48.] So much of any such road and of the toll houses, gates 
 and other appurtenances thereof constructed by virtue of this 
 act, as shall be within any town, city or village, shall be liable 
 to taxation in such town, city or village, as real estate. 
 
 § 74. Exemption from Taxes. — ^Toll-houses and other fixtures 
 and all property belonging to any plank or turnpike road com- 
 pany, shall be exempt from assessment and taxation for any pur- 
 pose whatsoever, until the surplus annual receipts of tolls on their 
 respective roads, over necessary repairs, and a suitable reserve 
 fand for repairs and relaying of plank, shall exceed seven per 
 cent, per annum on the first costs of such road. In case of any 
 disagreement between the assessors of any town, village, or 
 city, and any such company, concerning such exemption claimed, 
 said company may appeal to the county judge of the county in 
 which such assessment is proposed to be made, who shall, after 
 due notice to the appealing party of such appeal, examine the 
 books and vouchers of such . company, and take such further 
 proof as he shall deem proper, and sha,ll decide whether such 
 company is liable to taxation under this section, and his decision 
 shall be final. [1854, ch. 87, § 4, as amended, 1865, ch. 646, § 5.] 
 
 § 75. [49.] Every company incorporated under this act shall 
 cease to oe a body corporate : 
 
 1. If within two years from the filing of their articles of asso- 
 ciation they shall not have commenced the construction of their 
 road, and actually expended thereon at least ten per cent, of the 
 capital stock of such company, and, 
 
 2. If within five years from such filing of the articles of asso- 
 ciation such road shall not be completed according to the pro- 
 visions of this act. 
 
 A corporation may be dissolved : 1. By statute, where a power for that purpose 
 has been resei-ved; 2. By surrender— there must have been an acceptance ; 3. By 
 the natural death or loss of all its inemb^rs, or a loss of an integral part of the 
 corporation, so that the exercise of corporate power cannot be restored ; 4. A for- 
 
PLANK EOAD LAW. 135 
 
 feiture for non-user, as pi-ovidod in this section, and also other instances of non- 
 user and negligence, and for mis-nser and abuse of its franchises to be pronounced 
 by the judgment of a court of law. 
 
 As to sun-ender. See She vs. Bloom, (19 John., 4,56.) If a corporation suffers 
 acts to be done, which destroy the end and object for which it was instituted, it is 
 equivalent to the surrender of its rights. lb. 
 
 A corpoprtion is not, it seems, necessarily dissolved by the return of an execution 
 against it unsatisfied, and the institution of proceedings against it under § 36 of 
 statute. Mann vs. FenU, (3 Cow., 415.) 
 
 The appointment of a receiver of an insolvent corporation takes effect from 
 the granting an order for a reference to appoint a receiver ; and irom that moment 
 no act can be done affecting the property of the corporation, either by the corpora- 
 tion or its creditors. The object of the statute authorizing proceedings against 
 insolvent corporations is to take away the franchises of the corporation, and its 
 powers of action, immediately on a petition for a receiver being filed, if the prayer 
 of the petition be finally granted. In the matter of Berry, (26 Barb., 55.) 
 
 A voluntary assignment by a corporation does not assign the franchise. (21 
 Barb., 221.) 
 
 "W hen a mis-user of its fraiiehises has once been committed, by a corporation ; or 
 a breach of the duties enjoined upon it as a condition of its creation and continu- 
 ance, sufficient to forfeit its charter, has ocoun-ed ; mere subsequent good behavior 
 in those respects will not legally atone for a cause of forfeiture. Nothing but a 
 waiver, by the sovereign power, will relieve a corporation from the consequences of 
 such acts. (27 Barh , 445.) ■ 
 
 _ The statute, (2 R. S., 463, 5 38, \st Ed.,) declaring that a corporation which, for 
 one whole year, has remained insolvent or suspended its ordinary business, shall be 
 deemed to "have surrendered its franchise, is cumulative, and not a limitation in the 
 common law pi'eviously existing. (17 .y. y., 93.) 
 
 § 76. [50.] All companies formed under this act shall at all times 
 be subject to visitation and examinatien by the legislature, or by a 
 committee appointed by either house thereof, or by any agent or 
 officer in pursuance of law; and the courts of this State shall 
 have the same jurisdiction over such corporations and their offi- 
 cers as over those created by special acts. 
 
 A stockholder in a private coi'poration has a right, at any reasonable time during 
 the usual hours of business, and withih thirty days previous to an election of 
 directors, not only to inspect the boots in which the transfers of stock are registered* 
 and the books containing the names of the stockholders; but also to take a copy and 
 memorandum of the names of the stockholders, and any officer of the corporation 
 having charge of such books, who, though he submit the books to the inspection of 
 the stockholder, shall yet refuse to permit him to take such copy or memorandum, 
 subjects himself to the penalty of $250, provided by the first section of title 4, 
 chap. 18, of 1st part B. S., (1 Seld., 562.) 
 
 § 77. [51.J The legislature may at any time alter, amend pr 
 repeal any corporation formed or created under this act. 
 
 § 78. [52] The directors of any plank road company formed under 
 the act passed May 7, 1847, entited " An act to provide for the in- 
 corporation of companies to construct plank roads, and for compa- 
 nies to construct turnpike roads," may with the written consent 
 of the persons owning two-thirds of the stock, and with the writ- 
 ten consent of a majority of the inspectors, whose appointment 
 is provided for in the 33d [99] section of said acj;, construct 
 branches to their main line of road, or extend their main line, or 
 
136 PLAJSTK EOAD LAW. 
 
 change the route of their road, or ^ny part thereof, which 
 branches or extensions shall in all respects be governed by the 
 same rules and affected by the same laws as the main line of 
 road, and the said directors may increase the capital stock of the 
 company to an amount not exceeding two thousand dollars a 
 mile of such branches or extensions for their construction, and 
 distribute the certificates therefor among the stockholders of the 
 company, in proportion to the stock owned by them severally,, if 
 Buch stockholders shall demand and pay up the same; and in 
 case the new stock, after the directors liave given public notice in 
 some newspaipers printed in every county in which their road is 
 situated, for six successive weeks, is not demanded and paid by 
 the stockholders, they may permit any person or persons to sub- 
 scribe and pay on the new stock the same percentage that had 
 been paid on the original stock of the company, and the same 
 shall in all respects be held and considered as though it had 
 formed a part of the original stock of the company. The right 
 of way for any such branches or extensions shall be acquired by 
 the company in the same manner as is now provided by law for 
 plank road companies to acquire the right of way for their roads. 
 [1849, cTi. 250, § 1.] 
 
 The law of 1859, ch. 209, has materially altered the section. That law will be 
 found at the end of this chapter. 
 
 Where the directors of a plank road conipainy, after the formation of the com- 
 pany, extend the main line of the road beyond the point originally specified, and 
 increase its capital stock, without the written consent of the persons owning two 
 thii-ds of the capital stock, or of a majoi-ity of the inspectors, <fec., as provided by 
 the first section of the plank road act, such acts are unauthorized and illegal, and 
 exonerate the original stockholders fi'om all liability to pay their subscriptions. 
 MaeedonPl. B. Oo. vs. Lapham, (18 Barb., 312.) Bame vs. Snediker. lb., 317. 
 
 After the organization of the company, the following paper was signed by the 
 defendant and several others, with the sum of $300 set opposite his name : " Pro- 
 " vided the M . <fc V. plank road crosses at B ., and passes through C ., we agree to 
 " take stock to the amount set opposite our several names," held, that the agreement 
 was void, for want of consideration to support it, and because there was an entire 
 want of mutuality ; also that it was void, on the ground that it was conditional, 
 and was contrary to public policy. lb, 
 
 § 79. It shall be lawful for any two or more companies, formed 
 under the provisions of the aforesaid act of 1847, to consolidate 
 the respective companies on such terms as the persons owning 
 t#o-thirds of the stock of each of said companies may agree 
 upon; and such company, consolidated as aforesaid, may change 
 IhiB name of their road, on filing in the office of the Secretary of 
 State a certificate containing the names of the roads so consoli- 
 datfed, and the name by which such road shall thereafter be 
 known, \_8ariu oh.,, % 8.] 
 
 § 80. Any person who shall pass any plank road gate, or turn- 
 pike gate, without paying the toll, and with the intent to avoid 
 the payment of the same, by which a ' penalty accrues, Or any 
 
PLANK EOAD LAW. 137 
 
 person committing any depredations or ti'espass on any plank 
 road or turnpike, may be sued for said penalty or trespass in 
 the county where such offence or trespass was committed', or in 
 the county where such person may reside. \_8a'im ch:, § 9.] 
 
 § 81. Whenever a complaint shall be made to the inspector or 
 inspectors of any plank road or turnpike in this State, before 
 such inspector or inspectors shall act upon such complaint, fie or 
 they shall receive from the conjplainant the fees providBd by law, 
 and in case it shall appear, upon examination of the road, that 
 the complaint was well founded, the amount of said fees shall be 
 paid to the complainant by the eomptoy. In case it is deter- 
 mined that the complaint was not well founded, the complainant 
 shall not be entitled to receive back the fees so paid by him. 
 iSame eh., §10.] 
 
 § 82. "Whenever any plank road or turnpike road shall be 
 built in pursuance of the provisions of this act, or the act hereby 
 amended, jipon the site of an old highway, it shall be the duty of 
 the commissioners of the highways of the town Where such roiad 
 shall be made, to designate some district or districts within their 
 town, on which the highway labor of the inhabitants residing 
 along the line of said plank or turnpike road shall be performed. 
 [Same oh.. § 11.] 
 
 § 83. Every person liable to do highway labor, living or own- 
 ing property on the line of any plank road of this State, may, on 
 making application in writing to the commissioner or commis- 
 sioners 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 
 shall assess such person for the land or property owned by him 
 in or upon the line of such plank road, as a separate road dis- 
 trict. [1853, ch. 620, § 1, as amended, 1855, ch. 495.] 
 
 This statute has no application to assessments in respect to persons, ov in respect 
 to any property not in the road itself, orin or attached to land immediately adjoin- 
 ing. Tfe People ea; reZ., <fec., «s. ifoK, (15 ifow, 76.) 
 
 It does not embrace assessments for the personal property generally of the owner 
 of land upon the line of the road, or for the capital of a banking corporation or per- 
 sonal property held in trust. 
 
 A tenant or ooenpant of land on the line of a plank road liable to be assessed for 
 highway labor in regard to the land, is authorized by the statute to apply to the 
 commissioners to be assessed on the plank road. Ih. 
 
 Prior to the amendment of this section in 1855, it was decided in the case of the 
 Buffalo Pile. R. Oo., (10 How., 237,) that this power confeiTe,d on the commissioners 
 was discretionary, and that they could not be compelled to exercise it. The word 
 " may " was struck out and the word •' shall/' inserted in its place. 
 
 The law is now undoubtedly imperative. 
 
 § 84. It shall be the duty of the highway commissioner or com- 
 
138 -PLANK KOAD LAW. 
 
 missioners of such town, to make a separate list of such persons 
 and such land or property so assessed, as commissioners are now 
 by law required to make for every separate road district, which 
 shall be delivered to some one of the directors of such road, who 
 shall proceed to have said highway labor worked on such road, 
 in the same manner that overseers of highways are required by 
 law 40 do. [xSbme cA., § 2.] 
 
 • ^ 
 
 § 85. The said directors shall possess all the powers, and have 
 the same authority to compel the performance of such highway 
 labor, or the payment of such highway tax, as the overseers of 
 highways now have by law, and shall make like return to the 
 commissioners of highways. [Same ch., § 3.] 
 
 § 86. Any person so assessed may commute for the tax assess- 
 ed upon him or his property, by paying the sum now fixed by 
 law, to any of said directors, [mme ch., § 4.] 
 
 § 87. All the provisioiis of chapter six hundred and twenty-six 
 passed July twenty-first, eighteen hundred and fifty-three, in re- 
 lation to plank roads, shall be applicable' to the Oazenovia and 
 Chittenango turnpike company. [1854r, ch. 67.] , 
 
 § 88. Every company heretofore formed or organized under the 
 act, entitled "An act lor the incorporation of companies to con- 
 struct plank roads," passed May 7, 184:7, and the several acts 
 amending the same shall be deemed to Tae a valid corporation, 
 although such company may not have complied with the require- 
 ments of such acts in the formation and organization of such 
 company; and no act or omission on the part of any such com- 
 pany, or of its stockholders or oflicers, shall work a forfeiture of 
 its corporate powers or franchises, unless the sSme was wilful or 
 malicious, but this section shall not aftect or impair any right of 
 action which has heretofore accrued to any person or persons 
 against such company, its ofiicers or agents for entering upon or 
 taking possession of any real estate, or any right of action now 
 existing, arising on contract, or any right of action against any 
 company or its ofiicers for a misapplication of its funds; or any 
 action pending to recover toll or to recover any penalty for pass- 
 ing a gate without paying toll. [1850, ch. 71, § 1.] 
 
 § 89. No action to recover any penalty against any company 
 formed under an act entitled " An act for the incorporation of 
 companies to construct plank roads and of companies to construct 
 turnpike roads," and the acts amending the same, or against any 
 turnpike corporation, shall be commenced or maintained against 
 such company or any of its officers or agents, unless the same is 
 commenced within thirty days after the penalty was incxirred, 
 [Same ch., § 3.] 
 
PLANK EOAD LAW. 139 
 
 § 90. The -directors of any plank road company or turnpike 
 company, formed under the act passed May 7, 1847, entitled "An 
 act to provide for the incorporation of companies to construct 
 plank roads, and for companies to construct turnpike roads," and 
 every plank road company or turnpike company incorporated 
 under or by any law of this State, are hereby authorized to aban^ 
 don the whole or any part of their plank road or turnpike road, , 
 at either or both ends thereqf, whenever the stockholders holding 
 two-thirds of the stock in said, road company shall consent to the 
 same by a written declaration of the surrender of such part or 
 parts of said road, which said declaration shall be attested by 
 their common seal, and acknowledged by the president and sec- 
 retary of said company before an officer empowered to take the 
 acknowledgments of deeds. Such declaration and consent shall 
 be filed, and recorded in the clerk's office of the county in which 
 the part or parts of said road abandoned, shall be situated, and 
 thereupon the plank or turnpike road, or the portion thereof so 
 surrendered, shall cease to be the road or property of the com- 
 pany, andrevert and belong to the several towns through which 
 it was constructed, and the said company shall be no longer 
 bound to maintain it or be liable to be assessed thereon, or be 
 permitted to collect tolls for traveling over the same, from the 
 time of recording said declaration of surrender and consent, 
 without impairing the right of said company to take toll on the 
 remaining, part of their plank road'or turnpike road at the rate 
 prescribed in its charter, or by the laws of this State relating to 
 any such company. [1854, ch. 87, § 1.] 
 
 § 91. Boadmmj lerelmd with gravel, c&g. — Any plank road or 
 turnpike company within this State, which shall have once laid 
 their road with plank, may hereafter relay the same, or any part 
 thereof, with broken stone, gravel, shells or other hard materials, 
 whereby they keep a good and substantial road. Such company 
 shall be entitled to collect and receive^ the same tolls as is provid- 
 ed by chapter two hundred and forty -five of the laws of eighteen ' 
 hundred and fifty-three. [Same ch., § 2, as amended, 1855, ch., 
 546, § 7.] 
 
 § 92. The directors of any plank road company may put up 
 and maintain, at conspicuous places at-each end of any bridge 
 on their road, the length of whose span is not less than twenty- 
 five feet, a notice with the following words in large characters: 
 " One dollar fine for riding or driving over this bridge faster than 
 a walk." 
 
 "Whoever shall ride or drive faster than a walk over any bridge 
 upon which such notice shall have been placed and shall then be, 
 shall forfeit for every offence the sum of one dollar. [Same ch., 
 §5.] 
 
140 PLANK EOAD LAW. 
 
 § 93. Every company formed or organized under the act enti- 
 tled "An act for th^ incorporation of companies to construct 
 plank roads, and of companies to construct turnpike roads," 
 passed Miay 7, 1847, and the several acts amending the same, 
 shall be deemed to be a valid corpoi-ation, although such com- 
 pany may not have complied with the requirement of sucli acts 
 in the formation and organization of such company, and pre- 
 paratory to the construction of its road, and no act or omission 
 on the part of any such company or of its stockholders or officers, 
 shall work a forfeiture of its corporate powers or franchises, un- 
 less the same was wilful and malicious; but this section shall not 
 affect or impair any right of action heretofore' accrued. [Same 
 ch., § 6.] 
 
 J Whatever acts on the part of a plank road company are wilful, and done with an 
 intention contrary to its'duty, and forbidden hy its cliarter, are not waived by this 
 section. But mere negligence, single acts of non-feasance, or omissions proceeding 
 from inadvertances and without design, are forgiven by the legislature, in this sec- 
 tion. The People vs. Fishkill, i&c., (27 Barb., 445.) 
 
 The class of acts or omissions which the legislature intended to pardon by this 
 section, were mere acts of negligence and carelessness, not done in assertion of any 
 right or privileges, or in denial of any obligation. 
 
 But in constructing its road of a less width than the law commands, and in sub' 
 Bequently abandoning portions thereof and allowing the same to become impassa- 
 ble, without legal justification, a plank road company acts deliberately, and with 
 design to do what it has no right to do — to disregard duty and violate its char'en 
 These acts are such as aie styled in the statute, " wilful and malicious," and will 
 consequently work a forfeiture of the charter. lb. 
 
 Where the company allows the road to become impassable and dangerous, aban- 
 doning that portion of the road, will not cure the difficulty. Kor will subsequent 
 repairs have that effect. lb. 
 
 § 94. Any person who shall draw or haul, or cause to be hauled 
 or drawn, any logs, timber, or other material, upon the road bed 
 of any plank road or turnpike road,' unless the same be entirely 
 elevated above the surface of the road on wheels or runners, by 
 which said road bed shall be injured, or who shall do or cause 
 to be done any act by which said road bed or any ditch, sluice, 
 culvert or drain appertaining to any turnpike or plank roadj 
 shall be injured or obstructed, or shall divert or cause to b^ 
 diverted, any stream of water so as to injure or endanger any 
 part or any such turnpike or plank road, ^hall forfeit and pay 
 the sum of five dollars as a penalty, in addition to the damages 
 resulting from such wrongful act. [1855, cA. 483, § 1.] 
 
 § 95. Any person who shall designedly place or leave, or cause 
 to be placed or left, any log, timber, stone. Wood or other mate- 
 rial, upon the land held by any turnpike or plank road company, 
 for highway purposes, in such a way as to obstruct the travel 
 upon such road, or to endanger property or persons passing upon 
 such road, shall, in case he or she do not remove such obstruct- 
 ion within forty-eight hours after receiving a written notice &om 
 
PLAXK EOAD LAW. 
 
 141 
 
 one of the directors of the company owning the road upon 
 which such obstructions have been placed or left, forfeit the sum 
 of ten dollars for every twenty -four hours such obstruction shall 
 remain after such notice. [_Same ch., § 2.] 
 
 § 96. Any person who shall pass any turnpike or planlc road 
 gate without paying the toll required by law, and with intent to 
 avoid the payment thereof shall, for each offence, forfeit and pay 
 to the corporation injured thereby, ten doUai's. The penalities in 
 this and the preceding sections may be sued for and recovered 
 by any company injured thereby, in any court having jurisdic- 
 tion thereof. [Same ch., § 3.] 
 
 Where a plank road company, suing in a justice's court for penalties for passing 
 a toll-gate withoat j)aying toll, proyes itself to be a corporation and in possession 
 of the road, and the incurring of the penalty by the defendant, this is sufficient to 
 entitle it'to recover, without proof of its right to enter and construct the road and 
 erect gates. Fredonia, dee., vs. Wait, (27 Barb., 214.) 
 
 A justice has no jurisdiction to try a disputed title to real property. But the 
 question of actual possession is not a question of title within the meaning of the 
 prohibition of the statute. 
 
 If the defendant in such an action intends to raise the question of title, he should 
 set forth, in his answer, the matter showing that the title will come in question and 
 give the undertaking required by the statute. If he fails to do so, the justice will 
 have jurisdiction of the cause, and the defendant will be precluded in his, defence 
 from drawing the title in question. lb. See (15 Barb., 9S.) (^6 Hill, ii.)' (S I b. , 
 537.) (/4.,343.) {15 Wend., 333.) (19 lb, 373.) 
 
 As to "forcibly and fraudulently" passing a gate. (See notes under § 55, of Turnpike 
 Companies; and 21 Barb., 212.) (22 Barb., 663.) (2 Gaines, 97.) (13 Eme., 448.) 
 (21 £o»-J., 319.) (27 76., 509.) 
 
 § 97. Whenever the president or secretary of any turnpike 
 or plank road company, shall notify any inspector of roads in 
 the county where such roads are situated, that any person is 
 erecting or has erected any fence or other structure, upon any 
 part of the premises set apart by due course of law, for any 
 turnpike or planl^ road, the said inspector shall proceed to exam- 
 ine the facts, and if it shall appear that such fence or other 
 structure is upon any part of any such road, the said inspector 
 shall order the same to be removed ; and any person who shall 
 neglect or x-efuse to remove the same within twenty days, or such 
 further time not exceeding three months, as may be fixed by the 
 said inspector, shall forfeit and pay the sum of five dollars for 
 every day during which said fence or other structure shall re- 
 main on the said road, to be sued for and recovered by the cor- 
 poration owning such turnpike or plank road, in any court 
 having jurisdiction thereof ; provided that the said inspector 
 'shall not order the removal of any fence previously erected, 
 between the first day of December and the first day of April 
 [1855, r;A.486, §,4.] 
 
142 PLANK BOAD lAW. 
 
 § 98. All acts and parts of acts inconsistent with this act are 
 hereby repealed. [Same ch., § 5.] 
 
 § 99. In an action hereafter brought by or against any plank 
 or turnpike road company organized under the laws of this 
 State which shall have been in actual opera;tion, and being 
 in the possession of a road upon which thay have taken 
 toll for nve consecutive years next preceding the commence- 
 ment of such action, parol proof of such corporate existence 
 and use shall be sufficient for all purposes gf the _ action, 
 unless the opposing party shall set iip a claim in his com- 
 ■plaint or answer, duly verified, of title in himself to the road, 
 or some part thereof, stating the nature of his title and right to 
 the immediate possession and use thereof. [1855, ch. 546, § l.J 
 
 § 100. 'So plank road company shall be deemed to have forfeit- 
 ed any privilege or franchise by reason of not having completed 
 their road the whole distance mentioned or described in their 
 article of association. [Sa/me ch., § 2.] 
 
 § 101. Every instrument in writing, purporting to bean agree- 
 ment between any plank road company and the supervisor or 
 commissioners of highways of any town, in pursuance to section 
 twenty-six of chapter two hundred and ten of the session laws of 
 eighteen hundred and forty-seven, and heretofore filed or record- 
 ed in any town clerk's office, shall be deemed and taken in all 
 courts and places to be as valid and eifectual an agreement as if 
 the same had been made and executed at a regular meeting of 
 such suj^ervisor and commissioner or commissioners of highways. 
 The provisions of this section shall not affect suits now com- 
 menced. [SaTns chi, § 3.] 
 
 § 102. No company organized under the act entlitled " An act 
 for the incoi'poration of companies to construct plank roads, and 
 of companies to construct turnpike roads," passed May seventh, 
 eighteen hundred and forty-seven, and the several acts amending 
 the same, shall be deemed to haVe forfeited any of its corporate 
 powers or franchises by reason of the omission of the inspectors 
 of election for directors in any such company to take the oath 
 prescribed, prior to holding said election. [1855, ch. 546, § 6.] 
 
 § 103. The treasurer of every plank road company and turn- 
 pike company shall, at the end of each fiscal year of said com- 
 pany, make and prepare under oath, a statement of the affairs of 
 said company, in which he shall state the amount received by 
 said company during the year, and from what sources the same 
 was received, stating the amount received from each source sepa- 
 rately; and also the amount expended during the year, and on 
 what^account the expenditures were made, and the items of said ex- 
 
PLAKK EOAD LAW. 
 
 143 
 
 penditures, and shall also state the amount of liabilities of said com- 
 pany, and amount of indebtedness to said company. Which 
 statement "he shall exhibit at all seasonable hours, to any_ stock- 
 holder in said company, on being requested so to do; and in case 
 such treasurer shall refuse to exhibit such account or statement 
 as aforesaid, to any stockholder on request as aforesaid, he shall 
 forfeit and pay to the person making such request the sum of five 
 dollars for each offence, to be recovered in any court having cog- 
 nizance thereof. [Scmie ch., § 8.] 
 
 § 104. Whenever any judgment shall have been recovered by 
 any person in any court of record in this state, against any corpo- 
 ration organized or incorporated under and by virtue of the act en- 
 titled " An Act to provide for the incorporation of companies to 
 construct plank roads and of companies to construct turnpike 
 roads," passed May seventh, one thousand eight hundred and 
 forty seven, on a demand arising upon a contract, and for the 
 payment of which the stockholders of such company are liable 
 in their individual capacity as 'mentioned and declared in \he 
 said act, and an execution on such judgment shall have been 
 duly issued to the proper county against the property of such 
 corporation, and been returned unsatisfied in whole or in part ; 
 then any such creditor or creditors, his or their personal repre- 
 sentatives, may commence an action in the mode now provided 
 by law, in the supreme court in the county in which the office of 
 Buch corporation is held or in which the stockholders reside, on 
 behalf of himself or themselves, and of all other creditors of 
 such corporation, who shall come in and seek relief by and con- 
 tribute to the expense thereof, against all the stockholders and 
 any former stockholders, for the purpose of enforcing against 
 such stockholders their respective individual liabilities under 
 said law to pay the debts of such corporation, whether due at 
 the commencement of such action or to become due thereafter 
 if contracted or incurred previously ; and any other person or 
 party who may have an interest in the event or determination 
 of such action may be made parties defendants at the com- 
 mencement or in any subsequent stage of the action. [18^5, ch 
 390, § 1.] 
 
 § 105. The court in which such action may be pendin-g 
 shall proceed therein as in similar cases, and shall have juris- 
 diction and authority to enforce the payment of all arrears due 
 from ^and owing by any stockholder on the stock subscribed for 
 and owned by him, and shall also ascertain all the debts of such 
 corporation which the stockholders, thereof are individiially 
 liable to pay, and shall assess and apportion the total amount of 
 such indebtedness for which the stockholdei-s are by law liable 
 
t 
 
 144: PLANK EOAD LAW. 
 
 to pay, including the reasonable Costs and disbursements of tbe 
 plaintiff in such action, on and among the respective stockhold- 
 ers or persons liable to pay the same according to their individu- 
 al liability, and shall enforce the payment thereof by each stock- 
 holder by its judgment, and by execution or executions in the 
 name of the plaintiffs in such action, or in the name of the 
 receiver in the action, if one shall have been appointed, against 
 the respective stockholders as in other cases. [1855, cli. 390, § 2.] 
 
 § 106. Every stockholder of such corporation who, at any 
 time before the commencement of such action shall have due 
 or owing to him any demand or claim arising on contract against 
 such corporation, or who may have paid any debt or demand 
 against such corporation either voluntarily or by compulsion, and 
 for which the stockholders of such corporation are or would be 
 personally liable under the provisions of the said act of May sev- 
 en, one thousand eight hundred and forty-seven, shall be deemed 
 a creditor, and shall be entitled to appear In said action and to 
 prove his claim and demand, and to have judgment therefor, or 
 .a credit for the amount upon his individual liability as a stock- 
 holder, to pay the debt of such corporation, to be ascertained 
 :and adjudged in said action; and shall receive payment thereof 
 in the mode or manner that may be directed or ordered by the 
 ■court in the judgment in such action. [Same ch., § 3.] 
 
 § 107. Whenever any such action shall have been com- 
 menced against the stockholders of any corporation as provided in 
 the first section of this act, the court shall possess all the powers 
 and authority in relation, to such action, and the proceedings 
 therein and the parties thereto, as was exercised by the late court 
 of chancery in this State in proceedings against corporations in 
 equity under and by virtue of article second of title four, chap- 
 ter eight, part third of the Revised Statutes, so far as the same 
 may be consistent with this act, and any creditor of such corpo- 
 ration who shall not, on being duly required by the court, and in 
 such manner as the court shall direct, exhibit his claim and be- 
 come party ,to such suit within a reasonable time not less than 
 six months from the first publication of such notice.by order of 
 the court, shall be precluded from all benefit of the judgment 
 which shall be rendered in such suit, and from any distribution 
 of moneys which may be made under such judgment among the 
 creditors of the said corporation. [Same ch., § 4.] 
 
 § 108.^,The court shall cause the moneys so assessed upon and 
 • collected from the stockholders of such corporation for the pur- 
 poses contemplated by this act, by virtue of the judgment in such 
 action, after paying the costs and disblirsements of such action, 
 to be applied to the payment. and extinguishment of the debts 
 
PLANK BOAD LAW. 145 
 
 against such corporation, ■which shall be estahlished and proved 
 in said action to be debts which by law the stockholders of such 
 company are liable individually to pay without preference, ex- 
 cept where such preference exists by law; and in case any debt 
 so established shall not be due, and the person to whom it be- 
 longs, or is payable, declines to receive the same, in such case the 
 court may make such order as to the deposit or investment of 
 such moneys so due to any such creditor, or for Ms use or benefit, 
 and for the payment thereof, when due, as shall be just and equi- 
 table. [1866, cA. 390, §5.] 
 
 § 109. Whenever any planklroad or turnpike road shall be sold 
 upon any execution, a6d shall not be redeemed from such sale, 
 according to law, then it shall and may be lawful for the pur- 
 chaser or purchasers of such road, and they are hereby authoriz- 
 ed to maintain and operate the same, in the same manner and 
 subject to the same privileges and restrictions in all respects as 
 the company owning such road at the time such sale was made. 
 [1867, ch. 482, § 1.] 
 
 § 110. Such purchaser or purchasers, on associating with him 
 or them not less than four persons, may be formed into a corpo- 
 ration for the purpose of owning such plank road or turnpike 
 road, by complying with the following requirements: 
 
 They shall severally subscribe articles of association, in which 
 shall be set forth the name of the company, the number of years 
 the same is to continue, which shall not exceed the unexpired 
 term of the original incorporation of the company whose road 
 was so sold, whether it is a plank road or turnpike road which 
 the company is formed to own and operate; the amount of the 
 capital stock of the company, which shall not exceed the amount 
 of the capital stock of the company owning such road at the 
 time of such sale; the number of shares of which the said stock 
 shall consist; the number of directors, and their names, who 
 shall manage the concerns of the company for the first year, and 
 shall hold their offices until others are elected; the place from 
 and to which said road is constructed, and each town, city and 
 village into or through which said road shall pass, and its length 
 as near as may be. Each subscriber to such articles of associa- 
 tion shall subscribe thereto his name and place of residence, and 
 the number of shares of stock owned by him in said company. 
 The said articles of association may then be filed in the office of 
 the Secretary of State, and thereupon the persons who have so 
 subscribed, and all persons who, from time to time, become stock- 
 holders in such company, shall be a body corporate by the name 
 specified in such articles, and shall possess the same powers and 
 privileges, and be subject to the same provisions as companies 
 organized under the act entitled " An act to provide for the in- 
 10 
 
14)6 PLANK EQAD LAW. 
 
 corporation of companies to construct plank roads, and of com- 
 panies^to construct turnpike roads," passed May seventh, one 
 thousand eight hundred and forty-seven. [Scmfe ch., § 2.]' 
 
 § 111; The provisions of this act shall apply to all such sales, 
 the right of redemption upon, which either has heretofore expired 
 or shall expire after the passage of this act. [Same ch., § 3.] 
 
 CHAPTEK 209. 
 
 AN ACT in reflation to Plank Eoads and Turnpike Eoads. 
 
 Passed April 9, 1859 ; ^three-fifths being present. 
 
 I%6 People of the. State of Nexo York, represented in Senate and 
 AsaemMy, do enact as follows : 
 
 § 1. The directors of any plank road company or turnpike road 
 company, formed under the act passed May seventh, eighteen 
 hundred and forty-seven, entitled' " Ah Act to provide for the 
 incorporation of companies to construct plank roads, and for 
 companies to construct turnpike roads," may, with the written 
 consent of the jiersoiis owning two-thirds of the stock, construct 
 branches to their main line of road, or extend or change the route 
 of their road, or any part thereof, whereby the public interest 
 will be promoted, through any uncultivated or unimproved 
 lands. 
 
 §2. The directors of any such company may purchase, take 
 and hold any real estate necessary for the aforesaid purposes, and 
 by their agents, servants or other persons employed, may enter 
 upon the laindet of any person or persons, which may be neces- 
 sary for said purpose, and may construct their road upon any 
 lands so entered upon, purchased or held, 
 
 § 3. Before entering, taking or using any land for the purpose 
 of this act, the directors of any such company shall cause a sur- 
 vey and map to be made of the lands intended to be taken or 
 entered upon, for any of said purposes, and by whi6h the land, 
 of 6ach owner and oocilpant intended to be taken and used, 
 shall be designated, and which map shall be signed by the sur- 
 veyor or engineer making the same, and by the president of 
 such company, and acknowledged by, them, and be filed in the 
 office of the clei-k.of the county. The directors of any such com- 
 pany, by any of its officers, agents or servants, may enter upon 
 any lands for the purpose of making any examination, and of 
 making survey and map, doing no imnecessary damage. 
 
PLANK EOAD LAW. 147 
 
 § 4. In case the directors of any such company cannot agree 
 with the said owners and occupants of any land intended to be 
 taken and used for the pxirposes of this act, the • directors may 
 apply to the judge of the county court for the appointment of 
 three disinterested personsj not the owners of real estate in any 
 town through, which any land intended to be used for the pur- 
 poses of this act, or in any town adjoining such town, as com- 
 missioners by whom the compensation to be ,paid fpr the dama- 
 ges suffered or to be suffered" by any person or persons, by 
 reason of taking any of said lands for the purposes of this, act, 
 shall be ascertained and determined, and in case of the death,, 
 resignation, refusal, or disabilty to act of any of said commis- 
 sioners, the said judge may appoint others in their place. The 
 commissioners shall give at least ten days' written notice of the 
 time and place to hear the parties interested, to be served per-, , 
 sonally on the parties interested^ or in their absence from their 
 dwellings or places of business, by leaving the same thereat, 
 with some person of suitable age, and , in case of any legal .dip- 
 ability of such owner or owners, to act thereupon, serving notice 
 in like manner, upon his or her guardian, or person appointed to 
 act for him or her, as hereinafter directed, and in case any of 
 said owners shall be married women, insane, infants or idiots, 
 the said jtidge shall appoint some suitable person to attend in 
 their behalf, before the said commissioners, and take care of 
 their interest in the premises. The commissioners may issue 
 subpoenas to compel the attendance of witnesses to testify before 
 them, and they, or any of fihenij.nnay administer the usual oath 
 to such witnesses. They shall deteimine the width of road 
 through said lands, and make a report of all proceedings before 
 them, containing the testimony taken by them, and make an 
 actual survey and description thereof, as laid out bj' them, and 
 the sum awarded to each owner or any other person, duly signed 
 or acknowledged by tl|em,, and return the same to said judge, to 
 be filed on record. 
 
 § 5. Each commissioner is entitled to receive two dollars per 
 day for his fees, to be paid by the conipany. 
 
 § 6. The directors of any plank or turnpike road company, or 
 any party to. the .proceedings of the commissippjsrs, may appeal 
 from any 'award or determination of the eomniissioners, to 
 the said county judge, providing the party appealing shall, 
 within ten days after such award or determination shall be made, 
 give written notice of the appeal to the other party or parties 
 interested in the same ; and the said judge shall exaniine the 
 report of the commissioners, and if their proceedings in the case 
 have been irregular, the said judge may set the same aside and 
 order new proceedings and appointments ; and the said judge 
 
 n 
 
148 Plane boad law,' 
 
 may make such orders in reference to the proceedings of the 
 commissioners, and of notices to be given by the parties as may 
 not be inconsistent with this act, and, as the nature of the case, 
 and the interest of the parties may require. And the said com- 
 missioners shall again examme the case, and the decision then 
 made shall be final. 
 
 § T. Upofa the payment or legal tender of the compensation 
 determined as before provided, the said directors of any plank 
 road compalny, or turnpike road company, shall be entitled to 
 enter upon for the purposes contemplated by this act, all the 
 lands and real estate for which such compensation shall be paid 
 or tendered, as atbresaid, and to hold and use the same for the 
 eaid purjposes, to them and their successors for ever. If any per- 
 son to whom any compiehsation shall be awarded, or who shall 
 be entitled to the same by virtue of said award, cannot be found, 
 or who shall refuse, to receive the sum awarded to him or her, 
 then thfe said payment inay be made by depositing the amount 
 of the said award to the credit of said person, in such bank as 
 may be appointed by said judge. If the person to whom com- 
 pensation is awarded, or who is entitled to receive the same as 
 aforesaid, be under legal disability, as aforesaid, payment may 
 be made to his guatdian or person appointed as aforesaid, by 
 said judge, and if said guardian or person appointed cannot be 
 found, then by deposit iix bank as aforesaid. 
 
 § 8. Th6 difectors of any plank road company or turnpike 
 road company, shall take and hold, for the purpose contemplated 
 in this a,ct, all the lands and real estate which they shall in any 
 way legally enter upbn and take by virtue hereof, to them ana 
 their successors so long as the same shall be used for a road 
 
 § 9. Any person or persons who have heiretofore or may here- 
 after purchase any plank road or any part thereof, exceeding 
 three miles, tmder and by virtue of any mortgage executed by 
 any plank road company incorporated under the general plank 
 road law of this state, ghall become the owner or owners of said 
 road or part thereof thus purchased, and all the rights, privileges 
 and franchises belonging to such plank road company at the 
 time of such purchase, subject to the same restriction^ as now 
 exist by law. 
 
 § 10. All acts and part of acts, so far as they are inconsistent 
 with this act, are hereby repealed. 
 
 § 11. This act shall take eiiect immediately. 
 
TURNPIKE CCpPANIES, 
 
 The following sections from the Eevised Statutes in relation to turnpike compa- 
 niet, are made applicable to plank roads by $} 7 J [47] and 72 of the foregoing law. 
 
 § 7. An election for directors shall thereafter be annually held 
 on the same day of the same month on which the first election 
 was held; and at each election, including the first, the stockhold- 
 ers present, by a plurality of votes, shall elect,- by ballot, three 
 persons, to preside at the next succeeding election. 
 
 § 8. If an annual election shall not be held on the day fixed by 
 law, it shall be held in the same manner, and with the like effect, 
 on some early day, to be appointed by the directors then in of- 
 fice, who shall give and publish the same notice thereof, as is re- 
 quired in respect to the first election; and who, after the day on 
 which such election ought to have been held, shall be incapacitat- 
 ed from doing any act as directors, except such as may be neces- 
 sary to give»effect to the election so to be appointed. 
 
 § 9. The persons presiding at each election shall, immediately 
 after receiving the ballots, openly estimate the votes, and there- 
 upon make and subscribe a certificate of the result. Of the first 
 election, they shall make a return to the directors chosen, at their 
 first meeting thereafter, 
 
 § 11. Five directors shall be a board for the transaction' of bu- 
 siness, and the acts of a majority of the board shall bind the 
 corporation. 
 
 § 12. The directors, at their first meeting after their election, 
 shall elect, by ballot, one of their number as president. 
 
 § 13. The board shall supply every vacancy that may occur in 
 the office of a director, and the person chosen shall hold his of- 
 fice until the next annual election. They shall also supply from 
 the directors, every vacancy that shall occur in the office of presi- 
 dent; and one of the members present shall be chosen by plural- 
 ity of votes, to preside at every meeting of the board, from 
 which the president shall be absent. 
 
 § 14. The president and directors shall have power, and it 
 shall be their duty : 
 
150 TUENPIKE COMPANIES. 
 
 1. To meet from time to time at such place as ttey may deem 
 expedient; 
 
 2. To make such by-laws, rules and regiilations, as in their 
 judgment, the affairs pf th^oi-poration shaM recjuire ; 
 
 3. To appoint such subordinate officers, artists and workmen, 
 as they ehall deem necessary to execute the business of the cor- 
 poration; 
 
 4. To continue to receive subscriptions of shares, until their 
 whole capital stock shall be subscribed, unless it shall have been 
 ascertained that a less sum will be sufficient to fulfill the ends of 
 their incorporation; 
 
 6. To demand at such time and in such proportion as they 
 shall see fit, from the respective stockholders, the sums of money 
 due on their respective shares under pain of the forfeiture of such 
 fiharesj and of all previous payments thereon, to the corporation; 
 
 6. To declare, by a by-law, in what manner, and under what 
 restrictions, the shares pf their capital stock shall be trans- 
 ferable; 
 
 T. To construct complete, and keep in constant repair, the 
 road, with all the necessary buildings and appurtenances for the 
 making of which they shall have been incorporate*; 
 
 8. To keep a fair and just account of all tolls received, and of 
 all moneys disbursed, and deducting costs and charges, to make 
 and declare a dividend of the clear profits 'and inconie of the 
 road, among the stockholders, on the first Tuesday of May and 
 the first Tuesday of November, in every year; 
 
 9. To publish a. notice of each dividend, in one or more of the 
 public newspapers printed nearest to the route of the road, and 
 of the time and place of the payment thereof, and to pay the 
 same accordingly. 
 
 10. To report to the comptroller, within six months after the 
 road shall be conipleted, an account of the expenses of its con- 
 struction, and to exhibit.annually to the CQnjpitroUer, an account 
 of the sums arising from the tolls, of the disbursement and of 
 the dividends actually made within the year. 
 
 BY-LAWS. 
 
 All corporations have the power to malce by-la^, which ai-e coneidered as priv- 
 ate statutes for the gbvemment of the corporate body. Arujd & Amos on Corp., 65. 
 (l^i/d, 69. 15Zaii*.,p!»»..476.,) .., , , ■ 
 
 This power is usually coDfen-ed by express terms in the charter ; when it is not, 
 it is left to implication. 
 
TtTRNPIKE' COMPANIES. 151 
 
 The following ai'e the general rules in relation to by-laws: 
 
 1. If given by the chartier, they must strictly pursue the power give and not ex- 
 ceed it ; , 
 
 2. They must not be contraiy to the constitution or laws of the United States or 
 the State ; 
 
 3. The power to make by-laws, when not declared to the contrary, mast be exer- 
 cised by a majority ; 
 
 4. All by-laws must be reasonable, and this is a question for the court solely. 
 (3Pici,436.) 
 
 5. They are binding on none, but their own members. (19 Johm., lib.) 
 
 6. They may enforce their by -Jaws by pecuniary penalties. (2Xyd,15S. ^n- 
 ffel <& Amos, 30Z.) 
 
 7. To be proved, they must be produced. , (8 Ifewl Samp. R., 35. 1 Mar & GUI, 
 (Mi), 324.) 
 
 § 16. Every such corporation may be dissolved by the legisla- 
 ture, when, by the income arising from the' tolls, it shall have been 
 compensated for all moneys expended in purchasing, making, re- 
 pairing and taking care of its road, and have received in addi- 
 tion thereto, an average annual interest at the rate of ten per 
 cent.; and on such dissolution all the rights and property of such 
 corporation shall vest in the people of this State. 
 
 § 21. A mile stone or post shall be erected and maintained by 
 the corporation on eacli mile of the road, on which shall be fairly 
 and Jegibly marked or inscril^ed the (^istance of sucl> stpne or 
 post from the place of thecommencejnent of tlie road; and \vji,9n 
 such road shall commence at the end of any other road, having 
 mile stones or posts, on which the distance from any city or town 
 is marked, a continuation of that distance shall in like manner 
 be inscribed. 
 
 § 22. A guide post shall a.lso be erected at the intersection of 
 every public road, leading into or from the turnpike, on which 
 shall be inscribed the name of the place to which such intersect- 
 ing road leads, in the direction to which the name on the guide 
 post shall point. 
 
 § 23. No director of the corporation to which it shall belong 
 shall be concerned directly or indirectly in any contract for the 
 making or working of the road, or any part thereof, during the 
 time he shall be a director. 
 
 A contract which is expressly within the prohibition, of a statute, is void. Al- 
 though the statute is only prohibitory in its terms, and does not declare in so many 
 words that all contracts therein forbidden stall be void. So held under the provis- 
 ions of the statute prohibiting directors of plank road companies from being con- 
 cerned in any contract for the making or working of a road, or any part thereof, a 
 contiact between a plaik road company and two of its directors for the construction 
 by the latter of a portion of the road, was absolutely void. Barton v. Fort Jackson, 
 &a. (J 7 ifarJ., 397.) 
 
 Neither the directors, nor stockholders, of a plank road company can waive the 
 provisions of the statute forbidding the directors from participating in the benefits 
 of a contract for building the road. {lb.) ^ 
 
152 TffENPIKE COMPANIES. 
 
 § 24. No contractor for the making of such road, or any part 
 thereof, shall make a new contract for the performance of his 
 work, or any part thereof, other than by hiring hands, teams, 
 carriages or utensils to be superintended and paid by himself, 
 unless such new contract and its terms be laid before the board 
 of directors, and be approved by them. 
 
 § 30. "Whenever an appraisement shall be made of the lands 
 of any old road, used as such by prescription, on which a turn- 
 pike shall be laid out, the appraisers shall set down the value of 
 the soil and of the improvements, and the monies paid by any 
 town for making such improvements, in separate sums ; and the 
 Bum for which the soil is appraised, shall be paid to the owners 
 thereof, and the value of the improvements, and the sums paid 
 therefor, by any town, shall be paid to the commissioners of 
 highways of the town in which such old road shaU be situate. 
 
 § 35. Each toll gatherer may detain and prevent from passing 
 through his gate, the persons riding, leading or driving animals 
 or carriages subject to toll, until they shall have paid respect- 
 ively the tolls authorized by law. 
 
 § 36. No tolls shall be collected at any gate of any company 
 incorporated under this title, in either of the following cases : 
 
 1. From any person passing to or from public worship, or a 
 funeral ; to or from a grist mill for the grinding of grain for 
 family use ; or to or from a blacksmith's shop to which he 
 usually resorts for work there to be done ; 
 
 2. From any person going for a physician or midwife, or re- 
 turning from such errand ; going to or returning from court 
 when legally summoned as a juror or witness ; going to or re- 
 turning from a militia training, which, by law, he is required to 
 attend •,>^ or going to a town meeting or election at which he is 
 entitled to vote, for the purpose of giving such vote^ and return- 
 ing therefrom ; 
 
 3. From any person residing within one mile of the gate at 
 which toll is demanded, unless he shall be employed in the car- 
 riage or transportation of the property of other persons not so 
 residing ; 
 
 i. From troops in the service of this State, or of the United 
 States. 
 
 Where a turnpike act exempted persons going to and from a blacksmith's shop 
 from paying tolls, held, that to be entitled to this oiemption, the pierson must go to 
 
 
TDBNPIKE COMPANIES. 15S 
 
 the blacksmith's shop, for the express purpose of having work done in the shop ; 
 going there yith articles to pay for -work done at a former time bj the blacksmith, 
 does not entitle to the exemption. SiraUon vi. Berrick, (9 John., 35R ) 
 
 Also, that a person ■who had carried a load of goods to market, and, on his return 
 stopped at his blacksmith to get work done, was not entitled to pass toll free, on his 
 return home ; the going to the blacksmith's must be the principal and not the in- 
 cidental business, to bring it within the exception. Spratlon vs. Mubbel, (9 Jehn., 
 357.) 
 
 Where a turnpike act exempts from the payment of tolls, persons going to and 
 returning from mill with floiur for the family use, the exemption does not apply to 
 a wagon going through the gate loaded with articles and some grain or flour. Bates 
 vs. Suthmand, (15 John., SlU.) 
 
 § 41. It shall be the dttty of each inspector, to whom a com- 
 plaint in writing shall be made, that a turnpike road, or a part 
 of such road in his county is out of repair, without delay to 
 view and examine the road complained of; and if he shall find 
 such complaint to be just, he shall give notice in writing of the 
 defect, to the toll gatherer, or person attending the gate nearest 
 to each place out of repair, and in such notice may, in his dis- 
 cretion, order such gate to be thrown open ; but no inspector or 
 inspectors shall order such gate to be opened unless a notice in 
 writing shall have been served on the gate keeper nearest to the 
 place out of repair, particularly describing such place, at least 
 three days previous to making such order. 
 
 § 42. Immediately after the service of such notice, each gate 
 ordered to be thrown open, shall be opened ; nor shall it be- 
 again shut nor any toll collected thereat, until one of the inspect- 
 ors for the county shall have granted a certificate, that the toad 
 is in sufficient repair, an^ that such gate ought to be closed, 
 
 § 44. Every keeper of a gate ordered to be thrown open, who 
 shall not immediately obey such order, or whl) shall not keep* 
 open such gate, until a certificate permitting it to be closed shall 
 be granted, or who, during the time such gate ought to be open, 
 shall hinder or delay any person in passing, or take or demand 
 any tolls from any person passing, shall, for each offence, for- 
 feit the sum of ten dollars to the party aggrieved. 
 
 § 45. It shall be the duty of each inspector, who, upon due 
 examination, shall have discovered a turnpike road, within his 
 county, to be out of repair, or that any gatei thereon is placed in 
 a situation contrary to law, to give notice in writing of such 
 defect or default, to one or more of the directors of the company 
 to which such road shall belong. 
 
 § 46. In such notice, he shall require the defective road to be 
 repaired, or the gate improperly placed to be removed, wiihin a 
 
15i TUENPIKE OOMPAOTES. 
 
 certain time to be fixed in the notice ; and, in his discretion, may 
 order that in the meantime, the gates on such road, or such of 
 them as he shall specify, be thrown open. 
 
 § 47. If the reqiiisitions of such notice be not ob8;|^ed, it shall 
 be the duty of such inspector, to make immediate complaint to 
 the attorney general, or the district attorney for the county, 
 whose duty it shall be to prosecute the delincjuent company, in 
 the name of the people of this State. Such corporation, if con- 
 victed of having suffered their road to be out. of re]|iair, _ or 
 having placed one or more of the gates thereon in a situation 
 contrary to law, shall be fined in a sum not exceeding two hun- 
 dred dollars. 
 
 § 48. To ea-ch inspector of turnpikes, who shall view a turn- 
 pike road upon complaint made to him, shall be alldwed the sum 
 of two dollars for each day spent by him in the performance of 
 such duty. If he shall adjudge the road viewed to be out of re- 
 pair, such fees shall, be paid by the company to which the road 
 shall belong ; otherwise, they shall be paid by the party making 
 the complaint, ' . 
 
 § 49. Such fees, when paysible by the company, shall, be paid 
 by the toll gatherer nearest the road adjudged out of repair, on 
 demand and out of the tolls received or to be received by him; 
 and may be recovered, with costs, of such toll gatherer, if he 
 shall neglect or refase to make such payment. 
 
 § 50. Every toll gatherer who, at anj turnpike gate, shall un- 
 reasonably hinder or delay any traveler or passenger liable to 
 the payment of toll, or shall demand and receive froin any per- 
 son more toll than' by law he is authorized to collect, shall, for 
 * each offence, forfeit the sum of five dollars to the person ag- 
 grieved. 
 
 In the absence of a toll gatherer, his wife will be deemed to he his agent, for the 
 purpose ef demanding and receiving toll, and as such she ia authorized to determine 
 rhc rate or amouBt ot toll to be paid by travelers. Mareelis v. Seaman, (21Sart>., 
 319.) 
 
 In demanding and receiving toU, she is acting wjthin, the scope of her employ- 
 ment, and her acts will bind her husband. If slie demands andTeceives too much, 
 he husband is liable for the penalty impoapd. by statute. lb. • ,■ . 
 
 The section of the statute giving a .penalty of five dollars against toll gatherers 
 on turnpike for demanding and receiving more toll thaji is legally collectable, ap- 
 plies to toU-gatherers on ^Zani roirf. lb. ' " 
 
 A covered sleigh, capable of carrj'ing six passengers inside, hating seats for pSs- 
 4sengers, and used daily for carrying passengers, over the same i'oute,;on a p«lank 
 I'oad. and drawn by two animals, is to be deemed " a vehicle used chiefly for carry- 
 ing passengers," within tjie meaning of th^ act in relation to> plank roads, passed 
 April 15i 1853; and is liable to the payment of a toll of three cents per rnile, rot- 
 withstariding the fact tliat the mail is also carried in the same vehicle. lb. See 
 ■ thinner v. Andenon,(l2 Barb., G48.) GonMingv. Ming, (2 Jofm., 410. (16, ib. 73.) 
 
TUENPIKK COMPANIES. 1S5 
 
 A toll-gatherei', at a gate upon a plank road, has a right to demand toll in ad- 
 vance, for the distance which a person is to travel, after , passing suoh gate, before 
 reaching the next gate. Kenyan v. 8edy, {liBarb, 631.) 
 
 The right to exact toll from gate to gate, and for the -whole distance where a road 
 is partly finished and but one gate erected, is well fettled. Qurlen v.lBloan, decided 
 at general term in Ith district, September, 1851 . MaOory v._ Austin, (1 Barb.,%i6 ) Stew- 
 ard V. Rich, (1 Gaines, 182.) The People v, Mngslon & Middletown Turnpike Compa- 
 ny, C23 Wevd., 193.) 
 
 § 51. Whenever a judgment is obtained against a toll gatherer 
 for a penalty, or for damages, for acts done, or omitted to be 
 done, by him in his capacity, of toll gatherer, and goods and 
 chattels of the defendant to satisfy such judgment cannot be 
 found, it shall be satisfied by the corporation whose officer he 
 shall be; and if, on demand, payment be refused by the corpora^ 
 tion, the amount thereof may be recovered, with costs, of such 
 corporation. 
 
 § 52. The president and directors of every turnpike corpora- 
 tion created, or to be created, may, from time to time, commute 
 with any person, whose plafte of abode shall adjoin, or be near 
 to the road, for the toll payable at the nearest gate on each side 
 of such place of abode; but no such commutation shall be for 
 longer time than one year, and it may be, renewed at the end of 
 each period for which it shall be made. 
 
 § 54. Every person who shall, 
 
 1. "Wilfully break, cut down, deface or injure any mile stoiie 
 or post, on any turnpike road ; or, 
 
 (10 John., 389.) 
 
 2. Wilfully break or throw down any gate or turnpike on such 
 road; or, 
 
 3. Dig up or spoil any part of such road, or any thing there- 
 unto belonging; or, . ¥ 
 
 4. Forcibly or fraudulently pass any gate thereon, without 
 having paid the legal toll; 
 
 For each offence, shall forfeit to the corporation injured, the 
 sum of twenty-five dolors in addition to the damages resulting 
 from his wrongfiil act. 
 
 The statute imposing a penalty of twenty-five dollars upon any person who shall 
 •'forcibly ov fravaulemtly" pass any gate on any turnpike or plank road without hav- 
 ing paid the legal toll, is penal, imposing a penalty or forfeiture for the benefit and 
 protection of a private corporation, and in derogation of common right; and js not 
 to be extended by construction to cases within the tuischief intended to be remedied, 
 but which are not within the words of the statute. Bfidgaaier.dce., v. Bobbins, (22 
 Barb., 662.) 
 
156 TTTENPIKE COMPANIES. 
 
 # 
 The terms "forcibly and fraudulently," in the statute, must be held to have beem 
 used in their ordinary sense, and to> mean actual force, or actual fraud, as distin- 
 guished from constructive force or fraud. lb. 
 
 Accordingly, when the defendant, finding a gate upon a plank road open, passed 
 through the same with his team, and on being reguested to pay toll, declined, say- 
 ing that he ought not to pay toU, as the road was bad, but ■vrould do so, if B. said he 
 must; and on another occasion he again passed through the gale, on finding it open, 
 ■without paying toll. Although informed that B. said he must pay toll, no effort 
 being made, by vord or deed, on either occasion to stop him; itwai held that this 
 did not amount to a forcible or fraudulent passing of the gate, so as ta subject the 
 defendant to the penalty. lb. 
 
 In the case of The Eammandsport and Bath Plank Road Company v. Bondage, 
 (13 How., 448,) the court say that " the evidence shows that the defendant passed 
 the gate without the payment of toll ; but there is an entire absence of evidence to 
 show, or tending to show, that it was done by either force or fraud. It shows that 
 the defendant refused to pay the toll, which was demanded by the gate-keeper. 
 The gate was open, when the defendant drove up, and he passed his team and wag- 
 on two-thirds through it, and stopped when he and the keeper had a controversy 
 about the toll, on the ground that tiie road was out of repair, the latter insisting on 
 the payment of tolL The defendant had previously, on the same day, passed 
 through the road without paying toll, expressly refusing to pay on the same ground. 
 On neither occasion was there any artifice or imposition practiced by the defendant, 
 and there was no force employed, as there was no resistance offered. The court 
 decided that it was not a case oi force ot fraud. 
 
 The penalty of twenty-five dollars imposed by statute upon any person who shall 
 " forcibly or fraudulently pass any gate on any turnpike or plank road, without 
 having paid the legal toll, is not incun-ed by an individual, who merely passes 
 through a gate with his team, and offers a bank bill in payment, and refuses to pass 
 in any other way. Monterey, &e., v. Faulkner, (31 Barb., 212.) 
 
 To constitute a forcible passage of a gate, the passage must be effected by actual 
 force; or by at least offering some violence, to overcome, remove or prevent the ob- 
 stacle created by the gate. 
 
 To make a passage fraudulent, some artifice must be employed, or some decep- 
 tion practiced on the toll gatherer, lb. 
 
 In the case of The Pretideni, dkc, of the Colwnbia Turnpike v, Woodworth, (2 Oainei 
 97,) the defendant simply rode thi'ough a gate without paying toll, without any 
 force or violence, the court said, " the act had in contemplation only forcible and 
 violent passings; the plaintiff may sue for their toll, bnt ttus certainly ie not a case 
 within the pen^ty of^ the section rdied." 
 
 In that caie, the provision in the chaiier of the company was similar to this 
 section. 
 
 J Every person who, to avoid the payment of the legal 
 toUTsftllj with his team, carriage or horse, turn oiit of a tm-n- 
 pilie road, or pass any gate thereon, on ground adjacent thereto, 
 and again enter on puch road, shall for each offence forfeit the 
 sum of five dollars t#,the corporation injured. 
 
 Where the defendant, after traveling on a plank road with his team, about one 
 hundred rods, did, to avoid the payment of his legal toll upon said road, with his 
 team turn out of such road at a point one mile and twenty rods from the toll-gate 
 thereon, and traveled upon another road to a point on the plank road, one hundred 
 and eighty rods beyond said toll-gate, at which point he again entered upon the 
 plank road, and traveled thereon four miles. HtU, that the defendant had incurred 
 the penalty of five dollars under this section, as applied to plank roads, by the act 
 of 1850. (Lawiof 1850, ch. 71, making this section applieabfe to plank roads.) 3%* 
 BansvUle & Wayiand Plank B. vs. Hill, (27 Barb., 50a ) 
 
TtJKNPIKB COMPANIES. 
 
 157 
 
 In the case of Carrier vt. The Schoharie Turnpike Road Oo., (18 John., 56,) it 
 •was decided that where a person turned oflf the turnpike road and. traveled in another 
 public road six or seven miles, and traveled. to avoid the gate two miles further than 
 the distance by the turnpike road, was passing tiie gate on groundl a^acent thereto. 
 
 A turnpike company incorporated with the exclusive privilege of erecting toll- 
 gates anci receiving toll, had duly opened and established the road, with gates, Ac, 
 and certain peraons, with a view' to avoid the payment oftoU, opened a by-road, near 
 the turnpike, and kept it open at their own expense, for the use of the public, by 
 which travelers were enabled to avoid passing through the gate, and paying toll to 
 the plaintiffs ; the court granted a perpetual injunction to prevent the defendants 
 from using, or permitting others to use, such road, and ordered it to be shut up. 
 Vroton Turnpike Company vt. Ryder, (1 John, eh. 611) See o/jo, Nevibvrgh T. Go.vi. 
 MiUer, (5 IS., 101 to 110.) 
 
 Where, after a plank road company had completed their road and put the same 
 in use, and had erected a toll-gate thereon, opposite the defendant's land, the defen- 
 dant opened and woi'ked a road on his own Wd, parallel to and adjoining the plank 
 road, so that the same was passable for travelers and was used by them to avoid 
 the toll-gate, to the prejudice of, and loss of toll to the company ; the supreme 
 court in the seventh disti-ict held, that the court had power to resb'ain the defend- 
 ant by perpetual injunction, from keeping his said road open, or permitting it to 
 be kept-open, so as to be used by the public for travel ; and to order the same 
 to be so closed as to hinder persons traveling upoa the plank road from using 
 it as an open road. The Auburn dc Oato Plank Road Co. vt. Douglast, (13 Barb., 
 553.) But the court of appeals reversed the decision in the 5th Selden, 444, and 
 lay down the following doctrines .' 
 
 liegislative acts granting franchises to corporations, are to be construed strictly, 
 according to their terms ; and the grantees in such acts take nothing by implica- 
 tion, either as against the power making the grant, or against other corporations or 
 individuals. 
 
 The acts authorizing the formation of plank road companies, give to such com- 
 panies no interest or easement in or upon lands adjoining their road, and no right 
 to restrict the use which the proprietor of such lands may make of his own premi- 
 ses, i 
 
 The owner «f land may put it to any use which does not infringe any fixed degal 
 right of another ; loss or damage to one person arising from the use made by another 
 of his own property, being damnum absque iiywiai unless the for nier has previously 
 acquired some legal right to restrict the use which the latter shall make of such 
 property. Where no Buch right of restriction exists, it is immaterial what may be 
 the motives of the proprietor for dealing with his own property in a particular way. 
 See the cotes cited on this mtgect in this case, (5 Seld., 444.) 
 
APPENDIX. 
 
 (Nq. 1.) 
 Sec. 1. Subdivision 3. 
 
 Order Amendmg Description of Road. 
 
 "Whereas, a road, used as a highway in the town of Portland, 
 m the county of Chautauque, lea^mgfrom ths Erie road letwem, 
 the dwellmg houses of Elijah Fay and John R. Coney, to the 
 old Erie road, on the east tine of EUsha Eay's farm, was laid 
 out by the commissioners of highways of the said town, on the 
 10th day of June, 1835, but not sufficiently described : 
 
 ISTow therefore, the undersigned, commissioners of highways 
 of the said town, [if all the commissioners meet, hut do not all 
 sign the ordm; say, all the commissioners being present, or if all 
 do not meet, say, all the commissioners having been notified to 
 meet at this time and place for the purpose,] having met at the 
 dwelling Souse of John Adams, in the said town, for the pur- 
 pose of causing said road to be ascertained, described and 
 entered of record in the town' clerk's office, and having caused a 
 survey of the saidroadtobemade, do order that the said road be 
 and the same is hereby ascertained and described according to the 
 said survey, as follows: beginning at [here insert the description ac- 
 cording to the survey.'] {If only one line is surveyed, add, and 
 that the line of said survey shall constitute the center or, the 
 south line, as the case may be.) of said road, and that the said 
 road be of the width of rods. * 
 
 A.B.,| 
 
 E. F.. V Commissioners. 
 C.D.,j 
 Portland, July 1, 1859. 
 
 ijas ■ The forms are prepared for three commissionerB. Where there is but one 
 oommisaioneri the form can be Taried to conform to the fact. 
 
APPENDIX. 159 
 
 (¥0. 2.) 
 
 SEa 1. SiiBDrnsioN 3. 
 
 Order ascertammg cmd describing road tised 20 years, iut not 
 
 recorded. 
 
 Whereas a road in the town of Portland and cirnniy of Chau- 
 tauque, leading from the town line road, near the dwelling house 
 of Ahira Mill, h/ tlie, north Um of the fam}, pf, Lloyd J^urr, to 
 the old ilrie road, east of the daieUmg house of Sorace Adams, 
 has been used as a highway for twenty years, but not recorded :• 
 
 'Eow therefore, [the rest like form No. 1.] 
 
 (No. 3.) 
 
 Sec. 1. Subdivision 5. 
 
 Order of dmidmg Town into Boad DisU-icts. 
 
 The nndersigqed, commissioners of highways of the town of 
 Arkwright, in the county of Chautauque, [here insert the attend- 
 ance of, or notice to, all the commissioners, as in form No. 1,] do 
 hereby order that the said town be, and the same is hereby divi- 
 ded into thirteenvo&d districts, in the following manner, viz : 
 
 District No. 1, shall comprise all the highway commencing at 
 {here ensert the description,) and all the inhabitants residing in 
 said district, and all those residing on said highway above men- 
 tioned, liable to work on the highways, are hereby assigned to 
 the said District No. 1. (If any inhabitants not residing in 
 said district, or on said highway, are assigned to the district, 
 add,) and the following inhabitants residing out of said district, 
 (or not residing on said highway,) to wit : A. B. and 0. D., are 
 hereby assigned to the eaid district No. 1. 
 
 District No. 2, shall comprise, &e., [till the thirteen districts 
 are described and the inhabitants properly assigned to the 
 several districts.] 
 
 A.B.,| 
 
 C. D., y Commissioners. 
 E.F.,f 
 Dated, February 15j 1868. ..:; 
 
ICO 
 
 
 APPENDIX. 
 
 
 (No. 4.) 
 
 
 Sec. 3. 
 
 Commissioners' Annual Account. 
 
 The undersigned, commisBiOTfgfs of highways of the town of 
 Scipio, in the county; of Cayuga, render to the board of town 
 auditors of the said town, the Ibllowing account, for the year 
 ending the twenty-eighth day 6|' February, 1858, viz : 
 
 1. The highway labor assessed in-sai^ toyn for said year, was 
 sixteen hundred and thirty-nine days,' and the highway labor 
 performed in said town during the said year, was fourteen hun- 
 dred and sixty-seven days. 
 
 2. The said commissioners have received during said year, for 
 fines, under the statutes relative to highway, the sum of $ 
 
 to wit : 
 
 Date. I From whom received. | Amount. 
 
 And the said commissioners have received during said year, 
 for commutations, under the statutes relative to highways, the 
 sum of I to wit : 
 
 Date. I From whom received. | Amount. 
 
 And the said commissioners have received during said year, 
 of other moneys, under the statutes relative to highways, the 
 sum of $ to wit : 
 
 Date. I From whom received. | On what account. | Amount. 
 
 3. The improvements which have been made on the roads and 
 bridges in said town during said year, are as foUows: {Mere spe- 
 cify the vrnprovements^ And the roads and bridges in said town 
 are \here gvoe the state of them, and specify whether they are in 
 qood r&pair, or otherwise.) 
 
 i. The improvements necessary to be made on the roads and 
 bridges in said town, together with the probable expense thereof, 
 beyond what the labor to be assessed this year will accoiriplish, 
 are as follows, viz: 
 
 The middle bridge across creek needs a new abutment 
 
 and new plank, the probable expense of which will be $85 06, to 
 wit: for the abutment |40 00, and for the plank, 2,260 feet, at 
 $20 00 per M., |45 00. [State the other items with particular- 
 ity-] 
 
 , , Conmiissioners. 
 Scipico,Oct.20,1858. 
 
AtPBNDIX. 161 
 
 (No. 5.) 
 
 Seo. 4. 
 
 Statement amd Estimate for the Svp&iyisor. 
 
 To the Supervisor of the town of Manlius, in the county of 
 Onondaga: , ' 
 
 The commissioners of highways of said town report that the 
 following improvements on the roads and bridges of said town, 
 beyond what the labor assessed will accomplish, are necessary to 
 be made, and that the probable expense thereof is as follows, 
 viz: (as vn the Mh clause of the annual account as near as m,a/y he.) 
 
 (No. 6.) 
 
 Sec. 2. Of the Act of 1832. 
 
 Notice to he given hy Commdssioners. 
 
 Notice is hereby given to the electors of the town of Franklin- 
 ville, in the county of Cattaraugus, that the commissioners of 
 highways of said town are of opinion, that the sum of two hun- 
 dred and fifty dollars, as now allowed by law, will be insufficient 
 to pay the expenses actually necessary for the improvement of 
 roads and bridges in said town, and to pay the balance of % 
 now due for such improvement, and that the additional sum of $ 
 is necessary to make a bridge across the creek, near the 
 
 bouse of in said town, (or to repair the bridge, 
 
 &c., or to improve the road at, &c.) And that we, the under- 
 signed, commissioners of said town, shall, at the next annual 
 town meeting of said town, in open town meeting, apply for a 
 vote authorizing the said sum of $ to be raised tor the'pur- 
 
 pose aforesaid. 
 
 A. B., ) 
 
 Franklinville, 1859. 0. D.', \ Commissioners. 
 
 E. F., j 
 
 (No. 7.) 
 
 Seo. 9. 
 
 New Assessment by an Overseer, or '■ thirds. 
 
 Whereas, the quantity of labor assessed on the inhabitants of' 
 road district No. in the town of Eidgeway, in the 
 
 11 
 
1G3 
 
 APPENDIX. 
 
 county of Orleans, for the year 1859, is deemed insufficient by 
 tlie subscriber, the overseer of highways of said district, to keep 
 the roads in said district in repair. 
 
 I have therefore made another assessment on the actual resid- 
 ents in said road district in the same proportion, as near as may 
 be, and not exceeding one-third of the number of days assessed 
 in the same year, by the commissioners of highways of the said 
 town of Kidgeway^ on the inhabitants of said district, which "as- 
 sessment is as follows: 
 
 T. S. Four days, 
 
 M. S. Three days, 
 
 L. M. One day. 
 
 Witness my hand at Kidgeway, this day of _ 1839. 
 
 John JoNes, Overseer of District No. 
 
 A. 0. 
 G.H. 
 
 One day. 
 Ten days, 
 
 O.P. 
 
 Eight days, 
 
 R. S. 
 
 Ten days. 
 
 (No. 8.) 
 Seo. 13. 
 
 Assessment iy Overseer for Scraper or Plow. 
 
 "Whereas, the commissioners of highways of the town of Elli- 
 cott, in the county of Chautauque, on the 10th day of April, 
 1859, by a writing under their hands, directed and empowered me, 
 Henry Baker, overseer of highways of road district No. 6, in 
 said town, to procure a good and sufficient iron, [or sted^ shod, 
 scraper and a plow, [or either separately^ for the use of my said 
 road district, to be paid for by the moneys arising from commuta- 
 tions and fines within such district; and whereas, such moneys 
 are insufficient for the purpose, by the amount of $8 50 : 
 
 Now, therefore, I, the said overseer, according to the form of 
 the statute in such case made and provided, do hereby assess the 
 deficiency of eight dollars and fifty cents aforesaid, uj^on the in- 
 habitants of the said district, in the proportion they are respec- 
 tively assessed on the assessment roll of said town; Which said 
 assessment is as follows, viz: 
 
 Names of Inhabitants. 
 
 Town 
 
 Assessment. 
 
 Overseer's 
 
 Assessment. 
 
 Abner liazeltine, 
 
 Horace Allen, 
 
 $11 90 
 17 90 
 
 $1 19 
 1 79 
 
 Dated April 15, 1859. 
 
 A. B., Overseer of District, No. 6. 
 
APPENDIX. 16& 
 
 (No. 9.) 
 
 Sec. 15. 
 
 . Appointment of Overseer ih case of Vaoanoy. 
 
 Town of Nunda, ) 
 Allegany Co., \^^- 
 
 Whereas, a vacancy has occiin-ed in the office of 
 overseer of highways for road district No. of said town, by 
 reason of the removal, (or, refusal to serve; or, death as the case 
 may he,) of John Smith, elected to said office; 
 
 TTow therefore, I, the undersigned, the commissioner of high- 
 ways of said town, (or, we, c&c, the commissioners of, and <^c ; 
 or, we, c&c, two of the commissioners of, (&o., all of the commis- 
 sioners of highways of said town, having been duly notified to 
 attend and deliberate on the subject embraced in this warrant,) 
 do hereby appoint Joshna Thompson, overseer of highways of 
 and for the said road district number in said town, to fill the 
 said vacancy. 
 
 ! Commissioners. 
 Uated, June 1,1859. 
 
 (ISTo. 9.) 
 
 Sec. 18. 
 
 Complaints to Commissioners against an Overseer. 
 
 To the commissioners of highways of the town of Lisle, in the 
 
 county of Broome. 
 
 The complaint of A. B., a resident of the town of Lisle, afore- 
 said, respectfully sheweth, that William Smith, the overseer of 
 highways for road district, No. in said town, has neglected 
 
 and refused to warn Thojnas Williams and James SmitTi, to 
 work on the highways in said district, after having been required 
 to do so by the commissioners of highways of said town, or of 
 one of them ; [or, has neglected to collect the sum of one dollar 
 imposed as a fine upon . for neglect to appear and work on the 
 highways in said district.) And the said A. 33., hereby requires 
 the commissioners of highways aforesaid, to prosecute the said 
 "William Smith, for said ofience. A. B. 
 
 Dated, 1859. 
 
164 APPEHDIX. 
 
 (No. 10.) 
 
 Sec. 18. 
 
 Security for Proseeutmg Overseer. 
 
 Whereas, Joseph Wait has made complaint to the commission- 
 ers of highways of the town of ElUcott, that Henry Baker, over- 
 seer of highways of road district No. 5, in said town, has refused 
 and neglected \here insert the matter co mpl amed of, as in the 
 complami;'] Kow, therefore, vfQ, Joseph^^'W'ait and WUUam S. 
 Tew, of the town of in the connty of _ do 
 
 hereby covenant, promise and agree, with the said commission- 
 ers of highways; that we will, well and truly indemnify and 
 save them harmless against the costs which may be incurred in 
 prosecuting for the penalty annexed to such refusal or neglect. 
 Sealed with our seals, and dated the 20th day of June, 1859. 
 
 A. B., [L. s.] 
 0. D., [L. s.] 
 
 (No. 13.) 
 
 Sec. 26. 
 
 Overseers' List of Persons liable to do Highway Labor. 
 
 I, John Doe, overseer of highways for road district No. 
 of the own of Brutus, in the county of Cayuga, do -certify, that 
 the following is a true and correct list of all of the inhabitants 
 who are liable to work on highways, in said district No. 
 in said town, viz : 
 
 John Smith, 
 George Johnson, 
 
 Dated, March 10th, 1859. John Doe, Overseer. 
 
 Bichard Eoe, 
 Thomas Jones. 
 
 (No. 13.) 
 
 Sec. 27. 
 Com^missioners^ List and Statement of Hfon-resident Lands. 
 
 A list of the contents of all lots, pieces or parcels of land, 
 within the town of in the county of owned- by non- 
 
 residents therein : 
 
APPENDIX. 
 
 165 
 
 Owners' 
 
 Names. 
 
 Description 
 of Land. 
 
 Yalue according to 
 last assessment roll 
 
 No.of 
 days. 
 
 Eoad 
 district 
 
 Jeremiah 
 Newcomb. 
 
 E.Pt.L.14,T, 
 5,Eangel2. 
 
 $1,250 60 
 
 7 
 
 5 
 
 Dated, 
 
 1859. 
 
 
 A. 
 
 B., 
 
 
 C. 
 
 D., 
 
 
 E. 
 
 F. 
 
 (No. 
 
 14.) 
 
 
 Aeticle 2. 
 
 Sec. 29. 
 
 Ooffimissioners of 
 Highwcvys. 
 
 Commissioners Estmnate and Assessment of SRgTiway Lahor. 
 
 The undersigned, commissioners of highways of the town of 
 in the county of [here insert the attendance of, or 
 
 notice to, all the commissioners, as in No. 1,] having met at 
 in said town, to ascertain, estimate and assess the highway labor 
 to be performed in the said town the ensuing year,Tiaye ascer- 
 tained, estimated, and assessed the same as follows, that is to say: 
 
 1. The whole number of days' wort assessed for the year is 
 twelve hundred, being at least three times the number of taxable 
 inhabitants of the said town. 
 
 2. Every male inhabitant above the age of twenty-one years, 
 (excepting ministers of the gospel and priests of every denomi- 
 nation, paupers, idiots and lunatics,) being foii/r hundred and 
 
 " % three, is assessed one day, [or two days, or one day and a 
 alf, <&c.) 
 
 3. The residue of such work, being seven hundred and forty 
 seven days, is assessed as follows, viz : 
 
 Names. | No. of days. | Names. | No. of days. 
 
 a;b. 6. 1 U. D. 1 5i 
 
 The lands in said town owned by non-residents, are assessed as 
 follows, viz : 
 
 Names. 
 
 Description. 
 
 -Value. 
 
 No. of days. 
 
 A.B. 
 
 N.Pt.L.4:, T. 3, 
 Eange 7. 
 
 $1,500 00 
 
 6 
 
 , April 1, 1859. 
 
 G. K, 
 
 L. M., j MighifiOAjs. 
 
 r IT I Commissioners of 
 
166 APPENDIX. 
 
 ]^OT-Bi. — It would probably be well for the commissioners to 
 make out a, general assessment for the whole town in the above 
 form, and file it in the town clerk's office, although it is not abso- 
 lutely necessary for them to ,dp so. The next form (No. 15,) is 
 to bd used for each road district, and copies of the same, sub- 
 scribed by the commissioners, are to be delivered to the over- 
 seers of highways, in pursuance of § 37. 
 
 X'^o. 15.) 
 
 SEa 29. 
 
 Commissioners Estimate and Assessment of Highway Labor for 
 
 a District. 
 
 Town of j ' 
 
 The undersigned, commissioners of high- 
 ways of the town of in the county of having 
 Diet at in said town, to ascertain, estimate and assess 
 the highway labor to be performed in the said town the ensuing 
 year, {if there are three commissioners and all are present, and 
 two only concur, add : all of the commissioners of highways of 
 said town having met at the said place and deliberated on the 
 making of such assessment;) or, if only two commissioners meet, 
 say : all of the commissioners of highways of said town, having 
 been duly notified to attend the said meeting for the purpose of 
 making such assessment,) have made out the estimate and assess- 
 ment for road district number in said town, as follows : 
 
 1. The inhabitants of said town assigned to said road district, 
 are a,ssessed as follows, to wit : 
 
 Names. | Ko. of days. ] Names. | No. 
 
 of days. 
 
 A. B. 1 6 CD. 1 
 
 5i 
 
 2. The lands owned by non-residents of said town, 
 ate in said district, are assessed as follows, to wit : 
 
 and situ- 
 
 Names. Description. | Value. | No. 
 
 of days. 
 
 E. F. 1 Lot No. &c. 1 $1000 00. 
 
 4 
 
 • 
 
 G. H. 
 
 
 I.K 
 
 , April 1, 1859. 
 
 L. M. 
 
 'Commissioners of 
 Highways. 
 
APPENDIX. 167 
 
 (No. 16.) 
 
 Seo. 38. 
 
 Overseers Assessment of Persons left out of List, and of New 
 
 InTiaMtants. 
 
 The following named persons having been left out of the 
 amended list of persons assessed to work on the highways in 
 road district No. in the town of in the coimty of 
 
 [or homing iecome inhaJbitants of road district No. in tJie town 
 of in the county of since the list of assessments of 
 
 highway labor for said district was made^ Now I, , 
 
 overseer of highways of said district, according to the form of 
 the statute in such case made and provided, do hereby assess and 
 rate the said persons in proportion to their real and personal 
 estate, to work on the highways, as others are rated by the com- 
 missioners on such list which said assessment is as fdllows, viz: 
 
 A. B., four days. 
 0. D., three days. 
 
 , June 10, 1859. E. F., Overseer. 
 
 (No. 17.) 
 
 Sec. 39. 
 
 Appeal to Commissioners from Assessment of Overseers. 
 
 To the commissioners of highways of the town of Chazy, in the 
 county of Cliflton: 
 
 » 
 
 The undersigned having been assessed by the overseer of road 
 district No. in said town, days' labor on the highway, 
 
 on the ground that he is a new inhabitant of said districs, [or, 
 that his name had been oniitted by the commissioners in said 
 town,) and conceiving himself aggrieved by said assessment, doth 
 hereby appeal from said assessment so made by said overseer to 
 the commissioner of highways of said town. 
 
 Dated, Ohazy, June 1859. , A. E. 
 
168 APPENDIX. 
 
 (No. 18.) 
 Sec. 39^. 
 
 r. ] ''• 
 
 Appeal to Court by non-Residents. 
 
 Town of Chatham, 
 Columbia County. 
 
 A. B., a non-resident owner of lands in said 
 town, considering (or C. D., agent of A.B., a non-resident owner 
 of lands in said town, who considei's) himself aggrieved in the 
 assessment for highway labor by the commissioners of highways 
 of said town upon the following described lands, to wit: (here 
 insert the description as in the list or statement made by the 
 commissioners,) doth hereby, (or, if the appeal ishrought iy an 
 agent, say, doth, by his agent, 0. D., hereby appeal, &c.,) ap- 
 peal from the assessment of said commissioners to the honorable 
 
 County Judge, 
 of the said county of Columbia. 
 
 Dated, Chatham, the day of 1859. A. B., or, 
 
 A. B., by C. D., Agent. 
 
 (No. 19.) 
 
 Sec. 45. 
 
 Commissipners' Consent. 
 
 Whereas, A. B., a resident of road district No. in the town 
 of Homer, in the county of Cortland, is assessed days' la- 
 
 bor in district No. in said town, for lands situate, in district 
 No. at his request, we hereby approve of his applying the 
 work assessed in respect to such lands in district No. where 
 they are situated. 
 
 Homer, 1859. 
 
 >■ Commissioners. 
 
 (No. 20.) 
 
 Seo. 46. 
 
 Notice to Agent of non-Resident. 
 
 To C. D., agent of A. B., a non-resident owner of lands in the 
 town of Delhi, in the county of Delaware. Take notice, A. B., a 
 
APPENDIX. 
 
 169 
 
 non-resident of the said town, is assessed days labor in road 
 district No. in said town, and that said labor is required to 
 be pel-formed on the day of next, and the days 
 
 following, on the road between the house of and 
 
 in said district. 
 
 Tours, &c., John Doe, Overseer. 
 
 Dated, May 1859. 
 
 (No. 21.) 
 
 Sec. 47. 
 
 Notice in case of non-Residents. 
 
 Notice is hereby given, that the labor assessed on the several 
 tracts of land in the town of Fishkill, in the county of Dutchess, 
 hereinafter mentioned, which have been assessed as owned by 
 non-residents, is id^e performed on the day of 
 
 next, on the highway of said district, between the dwelling- 
 houses of and and the owners of said land, 
 or their agents, are hereby required to cause the said labor to be 
 performed accordingly. 
 
 Owners' Name. | Description of land or tract. | Assessment. 
 John Doe, | N. pt. of Lot No. 60, 10 acres. | Ten days. 
 
 A. B., Overseer of District No. 
 Dated, Fishkill, 1869. 
 
 (No. 22.) 
 Sec. 54. 
 
 Overseers^ Complaint for Idleness, Neglect, die. 
 
 Seheoa County, ss. 
 
 A. B., overseer of highways of road .district No. 
 in the town of Ovid, in the said county, being sworn, says, that 
 on the 17th day of June, 1859, hegave 0. D., who resides in said 
 district, and is assessed by work on the highways therein, notice 
 to appear on the 19th day of June aforesaid, with a {state what 
 kirM of team, or ivvplements were required,) on the road, (state 
 where,) to do such work; and that the said 0. D. did not appear 
 nor furnish any one in his stead, {qt did not bring such team or 
 
ITO APPENDIX. 
 
 implement as was required, stating it; or when he so appeared, was 
 idle, or hindered others ftom working, or whatever the corrypkimt 
 !*,) and lias not paid the commutation money for said work, , nor 
 rendered a satisfactory excuse for such neglect (or conduct.) 
 Subscribed and sworn to, before me, ) A. B. 
 
 June 21, 1859. \ 
 
 G. H., J. P. 
 
 (No. 23.) 
 Sec. 55. , 
 
 Summons, 
 Seneca County, ss. 
 
 To any constable of the town of Ovid, in said 'county: 
 
 Whereas, A. B., overseer of highways of road district No. 
 in the said town, has made complaint on oath before me, a justice 
 of the peace of the said town, that C. D., a resident of said road' 
 district, and assessed to work on the highways therein, after be- 
 ing duly notified to appear on the 19th day of June instant, with 
 (state what team or ■ implements were required,) to do such work; 
 and that the said C. D., (stating the matter of the complaint,) 
 and has not paid the commutation money, nor rendered a satis- 
 factory excuse. . ' 
 
 You are therefore hereby required in the name of the people 
 of the State of New York to summon the said C. D. to appear 
 forthwith before me at my office in the said town, to show cause 
 why he should not be fined according to law for such refusal, (or 
 neglect, or misconduct.) 
 
 Ovid, June 21, 1859. G. H., J. P. 
 
 (No. 24.) 
 
 Sec. 65. 
 
 Constables' Return on Summons. 
 
 The within summons personally served on Eichard Koe, by 
 reading the same to him, this day of 1859. 
 
 John Doe, Constable. 
 
apjpendix. 171 
 
 Or, I have served the within summons on Richard _Eoe within 
 named, by leaving a true copy thereof, this day, at his personal 
 abode. 
 
 June 1859. John Doe, Constable. 
 
 (JSTo. 25.) 
 Sec. 56. 
 
 Conviction endorsed on ihe 'Complaint. 
 
 Town of Attica, Wyoming County, sa. 
 
 The within named Kichard Roe, having been 
 duly summoned to appear before me, J. B., the justice within 
 named, to show .cause why a fine should not be imposed upon 
 him for the offence set forth in the within complaint, and no suf- 
 ficient cause having been shown by said Richard Roe, I do im- 
 pose a fine of one dollar, (or, whatever sum it may be,) upon the 
 said Richard Roe, for the said offence, together with 
 ■dollars and cents, for the costs of the proceedings. 
 
 Witness my hand, this day of 1859. ■ 
 
 J.B.,J.P.. 
 
 (Eo. 26.) 
 Sbc. §6. 
 
 Warrant to levy t'ine. 
 
 Seiteoa Cottntt, ss. 
 
 To any constable of the town of Ovid, in the said county: 
 
 Ton are hereby commanded in the name of the people of the 
 State of New York, to levy of the goods and chattels of C. D., 
 four dollars and eighteen oents;. being one. doHar for a fine 
 imposed by me, for [speeify the neglect or misconduct^ as set 
 forth in the complaint of A. B., overseer of highways of road dis- 
 trict Uo. in the said town; and also three dollars and eigh- 
 teen cents, for the costs of the proceedings on said complaint; and 
 ^bring the said sum of money before me, without delay. 
 
 Griven under my hand at Ovid, June 23, 1859. 
 
 G. H^ J. P, 
 
172 
 
 APPENDIX. 
 
 (No. 28.) 
 Sec. 60. 
 
 Overseer's List of Non-resident Lomds, on wTvwh Lahor has not 
 
 ieen performed. 
 
 To the supervisor of the town of Bern, in the county of Albany: 
 
 The following is a list of all the lands of non-residents and of 
 persons unknown in the town of Bern, Albany county, which 
 were taxed on my lists, on which the labor assessed by the com- 
 missioners of highways for the year 1868, has not been paid, and 
 the amount of labor unpaid: 
 
 Owner's Name. 
 
 Description of Lands. 
 
 Assessed 
 Value. 
 
 Labor un- 
 paid. 
 
 John Eeed, . . 
 
 S. W. Pt. L. 7, Eange 
 14, T. 9. 75 acres. 
 
 $225 00 
 
 U days. 
 
 Joseph Mills, 
 Overseer of Highways of road district 
 
 Bern, September 30, 1859. 
 
 _ 
 
 No. 9, in said town. 
 
 (Ho. 29.) 
 Sec. 60. 
 
 
 Affidavit on such List. 
 
 Albany County, ss. 
 
 Joseph Mills, overseer of highways in road district 
 No. 9, in the town of Bern, in said county, fieing duly sworn, 
 says, that in relation to the lands described in Uxe within {or, 
 above) list, he has given the notice required in the [thirty-third or 
 thirty-fourth, or both, as the fact may oe] section of title 1, chap. 
 16, of the first part of the Revised Statutes, and that the labor 
 for which such land is returned has not been performed. 
 
 Subscribed and sworn to, be/ore me, ) Joseph Mills. 
 
 September 30, 1859. [ 
 
 Jacob Stow, J. P. 
 
APPENDIX. 173 
 
 (Ifo. 30.) 
 
 Seo. 64.- 
 
 Ooerseefs Annual Account. 
 
 To the commissioners of highways of the town of Salem, "Wash- 
 ington county: 
 
 The undersigned, overseer of highways of road district JSTo. 11, 
 in the said town, pursuant to law, renders the following account : 
 
 1. The names of all persons assessed to work on the highways 
 in the said district, and the number of days assessed to each, are 
 as follows, to wit: 
 
 Names. 
 
 1 No. of days.|| Names. 
 
 1 No. of days. 
 
 John "Williams, 
 
 1 3 II Job Frost, 
 
 1 5 
 
 2. The names of all those who have actually worked on the 
 highways, with the number of days they have so worked, are as 
 follows, to wit: 
 
 Names. 
 
 1 No. of days-l Names. j 
 
 No. of days. 
 
 Job Frost, . . . 
 
 5 
 
 |John "Williams, j 
 
 li 
 
 3. The names of all those who have been fined, and the sums 
 in which they have been fined, are as follows, to wit: 
 
 Names. 
 
 sums. 
 
 1 Names. | 
 
 Sums. 
 
 John Williams, 
 
 1 $1 874 
 
 1 Peter Jackson, j 
 
 $1,0 75 
 
 4. The names of all those who have commuted, and the man- 
 ner in which the moneys arising from fines and commutations 
 have been expended by me, are as follows, viz: , 
 
 Names. | Days. | Amount. | ' Names. j Days, j Amount. 
 Jas. Jackson | 34 | $2 19^ jRalph Clark j 1 | $0 634 
 
 The whole amount received by me for fines and commutations, 
 as above stated, is $5 75, which has been expended in [turnpik- 
 ing the road from to 
 
 or in bmlding a bridge across Muskrat brook, &c., as the fact is.jl 
 
174 APPENDIX, 
 
 5. The following is a list of all lands which. 1 have returned to- 
 the supervisor for non-payment of taxes, and the amount of tax 
 on each tract of land so returned {here copy the list delivered 
 to the supervisor.) 
 
 John Ckaet, 
 Salem, February 27, 1859, Overseer of Highways,. 
 
 District No. 11. 
 
 Afid-avit, 
 
 "Washington CotrHTy, ss. 
 
 John Grary, overseer of highways of road dis- 
 trict No. 11, in the town of Salem, in said county, being sworn, 
 says, that the annexed account is true. 
 
 Subscribed and sworn to, before me, ) J. Ceaet. 
 
 February 27, 1869. j 
 
 Stephen Koss, Commissioner of Highways, 
 
 (No. 32.) 
 
 Sec. 69. [54.] 
 
 Application for the Altefation of a Road. 
 
 Tp the commissioners of highways of the town of Hector, in the 
 county of Tompkins : 
 
 The undersigned, residents of said town, (or owning lands in 
 said town) and liable to be asBfessed for highway labor therein, 
 do apply to said commissioners to alter the highway leading 
 from the house of ■ to the turnpike in said town, 
 
 as follows : (Insert a particular description of the proposed alter- 
 ation, by known boundaries or objects, or courses and distances.) 
 The proposed alteration passes through lands which are not im- 
 proved, enclosed, or cultivated, (oar passes through the lands of 
 John Doe and Samuel Johnson, who have executed their consent 
 to said alterations in writing, which is hereto annexed.) 
 
 T. E. 
 CD. 
 
 Hector, , 1869- E, F, 
 
APPENDIX. 175 
 
 (No. 33.) 
 
 Seo. 69. [64:.-] 
 
 Application to lay a itew Road over unimproved lands, or where 
 the Owner cbnsents. 
 
 To the commissioners of highways of the town of in the 
 
 Gonnty of 
 
 The undersigned persons, residents of said town, (or, • owning 
 lands in said town,) and liable to be assessed for highway labor 
 in said town, do hereby apply to the commissioners of highways 
 of said town, to lay out a new road, of the width of three rods, 
 through lands not enclosed, impi-oved or cultivated, except that 
 a part of said proposed road which passes over the lands of E. 
 S., who has consented to the laying said road, and executed a 
 written consent hereunto annexed, (or, has signified his ^consent 
 by signing this petition,) as follows : — Beginning at, ifec. 
 (Make a description as in last.) 0. S. 
 
 P. Q. 
 
 Oswego, , 1859. K. T. 
 
 1^^ An application to discontinue a road will be substan- 
 tially like the form JSTo. 32. 
 
 ;(No. 34.), 
 
 Sec. 71. [56,] 
 
 Order of Commissioners to alter a Highway. 
 
 At a meeting of the commissioners of highways of the town 
 of Malone, in the county of Franklin, at in the said 
 
 town, on the day of 18 , all the said commission- 
 
 ers have met and deliberated on the subject Embraced in this 
 order, {or if tut two of the cdmmissioners met, sa/y, all the said, 
 commissioners having been duly notified to attend the said' 
 meeting for the purpose of deliberating on the subject matter of 
 this order, (it is ordered! and 'determined by the said commis- 
 sioners, that a bighway be laid out in the said town, " v(pon 
 a/pplioation of A. B.^'' {say, if there was an application,) and' 
 passing through the improved lands of John Uoe and Samuel 
 Johnson, who have consented thereto, {if there is any improved 
 land taken,) said road commences near the eastei-ly end of the 
 bridge over creek, and running thence northerly up the 
 
 said creek to the highway near the dwelling house of 
 The courses and distances of said road, according to a survey 
 
176 AppEiroix. 
 
 thereof, which the said commisaionere have caused to he made, 
 are as follows : beginning, &c. (Insert the survey.) It is further 
 ordered, that the above described line be the center of said high- 
 way, and that the said highway be of the width of rods. 
 
 In witness whereof, the said commissioners have hereunto sub- 
 scribed their names, the day of 1859. 
 
 A.B.,) 
 
 C. D., > Commissioners. 
 E. F., j 
 
 (No. 35.) 
 
 Sec. 73. [68.] 
 
 Release iy Owner. 
 
 A highway having been laid out, on the day of the date hereof, 
 by the commissioners of highways of the town of Kome, in the 
 county of Oneida, on the application of A. B., through improved 
 lands belonging to me, John Doe, commencing at, &c., (insert 
 the description of the route in the order.) 
 
 Now, know all by these presents, that I, the said John Doe, 
 for value received, do hereby release all claim to damages by 
 -reason of the laying out and opening the said highway. Witness 
 .my hand and seal, the day of 1859. John Doe, [l. s.] 
 
 (Ko. 36.) 
 Seo. 74. [59.] 
 
 Notice to he given ly Applicants for JERghway. 
 
 ISTotice is hereby given, that the subscriber (or subscribers,) 
 'have made an application to the commissioners of highways of 
 the town of Seward, in the county of Schoharie, to lay out a 
 highway in said town, commencing at &c., (here give the 
 
 description as in the application,) and which highway will pass 
 through the improved lands {or, enclosed and cultivated lands, 
 as ihe case may le,) of E. F., and that twelve freeholders of the 
 said town will meet at on the day of instant, (or 
 
 next,) at-_ o'clock in the noon, at the dwelling house of C. 
 .D., in said town, to examine the ground through which the said 
 highway is proposed to be laid. 
 
 Dated-the day of 1859, 0. W. 
 
APPENDIX. 177 
 
 (No. 36.) 
 
 Seo. 83 AijD 84. 
 
 A^lication to County Court to ap^'omt Commissioners to assess 
 
 Damages. 
 
 To the Hon. the 'CoTinty Court of county : 
 
 "Whereas the commissioners of highways of the town of 
 in said county, by an order dated , 18 , have laid out a 
 
 highway in said town, \inseH description as in the order.} 
 
 Now therefore, the undersigned, commissioners of highways 
 of the said town, hereby iapply to the said courjb for the appoint- 
 ment of commissioners to assess the damages oceasioned by the 
 laying out of said highway, pursuant to the statute in such case 
 made and proTided, 
 
 E.G.,| 
 
 H. B., y Commissioners. 
 N.E.,j 
 Dated, June, 1859. 
 
 Order of Court thereo'ii. 
 
 OswEfio County Couet : 
 
 At a term of the said court, held at the court house, in the city 
 of Oswego, on the 14th day of June, 1859. 
 
 Peesent, The Hon. Obla H. Whitney, 
 
 County Judge. 
 
 On reading and filing the application of E. G., H. B. and N, 
 E., Esqrs., commissioners of highways of the town of in 
 
 said county, setting forth the laying out of a highway in said 
 town, beginning [insert the description,'] and praying the appoint- 
 ment of commissioners to assess the damages occasioned thereby; 
 it is ordered that F. G., H. J. and L. M., of, &c.,be and they are 
 hereby appointed such commissioners. 
 
 The order to be entered in the minutes of the court, and when 
 copies are needed to be made, certified by the clerk as in other 
 cases. ,Section 92 provides that the order shall be filed and re- 
 corded in the office of the town clerk of the town in which the 
 road shall be located. For this purpose a copy of the order duly 
 certified by the clerk of the court would undoubtedly be suffi- 
 cient. 
 
 12 
 
178 APPENDIX. 
 
 (Eo. 36.) 
 
 Sec. 83. 
 
 Ifotice to the Commvissioners of iheir Anointment and to meet 
 the Highway Commissioners and Assess Dcmiages. 
 
 To F. G., H. J. and L. M : 
 
 You are hereby notified that you have been 
 duly appointed by an order made by the county court of the 
 county of a copy of which is hereunto annexed, commis- 
 
 sioners to assess the damages sustained by reason of the laying 
 out and opening (o?-, by reason of altering) the highway men- 
 tioned and described in said order ; and thiat you are required 
 to meet the undersigned at the house of O.P., in the town of 
 , in said county, on the day of , 
 
 1859, at 10 o'clock in the forenoon of that day, to take a view of 
 the premises, and to hear and determine the matter aforesaid'. 
 Dated 1859. 
 
 GDI 
 
 e' f' (■ ^''''^''^^^^oneTs of JEighwa/ys 
 
 r' H \^-f ^^ iown of 
 
 (ISTo. 36.) 
 
 Sec. 83. 
 
 Oatli of Commissioners to Assess Damages. 
 
 I do solemnly swear (or, affirm) that I will support the consti- 
 tution of the United States, and the constitution of the State of 
 New York ; and that I will faithfully discharge the duties of 
 commissioner to assess the damages for laying out (or, altering) 
 the highway in the town of , in the county of , 
 
 commencing at, &c., [describe the highway as in the c^lioatkm,,) 
 according to the best of my ability. 
 
 (No. 36.) 
 
 Seo. 83. 
 
 Oath to he administered by the Commissioners to Witnesses. 
 
 Tou do solemnly swear, that the evidence you shall.give touch- 
 ing the assessment of damages for the laying out (or^ altering) 
 the highway in question, shall be the truth, the whole truth, and 
 nothing but the truth. So help you God. 
 
APPENDIX. 179 
 
 (So. 36.) 
 
 Secs. 83' and 84. 
 
 Assessment hy Commissioners. 
 
 "Whereas, the undersigned, and , were ap- 
 
 pointed by an order of the county court of the county of 
 made on the day of . , 1859, and the application of 
 
 E. G., H. B., and N. R., commissioners of highways of the town 
 of , in the county of - , to assess the 
 
 damages occasioned by the laying out of a highway in the said 
 town, beginning [liere insert description as in the order^ which 
 highway passes through the improved lands of 
 and , and was laid out by the commissioners of high- 
 
 ways of the said town, by an order, dated 1859. 
 
 Now therefore, we, the said commissioners, having taken the 
 oath of office prescribed by the constitution, and having all met 
 and acted on the matter committed to us, (or, we, the imdersign- 
 ed, being a majority of the said commissioners, all of the said 
 commissioners having met, taken the oath of office prescribed by 
 the constitution, and acted,) at the in said 
 
 town, this day of ,1859, pursuant to a notice 
 
 from said commissioners of highways, of at least six days, ac- 
 cording to law and having taken a view of the premises, and 
 heard the parties and such witnesses as have been oflered before 
 us; do thereupon determine and assess the damages required to 
 be assessed on the said highway, as follows, viz: 
 
 We assess the damages of A. B., at dollars. We 
 
 assess the damages of C. D., at dollars. 
 
 A.B.,) 
 
 0. 13., >• Commissioner's. 
 July, 30,1858. E. F., ) 
 
 (No. 37.) 
 
 Sec. 76. 
 
 Freeholders' Oertijloate.. 
 
 County of Jeffeeson, 1 
 Town of Brownville, j ' 
 
 We, the undersigned, being freeholders of the 
 town of Brownville, in said county, and not interested in the 
 lands through which the highway hereinafter described is pro- 
 posed to be laid, nor of kin to the owner thereof, having met on 
 
180 APPENDIX. 
 
 day ot at i in the said town, and hay- 
 
 ing been first duly sworn, and having personally examined the 
 route of the said proposed highway, and heard the reasons offer- 
 ed for or against the laying out a highway, pursuant to the appli- 
 cation of E. F., commencing at,' &c., [here insert the description 
 as in the application and notice,'] and which highway will pass 
 through the improved, [or, enclosed, or, cultivated,] lands of the 
 said 0., D., do certify, that such highway is necessary ahd proper. 
 
 In witness whereof, we have hereunto subscribed our names, 
 the day of 1859. 
 
 (No. 37.) 
 
 Sec. 85. 
 
 Wotioe when the Conwdssioners or Parties are aggrieved or 
 dissatisfi&d. 
 
 Notice is hereby given, that I, , conceiving 
 
 myself aggrieved, \or we, the commissioners of highways, feel- 
 ing dissc^isjied,'] by the assessment of damages made by 
 
 and commissioners appointed by the 
 
 county court of the county of , to assess damages 
 
 occasioned by the laying out of a highway in the town of 
 in said county, beginning, [insert description,'] which said assess- 
 ment was filed in the office of the town clerk of the said town, on 
 the day of ,1859, do hereby ask for a jury 
 
 to re-assess the said damages, and such jury will be drawn at the 
 clerk's office of the town of , in said county, adjoining 
 
 the said town of ; on the day of 1859, 
 
 [specify a day not less than 10 nor more than 20 days from the 
 filing of the assessment,] by the town clerk of said town of 
 [insert name of tovin where drawn.] 
 , June , 1859. 
 
 Note.— [To be signed by the person aggrieved, or the commis- 
 ssoners dissatisfied.) 
 
 This notice must be served on the town clerk and opposite 
 party within 20 days from the filing of the assessment, and must 
 be served on the clerk first, and the other party, •wfth"^ "" 
 days after ; and all in season, to' rhfeiyS'itii^'aiS^i&^'df 
 within the 20'd(ay^i"^^f'3HK>fi^hHW^faf ^grVife,'^6^i^ 
 
APPENDIX. 181 
 
 (No. 38.) 
 
 Sec. 86. 
 
 Tovm ClerKs Certificate of Drawing of Jury. 
 
 I, town clerk of the town of 
 
 in the county of , do hereby certify, that the 
 
 following twelve names of persons were this day drawn by me 
 from a box containing the names of all such persons, now resid- 
 ents of said towns, whose names are on the last list filed in the 
 town clerk's ofiice of said town, of those selected and returned as 
 jurors, pursuant to article 2, title 4, chapter 7, part 3, of the Re- 
 vised Statutes, who are not interested in the lands through which 
 a road in the town of , in said county, was laid out 
 
 by the commissioners of highways of said last mentioned town 
 on the day of , 1859, nor of kin to either 
 
 or any of the parties, and that the said twelve names were so 
 drawn by me to make a jury to re-assess the damages occasioned 
 by the laying out of the said highway. 
 
 
 A.B. 
 
 ) 
 
 E.F., 
 
 
 
 
 CD., 
 
 
 G. H., 
 
 &c., 
 
 
 , July 
 
 , 1859. 
 
 \ms6rting \ 
 
 ihe 12 names.\ 
 
 
 
 
 
 R-P- 
 
 , Town Glerk. 
 
 
 
 (Eo. 
 
 39.) 
 
 
 
 
 
 Sec. 
 
 78. 
 
 
 
 Order for laying out a Highway through Improved Lands without _ 
 tJie consent of the Owner. 
 
 At a meeting of the commissioners of highways of the town 
 of Lowville, in the county of Lewis, at in the said 
 
 town, on the day of ' , all the said commission- 
 
 ers having met'and deliberated on the subject matter of this or- 
 der, (or, ^f hut two of the commissioners met, say, all the commis- 
 sioners having been duly notified to attend the said meeting, for 
 the purpose of deliberating on the subject matter of this order,) 
 upon the application of A. B., a resident in said town, and liable 
 to be assessed to work on the highways therein, for the laying 
 out of the highway hereinafter described, and on the certificate 
 of twelve reputable freeholders of said town, convened and duly 
 sworn after due public notice, as required by the statute, eertify- 
 fying that such highway is necessary and proper; and notice in 
 writing, of at least three days, having been given in dqe form of 
 
182 APPENDIX. 
 
 law to S. M. and K. S., occupants of the land thi-ongli which such 
 highway is to run, that the commissioners would meet at this 
 time and place, to decide on the application aforesaid; and we 
 having heard all reasons offered for and against laying out such 
 highway; it is ordered, determined and certified, that a public 
 highway shall be, and the same is hereby, laid out pursuant to 
 said application, whereof a survey has been made, and is as fol- 
 lows, to wit: Beginning, &c., (as in the survey,) and the line of 
 said survey is to oe the center of said highway, which is to be 
 rods in width. 
 
 Witness our hands, this 
 
 day of 
 
 A.B., 
 CD., 
 
 E. F., j 
 
 1858. 
 
 1 
 
 y Commissioners, 
 
 1 
 
 (No. 39.) 
 
 Sec. 87. 
 
 
 Summons for Jury. 
 
 OouNTT, ss: 
 To , one of the constables of the town of 
 
 in said county: 
 
 Tou are hereby directed to summon in the name of the people 
 of the State of IsTevs'Tork, [name the twelve perons^ to appear at 
 
 , in the said town, on the day of 
 
 1859, at 10 o'clock in the forenoon of that day, to make a jury to 
 re-assess the damage occasioned by the laying out of a highway 
 in the said town, by the highway commissioners thereof, on the 
 day of , 1859. Hereof fail not. 
 
 J. B., J. P. 
 
 (No. 40.) 
 
 Sec. 82. 
 
 Agreement of Owner and Commissioners^ as to Damages. 
 
 "Whereas, the commissioners of highways of the town of 
 in the county of ^ , have, by an order dated the 
 
 day of _ , 1859, laid out a highway in said town, begin- 
 
 ning [describe it as in the order,] which said highway passes 
 through the improved lands of J. H. 
 
APPENDIX. 183 
 
 Now therefore, the damages of the said J. H., by reason of the 
 laying out of said highway, are hereby ascertained by agreement 
 of the said J. H., and the said commissioners of highways, at 
 the sum of one hundred dollars. 
 
 , July 18, 1859. . J. H, 
 
 B. L. ) 
 X. Z. 
 P. M. ) 
 
 Commissioners of 
 Highways. 
 
 (No. 41.) 
 Sec. 88. 
 Oath of Jury. 
 
 
 You and each of you do solemnly swear, in the presence of 
 Almighty God, well and tridy to determine and re-assess such 
 damages as shall be submitted to your consideration. 
 
 (E"o. 41.) 
 
 Sec. 88. 
 
 Verdict of Re-assessment. 
 
 We, the subscribers, a jury duly drawn and sworn, to determine 
 and re-assess the. damages occasioned by the laying out of a 
 highway in the town of , in the county of 
 
 , by the highway commissioners thereof, on the 
 day of , 1859, which said highway runs from [describe 
 
 the highway as in the order, and slate whose lands it passes through) 
 having taken a view of the premises, and heard the parties and 
 such witnesses as have been offered by them and sworn before 
 us, do hereby determine and re-assess the said damages as fol- 
 lows, viz : We determine and re-assess the damages of H. B., at 
 dollars, (specify each person's da/mages passed 
 vpon.) 
 
 [To he signed ly the six jurors.] 
 ,JuIy ,1859. 
 
 COUNTT, SB. 
 
 I, J. B., the justice of the peace, by whom 
 the within (or above) ^named jury were summoned, drawn and 
 
184 APPENDIX. 
 
 sworn, do certify that the within (o?- dho'6^ is the verdict of re-as- 
 sessment of damages for the laying out, (or, as the case may be,) 
 of the higjiway mentioned therein, rendered by the said jury, 
 pursuant to the said proceedings, this day of July, 
 
 18&9. J. B., J. P. 
 
 (No. 42.) 
 
 Sec. 112. 
 
 Order for Laymg' out a Private Boad. 
 
 CouNrT, ) 
 Town of j ^®- 
 
 At a meeting of the commissioners of high- 
 ways of the town of , in the county of 
 held on the day of , 1859, all the said com- 
 missioners having met and delibei'ated on the siibject of this or- 
 der, {or, if hut two of the commissioners met, say: all the said 
 commissioners having been duly notified to attend the said meet- 
 ing, for the purpbse of deliberating on the subject of this order,) 
 upon the application of A. B. for the laying out of the private 
 road hereinafter described, and on the verdict of six jurors of said 
 town, drawn, summoned and- sworn, after due notice had been 
 given to the persons interested in the lands through which said 
 road is to pass, as required by law, deterniining that such road 
 was necessary, and the amount of damages sustained by opening 
 the same. 
 
 It is, therefore, ordered and determined by the undersigned, 
 commissioners of highways of said town, that a private road be 
 and the same is hereby laid out for the use of the said A. B., 
 pursuant to his application, the courses- and distances whei-eof, 
 according to a survey thereof, which the said commissioners have 
 caused to be made, are as follows: [here insert the survey at 
 lengthi] 
 
 And it is further ordered and determined, that the line above 
 described be the center of said road, and that the said road be 
 of the width of rods. 
 
 In witness whereof, we have hereunto subscribed our names, 
 this day of 1859. 
 
 e' f' (• ^Commissioners of 
 G. H.',' j Highways. 
 
APPENDIX. ■'■°^ 
 
 (No. 43.) 
 Seo. 101. 
 Application for a Pri/oate Rood. 
 
 To the commissioner (or commissioners) of highways of the town 
 of Mend on, in the county of Monroe: 
 
 The subscriber, a resident of said town, and liable to be asses- 
 sed for highway labor, hereby makes applica,tion to you to lay 
 out a private road for his use, beginning, &c., [insert description, 
 specifying its width andlocaiion, courses <md distances^ that said 
 road runs throuigh the lands of [here state the names of the own- 
 ers and occwpants of the land.'] 
 
 Dated the day of 1859. A. B. 
 
 (No. 44.), 
 
 Sec. 103. 
 
 Notice to the Owners and Occupants. 
 
 To (here insert names of owners and occupants) of the town of 
 Mendon, in the county of Monroe : 
 
 A. B., a resident of said town, and liable to be assessed for 
 highway labor therein, having made application in writing to us, 
 the commissioners of highways of said town, to lay out a private 
 road, for his use, through your lands, (or, through lands occu- 
 pied by you ; or, in case of several owners and occupants, say, 
 through lands owned by you, the said C. D., and through lands 
 occupied by you, the said E. F.,) which application is hereto 
 annexed; riow, you are hereby notiiied, that a jury will be 
 selected for the purpose of determining upon the necessity of 
 said road, and to assess the damages by reason of the opening, 
 thereof at the office of Gr. H., one ;of said commissioners, {here 
 state where his office is located. If his office is at his house, add: 
 Sit his dwelling house in said town,) on the day of 
 
 September, 1859, at 10 o'clock in the forenoon of that day. 
 
 Dated, Mendon, August 30, 1859. 
 
 Commissioners of 
 Highways.. 
 
186 APPENDIX. 
 
 (No. 44.) 
 
 Sec. 107. 
 
 Svm,7nons to summon a Jury to determme tlie projpriety of laying 
 out Prwate JRoads, c6o. 
 
 County, I gg 
 Town of [ 
 
 To {Tiere insert the names of the Jurors.) 
 
 Yon are hereby summoned in the name of the 
 people of the State of New York, to meet at in said town, 
 
 on the day of 1869, at 10 o'clock in the forenoon 
 
 of that day, to make a jury to determine the necessity of laying 
 out a private road through the land of K. A., on the application 
 of A. B., aild the amount of damages siistained by reason of the 
 opening of the same. 
 Given under our hands, this day of 1859. 
 
 Commissioners of 
 Highways. 
 
 
 CD., 
 
 E.F. 
 
 G.H., 
 
 (So. 
 
 Sec. 
 
 46.) 
 109. 
 
 Oath to he taken by Jurors. 
 
 You, and each of you, do solemnly swear that you will well 
 and truly determine as to the necessity of a private road through 
 the lands of C. D., for which application has been made by A. 
 B., and that you will also well and truly assess the damages by 
 reason of the opening of said road. 
 
 (No. 45.) 
 
 Sec. 110. 
 
 Verdict of Jury in laying out a Private Road and Assessing 
 
 Damages. 
 
 We, the undersigned, residents and disinterested freeholders 
 of the town of , in the county of , qualified to act as 
 
 jurors in courts of record, who are in nowise of kin to the appli- 
 
APPENDIX. 
 
 187 
 
 cant, owner or occupant, or either of them, having been sum- 
 moned, and duly sworn well and truly to determine as to the 
 necessity of laying out a private road upon the application of 
 A. B., to the commissioners of highways of said town, bearing 
 date the day of 18 , through the lands of 0. D., com- 
 
 mencing at [give description of the road,) and also to assess the 
 damages by reason of the opening of said road, having- viewed 
 the premises, and heard the allegations of the parties, and their 
 witnesses as by thqpi produced, do hereby determine that it is ne- 
 cessary and proper to lay out and establish such private road. 
 And we do hereby assess the amount of damages occasioned to 
 C, D., through whose land the said road. is to pass, at the sum of 
 dollars. 
 In witness whereof, we have hereunto set our hands, this 
 day of , 18 . E. F., 
 
 a H., 
 I J., 
 
 &c.. 
 
 (No. 47.) 
 
 Sec. 120. 
 
 Ap^Ucafion to discontinue an old Road. 
 
 To the commissioners of highways of the town of Yolney, in the 
 
 county of Oswego : 
 
 I, the undersigned, a resident of said town, and liable to be 
 assessed for highway labor therein, do hereb_y apply to you, the 
 said commissioners, to discontinue the old road in said town, 
 commencing near my dwelling-house, (or, in any other suitable 
 manner, giving an, accurate description of the part sought to ie 
 discontinued,) on the ground that the said road has become use- 
 less and unnecessary. 
 
 Dated, Volney, 1869. E. P. 
 
 (No. 48.) 
 
 SEic. 120. 
 
 Oath to Freeholders. 
 
 You, and each of you, do solemnly swear, that you will well 
 and truly examine and certify, in regard to the propriety of dis- 
 continuing the r^ad, for which application has been made by 
 A. B. 
 
188 APPENDIX. 
 
 (No. 49.) 
 
 Seo. 121. 
 
 Freeholder's Certificate to disooniinue a Road. 
 
 Otbeqo County, Town of Haetwick, ss : 
 
 We, the iiiiderBJgiied, disinterested freeholders of the town of 
 in the county of Otsego, having met at , on this 
 
 day of ,1859, in pursuance of the summons of 
 
 the commissioners of highways of the said town, in order to ex- 
 amine and certify in regard to the propriety of discontinuing the 
 road described in the annexed application of E. F , do 
 
 certify, that in our opinion said road is useless and unnecessary, 
 and that the same ought to be discontinued. 
 
 In witness whereof, we have hereunto subscribed our names, this 
 day of ■ ,1859'. G. H., 
 
 C.'E., &c. 
 
 (Fo. 50.) 
 
 ' - Sec. 121. 
 
 Order for dAsconUnuing a Road. 
 
 At a meeting of the commissioners of highways of the town 
 of Carmel, in the eounty of Putnam, at in said town, on the 
 day of , 1859,. all the commissioners having met 
 
 and deliberated on the subject of this order ; (or, all the com- 
 missioners having been duly notified to attend the said meeting, 
 for the purpose of deliberating on the subject of the order ;) upon 
 the annexed application of A. B , of said town, for the 
 
 discontinuance of the road hereinafter described, and on the cer- 
 tificate of twelve disinterested freeholders, duly summoned and 
 sworn, who have in due form certified that said road is useless 
 and unnecessary ; and the said commissioners having caused a 
 survey of said road to be made as follows, viz : Qiere insert the 
 survey or description.) It is ordered and determined by the said 
 commissioners, that the said road be, and the same is hereby 
 discontinued. Witness our hands, this day of , 1859. 
 
 Commissioners. 
 
APPENDIX. 189 
 
 (E"o. 51.) 
 
 Sec. 121. 
 
 Order refusing to discontinue a Scad. 
 
 At a meeting of the commissioners of highways of i^he toivn 
 of Pittstown, in the county of Rensselaer, (as in lasiform. It 
 is ordered and determined by the said commissioners, that the 
 said application of the, said A. B., to discontinue the said road 
 be refused. 
 
 In witness, &c., A. B., | ^aommissioners of 
 
 EUghwanis. 
 
 (No. 62.) 
 
 Secs. 123 and 124. 
 
 Ajp^eal to th& County Judge. 
 
 To the Hon. John 0. Chumaseeo, County Judge of Monroe Co.: 
 
 I, A. B., conceiving myself aggrieved, by the order and deter- 
 mination of J. K, C. G. and A. P., commissioners of highways 
 of the town of Perinton, in the said county of Monroe, made on 
 the day of , 1859, and filed an^ recorded in the town 
 
 clerk's office of said town, on that day, in laying out {or., in dis- 
 continuing ; 0?", in refusing to lay out, alter or discontinue, as the 
 case may he,) a highway in the said town, from, [describe the road 
 as in the order of the commissioners,) upon the application of 
 , do hereby appeal from the determination of the said 
 commissionei;s, and pray the appointment of referees, according 
 to the form of the statute in such case made and provided, to 
 hear and detennine my said appeal. 
 
 The ground upon which my appeal is made, is that, {here set 
 forth the cause of complaint,) and niy appeal is brought to re- 
 verse entirely the said determinatirai of said commissioners, {or, 
 if the appeal is brought to -^^r^WSiily a part of the determina- 
 tion,then «^.) and m^^^ *WI^W^^ ^-^^ P^^' 
 
 {or, those parts; of the said aetermmation OX said CTOhmissioners 
 which {Jiere setfoHh the part or parts^ .^ [-,fj,; (j j^ rj q ^^rj. 
 
190 APPENDIX. 
 
 (No. 53.) 
 
 Sec. 123. 
 
 Appointment of Referees. 
 
 MONEOE COUHTY, SS. 
 
 Whereas, A. B., of the town of Perinton, in the gaid coHiity, 
 has appealed from the determination of the commissioners of high- 
 ways of the said toWn, made on the 15th day of Jime, 1859, in 
 laying out, [altering, discontinuing refusing to lay out, alter, Ms- 
 continue,] a highway in the said town, which highway is parti- 
 cularly described in the said appeal hereto annexed, [and where- 
 as, Richard Bailey and John Smith have also appealed from the 
 same determination of the commissioners, which said appeals 
 are hereto annexed,] and sixty days having elapsed after such 
 determination was filed in the ofldce of the town clerk of the 
 said town ; 
 
 Now, therefore, I John C. Chumasero, coimty judge of the said 
 county, to whom the said appeal was, (or, appeals were,) address- 
 ed, according to the form of the statute in such case made and 
 provided, do hereby appoint C. D. of the town of Pittsford; H. 
 D., of the town of Penfield, and S. "W., of the town of Webster, 
 three disinterested freeholdei's, who have not been named by the 
 parties interested in the appeal, and who are residents of the 
 county, but not of the town wherein the road is located, as ref- 
 eres, to hear and determine all the appeals that have been 
 brought in .relation to the said determination of the said commis- 
 sioners. J, 0. C, 
 
 Eochester, Aug. 15, 1859, County Judge of Monroe Co. 
 
 (No. 53.) 
 
 Sec. 123. 
 
 Oath of the Referees, 
 
 You, and each of you, do solemnly swear, that you will faith- 
 fully hear and determine the matters referred to you. 
 
 (No. 54.) 
 
 Sec. 123. 
 
 Nptice to the Refereis of their appointment. 
 
 To C. D., H. D. and S. W.: 
 
 Take notice, that you have been appointed 
 by me referees to hear and determine an appeal made by A. B. 
 
APPENDIX. 
 
 191 
 
 from the order and determination of J. K., 0, G. and A. P., com- 
 missioners of highways of the town of in the 
 county of , (or, if there are several appeals 
 say, to determine the appeals of A. B., C. D., &c.,) contained in 
 their order made on the day of 1859, 
 and filed and recorded in the town clerk's office of said town of 
 , on the day of 1859; 
 in laying out, &c., (or, in discontinuing, &c., as in the appeal,) 
 and that the papers herewith delivered to you are the papers per- 
 taining to th^ appeal referred to you. 
 
 Dated, the day of 1859. J. C. C, 
 
 Monroe County Judge. 
 
 (N'o. 54:.) ' '' 
 
 Sec. 125. 
 
 NoUce to 1)6 given hy the Referees to the: Commissioners. 
 
 To J. K., C. G. and A. P., Commissioners of highways of the 
 town of , in the county of 
 
 The undersigned having been duly appointed referees to 
 hear and determine an appeal made to J. C. C, county judge of 
 the county of , by A. B., of said town of 
 
 from your determination, embraced in your order, made on the 
 day of , 1859, and filed and recorded in. 
 
 the office of the town clerk of said town, on the day of 
 
 , 1854:, refusing to lay out, &c., [as in the appeal^ you 
 will therefore take notice, that we shall attend at the house of E; 
 W., in said town, on the day of , 1859, at 
 
 o'clock in the forenoon of that day, to hear and determine such, 
 appeal. 
 
 CD., ) 
 
 H. D., >■ Referees. 
 S. W., j 
 Dated, the day of 1859. 
 
 (No. 54) 
 
 Seo. 125. 
 
 Notice to he given ly the Beferees to the A^licartt. 
 
 To A. B.: 
 
 Take notice, that we shall attend at the house of K. W., in the 
 town of , in the county of , on 
 
APPENDIX. 
 
 tW^ ' day of ,1858, at o'clock in the fore- 
 
 fifeM' of that day, to hear and determine the appeal made by you 
 i^W; O. C, county judge of said county, from the order alid de- 
 t&ipination of J. K., C. Gr., and A. P., commissioners of high- 
 wlyl of the said town of , contained in their order 
 
 M^tWbn the ' day of , 1859, and filed and record- 
 
 e&^&^the office of the town clerk of said town on the day of 
 ' ■''•"?' , 1859, laying out, {or, refusing to lay out, &c., as 
 
 tH-'iM'-^'appeal.) 
 Da);^d, the day of , 1859. 
 
 C. D., ) 
 
 H. D., }■ Beferees. 
 S. W., 
 
 (m. 56.) 
 Sec. 12T. 
 Bef&reis Sulpoma on A^eal. 
 ^o;i?;eq3e, jpotruiy, ss. 
 
 Tj 1 ■^" ■ I ; ! .■•,.' 
 
 ' • ^... Tou, and each of you, are hereby commanded, 
 in J tlje' naiiie of the people of the State of New York, to appear 
 Tietoi'e vs at the house of C. D., in the town of , in 
 
 'sai(| county, on the day of , 1859, at ten 
 
 o'cibpk;in .the forenoon of that day, to testify and give evidence 
 ia^- the maljteir of an appeal made by A. B. from the determination 
 of the ,c'o,ir}misBioners of the said town of , then 
 
 aji:^d tli6i;e, to. bp heard, on the part of the said A. B., appellant, 
 (or, on the part of the said commissioners.) 
 
 'Given under our hands this day of 1859. 
 
 ...T.^ C. D., ) 
 
 H. D., } Referees. 
 S.W.,) 
 
 (No. 55.) 
 
 Seo. 127. 
 
 Odih to "be admmisten'ed to a Witness ly the Eeferees. 
 
 You dp ^ear, that the evidence yon shall give upon this hear- 
 ^^'tft'tHerffpfekl'of A. B. shall be the truth, the whole truth, and 
 4S)tMng but the tnith, so help you God. 
 
APPENDIX. 193 
 
 (No. 66.) 
 
 Seo. 12T. 
 
 Decision of the Referees upon appeal respecting the Laying out, 
 Altering, or Discontinuing of a Road. 
 
 "Whereas, A. B., of tie town of , in the county of 
 
 , on the day of , 1859, 
 
 appealed to the Hon. John 0. Ohnmasero, county judge of said 
 county, from the order and determination of J. K., 0. Gr. and A. 
 P., commissioners of highways of said town contained in their 
 order made the day of , 1859, and filed and 
 
 recorded in the office of the town clerk of said town, on the 
 day of , 1859, laying out, [or, altering; or, discon- 
 
 tinuing; or, refusing to lay out, alter, or, discontinue a highway, 
 &c., as in the appeal,') a copy of which said appeal is hereto 
 annexed. [If other appeals were also brought, add : and 
 whereas, K. B. and J. S. also duly appealed from the said order 
 and determination of the said commissioners to the said county 
 judge, which appeals are also hereto annexed^) And whereas, 
 we, U. D., H. D. and S. W., the undersigned, having been duly 
 appointed by the said county judge referees to hear and deter- 
 mine the said appeal, {or, appeals,) attended at the house of R. 
 ~W., in the said town of , on this day of 
 
 , 1859, at o'clock in the forenoon, in pursu- 
 
 ance of notice by us duly given to the said commissioners and to 
 the said A. B., the applicant named in the annexed appeal, (if 
 there were several applicants, say, one of the applicants men- 
 tioned in the annexed appeal; [and if several applicants have 
 been notified, state the same accordingly,) according to the 
 the statute in such case made and provided, to hear the proofs 
 and allegations of the parties; and we, the said referees, having 
 first been duly sworn by an officer authorized to take affidavits to 
 be read in courts of record, to wit: by Eobert Jones, Esq., a jus- 
 tice of the peace of said county, faithfully to hear and determine 
 the matters referred to us, and having heard the proofs and alle- 
 gations of the parties, do hereby adjudge, decide and determine, 
 that the said order and determination of the said, commissioners 
 be, and the same is, in all things, affirmed, [or, reversed in part, 
 as follows, to wit: set forth the decision in full.) 
 
 Given under our hands this day of 1859. 
 
 h Referees. 
 S. W., ] 
 
 13 
 
194 iOPPENDlX. 
 
 (No. 57.) 
 
 Sec. 127. 
 
 Order of Referees wh&n a Boadis laid out h/ them. 
 
 (The same form as No. 56 to the word " reverse^^ then add :) 
 And we do farther order, determine and adjudge, and in pursu- 
 ance of the said application of the said Johm Ebgers, a highway 
 be, and the same is hereby laid out, {here insert description of 
 the road and if the description is hy giving the center line of the 
 road state it so, and give the ieidth of the road.) 
 
 York, August 25th, 1859, 
 
 '• 
 
 A.B.i 
 C. D., 
 E. F., 
 
 (Eo. 
 Seo. 
 
 58.) 
 130. 
 
 
 • Referees. 
 
 Wotioe to Remove Fences- 
 
 To Mr. 
 
 Whereas, the under&igned, commissioners of highways of the 
 town of , in the county of , hare laid out a public 
 
 highway, on the application of A. B., by an order, dated ' , 
 
 1859, and duly filed with the town clerk of the said town, on the 
 day of , 1859, which said road passes through en- 
 
 closed {or, cultivated, or, improved) lands, owned {or occupied) 
 by you ; and whereas our determination in the matter of laying 
 out such road has not been appealed from ; Kow, therefore, 
 please to take notice^ that you are required to remove your 
 fences from within the bounds of said highway, within sixty days 
 after service hereof. 
 
 Tours, &e., 
 
 A.B., I 
 
 ^ . „ , CD., \ Commissioners. 
 
 Permton, September 1, 1859. E. F., ) 
 
 Note.— If the order of the commissioners laying out a road, 
 has been appealed from, and has been wholly affirmed by the 
 referees, strike qut the above notice the words, ^^ and whereas our 
 determination in the matter of laying out such'road has not leen 
 a^ealed from^'' 
 
APPBMUlX. 195 
 
 (No. 59.) 
 
 Sec. 130. 
 
 Notice hy Commissioners to Hemove Fmees where an order of 
 
 the Commisdon&rs refusing to lay out a Highway is 
 
 reoersed, 'and Beferees lay out a Boad, 
 
 "Whereas, 0. D., H. D. and S. "W., three referees appointed by 
 the county judge of Monroe county, to hear and deternaine an 
 appeal from an order and determination of the undersigned com- 
 missipners. of highways, of the town of , in said county of 
 
 Monroe, refusing to lay out a highway iii said town, upon the ap- 
 plication of A. S., haveheard and decided said appeal, and have 
 reversed the said order and determination made by the said 
 commissioners, and have by a decision and order by them the 
 said referees made, dated the day of , 1859, and filed 
 
 in the town clerk's office, of sa.id town, on the day of 
 1859, laid out a public highway in said town, which road passes 
 through enclosed (or, cultivated, or, improved) lands owned (or, 
 occupied) by you. Now, therefore, take notice, that you are re- 
 quired to remove your fences from within the bounds of said 
 highway, within sixty days after the service upon you of this 
 notice. 
 
 Yours, &c., 
 Perinton, September 1, 1869. 
 
 A.B.,) 
 
 0. <D., \ Commissioners, 
 
 E.F., j 
 
 (No. 60.) 
 Sec. 141. 
 
 Order of Commissioners to remove Fences in case of an encroach- 
 ment on the JSigh/way. 
 
 We, the undersigned, commissioners of highways, of the town 
 of , in the county of , having ascertained that the 
 
 public highway in said town, leading from the house of , 
 
 to the house of , is encroached upon on the easterly side 
 
 thereof along the lands in the occupation of A. G., by a (stone 
 or, rail) fence erected by the present or a former occupant thereof, 
 which forms part of the enclosure' of said land; and having 
 
196 APPENDIX. 
 
 caused the said highway to be surveyed, and having ascertained 
 the easterly bounds and limits thereof as the same was laid out, 
 to be upon, and according- to the following line, to wit : Begin- 
 ning, &c., [Jtere insert the survey of the line over which the en- 
 croachment is made^ and that all that narrpw piece of land 
 which lies under and between the said fence and the line above 
 described, is a part of the public highway aforesaid. 
 
 It is therefore ordered, by the undersigned, commissioners of 
 highways of said town, that the said (rail or, stone) fence be re- 
 moved, so that the said highway be open and unobstructed, and 
 of the width originally intended and laid out, which was 
 rods. Done at a meeting of the commissioners of highways, 
 of the said town of , on the day of 1869, all of the 
 
 said commissioners having met and deliberated on the subject 
 of this order, (o?", all of the said commissioners having been duiy 
 notified to attend the said meeting, for the purpose of delibera- 
 ting on the subject of this order.) 
 
 A.B„| 
 
 0. D., y Commissioners. 
 
 E. F., j 
 
 Note. — If there is only one commissioner in the town, the 
 above form maJy be changed accordingly. In that case omit the 
 latter part of the order, commencing with the words " Done at a 
 meeting, cfec," and simply date and sign the order in the usual 
 manner. 
 
 (]^o. 61.) 
 
 Sec. 141. 
 
 Notice to the Occwpant to remove the encroachment. 
 
 To Mr. A. G. : 
 
 Take notice, that an order of which a copy is hereunto annexed 
 as a part of this notice, has:been duly made by the commission- 
 ers of highways of the town of , in the connty of , 
 and that you are hereby required to remove the fence therein 
 specified, as .encroaching upon the highway, within sixty days 
 after servipe hereof. 
 
 Dated, Perinton, September 1,- 1859. 
 
 A.B.,) 
 
 0. D.,' V Commissioners. 
 
 E.r.,j 
 
APPENDIX. 197 
 
 (No. G2.) 
 
 Seo. 143. 
 
 Denied of the encroachment Try the Occwpant. 
 
 To A. B., 0. D. and E. F., commissioners of highways of the 
 town of 
 
 Tate notice, that I he^ehy.deny that the highway mentioned 
 in the order madehy you, (w, made by A. B. and C. D., two of 
 you the said commissioners,) ^ated the day of 1859, 
 
 and also mentioned in your notice, (or, the notice of A. B. and 0. 
 D., two of you the said commissioners,) to me, tp remove an en- 
 croachment, dated August first, 1859, and which notice has here- 
 tofore been served on me, is encroached upon as is in said 
 order or notice mentipned and specified, nor is the said highway 
 in. any manner encroached upon on the easterly (or, westerh/, as 
 the case may he) side thereof, along the lands occupied by me. 
 
 Dated , 1859. 
 
 A.G. 
 
 (No. 62.) 
 
 Seo. 144. 
 
 Summons to Freeholders m case of an encroachment. 
 
 Oneida Cottntt, ss : 
 
 To any constable of the town oi , in the said county. 
 
 You are hereby commanded in the name of the people of the 
 State of New York, to summon twelve freeholders of said town 
 to meet on the day of , at 10 o'clock in the fqrenoon 
 
 of that day, at the dwelling house of , in said town, to 
 
 inquire into the matter of an alledged encroachment upon the 
 highway in said town, running by (or, through) the lands now 
 occupied by A. G., and you are to give at least three days' notice 
 to the commissioners of highways of said town, and to the said 
 A. G., of the time and place at which such freeholders are to 
 meet, and have you then and there this precept. 
 
 Given tinder my hand, this day of , 1869. 
 
 J. W. 
 Justice of the Peace. 
 
198 APPENDIX. 
 
 (Ko. 62.) 
 
 Steo. 143. 
 
 Notice of the time and place ai 'wihich the Freeholder's will meet 
 to be given to the Commissioners and to the Occiipcmt. 
 
 To A. B., C. D. and E. F., commissioners of higliwaya of the 
 town of , and to A. G. : 
 
 Tate notice, that twelve freeholders of the town of , in the, 
 county of , hare been summoned by me to meet at the 
 
 dwelling house of , in said town, on the day of , 
 
 1859, iat 10 o'clock in the forenoon of that day, to inquire into 
 the matter of an alledged etlcroachment upon the highway in 
 said town, running by {Or, through) the lands now occupied by 
 you, the said A. G. 
 
 Dated, , 1859. H. "W., Constable. 
 
 (No. 62.) 
 
 Seo. 144. 
 
 Oath to Jurors. 
 
 You, and each of you, do solemnly swear, that you will well 
 and truly inquire whether any encroachment has been made, and 
 by whom, on the highway now in qtiestion. 
 
 (No. 63.) 
 
 Seo. 146. 
 
 Oath to Witness. 
 
 You dp swear, that the evidence you shall give, in relation to 
 the encroachment on the highway now in question, shall be the 
 truth, the whole truth, and nothing but the truth. 
 
 (No. 64.) 
 
 Seo. 146. 
 
 Certificate of Jury finding Encroachment. 
 
 ONsroA Cotnrrr, ss. 
 
 The undersigned, freeholders, of the town of 
 in said county, having met on the day of the date hereof, at the 
 
APPENDIX. 
 
 199 
 
 dwelling house of , in said toWBj J)'ar8iiant to a sum- 
 
 mons from , Esq., a justibe of the peace of the 
 
 said county, to inquire into the matter of an alledged encroach^ 
 ment on the highway, in said town, specified in an order of the 
 commissioners of highways of said town, dated , 18 
 
 a copy whereof is hereto annexed, and having been duly sworn, 
 and having heard the proofs and allegations which were stibmit- 
 ted, do certify, that such encroachment on the said highway has 
 been made, aiid that the same was made by 
 the present occupant, [or, by Samuel Smith, a former occupant^ 
 of the land liirough [or, by) which said highway runs. 
 
 And the particulars of such encroachment are as follows, viz : 
 [here describe the encroachment with certainty as to its location 
 and extent.^ 
 
 , June 20, 1851. J. K., 
 
 L.M., 
 &c., &c. 
 
 (No. 64.) 
 
 Sec. 145. 
 
 Warrant to Collect the costs of an Inquiry Concerning an En- 
 ' croachment. 
 
 County, ss. 
 
 The People of the State of New York to any Constable of the 
 town of , in the county of 
 
 Whereas, the commissioners of highways of the said town did, 
 on the day of , 1859, duly make, reduce 
 
 to writing, and sign an order for the removal of a certain fence 
 as an encroachment upon the highway running through {or, by) 
 the lands in said town in the occupation of A. Gr., specifying the 
 breadth of the road, and the extent and place of the encroach- 
 ment, according to the statute; which said encroachment being 
 denied by said occupant, a jury of twelve freeholders was, upon 
 the application of the said commissioners, {or, upon the applica- 
 tion of A. B., one of the said commissioners,) by a precept issued 
 by me duly summoned to meet at the house of 
 in said town, on the day of , 1859, to inquire 
 
 into the premises; and whereas, due notice of the said time and 
 place at which the said freeholders were summoned to meet, was 
 duly given to the said commissioners and to A. G., the said occu- 
 
200 APPENDIX. 
 
 pant, as required by law; and wliereas, the said twelve freehold- 
 ers, so summoned, did meet at the said time and place, and, hav- 
 ing been first duly sworn, and having heard the proofs and alle- 
 gations which were produced and submitted to them, did make 
 and subscribe a certificate in writing that an encroachment had 
 been made by , the present {or, former) occupant of 
 
 said land, stating the particulars thereof, which certificate has 
 been filed in the office of the tQwn clerk of said town; and where- 
 as, the costs of said inquiry amount to the sum of , 
 dollars and , cents, at which sum they have been settled 
 and adjudged by me; and whereas, ten days have elapsed since 
 the filing of said certificate in the oflice of the town clerk of said 
 town, and the said costs remain unpaid; you are therefore com- 
 manded to levy the said costs of the goods and chattels of the 
 said A. G., and bring the same before me, without delay. 
 
 Given under my hand and seal, this day of 
 
 1858. 
 
 J. W., Justice of the Peace, [l. s.] 
 
 (No. 65.) 
 Sec. 146. 
 Certificate of Jury where no Encroachment is found. 
 
 County, ss. 
 
 The undersigned, freeholders, of the town of 
 in said county, having met on the day of the date hereof, at the 
 dwelling house of , in said town, pursuant to a sum- 
 
 mons from , Esq., a justice of the peace of said 
 
 county, to inquire into the matter of an alledged encroachment 
 on the highway in said town, specified in an order of the commis- 
 sioners of highways of said town, dated 
 
 1859, a copy whereof is hereto annexed, and having been duly 
 sworn, and having heard the proofs and allegations which were 
 submitted, do certify, that no such encroachment has been made 
 on the public highway; and we have ascertained and do hereby 
 ciertify, that the damages which A. G-., the occupaut of the lands 
 by {or, through) which said highway runs, has sustained, by rea- 
 son of the proceedings of the said commissioners against him, is 
 the sum of dollars. 
 
 Dated, July 1, 1859. J. K., 
 
 L. M., 
 &c., &c. 
 
APPENDIX. 201 
 
 (No. 66.) 
 
 Sec. 154. 
 
 Statement of Overseer in relation to Gales. 
 
 To the Town Clerk of Attica, in the county of "Wyoming. 
 
 The following is a true and correct statement of the charges 
 incurred in the erection [or, in repairing] of a gate in highway 
 district No. in said town where, the said highway runs through 
 lands occupied by A. B., for whose benefit the said gate was 
 erected, liable to be overflowed by the waters of 
 brook, (or, creek.) 
 
 1859. Aprili. Paid for 100 feet of boards, $1 00 
 
 « Paid A. B. for — — , 2 00 
 
 ,, Amount, $3 00 
 
 Given xmder my hand, at Attica, this day of 1859. 
 
 E, F., Overseer of District No. 
 
 Wyoming Cottntt, Town of Attica, ss. 
 
 E. P., being duly sworn, deposes and says, that the 
 above statement and account are ti'ue and correct. 
 Sworn and subscribed, &c. E. F. 
 
 (No. 67.) 
 Seo. 96. 
 
 Determination upon a svHyect of Disagreement ietwem the Cmm- 
 
 missioners of two Towns, relating to Road extending 
 
 into loth Towns. 
 
 At a joint meeting of the commissioners of liighways of the 
 town of , in the county of - , , 
 
 and the commissioners of highways of the town of , 
 
 in the same county, {if both towns are not in the same county, 
 vary the form aoaordi^k/,) held at 
 in tbe said town of , on the day of 
 
 1859, upon the request of the said commissioners of highways of 
 the said town of , for the purpose of making a 
 
 determination upon the subject of a disagreement between the 
 said commissioners of the said towns, relative to the laying out 
 
APPEHDIS. 
 
 {or, the alteration) of a road hereinafter described, and extend- 
 ing into both of said towns, the said commissioners of the said 
 towns have determined, and do hereby detennine, that the said 
 road be laid out (or, altered) as follows, to wit: [Aere set forth 
 the manner in which the dispute is adjusted and settled.'^ Done 
 by us, the undersigned, commiesiQner^,,at the said meeting of the 
 commissioners of highways of the said towns on the day and at 
 the place above mentioned, all of the commissioners of highways 
 of each'of said towns having met and deliberated on the subject 
 of this order, {or, all of the eommissioners of highways of each 
 of said towns having been duly notified to attend said meeting 
 for the purpose of this order.) 
 
 B A 1 
 
 ip' pv"' ( Commissioners of Highways 
 
 Commissioners of Highways 
 of the Town of 
 
 (I^P-68.) 
 
 Sec. 97. 
 
 Order of Commissioners for laying out a EigTiway 'on the line 
 between two Towns. 
 
 At a meeting of the commissioners of highways of the towns 
 of and , in the county of , held in the said 
 
 town of , on the day of 1869, for the purpose of . 
 
 laying out a highway upon aline between the said towns, it is 
 ordered and determined by the undersigned commissioners, that 
 a highway be laid out upon the line between the said towns, or 
 as near thereto as ^he ground will admit, according to the sur- 
 vey thereof, which the said commissioners have cause to be made, 
 as follows : {insert survey) and that the said line above described 
 be the center of the said highway, and that the said highway 
 be of the width of j-ods. And it is further ordered, that 
 
 the said highway be and the same is hereby divided into two 
 road districts, as follows : that part thereof from to 
 
 shall be one of the said road districts, and shall be and it is 
 hereby allotted to the said town of , and the residue of the 
 
 said highway shall be the other of the said road districts, and 
 the same shall be and it is hereby allotted to the said town, of 
 . Done by us, the undersigned commissioners, at 
 
 \ \ 
 
APPENDEJ. 203 
 
 the said meeting of the commissioners of highways of the 
 said towns, on the day and at the place ahove mentioned, all of 
 the commissioners of highways of each of the said towns having 
 met and deliberated on the subject of this order, {or, all of the 
 commissioners of highways of each of the said towns having 
 been duly notified to attend'eaid meeting for the purpose of de- 
 liberating on the subject of this order.) 
 
 p ■ -T)'' / Oommisdon&rs of Highwa/ys 
 ^^'^\ of the town of 
 
 f ■ J ■' / Commissioners of EAghwwys. 
 iu. M., j ^ ^^ *°^"' ^ 
 
 (TSTo. 69.) 
 
 Seo. 115. 
 
 DesoriptdfOn of Hood dbwndonedto he signed hy Commdssioners. 
 
 "We, the undersigned, commissioners of highways, of the town 
 of , in the county, of , in the State of New York, 
 
 having met at (here state place of meeting,) in said town, on the 
 day of , 1859, for the purpose of acting on the sub- 
 
 ject herein embraced, {if all the commissioners are present at th^ 
 m,eeting and two only concur, say : all of the commissioners of 
 highways of said town having attended said meeting and de- 
 liberated on the subject embraced herein ; or if there are three 
 commissioners in the tovm and one does not attend, say : all of 
 the commissioners of highways of said town, having been duly 
 notified to attend the said meeting for the purpose of deliberat- 
 ing on the subject herein embraced,) do hereby certify, that a 
 certain highway {or, a certain part of a highway) iii said town, 
 described as follows, that is to say : {here insert a description of 
 the highway or part of the highway abandoned^ has by reason 
 of alterations made therein, {or, by reason of the opening of a 
 new road ; or, if for any other reason state ih§, same,) been 
 abandoned by the public, and is no longer used as a public road; 
 and we do therefore hereby order that the same be and the same 
 is hereby discontintied. 
 
 Witness our hands, this day of , 1859. 
 
 Commissioners. 
 
204 APPEHDIX. 
 
 (No. 70.) 
 
 Oaih io he taken ly Comimisdoner of IBghways hefore he enters 
 on the dmties of his ofjiGe, 
 
 I do solemnly swear (or, 'affirm, as the case may be,) that i 
 will support the constitution of the Tlnited States, and the con- 
 stitution of the State of New York ; and that I will faithfully 
 discharge the duties of the office of commissioner of highways, 
 of the town of , according to the best of my ability. 
 
 Sworn and subscribed, this ) 
 
 day , 1859, \ A. B. 
 
 before me, ) 
 
 C. D., Justice of the Peace. 
 
 MoHEOE County, ] 
 Town of , r^- 
 
 I hei'eby certify, that the above oath was duly 
 taken before me, by the said A. B., the subscriber thereto, on the 
 day of , in the year 1859. 
 
 C. D.j Justice of the Peace. 
 
 Note. — ^The commissioner should cause the above oath and 
 certificate to be filed in tie office of tlietown clerk, within eight 
 days after the oath is taken. The oath may be taken before a 
 justice of the peace, or before the town, clerk, and no fee is 
 chargeable for taking the oath or making the certificate. 
 
 (No.n.) 
 Bond to he given hy Commissioner of Highways to Supervisor. 
 
 Know all men by these presents : That we, A. B., C. D. and 
 E. P., of the town of Penfield, in the county of Monroe, and 
 State of New York, are held and firmly bound unto G. H., super- 
 visor of the said town of Penfield, in the penal sum of one 
 thousand dollars, to be paid to the said Gr. H., or to his succes- 
 sors in office ; for the payment of which, we bind ourselves, our 
 heirs and legal representatives,, jointlyj severally and firmly by 
 these presents. 
 
 Sealed with our seals, and dated the day of , in the 
 
 year 1859. 
 
APPENDTX, 
 
 205 
 
 "Whereas, the above bounden A. B., has been duly elected, {or, 
 appointed) a commissioner of highways, in and for the said town 
 of Penfield, to serve for the term of , from the day 
 
 of , 1859, (or, if appointed to fill a vacancy, say : to serve 
 
 y until the . day of , 1859,) and until a.successor shall be 
 
 duly elected or chosen. Now, therefore, the condition of this 
 obligation is such, that if the said A. B., shall faithfully dis- 
 charge his duties as such commissioner, and within ten days 
 after the expiration of his term of office, pay over to his succes- 
 sor what money may be remaining in his hand as such commis- 
 sioner, and render to such successor a true account of all moneys '^ 
 received and paid out by him as such commissioner, then the 
 above obligation to be void ; otherwise to remain in fall force 
 and virtue. 
 
 Signed, sealed and. delivered, ) A. B., {l. s.] 
 
 in presence of > 0. D., [l. s.] 
 
 ) E. F., [L. s.] 
 
 I approve of the. above {or, within) bond, and of the sureties 
 named therein. 
 
 G. H., 
 Supervisor of the town of 
 
 (No. 72.) 
 Application for a Ferry. 
 
 To the County Court of County, in the State 
 
 of New Tork. 
 
 The application of A. B. of the town of , in the 
 
 county of , respectfully showeth: That he, the 
 
 said A. B., (or, that 0. D. is,) the owner of the lands in said town 
 through which the public highway runs, leading from 
 to , over and across the lake 
 
 {or, river,) and that a ferry ought to be established for the con- 
 venience and accommodation of the public, upon the said lake 
 {or, river;) wherefore, the undersigned, A. B., hereby makes ap- 
 plication to the said court to grant him a license to establish such 
 ferry, on his compliance with the provisions of the statute in such 
 case made and provided; [if the application be made by some 
 person other than the owner of the land, insert herei] the said 0. 
 D., the owner of the land through which the said highway runs, 
 as aforesaid, having neglected to apply for such license, after due 
 
206 APPEHDK. 
 
 service of the notice required by law, as appears by a copy ot 
 said notice and the affidavit of service ■which are hereunto an- 
 nexed. 
 
 Dated, the day of ,1859. A. B. 
 
 {'No. 73.) 
 
 NoUce of an Application for a Ferry. 
 
 To 0. J). Sir — You will please to take notice, that an applica- 
 tion will be made by me to the county court of the county of 
 at the next term of said court, to be. hold en at the court house in 
 , on the first Monday of next, for a license 
 
 to be granted to me to keep a ferry across the i-iver in the 
 
 town of ^ in said county, whei:e {here dascribe 
 
 the place where it is proposed to have the ferry ^ 
 
 Dated, 1859. 
 
 Tours, &c., A. B. 
 
 County, ss, 
 
 A. B., of the said county, being duly sworn, 
 says, that on the day of , 1859, at the town 
 
 of , in said county, he perscnally served a no- 
 
 tice of which the above is a copy on C. JD., the person to whom 
 said notice is directed by delivering the same to and by leaying 
 the same with him. 
 
 Sworn to this day of ) A, B. 
 
 1859, before me. \ 
 
 (No. 74,) 
 
 Recognizance, by Applicant far a Ferry. 
 
 State op INewYoek, ) 
 
 county, \ ^^' 
 
 Be it remembered that I, A B., of the town 
 of 5 in the county of ' , do hereby ac- 
 
 knowledge myself io be, indebted to the people of the State of 
 
APPBNDI2, 207 
 
 New York, in the Bum of one hundred dollars, to be well and 
 truly paid, if default shall be made in the condition following: 
 
 Whereas, the said A. B. has this day applied to the county court 
 of the said county of , for a license to keep a ferry on 
 
 the lake {or, river) in the town of , in said 
 
 county. 
 
 Now, therefore, the condition of this recognizance is such, that 
 if the said A. B. shall faithfully keep and attend the said ferry, 
 provided a license shall be granted to him for that purpose as 
 aforesaid, with such and so many sufficient and safe boats, and so 
 many men to work the same, as shall be deeiHed necessary, to- 
 gether with sufficient implements for said feny, during the sev- 
 eral hours in each day, and at such several rates as the court 
 granting the license, sliall, from time to time, order and direct 
 them, this recoguizance shall be void, otherwise, to remain in fuU. 
 force and virtue. 
 
 Subscribed and acknowledged in ) A. B., [l. s ] 
 
 open court, this day of >- 
 
 1859, before me, ) 
 
 E. F., Clerk of County Court. 
 
 (No. 75.) 
 
 License to huep a Ferry. 
 
 At a county court held at the court house in county, on 
 
 the day of , 1859. 
 
 Present, J. C. C, County Judge : 
 
 It is hereby ordered and determined upon the application of 
 A. B., for that purpose made to this court, that license be 
 granted to the said A. B., to^eep a ferry upon the lake, 
 
 \or, river,) in the town of , in said county of , at 
 
 {here describe the place where the ferry is to he,) for the term of 
 years, from the day of , 1859. {If necessary, 
 
 add: and it is further ordered, that the said A. B. be allowed 
 to collect and receive ferriage for the transportation of travelers, 
 property and effects, over and across the said ferry, at and after 
 the following rates, viz : {here give the rates jorescriled,) and that 
 he shall not take or require any greater sum for such transport- 
 ation. 
 
 E. F., CUrk. 
 
208 APPENDIX. 
 
 (Ko. 76.) 
 
 CerUjlcaU of Olerk to annex to copy. 
 
 State of New Toek, ) 
 
 County, [ ^®- 
 
 I, E. F., clerk of the county court, 
 
 do hereby certify, that I have compared the foregoing {or, an- 
 nexed) copy of a license with the original, this day entered upon 
 the records of the said court ; and that the same is a correct 
 transcript therefrom, and of the whole of said original. 
 
 In testimony whereof, I have hereunto affixed my name and 
 the seal of the said court, this day of , in the year 
 
 1859. 
 
 [l. s.] E. F. Clerk 
 
FORMS, 
 
 UNDER THE PLANK EOAD AND TURNPIKE LAW. 
 
 (No. 77.) 
 Seo. 1. 
 Notice to Open JBooJes, (&c. . 
 
 BEIGHTON PLANK EDAD. 
 
 Notice is hereby given that books for subscribing to the Capital 
 Stock for a Plank Road {or, turnpike) to be constructed, to ran 
 from the city of Rochester to the village of Pittsford, in the coun- 
 ty of Monroe, through the village of , vyill be 
 opened at the Eagle Tavern in said city, on the day of 
 
 ,1859, at 10 o'clock A. M., and continue open from that 
 time till 4 P. M., on that and each succeeding day for days. 
 
 Dated, , 1859. A. B., 
 
 C. D., &c. 
 
 1^° This notice must be printed in one or more newspapers 
 according to section 1, and may be signed by one or more persons. 
 
 (No. 78.) 
 
 Sec. 1. 
 
 Booh of Subscription. 
 
 BEIGHTON PLANK EOAD. 
 
 To form a corporation under the Plank Road Act, so called, 
 passed May 7, 1847, and the subsequent acts amendatory thereof, 
 in pursuance of public notice, with a capital of thousand 
 
 dollars, divided into shares of $ each, the subscribers 
 
 severally and mutually agree to take and pay for the shares of 
 stock set opposite our names, to the directors of the company 
 
210 APPENDIX- 
 
 hereafter to be formed under said act, in such sums and at such 
 times and places as such directors may order, for the purpose of 
 constructing a plank road from the city of Rochester to the vil- 
 lage of Pittsford, in the county of Monroe. 
 Dated, &c. 
 
 Names. I Residence. I No. of Shares. . 
 
 (No. 79.) 
 Sec. 1. 
 Hfotioe to Subscribers of Meotion of Directors. 
 
 BEIQHTON PLANK EOAD. 
 
 Notice is hereby given, that the subscribers to the stock of this 
 road will meet at , on the day of . , 
 
 185 , at 12 M.. to elect directors for said company. 
 
 Dated, &c.' ' . 0. D. 
 
 (No. 80.) 
 
 Sec. 1. 
 
 Articles of Association for the Brighton Plank Road Company. 
 
 Articles of association made and entered into this day 
 
 of , in the year 1859, by and between the persons 
 
 whose names are hereunto subscribed, witnesseth: 
 
 Article 1. That we, the undersigned; do hereby form ourselves 
 into a corporation fpr the purpose of constructing 
 and owning a plank road fi-om to 
 
 , wholly within the county of 
 (or, counties of and ,) 
 
 and State of New York. 
 
 2. This association shall he called and known as the 
 
 "JBrighton Plank Road Company." 
 
 3. The said company is to continue for the term of 
 . years from the date hereof. 
 
 L The apount of capital stock of said company shall 
 be thousand dollars. 
 
 5. The said capital stock shall consist of hun- 
 
 dred shares of dollars each. 
 
APPENDIX. 
 
 211 
 
 6. The concerns of said company shall be mana;ged by 
 
 directors, to wit: A. B., 0. D., E. F., G. H. 
 and J. K., [not less tham five nor more tJian nine,"] 
 until others are chosen according to law. 
 
 7. The said road shall be constructed from ' _ to 
 
 , and shall pass through [the village of 
 ,] and shall be, as nearly as can be fes- 
 timated, miles and rods in length. 
 
 8. The stockholders owning in good faith a majority of 
 
 all the capital stock of this association, may, at any 
 legally notified meeting of the members thereofj 
 pass such by-laws for the regulation and manage- 
 ment of the concerns of the same, as they shall 
 deem necessary, in accordance with the law. 
 
 9. It shall be the duty oif the directors to issue scrip to 
 
 those who shall be entitled to stock in said compa- 
 ny; when five per cent, on the amount of such stock 
 shall have been paid in thereon, which scrip shall 
 be signed by the president, and countersigned by 
 the secretary of said company. 
 10. It shall be the duty of the treasurer to endorse upon 
 the scrip, which shall be held by any stockholder, 
 every sum which shall be received by such treasur- 
 er thereon, and the time when any such sum shall 
 be so received. 
 
 Dated, &c. 
 
 Names of Subscribers. 
 
 Place of Kesidence 
 
 No. of Shares of 
 Stock. 
 
 A.B., 
 
 Pittsford, Mon'e co 
 
 25 shares. 
 
 (No. 81.) 
 Scrip Certificate. 
 
 THE PLANK EOAD COMPANY. 
 
 No.— 
 
 This certifies, that A. B. of4he town of 
 in the county of , and State of New Tork, is 
 
 entitled to shares of the capital stock of the. 
 
 Plank Koad Company, each share being dollars, upon 
 
 each share of which there has been paid the sum , 
 
 subject to such future payments as may, from time to time, be re- 
 quired by the directors, and the conditions of the articles of in- 
 
212 APPENDIX. 
 
 corporation; said stock is transferable only on the books of the 
 corporation, by the stockholder in person, or by his attorney, and 
 on surrender of this certificate. 
 
 In testimony whereof the president and . secretary have here- 
 unto set their hands, at , this 
 day of ,1859. 
 
 D, C, Secretary. A. G., President. 
 
 (No. 82.) 
 
 Affidamt of Directors, required ly Sec. 2. . 
 
 MoNEOE County, ss : 
 
 A. B., C. D., E. F., directors of the Brighton plank road com- 
 pany, being severally duly sworn, say, that the amount of capital 
 stock required by the first section of the " Plank Eoad Act," so 
 called, passed May 7, 1847, to, wit ; the amount of at least five 
 hundred dollars for every mile of the road intended to be built 
 by said company, has been in good faith subscribed ; and that 
 five per cent, on the amount thus subscribed has actually been 
 paid in cash, to the directors named in the annexed articles of 
 association. 
 
 Sworn, &c. A. B., 
 
 C. D., V Directors. 
 
 . 
 
 E. p., ) 
 
 (No. 83.) 
 
 Application td Supervisors for authority to lay out the Road. 
 
 Sec. 4. 
 
 The Brighton plank road company, hereby apply to the board 
 of supervisors of the county of , for authority to lay out 
 
 and construct a plank road, under the act of May 7, 1847,con- 
 tinuously, from to , passing through the village of 
 
 , and to be, as near as can be estimated, miles in 
 
 length, and to take the real estate necessary for such purpose. 
 {^ the road is. to le constmated in two or more counties, add : 
 and the said company desire to have [state tJie number) appointed 
 to lay out such road.) C. D., President. 
 
 Dated, &c. A. L., Secretary of the Brighton 
 
 Plank Road Company. 
 
 Note. — See Sec. 8 as to the appointment of the commissioners. 
 
APPENDIX. 
 
 213 
 
 (No. 84.) 1 
 
 Notice of Application to Supervisors. Sec. i. 
 
 Notice is hereby given, that the following application will be 
 presented to the board of supervisors of Monroe county, on the 
 day of f 18 ; that the proposed plank rqad is to 
 
 be constructed of a single track of eight feet, or thereabouts, in 
 width, and to run from the city of , and pass through the 
 
 village of , and the town of' , to the village of 
 
 0. D., Pres. & A. B., Sec. B. P. K. Co. 
 Dated, &c. 
 
 {Mere attach the application.) 
 
 (No. 85.) 
 
 Notice to three Supervisors for Special Meeting of the Board. 
 
 Sec. 6. 
 
 The undersigned, supervisors of Brighton, Push and Henri- 
 etta, in the county of Monroe, hereby give notice, that a meeting 
 of the board of supervisors of said county, will be held at the 
 court house in the city of Rochester, on the day of , 
 
 at 10 o'clock, A. M., to hear an application of the Rush plank 
 road company, for authority to lay out and construct a plank 
 road from to , passing through , and to take 
 
 and hold the real estate necessary for such purpose. 
 Dated, &c. 
 
 O. P., ) 
 
 R. S., )■ Supervisors. 
 
 E.F., 
 
 (No. 86.) 
 Affidamii cf Service of foregoing Notice. 
 
 OnTAEIO CotlNTT, SS. 
 
 A. K., of Phelps, being duly sworn, saith that he served a 
 notice, of which the within is a copy, on A. M., the supervisor 
 of the town of , in said county, and on 0. D., supervisor of 
 
 the town of in said county, [continue as to the other super- 
 
 visors) on the day of , 1859, by delivering the said 
 
 notice to the said A. B. and C. D., supervisors, personally. {If 
 some of the supervisors were served iy leaving the notice at their 
 
214: APPENDIX. 
 
 residence, say : and the service of the said notice was made on 
 the said E. F. and C. G., supervisors, by leaving the same at the 
 place of residence of each of the . ) 
 
 Sworn' to, this day ) 
 
 of , 1859, V S. L. 
 
 before me, ) 
 
 (No. 87.) 
 
 OatJb of Comnj,issioners, ajopointed imder Sec. 8. 
 
 "I do solemnly swear {or, affirm, as the case may be,) that 1 
 will support the constitution of the United States, and the con- 
 stitution of the State of New York ; and that I will faithfully 
 discharge the duties of a commissioner to lay out a plank road 
 for the Brighton plank road company, from the town to the 
 
 , according to the best of my ability." 
 
 (No. 88.) 
 Petition to County Judge. Sec. 12. 
 
 To the Hon. J. G. C, Monroe County Judge: 
 
 The petition of the Brighton Plank 
 Eoad Company, by their secretary, humbly showeth, that the 
 route surveyed and established by the commissioners appointed 
 to lay out the road intended to be constructed by said company, 
 runs in part through lands of M. B., in the town of 
 and your petitioners further show, that the said company cannot 
 agree with the said M. B., for the purchase of said lands, (or that 
 he is a non-resident, insane, or an idiot, or an infant, ana other 
 reason, and what means have been taken to ascertain his name or 
 residence,) which lands are described as follows, {describe the lands'] 
 Tour petitioners therefore pray, that the compensation and dam- 
 ages of the owner (or, owners) of said lands may be ascertaiiled 
 by a jury. 
 
 Dated, &c. D. D., President, and 
 
 A. B., Sec. B. P. K. Co. 
 
 A.B.,) 
 
 C..B., y Di/reotors. 
 
 E. F. 
 
 ( 
 
APPENDIX. 
 
 ,215 
 
 (No. 89.) 
 Affidavit of Verification. Sec. 18. 
 
 MONEOB COTTNTT, 88. 
 
 A. B., CD. and E. F., Directors of the Brighton 
 plant road company, being severally duly sworn, say, that the 
 lacts set forth in the annexed for, witMn\ petition are true. 
 
 A. B. 
 Sworn, &c. 0. D. 
 
 E.F. 
 
 (Eo. 90.) 
 
 Affidavit that Name or Residence of Owner is unknown. — Sec. 18. 
 
 MoNBOE County, ss. 
 
 I. M., of the city of Eochester, being duly sworn, 
 saith, that the owner of the lands described in the annexed peti- 
 tion is unknown to this deponent, and his residence or name can- 
 not, after careful inquiry, be ascertained' by him. [State any 
 facts applicable to the case.'] I. M. 
 
 (No. 91.) 
 
 Order of Judge. Sec. 19. 
 
 Ordered on petition of the Brighton Plank Eoad Company, — 
 That a jury be drawn, according to law, at the clerk's office of 
 Monroe County, on the day' of ,185 , 
 
 at 1 o'clock, P. M., to ascertain the compensation and damagefeto 
 A. B. and O. , owners of lands through which the said 
 
 company intend to construct their plank road. 
 
 J. 0. C, Monroe Co. Judge. 
 
 (No. 92.) 
 
 Notice upon such Order. Sec. 19. 
 
 Notice is hereby given, that in pursuance of an order of which 
 the annexed is a copy, a jury will be drawn at the time and place 
 therein set forth, and as required by the statute in such cases. 
 
 A. B., Sec'y B. P. R. Co. 
 
216 APPENDIX. 
 
 (No. 93.) 
 
 Affidavit of Service of the Ifotice in Sec. 21. 
 
 MoNEOE County, es. ^ 
 
 0. L., of Brighton, being du]y sworn, saith, that 
 
 he personally served [or otherwise, as the case may 6e,] the notice 
 
 of which the annexed is a copy, on A. ,B. , and 
 
 0. , therein named, on the day of 185 
 
 Sworn, &c. S. T. 
 
 (No. 94:.) 
 Appointment of Guardian. — Sec. 20. 
 
 • 
 
 1 hereby appoint J. K., of , as a suitable person 
 
 to take care of the interests of L. M., an infant {or, idiot, or, mar- 
 ried woman, as the case may be,) owner of certain lands intended to 
 be taken and used by the Brighton Plank Eoad Company, in the 
 construction of their plank road, in respect to the proceedings to 
 ascertain his compensation and damages by a jury according to 
 law. 
 
 Dated, &c. J. C. C, Monroe Co. Judge. 
 
 (No. 95.) 
 
 Affidavit of Service. — Sec. 23. 
 
 Columbia County, ss. 
 
 E. F., Sheriff, {or, one of the constables,) of said 
 county, being duly sworn, sa^s, that he personally served the an- 
 nexed precept on A. B. and C. D., jurors in said precept named 
 on the day of j IS , by reading the same 
 
 to each of them. {J^ the service was made by leaving a notice 
 at fhei/r residences, state the same accordingly as directed in section 
 23, contiiiue until tJi^ affida/oit includes all the jurors served.) 
 And the distance he necessarily traveled for that purpose was 
 miles. 
 Sworn, &c. E. F. 
 
 (No. 96.) 
 Subpomafor Witness. — Sec. 25. 
 
 MoNEOE County, ss. 
 
 To Greeting : You are hereby 
 
 commanded in the name of the people of the State of New York, 
 
APPENDIX. 
 
 217 
 
 to appear and attend at , in the town of 
 
 in said county, on the day of j 18 > at 10 
 
 o'clock in the forenoon of that day, before a jury, then and there 
 to be empanelled, to testify before such jury what you may know 
 in respect to the damages of A. B., in consequence of a plank 
 road intended to be constructed on or through the lands of gaid 
 A. B. by the plank road company, and then and 
 
 there to be inquired into and determined by said jury. 
 
 Given under my hand at on the day of 18 
 
 A. B., Justice of the Peace. 
 
 (No. 97.) 
 Order, jmmg the Time and Place of Meeting of Jury. — Sec. 26. 
 
 On petition of the plank road company, it is or- 
 
 dered, that the jury to ascertain the compensation and damages 
 of A. B. and 0. D., for their lands intended to be occupied in lay- 
 ing out and constructing the plank road of such company, meet 
 for such purpose at the House of in the 
 
 town of in the county of , on the 
 
 day of > 18 , at 11 o'clock A. M, 
 
 Dated, &e. J. 0. 0., Monroe Co. Judge. 
 
 (Eo. 98.) 
 Notice to Owners of Meeting of Jury. — Sec. 26. 
 
 Take notice, that the jury to ascertain the compensation and 
 damages of certain persons in the annexed order mentioned \at- 
 tach the 'notice to a copy of the order,"] for lands intended to be oc- 
 cupied by the plank road company in laying and con- 
 structing their road, will meet at the time and place in the said 
 order set forth. 
 
 Dated, &c. E. F., Sec'y B. P. E. Co. 
 
 To A. B. 
 
 (No. 99.) / 
 
 Affidavit of Service of the foregoing Notice. 
 
 MoNEOE County, ss. 
 
 J. K., of , in said county, being duly sworn, saith, 
 
 that on the day of , 18 , he served a notice, of 
 
218 APPENDIX, 
 
 which the within is a copy, [attach a com of ihe notice) on A. B. 
 therein named by delivering the same to him personally {or, leav- 
 ing the same at his residence in ,) and fm'ther that 
 he served- the ^aid notice on 0. L. also in said notice named, by 
 putting the same enclosed into the post office in 
 and paying the posta'ge therebn; and ftirther that [state Tiow the 
 service was niaii 'Wpmi amy other owner in or out of the state, hnd 
 whether it was published, as regui/red ly se^ion 26.] 
 Sworn, &c. J. K. 
 
 No. 100. 
 
 Verdict of the Jwry, Sees. 29—31. 
 
 In pursuance of an or^er of. Wayne County Judge, bearing 
 date the day of j 18 , a copy of which is hereunto 
 
 annexed, the undersigned jurors, drawn and summoned to ascer- 
 tain and determine the compensation and damages that ought to 
 be -paid to C. L., D. T., and J. Y., owners of land to be taken by 
 the Palmyra plank road company, and for takings the same for 
 said road, and also the amount that ought to be paid to them for 
 the time spent and the necessary expenses incurred in respect to 
 the proceedings, having met at the time and place in s^id order 
 mentioned, and heard all the proofe and allegations of the parties, 
 and viewed the lands in question, have ascertained and deter- 
 mined the amount of such compensation and damages, and 
 therefore certify, that the said company ought to pay to the said 
 C. S., for his land so taken, to wit : (describe it particularly,) 
 together with his time spent and the necessary expenses incurred 
 by him in respect to the proceedings, the sum of dollars and 
 cents. To the said D. T., for his land thus taken, to wit : 
 (describe it,) and his time and necessary expenses incurred as 
 aforesaid, the sum of ' dollars and cents. (Anditi 
 
 ' the same manner for all wftpse lands an taken.) 
 
 Dated, &c. 
 
 A. B., ) 
 
 Jurors. 
 
 (Nd. 101.) 
 
 Agreement with the Supervisor and Commissioners. See. 32. 
 
 It is hereby agreed by and between the supervisor and com- 
 ini'ssioher of highways of the town of Sandlake, in the cotmty of 
 
APPENDIX. 219 
 
 Kensselaer on the one part, and the Stephentown plank road com- 
 pany on the other part, that the said company shall pay to the 
 eaid commissioner tor thesaid town the sum of dollars and 
 
 cents, as the settled compensation and damages for taking 
 and using the public highway in said town for a plank road, to 
 wit : {desoribe the road partieularly) 
 
 Dated, &c. A. B., Stipervisor, 
 
 C. D., Commissioner, 
 E. F., Sec'y S. P. K. Co. 
 
 (No. 102.) 
 Affidavii of Non-Residence. Sec. 36. 
 
 Oeleans County, bs. 
 
 H. S. of HoUey, being duly sworn, saith, "C. D., to whom was 
 awarded th^ sum of % by a, jury summoned to ascertain 
 
 the compensation and damages due to him for certain lands in- 
 tended to be taken and used by the Medina plank road company 
 for the construction of a plank road, and whose verdict there- 
 upon was rendered on the day of , 18 , ie anon-res- 
 ident of this State, (or, after' diligent search cannot be found in 
 this State, so that the money can be paid to him,) according to 
 the best information and belief of this depon'ent. 
 
 Sworn, &c. H. S. 
 
 (No. 103.) 
 Order therewpon. Sec. 36. 
 
 Satisfactory proof having been made to me, that C. D. is a 
 non-resident of this State, (or, cannot be found in the State after 
 diligent search), it is ordered that the sum of % , being the 
 
 amount of verdict of the jury for the compensation and dama- 
 ges awarded him as owner of certain lands to be taken by the 
 Albion plank road company and used for a plank road, to be 
 paid to the treasurer of the county of Orleans, (where the lands 
 lie) for the use of such owner, the said 0. D., and that notice of 
 such payment be given by publishing the same once in each week, 
 for six successive weeks in a newspaper published in said county 
 of Orleans. H. E. 0. 
 
 Dated, &c. Orleans County Judge. 
 
220 APPENDIX. 
 
 Q^o. 104) 
 Affidavit of Payment and Publication. Sec. 36. 
 
 Oeleans County, ss. 
 
 K. L. of Albion, being duly sworn, saith that the sum of % 
 awarded to C. p., by a jury, as compensation and damages to 
 be paid him by the Albion plank road company, for taking and 
 using his lands for the construction of a plank road, has been 
 paid to the treasurer of the said county as required by order of 
 the Orleans county judge, made and dated the ' day of 
 and that a notice thereof, of which the annexed is a copy, {an- 
 nex the printed notice) has been published six successive weeka 
 in the Orleans Kepublican, as required by law. 
 
 Sworn, &c. E. L. 
 
 (No. 105.) 
 Notice of PoAjTnent to Treasv/rer. See. 36. 
 
 Notice is hereby given, that the sum of $ has been paid 
 
 to the Treasurer of Orleans county, by the Albion plank road 
 company, for the use of G. D., being the amount awarded to him 
 as compensation and damages for lands intended to be taken and 
 used by said company in the construction of a plank road frona 
 to . J. K 
 
 Dated, &c. Sec'y A. E. Co. 
 
 (No. 106.) 
 Order tTiereon. Sec. 36. 
 
 Satisfactory proof having been made to me, that the sum of 
 $ has been paid to the treasurer of the county of Orleans, 
 
 by the Albion plank road company, for the use of C. D., a non- 
 resident owner of lands, as his compensation and damages 
 awarded him for taking and using certain lands owned by him, 
 in the construction of the plank road of said company, and that 
 notice of such payment has been published as required by law, 
 it is ordered, that the said company take and hold the lands in 
 respect to which the said damages were awarded, in the same 
 manner and with the same effect as if such payment had been 
 made to the owner personally. 
 
 H. E. C, 
 
 Dated, &c, Orleans Co, Judge. 
 
APPBSDIX. 
 
 221 
 
 (Eo. 107.) 
 
 Bond to he given iy Gom/pany on appUcaiion of Opnerfor a 
 New Trial. Sec. 37. 
 
 Know all men by these presents, that we, E. "W. and Y. S., di- 
 rectors of the Waterloo plank rciad company as principals, and 
 O. H. as surety, all of Waterloo aforesaid, in the county of Sene- 
 ca, are held and firmly bound unto 0. D., of Seneca Falls, 
 in said county in the sum of five hundred dollars, (or any 
 proper sum) to be paid to the said E. D., or to his certain attor- 
 ney,, executors, administrators or assigns, tor which payment well 
 and truly to be made we bind ourselves, our heirs, executors, and 
 administers, jointly and severally, firmly by these presents. Seal- 
 ed with our seals, and dated the day of , 18 . 
 
 The condition of this obligation is such, that whereas there has 
 been awarded to the said E. D., the obligee above named, the 
 sum of dollars, as compensation and damages for certain 
 
 lands, intended to be taken and used by the Waterloo plank road 
 company, and the said E. D. having applied for a new trial in 
 the matter, and the said sum having been deposited as required 
 bylaw ; now, therefore, if the -said company shall pay the said 
 E. D. any sum of money which he may be entitled to receive 
 from said company, in respect to the land in question by reason 
 of any verdict, or judgment of any court for such compensation, 
 damages, costs, and expenses, without fraud or other delay, .then 
 this obligation to be void, otherwise to remain in-force. 
 
 Signed, sealed and delivered, ^ E.W., [l. s.J 
 
 in presence of >• Y. S., [l. s.] 
 
 j O.H., [L.S.] 
 
 (No. 108.) 
 Oerlifieates of Inspeotars. See. 42. 
 
 The undersigned, inspectors of plank roads and turnpike roads 
 in and for the county of ITiagara, do certify, that in pursuance 
 of an " Act to provide for the incorporation of companies to con- 
 struct plank roads, and of companies to construct turnpike roads," 
 passed May 7, 1847, we have inspected the plank road lately 
 constructed by the Lewiston plank road company in said county, 
 and are satisfied that the said road is made and completed 
 according to the true intent and meaning of the said act. 
 
 Dated, &a f.T-] ^''^''^''-'- 
 
222 APPENDIX. 
 
 (No: 109.) 
 Notice of Commissioners of JBighways. See. 56. 
 
 The Lockport plank road company will take notice, that we 
 intend to apply to the Niagara county Court, at the n«xfc term 
 thereof, to be holden at the court house, in the Tillage of Lock- 
 port, in and for said county, for an order to alter ox change the 
 location of the toll-gate now on the road r of said compaoy^ and 
 situated near the west line of lands of U. N. (Describe the sit- 
 uation of the gate*) 
 
 A . M., 1 Commissioner of Highways 
 Dated, &e. L H., ] of Lewiston. 
 
 To the Lockport Plank Eoad Company. 
 
 [To be served on the President and Secretary of the Company.} 
 
 (No. 110.) 
 Notice of Election of Directors. Sec. 61. 
 
 Notice is hereby given, that an election of (not less than 'five 
 nor more than nine) directors from the Tuscarora plank, road 
 company, will be held at the office of said company, on the 
 day of ,185 , at 10 o'clock, A. M. 
 
 Dated, &c. T. M., Se<^y, 
 
 (No. 111.) 
 Notice to Pay Stock. Sec. 63, 
 
 Notice is hereby given, that the stockholders of the Le Roy 
 plank road company are required to pay to the treasurer of said 
 company, at their office, one-fifth part of the stock by them sev- 
 erally subscribed, on or before the day of , 185 , under 
 penalty of forfeiture of their stock and all previous payments 
 thereon. 
 
 By order of the directors. , A. L., See^y. 
 
 Dated, &c. 
 
 (No. 112.) 
 
 Amvual jReportof Direeiors. /Sec 65. 
 
 To the Hon. the Secretary of State of New York : 
 
 The undersigned, direetora of the Batavia plank road com- 
 pany, in pursuance of the statute in such case made and provid- 
 ed, beg leave to report : 
 
APPENDIX. 223 
 
 That tlie road of the said company cost the sum of $ ; 
 
 That the amount of capital stock of said company is $ ; 
 
 Of which sum is already paid the sum of $ ; 
 
 That the amount of all money expended by the com- 
 pany is , . I ;. 
 
 That the amount of capital stock expended is - $ ; 
 
 That the whole amount of tolls or earnings expended 
 on said road is - f ; 
 
 That the amount received during the last year for 
 tolls is $ ; 
 
 That the amount received from aU other sources 
 during the year past, to wit : 'by , and by , 
 &c., &c., is $ ; 
 
 That the amount of dividends made by the com- 
 pany is $ ;• 
 
 That the amount set apart for a reparation fund is ^ ;, 
 
 And that the amount of indebtedness of the said com- 
 pany, which indebtedness accrued for is f ;. 
 
 AT?) 
 
 -n . ■, n n' r»'' [ Directors, 
 
 Dated, &c. 0. D., J 
 
 Affidavit to he attached to the Bepo/i. Seo. 65. 
 
 Genesee County, ss. ' , . 
 
 A. B. and CD., who made and signed the within rf^jort,. 
 being severally duly sworn, say, that the facts stated thereiniare^ 
 true. . 
 
 a.b: 
 
 Sworn, &c. C/. D. 
 
 (Ko. 113.) 
 
 Notice where the Office shaXl he kept. Sec. &Q. 
 
 Notice is hereby given, that the store of E. L , Esq., in the 
 village of Alexander, is designated, as the office of the Alexan- 
 der plank road company, (or any place in the county where the 
 road is.'i until further notice according to law. 
 
 ' A. B., Sec'y. 
 
 (No. 114.) 
 
 Books containing the Na/jfrns of Stockholders, Alphc^etically 
 Arra/rvgea. Sec. &Q. 
 
 Names. | Rzsidbmob. 
 
 A. 
 Allen, Geo. W. 
 Adgate, Wm. 
 
 Byron, 
 BatJavia 
 
 No. OF Shaileo, I Time week beoame holdxbs 
 
 ., Eorty, 
 Thirty, 
 
 January 1, 1847. 
 October 10, 1841. 
 
224: APPEHDIX. 
 
 (No. 116.) 
 
 Certificates of Inspectors presiding at Elections. Sec. 9, Title 
 1, Chap. 18, Bevised Statutes. 
 
 The undersigDed, having presided at an election of directors 
 for the Cold Spring plank road company, held at in the 
 
 town of , and county of Pntnam, on the day of 
 
 185 , and estimated the votes received at such election, do cer- 
 tify, that there were on that occasion votes cast ; of which 
 were for A. B , . were for B. D , E. F , 
 were for G. H , (naming all the candidates,) and that 
 such election resulted in the ojioice of A. B , B. D , 
 E. F , G. H , and I. K , as directors for said 
 • company. S. M., | 
 
 % U., > In»peetors. 
 IDated, &c. E. S., ) 
 
 {^o. 116.) 
 Edease of Land^, under Sec. 1, of Act Wovernher 24, 1847. 
 
 In consideration of the sum of one dollar, to me in hand paid 
 ■by the. Charlotte |)laiik road company, I, A. B., the owner of cer- 
 tain lands desired by said company for the construction of their 
 plank road, to wit : (describe the lands accurately,) do hereby 
 assign, sell and release to said company, the said described land 
 for the proper use and purpose of said company, under the 
 " Plank Eoad Act," so called, passed May 7, 1847,, and an " act 
 in relation to Plank Eoad and Turnpike Eoad Companies," 
 passed, November 24, 1847, so long as the said company shall, 
 by law, exist. 
 
 -Signed, sealed and delivered, this ) 
 
 .day of , 185 , in presence of \ A. B. [l. s.] 
 
 (No. 117.) 
 Agreement ly Town Officers. Sec. 1, Act Nov. 24, 1847. 
 
 The subscribers, the supervisors and commissioners of high- 
 ways of the town of Greece, in the county of Mom-oe, hereby 
 agree to and with the Charlotte plank road Gompany, in consid- 
 eration of the public benefit to result therefrom, and in pursuance 
 of " an act in relation to Plank Eoad and Turnpike Eoad Com- 
 panies," passed November 24, 1847, to grant and allow to said 
 company the right to take and use the following highway, viz : 
 (here insert a description of the roads and parts of roads to be 
 taken,) which are deemed necessary for the construction of said 
 plank road according to the provisions of the law; in such case 
 made and provided. D. G., Supervisor. 
 
 Dated, &c. F. M., ) ^ 
 
 sol Commissioners. 
 
INDEX. 
 
 A 
 
 ABANDONMENT— page. 
 
 of private 'Way,.. 104 
 
 of parts of planb road, 139 
 
 ABATEMENT— 
 
 as a remedy for nuisance, 65 
 
 4.CCEPTANCE- 
 
 of highway, what is, .. 61 
 
 ACCOUNTS— 
 
 Cdiiiinissioners to render, „'...'... 13 
 
 what it shall contain, 11,12 
 
 as to swinging gates, ,, 73 
 
 as to bridges to be audited, 83 
 
 plank roads to account, 142 
 
 ACT— 
 
 to incorporate highway companies, 83 
 
 in reference to branch roads, _ 146 
 
 ACTION— 
 
 for obstructing highway, : '..: .1 66 
 
 by owner of freehold, 67,66 
 
 for collision in street, ... . ..». ...:.... 99 
 
 in case of nuisance 65 
 
 to be commenced in thirty days, ..: 138 
 
 AGENT— 
 
 of non-resident, notice to be served on, 26 
 
 AGREEMENT— - 
 
 of commissioners with plank road, 118 
 
 -law in relation thereto,. ,.. ...^ 118, 119 
 
 consent of owners, when necessary 119 
 
 with plank road and town officers, when valid, 142 
 
 for plank road to buy their own stock, illegal, : 132 
 
 ALLOTMENT— 
 
 of districts on town line, 46 
 
 -also, of former roads, 46 
 
 ANNUAL RETURN- 
 
 of overseers, ^ 30 
 
 APPEALS— 
 
 from laying, altering, &o., road, 51 
 
 who may, 51 
 
 who to, and When,..^ ;. '. SI 
 
 referees on, how appointed,. ii :. 51 
 
 15 
 
226 INDEX. 
 
 APPEALS— PA6B. 
 
 form of, 55 
 
 proceedings on, 55 
 
 how waived, 65 
 
 in case of bridges in two towns 80 
 
 none from order ascertaining and describing old road,. . . 9 
 
 for ntin -residents, 24 
 
 proceedings on 24 
 
 as to road on Indian reservation, • 63 
 
 from referees as to location of gate, 128 
 
 APPLICATION— 
 
 for road what to contain, 33 
 
 commissioners can act without,.., 33 
 
 notice of to be posted, ;.». J..... 36 
 
 for private road, : 46 
 
 to supervisors for plauk road - 109 
 
 ARSON— 
 
 to burn a bridge, 77 
 
 ARTICLES— 
 
 of association of plank road, 106 
 
 whereto be filed, 106 
 
 ASSESSMENTS— 
 
 for highway labor, on who,-. 18 
 
 new or thirds, ..,15 
 
 proceedings in making, , 90 
 
 , certain one to be separate, 25 
 
 when deducted for tenant, ,25 
 
 and re-assessment, 31 
 
 AUDITING— 
 
 of damages by supervisor, 44 
 
 expenses as to bridges, 82 
 
 what accounts to bo 82 
 
 B 
 
 •BENEFITS- 
 
 when to be set off, .51 
 
 .BOND— 
 
 of commissioners, when to be prosecuted, 7 
 
 ty whom, .7 
 
 on laying road void, 39 
 
 BOUNDARIES— 
 
 of.highwaya,..., 94 
 
 BRANCH— 
 
 plank roads may be made 146 
 
 company to hold real estate, 146 
 
 iji case of disagreement, 147 
 
 compensation, 147 
 
 .appeal,. >.. 147 
 
 right of purchasers, 148 
 
 may be constructed, I35 
 
 BRIDGES— 
 
 who to repair,,... g 
 
 who liable for not repairing, ...1.. 10 
 
 remedy for not repairing ..^. lO 
 
 wjiep.at the comity expense, 75 
 
 limit of expense, 75 
 
 power gf supervisors, as to, 75 
 
 finefor driving over, 76 
 
 injuries to.,,.,,., .:.,..!.>.. 76 
 
 .burning bridge, arson, ,,..., 76 
 
 how to be built and repaired bet.vrg?n towng, ^ , 77 
 
 joint contracts, as to^ 78, 77 
 
INDfeX. 227 
 
 BEIDGES— PASB. 
 
 •; • case to berefen-ed, s,.,^.,...^ - 79 
 
 proceedings of referee,. 79 
 
 proceedings when commissioners refuse to repair, _- 81 
 
 damaged tridgca to be repaired,, 81 
 
 over canals,'.". 83 
 
 bridge companies, ihcorporatibh of, S3 
 
 ^ plant road company; put up notice on, 139 
 
 BUILDINGS— KJ":: e 
 
 _^ not lay road over, 34 
 
 Bt- LAWS— 
 
 of corporatibiia, , 150 
 
 c 
 
 CANAL— 
 
 '.•• bridges, over, 83 
 
 CATTLE, Ac— 
 
 to.go at lai-ge in highway, .] 91,41 
 
 driven in highway and escaping, 100 
 
 CERTIFICATE— 
 
 ■of freeholtlers, when necessary, t 35 
 
 may be signed by more -thaii- twelve, .'...:.. J 35 
 
 ■void unless twelve duly qualified freeholders, 37 
 
 where to be filed,...; ...; 37 
 
 <>f inspectors of plank road, 123 
 
 CERTIORARI— 
 
 from proceedings of- referees, 54 
 
 when it wilUie, 57 
 
 CLERK, TOWJ!I— 
 
 to make copy.of lists, 20,23 
 
 his fees. on re.assessment, 43 
 
 order to be filed with, i.., 43 
 
 file papers in case of private road, 48 
 
 COLLISION— 
 
 action for, 100,99 
 
 COMMISSIONERS OF HIGHWAYS— 
 
 their duties,... i 6 
 
 to give directions, Ac, 6 
 
 to regulate roads laid 6 
 
 to describe roads laid ....'. 6 
 
 to divide (own in districts, :... 6 
 
 •to -require overseers to warn persons assessed, 7, 11 
 
 number to be elected, ...'. 7 
 
 in case of vacancy i 7, 8 
 
 to give bonds, .--.._ i- 7 
 
 bond, how prosecuted, j.. t.-^.j.... 7 
 
 must bean elector ,i ,--,-■ ^ 
 
 to administer oaths, . 1 , 8 
 
 when justices may make appointments, 8 
 
 to have the care and superintehdenep, „.. 8 
 
 to direct overseer •r-r--. 8 
 
 to regulate and alter roads....... .,... .J. . 8 
 
 to ascertain and describe roads 9 
 
 to lay out and discontinue roads, 11 
 
 to- deliver statement to BuperWsdr, ■.:, ...:.. 12 
 
 to appoint overseers to fill vacancy . .' 16 
 
 when to sue railroads 18 
 
 to meetto mate-assessment, ..». , 19 
 
 duty to prosecute generally, 17 
 
 penalty for neglect, .-.^ 18 
 
 may lay out road without written application, 33 
 
 to lay over wild lauds, <fec., unconstitutional 83 
 
2M INDEX. 
 
 COMMISSIONERS OF HIGHWAYS— .,paqs. 
 
 D]USt all act; or be Tiotjfied;;...-.... .^ '..:.'.... 37, 38,87, 88 
 
 disagreeing with coramissioners of other towns,- ..'.'.'.':. 45 
 
 as to town line roads, 45 
 
 duty of; in case of private road, — 46 
 
 to" swear tlie jury, .■.■..-.....-. 47 
 
 their fees :.. ....' 93 
 
 their power to contract a debt, 93 
 
 no right to make conditions, 93 
 
 to be 'appoiTited- by supervisors to lay plank road,. .:.,'.'. 110 
 
 to make agreement with plank road, ~ ' 118 
 
 when valid,..; •....•.:.:■......-..• ll'l\..'l. 142 
 
 to apply for change of toll-gate, 126 
 
 their acts coriflrmed ., 59 
 
 special, how appointed, - _ 64 
 
 to file an account of swinging gates, — ■ 7-3 
 
 aBtoallowance for bridges,. -..•-...... ».w';"7-.'.. .,.: .'. 76 
 
 to put up notice on bridges 76 
 
 as to bridge in two towns, '.' 77 
 
 ■joint conti'act as to -bridges. > .- ■.'". J ' 77 
 
 how to proceed in such cases ,77 
 
 liable as to judgment in such cases, .; 78 
 
 to meet and fix a plan,.., ; 79 
 
 to make report ; 80 
 
 appeal in such cases, — — , 80 
 
 their liability to a civil action, ,. 10, 82 
 
 when two coramissioners may act, ,8S,,87 
 
 to prosecute suits........... 91 
 
 how to prosecute, 92 
 
 COMMUTATION-— • 
 
 forwork, 26,27 
 
 when to be paid,. 27 
 
 -plankand turnpike roads may,.,...', .w ■ 155 
 
 COMPLAINT— '• ' - ,., 
 
 I , for not working how made, ^ 
 
 proceedings on, ..:. .; ; ;......... 28 
 
 pOlfDITIOlfS— 
 
 commissioners no right to make, in layingroad, 39 
 
 CONSENT—; 
 
 of owner, when necessary to lay road, 34 
 
 how it shall be given,.. ..'.\ .. , 35 
 
 need not be in writing if ^Cted on, (to., 35 
 
 CONSOLIDATE— 
 
 two or more companies may 136 
 
 CORPORATIONS— 
 
 ■when liable tobe assessed,: 20 
 
 notice to be given to, .J... 22 
 
 may commirte,.-. .'. '. .... 22 
 
 ■when to cease,..:. .......' 134 
 
 ■when they may be dissolved,.. '.;;...':...' 1 151 
 
 liowproved, . . . . . : ' ■.: 143 
 
 nottote forfeited for certain acts, ..:.... J.... 140 
 
 COSTS- 
 
 on re-assessment, by whom paid, 43 
 
 on reference of a bridge qiiestion, 80 
 
 COUNTY COURT— 
 
 to license ferries, 95 
 
 to remove, toll-gate, 127 
 
 dUL DE SAC- . ■ 
 
 not a publl^ highway, ,..; 62 
 
INDEX. 
 
 229 
 
 I 
 
 ; » 
 
 DAMAGES— 
 
 in laying road, may be agreed upon, 
 
 to what amount by agreement, « 
 
 how tp be assessed, , , 
 
 what are damages, , ...i, 
 
 for road through unimproved lands, 1 
 
 re-assessment of „-,,.-. 
 
 How audited,.. 
 
 in certiiin cases, how'eslimated, , 
 
 in case of private road, , 
 
 to be paid before opening private road, 
 
 in case of encroachment. 
 
 damages in opening plank road, to whom and how paid, 
 
 when benefits to set off, 
 
 as to plank roads, 
 
 DEDICATION— 
 
 how highways become by, 
 
 law in reference to,- 
 
 DIRECTORS— 
 
 in plank road company 
 
 their number, how chosen,... , 
 
 election of, 
 
 notice of election, 
 
 all stockholders, directors, when, 
 
 to make annual report, . 
 
 to keep a book, . . 
 
 DISAGREEMENT— 
 
 of commissioners of towns, 
 
 DISCONTINUANCE OF ROAD— 
 
 damages how estimated- i.. .-.- 
 
 DESCRIPTION— 
 
 of road, in laying out, : 
 
 DISTRICT — . 
 
 roads to be divided into, L : 
 
 who to work on, • 
 
 on town line, '. ; 
 
 for plank road work, 
 
 TAQE. 
 40 
 40 
 40 
 40 
 41 
 41 
 44 
 44 
 48 
 48 
 71 
 119 
 51 
 117, il8 
 
 60 
 61 
 
 106 
 106 
 128 
 128 
 129 
 1.30 
 131 
 
 45 
 
 44 
 
 38 
 
 10 
 
 10, n 
 
 45 
 
 137 
 
 E 
 
 ENCROACHMENT— 
 
 order to remove, 
 
 notice of, to be given, 
 
 what order shall contain, 
 
 proceedings in caseofi 
 
 m case of denial, 
 
 EXEMPTION— 
 
 of certain militia persons 
 
 from toll, who, 
 
 law in reference to, 
 
 EXTENT— 
 
 of the highway act, 
 
 68 
 68 
 68 
 68,69 
 69 
 
 27 
 
 125, 152 
 
 153 
 
 92 
 
 F 
 FALLEN TREES— 
 
 to be removed, Tl 
 
 FEE- 
 
 of the land, in whom, 44, 45 
 
 action by owner of, , -- 62, 67 
 
 rights as to railroads in highway^, -- 90, 89 
 
230^ 
 
 INDEX. 
 
 FEES- 
 FENCES— 
 
 of commissioners,. 
 
 FERRIES— 
 
 to-be removed, 
 
 when and how to be removed, 
 
 in ease of enoroaohmentj 
 
 across plank roads, how removed, . 
 
 regulation of, ..i. •..:..-..; 
 license; by whom granted; . . 
 notice of application, .■_.•_.. 
 application, by whom made, . 
 
 recognizance to be' given, 
 
 effect of certain licenses, 
 
 penalty for misconduct, . 
 
 FILINa- 
 
 paperS, . -— ' :.'. 
 
 FIXTURES- 
 
 , ; not to lay rgad over, 
 
 FOOT PASSENGERS— 
 
 law of in road; 
 
 FORCIBLY AND FRAUDULENTLY— ' ■ 
 
 passing gate, ii -..- - 
 
 penalty for, . :.- .-..l.-,. :. 
 
 law in reference to, . .____ 
 
 FREEHOLDERS- 
 
 certificate of twelve, wlien necessary, 
 
 to be sworn, . ...,.,._.:. j„,^., 
 
 are to meet, ^^ ^Liii.' 
 
 proceedings of, _. ............. . 
 
 who can act, 
 
 must be twelve, qualified,.- ■, 
 
 when to file certificate of, 
 
 not to be paid,.,... .^,, 
 
 in case, of encroachment, ^w.. 
 
 ferry a friuachise,. and law in relation thereto, 
 
 FOUNDEROUS— ■ - 
 
 the law as to, on private roads, 
 
 as to public highways, 
 
 FA8E. 
 92 
 
 69 
 
 68 
 
 11 
 
 141 
 
 95 
 95 
 95 
 96 
 96 
 96 
 96 
 
 61 
 84 
 99 
 
 156 
 155 
 156 
 
 85 
 
 36," Si 
 36, 31 
 SI 
 SI 
 38 
 69 
 97 
 
 50 
 •74 
 
 G 
 
 GARDEN— 
 
 GATE- 
 
 (^tRADING- 
 
 GRAVEL- 
 
 not lay road over, &c.,- 
 dcfinition of, &c., 
 
 penalty for breaking down, 
 
 when to be thrown-open, 
 
 swinging, when to be allowed; : ., 
 
 ■ " how erected and preserved;' .' . 1 . 
 " expenses of, and how collected, - 
 
 to be closed, .....: . ^^ ;'..' 
 
 toll, when to be erected, 
 
 hoist, not to be erected, . 
 
 not to build near dwelling houses, 
 
 or gravelling roads, .... 
 
 and cutting down highway, . 
 
 plank roads re-laid with,.,. 
 
 34 
 34 
 
 155 
 
 163 
 
 IS 
 
 IS 
 
 IS 
 
 IS 
 
 123, 124 
 
 124 
 
 136, 126 
 
 25 
 32 
 
 139 
 
INDEX. 231 
 
 GtriDE POSTS— PA6B!. 
 
 when and where to be erected; . 15 
 
 to be kept in repair, _ 15 
 
 to be erected by corporations, ..: 151 
 
 H 
 
 HIGHWAYS— 
 
 when public, 8 
 
 may be laid across railroad track, 39 
 
 cattle, &c., not to go at large in, 41- 
 
 when laid through unimproved lands, damages to be paid, 41 
 
 how wide to be, 60 
 
 how discontinued, 50 
 
 who may apply for discontinuance, 50 
 
 proceedings to discontinue, 51 
 
 by user, 1 ___^ 60 
 
 by dedication, 60 
 
 must be a thoroughfare, 62 
 
 HOIST GATES— 
 
 not to be erected, _ 124 
 
 I 
 
 IDIOT— 
 
 exemption of, ..,_ , _ 20 
 
 who 1^,.., _.. 21 
 
 INSPECTORS OF PLANK KOADS AND TURNPIKES— 
 
 their duties on receiving complaint, 153 
 
 to give notice to directors, .-^.. 163 
 
 to complain to district attorney, .. 154 
 
 their fees, how paid, .u 164 
 
 of plank road, to be appointed, _. 121 
 
 their duties, ,..._.... - , 121 
 
 when to. inspect road, 122 
 
 to make certificate, , 122 
 
 duties when complaint is made,: 137 
 
 who to pay their fees, ._ 137 
 
 INCORPORATION— _ 
 
 of plank roads, . 105 
 
 INDIAN RESERVATION— 
 
 roads on, t... i 63 
 
 INDICTMENT- . .„._ . 
 
 for obstructing highway, .,..._ . . ^, 65 
 
 J 
 
 JUDGE, COUNTY— 
 
 substituted for three judges^.' 34 
 
 appealsto, 51, 52- 
 
 jrUDGMENT- 
 
 in case of bridge in two towns, .. . --i-^-, - 78 
 
 against plaik roads, how collected, .. ..1^ 143 
 
 JURY— ' / 
 
 to re-assess damages; : : .: ; 41 
 
 certificate of, to lay road, 36, 37 
 
 how drawn, .. _. 42 
 
 when to be summoned, 42 
 
 by whom sworn, ._ 42 
 
 their verdict, 42 
 
 theirfees, .■. _. 43 
 
232 INDEX. 
 
 JUKY— PAGE. 
 
 on private roads, .. ,, 46 
 
 how selected, ,- ^' 4^ 
 
 place of meeting, . ... ,-r-- . 4T 
 
 their determination, 1.. 47 
 
 by whom sworn, 4'r 
 
 in case of encroachment, ..ja 70 
 
 in case of plank road, -- IW- 
 
 their proceedings, 115,116 
 
 their verdict, _. . j. 117 
 
 JUSTICES OF PEACE— " 
 
 to make appointments in case of a tie, 8 
 
 LABOK— ' 
 
 who liable to be assessed for, :. 18 
 
 how assessed, s - -- 20 
 
 on plank roads, _ -.- -- 13*7,138 
 
 LANDS— ■ 
 
 occupied by a servant when assessed, 19 
 
 damages to unimproved, &c, to be paid, 41 
 
 LAW OF THE KOAD— 
 
 law of the road, 98 
 
 penalty for violating, . 98 
 
 persons meeting with carriages, 98 
 
 driving across the -stre&t, ^ .^^ i 99 
 
 as to persons on horseback, ....^ 99 
 
 as to foot passengers, t. ,^ 99j_ 
 
 meeting on sudden, .^ .^ . 99 
 
 accidental meeting, . , 99 
 
 rate of speed, ^^.,._,.j, , .j. 99 
 
 LAYING OUT PUBLIC AND PRIVATE ROADS- ; 
 
 laying out public and private roads, J 32, 33, &c 
 
 who may apply for, j 32 
 
 surveys for,. ...-.-. .. 33 
 
 power of commissioners,.. 11, 37, 39 
 
 consent of owner, -when mecessary, _.:. 34 
 
 over wild, &g., land, without paying damages, uucon- ) 
 
 stitutional,.. f 33 
 
 LISTS— - - 
 
 of inhabitants to be made, 1' 19 
 
 to-be delivered -to commissioners, :.j^'j.^j 19 
 
 to be delivered to the overseer, ^ .'" ' 20' 
 
 town clerk to make copies,. -.,. i.i...L:.i.J.'J.._ 23 
 
 omitted names to be added to, 24 
 
 of persons on plank roads, .^ 138 
 
 M 
 
 MANDAMUS— 
 
 when it will lie for not repairing a bridge, 10 
 
 against supervisors reflising to audit damages, 44 
 
 MEETING OF COMMISSIONERS— ' ' ' ' 
 
 1 when a majority may act, 88 
 
 MILL— 
 
 going to, exemption, 152 
 
 MILE STONES— 
 
 breaking down, _' 155 
 
 to be erected,, _. 13 
 
 to be erected by plank road companies, 151 
 
INDEX. 233 
 
 ,r-rx^„ certain members of. exempt, , ' 27 
 
 MINISTERS OF GOSPEL- 
 
 exemptionof, J __'. J 20 
 
 who are, 20 
 
 MONEYS FOR ROADS AND BRIDGES— 
 
 how to be raised, _ j^_j 12 
 
 amount to be raised, ^ 1„ 
 
 JV 
 
 NAMES— 
 
 omitted to be added to lists . 24 
 
 NON-RESIDENTS— 
 
 lands to beassessed, ^ 18, 19 
 
 how appraised, 19 
 
 notice given to work, ^ 26 
 
 labor, how to be collected, 30 
 
 •NAVIGABLE RIVERS— 
 
 navigable rivers, ., "72 
 
 NOTICE— ■ -- — -- 
 
 of raising additional money, . 12 
 
 to work, by overseer, .:.; 25 
 
 of application to lay road,- 36 
 
 what it shall contain, ^, 36 
 
 where and when posted, i 36 
 
 to occupant, of laying road, __ 38 
 
 for re-asseasment of damages,. 41 
 
 how served, 41 
 
 for private road, how served, 46 
 
 of order in case of encroachment, 68 
 
 to be put upon bridges, , 'i'7,16 
 
 application for plank road, 109 
 
 IfUISANCE— 
 
 by obstructing highway, 65 
 
 how abated, 66 
 
 what is a, . 67 
 
 O 
 
 OATH— , , 
 
 commissioners have power_ to admiruster, 7,8 
 
 of freeholders, when necessary, .., .: y. , 35 
 
 OBSTRUCTIOJf— • 
 
 penalty. for, ^._ 64 
 
 law in relation to, . 64 
 
 how removed by action, ,., >,«., ^ ; 66 
 
 by abatement, ..^ 66 
 
 OFFICE— .,., ,: 
 
 plank road to have, ■-....: 131 
 
 OCCUPANTS— : ,,r. 
 
 to be notified of laying roads, -..i_i 38 
 
 OLD ROADS— 
 
 how discontinued, - 60 
 
 ORCHARD— 
 
 not lay road over, 34 
 
 definition of, 34 
 
 ORDERS— 
 
 appointing r.eferee, &c., to be filed in town clerk's office, 43 
 
 of commissioners, when a majority may make,' 88 
 
 to lay road to be posted, 34 
 
 to be signed by commigsipners,.-.. 37 
 
^S4' INDEX. 
 
 OVERSEERS— . page. 
 
 subordinate to commissioners, -- ,8, 
 
 power to remove obstructions, r----- 8 
 
 their duty to repair,....- ^i^.- i.-.j;..:;.-. ■'.... .. 13 
 
 to warn personsto work,. ;;.-;.!. ^.. -■-... •- 13 
 
 to destroy noxious weeds,i.,i.;-..i.^lJ.i.-- — 13 
 
 to collect iines, ,- 14 
 
 how to bechosen, 14 
 
 when liable for damages, — 14 
 
 to remove stones, &c., , IS 
 
 new assessments, or thirds by 15 
 
 excess of work by, 16 
 
 vacancy, how suppUed, L -'-.-- 16 
 
 penalties on, for negleot,2 '■ — - W 
 
 to give notice to work, ... — 25 
 
 escuEea by -Overseer, ,-^.i.. 29 
 
 to- make annual returns, . -- 30 
 
 its contents, i ^. 31 
 
 to pay over moneys, i-, '31 
 
 penalty therefor, how collected, not to be exonerated ) , 
 
 by re-assessinerit, . !."!..... 1 ) , 31 
 
 what control over the soil in the highway, 32 
 
 duty as to" swinging gates', ... IS 
 
 PAPERS— 
 
 where .filed, 51 
 
 PENALTY— 
 
 on a railroad for not improving highway, ^ 39 
 
 for shunning a turnpike or plank road gate, 156 
 
 for forcibly- or fraudulently passing, .. 155 
 
 breaking downmjlg stone, - 155 
 
 breaking down gate, 155 
 
 digging up soil- in turnpike road,., J i 155 
 
 " - '-' in plank road,.,,, J.^ 155 
 
 for hindering- trAyeletS, ,, 154 
 
 for obstructing highway, 65, 64 
 
 for not removing an encroachment, 69 
 
 for felling trees, ..' 'J2 
 
 for not removing trees from streams, "72 
 
 as to swinging gates,..' j. .' 73 
 
 for injuring -side-walk,. ...L.^..^-. : 74 
 
 for riding, &c., too fast over bridge, 76 
 
 ■> for- injuring shade trees, . ^ 89 
 
 > for- injuring mile boards,.. ..,,.. : 1^ 91 
 
 for injuries to roads, L' ^,.L ^ 91 
 
 on overseer,. 17 
 
 who to prosecute for, 17 
 
 for neglecting to prosecute, ,j 18 
 
 on corporations, 22 
 
 for neglect orunfaithful work,,......'. 9,1 
 
 for not working,..! 28^27 
 
 cer-tain, to beses ofF,..^.., ...i ,j 29 
 
 on overseer for not paying over money, 31 
 
 how recovered,. ..^. . 91 
 
 for misconduct of a ferry, . 96 
 
 for ferrying without a license, , 97' 
 
 proceedings when water in two counties, ... . 97 
 
 for driving on wrong side of road,.... ^ 98 
 
 for false representation, . ... 126 
 
 for fence across plank road,-i. ..ii'j 141 
 
INDEX. 
 
 235 
 
 PENALTY— PAGE. 
 
 for passing gate without paj-iiig toll ,,, -1,4,1 
 
 for hauling logs, &o., on plank road, liO 
 
 for leaTing logs, &(^'"von plant road, . . - 140 
 
 passing gate without paying toll 136 
 
 PEKSONSLIABLE— ." !! - 
 
 for. highway labor, , 18 
 
 w.hen the word embraces corporatiouSi l....- . 21 
 
 PETITION— 
 
 to take lands for plank roads, 114 
 
 PLANK OR GRAyBL— '.. y /_.. _ 
 
 to be put on roads, ;• '; 25.! 
 
 PLANK EOADS— ,' 
 
 highway to be w'o"rked upon, J _ _ 1 J 138, 139 
 
 application' to supervisors, ..". - 109 
 
 to be laid by commissioners,'.'. 110 
 
 p'etitiou to take lands, .'..'.. 114 
 
 may take highway, ._ llT 
 
 With whom agreenaent tobe'made, -- 118 
 
 law in relatio'n't'o such agreement, . 118, 119 
 
 are constitutional'.... 118,119 
 
 wi-dthof.. .'...■..'....... -.. ' .^., 120 . 
 
 of what materials made, ... 120,121 
 
 may construct branches, .; ;; 146 
 
 to take and hold real estate therefor, . ' 146 
 
 in case of digagreemeut, .. : . '. • Hi ^ 
 
 compensation therefor, 14*7 
 
 appeal thereon,.... — , 146 ; 
 
 payment of compensation ..., . ... i 147 
 
 rights of purchasers Of,'.'.'.I..- ...,.--.-...^ 148 
 
 redemption after sale', 11... , . L. ^i 145 
 
 purchasers Of, m'a'y associate, , .... J ..,..'.---', ,-i'^ 145 
 
 tOreudBr a;ccount,....'.' .... .....^.,. , 142 
 
 to have an office,.. .- .,-,, 131 
 
 gate shunning, penalty for,'. : 156 
 
 fOfclbly or'fr'aud'ulfintly passing, .' 155 
 
 law in reference to, 156 
 
 may commute, , 155 
 
 directors not to be interested in contracts,, t;..,., j 151,- 
 
 such contracts void, ..i.^.... 151 
 
 the' act concerning, l.il .' „.. - , .„ , ,}.0o 
 
 manner of forming companies, -. .. 105 
 
 notice to be giyen to,v.v.' ■... ..'. L..J1 106 
 
 stock, how subscribed, -. 106 
 
 ariicles .of association, where filed, ......'.'..' :-■'' 106 
 
 PRIVATE ROADS— ;.' ' ' ' '' 
 
 persons -to becredited for work on, — : . 24 
 
 or annexed to road district, - ' ' 24 
 
 constitutional,..^.... ^. -..-.-_-_- . .._' 46 
 
 application for, by whom made,. ..-...'.:. 46 
 
 jury, to determine, ..•.• ., -. — ..l.I :'-' 46 
 
 damages to be-paid before opening, .i.1:'. -- 48 
 
 along division line, -. 49 
 
 repeal of former.acts, ...i.. 49 
 
 for what purposes to be .used, i 49 
 
 PROCEEDINGS— . ^1 > "< 
 
 on overseer's-complatn*, .- ; . . 1 , : — --- , ,?^,',^® 
 
 to collect non-resident labor unpaid,.... j... — -.-. — - '^ ' .lA/1 'SQ.-' 
 
23^-' mt&t.' 
 
 RAIL ROADS—' ' '' pagi. 
 
 when to be sued, ,; ;--. 18 
 
 higfiways may be laid across, -tpr-- ^^ 
 
 may take highway, when, 1' 39 
 
 liable to penalty for not improving road, 39 
 
 in streets, ■L'i.'iL 66 
 
 consent of,. for crossing highways, -l--i--- ^- 88 
 
 across highways, law in relation to, 93' 
 
 E.&ASSESSME_NT— _ _ .,,,.,,4...,,,.,;! 
 
 in case of neglect to work,.' ' 31 
 
 of damages, --^- ^1 
 
 EEFEREES— ' • ' ■ ' 
 
 their compensation, .- 12^ 
 
 their decision appealed from, ...^_; 128 
 
 hofr appointed on' appeals, -,-. - 62 
 
 powers a;nd duties, -- 62,53 
 
 how paid,". .'..".' . ST 
 
 their "flnit determination, how carried into effect, 58 
 
 as to bridges "in two towns,..; . "JS 
 
 proceedings of,.. .. '?9 
 
 to remove toll-gate, ,.. .-- 127 
 
 their "duties and proceedings, -1 ,.-' 12T 
 
 REPORT— - " - " ,- , , , . y 
 
 annual, directors to make, ..... i .'.,..'... 130 
 
 RESERVATION— " , ,; ' 
 
 Indian, roads on, ! ^...... 63 
 
 RIYERS— 
 
 what are navigable, .._ "72 
 
 ROAD— - 
 
 highway synonymbus,.". ! 8 
 
 on town line......... 45 
 
 how divided'lnto districts, 45 
 
 old, how discontinued, 50 
 
 how wide to" be,. 50 
 
 when to cease, .." 60 
 
 what are highways,'. 60 
 
 ■ - ■ S 
 
 SCRAPERS AND PLOWS— 
 
 to be procured when, 16 
 
 SECRETARY OF STATE^- 
 
 to publish laws, 63 
 
 SESSIONS— 
 
 court of, toreviewas to bridgesj.i,.... 76 
 
 SHARES IN PLANK ROAD— 
 
 personal property, 130 
 
 SHUNNING— 
 
 a turnpike gate, 156 
 
 penalty for, I56 
 
 applicable to plank road, .". 134 
 
 law in relation to, 156 
 
 S'IDE'WALKS— 
 
 penalty for injuring., 74 
 
 . jmprovemfijit of, ^ ^ .: 74 
 
 SOIL IN HIGHWAY— 
 
 to whom it belongs, 89,90 
 
 aPECIAL COMMISSIONERS— 
 
 how appointed, 64 
 
INDEX. 
 
 ■ 237 
 
 STATTTTES— 
 
 certain sections applicable to plank roads ;.:'.'.:.'... 
 
 STOCKHOLDERS— ' ' '^'' ; i , 
 
 how sued,. .v.'.'..'. .- , 
 
 " theii- liability' and proceedings, ... ... 
 
 STOCK IN PLANK ROAD— ' ,, 
 
 „ how subscribed, 
 
 ;, when to be paid in;.'."." 
 
 When caTled,...:..; '..',"V.'.'.'.'.. '...'. 
 
 '■ : * ■"■•isn^forfeited,...;..^;.... ....".'.... '.i'"'..".'."''.'^^' 
 
 ■" What a good subBcrjpti"on, ...".. ..' ".' 
 
 STREAMS— 
 
 what are navigable, ' 
 
 SITESTITUTES— ■■>■:,•,■■,-■-;■-■ 
 
 when allowedj I'.'.... ' . 
 
 SUBSCRIPTION"-- ■ •' ■ ' '■ 
 
 to articles of asgociatieu, 1 
 
 whatisavalid, :. ',. 
 
 SUMMOH'S— 
 
 on overseer's complaint, 
 
 how served and retured, ,.-.. . j...,. 
 
 to re-assess "damages,;." '..'. '.. 
 
 .^ incase of encroachment, ,. .".„. 
 
 'fefrLLIVAN COPM-TY— ' ' 
 
 ,- certain laws not to agply to, ,...,.j,. ,.... 
 
 ■-SUPERVISORS-.-".' .".".' \.' "' 
 
 '.:'. to agree with plank road,. 1. 
 
 i"-' to lay statement of. improvements before the board, 
 
 board of, to raise money, 
 
 the amount, 
 
 'J , to lay .statement si. nonrresident labor before the boai-d, 
 
 duty of board thereon, 
 
 to audit damages, ' '. 
 
 ■ to appoint special com missionei's, .. L ...... I ....... 1 . . 
 
 their -powers as to bridges, .':'.".'.■....'....'.. .iV..^:. 
 
 application- for plank" road, .......^ '.':.... .'.'ll,. 
 
 ^TTRVEY OF HIGfiW-AT- ;■ ' Vi ;' ' " ,,,;,', *' ' ' ""'; 
 
 ;', , . ; to be made,'.'.,. ........ ,,i.;^.,... i.^,. ,. 
 
 of plank road,. .... -i,.., 'r,. 
 
 133,134 
 
 144. 143 
 
 132. 144 
 
 106,107 
 108 
 129 
 129 
 130 
 
 72 
 
 36 
 
 ,186 
 
 106, ro8 
 
 08 
 28 
 42 
 
 124, 123 
 
 118 
 
 12 
 
 12,13 
 
 . 13 
 
 SO 
 30 
 414 
 64 
 75 
 109 
 
 33 
 113 
 
 TASES— 
 TEAMS, <fec. 
 TEN" ANT- 
 TITLE— 
 TOLL- 
 
 T 
 
 tollhouse, <&c., exempt from, 
 
 when they.may be required,..,,, , . 
 to have work deducted on rent, . . . 
 plea of, '- 
 
 penalty for not paying, ..: ...'. 
 
 •who exempt from, ...,..;... 
 
 when to be fixed by sUpervisbrg.'.-.Jjl — ..... 
 
 rates of. .'-- ,........"... 
 
 who exempt, 
 
 bridges, AQtice.Q'li- ---.-.-.- -. '•■ — 
 
 bridges, when to becocie a highway, 
 
 TOLL GATHERER-- ■ ■ 
 
 penalty againstj now collected,, .^i-Ji . . . . .i . . .. 
 penalty against for hindering, <fec., passengers,, 
 his wife acts as his agent,... ,.v,.. .... .. 
 
 134 
 
 ' 27 
 
 25 
 
 67,68 
 
 141 
 
 125 
 
 124 
 
 123, 124 
 
 -;:'T52 
 77 
 77 
 
 155 
 
 .1&4 
 
 154 
 
•239 iNfiEx. 
 
 TOLL GATHERER— ,; . , page, 
 
 same penalties apply to plank roads,.! ....,., l54 
 
 may demand toll in advance, .......'11'. 155 
 
 ' ' ■when to tln'ow open gatBj .• ...... .1,, ....!'.. 153 
 
 •'■'-' may-prevent persons passiilggate'^.. '.I .... lll'1'l...'..l. _ 152 
 -TOLL GATES— ' ' ' ' " ' 
 
 ; ' -when to bfeWected,.... ...■.'...■.-.■-'. ,..1 123,124 
 
 •law forremovalof,. ...... .;....■..:.. ' ..,.,.. 126,127 
 
 refereeto be appointed, ..■...'.■..;.■. , 127 
 
 ' hmiBeexemyt from taxes, --•.rf '■ "" ^^^ 
 
 TOWNS— " " ■"''"'' " 
 
 do not own tlie roads,... ..... .ii, «..-.. v 8 
 
 nor responsible for their repair, S^ I/O 
 
 nor for repair of bridges .......,;,,.>. 10 
 
 meeting may allow cattle, ifec, to go at large on highway ■ .41 
 
 when commissioners disagree, .,,..>. i ...... 45 
 
 i'oads online of ---,--r , .... 45 
 
 adjoining as to bridges, ' 77, 78, 79 
 
 TRAVEL— ■''■•;' ' ' 
 
 -extra viam;..-.-. .-.:! 111. .• '... ... 74 
 
 TRAVELERS-- _ " ' ' ;' 
 
 ■ penalty for hiiideriDg, , 154 
 
 . TR:p;s— 
 
 TROOPS— 
 
 fallen to beTemoved>.-... .... ,.j. ., ., j. 71 
 
 felling, penalty for 72 
 
 lo be removed from .streams.. . 1 a 72 
 
 in highway to whom tliey belong, '• 89 
 
 maybe planted in highway, 89 
 
 wheneacempt from toll, c..:.- 152 
 
 TURNPIKE GATE-- 
 
 shunning! penalty for, 156 
 
 penalty for forciDly, itc, passing , 155 
 
 persons exempt,' , 152 
 
 how to appraise End "taten by, 151 
 
 roads to become public highways, 60 
 
 company statute in relation to,-...-. ■.... ..,....,: L 149, 157 
 
 -directors of,-.-. -..-.v.. ..-.;.-.. .■..■.•.........'...:... 149 
 
 powers of directors, .-. 150 
 
 Width of turnpike roads,. „.. 121 
 
 TTSER- 
 
 tJ . '■■■ 
 Madfl became highways by.-... ..J.'..L..... ;,..., 60 
 
 V 
 
 Vacancies— • 
 
 of referee, <fec., how supplied, 43 
 
 ■fri office of overseer, ...1 16 
 
 "appointment to supply, how filed, ..'.^ 1'..] 16 
 
 proiSeedings on, 16 
 
 Verdict-- '.. 
 
 of jury Ob private road, 48 
 
 in case of • encroachment, 71 
 
 the effect, ^ 71 
 
 , , new trial vhen granted, u,, 119 
 
 VISITATION— - ■'■- 
 
 plank road's, subject to, „ 135 
 
nSTDEX. 
 
 239 
 
 W PAOK. 
 
 WAGOITS, Ac— 
 
 ,„ . „ when they may be required, 27 
 
 WARRANT— ■^ ^ 
 
 to collect costs in case of encroachment, 71 
 
 ^jl^ in case of non -performance of highway labor, 39 
 
 law in relation to, 101,105 
 
 rightof, how acquired, 103 
 
 ^y prescription, 109 
 
 Toy necessity 103 
 
 manner of pleading 104 
 
 _ _f abandonment of, .' 104 
 
 WIDTH-- 
 
 of road 50 
 
 ofplankroad, 120,121 
 
 WORK— c-L 
 
 on highways to be assigned, 10 
 
 when on plank road 11,137,138 
 
 notice to be given by overseer, 25 
 
 WILD LANDS, <tc — 
 
 laying road oyer, gg